Haney & Todd - [2022] FedCFamC2F 605

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Haney & Todd [2022] FedCFamC2F 605

File number(s): DGC 156 of 2021

Judgment of: JUDGE BURCHARDT

Date of judgment: 16 May 2022

Catchwords: FAMILY LAW – Parenting dispute about 6 and 3 year old children – parents’ relationship volatile and suffused with family violence, especially by the father – mother’s psychiatric difficulties and drug use leading Department to place children with father in 2019 – both parties using drugs during the relationship but father ceasing in 2015 – mother refusing to take drug screen and erroneously asserting that orders for drug screen constitute abuse – orders for mother to have supervised time made as sought by the Independent Children’s Lawyer.

Legislation: Family Law Act 1975 (Cth)

Cases cited: Goode v Goode [2006] FamCA 1346

Division: Division 2 Family Law

Number of paragraphs: 129

Date of hearing: 26 April & 9 May 2022

Place: Dandenong

The Applicant: The Applicant is self-represented

Advocate for the Respondent: Mr Smith

Solicitor for the Respondent: Michael Smith And Associates

Counsel for the Independent Children's Lawyer: Ms Stavrakakis

Solicitor for the Independent Children's Lawyer: Dandenong Family Lawyers
ORDERS

DGC 156 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HANEY

Applicant

AND:
MR TODD

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BURCHARDT

DATE OF ORDER:

16 MAY 2022

THE COURT ORDERS THAT:
1.All previous parenting Orders are hereby discharged.
2.The Father have sole parental responsibility for the children X born in 2015 and Y born in 2017.
3.The children live with the Father.
4.The children's time with the Mother be reserved.
5.The Mother and Father are hereby restrained by injunction from consuming any illicit substances.
6.The parents will immediately inform the other parent of any serious illness or injury sustained by the children or either of them whilst such child is in their respective care. The relevant parent must provide, as soon as practicable, particulars of any treatment or proposed treatment together with full details of the treating professional and institution.
7.The Mother shall be entitled to communicate with the children's teachers and education providers and receive information in relation to the children.
8.The Mother shall be entitled to arrange and attend parent teacher interviews, school events and extra-curricular activities involving the children.
9.The Father will authorize the school the children attend to forward to the Mother, at her expense (if any) copies of all school notices, newsletters and other documentation usually forwarded to parents.
10.The parents, their servants and agents are hereby restrained by injunction from -
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or any member of the other parents' household in the presence or hearing of the children or either of them
(b)Discussing the court proceedings affecting the children with the children or either of them
(c)Involving the children in any form of dispute between the parents

11.The Father will provide a copy of these Orders to the DFFH.
12.The Order for the appointment of the Independent Children's Lawyer is hereby discharged.
13.Certify for Advocacy.

THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
B.The Mother has failed to comply with Court Orders for her to undergo drug screen tests, to provide information regarding her Mental Health and to provide Reports form her treating Psychologist and Psychiatrist.
C.The Family Report dated 23 December 2021 prepared by Family Consultant Ms B recommended that time spent between the Mother and the children be "reserved pending further information being made available with regard to her mental health and potential illegal drug use".

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Haney & Todd has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY

This is a parenting dispute about the best interests of two children, X born in 2015 and Y born in 2017. The Independent Children's Lawyer seeks that the children live with the father and that the mother's time be reserved, albeit that it would be open to the mother to take certain steps to reintroduce time. The mother seeks that the children live with her in a nine/five arrangement per fortnight.
It should be noted that at the commencement of the proceeding the mother sought an adjournment of the trial, partly to obtain legal representation and more particularly, as she put it, to reorientate the case to an emphasis on domestic violence. I declined the adjournment application for reasons that I gave at the time, but as the matter has progressed it has become more clear what the mother meant. It is her position that this case should be concentrated primarily upon the domestic violence alleged by her to have been committed by the father and its sequelae upon her, and it is her position that the case advanced by the Independent Children's Lawyer and supported by the family report writer is, as it were, off the mark.
For the reasons that follow, and while, as I hope I will make clear, that there has undoubtedly been family violence committed by the father against the mother, her failure to address in any meaningful way the very significant concerns that her mental health and possible drug use give rise to cannot simply be put to one side. I propose to make orders as sought by the Independent's Children Lawyer.
AGREED OR UNCONTROVERSIAL MATTERS
The mother was born in 1988 and the father was born in 1984. The mother has deposed that the relationship commenced in 2014 and ended on 24 December 2018. The father has disagreed with that and said that there were a number of break ups during that period but, as best I can understand the parties' materials, that is the duration of the relationship. As earlier indicated, X and Y were born during the currency of the relationship.
The mother has the misfortune to suffer from bipolar disorder and both parents have undoubtedly used drugs from time to time, including ice and, on the mother's part, additionally cannabis. Whether the mother is still using drugs, and, indeed, whether the father is still using drugs is a matter of controversy.
Following separation, which was attended by the taking out of an interim intervention order which was made final in August 2019 for two years, the children lived initially with the mother. In May 2019, however, the children were removed from the mother's care and have lived with the father, essentially, ever since. An interim arrangement made for the children to spend time with the mother came to an end when the father overheld the children on 10 December 2020. On 31 December 2020 the father took out an intervention order against the mother. The mother herself has been the subject of an intervention order taken out in favour of her own father. It is clear that things have been volatile all around.
When the matter first returned before the Court on 1 March 2021 the Court ordered the children to live with the father and spend time with the mother from Friday to Sunday each alternate week and with time on a Wednesday after school in the other week. That order was suspended on 17 June 2021. The orders were suspended pending the mother providing the results of a supervised urine drug screen. The orders also ordered the mother to attend upon Family Consultant Ms B to complete an 11F assessment on 16 July 2021, an order made because the mother had refused to participate on the previously ordered date of 1 June 2021. A family report was also ordered.
On 1 February 2022, at a point where all parties, including the mother, were legally represented, consent orders were made which relevantly provided that the mother would attend for a supervised urine drug screen on Thursday, 3 February 2022 with results to be provided to the other parties forthwith and for the mother to provide a report from her treating psychologist and treating psychiatrist to the other parties within 14 days also. Neither of those orders were complied with. On 22 February 2022 the matter returned again to Court and I adjourned the matter to trial as fixed, and, as indicated in my reasons for not granting the adjournment at the start of the trial, I reminded the applicant on 1 February 2022 that she must be ready to present her case at trial as fixed.
THE PARTIES' AFFIDAVITS
Each of these parties has filed one affidavit only. Given the way the matter has proceeded, it is appropriate to traverse such parts of the affidavits as are not otherwise contained in the agreed or uncontroversial matters above.
The Mother’s Affidavit
The mother's affidavit filed 18 January 2021 introduced the parties and the children and noted the removal of the children by the Department of Health and Human Services in May 2019. Following the department's ceasing involvement in November 2019, the children lived with the father and spent time with her five nights a fortnight (and often more), but these arrangements ceased when the father overheld on 10 December 2020. The affidavit deposed to the father's refusal to allow anything more than very small amounts of time thereafter. The affidavit deposed to the mother's assertion as to various separations during the relationship because of family violence and appended the final intervention order dated 30 August 2019 to which I have already referred.
The mother indicated she did not want the father to know her residential address but that she lives in a property owned by her parents at Town C. She deposed to the father living in a rental property in Suburb D with the children attending substantial amounts of time in child care. The affidavit noted that the father had indicated through solicitors that he would not allow the children to spend time with the mother until she completed at least two supervised drug screens but went on to deny (paragraph 16) that she had lapsed back into illicit drug use. She deposed that she had not used illicit drugs since April 2019 and was proud of her recovery. She said at paragraph 16:
I will consent to an order to undertake supervised random drug testing notwithstanding I deny the necessity thereof if required by this Honourable Court.
The affidavit traversed correspondence between the solicitors for the parties in which inter alia the father made allegations that the mother had been drug affected at one changeover and that she had an association with a drug dealer. The affidavit traversed the intervention order taken out by the father against the mother and annexed a copy of the same as 5. She deposed that notwithstanding this, the father agreed for time on Christmas Day and the weekend of Friday, 8 January to Sunday, 10 January 2021. The mother denied all allegations of drug use or mental health difficulties.
The affidavit deposed to the events of 24 December 2018 when the father assaulted the mother and an intervention order was taken out. I note that at paragraph 30 the mother deposed to arguing a lot with her own father and the police attending her parents' home on 8 April 2019 and filing a summons for an intervention order against the mother in favour of her father. She deposed at paragraph 30:
On that occasion my father and I had argued, and I caused damage to the property (a hole in my bedroom wall and minor damage to the front fly screen).
The mother left her parents' home two days later and sought assistance from the Salvation Army. The affidavit traversed the removal of the children by the Department and went on to note that as a result the father had been required to engage in a Men's Behavioural Change program and not drive unlicensed. The wife annexed a psychological report by Dr E, to which I shall come, dated 16 June 2019.
More particularly at paragraphs 49 and following the mother deposed to the drug use and family violence during the relationship. She deposed that the first supervised drug test she undertook at the request of the DHHS was positive for amphetamine and methamphetamine, and she admitted to using illicit drugs on the Saturday prior to the request. At paragraph 51 she deposed:
I admit that I experienced difficulty with my mental health and drug use during and following the breakdown of our relationship. I was using drugs, mainly Cannabis during the relationship. [Mr Todd] also smoked Cannabis regularly. My relationship with [Mr Todd] was violent and [Mr Todd] perpetrated family violence against me throughout the relationship. Through the counselling I have received I am aware that I used drugs to self-medicate to escape the toxic and violent relationship that I was in.
She deposed at paragraphs 53-55:
I was diagnosed with Bipolar disorder in 2002. I take 5mg of Zyprexa per day as prescribed.
Over the course of our relationship, the abuse by [Mr Todd] increased. Initially [Mr Todd] threw things at me, often in the presence of [X]. The abuse escalated over time including being grabbed, shaken and pushed. I could not move out. I did not have any money. I was in the late stages of pregnancy and then [X] was born. I remained with [Mr Todd] as he kept saying he would not hurt me again.
In October 2016 [Mr Todd] ripped my jumper off me and threw me down the back steps of our home and locked me outside in the dark with no phone, shoes or jumper.
At paragraph 56 she deposed:
On Thursday 21 September 2017 I was getting out of the shower when [Mr Todd] came into the room and tripped over something on the floor. [Mr Todd] charged towards me and ripped the towel off me, threw me onto the bed and got on top of me pinning me down. [Mr Todd] was verbally abusing me and calling me horrible names. He then placed his hands around my neck attempting to strangle me. [Mr Todd] left the family home again …
The mother deposed to a final reconciliation in September 2018 and went on to say at paragraphs 60-62:
In October 2018 [Mr Todd] began pushing and grabbing me again, leaving bruises around my arms and one on my right breast. I also found out that [Mr Todd] had been getting ICE dropped to him at work, smoking substances during work and in the family home out in the shed at night-time.
On 24 December 2018 at around 9.30am, [Mr Todd] became quite aggressive and put his clenched fists up to my face. I was scared of what [Mr Todd] might do as his anger seemed out of control. I started to run down the hallway. [Mr Todd] caught me and continued to yell at me and call me horrible names while pushing me around. [Mr Todd] stormed into our bedroom and began throwing my belongings around. He also threw my bed side table and broke it. I pleaded with him to calm down and to stop.
I recall X appeared at the bedroom door as [Mr Todd] grabbed my shoulders and head butted me in my nose. I took X to the loungeroom and remained with him and Y until the police I had called arrived.
At paragraph 63 the mother deposed:
[Mr Todd] and I are both known to the police. I was placed on a Community Corrections Order in 2014 for possession of illicit drugs. [Mr Todd] was convicted of a range of offences in 2015 including but not limited to, to the best of my recollection, aggravated assault, possession of illicit drugs, dishonesty offences and possession of stolen goods. [Mr Todd] received a Community Corrections Order.
The affidavit went on to traverse the mother's living arrangements and her relationship with the children, which she reported was warm and loving. The mother deposed to recent disclosure by Y that the father had applied cream to her vagina apparently, according to her, for eczema. This had apparently been reported to the Department.
The mother annexed the various intervention orders, and also various records from the children's court, including case planning records prepared for the family.
The report of Dr E is annexure 9 and is dated 16 June 2019. I note that the mother had reported a previous diagnosis of bipolar disorder, that she had a history of binge drinking and was currently using cannabis, though she admitted using ice in 2014. At paragraph 3 the report noted, following the removal of the children by the Department on 6 May 2019:
She admitted staying with a friend in [Suburb F]; she was still using Cannabis and alcohol to self-medicate and was now sleeping in excess of 10 hours. She presented with Major Depression, as a consequence of her Bipolar Disorder and situational crisis. She informed me that though the Order referred to "grounds where the nominated children were (likely) to suffer physical, emotional/psychological harm", she maintained that this was due to conflict with her parents, who disapproved of her alcohol, drug use and her lifestyle.
The report went on at paragraphs 4-5:
On 30 May 2019, Ms Haney attended and reported that she had engaged support in her drug and alcohol use the previous Tuesday; she stated that she had also sought support for her domestic violence history and was receiving counselling. She stated that she had an appointment with Legal Aid and was determined to regain custody of her children. She had apparently resolved her differences with her parents, was seeking medication for her Bipolar and cut down her Cannabis use. She appeared calm, more focussed and reported that she was getting around 8 hours 'restful' sleep a night. She informed me that she “had stopped seeing herself as a victim, and turning to drugs for support”. I formed the view that she had far better insight into her situation with herself, her parents and her children than in previous sessions. .
When I saw [Ms Haney] on 14 June, she informed me that she had not used any drugs (including Cannabis for more than two weeks, she reported drinking no more than 6 standard drinks a week, and she also informed me that she had been taking Olanzapine (Zyprexa), an atypical antipsychotic medication specifically used in the treatment of Bipolar Disorder. She reported better sleep, better concentration and feeling ‘clear-headed’. She looked well, her mood was stable, responded appropriately to questions and demonstrated good insight into her situation.
Under the heading Clinical Observations at paragraph 7 the report noted:
[Ms Haney] suffers from Bipolar Disorder (I), (mixed episodes), her episodes of mania are infrequent, and she stated that she had more frequent episodes of depression. This disorder is considered to be due to genetic factors rather than any drug and/or alcohol use/abuse. Her condition causes significant shifts in mood, energy, thinking and behaviour. Cycles can last for days or weeks, with these mood changes interfering with her functioning. Symptoms may vary in their pattern, severity and frequency. Amongst the behaviours and symptoms [Ms Haney] had reported were: having unrealistic thoughts, poor sleep, she was highly distractible, impaired judgement and impulsiveness, acting without thoughts of consequences, problematic relationships, feelings of guilt and worthlessness. Self-medication with poly drug and/r alcohol are very common. As I have explained firmly and clearly to [Ms Haney], it is important to continue treatment, even if she is feeling well, using a combination of medication, therapy, lifestyle changes and social support.

The report went on to note the writer's confidence in Ms Haney's situation and that the reporter did not see her as a risk to her children.
The Father's Affidavit
The father's only affidavit filed 24 February 2021 is, in large part, responsive to the mother's affidavit. At paragraph 3 he disagreed with the mother's version of the length of the relationship, saying that they separated a number of times because of the mother's drug use. At paragraph 3 he said:
When we broke up we had a physical altercation which resulted in the police being involved and an intervention order being issued against me. No criminal charges have resulted against either myself or Ms Haney in relation to this incident on 24 December 2018. A reason for our breakup was my discovery that Ms Haney had again been using ice and other illicit drugs.
He went on to depose at paragraph 4 that the children were placed in his care because the mother was becoming aggressive and unpredictable in her behaviour as a result of drug use. He deposed to an incident on 22 November 2020 when the mother asked for drop off at Town G. He asserted that a friend of the mother's who was present appeared drug affected and that the mother asked for details of a drug dealer. At paragraph 8 he asserted:
I say that the family violence in our situation was mainly caused by [Ms Haney's] erratic behaviour which usually was associated with her drug use. Annexed hereto and marked “[1]” is a true copy of a DHHS report dated 14 June 2019 which outlines the reasons the children were removed from [Ms Haney].
I will return to that document.
At paragraph 10 the father indicated that:
I agree that the children have been attending child care due to my work commitments, however due to the Covid19 situation my work arrangements have changed and I have more time to spend with the children.
At paragraph 22 the father deposed:
I deny undermining [Ms Haney's] involvement with the children. I want it to occur safely. Since the children have lived with me since May 2019 they have settled well and it is in their best interests to be facing further upheavals in their lives by changing residence & enrolling in school at [Town C].
The father traversed the incident on 28 December 2018 at paragraph 24 when he said:
I disagree with paragraph 27 of the affidavit and say that whilst a physical altercation occurred, it was in the context of [Ms Haney] attacking me with a hammer and I have not been charged with any offences as a result of the incident. The police interviewed me and I gave them my version of events and they decided not to charge me as they were satisfied I acted in self defence when [Ms Haney] attacked me with the hammer.
The affidavit traversed the circumstances of the children, annexing a report from X's kindergarten and went on at paragraph 42:
I agree that I do work and try to juggle work and care of the children. I have the assistance of my mother and father and the kindergarten and school. My work has decreased as a result of Covid19 and I am available to care for the children on a more frequent basis. [Ms Haney] has never worked. This was one of her problems. She would·have too much time on her hands and use drugs as a diversion.
The confidential court report, referred to as 1, is dated 14 June 2019. I have regard to all of it. I note that the mother's own family had plenty to say about the mother's erratic and unsatisfactory behaviour (see page 16 of 29 of the affidavit). The report appears on its face to amply justify the removal of the children in May 2019 and the mother's antagonistic and difficult behaviour towards departmental officers amongst others. Page 18 of 29 of the affidavit the report asserted:
[Ms Haney] lacks insight into the impact her drug use, mental health and behaviours have on [X] and [Y]. [Ms Haney] does not take responsibility for her actions and is instead fixated on [Mr Todd], blaming him for her behaviours. [Ms Haney] is unable to be redirected during conversation due to this fixation and meaningful engagement with [Ms Haney] has not been possible due to this. ·
[Ms Haney's] behaviours towards multiple Child Protection staff of varying positions is of concern. [Ms Haney] is argumentative and hostile during conversations and often resorts to personal attacks. [Ms Haney] has referred to CPP [Ms H] as a trainee stating that she "has no kids or life experience so what would you know". [Ms Haney] has also made personal attacks towards Team Manager [Ms J], in relation to her decision making and that she should "go back to training with her trainee" and making allegations that TM [Ms J] had yelled at her.
[Ms Haney] has been unable to follow safety plans agreed upon throughout Child Protections involvement. [Ms Haney] initially signed a safety plan whereby she was to not remove the children from the maternal grandparents home until further assessments had occurred and to not be drug or alcohol affected whilst in the children's presence. The day following the safety plan being signed [Ms Haney] removed the children from the maternal grandparents home and it was reported that she had been drinking. A further safety plan was developed with [Ms Haney] which was also breached as she disengaged with Child Protection and SalvoCare, and failed to complete supervised urine drug screens as directed. .
The report assessed the father as having insight into his previous behaviours and a preparedness to address these and noted the support of his parents.
THE 11F REPORTS
The first 11F report was dated 7 June 2021. On 1 June 2021 the father attended via MS Teams for his interview. He gave his version of the events. The matter could not be finalised because the mother refused to attend. It was this refusal that led to the order earlier referred to requiring the mother to attend. A further interview took place with the mother on 16 July 2021. The father had already, of course, given his story. The mother reported family violence consistent with her affidavit material and maintained that the father had manipulated her family, services and professionals and that she remained scared of him.
The report noted the mother's concern as to the father's capacity to care for the children (paragraph 9).
At paragraph 11 the report noted:
[Ms Haney] maintained she had not consumed illicit substances for several years. She insisted that [Mr Todd] had used her historical drug use to continue to make false allegations, in an attempt to keep the children away from her and exert power over her. She reported she had not completed any of the Court ordered drug tests and refused to do so. She maintained that all drug tests she had been ordered to complete were a result of [Mr Todd’s] continued false allegations and abuse toward her. As such she stated she did not believe it was “right” for her to complete any form of drug screens or testing as she maintained she was substance free.
The report noted that a diagnosis of the mother with bipolar at the age of 14 and that she reported having recently commenced attending a psychologist every six weeks.
Having noted the highly acrimonious relationship between the parties, the report continued at paragraphs 15-17:
[Ms Haney] maintained [Mr Todd] had continued to make false allegations about her to manipulate the Court and withhold the children from her. She was of the opinion [Mr Todd] had not engaged in any services to address his aggression or substance abuse issues. She maintained Child Protection had failed to protect the children and had aligned with [Mr Todd] in their assessments of her. [Ms Haney] maintained Child Protection had made incorrect assessments and conclusions based on information given to them by [Mr Todd]. She reported she was in the process of making formal complaints. [Ms Haney] was of the opinion [Ms Haney] was unsafe and the children at risk in his care.
[Mr Todd] appeared genuine his concerns for the children. He presented child focused and as making every effort to ensure the children were settled and thriving in his care. He appeared candid in wanting to ensure and support the children having a positive relationship with [Ms Haney].
It was noted [Ms Haney] presented erratic and became heightened and defensive throughout the interview.
Under the heading Issues for the Children at paragraphs 22-25 and following the report went on:
While there is no doubt [Ms Haney] loves her children, she demonstrated limited insight into their needs and the impact her choices and behaviours may have had on them. [Ms Haney] seemed focused solely on [Mr Todd's] faults and blaming him for the events leading to the current situation, unable to take any responsibility of what part she may have played.
It was observed [Ms Haney] was unable to accept any positive changes in the children whilst in their father's care. Rather she seemed to maintain the children were at significant risk in their father's care, referencing historical incidents, appearing to be unwilling to shift her view, despite the children's current presentation. [Ms Haney's] proposal was indicative that she was unable to prioritise the children's needs and their current stability.
Whilst the parties both conceded there had been historical family violence and each engaged in substance use, there is no information at this time that would suggest the children are at risk of harm in [Mr Todd's] care. Rather, it seems that after several years of exposure to family violence and substance abuse, instability and significant changes, they appear to have been in a safety, stable and caring home environment with their father.
However given the allegations of substance misuse, the Court may wish to proceed with caution until such a time where [Ms Haney] can provide drug testing results. Additionally, the Court may wish to have a clearer understanding of [Ms Haney's] mental health and its impacts/risks, if any, on the children.
The report went on to recommend the children live with the father and that the mother's time be reserved pending further assessments and that the mother undergo hair follicle testing for alcohol and illicit substance consumption.
THE FAMILY REPORT
The report commenced by detailing the current arrangements (paragraphs 1-4) and the relevant background (paragraphs 4-7). I note that the intervention order in favour of the father against the mother is due to expire in 2023.
Having traversed the history of the dispute and the proposals of the parties (paragraphs 8-13) the report dealt with family violence at paragraphs 14 and following. The mother's version is that the father had been abusive throughout the relationship and she denied any violence that was not in self-defence (paragraph 15). The father reported verbal and physical violence perpetrated by both parents and his assertion that the mother continued to behave in an aggressive and verbally abusive manner (paragraph 16).
The report noted the concerns of each parent about the care provided by the other (paragraphs 17 and 18) and the father's assertion that he had been free from all substance abuse from when X was born (i.e. 2015). At paragraph 21 the report noted:
[Ms Haney] maintained she had ceased consuming any illicit substances since 2019. She expressed [Mr Todd’s] continuous persistence that she complete drug screens was a form of abuse. [Ms Haney] maintained her refusal to complete any further drug screens stating she was no longer using illicit substances and did not have the financial means to complete any requests.
The report traversed the mental health of the parties (paragraphs 22-23) and noted at paragraph 23 of the mother:
She reported currently attending upon a psychiatrist indicating requiring further assessments as her psychiatrist has raised concerns of potential further diagnosis of borderline personality disorder. [Ms Haney] stated she did not have an appointment booked for this to occur as yet. She reported attending upon a psychologist every few weeks with the next appointment in February 2022. [Ms Haney] indicated currently taking prescribed medication for her bipolar, anxiety and depression as prescribed by her psychiatrist and managed by her GP.
The report noted the issues in dispute (paragraphs 24-29) and at paragraphs 30-33 noted additional issues identified during assessment as follows:
The impact of significant parental conflict and ongoing dispute on the children and their relationships with each parent and their emotional and psychological development.
The parents' capacity to meet the children's overall needs and provide long-standing safety and stability.
The impact of [Ms Haney's] alleged drug use and mental health state on the children and her parenting capacity.
The parties disrupted and fractured relationship and the impact it has on parenting arrangements.
The interview with the father is traversed at paragraphs 34-42. The report writer found the father candid, articulate and forthcoming with information (paragraph 34). Unsurprisingly, it traversed the father's assertions as to the mother's erratic, disorganised and at times aggressive manner (paragraph 36). The report noted the father's candid admission of his previous difficulties with drug use (paragraph 37) and the father's assertion that arguments were mutual and abuse increased after X's birth but that they were both equally responsible (paragraph 38). At paragraphs 39-40 the report continued:
[Mr Todd] reported he had made significant changes in his life in order to care for the children and be a better father. He acknowledged his past behaviours had been inappropriate, however maintained that following Child Protection involvement and X and Y's placement in his primary care he had continued to work on himself to provide for the children. [Mr Todd] described himself as very happy and proud of what he had achieved for his family. He expressed that despite his past issues he was now in a position where he was proudly providing safety and stability for [X] and [Y] and felt such joy are watching them grow, develop and thrive at school and in kindergarten. He reported having significant supports around him through friends and family and that although he was not engaged in any formal support services was open to doing so should the need arise.
[Mr Todd] maintained he supported the children's relationship with their mother and insisted his only concerns had ever been regarding [Ms Haney] substance misuse and the impact this had upon her mental health and therefore parenting capacity. [Mr Todd] was of the opinion that though [Ms Haney] had a diagnosis of bipolar, he believed her mental health only became unstable and impacting her ability to care for the children when she engaged in substance misuse.
The report traversed the father's concerns about the mother's relationships and the need for stability and noted his strong position that he wished the children to remain in his primary care (paragraph 42).
The section of the report dealing with the mother is at paragraphs 43-49. At paragraphs 43-49 the report observed:
It was noted throughout her interview [Ms Haney] was difficult to engage, presenting heightened, unable to contain her emotions and at times erratic. She was tangential in her responses and seemed unable to focus and follow a line of questioning. It was observed that when challenged by the writer or presented with information that did not aligned with [Ms Haney's] narrative, she would become increasingly heightened and aggressive continuously interrupting the writer and threatening to end the interview.
The writer made multiple attempts to re-engage [Ms Haney], calm her down and refocus the interview. At times [Ms Haney] was able to engage and answer questions briefly, however it was observed this occurred with topics relating to her mental health or current living situation. This resulted, despite multiple attempts made by the writer, in [Ms Haney] concluding the after only 40 minutes, with [Ms Haney] refusing to continue participating in this intervention.
[Ms Haney] reported ongoing concerns that [Mr Todd] continued to abuse her and the children. She was persistent in her belief that the Court and Child Protection had aligned with [Mr Todd] and were ignoring his perpetration of family violence towards her repeatedly stating "I'm the victim here." She reported [X] was demonstrating signs of stress and anxiety stating that a rash he had over the weekend was a result of the strange emotions living with his father. She persisted in her belief that "I am the only one that truly has their [[X] and [Y]'s] best interests at heart and am the only one that can truly look after them safely."
[Ms Haney] was of the opinion that the children were emotional suffering as they were attending before and after school care and being picked up on occasion by the paternal grandparents, thus they did not always know who was picking them up from school each day. She persisted this would not occur should the children be in her care as she would be able to do all the school pickups and drop-offs.
[Ms Haney] confirmed that she was increasingly stressed and was currently struggling with her mental health. She stated this was a result of [Mr Todd's] ongoing abuse, his refusal to allow her to see the children and constant false allegations against her. [Ms Haney] stated her psychiatrist had indicated she would be conducting further assessments and potential diagnosis as she had concerns her presentation may suggest Borderline Personality Disorder. [Ms Haney] was of the opinion that she had always managed her mental health however she currently felt overwhelmed with the circumstances and this was impacting upon her mental well-being.
[Ms Haney] insisted her refusal to complete drug screens was not because she was using illicit substances but rather because it was her belief [Mr Todd] was using this as a means to control her. She stated the Court was "allowing him to do this to me" without reason as she denied engaging in any illicit substance use. [Ms Haney] reported she was unable to afford any drug screens insisting they were unnecessary. She suggested that if [Mr Todd] persisted she completes such assessments, he should pay for them.
The writer was unable to obtain any further information as [Ms Haney] became heightened, aggressive and as such interview concluded.
The report noted the acrimonious and conflictual relationship between the parents and their inability to co-parent (paragraphs 50 and 51).
The report noted brief observations of X and Y and the father's description of the children in his care. At paragraph 58 the report noted the mother is missing her children and being unable to contact the children as per court ordered phone calls because the father refused to engage. At paragraph 59:
It was noted that when asked to speak about [X] and [Y], [Ms Haney] became hostile when questioned about the children’s likes, dislikes and overall lives.
Under the heading Evaluation the report noted at paragraphs 63-64:
There is no information at this time to suggest that either [X] or [Y] are at any risk of harm in [Mr Todd's] care. Rather, it seems that through the course of the last 2 ½ years both [X] and [Y] have been thriving in their father's care.
There remains serious concerns as to [Ms Haney's] substance use and mental health following presentation throughout this intervention. It was observed [Ms Haney] had significant difficulty regulating her emotions and was unable to contain herself. She had difficulty engaging, was chaotic, tangential and unable to cope with anything that challenged her narrative. Despite multiple attempts made by the writer to assist [Ms Haney] to regulate and participate in this intervention [Ms Haney] presented with significant mental health vulnerabilities and became heightened to the point she refused to engage further with the writer.
At paragraphs 65-67 the report relevantly continued:
[Ms Haney's] infrequent spend time with the children and refusal to meaningfully engage in these court proceedings raises significant concerns as to her capacity to safely provide care for the children given what appears to be her current vulnerable mental state and potential drug use. She demonstrated limited insight into the impact that her proposal for care arrangements would have upon the children. She seemed to believe that [X] and [Y] would in no way be impacted by having to change schools and residencies.
Concerns regarding [Ms Haney] illicit substance use and mental health have been raised throughout these proceedings have been clearly identified a significant risk factor by Child Protection throughout their multiple involvements.
[Ms Haney] insisted she was no longer engaging in substance misuse, however her presentation at both this intervention and both previous child inclusive conference interviews was suggestive that she may be using illegal drugs. Her refusal to complete supervised drug screens does not support her contention of sobriety. This has resulted in there been insufficient information available in this assessment regarding her illegal drug use/misuse. Formal assessment by a drug and alcohol service may be beneficial in determining [Ms Haney’s] level of use and its impacts on her day-to-day functioning. Should [Ms Haney] abuse substances her capacity to adequately and safely parent the children would be undermined. Given both [X] and [Y] are both very young and vulnerable ages it is assessed that this would place the children at potential risk.

The report went on to note an absence of sufficient information regarding the mother's mental health state and diagnosis, notwithstanding attendance upon a psychiatrist and psychologist. It noted the father's child focused approach (paragraph 69) and the need for X and Y to have safety, consistency, structure and stability (paragraph 70). At paragraph 71 the report concluded:
The parties disrupted and fractured relationship, compounded by [Ms Haney’s] long-term issues, offers little confidence in the capacity to maintain effective joint parental responsibility. [Mr Todd] has demonstrated over a significant period of time, his capacity to prioritise [X] and [Y] and their needs and best interests.
The report went on to recommend sole parental responsibility to the father, for the children to live with him and the mother's time to be reserved pending further information with regard to her mental health and potential illegal drug use, and appropriate testing to assist in the determination of the same.
THE EXHIBITED MATERIALS
Exhibit A1 is a message to my associate sent by the mother on 26 April 2022. It sought an adjournment (a matter already dealt with) and appended a number of texts passing between the parents (and admitted by the father). They include a number of insulting and off-putting remarks by the father, although at least one of the mother's messages is likewise insulting. I note that one of the messages referred to the misuse of drugs as "says the junkie mother".
The mother also forwarded with that material a lengthy statement from a proposed witness, Ms K, who attended Court with her. For the reasons I gave at the time, I was not prepared to allow late filing of that document, which was not even in affidavit form. It would have been grossly unfair to the father to require him to respond to a wide ranging of collateral accusations on no notice. Furthermore, it was obvious from the terms of the statement provided by Ms K that she was a highly partisan witness in any event.
Exhibit ICL1 are two clear drug screens provided by the father respectively on 27 April 2021 and 24 March 2022. It should be noted that although the mother had much to say by way of complaint of the father's allegedly late provision of drug tests, these two tests, taken a year apart, were provided the same day of the request.
Exhibit A2 is a statement from the Town C Community Medicine Centre dated 14 June 2019. It asserts that the mother had consulted Dr L (a psychiatrist) on that day. The report relevantly said:
This lady is a long term patient of mine and she has been coming to this clinic for many years now. She has bipolar disorder. This condition can affect judgment, it can contribute to risk taking behaviour. She fortunately decided to take care of herself. She presented to see me a few weeks ago and we recommenced her treatment. She takes antipsychotic/mood stabiliser medication Zyprexa. She is already feeling better. She is not psychotic and not hypomanic. She is keen to continue her treatment. She is denying any drug use currently. She has moved back to [Town C] and will be living a close proximity to her supportive parents. She agreed to come to the clinic for regular follow up. She sees a psychologist. I think she is currently able to provide her kids with appropriate care-for as long as she is taking her medication and avoids illicit drugs.
Exhibit A3 are two reports from Dr M, a psychologist, dated 25 February 2021 and 15 February 2022. The first report merely says that counselling has commenced. The second report notes that the purpose of the therapy was to help the mother recover from past ongoing family violence and to cope more effectively with the devastation of not having custody of her children. I note that the mother was said to have adopted strategies and intended continuing with counselling and had been drug free for three years. The report concluded:
She has focused on regaining access to her children, and is determined to do everything required to have them returned to her in order to provide them with a loving, stable home.
Exhibit A4 is a report from N Counselling, undated but apparently in about April 2021 from what the applicant told me. I note that N Counselling was providing support to the mother in respect to family violence.
THE SUBMISSIONS MADE AND EVIDENCE GIVEN AT COURT
What follows is taken from my notes.
Following the rejection of the adjournment application, the mother - who was self represented - opened her case. She indicated that she sought that the children should live with her during the week and go to a school near her home. They could spend every second weekend with the father from 4 pm on Friday until Sunday at 4 pm with changeover at the Location O at Suburb P, where changeover had occurred for some time. She conceded that the children should spend time with the father on special days. She indicated that if the children lived with her, they would have better routine. They would not be in before and after care substantially, nor for substantial amounts of time in the school holidays. She would be able to develop extracurricular activities such as sports in a way that the father was not.
She was then sworn and adopted her affidavit as true and correct. When asked if there was anything she wished to add, she said it was a repeating pattern. The father would allege that she was on drugs. She had undertaken psychological and psychiatric treatment and the father's behaviour was not acceptable.
Under cross examination by Counsel for the father, the mother was asked how often she saw her psychiatrist. She said her medication had been re-evaluated. Her GP does not liaise with the psychiatrist. She sees the psychologist at the general practitioner's and has ongoing treatment as she was diagnosed with bipolar at 14. She indicated that she had only done some part time work for the last three years. When it was put that she had been ordered to undertake a drug screen on 1 March 2021, she said she had undertaken one. The mother's answers about the various requests for drug screens were difficult to follow. She said that a drug screen would cost $200. Because of her medication, it will always be in the drug screen. She said that the father used the Court process to abuse her.
Counsel put it that the father had never been charged with assault. The mother said he has a conviction. He hit her in the face but was not charged. Counsel put that the father had never been the applicant in this Court or the Children's Court but the mother said she did not understand. She still believed he was abusing the system. He had sought an intervention order. Counsel put it that she had not defended the intervention order application, which I think she appeared to admit. Counsel put it that her father had applied for an intervention order but the mother said that the father had manipulated him. She had only stayed with her parents for three weeks.
Counsel put it that the change of schools would be disruptive. The mother said it was no more disruptive than him keeping the kids from "from me". She said the father still allows her to see the children when he wants to go away. Counsel put it that the children go to the maternal grandparents and she is involved. The mother agreed. Her parents are involved because of his demands.
Counsel asked about her expenditure and she said she still pays her bills and food and petrol. There are no other men living with her and there has been no police attendance. They had attended her next door neighbour.
Counsel traversed the confidential court report at page 67 of her affidavit. Counsel put it that she ought to be less concerned because the father was attending a Men's Behaviour Change course. The mother said not at all because he withdrew himself a month after ordered. The father had been ordered four times by the Court to undertake such a course. The mother said she would like to get her life back on track and get employment. She conceded that the police had sought an intervention order against her for her father. She said it would not be a struggle to get the children back. The children love her. The children tell her the father tells them to say that they do not love her.
When asked if she had been to the school that the children attend in Suburb Q, she said the school did not want to talk with her because of what the father had told them. She said she texts the father because she wants to speak to the children and that her texts were not insulting. The police have interviewed her once about a breach of an intervention order. That was because she sent a couple of messages about the children.
Under cross examination by Counsel for the Independent Children's Lawyer, the mother confirmed that the relationship between the parents had been tumultuous. When Counsel put it that there had been yelling by her, the mother said, yes, but not as much as him. When Counsel traversed the incident with the hammer, she said that was the day he headbutted her. Counsel traversed the police record of the proceeding of the matter on 24 December 2019 in some detail. Counsel put it that there was an argument in the kitchen but the mother said there was intimidation by the father. Counsel put it that there was an accidental bumping of heads and the mother said this was the initial incident but he escalated it. He doused her with water. She agreed she grabbed a hammer and in the ultimate the mother, as I understood it, agreed with the police report in its entirety. She agreed that the children were present. When asked how she thought the children would have felt about it all, she said they would have been terrified and traumatised.
When asked what role she might herself have played, the mother said, "Fear". The father was intimidating her. It was this that led to the two year intervention order which ceased in about August 2021. She agreed that she had not sought to extend that order. She agreed there had been no departmental or police involvement before 2018. She confirmed that she wanted the father to finish the Men's Behaviour Change course. She agreed that she had been struggling with her mental health in December 2021. She said the only thing she had not done was the drug test.
She confirmed that she ceased drugs in April 2019. When taken to the departmental records showing that she had failed a drug test in May 2019, the mother said it was the end of April or May. She agreed that in September 2019, there was an arrangement whereby the children spend five nights out of 14 with her. Counsel put it that she had agreed that the father have the children for nine nights out of 14. The mother said she felt she was bullied into this.
Counsel traversed the request for a drug screen on 1 March 2021 and the mother said she had taken it. She agreed that requests from the father's solicitors for drug screens in March 2019 had not been undertaken. Counsel put it that on 24 April 2021 the Independent Children's Lawyer sought drug screens from both and that the father had and she had not. The mother asserted that he had not undertaken his drug test for five days. She agreed that the 11F interviews had eventually happened in 2021. She agreed that she had not undertaken drug screen tests requested by the father's solicitors in June and August of 2021. She disputed not taking a drug test requested of both parties in March 2022.
When taxed with the consent orders of 1 March 2021 which provided for orders for drug screening, she blamed her lawyers. She confirmed she has had a total of five lawyers act on her behalf. She confirmed that the drug screen ordered on 1 February 2022 had not occurred. The mother conceded that she had mental health issues. She was taxed with her failure to provide the reports as required by the orders of 1 February 2022. She said she had done this and had copies of the reports.
It was put that she had not seen the children since June 2021 because of her non-compliance and she agreed. When asked what impact this would have on the children because of her failure to take drug screening, the mother blamed the father. She said that it was all caused by him taking out an intervention order. Counsel put it that she was still seeking that the children spend time with the father despite the family violence. The mother did not really answer this question and I have to say that her answer really became a long vent about the father.
Counsel put it that she could not communicate with the father and the mother said she had tried. She had got the app. He declines calls and they cannot communicate. She agreed that an order for sole parentally responsibility would be in the children's best interests, although she sought this in her own favour. She agreed that the father's intervention order will last until October 2023.
Counsel traversed the alleged incident in November 2020 described in paragraph 4 of the father's affidavit. The mother confirmed that in the past she had used ice but not heroin, and also cannabis. Her psychiatrist had told her there was no point in taking medication because she was using cannabis. At this point again, the mother went into another vent about the father. Counsel traversed the alleged incident on 22 November 2020. She said this was totally wrong. There was no one else there. She had been convicted in 2014. She has no idea who the dealer referred to in the father's affidavit was. The father was manipulating the system and just made this up.
Counsel traversed the question of cream being placed by the father on Y's vagina. The mother said she was not accusing anybody. She was not saying the father was abusing his daughter. She had reported this to DHS and followed it up with DHS and been to the police with a video but was turned away. The mother was asked if she could say anything good about the father as a father. She said:
At the moment it is hard to see. It is tormenting me. It is even worse with the children. They cannot comprehend what is going on.
The mother went into a further non-responsive answer, criticising the father at every turn, including asserting that he had unresolved issues as a result of being abused as a child.
The mother said that the children stayed with her own mother three weeks ago. The father does not have a good relationship with her parents. He has cut everyone off. He only gives the children to the grandparents when he wants the weekend off. She saw them three weeks ago, which was Saturday to Sunday, with her parents. Her mother was there all the time. The children had been there even over Christmas. The father knew she would be there and they were with her parents for five days. They had also maybe been in September for three to four days with two short visits in between.
Counsel traversed the paragraphs 13(d) and (e) of her notice of risk but the mother did not answer and ultimately blamed her lawyer. At this point, the luncheon adjournment intervened and when the matter resumed, the mother in re-examination indicated that she did use drugs but there are reasons. She is not well due to family violence. She confirmed that she does not pay rent to her parents for the property in which she lives.
The Opening and Evidence of the Father
Counsel indicated that the father is seeking the orders proposed by the Independent Children's Lawyer. The children should live with the father until the mother's health and drugs issues have been resolved. The father adopted his affidavit as true and correct.
Counsel for the Independent Children's Lawyer indicated, given that the mother could not cross examine him because of section 102NA, that as an officer of the Court she would put the mother's case to the father in any event.
The father confirmed under cross-examination that he had not at any stage been ordered by the Court to undertake a Men's Behaviour Change course. He had not completed his course because it was postponed by COVID. For ongoing participation he required a video link with complete privacy, which was not possible for him because of the children.
The father agreed that the relationship had been tumultuous. He was apologetic for his behaviour and took responsibility for what he had done. He apologised for all his actions. This included grabbing, pushing, throwing and yelling. He said equal parts of the violence were created by both of them. He was prepared to complete the Men's Behaviour Change course. It addresses a lot of different things. It deals with violence but parenting and life skills also. Counsel put it that the mother says she was a victim and asked if the mother had ever acknowledged the effects of the relationship on the children. The father said never.
When asked if the children had seen the mother since June 2021, the father said not unsupervised. She has spent supervised time with the children. He confirmed that following the withdrawal of the department in 2019, there had been unsupervised time. Counsel traversed the incident in November 2020. The father said it was as in his affidavit. He got to the park and was introduced to a friend and sat on a bench. The mother had asked the whereabouts of a drug dealer who, despite considerable reluctance, he named. He had known him for 10 years. He had in fact used to buy drugs off him himself. He had ceased time because of that meeting.
When Counsel asked if demanding drug tests was constituting abuse, the father said not if she was driving with the children. He said the relationship started in about 2014 and ended in 2018. They were both using drugs. When asked why he had left the children with the mother, he appeared to suggest he was not aware of his legal rights. The mother lived with her parents and then in Suburb F. The mother had told him she was bipolar but he had never seen any medicine. They had never discussed medication. He does not know where the mother is living. He confirmed that the mother had spent time with the children at her parents' three weeks previously on Saturday and Sunday. The Independent Children's Lawyer was not aware of this.
He was aware that she had not complied with drug screens or provided psychological or psychiatric reports. Her mother had asked if there could be time and he agreed. He confirmed also that the children had spent five days with the mother and grandparents in December 2021, and again the Independent Children's Lawyer did not know. He was comfortable with the supervision. He also confirmed the three to four days in September and once again the Independent Children's Lawyer did not know. When asked if the time went well, he agreed. The children always come back happy and always enjoy the time. Time supervised by the grandmother is okay.
His communication with the mother was hostile and volatile and he had blocked her. He would love the mother to have weekend time with the children if she was providing clear drug screens and otherwise compliant. There is a good relationship between the mother's parents and the children. He has a relationship with the grandparents and can communicate with them. Counsel confirmed sending the texts appended to the mother's materials in exhibit A1 on 5 April. He agreed that the reference to a junkie mother was wholly inappropriate.
He agreed that the children loved their mother. When asked how he would support them to have a relationship with the mother, he said this was a good question. He has no set plan. He is somewhere in the middle. He does not talk about the mother unless the children bring it up. They are only six and four and it is a difficult age for them to understand. He would obtain counselling if needed. When asked to describe X, he said he is in grade 1 at Suburb D and is going excellent. They are all good reports. X is now more mature and has come a long way. He did have separation anxiety but not now. There is a steady family environment. He has been involved in the school and has a friendship with some of the schoolteachers. The children go to the same kinder/school and have a great routine. His own father lives with them. The children enjoy his company. The children have swimming lessons on Wednesdays and on Sundays his daughter does dance classes. His son has recently started sports lessons. The children are in before and after school because he runs his own business. Y is in her last year of kinder and is going well.

He has done a lot of drug tests and one of them was late because of work. He operates cranes and could not leave. The mother has accused him of being sexually inappropriate on many occasions. He did not apply cream to Y's vagina for over a year. Y was one and a half years and in nappies when he first had her. It was just nappy rash. She now applies her own cream. He is not keeping the children from the mother. He is merely following Court orders. There is no communication between the parents. He texts offensively and so does she. He confirmed again that the mother's intervention order ran till August 2021 for two years and his would last until October 2023. He confirmed that the children attend some school holiday programs, once again because of his work. In re-examination he confirmed that he stopped taking drugs in 2015.
The Evidence of Ms B
Ms B’s Child Impact Report and Family report were tendered as exhibits as C1 and C2 respectively.
Counsel for the father put one rolled up question to Ms B about whether she had felt that the mother was drug affected during the interview. Ms B said that the interview was originally booked for 1 June 2021 and that the email sent by the mother seemed erratic. She seemed erratic also when observed on 16 July. The mother was aggressive, argumentative and erratic. Ms B was concerned whether this might indicate drug use or mental health difficulties. The mother’s presentation was the same in the Family Report interview.
Under cross examination by Ms Haney it was put that the mother’s research suggested that the children should be observed with both parents during the 11F report. It was put that it was unfair that the children were being interviewed in the home of Mr Todd alone. Ms B says that usually observation is not required for an 11F report and is in fact rare. This series of interviews occurred during COVID and she was unable to interview the children in person. She had very brief interviews with the children who were very young. It was hard to keep them engaged over Microsoft Teams. Ms Haney asked another question which I confess I find difficult to understand and Ms B appeared to have this difficulty also. She did observe that the father seemed stable and seemed well.
When asked by Counsel for Independent Children’s Lawyer if she was bias against the mother, Ms B denied this. Her remarks were based on the long standing pattern of the mother’s presentation. Ms B opposed the children live in the primary care of the mother.
Final Submissions by the Parties
I do not propose to traverse the very helpful comprehensive submissions made by the Counsel for Independent Children’s Lawyer in detail. These submissions were very critical of the mother who interrupted on at least one occasion on the basis that what was being said was not true. The submissions noted the father’s support in principal for the children to have a relationship with the mother notwithstanding her deficits. The submissions noted that the mother was highly critical of the father at every turn and had raised issues not supported on the evidence. The Independent Children’s Lawyer sought that the mother’s time be reserved. It was not possible to have an order for the maternal grandparents to supervise because they had not participated in the proceedings. Supervision cannot go on forever. The submissions noted the intervention order and problems between the mother and her own father. The submissions noted the mother’s adamant refusal to take drug screens and her failure to comply with orders for the same. The report noted that the medical reports proffered by the mother could not satisfy the court that the mother was drug free or that the mother had satisfactory insight and satisfactory compliance with treatment.
The father’s Counsel was essentially content to adopt the Independent Children’s Lawyer’s submissions.
The mother’s final submissions suggested that the father had contradicted himself by his acceptance of supervision by the grandparents and then said he did not trust them. She asserted that the children only went to her parents when the father wanted the weekend off. She repeated her assertion that the father was inappropriately applying cream to Y’s vagina and pointed to the fact that the child had not been in nappies for three years. There had been violence by the father to the children during the relationship and Ms K was scared of retaliation from him. She was only receiving Jobseeker and could not afford a psychiatrist or drug screens. She referred to an episode where the father was said to have been hospitalised at Christmas last year with the children also present. She accused the father of fomenting problems between herself and her father. She indicated that she sought support from seven different organisations about family violence.
Some Brief Observations about the Witnesses
The mother's evidence was given at all points under considerable pressure of speech. To put it in the vernacular, she started fast and got ever faster. Some of her answers, as I have indicated, were difficult to understand and her detestation of the father was apparent at every point. She even went so far, despite some disavowals, as to insinuate that the father might sexually abuse his daughter, a prospect plainly ridiculous. She was non responsive, either not answering questions she did not like or answering with answers of her own directed to other issues.
She presented as a person markedly lacking in insight. The entire tenor of what she had to say was completely focused upon her assertion that she is a victim on an ongoing basis. For reasons to which I shall come, I accept that she was the victim of family violence, but her insistence that the father's endeavours to seek reassurance about her drug use and mental health are a form of continuing coercive control is utterly misconceived.
The father by way of contrast was in the main a good witness who answered questions put to him directly and forthrightly. He made clear admissions against interest by his open admissions of his own past misconduct, albeit that he sought at times, in my view, to deflect responsibility to try and blame the mother as much as himself. Nonetheless, he impressed me very much, as he did Ms B, as a person genuinely remorseful for not having insight into his past conduct and having made strenuous attempts to improve himself.
To the extent that Ms B’s evidence was challenged, it is sufficient to say that she was clearly telling the truth.
THE STATUTORY PATHWAY
The statutory pathway is described by the Full Court in Goode v Goode [2006] FamCA 1346 at [65].
In summary, the amendments to Part VII have the following effect:
1.Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2.The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)).
3.If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)).
4.The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5.When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6.The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
7.The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)the time the child spends with the parent includes both:
(i)        days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends and holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)        the child’s daily routine; and
(ii)       occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8.Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9.The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.The child’s best interests remain the overriding consideration.
PARENTAL RESPONSIBILITY
Both parents agree that there cannot be an order for equal shared parental responsibility. In the face of the quite appalling and indeed deeply immature sort of behaviour that the parents exhibit to one another, shown in the very off putting texts passing between them, plainly the prospect of any cooperation between these two somewhat compromised individuals is nil. The question then becomes who should be the person to have sole parental responsibility.
Since, for the reasons I am shortly coming to, I am going to order that the children live with the father and that the mother's time be reserved, it is instantly apparent that the father must have an order for sole parental responsibility.
The Spend Time and Communication Regime - The Primary Considerations
As with so many parents in dispute, all parties agree in principle that it would be to the best interests of the children to have a meaningful relationship with each of their parents. The issue that presents itself front and foremost in this case, however, is the need to protect the children from harm pursuant to section 60CC(2)(b) and CC(2A). This aspect of the matter is best addressed, in my view, by consideration of the additional considerations.
Additional Considerations - Section 60CC(3)(a)
The children do not appear to have expressed any views. Because of the COVID restrictions, it was not possible for Ms B to interview the children and might well have been problematic, given their age, in any event.
Section 60CC(3)(b)
There seems no reason to doubt that the children have a loving relationship with their father, who has now been their primary carer since mid-2019. There is no challenge to his suggestion that the children are doing well at school and in their general development. His evidence that they get along well with his own father is likewise unchallenged.
The mother says that the children love her, and I note that the children return from supervised time with the mother always happy and there is therefore no reason to doubt her assertion that the children do indeed love her dearly. She certainly loves them. The children plainly have a good relationship with the mother's parents.
Section 60CC(3)(c)
The father has at least since 2019 made all the relevant decisions about the children's education and the like. He has plainly properly sought to spend time and communicate with the children as he has been their primary carer. The mother's capacity to spend time with the children has been inhibited, first, by departmental involvement and more recently by Court order. Nonetheless, there is no question that she has at all times wanted to have the children in her primary care. She has been precluded from any participation in decision making by the father's actions since 2019.
Section 60CC(3)(ca)
The father is working hard to provide a stable and secure home for the children. He is proud of his endeavours in this regard and, in my view, rightly so. He has plainly fulfilled his obligations to support the children. The mother has not. She does not appear to work and she has not given any evidence that I find in any way convincing that she seriously ever intends to do so. She lives rent free and although she says she has bills to pay - and I of course accept that that is so - the $300 a week she has to live on is not a penurious as it otherwise would be were she paying rent.
There is no obvious reason why she should be spending large amounts on petrol because she does not travel to work. She is only feeding and clothing one person and paying one person's bills. The fact that she has not offered to contribute to the financial wellbeing of the children in any way whatever is perhaps unsurprising given her self-absorption but the fact is that she is not providing anything at all in financial terms.
Section 60CC(3)(d)
Plainly the children have been in a settled environment with their father for now a substantial period of both of their lives. They are in secure school and kinder. They live with their father and grandfather in an environment that they are fully familiar with. It is an environment that, as I find, is drug free. The father's evidence that he has been drug free since 2015 is fully supported by the two drug screens he took in 2021 and 2022. He deserves a great deal of credit for getting this aspect of his life, which he readily concedes was entirely inappropriate up until then, under control.
The mother's circumstances are more uncertain. As I said earlier and will have to repeat again, they stand at the forefront of the matters in dispute in this case. It is sufficient to say that on any view of the matter, while it appears the mother has sufficient bedrooms for the children at her home, and would appear to be available full time to assist them if they were in her care, it must surely be inevitable that the change that the mother seeks from primary residence with the father to primary residence with her would be extremely disruptive and difficult for the children.
Section 60CC(3)(e)
There is no difficulty related with expense in either sized time regime so far as I understand the matter. The practical difficulties of any spend time regime really devolved from the appalling and acrimonious relationship between the parents. The father has effectively blocked the mother off. Telephone time and the like is likely to be problematic, given the extremely accusatory attitude that each of the parents has to the other.
Section 60CC(3)(f)
The father has been assessed by the Department and by Ms B (through multiple interviews) as being well able to care for the needs of the children. His evidence in Court, by which I mean what he said and how he said it, only went to reinforce these impressions. He seems to me to be well grounded and he seems to me well able to provide for the children's needs. The mother's capacity to provide for the children's needs is compromised, in my view, by her mental health difficulties and the possibility of drug related difficulty.
Section 60CC(3)(g)
The father, as I have said, impressed me as being hardworking, child focused and at least reasonably mature in personality, although his text messages to the mother were insulting, immature and stupid. Both of these parties are immature to a degree. The mother's personality presented as erratic and chaotic. Everything she said and the way that she said it suggests a kind of immaturity. She does not appear to have worked, or at least not for very many years, and this kind of unproductive, unengaged lifestyle is entirely consistent with the difficulties she has faced with mental health, something, it should be emphasised, is a matter for sympathy, rather than criticism.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
From all the materials and his evidence, the father presents as a focused single parent. It is plain that his subsequent relationship with Ms K ended badly but that has well and truly ended. He is committed to being a single parent, with admirable aspirations to buy his own home for the first time to provide a more secure base for the children. The mother's attitude to the children is of course in large part that of a loving mother but it is also unavoidably overlaid her own difficulties.
Section 60CC(3)(j)
There is no doubt that the father was violent to the mother during the relationship. The appalling incident in December 2018 speaks for itself. While I have no doubt that the mother had a hammer in her hand at least part of that time, as I observed to the father during the currency of the proceeding, the mother is tall and slim and he is strongly built. In any physical altercation he would come out on top. I have no doubt that both these parents yelled at each other, as they did on that occasion and many others. I have no doubt that the mother would have been really scared of the father on occasion. This fear suffused everything that she has said to everybody, including the Court, the Department and the family report writer.
While I have no doubt that each of these parents yelled and screamed at one another, and I accept also that there was an element of push and pull, it should be clearly noted that the bulk of the family violence was committed by the father as the mother asserts. Having said this, however, the father, unlike the mother, has developed a measure of insight and remorse into his conduct. He did not seek to evade in the main the opprobrium that his conduct would naturally give rise to and freely admitted that his conduct had been unacceptable.
What I do not accept at all is the mother's assertion that the father's behaviour in taking the matter to Court is an ongoing form of family violence. She has a strong sense of victimhood and that is what she told Ms B ("I'm the victim here"). She took no responsibility whatever for her own conduct as being causative of any difficulties for the children. The father has never sought to take her to Court, rather, she has him. His requests for drug screens and for reassurance about her mental health and its treatment are not in any way a form of family violence or controlling family violence upon her. They reflect very understandable and proper concerns in the circumstances.

The mother's obsession to this effect, which shone through in everything she said, is utterly misconceived. While I would very much doubt that she would be capable of abandoning this construct, it would be much better for her and the children if she did so.
Section 60CC(3)(k)
The mother's intervention order expired in August 2021 and she has not sought to extend it. It was plainly amply justified by the events of December 2018. However, the father has had to take out an intervention order against the mother and that will not expire until next year. More importantly, the police took out an intervention order to protect the mother's own father from her. While this appears later to have been compromised, the very fact of its being taken out shows how erratic and violent the mother's behaviour was at the time. It is conceded that she put a hole in a wall and damaged a flyscreen as a bare minimum.
Section 60CC(3)(l)
While not touched on in any detail by any of the parties, it is plainly entirely in the best interests of the children that there be final orders now.
Section 60CC(3)(m)
This brings us in a sense full circle. The father is perfectly prepared to let the children spend time with the mother provided either that it is supervised by her parents, in whom he has sufficient confidence, or the mother provides appropriate proof as to her drug abstention and as to her psychiatric condition and treatment. The mother's refusal to take drug screens does not derive in truth from money issues. With $300 a week to live on, she could afford to save money over time to afford a drug screen. For somebody who has said that she would do anything to get her children back, her failure to save even a relatively small amount of money ($20 a week for 10 weeks, for example) is extraordinary.
In truth, she will not take drug screens, as she told the report writer, because she feels that to be required to submit to them is a form of controlling behaviour by the father. This immature and misconceived construct is typical of the difficulties that she presents. Furthermore, despite her assertions that she had drug screens and medical reports, she has not provided anything contemporaneous to support these assertions. The reality is that until and unless she addresses these vital issues, time will simply have to be as agreed between the father and the grandparents and supervised by them.
CONCLUSION
This judgment has had somewhat to say about the parties and more particularly so about the mother. It is always regrettable to have to make findings of this sort which are necessarily hurtful or off-putting to the parties but the way the case has been presented leaves no alternative. The mother's deficits are so striking, and the risks to the children if they are not resolved so self-evidently great, that the orders sought by the Independent Children's Lawyer are inexorably those that the Court must make. It is to be hoped that upon reflection about these reasons for judgment, the mother will see the force of the criticisms made of her and address them in a fashion that would then enable time with the children to be resumed on an unsupervised basis which, in principle, is exactly what everyone would like to see.

I certify that the preceding one hundred and twenty-nine (129) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt.
Associate:
Dated: 16 May 2022

File number(s):	DGC 156 of 2021
Judgment of:	JUDGE BURCHARDT
Date of judgment:	16 May 2022
Catchwords:	FAMILY LAW – Parenting dispute about 6 and 3 year old children – parents’ relationship volatile and suffused with family violence, especially by the father – mother’s psychiatric difficulties and drug use leading Department to place children with father in 2019 – both parties using drugs during the relationship but father ceasing in 2015 – mother refusing to take drug screen and erroneously asserting that orders for drug screen constitute abuse – orders for mother to have supervised time made as sought by the Independent Children’s Lawyer.
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Goode v Goode [2006] FamCA 1346
Division:	Division 2 Family Law
Number of paragraphs:	129
Date of hearing:	26 April & 9 May 2022
Place:	Dandenong
The Applicant:	The Applicant is self-represented
Advocate for the Respondent:	Mr Smith
Solicitor for the Respondent:	Michael Smith And Associates
Counsel for the Independent Children's Lawyer:	Ms Stavrakakis
Solicitor for the Independent Children's Lawyer:	Dandenong Family Lawyers

DGC 156 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS HANEY Applicant
AND:	MR TODD Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	16 MAY 2022