Harmon & Ventura
[2023] FedCFamC2F 16
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Harmon & Ventura [2023] FedCFamC2F 16
File number(s): DGC 1435 of 2021 Judgment of: JUDGE BOYMAL Date of judgment: 17 January 2023 Catchwords: FAMILY LAW – Parenting – four year old child – whether child lives with mother or father – illicit substance abuse by mother – unacceptable risk – whether child starts school or remains in kindergarten in 2023 Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D and 65DAA
Cases cited: Adamson & Adamson [2014] FamCAFC 232
Blinko & Blinko [2015] FamCAFC 146
Grella & Jamieson [2017] FamCAFC 21
Slater & Light [2013] FamCAFC 4
Division: Division 2 Family Law Number of paragraphs: 227 Date of hearing: 13 - 14 October 2022 and 18 November 2022 Place: Dandenong Counsel for the Applicant: Ms Johnston Solicitor for the Applicant: Zenith Lawyers and Consultants Counsel for the Respondent: Mr Allen Solicitor for the Respondent: Bruce Caldwell & Associates Solicitor for the Independent Children's Lawyer: Peter Lynch ORDERS
DGC 1435 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HARMON
Applicant
AND: MR VENTURA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BOYMAL
DATE OF ORDER:
17 JANUARY 2023
THE COURT ORDERS THAT:
1.The mother and father have equal shared parental responsibility for X born in 2018.
2.X live with the father.
3.X spend time and communicate with the mother as follows:
(a)subject to order 3(c) and until the mother is drug free as established by Orders 5 and 7 herein, each alternate weekend from 10.00am Thursday until 3.30pm Monday commencing 19 January 2023, save that upon X commencing school and this time falling during school term, time will commence at the conclusion of school on Thursday and conclude at the commencement of school on Monday;
(b)subject to Order 3(c), time in accordance with Orders 9 and 13 herein;
(c)during all times spent between X and the mother, either Ms B or Ms C or such other person as may be agreed in writing between the parents be in substantial attendance until the mother ceases all illicit substance use;
(d)by FaceTime on each Monday and Thursday at 7.00pm when X is not in the mother’s care; and
(e)at such further or other times as may be agreed in writing between the parents.
4.Unless otherwise agreed between the parents in writing when changeover does not take place at school, changeover take place at McDonalds in Suburb D.
5.Within 12 months of these Orders, once in the first six months and once in the second six months, the father be permitted to request in writing that the mother undergo hair drug testing for illicit substances, such testing to be paid for by the mother. The testing is to be undertaken by the mother in accordance with Order 7 herein within 7 days of such written request.
6.On two occasions in each 12 months thereafter the father be permitted to request in writing that the mother undergo hair drug testing for illicit substances such testing to be paid for by the mother. The testing is to be undertaken by the mother in accordance with Order 7 within 7 days of such written request.
7.The mother make an appointment and attend for hair collection at an Australian Workplace Drug Testing Services Clinic or nominee or an alternative provider who is able to conduct equivalent testing (the Clinic) for hair drug testing purposes. Collection is to be conducted by a qualified and certified collector. Chain-of-custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory accredited to conduct hair drug testing to the recognised international standard ISO/IEC17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this order:
(a)the mother is required to maintain her hair at a length of not less than 4 centimetres, neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair;
(b)each parent or their legal representative is at liberty to provide the Clinic with a copy of these orders;
(c)written notice to undertake hair collection for hair drug testing purposes may be sent to the mother care of her solicitor’s email address and in the event the mother does not have a lawyer then notice be given addressing the request via the mother’s email address or by SMS text message to the mother’s mobile phone number and shall be deemed to have been received by the mother on the date and time it is sent via email or SMS;
(d)the mother is to attend the Clinic and submit to the supervised collection of hair sample from her at the earliest available appointment time within seven days of receiving written notice to undertake hair collection for hair drug testing purposes from the father or his legal representative;
(e)the mother is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order, also hereby authorising the Clinic to provide the results of each test to the father and/or his lawyer, if any, upon receipt of such test results; and
(f)the hair drug test may screen for drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opiates and metabolites and any other drug specified in this order as required.
8.Upon the mother providing two consecutive clear hair follicle test results or if the father fails to seek the mother undertake hair follicle testing in accordance with these orders, the mother’s time no longer require substantial attendance, save that if after such time commences the mother fails to undertake a requested hair follicle drug test or produces a test positive for illicit or non-prescription drugs, the mother’s time revert to substantial attendance and her time with X be in accordance with Order 3.
9.Upon the mother no longer using illicit drugs as evidenced by compliance with Orders 5, 6 and 7 herein, X spend four nights per fortnight with the mother as agreed between the parents in writing and failing agreement :
(a)each fortnight during school terms from the conclusion of school Thursday or 5.30pm if a student free day to the commencement of school Monday or 5.00pm if a student free day;
(b)for half of the term school holidays as agreed between the parents in writing and failing agreement the first half commencing from the last day of school to 5.00pm on the Saturday at the mid-point of the term holidays;
(c)for half of the Christmas school holidays as agreed between the parents in writing and failing agreement on a week about basis;
(d)the mother shall communicate with X by FaceTime on each Monday and Thursday at 7.00pm when X is not in her care; and
(e)at such further or other times as may be agreed in writing between the parents.
10.On Christmas Day unless otherwise agreed between the parents in writing:
(a)X spend time with the mother in 2024 and each alternate year thereafter from 12noon Christmas Day until 12noon on Boxing Day and with the father from 12noon Christmas Eve to 12noon Christmas Day and in each alternate year thereafter; and
(b)X spend time with the mother in 2023 and each alternate year thereafter from 12noon Christmas Eve to 12noon on Christmas Day and with the father from 12noon Christmas Day to 12noon Boxing Day in 2023 and each alternate year thereafter.
11.Each parent spend a minimum of three hours with X on his birthday.
12.Should Father’s Day fall during a period when the mother spends time with X the mother’s time is suspended from 5.00pm the day prior to Father’s Day.
13.Should Mother’s Day fall during a period when X is in the care of the father X spend time with the mother from 10.00am on Mother’s Day until the commencement of school on Monday or 5.00pm if a student free day.
14.X commence his primary school education at E School in 2023.
15.The mother and father do all things and sign all necessary documents to forthwith enrol X at E School.
16.The mother and father be at liberty to attend all school events at which a parent with a child at E School are expected to attend including X’s first day of school.
17.The mother and father authorise E School for each parent to receive X’s school reports and any other notices or information that parents of a child at the school would ordinarily be expected to receive.
18.The parents do all things necessary to list the other parent as an emergency contact person for X when at school.
19.The mother and the father give the other parent reasonable notice of any appointments X has with medical specialists and other allied health professionals and both parents be at liberty to attend such specialist appointments.
20.In the event X sustains an illness or injury requiring treatment at a hospital or treatment by a medical practitioner whilst in the care of the mother or the father that parent will inform the other parent of the fact as soon as possible and in any event within two hours.
21.Each parent provide authorisation to any treating doctor or treating medical personnel to discuss with the other parent X’s diagnosis, prognosis and treatment.
22.Within 28 days of this order the father provide the mother with a copy of all documents evidencing that X has a diagnosis of autism. In the event the father is unable to provide such evidence the mother and father obtain a paediatric assessment of X with both parents attending the appointments and equally sharing the costs, such assessment to consider whether X should undergo further assessments for autism.
23.The mother and the father be at liberty to provide a copy of these Orders to X’s school and any medical professional upon whom X attends.
24.The parents use the parenting app, App Close, to communicate about X, the mother to download the app and send the link to the father for him to then download the app. The mother provide the father with a current email address. The parents use App Close to discuss all significant parenting decisions for X.
25.The mother be and is hereby restrained from using illicit drugs.
26.Each parent keep the other advised of their respective residential addresses, landline telephone numbers, email address and mobile phone numbers for necessary communication and advise the other of any changes within 24 hours.
27.The appointment of the Independent Children’s Lawyer be discharged.
28.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out herein and these particulars are included in these orders.
THE COURT NOTES THAT:
A.For the purpose of Order 3(c) substantial attendance is defined as the third person being in the presence of the mother and X for 70 percent of each 24 hour period during which X spends time with the mother pursuant to Orders 3(a), (b) and (e).
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BOYMAL
INTRODUCTION
These proceedings concern the parenting arrangements for X who is four years of age. X has been diagnosed with Level 2 Autism, Attention-Deficit/Hyperactivity Disorder (ADHD) and Post Traumatic Stress Disorder (PTSD).
X’s parents commenced living together in 2017. X was born in 2018. The parents separated in February 2019 when X was a baby.
After separation X lived with the mother and spent time with the father on alternate weekends on an overnight basis. Since 29 January 2021 X has been living with the father and spending time with the mother. The change in X’s living arrangements occurred because of the mother’s abuse of illicit substances and the consequential risk the mother posed to X.
The issues in dispute are:
(a)whether interim or final orders should be made;
(b)whether the parents forthwith have equal shared parental responsibility for X or whether the father have sole parental responsibility until the mother is free of illicit substances;
(c)whether X continues to live with the father and spends time with the mother or whether X lives with the mother and spends time with the father; and
(d)whether X commences his primary school education or continues to attend kindergarten in 2023.
The outcome of these issues fundamentally turns on the determination of whether X is at risk in the mother’s care on the basis of her use of illicit substances. As the Independent Children’s Lawyer (ICL) submitted, the most crucial issue in this matter is the drug issue.
BACKGROUND
The parents’ short relationship was marred with volatility. Both parents used illicit substances during the relationship until the mother became pregnant with X. Both parents recommenced using illicit substances after X was born.
As already noted, after separation X lived with the mother and spent time with the father each alternate weekend on an overnight basis.
There is a history of family violence proceedings in the Magistrates’ Court. Both parents obtained Intervention Orders against the other after they first separated. There have been breach proceedings. The evidence is uncertain as to what is the current state of Intervention Orders between them. The father’s evidence is that mutual Intervention Orders made in May 2021 have lapsed. The mother and Ms B refer to Intervention Orders still being extant.
The Department of Families, Fairness and Housing (DFFH) response dated 9 June 2021 discloses a history of reports being made to them between February 2019 and April 2021. Around 14 reports were made. Around five reports are in relation to family violence by the father. Around nine reports are in relation to the mother’s illicit substance abuse. No reports were substantiated.
In mid-2020 the police searched the mother’s home and found illicit drugs in her wallet. As it was the mother’s first offence a Drug Diversion was issued. The mother told the Court she did not have an answer as to why the illicit drug was in her wallet and said “my friends who I hung out with weren’t that good”.
In mid-2020 the mother was hospitalised following a drug overdose. The mother overdosed on prescription medication.
In early 2021 the mother was hospitalised following an overdose on prescribed medication. DFFH contacted the father who had X in his care on that weekend and requested he keep X in his care.
The parents dispute what time frame DFFH intended the father keep X in his care. X continued to stay with the father under objection from the mother. The father arranged for X to spend time with the mother at parks, playgrounds and McDonalds.
On 9 April 2021 the mother commenced these proceedings seeking that X be returned to her primary care. The father filed his Response on 28 April 2021 seeking that X remain living with him.
On 3 May 2021 the Court made orders providing for X to live with the father and spend time and communicate with the mother each alternate weekend from 10.00am Friday until 4.30pm Sunday. Either the maternal aunt, Ms B, or the maternal grandmother, Ms C, were required to be in substantial attendance. Orders were also made for the mother to undergo hair follicle testing between May 2021 and June 2021 for illicit drug use and random urine testing for illicit substances at the request of the father and the ICL.
A supervised urine screen undertaken by the mother in May 2021 (as ordered by the Court) tested positive for prescribed medication. The mother failed to undertake a urine test pursuant to a request made by the father in June 2021. The hair follicle test undertaken by the mother in June 2021 showed continuing use of illicit drugs.
On 28 June 2021 interim orders were made by consent extending X’s time with the mother in a fortnightly cycle in week one from 11.00am Friday until 11.00am Monday and in week two from 11.00am Monday until 11.00am Tuesday. Ms B and Ms C or any other agreed adult were still required to be in substantial attendance. Changeovers were ordered to take place at McDonalds in Suburb F. An order was made for the mother to undergo a further hair follicle test no later than August 2021.
In July 2021 the mother undertook a supervised urine screen which tested positive for prescribed medication.
In August 2021 orders were made for the mother to undergo a psychological assessment and a hair follicle test within 28 days.
The mother failed to undertake supervised urine screens pursuant to requests made by the ICL in September 2021, November 2021 and December 2021.
In September 2022 the ICL requested the mother and father undertake a hair follicle test. The father undertook the test in September 2022. Illicit substances were not detected. The mother failed to undertake the test. She asserts that she did not have any photographic identification which she could produce as a precondition to undertake the test.
THE HEARING
The final hearing proceeded on 13 and 14 October 2022 and adjourned to 18 November 2022 for final submissions. The parents were represented by Counsel. The ICL appeared on his own behalf.
All parties filed an Outline of Case which sets out the documents upon which they respectively rely. Counsel for the mother tendered three exhibits. Counsel for the father tendered six exhibits. The ICL tendered one exhibit.
The ICL and Counsel for the father focussed on the important issue before the court: whether there is a need to protect X from the harm of being exposed to the mother’s illicit substance abuse. The mother’s case, however, attempted to distract the Court from that focus and place the focus on the concerns the Court may have in relation to the father. I consider that many of the matters raised by Counsel for the mother detracted from the crucial issue of the mother’s drug abuse.
The Court is not required to refer to every piece of evidence relied upon by the parties, traverse every argument that is advanced or make findings in relation to all of the facts that are put in issue by them. I do not propose to traverse at length the matters raised by Counsel for the mother or make findings in relation thereto. Such matters include the allegations of family violence, which parent was more correct in interpreting DFFH’s intention, the number of previous partners the father may have had and the nature of those relationships, X’s behaviour and the behaviour of adults at changeover, how many times the father has changed homes, and the route he travels to his work and X’s day care with X in the car including that he may use backroads and hit a kangaroo.
Counsel for the mother could not see the irony of her submission that the father engaged in reckless behaviour because he drove on back roads and might hit a kangaroo. Such a scenario is not comparable to the recklessness of the mother driving a car under the influence of drugs. Further, using illicit substances and driving after using is within a parent’s control. The possible encounter with any random kangaroo is not within a parent’s control.
Lest it be forgotten, the reason why X has lived with the father since 29 January 2021 and not with the mother, is because of the mother’s abuse of illicit substances. Lest it also be forgotten, the mother was amenable to X spending regular overnight time with the father when X was not even one year of age.
I have read all of the documents relied upon and taken all of the evidence and submissions into account. Findings are made on the balance of probabilities and have regard to the nature of the subject matter of the proceedings and the gravity of the matters alleged.[1] My observations of the demeanour of the parents and the witnesses have assisted my assessment of the evidence.
[1] Evidence Act 1995 (Cth) s 140.
THE PROPOSALS
The mother seeks that interim orders be made and the trial be adjourned for 12 months. Counsel for the mother said if the Court was minded to make final orders that they be in the same terms as the interim orders she sought.
The interim orders the mother seeks are set out in Exhibit M3. In summary they provide that:
(a)the parents have equal shared parental responsibility for X;
(b)X live with the mother;
(c)X spend time with the father each alternate week from Thursday until Monday and in the other week from Wednesday until Thursday. Once X starts school and unless the school is within 25 kilometres of the father’s home time on the alternate weekend concludes on Sunday and there is no time in the other week. Time also to occur during school holidays and on special occasions; and
(d)X attend kindergarten in 2023.
The orders the father seeks are set out in Exhibit F6. In summary they provide that:
(a)the father have sole parental responsibility for X until the mother provides two consecutive clear hair follicle drug test results within a 12 month period or if the father fails to seek the mother undertake a hair follicle test. Thereafter the parents have equal shared parental responsibility;
(b)X live with the father;
(c)X spend time with the mother each alternate week from Thursday until Monday and on special occasions under the condition of substantial attendance until she provides two consecutive clear hair follicle drug test results within a 12 month period;
(d)upon there being two consecutive clear hair follicle test results the condition of substantial attendance no longer apply, and X spend time with the mother each alternate week from Thursday to Monday, half of all school holidays and on special occasions;
(e)the father be permitted on two occasions in each 12 month period to request the mother undertake a hair follicle test;
(f)if the mother fails to undertake a requested hair follicle test or produces a test positive for illicit substances X’s time with the mother reverts to time pursuant to the condition of substantial attendance and the father have sole parental responsibility; and
(g)X commence at E School in 2023.
The ICL seeks orders in the terms of his minute marked ICL1.
The ICL seeks that the parents have equal shared parental responsibility for X and that the Court determine whether X attends school or kindergarten in 2023. The ICL does not oppose the school being E School.
The ICL’s minute otherwise largely reflects the orders sought by the father.
THE EVIDENCE
Mr G
On 19 November 2021 the mother attended upon Mr G for the purpose of her psychological assessment. Mr G’s report is dated 21 February 2022. Mr G was not required to give evidence.
Mr G records:
Salient to the current matters is [Ms B]’s mental health and substance use. [Ms B] has experienced episodes of mental health instability, including suicidal ideation. She reported difficulties with feelings of rejection and abandonment. She described being emotionally reactive, sensitive interpersonally and ruminating on negative evaluation.[2]
[2] Psychological Evaluation dated 21 February 2022 at [29].
The mother’s self-description at the assessment was consistent with a mental illness which Mr G broadly defines as reflecting a tendency toward overly emotional, reckless and emotional and impulsive responses. He recommended that the mother’s treatment plan address the impact of her personality functioning on self-esteem, mood, decision-making and coping. If the mother’s current clinician is unable to assist Mr G names a clinical psychologist who offers services addressing anxiety, depression, trauma, stress management, personality disorders and self-esteem and self-development.
In relation to the mother’s substance abuse Mr G records the mother:
(a)acknowledged a history of poly-substance abuse whilst socialising including illicit drugs. She has also tried cannabis, illicit drugs and alcohol;
(b)disclosed binging on illicit drugs on at least one weekend a month toward the end of 2020 in the company of associates;
(c)reported substance use assisted her to regulate her emotions. She experiences emotions intensely and can respond recklessly and impulsively when overwhelmed; and
(d)acknowledged a history of positive drug screens and not having remained current with respect to ongoing drug screens.
Mr G recommended that the mother reduce her substance use. If the mother’s current drugs and alcohol counsellor is unable to assist with this he recommends the Australian organisation which provides specialist drug and alcohol counselling.
Mr G was of the view based on the mother’s reporting that she had appropriate parenting knowledge and appropriate life skills, including those needed for parenting.
Mr G administered the Family Strengths and Needs Assessment Tool. The tool rates parents and caregivers on major psychological and psychosocial risk factors, balancing strengths and needs to predict the effect on parenting, with a final measure that rates the likely risk of a child in the caregiver’s care being exposed to neglect and/or abuse. Mr G concluded:
Based on the balance of [Ms B]’s identified parenting strengths and needs ratings her psychological and psychosocial risk factors are estimated to fall in the high-risk range currently.[3]
[3] Psychological Evaluation dated 21 February 2022 at [27].
Mr G recommended that the mother’s contact with X:
…should be gradually increased based on [Ms B]’s progress in treatment and in reducing her substance use. Progress could potentially be reviewed by [Ms B]’s treating practitioner/case manager at intervals to the court, or to an appointed Independent Children’s Lawyer (ICL). Urinalysis or hair follicle testing may be required to determine the nature and extent of [Ms B]’s substance use.[4]
[4] Ibid at [33].
Ms J
On 22 August 2022 the family attended upon Ms J for the purpose of the Family Report. Ms J also telephoned the father on 7 September 2022 to obtain information from him in relation to where he intended to live. Ms J’s report is dated 7 September 2022.
Ms J’s report clearly advocates for X to live in the primary care of the mother. However, she does not disagree with Mr G’s high–risk range rating of X likely being exposed to neglect and/or abuse in the mother’s care.
After 20 minute observations sessions between X with the mother and X with the father, Ms J favoured the mother’s parenting style in that it evidenced high level of skills of attunement to X. She described the father’s parenting style as avoidant, he ignored X’s “upset”, he appeared to be “emotionally illiterate” and unable to attune to X’s emotional state.
In addition to the time of day the observation session was conducted between X and the father and the sequence of events that occurred prior thereto, the father said that “X wasn’t down or upset. He was shut off….he just wanted to be in his own little ball, just to be left alone…”.
The support letters from X’s specialists contained in exhibits F3, F4 and F5 are testament to the strong emotional attachment the father has with X and that he is attuned to X’s needs. I prefer their observations to that of Ms J given the longitudinal basis in which they have been engaged with X and the father compared with Ms J’s single observation session of 20 minutes.
In any event, Ms J told the Court it is not a serious finding that someone is emotionally illiterate and that it is a common missing piece in parenting. She also agreed that X and the father have a close relationship.
Ms J was of the view that if there has been evidence of a reduction of illicit substance use by the mother, it would benefit X if he were returned to the mother’s primary care on the proviso that she continues to engage with her current support services and that she does not use any illegal substances while X is in her care.
Ms J’s recommendations included:
(a)unless the Court determines that X is at an unacceptable risk of harm in the mother’s unsupervised care then X’s time with the mother increase. Provided the mother maintains her supports and her illicit substances use continues to reduce or if she is currently abstinent, by the second week of December 2022 X live in the mother’s primary care. X’s time with the father be supervised if he returns a drug screen testing positive for illicit substances; and
(b)if the Court determines that X is at an unacceptable risk in the mother’s primary care and the father has demonstrated he does not use illicit substances then X live with the father and spend unsupervised time with the mother if she has low or no current substance use problems.
Ms J’s recommendations in her report curiously support a scenario where the mother who uses illicit substances can have the primary care of X with no oversight by a third person, but the father, if found to use illicit substances, can only have supervised time notwithstanding he had been the primary carer with no history of substance abuse while X was living with him.
During Ms J’s oral evidence the following exchange took place between her and the ICL:
ICL:Is it fair to say, in summary, that you believe the mother, on your observations, had a far superior parenting style to [X] than the father?
[Ms J]: Well, yes. In terms of emotional attunement. Yes.
ICL: Having heard what counsel for the father has said about the evidence given by the mother about her recent drug use on [illicit drugs], about the fact she has got pending criminal charges on drug possessions, on issues in relation to loss of her licence for drug use, do you think that recent drug history should trump or be regarded as more important than those two parenting styles you’ve mentioned there? In other words, is the risk to the child from the mother by use of that drug use, which has been admitted in court, something that should be of more concern to the court than the…?
[Ms J]: I think it should be of serious concern. Yes.
ICL:And in fact, do you believe, having heard everything here today, that the child should live primarily with the father and see the mother under more restricted circumstances?
[Ms J]: Well, yes.
Having considered the evidence the mother gave in relation to her recent drug use, her pending criminal charges, her driver’s licence demerit points and all of the other evidence the mother provided to the Court I place substantial and significant weight on the recommendation Ms J gave in her oral evidence in relation to X’s care arrangements.
THE FATHER
The father is now 26 years of age. I am not critical of the father, as was Ms J. Ms J was of the view that the father needed to control the interviews and the narrative, and that he diverted attention away from himself.
The father’s evidence was measured, direct and insightful. He had just heard the evidence of the mother and Ms C. I have no doubt his concerns in relation to X being in the mother’s care were heightened. He made appropriate concessions. I consider him an honest witness. He has taken on the responsibility of being the primary carer of X with maturity and resolve. I am of the view the father is now a decent and grounded young man.
I accept the father’s evidence that he ceased using illicit substances at the end of 2019. He “realised there was a lot more to life than partying”. He has produced a hair follicle test result upon a test being undertaken in September 2022 which did not detect any presence of illicit substances. Albeit of short hair length it was nevertheless requested at random by the ICL and he undertook the test on the same day as the request. He was also working in a job where random drug screening was occurring.
At the age of 13 years the father was diagnosed with a medical condition. He attends upon a neurosurgeon for check-ups. At times his memory is affected. The mother knew about the medical condition at the time of their relationship. The medical condition in my view have not had any impact on his parenting capacity.
Since 2021 the father and X had been living in his parents’ home in Town K with the paternal grandparents and his sister.
At the time of the hearing the father was working as a tradesman in Suburb L. His work hours were generally between 7.00am and 5.30pm. X attended kindergarten in Suburb D. The travel time between Suburb L and Suburb D is around 20 minutes according to the internet search provided by Counsel for the mother. The father always took X to kindergarten. Kindergarten opened at 6.30am. If the father commenced work at 7.00am he would deliver X to kindergarten at 6.30am. The father told the Court that X would be in the car by 6.00am in order to get to Suburb D at 6.30am. On the days the father started work at 7.30am or 8.00am he would deliver X to kindergarten later than 6.30am.
The father has probably by now moved in with his present partner, Ms M, into her home in Town N given that he intended to do so by the end of 2022 and when X had finished kindergarten. Ms M is 25 years of age and has a two year old daughter and a five year old son. I am of the view that the father was not trying to favourably influence his case by omitting to tell Ms J at the interview on 22 August 2022 of his intention to move out of his parents’ home and live with Ms M. The father is a straight forward thinking man. I accept his evidence that he did not tell her because he was only asked where he currently lived.
The father says that he spoke with X’s specialists about the move to Town N. Ms O, X’s play therapist, is of the view that “The relationship [the father] has with Ms M and her family will have a positive impact on X as he will have children to play with and experience a warm family atmosphere”.
Ms M works in in Suburb E and can start work anywhere between 8.00am and 9.00am. Ms M’s son attends E School which is around 5 minutes away from Ms M’s workplace. School starts at 8.45am.
I accept the father’s evidence that he has known Ms M since the beginning of 2022. Ms M and her children are no strangers to X. Ms M has had a hands-on involvement with X which the father says has been “much the same as my mother”. The father said the number of times he and X are at Ms M’s home per week, including on an overnight basis, that “you could say that we nearly live there…” and “we always have the kids interacting with each other and all that”.
I am satisfied that the father has secured employment at the P Company in Suburb E. The father’s work hours will be from Sunday until Thursday and commencing at midnight until 8.00am. The father says this employment is more compatible with him being the primary carer of X than is his employment in Suburb L.
The father wants X to attend E School. Ms M will drive X and her son to school. At the conclusion of his shift he may meet Ms M in Suburb E. Sometimes X may go to before and after school care. The father proposes to use after school care on some days. The father will do the afternoon collection of X and Ms M’s children from Suburb E. The father would sleep while X was at school. The father said that he would change his work hours to day shift in order to satisfy the Court that he is independent and can get X to and from school himself.
The father says that a lot of people he knows in Town N send their children to E School. The father has already met the parents of children who send their children to before and after school care.
The travelling time between Town N and E School is around 44 minutes according to Counsel for the mother’s internet search. To be at school at 8.45am X will have to be in the car by around 8.00am. For arguments sake, even if Ms M starts work at 8.00am and delivers X and her son to before school care shortly prior to then, X will not need to be in the car to travel to school until around 7.45am.
X having to be in a car in order to travel to school in Suburb E from Town N within the window of 7.45am and 8.00am is far less onerous on X than him needing to be in a car by 6.00am in order to travel from Town K to attend kindergarten in Suburb D. Likewise, given the time the father finishes work at P Company, X will be home at Town N at an earlier time than he would have been when travelling home to Town K from Suburb D.
Counsel for the mother submits that X should live in the primary care of the mother as the change in the location of X’s home, X living with Ms M and her children, X commencing school, X travelling to E School from Town N and that Ms M will be delivering him to school and not the father, are many changes for a young child and creates instability for X.
However, parents have a right of freedom of movement to live and work where they please.
In Adamson & Adamson [2014] FamCAFC 232 the Full Court of the Family Court observed at [68]:
It can thus be seen that it was not the task of the trial judge to mould or create, by the exercise of discretionary powers, the most desirable solution or desirable circumstances, blind or indifferent to each parent’s fundamental right to exercise their respective rights to choose where they lived and worked consistent with the child’s best interests. Rather, those rights were to be respected. Only if the exercise of such parental rights could be seen as so adversely affecting the child’s best interests could interference with their exercise be legitimate; and then only to the extent necessary to avoid such adverse effects, having considered available alternatives.
I am of the view the evidence does not support that the changes X will experience will have a detrimental impact on him or create instability. The changes to X as a consequence of the father moving homes and obtaining alternative employment, Ms M and her children’s involvement in X’s day to day life and that X will be commencing school in 2023, do not adversely affect X’s best interests so as to mitigate against X continuing to live with the father.
In my view the father has been given very little credit by the mother or the maternal family for acting upon his concerns for X’s safety when in the mother’s care because of her illicit substance abuse. The mother and the maternal family should accept that it may take time for the father to build trust in the mother given the disclosures the mother gave in her evidence. Lest it be forgotten, the father has not used illicit substances since late 2019 some three years ago.
Ms Q
Ms Q is the paternal grandmother. She was an impressive witness. She is clearly attuned to X and his abilities. Given that X has lived in the paternal grandparents’ household for nearly two years there is no doubt that he has a positive relationship with the paternal grandmother and grandfather and the father’s sister.
If the relationship between the father and Ms M does not endure the paternal grandmother told the Court that he and X are welcome to come and live with the paternal grandparents again.
THE MOTHER
The mother is 25 years of age. The mother presented similarly in Court as she did with Ms J. She had taken care with her appearance, she did not appear agitated or substance affected. She became visibly upset and cried at times when she spoke about her separation from X.
I am undecided whether the mother’s evidence was evasive because she did not want the truth to emerge so as to jeopardise her chances of obtaining primary care of X or whether she thought her pending criminal charges, the reasons behind the loss of demerit points, the intervention of the Crisis Assessment Treatment Team (CATT), or her recent illicit drug use had no relevance to the proceedings. Either way is damning of the mother.
The mother lives in a two bedroom unit in Suburb R provided by the S Organisation. She is in receipt of Centrelink payments and is currently seeking employment in retail. Her casual work in manual labouring has been inconsistent.
At the outset I remark the mother appears to have made some progress with her illicit drug rehabilitation. I do not underestimate how difficult that task is. However, the evidence in my view does not support her progress to date is such that it is in X’s best interests to live in her primary care or that the substantial attendance condition in relation to the time X spends with her should be removed forthwith.
The mother has a cavalier attitude to her illicit substance abuse. She justifies her illicit substance use on the basis that she is only a recreational user, she does not use illicit substances nor is she drug affected when X is in her care, she has not exposed him to her illicit substance uses, and has “never put X at risk”.
The mother has recently been diagnosed with PTSD and a mental illness and prescribed medications. She acknowledged that using illicit drugs at the same time as taking those medications did not help her treatment. She said that is “why I pretty much stopped using altogether so that I could get the best outcome from the medication”. The mother does not say she “pretty much stopped” for the benefit of X.
The father annexes several photographs of the mother using illicit substances to his affidavit. They are appalling photographs of a mother who has the care of a very young child. What stood out to the Court was that the mother was more concerned about the manner in which the father obtained the photographs rather than their content.
I accept the father’s evidence that he obtained the photographs from relatives and friends who held concerns in relation to X’s safety. I also accept the father’s evidence that he sent them to X’s childcare centre he attended when X lived with the mother because he was fearful for X’s safety and that at that time no-one seemed to be listening to his concerns. Lest it be forgotten, DFFH did not substantiate the reports against the mother, and in late December 2020/early January 2021 the police were concerned that the reports in relation to the mother “may be malicious in nature”.
In my view given the totality of the mother’s evidence she clearly had no insight when she contended to Mr G that the “father has made malicious allegations against her and is trying to assert control as revenge for [her] ending their relationship”. The motivation of the father for pursuing all the courses of conduct he did was in an endeavour to keep X safe.
The mother has been using illicit substances for the last eight years, since she was around 17 years of age. She ceased using illicit substances when she was pregnant with X and commenced using again when X was around six months old. She used illicit drugs. The mother said in relation to illicit drug use that “your judgment is not so good on them”.
The mother started using illicit drugs around two years ago. She says she did not continue using any other illicit substances. She told Ms J she started using illicit drugs occasionally and then about once per week and when X went to live with the father she became more heavily reliant on illicit drugs.
Notwithstanding DFFH did not substantiate the reports in relation to the mother’s illicit substance use, the mother was abusing illicit drugs.
Importantly, the last protective assessment by DFFH in April 2021 concluded that X was not at risk of harm in the care of the father. It also concluded as a result of X living in the fulltime care of the father that X’s risk of harm due to the mother’s alleged drug use was reduced and not likely. Of note, it does not say X was not at risk of harm in the care of the mother.
The mother does not disclose in her affidavits sworn/affirmed on 21 September 2022 and 6 October 2022 that she had pending criminal charges in relation to illicit substances. The mother did not tell Ms J she had criminal charges outstanding. The mother only disclosed during cross-examination that she had pending criminal charges.
Exhibit M2 discloses that in early 2022, at approximately 4.00am the mother, her possessions and her car were searched by Victoria Police in a carpark. When the police arrived they had formed the suspicion that a possible drug deal had been interrupted as two males were attempting to leave the carpark. The searches revealed that the mother had:
(a)illicit drugs in her handbag;
(b)illicit drugs in the passenger side door of her car; and
(c)in the passenger side foot well of her car, a plastic basket containing a small plastic pouch with $120.00 cash inside, a notebook with writing of liquid and dollar value amounts indicating drug trafficking activity. Two small zip lock bags containing approximately 2 grams of illicit drugs, a rectangular clear plastic container containing a number of empty small plastic zip lock bags and a small plastic tub which contained approximately 2 grams of illicit drugs were also found.
The mother was charged with possession of the drugs of dependence and was bailed to appear at the Suburb T Magistrates’ Court in mid-2022. In mid-2022 the mother was placed on bail on her own undertaking.
Exhibit M2 discloses that in early 2022 at approximately 9.30pm the mother, her car and her friend were searched by Victoria Police. The mother’s friend was found to have illicit drugs in his possession. The searches revealed:
(a)drug paraphernalia in the foot well of her car and several empty small zip lock bags; and
(b)approximately $300 cash and illicit drugs in the mother’s bag.
The mother was charged with offences and committing an indictable offence (possessing a drug of dependence) while on bail.
It would appear that just as in May 2020, in 2022 “the friends that [she] hung out with weren’t that good”.
The Court understands that all the criminal charges were dealt with in December 2022. The Court is not aware of the outcomes.
The mother was recalled to give evidence in relation to her licence demerit points as Ms C alluded to points being lost because the mother failed a random drug test. It was only then the mother disclosed she received licence demerit points on two occasions for driving under the influence of drugs. Ms J agreed that driving under the influence of illicit substances is “extraordinarily reckless behaviour” and it also concerned her “going forward” in relation to the mother.
The mother lost her driver’s licence around early 2022 because she exceeded the 12 demerit point cut off which triggered the loss her licence. It is likely she will regain her driver’s licence in 2023.
The mother deposed in her affidavit sworn/affirmed on 8 April 2021 at paragraph 12 that:
I freely admit and regret using recreational drugs in the past. I now understand that this drug use was part of self-medicating for trauma and related mental health issues. These matters are in hand now with the correct supports in place and an adjustment to my anti-depressant medication
……
[X] will be safe in my care. I have provided a clean drug result. I have provided medical evidence from my doctors. There is no risk to [X]’s safety or welfare while in my care.
The mother annexes a letter from her General Practitioner dated 15 March 2021 which states “She has not used any substance abuse that I am aware of and has had a recent negative urine screen”. The urine screen was undertaken in March 2021.
The mother does not deny that in April 2021, four days after she swore/affirmed her April 2021 affidavit, she was trying to purchase drugs. She admits she used illicit substances in April 2021 after she swore/affirmed her April 2021 affidavit. Thus the positive detection of illicit drugs in her June 2021 hair follicle test.
The mother says that up to the end of 2021 she was using illicit drugs once per week. She told the Court that in 2022 she was also using once per week until she started to link in with more services. She asserts that her use decreased to fortnightly after the CATT intervention. The mother says when she started getting help from CATT her use “dramatically decreased down to barely anything”.
It is concerning that it was not until the release of the family report in September 2022 that neither the father nor the ICL knew that the mother had an intervention by CATT about 14 to 15 weeks (May 2022) prior to the Family Report interviews because she felt suicidal at the time. Her reason being that “she had felt helpless to protect X from the trauma he had suffered”.[5] The mother’s counsellor called CATT.
[5] Family Report dated 7 September 2022 at [40].
The mother in her September 2022 affidavit again deposes:
I freely admit and regret using recreational drugs in the past. I now understand that this drug use was part of self-medicating for trauma and related mental health issues. These matters are in hand now with the correct supports in place and an adjustment to my anti-depressant medication.[6]
[6] Mother’s affidavit dated 21 September 2022 at [9].
The mother did not disclose in her September 2022 or October 2022 affidavits that she had used illicit substances in August 2022 about three weeks before the interviews for the Family Report, or that she had used illicit drugs in early September 2022.
The mother also only disclosed during cross-examination that she had used illicit drugs six weeks prior to the commencement of the final hearing (early September 2022). Even if the mother had undertaken the hair follicle test requested of her on 27 September 2022 it would have tested positive for illicit substances. The mother said “relapses happen all the time”.
I accept that relapses are likely to happen to a person with a long standing history of illicit substance abuse. However, that relapses do happen is a factor which the Court must take into account. I cannot exclude the possibility that the mother will relapse in the future. Even if the mother only uses illicit substances otherwise than when X is in her care, there is always the possibility that she will be illicit substance affected when she is driving in her car with X. This is a possibility as the mother told the Court that when she was randomly tested and lost the demerit points “it would have been a few days before that I used, so it was still in my system”.
The father was an illicit substance user over three years ago. There is no evidence before the Court of any relapse by him.
The mother told Ms J that she was “finally completely abstinent from drug use as at three weeks prior to the Family Report interviews and prior to that she had been using “about once per month”. There is no evidence of when the mother ceased using fortnightly, if in fact she did at all. The mother’s self-reports and the use of the expressions “about once a month” and “at least once per month” are in my view vague as to frequency.
The frequency, the mother told Mr G on 19 November 2021, of her use of illicit substances on “at least one weekend per month” since the end of 2020 had not changed as at the commencement of the final hearing. The mother’s evidence supports she used illicit substances on one occasion in early August 2022 and on one occasion in early September 2022. That is a frequency of “about once a month” and “at least one weekend a month”. However I consider on the totality of the evidence in relation to the mother’s illicit substance abuse that it is probable the mother has continued using illicit substances at a frequency of more than about once per month. Ms J agreed that people with drug problems will often understate their usage.
The mother told Ms J that the CATT involvement (May 2022) helped her link in with the services that currently support her. The mother relies on the reports of her service providers annexed to her September 2022 affidavit.
The mother also told the Court:
(a)she does not have a psychiatrist. She had a brief intervention by a psychiatrist upon the CATT intervention;
(b)she has never done an Alcohol and Drug Course; and
(c)she sees her counsellor, Ms U, for her mental illness. The mother has not seen Ms U for two months. There is no report from Ms U. It is not clear what are her qualifications.
The letter dated 16 August 2022 from V Health Service to the mother’s General Practitioner, the same doctor who authored the letter of 15 March 2021, records the mother was engaged with the Brief Intervention Team since May 2022 but their involvement is now closed. The author of that letter is Mental Health Clinician/Social Worker. V Health Service referred the mother to Ms W.
Ms W, Support Worker-Mental Health, is from Y Organisation. Her letter dated 16 September 2022 records “Drug use has decreased (best it’s been in 8 years other than pregnancy/when X was born)”. The mother told the Court that Ms W is her support worker who checks in daily with her and helps her with appointments and “keeping on track of things”. Ms W’s involvement has only been since May 2022.
Ms Z, an Alcohol and Other Drug Counselling Clinician, provides a report dated 22 September 2022. The mother has been engaged with Ms Z since June 2022. Perhaps the mother is now finally taking her illicit substance abuse more seriously. The mother accepted a referral for residential withdrawal at AA Youth Residential Withdrawal Program but was not accepted because she was over 25 years old. The referral was then directed to BB Adult Withdrawal Service. The Court is unaware of the outcome of that referral. The mother participates in the CC Program developed by Ms Z which commenced in September 2022. The group includes remedial exercises as well as a focus on issues impacting young women in relation to self-esteem, body image, trauma and social media.
The mother still relies on the letter from her General Practitioner dated 15 March 2021 and the urine screen undertaken in March 2021 for the purpose of the final hearing, notwithstanding they are over 18 months old, to support that she “does not use illicit substances” and that she has a negative drug screen.
Since the mother attested on 8 April 2021 (repeated in her September 2022 affidavit) that her recreational illicit drug use “is now in hand” the mother:
(a)has not provided results for hair follicle testing or urine tests for illicit substances since 15 July 2021 at the random request of the ICL. In closing submissions Counsel for the mother said that in her brief she had a urine screen test of the mother undertaken in September 2022 which tested negative for illicit substance. That test result would not have assisted the mother given the mother’s admission of using illicit substances in early September 2022. It would have been disingenuous and misleading of the mother to rely on that test result as evidence of abstinence of illicit substance use, particularly if cross-examination did not elicit her admission of illicit substances use in early September 2022;
(b)has engaged in activity on two occasions which resulted in her being charged with drug related criminal offences;
(c)has had illicit substances in her possession;
(d)has earned demerit points on two occasions for driving under the influence of drugs; and
(e)has failed to provide sufficient independent expert evidence that she has addressed the matters raised by Mr G. The services in which she is now engaged are very recent in the context of a long standing illicit substance user. There are also concerns that they are not of the intensity contemplated by Mr G.
Accordingly, the Court cannot be satisfied that the rating of the risk to X being exposed to neglect and/or abuse in the mother’s care is still not in the high-risk range.
I consider that the highest the Court can find in relation to X’s safety in the mother’s care at the present time is that the mother is not using illicit substances and may not be illicit substance affected when X is spending time with her pursuant to the orders made on 28 June 2021.
As Counsel for the father rightly submitted “We know that drug use impairs a person’s ability to care for themselves, let alone a child, particularly a young child”.
I also take into account when assessing the risk to X posed by the mother the nature of the associates with whom a drug user keeps company. The ICL submitted this is a “grave concern as far as the Court is concerned”. Lest it be forgotten, the circumstances of 17 March 2022 and 22 March 2022.
The mother has deposed twice in a period spanning 17 months that she has matters “now in hand”. That statement has been proven to have gilded the lily and be incorrect. The mother’s evidence is that she has “never put X at risk” including by not using illicit substances when he is in her care. I am satisfied that the mother may have again gilded the lily and that she may be incorrect. The mother’s word, having regard to all of the evidence, is an insufficient basis which enables the Court to make a finding on the balance of probabilities that X will not be at risk in her care in the future because of her illicit substance abuse. The evidence does not support that the mother has matters “now in hand”.
I find on the totality of the evidence that X is at an unacceptable risk of harm in the mother’s care as a consequence of her illicit substance abuse by:
(a)using when he is in her care;
(b)still being under the influence of illicit substances when using while he is not in her care; and
(c)exposing X to drugs and drug paraphernalia and inappropriate people.
The mother has failed to satisfy the Court that the possibility of X being exposed to risk in her care is low enough to support that X should be in her care, whether on a primary or spend time basis, without monitoring of her illicit substance use or supervisory conditions being attached. In my view that finding mitigates against the mother having the primary care of X particularly when X is not at any risk of harm by the father in his care. X is too young to be able to self-protect.
Ms C
Ms C is the maternal grandmother. The mother told the Court she was completely honest about her drug use with her mother and that she had told her she had used illicit substances in early September 2022.
However, the evidence supports that Ms C does not know the full extent of her daughter’s illicit substance abuse. She:
(a)was not aware the police had found illicit drugs in the mother’s wallet in 2020;
(b)only knew the basics of the mother’s pending criminal charges; it was “for drugs – not drugs. But getting involved with the wrong people”;
(c)was not aware that DFFH was involved with the family prior to their involvement in 2021;
(d)is of the belief the mother has been using illicit substances for only two years;
(e)rejects the concept that the mother is “a junkie or a druggie” as those terms mean “daily usage and stealing”; and
(f)does not believe the mother has a drug problem.
Ms C said that the mother “doesn’t use now, so it’s in the past……months now”. She had not recently spoken to the mother about her drug use. She was of the view that the mother had been abstinent from drug use since August 2022. She said it would “sadden” her if the mother had used drugs after the Family Report was prepared.
Ms C did not agree that the mother being a drug user puts X at risk or that it affects her ability to care for X as “I don’t believe she uses drugs when she has got X”.
The mother told the Court “When I have X, mum is always there to drive me”.
Ms C is prepared to continue being in substantial attendance.
I have no doubt that X has a positive relationship with the maternal grandmother and other members of the extended maternal family. Ms C and Ms B have spent significant time with X because of the condition of substantial attendance.
Ms B
Ms B is the maternal aunt. She was a matter of fact witness. The mother says that she has been honest about her drug use with Ms B.
Ms B was not aware that the mother had pending criminal charges. Ms B said that she does not speak with the mother about her previous drug use. She does not know whether the mother has been using drugs in the last year. She encourages her with the steps she is taking.
Ms B is prepared to continue being in substantial attendance.
Ms DD
Ms DD is the maternal great grandmother. She was not required for cross-examination.
Ms DD is highly critical of the father. Her affidavit includes:
·X is “one of the sunniest, sweetest and adaptive little children I have had the pleasure of helping raise”, and
·the mother and X “have one of the closest bonds I have ever seen between parent and child...I do not think that bond between them will ever be broken”.
LEGAL PRINCIPLES
The Court may, subject to the presumption of equal shared parental responsibility, make such parenting orders as it thinks proper.[7] When deciding what parenting orders to make it is the best interests of the child which is the paramount consideration of the Court.[8] The Court is informed as to what is in a child’s best interests by the primary and additional considerations in section 60CC of the Family Law Act 1975 (Cth) (the Act) and in the context of the overarching Objects and Principles set out in section 60B.
[7] Family Law Act 1975 (Cth) s 65D(1).
[8] Ibid, s 60CA.
The Court must have regard to the presumption of equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent of a child has engaged in family violence. The presumption is rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.[9]
[9] Family Law Act 1975 (Cth) s 61DA.
In the event that an order for equal shared parental responsibility is made the Court is required to assess whether it is in the child’s best interests to spend equal time or substantial and significant time and whether such time is reasonably practicable.[10] If no order for equal shared parental responsibility is made then spend time arrangements are at the discretion of the Court, subject to the best interests of the child being the paramount consideration.
[10] Ibid, s 65DAA.
In Grella & Jamieson [2017] FamCAFC 21 at [18] the Full Court observed:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
THE CONSIDERATIONS
S60CC(2)(a) - benefit to the child of having a meaningful relationship with both of the child's parents
The parents by their final proposals acknowledge there is a benefit to X of having a meaningful relationship with both of them.
I am satisfied there is a benefit to X having a meaningful relationship with the father. I am also satisfied there is a benefit to X having a meaningful relationship with the mother notwithstanding the mother still uses illicit substances and engages in inappropriate behaviour. The mother, however, has many positive attributes to offer X.
S60CC(2)(b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
I have canvassed the need to protect X from risk in the mother’s care.
Neither parent relies on the alleged family violence between them to curtail time with the other parent.
On 9 August 2022 the mother over held X. She engaged several authorities as did the father and Ms Q. X was made available for collection by Ms Q at 12.27pm at Suburb D police station the next day. On 6 September 2022 the mother told the father she would not be returning X to him. Authorities were again involved. X was ultimately collected by Ms Q from the mother’s home accompanied by police at around 11.00pm.
The two over holdings by the mother were occasioned by her having seen a bruise on X’s back on 8 August 2022. There is no evidence supporting that the mother has ever been concerned about X being physically hurt by the father. The father says that the bruise was caused by a knock at kindergarten. I consider the fracas surrounding these two occasions were as a result of the mother being opportunistic in an endeavour to discredit and disparage the father so that she could secure X living with her. Notably, these two occasions align in time approximate to when the mother admits she used illicit drugs.
I am satisfied that there is no need for the Court to craft orders to protect X from any risks when he is in the care of the father.
S60CC(3)(a)and (g) – views, maturity, other relevant characteristics of the child
X was not interviewed by Ms J due to his young age and developmental stage.
X attends upon Ms EE, an early parenting consultant, Ms O, a registered play therapist and Ms FF, an accredited mental health social worker.
The father is on 10 waiting lists in order to engage X with specialists closer to home.
The father says that X was diagnosed with autism in 2021. The mother has not been provided with evidence supporting the diagnosis. The mother seeks an order for X to undergo a paediatric assessment to determine whether X has autism. Orders are made providing for a paediatric assessment in the event the father is unable to provide evidence of the diagnosis to the mother.
S60CC(3)(b) - nature of relationships of the child
I have canvassed the nature of X’s relationships with others.
The mother relies significantly on the issue of “attachment” to persuade the Court that it is in X’s best interests to live with her. She describes difficulties at changeovers and with X’s behaviour when he is with her. Ms Q denies that changeovers are difficult for X.
The mother told Ms J she believed that X may have suffered an attachment trauma by being removed from her primary care. Ms J was of the view that more work needed to be done before one could make a diagnosis of attachment trauma.
The father gives other explanations for X’s “trauma”. The father was also concerned about X’s behaviour and varying moods. He took X to a General Practitioner who referred the father to Ms EE. Ms EE referred the father to Ms O and Ms FF.
The evidence does not establish that X has suffered from an attachment trauma.
S60CC(3)(c) – opportunity and participation in making decisions about major long-term issues in relation to the child and to spend time and communicate with the child
The mother is critical of the father for not involving her in matters concerning X’s welfare.
The father has been reluctant to impart information to the mother about X. He has not let her obtain information from X’s kindergarten in Suburb D. The reason he gave was that he wanted kindergarten to remain a “safe place” for X and held a concern that the mother would collect X from kindergarten and not return him. He acknowledged that he should have let the mother communicate with the kindergarten.
The father did not consult with the mother before enrolling X at E School. He did not seek the mother’s agreement to X being engaged with specialists or that she partake it those engagements. The mother did not participate in any assessments in relation to X’s diagnoses of autism, PTSD or ADHD.
The father readily and sincerely accepted he should have communicated better with the mother and said “That was my bad. Yeah I did drop the ball there”.
Having regard to the totality of the father’s evidence and that he genuinely wants the mother to play a role in X’s life, provided she is illicit substance free, I am confident the father will not impede the mother being engaged in all aspects concerning X’s welfare in the future.
S60CC(3)(ca) - the parent's obligations to maintain the child
The father, notwithstanding the mother’s lack of co-operation, obtained government subsidies for X’s attendance at childcare. The father has obtained NDIS funding for X of approximately $34,000.00 to obtain support for X from psychologists, therapists and associated health professionals. He continues to pay all of the gap in treatment charges.
S60CC(3)(d) - the likely effect of any changes in the child's circumstances including the likely effect on the child of any separation from either of his or her parents
I have canvassed the effect on X of the changes upon the father’s move to Town N. The father’s proposal still has X living in his primary care and X will spend time and communicate with the mother on a regular and frequent basis.
If I accede to the mother’s proposal there will be a reversal of X’s primary carer from the father to the mother. I have no evidence of the likely effect that will have on X’s relationship with the father. The likely effect of X living with the mother is that he will be exposed to an unacceptable risk in her care because of her illicit substance abuse.
S60CC(3)(e) - practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
The travel time between the paternal grandparents’ home in Town K and the mother’s home in Suburb R is around 50 minutes according to Counsel for the mother’s internet search. Changeovers occur at Suburb D.
The travel time between Town N and Suburb R is an hour and a half according to the ICL’s Google search. Changeovers are agreed to stay in Suburb D when changeovers do not occur at school in Suburb E if X lives with the father or lives with the mother and attends kindergarten in Suburb R.
X will be travelling with the father an hour and a half each way to and from kindergarten and thereafter school if X lives with the mother. The mother lives close to X’s kindergarten.
Ms J’s report says that the travelling time between Suburb E and Suburb R is at least an hour away. I do not know where Ms J obtained that information. The father had googled the distance between Suburb E and Suburb R and told the court travelling time was “like 35 minutes. It was a little bit closer than Suburb E to Town N”. I prefer the evidence of the father as I have knowledge from where he obtained the information.
The distance between Suburb E and Town N is around 45 minutes.
Thus the travelling time between the mother’s home in Suburb R and E School approximates the travelling time between the father’s home in Town N and E School.
Accordingly I am of the view that there is no practical difficulty to X living with the father and spending time with the mother.
S60CC(3)(f) - capacity of the child's parents and any other person to provide for the needs of the child, including emotional and intellectual needs
I am satisfied that when the mother is not illicit substance affected she has the capacity to provide for all of X’s needs.
I am satisfied that the father has the capacity to provide for all of X’s needs including his emotional needs.
I am satisfied that Ms M also has the capacity to provide for X’s needs. She has played a significant role in his life since at least June 2022.
S60CC(3)(i) - attitude to the child and to the responsibilities of parenthood
The father has displayed an excellent attitude to X and to his responsibilities of parenthood. He says that his first priority is getting X the help he needs.
The father deposes the mother’s “ongoing use of drugs is unacceptable behaviour of a parent when caring for a young child and shows a disregard of her obligations towards X as a parent”.
It is difficult to cavil with that statement to any degree. The mother’s illicit substance abuse represents a very low standard of her attitude to X and her responsibilities of parenthood.
S60CC(3)(j) and (k) - family violence
That I have not traversed the evidence in relation to family violence should not be seen as minimising any of the allegations.
The father asserts the actions constituting his breaches of the Intervention Order made against him were prior to the Order being served upon him. He was placed on a Good Behaviour Bond. A condition of the bond was that he undertake a Men’s Behaviour Change Program. The father undertook a 32 week Men’s Behaviour Course in 2019.
There appeared to be another hearing between the adjourned dates of this hearing in relation to a breach of the Order by the father which occurred about a year ago. The Court is not aware of the outcome.
The mother told Mr G that she may have breached the Intervention Order against her on one occasion following allegations of indirect contact.
In this matter the family violence alleged by each parent against the other is not a significant matter to be considered in relation to the determination of the issues in dispute.
INTERIM OR FINAL ORDERS
Counsel for the mother submits that only interim orders be made because “at the moment, there are a lot of changes in X’s life”. The mother relies on the father wanting X to commence school in 2023, the father moving/having moved from the paternal grandparent’s home, the possibility of his new relationship failing and change in X’s care arrangements due to the father’s hours of work in his new employment.
I have canvassed the issue of the changes X will experience if he continues living with the father.
Counsel for the mother also submitted that if the Court considered there was still a risk to X because of the mother’s drug abuse then over the next 12 months she could demonstrate that she is no longer a risk. The matter could then be reassessed by the Court in 12 months’ time. It would also address the “attachment” issue.
I have canvassed the “attachment” issue.
Counsel for the father commenced his cross-examination of the mother during the first day of the hearing. After the luncheon recess Counsel for the mother indicated she was considering seeking on an adjournment because of the evidence the mother had already given in relation to her drug use and that the mother was seeking primary care of X. Counsel for the mother ultimately did not pursue an adjournment application at that time. Notably, one of the bases why interim orders are sought by the mother is the same as why an adjournment was considered on the first day of the final hearing.
The mother did not include any orders in her proposal for the monitoring or testing of her illicit substance abuse. It was not until prompted by the Court that Counsel for the mother said the mother would undertake testing voluntarily. I canvassed with Counsel the unsatisfactory nature of voluntary drug screening without a time frame to undertake the test upon a request being made. The person to be tested can choose his/her time and monitor his/her drug use around when he/she determines he/she will take the test, as the mother must have done to obtain a negative urine test result in September 2022.
Counsel for the mother ultimately said the mother would not oppose an order being made providing for her to undertake a hair follicle test every three months for the next 12 months:
So that by the time this could come back for a hearing, your Honour would see that she has been completely drug free for a year and that would then give your Honour some confidence in making a final order because you would know for sure has this woman been able to move away from drugs. Because of course, it’s not ideal at all for any parent to be using drugs when they have children in their care. So at that point, there would be 12 months of knowing how things are going for [X] in the father’s care and how things are going in terms of the risk assessment.[11]
[11] Transcript dated 18 November 2022 at page 220.
Counsel for the mother rejected the concept of X continuing to live with the father whilst the mother’s drug use continued to be monitored. She relies on all of the issues she submits why it is in X’s best interests to live with the mother.
The mother, as Counsel for the father submitted, has had nearly two years to address her illicit substance use issues. He submits that instead the year 2022 is worse than 2021 because there are now criminal charges, a loss of licence and “really reckless behaviour where a little kid could have been in the car”.
If the Court makes orders on an interim basis as sought by the mother I consider that the issue of the risk posed by the mother to X because of her drug abuse will have been ignored. For such to occur is not in X’s best interests. Interim orders also do not provide finality, certainty or stability for X.
It is preferable to make orders that are least likely to lead to the institution of further proceedings in relation to X.[12] There is the possibility of further proceedings being instituted between interim orders being made as sought by the mother and the conclusion of the 12 month period if the mother does not remain illicit substance free or fails to undergo a test, which is her history.
[12] Family Law Act 1975 (Cth) s60CC(l).
Accordingly final orders are set out.
PARENTAL RESPONSIBILITY
Notwithstanding that the presumption of equal shared parental responsibility may not apply I am satisfied that an order for the parents to have equal shared parental responsibility for X is in his best interests. All parties support such an order.
The mother and father are very young parents of a young child with a diagnosis of autism, PTSD and ADHD. It is in X’s best interests that both parents have input into making major long term decisions given his diagnosis. Both parents will be significantly involved in X’s life, the father being the primary carer and the mother spending substantial and significant time with him. The parents have managed in the past to communicate civilly with each other and make agreed decisions.[13]
[13] Pages 14 to 18 of Annexure “H-1” of the mother’s affidavit dated 6 October 2022.
I am also comforted by the mother and the father’s ability to have mutually varied the changeover location from McDonalds in Suburb F to McDonalds in Suburb D. They have communicated with each other to provide for the father delivering X directly to the mother’s home and to organise themselves to attend the orientation day at E School during the adjourned period of the final hearing.
The father seeks sole parental responsibility for X until the mother is illicit substance free as he is of the view “it would be a good goal for her to reach and a good thing to overcome, and I just don’t think X needs that sort of stuff in his life”.
The mother has, as the ICL highlighted in cross-examination of the father, an incentive to be illicit substance free in order to remove the condition of substantial attendance. I consider that is a very powerful incentive in and of itself.
Accordingly I am satisfied that an order should be made for the parents to have equal shared parental responsibility without any preconditions.
LIVE WITH AND SPEND TIME ARRANGEMENTS
I have found there is a benefit to X having a meaningful relationship with the mother. I have also found that X is at risk in the mother’s care because of her illicit substance abuse. X should and needs to spend time with the mother. In my view, as already indicated, the risk mitigates against the mother being the primary carer of X. Her proposal that X live with her in my view does not provide sufficient safeguards to protect X. The ability of Ms C or Ms B to advise the father of any mental health issues or illicit substance use of the mother and for him to take on a more intensive role in X’s life over and above the spend time orders the mother proposes cannot be relied upon. The mother does not sufficiently confide in them nor did Ms C advise the father of CATT’s involvement with the mother.
Accordingly I must now assess whether “with or without safeguards” the risk to X spending time with the mother can be converted to acceptable,[14] and whether that risk is “able to be sufficiently managed or ameliorated”.[15]
[14] Slater & Light [2013] FamCAFC 4 at [37].
[15] Blinko & Blinko [2015] FamCAFC 146 at [83] referring to Russell & Close (unreported Full Court, 25 June 1993).
Notwithstanding the concerns I hold in relation to Ms C and Ms B, their undertaking of their role in providing substantial attendance cannot be criticised. They are both able to continue in that role. Optimistically they may only be required to do so for no more than a further 12 months.
Until the mother has evidence to support she is illicit substance free in accordance with the testing requirements pursuant to the father’s minute, I am satisfied the risk to X has been converted to acceptable and is sufficiently managed and ameliorated when X spends time with the mother with the substantial attendance of either Ms C or Ms B or such other person as may be agreed.
I am also satisfied that if the mother returns negative tests for the presence of illicit substances in accordance with the father’s testing requirements then the risk to X spending time with the mother without a third person present is converted to acceptable and is sufficiently managed and ameliorated. The mother will have accessed her supports for longer, perhaps accessed further supports, and given the requests for testing are made on a random date basis then it is likely that the mother will finally be completely abstinent of illicit drug use.
A period of time before the requirement of substantial attendance is removed accords with Ms J’s view in her report that it would be expected the mother may take time and need significant support to recover from her substances uses. It also accords with Ms J’s oral evidence when she agreed with the proposition that it is going to be difficult for a long term and frequent illicit substance user to become abstinent without “a fair bit of intervention and assistance”.
As an order will be made for the parents to have equal shared parental responsibility the mandate to consider whether it is in X’s best interests and reasonably practicable for him to spend equal time between the parents or substantial and significant time with the mother is enlivened. [16]
[16] Family Law Act 1975 (Cth) s 65DAA(1) and (2).
I am of the view that it is not reasonably practicable for a third person to be in substantial attendance if there was an equal shared care arrangement. Both Ms C and Ms B are employed. The Court has no evidence supporting that they can be available if there was an equal shared care arrangement.
However, I am of the view that it is not reasonably impracticable for X to spend substantial and significant time with the mother, [17] with the substantial attendance condition attached for optimistically up to a further 12 months. I am of the view that the evidence of Ms C and Ms B supports that the condition of substantial attendance can be satisfied pursuant to the spend time arrangements proposed by the father. They will be present each alternate weekend largely in accordance with their presence each alternate weekend pursuant to the orders made on 28 June 2021.
[17] Ibid s 65DAA(5)(e).
The father’s proposal meets the criterion of substantial and significant time.[18] X’s commute from the mother’s home from school on a Thursday, to and from school on a Friday and to school on a Monday is not onerous for him. It will be around the same time as he travels from the father’s home to Suburb E.
[18] Ibid s 65DAA(3).
That the mother will not have a driver’s licence until around early 2023 may create some practical problems with the father’s spend time proposals until then. Different arrangements can be agreed upon pursuant to the order providing for such further or other times as may be agreed between the parents.
Counsel for the mother made submissions in relation to the Court making orders for additional times the mother could spend time with X during school terms to those proposed by the father and ICL on the basis of the mother’s evidence that she “will move anywhere if I have to for X”, that is, closer to Town N or Suburb E. Counsel for the mother suggested a kilometre limit. I do not propose to make any such orders. Variations to time can be agreed between the parents in accordance with the orders as set out. Furthermore the mother’s evidence was qualified. The mother noted that the father had already moved locations “multiple times” and she did not want to lose her current rental accommodation.
SCHOOL OR KINDERGARTEN
Notwithstanding an order for equal shared parental responsibility will be made I am required to determine whether X commences school or remains in kindergarten in 2023. The father wants X to start school in 2023. The mother wants X to remain in kindergarten.
To attend a government school in Victoria a child must turn five years of age before 30 April of the year they start school. X is able to start school in 2023 as he will be turning five in 2023. He will be one of the youngest students in his year level if he starts school in 2023.
The mother does not object to X attending school in 2023 because of his autism but rather because of “all of the moving around, all of the changes in everything is overwhelming him” and that he is only four years of age. She told the Court that “I don’t think my son is backwards at all, he has always been ahead”. She said that it would benefit X to wait another year before he starts school.
Ms J said an education specialist was probably required if it was a question around X’s age whether or not he should start school in 2023. She also said if there is an issue around his vulnerability X would probably benefit from delaying starting school for another year whatever orders are made. She was of the view that changes in parenting or significant changes be put in place during the four year old kinder year, as developmentally the prep year is a very challenging year and there should not be other major changes occurring.
There is no report from an education specialist. Ms J did not expand on whether or what particular vulnerabilities X may have to mitigate against a school start in 2023. I have canvassed that the changes that X will be experiencing because of the father’s change of residence and employment will not have an adverse impact on X.
The father says X’s specialists are in favour of X attending school next year. As I consider the father to be an honest witness I accept that evidence. He was adamant that if he “could call one of his specialists right now and she would say it over the phone”.
The father investigated four schools and determined that E School was the best for X. X “opened up” with the Principal, and the specialist at the school. At all of the other schools X was “shut off”.
The father’s view is that X needs to keep advancing because where he is at his level of life there is no point in keeping him at kindergarten. He says that X’s needs are to excel.
In relation to school readiness Ms Q thought that X could cope very well. She said that he is very good at talking, he can count up to 30 and knows the alphabet. When she reads books with him he can read those books; “it is by memory, as most children start reading, but he points to the words”. She said that X is a “very smart young man”.
I am not an education specialist and do not purport to know whether or not the evidence given by the father and Ms Q confirms X’s readiness for school in 2023. However I rely on that evidence together with the mother’s evidence that X has always been ahead and the maternal great grandmother’s evidence that X is adaptive.
Having regard to all of that evidence the orders will provide for X to commence at E School in 2023.
OTHER ORDERS
I accede to the father’s proposal for Christmas Day arrangements. The changeover location is closer to the mother’s home, a midday changeover provides a better time for X as he will not be as tired if the changeover is at 4.00pm. It enables X to enjoy a peaceful Christmas lunch without then having to attend a changeover.
The mother seeks that if X lives in the primary care of the father she have FaceTime with X at 7.00pm each night when he is not in her care. Neither the ICL nor Counsel for the father made submissions in relation thereto. I consider that some FaceTime should occur given the length of time between alternate weekends in which X will spend time with the mother but I also consider that every night is too frequent. X should have uninterrupted evenings with the father during the school week and on weekends. I am of the view that FaceTime should occur on each Monday and Thursday that X is not in the mother’s care at 7.00pm, or at such further or other times as may be agreed between the parents.
The mother seeks that both parents be restrained from using illicit substances. The father and the ICL seek that only the mother be the subject of the restraint. There is no evidence to support the necessity for such a restraint to be made against the father. Accordingly the restraint shall only apply to the mother.
To clarify the parameters of “substantial” attendance a notation is made in accordance with the ICL’s suggestion of being present 70 percent of the time. Ms C and Ms Q gave written undertakings to the Court on 3 May 2021 in relation to their obligations to be in substantial attendance. Those undertakings are still in effect.
Agreed ancillary and consequential orders are incorporated in the orders.
I certify that the preceding two hundred and twenty seven (227) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Boymal. Associate:
Dated: 17 January 2023
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