Harper and Wilson and Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARPER & WILSON & ANOR

[2017] FCCA 469

Catchwords:
FAMILY LAW – Parenting – Child aged 6 who has been living with his 26 year old sister for nearly two years – where the mother has a lengthy history of illicit drug use and has been an ice user for at least four years - where the mother recently spent 10 weeks at a rehabilitation centre after being referred there by the MERIT program following her arrest outside a public library in August 2016 when she was found in possession of cannabis, ice pipes and two mobile phones with messages suggesting that she was selling drugs – where the mother claims she last used ice just prior to her admission to the rehabilitation centre in November 2016 and intends to remain clean – where the mother seeks orders for unsupervised time and for the eventual return of the child to her primary care – where the child’s father has numerous criminal convictions dating back to when he was 12 and is currently incarcerated – where the sister seeks an order for sole parental responsibility and orders that the child live with her, spend no time with the father and spend time with the mother at her discretion – where it is very early days for the mother as far as cessation of drug use is concerned - orders made largely as sought by the sister.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA

Cases:
Aldridge & Keaton (2009) FLC93-421
Rice & Miller (1993) FLC92-415

Applicant:

MS HARPER

First Respondent:

MS WILSON

Second Respondent:

MR WILSON

File Number:

NCC 923 of 2015

Judgment of:

Judge Terry

Hearing dates:

27 & 28 February 2017

Date of Last Submission:

28 February 2017

Delivered at:

Newcastle

Delivered on:

1 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr Bithrey

Solicitors for the Applicant:

Powe & White Family Lawyers

The First Respondent:	In Person
The Second Respondent:	No Appearance

Counsel for the Independent Children’s Lawyer:	Mr Kelly
Solicitors for the Independent Children’s Lawyer:	Hunter Family Law Centre

ORDERS

All previous parenting orders in relation to the child X born (omitted) 2010 (“the child”) are discharged.
The applicant MS HARPER (“the applicant”) have sole parental responsibility for the child.
The applicant is to notify the mother in writing by text message or otherwise of any major long term decisions she makes in relation to the child for example a decision about counselling, education or medical treatment.
The child shall live with the applicant.
The child shall spend time with the mother as agreed between the applicant and the mother in writing which may be by SMS text message or otherwise.
The child shall spend no time with and have no communication with the father.
Pursuant to s.68B of the Family Law Act 1975 the father be restrained and an injunction is granted restraining him from coming within 100 metres of the child’s residence or school or removing the child from his school or any after school care or extra-curricular activity or from a person in whose care the applicant has placed him.
The mother be able to obtain from the school, copies of newsletters, school reports, school photos and any other information normally obtained by parents.
The mother shall not attend any event at the school usually attended by parents unless the applicant agrees in writing which may be by SMS text message or otherwise.
The mother shall not attend the child’s school or any extra-curricular activity except with the agreement with the applicant in writing which may be by SMS text message or otherwise.

IT IS NOTED that publication of this judgment under the pseudonym Harper & Wilson & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 923 of 2015

MS HARPER

Applicant

And

MS WILSON

First Respondent

And

MR WILSON
Second Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This case involves an application for parenting orders in respect of X who is six years old.
The applicant is X’s 26-year-old sister. She seeks final orders that X live with her, that she have sole parental responsibility for him and that he spends time with his mother as agreed between her and the mother. She proposes that X spend no time with his father.
X came into the applicant’s care in May 2015 after an incident where he was allegedly – and I will call it that at this stage – harshly physically disciplined by the mother and he has lived with her ever since.
The applicant is not opposed to X spending time with his mother and she facilitated time occurring at her home as recently as the Sunday just gone. However it is her case that it would not be safe for X to live with his mother or spend unsupervised time with her at the moment given the mother’s lengthy history of drug use including use of ice.
The mother is 47. She has spent supervised time with X in one form or another since May 2015. She seeks final orders that X continue to live with the applicant until she has obtained more permanent housing and demonstrated that she can continue to stay drug free.
She seeks an order that she and the applicant share parental responsibility and that X spends time with her each alternate weekend from Friday to Sunday and for half of the school holidays. The mother also wants to be able to attend school functions and to find out about things like medical appointments and she wants to be able to have telephone communication with X.
The mother does not dispute that she has a long history of illicit drug use, that she began using ice in 2011 and that since 2012 she has been charged with a number of criminal offences arising out of her drug use. It is her case however that she has ceased illicit drug use since spending ten weeks at (omitted) Rehabilitation Centre between November 2016 and 10 January 2017.
The mother acknowledges that she is still facing some criminal charges but says that she is determined to stay drug free. It is her case that given that she is not using drugs at the moment there is no reason why X should not spend unsupervised time with her.
X’s father is Mr Wilson who is 35. He is an illicit drug user who has a 25-page criminal record. His first conviction was in Coonamble Children’s Court when he was 12 and he has spent the majority of his adult life in jail. He was out of jail on parole between September and November 2016 but he reoffended and is back in jail. He has never taken part in these proceedings.
X’s sister has the standing to make an application for parenting orders; pursuant to section 65C(c) of the Family Law Act she is a person who is concerned with the care, welfare and development of the child. She is not a parent but cases like Aldridge & Keaton [1]and Rice & Miller[2] make it clear that while the fact of parenthood is a relevant matter it is simply one matter the court has to take into account in order to determine which parenting proposal is in a child’s best interests.
[1] Aldridge & Keaton (2009)FLC93-421
[2] Rice & Miller (1993)FLC92-415

The evidence

The applicant gave evidence in her case, the first respondent mother gave evidence in hers and I have before me a family report prepared by Ms D, a Regulation 7 family consultant.
All of the witnesses were cross-examined.

Background

The mother has two daughters: Ms Harper, the applicant, who is 26; and Ms I who is 21.
The mother admitted that she had been a cannabis and amphetamine user for at least 20 years and that she used drugs throughout the applicant’s childhood. She alleged however that for a long time she was only a social user and only used drugs outside the home.
The applicant disputed this and there are strong indications in the evidence of the mother minimising things, making excuses and giving very inaccurate evidence. She said that she had no memory of her own childhood and of many things in her recent past. The applicant on the other hand was a straightforward and reliable witness. She has no drug and alcohol issues. She seemed to me very mature and grounded and she has a very forgiving attitude to her mother.
I prefer the applicant’s evidence about what happened during her childhood and she said that she had vivid memories of drug use in the household and of there being a bong in the laundry cupboard and a horrible smell of cannabis in the laundry.
In the family report it is suggested the mother began using amphetamines orally in her late 20s and began using ice in 2011, and that fits with the information the mother gave (omitted) when she went there in late 2016.
The applicant said that her mother subjected her to verbal and physical abuse during her childhood and that she slapped and punched her and pulled her hair. She said that this went on until she was 13 and stood up for herself and then her mother left her alone. I accept her evidence. I found her a reliable witness and not someone prone to gild the lily and say things that were dramatic but possibly untrue.
The applicant’s childhood was not all doom and gloom. She was appropriately dressed and she went to school but it was a tough childhood and she left home at 15 and had her first child when she was 18.
The mother commenced a relationship with X’s father Mr Wilson in 2009 during one of his brief stints out of jail and X was born on (omitted) 2010 when Mr Wilson was back in jail. At this stage Ms I was still at home and she very likely helped her mother with the care of X when he was younger.
The mother’s evidence was that in 2011 or thereabouts she commenced using ice. She had used other drugs up to that point but she only had one drug charge up until then, a possession charge in 2006. After 2011 things changed and the mother now has a number of criminal convictions.
In (omitted) 2015, just prior to X’s fifth birthday, Ms I, who would then have been 19 on my calculation, contacted the applicant on Facebook and told her that the mother had assaulted X. She took X to the home of another relative. A report was made to the Department of Family & Community Services and to the police. X came into the applicant’s care and she filed an application in this court seeking an order for X to live with her.
The mother was very angry about the applicant retaining X and was very abusive to her.
On 20 April the applicant agreed to the mother spending time with X at McDonalds for his birthday. Aided by some male friends the mother took X.
The applicant filed an application in a case seeking a recovery order and on 11 May 2015 an interim order was made that X live with the applicant, that she have sole parental responsibility for him and that the mother spend supervised time with him at a contact centre.
The mother did not immediately hand X over and the recovery order was executed. X has lived with the applicant ever since.
The applicant found herself in a very difficult situation. She has three children of her own who are 8, 6 and 3 and X’s behaviour was challenging when he first came to live with her. Her three children found his presence difficult and kept asking her when X was going home, she received no financial support in caring for him and the assistance she had hoped for from an aunt did not materialise.
However the applicant persevered.
The mother was compliant with the Court orders which allowed her to spend time with X. She spent time with him at (omitted) Children's Contact Centre for almost 12 months until they said they could not do it anymore and after that some visits were organised at (omitted), a more expensive private supervised contact centre.
In August 2016 Ms D conducted interviews for the preparation of a family report. It was clear to her that the applicant was finding the care of X challenging and she formed the view that the applicant felt that X might need to go into foster care.
The applicant says that Ms D misunderstood her and that although she was struggling she wasn’t ready to give up, and she has stuck with caring for X since then and set out in her affidavit the improvements that had occurred over time. She said that X’s behaviour at home had improved and he was fitting in better with the family and sticking to routines, he had made some friends at school and his behaviour at school had also improved.
Things have become a little easier for the applicant in terms of caring for X
The applicant lives in (omitted) with her partner of seven years who has also accepted X into the home which is greatly to his credit. There are no allegations of any drug use, alcohol abuse or family violence in that home.
X is attending (omitted) Public School where he is in Year 1 and he is getting on much better than he was when he first started school in 2016.
The mother has had a number of brushes with the law since X went into the applicant’s care. In 2015 she was charged with frequenting a drug house and in 2016 she came to the attention of the police on a number of occasions to do with possession of drugs or drug paraphernalia or supply of drugs.
In August 2016 the mother was found outside (omitted) library with cash, two mobile phones one of which had messages suggesting drug dealing, a small quantity of cannabis and some ice pipes. She told the police at the time – and this is interesting, given the clean drug tests she has produced, including one at around this time –that she had an ice habit and that the ice pipes were for her own use.
The mother was charged with supply and possession and also with possession of proceeds of crime as a result of sums of cash found in her car. After her appearance in court she was referred to the MERIT program and then to (omitted) Rehabilitation Centre.
The mother commenced at (omitted) in early November 2016 and left on 10 January 2017. She said that she left because she was discharged in other words because she no longer needed to be at the centre. The (omitted) notes do not support this. They suggest that the mother was discharged for disciplinary reasons and that on the previous day she did not attend a psychology appointment, did not attend “group” and did not attend kitchen work therapy. They do not support the mother’s suggestion that she graduated from (omitted) because she did not need to be there anymore.
The mother is living with a friend Ms K in (omitted). She said that she was no longer using drugs and the applicant said in her evidence that her mother seemed well and seemed the best she had ever been. However the mother has to go to court in June 2017 in respect of the outstanding criminal charges. She intends to plead guilty to some of them but not guilty to being in possession of proceeds of crime.
One of the concerns I have about the mother is that there was no evidence in the affidavit she filed yesterday morning that she was currently engaged in any counselling or in a rehabilitation program in relation to drug use. On Monday she said she was doing something at the (omitted) Hospital but there was nothing about that in her affidavit.
Before I move onto X’s best interests I will mention the father Mr Wilson.
The father was convicted of stealing in Coonamble Children’s Court when he was not quite 13 and he has numerous Children’s Court convictions after that. When I was making a note of them I thought that if someone picked up the Crimes Act and flicked through it they would probably find that he has convictions for almost everything in there.
The father’s Children’s Court convictions include convictions for stealing, malicious damage, possessing housebreaking implements, unlawful entry, enter in closed lands, assault, resist arrest, offensive language, assault police, threatening people, intimidation, assault occasioning actual bodily harm, threatening a witness, being in a stolen car, contravening an ADVO and breaching an ADVO, shoplifting and robbery in company.
As an adult he has convictions for larceny, assault with intent to rob (and when I mention these charges, some of them appear on a number of different occasions in his record, so I am not just talking about one offence), robbery in company, offensive language, possessing a prohibited drug, supplying a prohibited drug, aggravated break, enter and steal, assault police and resist arrest, goods in custody, assault occasioning actual bodily harm, stalk intimidate, custody of a knife in a public place (more than once), recklessly causing grievous bodily harm and possessing housebreaking implements and then there are multiple charges on 16 November 2016. He is now again in prison.
In the sentencing remarks made following the father’s recent convictions it was noted that he had spent hardly any of his adult life out of jail. The mother described him as not fit to be in society and she is not wrong. She said as follows in her affidavit:
He has no intention of trying to become a decent member of society, and the rest of his life will more likely be spent in prison, as he has no concept of how to live or behave in the real world, and my son doesn’t need that kind of influence in his life, even if he is his biological father.
I agree wholeheartedly with that but the mother has known the father for seven years and it is concerning that it has taken her seven years to come to that realisation.

X’s best interests

Any orders I make about X must be orders determined by treating his best interests as the paramount consideration and s. 60CC (2) and (3) of the Family Law Act contain the things to which I must have regard in order to determine X’s best interests.
The primary considerations in s. 60CC (2) are the benefit to the child of having a meaningful relationship with both of his parents and the need to protect him from physical or psychological harm as a result of being subjected to or exposed to abuse, neglect or family violence.
The first consideration applies only to parents.
X cannot have a meaningful relationship with his father; that is never going to happen. He could, in certain circumstances, have a meaningful relationship with his mother but not if she continues to use drugs and be involved in a drug culture.
It is preferable that I make orders which will ensure that X continues to have a relationship with his mother because she is the only parent who may at some point be able to have a meaningful relationship with him.
It is important that orders are made which ensure that X is protected from physical or psychological harm as a result of being subjected to or exposed to abuse, neglect or family violence.
There is a serious risk of X being exposed to neglect, abuse and violence, if not family violence, if he is in the care of the mother and she is using ice.
I cannot make a finding, as I will mention later, that the mother assaulted X in April 2015 as that term is defined but there was clearly an incident during which X was struck by the mother which seriously disturbed Ms I so that she felt she had to act and get him out of that house.
I am concerned that X may be at risk of harm from the mother if she is using ice and I am concerned that he may be at risk of neglect in the mother’s care if she is using drugs and is not in a position to focus on him and properly look after him.
The applicant told Ms D, and she used a colourful phrase here, that when X came into her care it was like he was out of the cave. She said that he had toileting issues and did not have social skills and know how to interact with other children and was snatching toys and being rough if not violent.
That was the little boy of five who came into the applicant’s care two years ago and that is the little boy who had been in the mother’s care up to that point in circumstances where the mother had been using ice since almost the time of his birth.

The mother needs to really seriously think about that. The little boy who came into the applicant’s care was a little boy who had in my view been neglected and there is a risk of that occurring again if the mother is using drugs.
The first of the additional considerations in s. 60CC (3) is the views of the child and the weight to be given to those views.
X told Ms D in August 2016 that he wanted to live with his mother. Ms D said that was not surprising. She mentioned in the witness box yesterday that children often love their parents even when their parents have mistreated them or have a lot of difficulties of their own. X loves his mother. Hs preference in August 2016 was to live with her and that might very likely be his preference today if he was asked.
The mother was softly spoken in court. I can understand X bonding with her. I accept that his wish is to live with his mother. However I also take into account that X told Ms D that it was good living with the applicant and her partner.
X is only six, almost seven. I cannot place much weight on his views but his views are something I will have to take into account.
I must consider the nature of the child’s relationship with each of his parents and any other person.
X has a good relationship with his mother in that he was pleased to spend time with her at the family report interviews and said that he would prefer to live with her. Ms D did not however observe a close interaction between the mother and the child. She said as follows:
At no time did the mother leave the couch to directly interact with X, who was drawing at the children's table. After about ten minutes, X approached the mother with some drawings to give her and the mother gave him a kiss and a cuddle and told him she loved him. X did not object when it was time to separate from the mother, other than to say he thought the session would have been longer as it is at (omitted). The mother validated X’s view by glaring at this writer and stating that she thought the session would be longer as well.[3]
[3] Family Report paragraph 83
X has a comfortable relationship with the applicant and her partner and that was also observed at the family report interviews.
The child has no relationship with his father which is a very good thing. He knows his father’s name. He knows the father is Aboriginal. He described him as brown, and the mother said that he recognised his father’s photo, but that is the extent of his knowledge of the father.
I must consider the extent to which each of the child’s parents has sought to be involved in decision making about the child or sought to spend time with the child.
The mother has always wanted to spend time with X. She was regular in attending the (omitted) visits. She recently went to the applicant’s house so she could spend time with X and she also interacted with the applicant’s other children during that visit.
The father has never shown any interest in the child.
I must consider the extent to which each parent has fulfilled their obligations to maintain the child.
The applicant is not receiving any financial assistance to care for X.
I must consider the likely effect of any change in the child’s circumstances.
X is doing well in his sister’s care and has made huge progress in the last two years. I would be seriously concerned about what might happen to him if he went back into the mother’s care and she slipped back into the drug culture and continued to take drugs. The situation might then become irretrievable for the child.
Even unsupervised time could expose the child to risk unless there was very clear evidence that the mother had stopped using drugs and had stopped mixing with people who were involved in the drug culture.
I must consider the practical difficulty and expense of the child spending time with a parent.
X will not be spending any time with his father so that does not come into it, and the mother and the applicant are currently living in the same area. The mother is in (omitted) and the applicant is in (omitted).
I have to consider the capacity of each of the child’s parents and any other person to provide for the needs of the child.
The applicant is 26 and she impressed me in the witness box as being very mature.
The applicant did not want or need what has happened in this case. She had formed a stable relationship of her own. She has three children of her own. She did not want or need this but X has come into her care and she has done an excellent job with him. She has taught him to eat vegetables. She has made sure he is toilet trained. She has liaised with the school. She has arranged for counselling for him. He is becoming socialised. All those things have happened for X since he went into the applicant’s care.
I am satisfied that the applicant is able to provide for the child’s emotional needs in terms of ensuring that if it is appropriate he has a relationship with his mother.
The applicant did not try and take X from his mother because she wanted him to be her child. She took him to the supervised visits in accordance with the court orders. She took him to see the mother at (omitted) and on the Sunday just gone the mother went to the applicant’s home and spent some time with the child there.
When the applicant was asked about her situation during cross-examination she said:
I originally went into this because I wanted my mother to get drug-free and look after my brother and if that happens my job is done.
There is no question of the applicant wanting to take X from the mother. She just wants her brother to have a decent upbringing and become a valuable member of society.
The applicant was asked about whether she thought that the fact that she had her own issues with her mother might impact on her willingness to allow the mother to spend time with X if X lived with her and she said:
I’m a very reasonable person. I don’t allow my own problems to interfere with allowing X to spend time with his mother.
These are not just hollow words; the truth of them is borne out by what has happened since May 2015 in terms of the applicant making sure that X has seen his mother since he came into her care.
I was very impressed with the applicant, and Ms D said in the witness box that she was as well after interviewing her for the family report.
The applicant also said, and this was mature and responsible as well, that she did not want to keep X from the mother and that she thought that, perhaps, she might need to trial X spending a little bit of time with the mother, even though there was an element of risk but that she would always be willing to act if she saw that things were not likely to go well, and I think she is more than capable of doing that.
Regrettably I have very serious concerns about the mother’s parenting capacity.
The mother has a 20 year history of amphetamine and cannabis use and on her own admission she has been using ice since ice since 2011. She was convicted of goods in custody and shoplifting on a couple of different occasions in 2012, shoplifting and goods in custody in 2013 and shoplifting in 2014.
In August 2015 the mother was convicted of being found entering or leaving drug premises, first offence, and on 28 August 2016 she was charged with a number of offences after being found with ice pipes, cannabis and what the police considered an unexplained sum of money outside (omitted) Library.
The mother was also involved in other incidents during 2016 which did not lead to her being charged.
In March 2016 the mother was searched when she went to a jail to visit a prisoner and was found to be in possession of cannabis and 15 ice pipes. There is contradictory evidence in the material about what they were doing in the mother’s possession. When she was first spoken to the mother said that they were hers. She later said that the drugs had been put in her bag by a passenger in her car and she said the same thing during cross-examination where she said that she thought the passenger’s name might be (omitted). She agreed during cross-examination that the ice pipes were hers and said that she had intended to sell them.
No charges were laid against the mother over this incident.
In August 2016 there was the incident outside (omitted) Library which did lead to charges and the police notes about that reveals the extent of what was involved.
According to the police somebody told them they thought the mother might be dealing drugs outside the library. Police attended and searched her car and found ice pipes, several lots of money in different denominations and in different places and two mobile telephones, one of which the police alleged contained evidence that the mother had been supplying drugs.
It is recorded in the notes that the mother told police that she had the ice pipes for her personal use and that they were for her to smoke ice in the coming weeks. She also allegedly told the police that she had an ice habit and gave an estimate of how much that was costing her although the amount is blanked out in the police notes. The police also found cannabis in the car.
In terms of assessing future risk to X if he spends unsupervised time with the mother it is also important to note that the mother told police that she was sharing a house with a friend and the friend’s 9-year-old daughter.
The mother was charged over that incident and intends to plead guilty to all charges except the charge of possessing proceeds of crime.
In September 2016 the police searched the mother’s car after overhearing a telephone conversation she had with Mr Wilson prior to his imminent release from prison in which he asked her to bring him drugs so that he could take them immediately upon his release. They found a small quantity of ice under the dashboard of the mother’s car. The mother said in the witness box that this belonged to someone called (omitted). The mother was not charged on that occasion.
The mother is not someone who is just sitting at home using drugs. She is someone who is involved in a drug culture, who goes to houses police call “drug premises” and who has been – and I am not a criminal court – I am satisfied, on the balance of probabilities has also been dealing in drugs and using drugs – ice – all through 2016.
The mother was asked to do a number of drug tests in 2016 and she did them and they were all clear but for a number of reasons I cannot place weight on the results.
The first is that in two telephone conversations between the mother and people in jail which were recorded in 2016 she spoke of needing to get some clean urine because she was about to have to do a drug test.
The second is that the mother told the police in August 2016 when she was arrested that she was using ice.
The third is that in her affidavit in these proceedings the mother said that she last used ice just before she went into rehab at (omitted).
The clean drug test results do not therefore mean anything and I am satisfied that the mother continued to use ice until she went into (omitted) in November 2016.
There are numerous pieces of evidence which lead me to be satisfied on the balance of probabilities that the mother has been selling drugs. She has been found on more than one occasion in possession of a large quantity of sealable bags. She made admissions to the police in August 2016 and evidence was found on one of the phones in her possession that she had been selling drugs and there is an interesting little conversation that she had with somebody when she first went into (omitted).
The (omitted) notes contain the following:
Mother has two storage sheds costing $500 a month. Has paid up to 27 December. States needs these. Still has $1,000.00. Can use to help pay next payment and said can also use money owing to her from her drug dealing customers. Discussed this with her and the reality of where trying to collect this will get her.
The mother said she had not used drugs since she left (omitted) on 10 January 2017 and the applicant in the witness box said that her mother was looking the best she had ever seen her which is a very positive thing.
I certainly hope – and I am sure her children hope this very strongly –that things have turned a corner for the mother and that she does not use drugs again but it is extremely early days and nobody can be certain, given the mother’s lengthy history, her involvement in a drug culture and the fact that she is still living in (omitted) and possibly mixing with the same people she had been mixing with, that she will be able to stay off drugs.
The mother asked the court to believe that she was motivated to do so because she wanted X returned to her care but X has been in the applicant’s care since May 2015 and after he went into her care the mother committed numerous drug offences. She did not stop using drugs until she went into (omitted) in November 2016.
I hope that the mother is motivated to stay off drugs and I hope she succeeds but it is very early days.
The mother is currently sharing a house with someone called (omitted). She said that she hoped to get her own place but whether that will be easy for her is an unknown. She was sharing with someone in August 2016 and it may not be easy for her to obtain her own housing.
The mother’s attitude to X spending time with the father is concerning. She says now that she will not allow it to happen and that she can see that it would be a bad thing but she has known the father, who has an incredibly lengthy criminal record and is an intravenous ice user, since 2009, and in August 2016 she told Ms D that she did not see the father as being a risk to X. She said that she hoped X could rekindle his relationship with his father, that she intended to rekindle it if X was placed in her care and that she intended, when X and the father were familiar with each other, to allow X to spend unsupervised time with the father.
The mother may genuinely understand now that this would be incredibly destructive for X but I have some concern about how the mother truly views the father.
One of the problems in this case is that just about the only guide anyone is going to reliably have about how the mother is going and whether she is staying off drugs is her appearance and whether she comes to the notice of the police. I say that because it is abundantly clear, as the Independent Children’s Lawyer pointed out, that in this particular case the fact that the mother produces clean drug test results will not mean anything at all.
My concern about the mother’s future is that she is not engaged in any sort of counselling in relation to drug use at the moment. She said on Monday that she was seeing someone at the (omitted) but there was nothing about that in the affidavit she subsequently filed and unless the mother has support and counselling it is difficult to see how she is going to be able extricate herself from the situation she is in.
I have grave concerns about the mother’s parenting capacity and concerns and about the fact that there is really nothing anyone can do to easily get evidence about how things are going for the mother.
I must consider the child’s maturity, sex and background.
X is almost 7. He is dependent on adults to look after him.
X is an Aboriginal child because his father is Aboriginal and it is important that this is recognised and that on his school enrolment form for example that he is put down as an Aboriginal child.
However as the applicant’s counsel pointed out this is not a case where there was any evidence that the father was immersed in Aboriginal culture or wanted his son to be introduced to Aboriginal culture. Apart from making sure that X is noted as an Aboriginal child on school and medical records there is nothing more that can really be done in that respect.
I must consider the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents.
The attitude by both of them can only be described as poor.
I must consider any issues of family violence.
The mother was charged with assaulting X in April 2015. The charge was dropped and I cannot make any findings about exactly what occurred. Ms I, who does know, did not give evidence. I am not critical of her for that. It would be very hard to come to this court and give evidence against your mother. I am not unhappy about the fact that Ms I did not give evidence but it means that I cannot make any findings about what occurred in April 2015.
However while I cannot make a finding about exactly what happened the evidence I do have about the incident concerns me.
I must consider whether there are any family violence orders but there are none.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
In a case like this there are no such orders.
I do not consider there is any other relevant matter that I need to discuss.

Parental responsibility

This is not a case in which I could remotely consider making an order that the mother and the father share parental responsibility. I have to consider whether the applicant should have it solely or share it with the mother.
The applicant sought sole parental responsibility and the Independent Children’s Lawyer supported that outcome. The mother sought shared parental responsibility with her daughter.
The applicant’s counsel frankly acknowledged that a difficulty could arise if I made an order that the applicant have sole parental responsibility and at some point the child transitioned back to the mother’s care. From that perspective an order for shared parental responsibility would be preferable because that could remain in place seamlessly even if the child commenced to live substantially with his mother.
However whether the child is likely to resume living substantially with his mother is extremely uncertain and the mother conceded that initially I could only make an order that the child continue to live with the applicant.
The mother has a very long road to go to show that she is not likely to relapse into drug use. There is a considerable risk that she will and if she does and there is an order in place for shared parental responsibility that could also cause difficulties for X. There might be a situation where decisions needed to be made and the applicant and the mother are not able to communicate with each other.
I consider that it would be in X’s best interests at the moment to make an order that the applicant have sole parental responsibility for him.
If the mother does become well I am satisfied that the applicant will not stand in the way of X transitioning to her care if that is appropriate and if that happens I cannot see why an order could not be made by consent about parental responsibility if that was necessary.
However at the moment X is almost seven. He may need counselling. He may need some extra assistance at school. He may need medical treatment. Decisions may need to be made about major long term matters and somebody needs to be able to make them.
The applicant is a stable, mature person who is focused on X’s needs and will make good decisions for him. I cannot be satisfied that the mother is necessarily going to stay off drugs. I hope she does but I cannot be sure about it. The appropriate order at the moment is for the applicant to have sole parental responsibility but I am going to make an order that she notify the mother in writing, and that can be by text message, if she makes a major long-term decision about the child.

Conclusion

X loves his mother and if he had his wish he would live with her.
I am sure the mother loves X and it is important for a child to know that they are loved by a parent especially in a case like this where the child really only has one available parent.
However I cannot make an order that X lives with his mother at the moment, and not just because of her housing. It is not a case of saying to the mother “If you get a house we can consider X living with you”. The matter is nowhere near that simple.

X could be at risk if he returned to live with the mother prematurely. There is a considerable risk that the mother may relapse into drug use and this is not a case where the mother has been sitting quietly at home using drugs. All the evidence suggests that she has been part of a drug culture, a culture where she is around other people who use drugs. She has been supplying drugs. There is no way that I could make orders which might result in X living in that situation and it is far too early to say that the mother will remain free of drug use and has removed herself from the drug culture.
X is extremely lucky that his sister took him in. When he began living with her he had just turned five. He had extreme difficulty with basic tasks and socialisation. He has made huge strides and if he returns to live with the mother and she resumes using drugs he may end up like his father: before he is 13 years old starting to appear in the Children’s Court. That is one of X’s future roads, and if anything can be done to prevent that happening it needs to be done.
I strongly hope the mother does remain drug-free but there is an enormous risk that she may relapse.
The mother has a lengthy history of drug use. She went from using cannabis to amphetamines and then to methamphetamines. Things have gradually got worse rather than better for her. She is not having any counselling or receiving any assistance at the moment to help her remain drug free and she is facing further criminal charges. She was using ice as recently as November 2016. I just cannot take the risk of making an order at the moment that X even spend unsupervised time with the mother unless the applicant decides, from seeing her mother and talking to her mother, that she is willing to take that risk, because I am satisfied that the applicant will be willing to test the situation if she thinks it is appropriate to do so but will also be willing to step straight in and keep X safe.
I am not even prepared to do what the mother proposed and make an order for unsupervised time on weekends and I am certainly not prepared to consider changing the child’s residence.
I feel enormous sympathy for the applicant. She has taken on a huge burden at the age of 26 with three children of her own, but she is X’s only hope for the future at the moment, the only hope he has of becoming a productive, valued member of society instead of going down the same road as his father. I hope that other members of her family support her and that everyone stays strong for X’s sake.

I certify that the preceding one hundred and forty nine (149) paragraphs are a true copy of the reasons for judgment of Judge Terry.

Date: 16 March 2017

[2017] FCCA 469

1 March 2017

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation

Legal Concepts

Injunction

Remedies