Hayes and Ackerman

[2018] FCCA 1086

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAYES & ACKERMAN [2018] FCCA 1086

Catchwords:
FAMILY LAW – Parenting – graduated increase in supervised time – where there is drug use – where there is family violence – high level conflict and dysfunction.

Legislation:

Family Law Act 1975 (Cth) ss.60, 60CC, 60CC(2), 60CC(3), 65DAA.

Applicant: MR HAYES

Respondent: MS ACKERMAN

File Number: DNC 429 of 2016

Judgment of: Judge Young

Hearing dates: 16 March 2018 & 10 April 2018

Date of Last Submission: 12 April 2019

Delivered at: Darwin

Delivered on: 12 April 2018

REPRESENTATION

Counsel for the Applicant: Ms Farmer

Solicitors for the Applicant: Withnalls Lawyers

The Respondent: In person

Solicitors for the Independent Children’s Lawyer: Terrill & Associates

ORDERS

1. That all previous Orders be discharged.

2. That the parties have equal shared parenting responsibility for [X] born 2013 (“the child”).

3. That the child live with the mother.

4. That commencing Saturday 14 April 2018 spend time with the Father as follows:

   (a)From 9:00am to 3:00pm each alternative Saturday for a period of 16 weeks;

   (b)From 9:00am to 5:00pm each alternative Saturday for a further period of 16 weeks;

   (c)That from the commencement of the 2019 school year, the Father spend time from after school Friday to the commencement of school Monday morning or Tuesday morning if Monday is a Public Holiday, each alternate week during the school term; and

   (d)From the end of Term 1 2019 including the Term 1 school holidays for one half of the school holidays, being the first half in each year, with the child to be collected from school by the Father at the commencement of the holidays and be returned to the Mother at (omitted social service) or some other place as agreed between the parties in writing at the end of his time with the child.

5. That school holidays commence after school on the last day of gazetted school term and recommence on the first day of the gazetted school term.

6. That all changeovers for time spent during 2018 occur at (omitted social service), (Town A) at times available by that service.

7. That the Father is to undertake a drug urine analysis test at his cost in the 24 hours prior to each period of time he is to spend with the child and provide a copy of the results to the Mother on each visit until the start of 2019.

8. That forthwith, the Father attend counselling at (omitted counselling service) or some other recognised counselling service in relation to his drug taking and keep attending that service until the counsellors advise him that he no longer needs to attend.

9. That in the event the Father proposes to cease the counselling, he shall advise the Independent Children's Lawyer and IT IS NOTED that the Father consents to the Independent Children's Lawyer communicating with the Father’s counsellor to make enquiries regarding the Father’s attendance at counselling and any recommendation made by the counsellor at that time.

10. That each parent shall immediately advise the other parent of any medical/health emergencies involving the child while the child is in their care including providing the other parent with the contact details of the treating medical/health practitioner.

11. That each parent be entitled to obtain directly from any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the health and welfare of the child.

12. The each parent shall keep the other parent informed of their current telephone numbers, residential address and email address any changes thereto with 48 hours of such change.

13. That each parent be permitted to take the child on a holidays interstate during the time that the child is spending with that parent and during the school holiday period, provided that the travelling parent gives the non-travelling parent written notice not less than 14 days’ prior to departure together with an itinerary containing the dates of departure and return, and the address and telephone number of the place where the child shall be staying during the holiday.

14. That each parent be entitled to obtain directly from any school, education or extra-curricular provider attended by the child, copies of any reports, notices or other relevant verbal or written advice relating to the child.

15. That, without admissions as to the need, each party be restrained by injunction and an injunction issue restraining each party from:

    (a)Denigrating the other parent or members of the other parents’ family to the child or in the child’s hearing or presence, or allowing anybody else to do so;

    (b)Consuming any illicit substances either during the time that the child is with them or 24 hours prior to the child spending time with them nor allow anyone else to consume or be under the influence of illicit substances when the child is with them;

    (c)Being under the influence of excessive alcohol or illicit drugs/s while the child is in their respective care;

    (d)Allowing the child to remain in the presence of any other person who is under the influence of excessive alcohol;

    (e)Exposing the child to abuse (including verbal abuse) or family violence, and that each party will take all measures necessary to remove the child form an incident of family violence should such circumstances arise; and

    (f)Discussing with or exposing the child to the particulars of the family law proceedings.

16. That all extant applications be dismissed.

17. The ICL will be discharged one she is satisfied that the father has satisfactorily completed his counselling. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

No. DNC 429 of 2016

MR HAYES

Applicant

And

MS ACKERMAN

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amendable to being read.

2. This is a parenting application concerning a child, [X], who is four years old.  The parties separated in March 2016.  The child did not spend time with the father from separation until orders for supervised time at (omitted counselling service) were made in May 2017.  The mother’s position is that the child should spend no time with the father.  The father seeks orders for a graduated increase in unsupervised time, leading to overnight time on every second weekend in about a year’s time. 

3. The mother has five other children from another relationship who are older than [X].  The father has three other children, two of whom are adults, from other relationships.  The relationship of the parties was marked by drug use and family violence. There has been extensive involvement of Territory Families with this family, including substantiated concerns of physical and emotional neglect and abuse. 

4. Those conclusions by Territory Families seem to have a proper foundation. Territory Families found that the mother’s children had been exposed to family violence between the mother and the father, and between the mother and her previous partner, Mr T. The mother’s drug use of cannabis and methamphetamine has also been substantiated, as well as similar drug use by the father. There is evidence that the mother has permitted her two older boys, now about 17 and 15, to use cannabis in the home.  The mother herself told me that she has used cannabis from about the age of 15 and continued to use cannabis regularly until relevantly recently. She also admitted using methamphetamine during the relationship with the father. 

5. The mother was charged with and found guilty of possessing cannabis in 2017 and she was dealt with for that along with a charge of aggravated assault.  She returned a positive urinalysis test for cannabis in March 2017.  The mother, however, says that her drug use has ceased.  While there is no evidence of any current drug use by the mother, she has been a drug user for many years and I consider she is likely to have been drug dependent to some degree. I am far from satisfied that she has completely overcome any dependency.  I hope for her sake, however, that she has.

6. The mother’s monitoring and supervision by Territory Families has ceased, so to that extent – and as I understand it from a letter attached to one of the mother’s affidavits, that ceased last year, so to that extent Territory Families are satisfied that she is back on a more stable path, if I can put it that way. 

7. The father admitted methamphetamine use during the relationship, although he says he has ceased.  He admits to continued regular use of cannabis. I suspect from his admitted history of drug use and continued regular use of cannabis that he is dependent on cannabis to some degree. The father has agreed to seek counselling and I think it is important that he tries to reduce or cease his cannabis use, not only for his own health but because drug use means he is less emotionally available for a relationship with his son. 

8. The mother is opposed to the child spending any time with the father, as I mentioned. She says that she does not believe the father has ceased his methamphetamine use.  The mother, in submissions, at least, also made or renewed an allegation that the father had sexually assaulted one of her other children, [C], during the relationship in 2015.  [C] would have been about four or five years old at the time.

9. The details of the allegation are vague and are contained in the Territory Families’ file notes.  The child was reported by the mother to have blood in her underwear after returning from a shopping trip with the father.  This allegation was investigated by the Northern Territory Child Abuse Taskforce, or CAT for short. 

10. The Territory Families’ file records the relevant CAT police officer as saying that the CAT team had investigated the allegations and no disclosures were made by the child.  On 24 August 2015 the mother was interviewed by a Territory Families officer who reported her as admitting that she had fabricated the claim.  She said she wished to hurt the father.

11. As I mentioned, the mother renewed her allegations in the trial, at least in submissions, although the allegation was not the subject of evidence in her filed trial affidavit or her affidavit filed on 30 March 2017.  In submissions she told me in response to a question from me about the Territory Families’ record of her admission of fabricating the allegation that she was forced to retract her allegations falsely because she was afraid of the father during the relationship.

12. I do not consider the mother to be a reliable witness in relation to this issue in particular and generally.  I find that her assertion that what she told the Territory Families officer was a result of coercion is untrue. 

13. The mother attached material to her affidavit of 30 March 2017 which was a judgment of the Local Court judge where that Local Court judge extended time for a woman to bring a crime victims assistance application in 2002 against the father.

14. The alleged events involved a sexual assault on a Ms R when she was a teenager.  Time was extended but there is no evidence of the result of that application.  From my reading of the Local Court judge’s reasons, it appears that these events were said to have occurred involving the father from 1985 to 1989 when, on my calculation, he was aged about 13 to 17.  The alleged victim would then have been about 10 to 14 years old. 

15. There is no record of any police proceedings or findings before me.  These are not matters I can, therefore, make findings about.  At this stage, there is no evidence that the father has committed any offence of a sexual nature since then or that he has been investigated by the police following the mother’s fabricated complaint in 2015. 

16. The mother also alleged that the father attempted to hang himself in 2014 in front of her and the children.  The father, surprisingly, did not deal with that allegation in his trial affidavit.  In cross-examination by the independent children's lawyer he largely denied this event but seemed to concede that a cord was used and a threat made.  He admitted attending hospital afterwards and attending counselling, including drug counselling as a result of this episode.  He also admitted threatening suicide on another occasion.

17. This is a concerning issue.  There is no evidence from any person treating or counselling the father and I am left with a question mark about whether or not these matters are entirely resolved.  The father’s general response in cross-examination was that these matters are raised in the context of a dysfunctional relationship marked by serious drug use, including methamphetamine use. 

18. I am certainly satisfied that there was a high level of conflict and dysfunction and drug use, including methamphetamine use, by the parties during their relationship.  There is no evidence of the father having any mental health problems since the separation from the mother in March 2016. He has not tested positive for methamphetamine, although he says that he continues to use cannabis. 

19. I should also point out that the father denied any suicide threat in his interview with the family consultant.  He said, however, to the family consultant, that he was well and happy then to submit to a psychological assessment.  I raised this issue, in particular, with the independent children's lawyer in submissions and I will return to this in a moment.  But I should say something more about the family report. 

20. The family report at paragraph 48 describes the relationship in this way:

    This relationship is characterised by endemic violence, mutual blaming and finger pointing, with neither parent willing to accept responsibility for their participation in the dysfunction.  Whilst Mr Hayes does marginally acknowledge his use of verbal and physical aggression, he limits his acknowledgment of the violence by blaming Ms Ackerman for provoking him and for her use of ice.  Ms Ackerman entirely blames Mr Hayes for the violence in the relationship and for her use of drugs.  Similarly, Mr Hayes blames Ms Ackerman for his use of drugs. 

21. And at paragraph 54:

    Regarding the nature of the alleged domestic violence between the pair, the writer has formed the opinion that it primarily was “conflict instigated” abuse, commonly occurring where couples of limited problem solving skills and respond to conflict with angry outbursts and insults.  This type of behaviour seems often to be associated with a chaotic drug affected lifestyle. 

22. I agree entirely with those observations.  There is little doubt that the children in this household have been exposed to family violence.  The family consultant’s observations of [X] were that initially he exhibited some signs of anxiety with the father but then settled to play with him with “much enthusiasm”. 

23. The child was observed with the mother also and his siblings and he family consultant observed that [X] was the object of much physical affection and patience by all, including the mother.  The family consultant noted, however, that the child demonstrated an anxious attachment to the mother. 

24. The family consultant’s evaluation as set out at paragraph 77 is as follows:

    The writer observed both parents oscillating between denying allegations, briefly acknowledging the allegation, and then denying or minimising again. 

    This manner of flighting and evasive response led the writer to ponder the parents’ general ability to engage in an honest discussion about the issues.  For example, Mr Hayes’ and Ms Ackerman’s apparent blaming of the other for the use of ‘ice’ leaves doubt in the writer’s mind that they were able to take personal responsibility for their own actions.  The parents use of ‘ice’ appears to be a central theme in the dysfunction and demise of their relationship and a cause of risk to the child.  The father states that he has been ordered to undertake only one drug urinalysis during this process, indicating that he is keen to undertake further drug testing to prove that he is no longer using methamphetamines.  The mother claims to be drug-free, saying that she has had to undertake at least 10 random urinalysis tests ordered by the Department of Families. 

25. Again those observations were strongly borne out by the evidence. 

26. The family consultant also expressed concern about the extent of the intervention by Territory Families with the mother and wondered if the mother had made complete disclosure about that.  Part of the Territory Families file was attached to an affidavit of the father and appears to show cessation of involvement by Territory Families in 2017 after an investigation concerning cannabis use by the mother’s teenage sons at home.  Again – judging by the letter dated 2017 attached to the mother’s affidavit – there does not appear to be any evidence of any current investigation by Territory Families and, as I have mentioned, the evidence appears to be that the monitoring of the mother and her family or her children, rather, has ceased. 

27. The family consultant at paragraph 83 noted the child’s apparent ambivalence in relation to spending time with his father and his separation anxiety in relation to his mother.  The family consultant expressed the opinion that these observations may be explained, possibly, by the exposure of the child to family violence or as a response to the mother’s disparagement and negative remarks made about the father to the child.  It was also observed, that at the time of the observation, the child had spent little, if any, time with the father over the 18 months preceding the assessment.  The family consultant ultimately recommended that the child live with the mother and spend time with the father and that there be an increase in time with the father. 

28. There is another piece of independent evidence which I have found useful.  Since May of 2017, when I made orders for the child to spend supervised time with the father at (omitted social service), there have been notes of the observations of the child’s time with the father for each and every visit.  The visits were for approximately two hours and approximately every two weeks.  Those notes are unexceptional and show that the child is comfortable with the father and enjoyed playing with his father.  That appeared to be the case on each of the visits, really supporting the observation of the family consultant that during the observation, after some initial anxiety, the child played with the father with much enthusiasm.  There was no evidence in the notes made by (omitted social service) of any continuing anxiety of the child in the company of his father. 

29. As mentioned, the mother opposes the child spending any time with the father.  The father adopted the proposal of the independent children's lawyer for a graduated increase in the child’s time with the father, building up to unsupervised daytime and then overnights in about a year’s time. 

30. As I mentioned, I raised with the independent children's lawyer the issue of the past suicide threat or attempt and I asked the independent children's lawyer in particular, though I heard submissions from the parties as well about this point, whether there ought to be a psychological assessment of the father prior to the child spending any overnight time with him.  The independent children's lawyer made an unequivocal submission that this was not necessary.  She said that the context of the suicide threats was the dysfunctional, chaotic, drug-fuelled relationship between the parents and that since their separation there has been no evidence of any similar conduct by the father and no evidence of psychological disturbance. He remains in steady employment.  There has been no report of any involvement with the police or any other authorities. 

1. The father in the witness box did not appear to me to demonstrate anything suggestive of mental ill-health or psychological disturbance.  He did, in my view, exhibit a certain slowness of reaction which may well be explained by regular cannabis use but beyond that he appeared to be an emotionally and psychological stable man, able to respond appropriately for the most part to the questions put to him, particularly by the ICL, and to demonstrate focus on and concern with the welfare of [X]. 

2. The other factor is that in the orders proposed by the ICL the father is to continue to undertake drug-testing for a period, until the beginning of 2019, which is going to be some eight or nine months away.  The father is also to attend counselling at (omitted) which is a drug and alcohol-counselling service, or some other recognised counselling service, until his counsellors advise him he no longer needs to attend.  I think that those matters are an appropriate safety net.  However, I think it is appropriate that the independent children's lawyer, who I do not propose to release for a period, be directed to engage or at least inquire of the father’s (omitted) counsellor whether he has made satisfactory progress before the father ceases his attendance. 

   RECORDED  :  NOT TRANSCRIBED

3. I will note that the father has indicated that he will consent to Ms Terrill being able to make a telephone inquiry – or however she wishes to do it – of his counsellor.  Given those matters, after some reservation, I have decided that it is not necessary to make an order for the father to be psychologically assessed. 

4. The best interests of a child under the Family Law Act are determined by having regard to the legislative pathway set out in the Act, in particular section 60CC and section 65 and section 65DAA. The primary considerations are set out in section 60CC, subsection (2), and concern the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

5. In this case I am satisfied that it is in [X]’s interest to have a relationship with his father and a meaningful relationship with his father and I am satisfied that that can only be achieved by [X] spending regular time with his father and, as he increases in age, including overnight time with his father. 

6. The issue of protecting the child from risk of abuse, neglect or family violence which has been a central theme in much of the evidence is, I am satisfied, removed, because these parties no longer spend any time with each other or communicate with each other.  There has been no evidence of the father, at least, exposing the child to abuse, neglect or family violence since separation.  So I am satisfied that the need to protect the child under subsection (2)(b) will be satisfied by the orders I propose to make. 

7. The additional considerations set out in section 60CC(3) are as follows. The views of the child: the child is very young and has not expressed any views. The nature of the relationship with the child with each of the child’s parents – relevantly: there has been evidence about that, particularly from the family consultant. There is no doubt that [X] is strongly attached to his mother and, it would appear, close to his other siblings, older siblings as well. There is no question that [X] should continue to live with his mother and his other siblings.

8. The nature of [X]’s relationship with his father has been more problematic.  It is clear that for a period of 18 months [X] saw little or nothing of his father and it was only after the intervention of the court that a regime was put in place for supervised time and various assessments were made.  Those assessments, as I have mentioned, indicate that the father, despite his history of methamphetamine use and his current cannabis use, is strongly focussed on [X] and all the independent evidence suggests that he and [X] have a strong and developing relationship, in particular, that [X] is comfortable and confident in his father’s company.  That being said, there are obviously real issues about the nature of the relationship of the child with both parents.

9. Consideration (c) relates to the extent to which the parents have taken or failed to take the opportunity to participate in major long-term decisions in relation to spending time with the child and communicating with the child.  As I have described, these areas have been very problematic with these parties and they are unable to communicate in a constructive way at all and there seems to be no real indication that that will change. 

10. That is a factor that might well have some bearing on the question of parental responsibility and is likely to be an impediment to communication about major long-term issues. However, I am satisfied that given my conclusion that it is in [X]’s best interest that he have an opportunity to develop a meaningful relationship with this father, I consider that in relation to major long-term issues, these parties, even if it is communicating indirectly, should be given the opportunity to at least express their views about those matters to each other.

11. Consideration (ca), the extent to which the parents have fulfilled or failed to fulfil the parents’ obligations to maintain the child. 

    RECORDED   :   NOT TRANSCRIBED

12. The evidence in this case was that the mother has not sought a child support assessment, apparently on the basis of an exception in the Child Support (Assessment) Act relating to the existence of family violence. The father said that if there was an assessment he would be happy to pay child support but, he says, in the absence of an assessment he has not taken any steps in that direction. Consideration (d), the likely effect of any changes in the child’s circumstances: there will be no dramatic change in circumstances although the orders that I propose to make will see an increase in the child’s time with the applicant.

13. Consideration (e) does not appear to be a matter of real issue in this case. Consideration (f), the capacity of each of the child’s parents in particular has been an issue as I have already adverted to and a very serious issue with some very substantial and well-founded doubts about the capacities of each of these parents.  Nevertheless, despite extensive intervention by Territory Families with this family there is no current intervention or monitoring occurring and it follows that whatever inadequacies these parents have they are the ones responsible for ensuring this child’s welfare from here on. 

14. Consideration (g), the maturity, sex, lifestyle, etcetera, of the child and each of the child’s parents. I do not propose to say anything else about that, although I think that it has been covered in earlier remarks. Consideration (h), the parents of the child are Aboriginal persons and the child is an Aboriginal child. However, there has been no evidence about that as a particular issue and I do not propose to make any further remarks about that. Consideration (i), the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents. Again, I have made remarks about that which, certainly historically, reflect very poorly on the parents’ attitude to the responsibilities of parenthood. Hopefully there will be some improvements in the area.

15. Consideration (j), any family violence involving the child or a member of the child’s family.  There is an extensive history of family violence and including interventions by Territory Families which substantiated allegations of emotional harm and neglect based on the exposure, as I understand it, by both parties of the child to family violence.  Again, there is no evidence that that is a continuing problem or has been a problem for the past two years or thereabouts since separation. 

    RECORDED   :   NOT TRANSCRIBED

16. There has been an earlier family violence order against the father.  That family violence order expired in April last year.  There is, as I understand it, no existing order.  The circumstances of the order in which that order was made relate to the dysfunctional relationship between the parents at the time they were living together and, as the family consultant pointed out, the family violence appears to have occurred in the context of that dysfunctional relationship and there is no evidence of any continuing family violence between these parties. 

17. Taking into account all those matters, I propose to make the orders sought by the ICL, orders that were also sought in identical terms by the father.  There will be orders in terms of the draft order proposed by the ICL with some slight changes. 

    RECORDED   :   NOT TRANSCRIBED

18. The orders that I propose require me to consider section 65DAA and I should make some observations about that. I am satisfied that, notwithstanding the order for equal shared parental responsibility, it is not appropriate in this case to make an order for equal time given the child’s age and the history of conflict between the parties. In relation to subsection 65DAA (2), substantial and significant time, these orders over time will provide for that, with the exception of days of particular significance.

19. I am not satisfied, given the level of hostility and conflict between the parents, that that is something that can be easily managed and I do not propose to make those orders. 

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 2 May 2018