Hedditch and Fowler
[2014] FCCA 1416
•4 July 2014
FEDERAL Circuit COURT OF AUSTRALIA
| HEDDITCH & FOWLER | [2014] FCCA 1416 |
| Catchwords: FAMILY LAW – Parenting – residence dispute – parties’ relationship marked by parties’ illicit substances abuse, mother’s mental health issues and family violence – child has lived with father since separation two years ago – child spends supervised time with mother – mother has a history of substance abuse and mental health issues which are now being addressed – father does not accept mother is addressing her drug and mental health issues – father has rigid and aggressive personality and has been convicted of breaches of the intervention orders in mother’s favour – father unable to shield child from his antipathy towards the mother – HELD – child live with the mother and spend time with the father. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA |
| Cases cited: AMS v AIF (1999) 199 CLR 160 U & U (2002) 211 CLR 238 Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346 |
| Applicant: | MS HEDDITCH |
| Respondent: | MR FOWLER |
| File Number: | DGC 865 of 2012 |
| Judgment of: | Judge Bender |
| Hearing dates: | 12– 14 March 2014, 18 – 20 March 2014, 4 April 2014 |
| Date of Last Submission: | 4 April 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 4 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kanarev |
| Solicitors for the Applicant: | Robin Harrison & Associates |
| Counsel for the Respondent: | Unrepresented |
| Solicitors for the Respondent: | Unrepresented |
| Counsel for the Independent Children’s Lawyer: | Ms Glaister |
| Solicitors for the Independent Children’s Lawyer: | Robert Halliday & Associates |
ORDERS
(1) All previous parenting orders be discharged.
(2) The mother have sole parental responsibility for decisions in relation to the education and health care of the child of the relationship [X] born [in] 2009 (“[X]”).
(3) [X] live with the mother.
(4) [X] spend time and communicate with the father as follows:
a.(a) From 4.00pm Friday to 4.30pm Saturday each week commencing 11 July 2014;
b.(b) For one week in the third term school holidays as agreed between the parties and failing agreement the first week from 4.00pm Friday the last day of term to 4.30pm the middle Saturday;
c.(c) For two weeks in the long summer vacation 2014/2015 as agreed between the parties and failing agreement as nominated by the father in writing to the mother no later than 30 November 2014.
Upon [X] commencing school in 2015:
a.(d) Each alternate weekend after school Friday to before school Monday commencing the first weekend of school term and each alternate weekend thereafter;
b.(e) From after school Thursday to before school Friday commencing the second Thursday of school term and each alternate week thereafter;
c.(f) For half of all school term holidays as agreed between the parties and failing agreement for the first half in odd numbered years from after school the last Friday of term to 4.30pm the middle Saturday and the second half in even numbered years from 4.30pm the middle Saturday to 4.30pm the last Sunday;
d.(g) For half of the long summer vacation by agreement and failing agreement the first half in odd numbered years commencing after school on the last day of the school year to 4.30pm the middle day of the holidays and the second half in even numbered years from 4.30pm the middle day of the holidays until 4.30pm on the last day of holidays;
e.(h) As otherwise agreed between the parties.
Special Occasions:
a.(i) If [X] is in the mother’s care on [X]’s, the father’s, [Y] or [Z]’s birthday from after school to 7.00pm on a school day and from 2.00pm to 7.00pm if on a weekend save than in respect to [Y] and [Z]’s birthdays such time is subject to them being in the father’s care at those times;
b.(j) From 4.30pm on the Saturday preceding Father’s Day to 4.30pm Father’s Day if not otherwise with the father;
c.(k) From 3.00pm Christmas Day to 3.00pm Boxing Day 2014 and each alternate year thereafter;
d.(l) From 3.00pm Christmas Eve to 3.00pm Christmas Day 2015 and each alternate year thereafter.
e.(5) The father shall communicate with [X] each Monday and Wednesday between 5.00pm and 6.00pm with the father to ring the mother’s mobile number.
f.(6) When [X] is spending holiday time with the father the mother shall communicate with [X] each Monday and Wednesday between 5.00pm and 6.00pm with the mother to ring the father’s mobile number.
g.(7) [X]’s time with the father pursuant to these orders shall be suspended as follows:
h.(a) In the event [X] is with the father on [X] or the mother’s birthday, from after school to 7.00pm on a school day and from 2.00pm to 7.00pm on a weekend day;
i.(b) From 4.30pm the Saturday preceding Mother’s Day to 4.30pm Mother’s Day;
j.(c) From 3.00pm Christmas Eve to 3.00pm Christmas Day 2014 and each alternate year thereafter;
k.(d) From 3.00pm Christmas Day to 3.00pm Boxing Day 2015 and each alternate year thereafter.
l.(8) [X]’s time with the father pursuant to order 4(a), 4(d) and 4(e) herein shall be suspended during all school holidays.
m.(9) Changeovers for the time [X] spends with the father shall take place where possible at [X]’s child care centre in 2014 and thereafter at [X]’s school and otherwise at [omitted] police station.
n.(10) The mother and [X] shall reside with the maternal grandmother for no less than two years from the making of this order, although this order does not prevent the mother from taking [X] on holidays or staying with [X] other than at the residence of the maternal grandmother from time to time.
o.(11) The mother and father shall keep each other advised at all times of their current address and contact telephone numbers.
p.(12) The mother and father be and are hereby restrained from:
q.(a) Discussing these proceedings with [X] or within her hearing;
r.(b) Showing [X] any Court or legal documents or allowing her to access same; and/or
s.(c) Denigrating the other party or their family within the hearing or presence of [X] or allowing any other person to do so.
t.(13) The mother shall do all acts and things necessary to authorise:
u.(a) Any kindergarten or school that [X] attends to communicate with the father and to provide to the father at the father’s expense copies of all reports, school photograph order forms, newsletters, flyers, schedules, written communications and notices including but not limited to parent/teacher interviews, school concerts, speech nights and sporting activities simultaneously with same being issued to the mother; and
v.(b) [X]’s treating medical and health professionals to communicate with the father in relation to [X]’s health and the father shall be able to attend upon these health professionals.
w.(14) Each party shall advise the other of any serious illness or injury suffered by [X] as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
(15) The father shall be at liberty to attend [X]’s childcare facility, kindergarten or school and to attend events organised for parent participation including, but not limited to concerts and sports days, parent teacher interviews, classroom or school based participation auspiced by the school but the father shall not otherwise visit [X] at childcare or at school during normal class time.
y.(16) The mother shall remain engaged in treatment with Mr C or his nominee for 12 months from the date of this order and shall authorise Mr C or his nominee to contact the Independent Children’s Lawyer in the event the mother fails to engage in the recommended treatment.
z.(17) For 12 months following the making of this order the mother and the father each undertake supervised urine drug screens within 48 hours of a written request to do so received from the Independent Children’s Lawyer, noting that the Independent Children’s Lawyer will not make more than five requests during the period. The parents shall provide the results of such tests to the Independent Children’s Lawyer and the other parent as soon as practicable after such testing and in the event either party fails to undertake a drug screen or returns a screen positive for illicit substances, the Independent Children’s Lawyer shall immediately contact the Chambers of Judge Bender seeking to have the matter relisted.
aa.(18) For the purposes of order 17 herein, the parties shall keep the Independent Children’s Lawyer advised of their current residential address and telephone contact numbers at all times.
bb.(19) The order for the appointment of the Independent Children’s Lawyer shall remain in force for 12 months following the making of this order, it is requested that Victoria Legal Aid fund the independent children’s lawyer for his ongoing involvement in the matter and in the event Victoria Legal Aid refuses the request for such funding, the Independent Children’s Lawyer will remain as a party.
cc.(20) The mother shall ensure that [X] continues to attend [S] Early Childhood Centre and Kindergarten, [G] (“[S]”) until she commences primary school in 2015.
dd.(21) The mother shall provide a copy of these orders to the Director of [S], the Principal of any school attended by [X], to Mr C and to any medical practitioner that [X] attends.
IT IS NOTED that publication of this judgment under the pseudonym Hedditch & Fowler is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| (1) FEDERAL CIRCUIT COURT OF AUSTRALIA AT Melbourne |
DGC 865 of 2012
| MS HEDDITCH |
Applicant
And
| MR FOWLER |
Respondent
REASONS FOR JUDGMENT
Introduction
a.1. This difficult matter relates to the question of what the living arrangements for the parties’ young daughter [X] born [omitted] 2009 (“[X]”) should be.
b.2. Pursuant to interim orders made on 26 June 2013, [X] currently lives with the father and spends time with the mother from 3.30pm Friday to 5.00pm Saturday in week one and from 3.30pm Friday to 9.00am Monday in week two. [X]’s time with the mother is conditional on any of the maternal grandmother, maternal great grandmother or maternal aunt being in substantial attendance, one of those persons sleeping in the same residence as [X] and [X] sleeping at the maternal grandmother’s residence.
c.3. The mother seeks orders that:
d.a) she have sole parental responsibility for [X];
e.b) [X] live with her; and
f.c) [X] spend with the father from 4.30pm Friday to 4.30pm Saturday each week and for two weeks in the 2014/2015 long summer holidays.
g.4. Upon [X] starting school the mother proposes [X] spend alternate weekends with the father from after school Friday to before school Monday and half of school holidays.
h.5. The mother also proposes a sharing of special occasions including Christmas, birthdays, Father’s Day and Mother’s Day.
6. The father seeks that the current living arrangements for [X] continue and that the question of whether [X]’s time with the mother continues to be supervised be determined by the Court.
j.7. The orders for [X]’s living arrangements sought by the mother reflects the proposal of the independent children’s lawyer.
k.8. The independent children’s lawyer also seeks that the Court make orders that the mother continue to engage in treatment with her treating psychologist Mr C or his nominee for a period of 12 months from the date of the Court orders.
l.9. Further the independent children’s lawyer seeks an order that the mother and father each undertake up to five supervised drug screens as directed by the independent children’s lawyer for a 12 month period after orders are pronounced.
m.10. The Court is most appreciative of the independent children’s lawyer’s preparedness to remain involved in this matter for a further 12 months after final orders are pronounced.
n.11. The independent children’s lawyer also proposes that the Court make orders that:
o.a) the father be at liberty to attend [X]’s childcare facility, kindergarten or school to attend events organised for parent participation but otherwise not visit such places during normal ‘class’ time;
p.b) the mother ensure [X] attends [S] Child Care Centre (“[S]”) for the next 12 months;
q.c) the father attend psychological counselling with respect to anger management, impulse control and non derogatory communication methods; and
r.d) both parties keep each other appraised of their current residential address and current phone numbers.
s.12. The mother supports the independent children’s lawyer’s proposals in their entirety.
t.13. The independent children’s lawyer’s specific proposals that relate to him as well the independent children’s lawyers proposals for [X]’s care are opposed by the father.
Background
a.14. The mother was born on [omitted] 1985 and is 29 years of age. She has not repartnered since the breakdown of the parties’ relationship.
b.15. The father was born on [omitted] 1975 and is 39 years of age. The father has two children from his first marriage, [Y] born [omitted] 2005 (“[Y]”) aged 9 years and [Z] born [omitted] 2009 (“[Z]”) aged 5 years. [Y] and [Z] live with their mother and spend a minimum of two nights weekly with the father by agreement.
c.16. After separating with the mother, the father was in a relationship with Ms K from mid 2012 until April 2013. The father commenced a new relationship with Ms J in July 2013. The father lives with Ms J and her two children [name omitted] aged 11 years and [name omitted] aged 13 years.
d.17. The parties commenced their relationship in October 2008 after they met at a nightclub in Melbourne.
e.18. At that time the father’s then wife of 17 years Ms N was pregnant with [Z]. It is the father’s evidence that Ms N’s pregnancy was unexpected as both were unhappy in their relationship. It is the father’s evidence that he and Ms N decided that, given their mutual unhappiness, they would separate three months after the birth of their child unless matters between them improved.
f.19. The parties commenced cohabitation the month prior to [X]’s birth.
g.20. It is the mother’s evidence that both parties used illicit substances including cocaine, speed, ice and marijuana during their relationship. It is her further evidence that the father was a drug dealer and it was he who provided the drugs used by the parties.
h.21. It is the father’s evidence that other than the occasional use of marijuana, he did not use illicit substances and it was the mother who had a serious drug problem using cocaine, ice and speed regularly. It is his evidence that it was the mother who dealt drugs.
22. It is the mother’s evidence that the father was verbally, emotionally and physically violent to her throughout the relationship. This is categorically denied by the father.
j.23. It is the father’s evidence that the mother had ongoing mental health issues prior to and during their relationship which were exacerbated by her heavy use of illicit substances. This resulted in the mother having multiple hospital admissions because of drug overdoses, self harm attempts and because of mental health issues.
k.24. It is the father’s further evidence that the mother constantly lied to him and others throughout the relationship, including telling him and her mother that she had been diagnosed with a brain tumour when this was not so.
l.25. Whilst the mother concedes she did tell the father she had been diagnosed with a brain tumour, it is her evidence that she was having brain scans because of the severe headaches she was suffering at the time and had flagged the possibility of having a brain tumour with the father. Because of the care and concern the father showed her at that news, it is the mother’s evidence she did not immediately tell the father that she did not have a brain tumour.
m.26. It is apparent from the subpoenaed material that the mother has a long history of mental health, drug and alcohol abuse issues. The severity of these issues were denied or down played by the mother in the many affidavits filed by her in these proceedings and were only finally acknowledged by her in her viva voce evidence at final hearing.
n.27. A snapshot of the mother’s history as gleaned from the subpoenaed documents and the explanations to that history given by the mother in cross-examination is as follows:
• • 30 December 2000 – Admitted to [omitted] Medical Centre –
• o adverse effects of ingesting speed at a dance party
• • On 17 February 2007 – Drug/alcohol poisoning
• ♣ Had wisdom teeth out and in a lot of pain – overdosed on prescribed pain medication
• • On 20 July 2007 – overdose on 40 valium tablets and vodka
• ♣ At hospital explains working 15 hours/ professional [omitted] – took too many tablets
• • 20 September 2007 - 25 September 2007 – Drug and alcohol, possible overdose
• o Overdosed prescription drugs Endone and Serapax
• o Using cocaine/speed/THC
• ♣ At hospital mother denies overdose was a self harm attempt or that she has a drug problem. In viva voce evidence at final hearing concedes weekly cocaine use and says she was in denial she had a drug problem
• • 12 December 2007 – Emotionally unstable. Pulled knife on then boyfriend
• ♣ Mother concedes in vive voce evidence she was completely delusional
• • 15 April 2008 – overdose on serapax after argument with boyfriend
• • 18 July 2008 – 20 July 2008 – overdose on drugs and alcohol
• ♣ Advises hospital she is consuming a bottle of wine every night, takes cocaine, marijuana and speed and prescription drugs serapax, stilnox and endone
• ♣ In viva voce evidence, mother concedes for 17 months “I was unstable there”
• • 23 July 2008 – [omitted] Medical Centre
• o Overdosed on mother’s medication
• ♣ Maternal grandmother had brought mother back to Melbourne after overdose in Queensland, delay in admissions to Melbourne Clinic so took maternal grandmother’s medication
• • 24 July 2008 – 2 August 2008 – Melbourne Clinic
• o Depression, drug abuse
• • 21 December 2008 – [omitted] Medical Centre
• o Severe asthma
• ♣ Advises hospital had drunk 1 bottle of wine a day for 3 years, used cocaine for last 6 years, ice for last 3 months, GBH intermittently 2-3 years, ecstasy for 3 months and cannabis for 6 years
• • 29 September 2010 – 6 October 2010 – Melbourne Clinic
• o Overdose, anxiety depression
• • April 2011- 11 November 2011
• o Mother undertakes therapy with Dr C at the Melbourne DBT Centre
• • 14 April 2012 – 3 May 2012 – Melbourne Clinic
• o File notes states mother insists on early discharge because she does not want a positive drug screen result from a test undertaken at clinic recorded in file
• • 4 May 2012 – 5 May 2012 – [omitted] Hospital
• o 10x Xanax after using speed
a.28. On 29 August 2010 there was an altercation between the parties in which the mother alleges the father grabbed her around the neck and elbowed her to the face.
b.29. On 31 August 2010 there was a heated argument at the parties’ home and the police were called. When the police attended the parties’ residence, the mother removed a large amount of cash from the freezer and gave it to the father saying “here is your drug money”. The mother took the police to the garage and showed them drug paraphernalia including marijuana, zipper lock bags and a baby bottle containing white powder, a set of scales, a spoon and scissors. In the kitchen cupboard the mother showed the police further drugs. The mother told the police that the drugs and drug paraphernalia belonged to the father.
c.30. The mother made a statement to the police in relation to the alleged assault on 29 August 2010 but indicated she did not want the father charged and signed a statement of no complaint.
d.31. On 15 September 2010 the mother voluntarily attended [G] Police Station and advised the police the drugs and drug paraphernalia found at the former matrimonial home on 31 August 2010 belonged to her. She was charged and on 20 October 2011 was fined $400 without conviction for possessing amphetamines, possessing a drug of dependence and prescription drugs and the charge of possessing cannabis was adjourned 19 October 2012.
e.32. The Department of Human Services (“DHS”) became involved with the parties in September 2010 as a result of reported concerns in relation to family violence and because of the drugs and drug paraphernalia in the family home.
f.33. In February 2011 the parties separated after an alleged incidence of domestic violence.
g.34. It is the father’s evidence that on the occasion the parties separated in February 2011 he and the mother argued because the mother drove with [X] in the car when affected by alcohol.
h.35. When the parties separated in February 2011, the mother and [X] initially moved in with the maternal grandmother. They lived independently for three months until the parties reconciled in or about June 2011.
36. DHS continued to be involved with the family during this period.
j.37. In April 2011 the mother was referred to the Melbourne DBT Centre where she commenced dialectic behaviour therapy (“DBT”) with Mr C, clinical psychologist. A preliminary diagnosis that the mother suffers from borderline personality disorder was made. The mother discontinued her treatment with Mr C in November 2011 for financial reasons.
k.38. It is the mother’s evidence that after the parties reconciled, the father’s drug use and abuse continued. On 2 March 2012 it is the mother’s evidence she had gone to visit a friend and the father tracked her on her phone, called her and was abusive and threatening. When the mother returned to the former matrimonial home the next morning, the father and [X] were gone and the parties finally separated.
l.39. It is the father’s evidence that after the parties reconciled the mother had a period of stability when her mental health and drug use were under control. It is the father’s evidence that the mother’s stability was short-lived and the mother’s drug use and erratic behaviour escalated.
m.40. On 2 March 2012, it is the father’s evidence that after days of heavy drug use the mother told him she was going to visit a friend. The father tracked the mother on her iPhone to her drug dealer’s home in [suburb omitted]. The father determined this was “the last straw” and packed and took [X] to his brother’s home.
n.41. The mother issued an Initiating Application on 23 March 2012 in the Federal Circuit Court of Australia at Dandenong, seeking a recovery order in relation to [X]. This application was listed on 16 April 2014.
o.42. Between 20 March 2012 and 3 April 2012 [X] spent two block periods of time with the mother by agreement.
p.43. The father was much angered by what he terms “the lies” in the affidavit filed by the mother in support of her recovery order application. It is the mother’s evidence that in order to see [X], she met with the father and “down played” what she had set out in her affidavit and that unbeknownst to her the father recorded her conversation with him. When the father “threatened to use” the tape of this conversation, the mother withdrew her application for a recovery order.
q.44. On 10 April 2012 the mother was at the home of the father spending time with [X]. That evening the mother either slashed her wrists (father), or the father pushed the mother to the ground, kicked her and locked her in the garage (the mother).
r.45. On 14 April 2012 the mother entered the Melbourne Clinic where she stayed for three weeks.
s.46. When the mother was admitted to the Melbourne Clinic, [X] was with the maternal grandmother. [X] was either returned to the father by the maternal grandmother when she was advised by the Melbourne Clinic the mother had taken unprescribed drugs and discharged herself against doctor’s orders (the father), or the maternal grandmother was duped into giving [X] to the father by the father (the mother). [X] lived with the father from 14 April 2012 and did not spend time with the mother until orders were made on 6 September 2012.
t.47. During the parties’ relationship the mother obtained a number of interim intervention orders against the father which she withdrew. The mother obtained an interim intervention order against the father in June 2012. In the complaint and summons the mother details the alleged assault in April 2012 and refers to the father sending her “horrible text messages telling me to die or kill myself and that I’ll never see my daughter again”.
u.48. Annexed to the mother’s affidavits are samples of the text messages sent by the father. They are nasty, vicious and cruel. A small sample of them are as follows:
1.Ur dirt, filth, scum to me never again!! Don’t call me text me or come near me ever again. I’ll arrange custody of [X] with your mum and only your Mum.”
2.“Hate every bit of you and will die making sure [X] never gets near you for more than a few hours a week so you never have the ability to let her turn out anything like you you disgusting animal of a person”
“drug addict”
1. “whore”
2. “Move leave the state no one here wants anything to do with you start again somewhere else or take something that might actually do the job once and save us from your shit”
3.How does go fuck yourself you stupid slut sound!? I have all three of my beautiful children for the next three days all on my own!! no supervision!! and have had for fuck knows how long now!! so why would I disturb their bliss with any bullshit from you!! theyve not mentioned your name since you left nor given you a second thought they’re part of a family that doesn’t involve you so keep it that way and leave us alone.”
a.49. After the intervention order was granted to the mother, the father continued to send nasty and abusive text messages. The father also accessed the mother’s email account and sent a series of salacious emails to a male friend of the mother which the father pretended were sent by the mother.
b.50. The father was charged with breach of intervention order and stalking and on 24 January 2014 in the [omitted] Magistrates’ Court the father pleaded guilty to these charges. In relation to the breaches of the intervention order the father was convicted and placed on a 12 month Community Corrections Order on the condition he undergo a Men’s Behaviour Change Program. In relation to the stalking charge the father was convicted and fined $3000.
c.51. The mother issued proceedings seeking orders for [X] to live with her on 27 August 2012 having not spent any time with her since 10 April 2012.
d.52. On 6 September 2012 an interim order was made for [X] to spend time with the mother from 9.00am to 1.00pm each Saturday supervised by the maternal great-grandparents.
e.53. On 7 December 2012 further interim orders were made for [X] to spend time with the mother for Christmas and from 10.00am to 7.00pm each Wednesday and Sunday with the time to be supervised by either the maternal grandmother or maternal aunt. The matter was otherwise listed for final hearing on 26 June 2013 and orders made for the preparation of a family report and psychiatric assessment of both parents.
f.54. At the request of the mother’s solicitors the matter was listed for an interim hearing on 13 March 2013 because of issues around the availability of the supervisors. On this date the father raised concerns about whether the supervisors were in attendance when [X] was with the mother.
g.55. On 13 March 2013 on the undertaking given by the maternal grandmother and maternal aunt, interim orders were made for [X] to continue to spend time with the mother each Wednesday and Sunday from 10.00am to 7.00pm, such time to be supervised by any of the maternal grandmother, maternal aunt, maternal great grandmother or maternal great grandfather.
h.56. Orders were also made on 13 March 2013 for both parties to undergo supervised drug screens within 24 hours of a written request from the independent children’s lawyer to do so.
57. On 26 June 2013 the matter did not proceed to final hearing, primarily because of the recommendations in the family report prepared by Ms B. Interim orders were made for [X] to continue to live with the father and for her to spend time with the mother from 3.30pm Friday to 5.00pm Saturday in week one and from 3.30pm Friday to 9.00am Monday in week two conditional upon any of the maternal grandmother, maternal aunt or maternal great-grandmother being in substantial attendance, one of them sleeping in the same residence as [X] and [X] sleeping at the maternal grandmother’s home.
j.58. The interim orders also provided for the mother to remain engaged in treatment at Melbourne DBT Centre and to attend upon her treating general practitioner for referral for drug and alcohol abstinence counselling and to thereafter attend such counselling as directed by the counsellor.
k.59. Both parties were ordered to continue supervised drug screens within 24 hours of a written request from the independent children’s lawyer to do so.
l.60. The matter was otherwise adjourned for final hearing on 11 December 2013.
m.61. It is the mother’s evidence that she re-engaged in DBT with her psychologist Mr C in June 2012 and has continued to engage in that treatment from that date.
n.62. It is the mother’s evidence she has also been attending Ms M, Mental Health Nurse Therapist, to assist her to manage her anxiety. This treatment is ongoing.
o.63. As set out in this judgment, after the breakdown of the parties’ relationship, the father repartnered with Ms K. This relationship ended in May 2013. On 10 May 2013 Ms K obtained an intervention order against the father arising from alleged physical and verbal violence.
p.64. After the intervention order was made the father agrees he sent the following text messages to Ms K:
1.tried to get me charged with theft and assault. Got scratches and bruises from you, you stupid fuck, and photos to prove it. I will be letting [X] know what you are
2.Your so called beast misses you! Ur a bitch! Ur a disgrace!! I hope you never have children cause you have no idea love is at all… cause youve never known it… should have known and abused child like yourself would only abuse children like you have.. Hate is too weak for what I feel for about you.
a.65. Having indicated to Ms K that he had backed up all the files on her computer the father sent the following text to Ms K on 11 June 2013:
1. The most interesting thing, aside from all the stuff on your case was the email your aunty wrote you to your mum, its true, she did pimp you out didn’t she? You must feel really safe there with her
a.66. It is noted that Ms K was sexually abused by her father in her childhood.
b.67. The father has been charged with breaches of an intervention order arising from the text messages sent by him to Ms K after she obtained the intervention order against the father. These matters are listed in the State Magistrates’ Court for mention in late May 2014. The father indicates he will be contesting these charges.
c.68. The maternal grandmother also has an intervention order against the father.
d.69. There was an incident where it is alleged the father deliberately hit the maternal grandmother with his car at changeover. The father has been charged with breach of an intervention order, assault with a motor vehicle and threat to kill in relation to this incident. These matters are listed for mention in the State Magistrates’ Court on 29 May 2014.
e.70. On 28 August 2012 the father sent the mother the following text:
1. Keep going sweetheart. Keep showing me your true feral self, [X] now has my mother as a nanny who is a decent loving caring woman who has never had any children die under her care, she loves [X] as do I. What sort of an influence are you on a child with behaviour like that? Today at court and re read your message to me, you are utter filth.
a.71. The maternal grandmother had a child die when a baby as a result of Sudden Infant Death Syndrome (SIDS).
b.72. On 11 December 2013 the father sought an adjournment of the final hearing of this matter in order to obtain legal representation. The matter was adjourned to 12 March 2014 for final hearing and an order made for both parties to undertake hair follicle drug screen testing to ascertain drug usage for a period up to 6 months. This order was made in part because of the father’s persistent belief that the mother’s urine drug screens were not properly supervised and that she continues to use illicit substances.
c.73. It is the evidence of the independent children’ s lawyer that pursuant to the orders of this Court he had sent 19 written requests to the parties for them to undertake supervised drug screens. At the final hearing the independent children’s lawyer produced for the Court a table setting out the dates when requests for drug screens were sent to the parties, the dates the parties undertook the drug screens and the results of the screens.
d.74. The mother completed all but two drug screens. Not all screens were completed by her within 24 hours of the request to do so.
e.75. The mother’s solicitors advised the Court that one of the screens not undertaken by the mother was because they failed to notify the mother of the request for that screen.
f.76. All the mother’s screens were clean for illicit substances save for two which were positive for benzodiazepine. The mother provided correspondence from her treating doctor confirming she had taken valium on those two occasions when the screens were positive for benzodiazepine.
g.77. In relation to the order that the parties undertake a hair follicle test, the mother provided the court with the results of that test at the final hearing of the matter. The results indicated that in the three months prior to the test the mother had not used any illicit substances.
h.78. The mother’s evidence is the test was for three months only as she could not afford the cost of testing for six months.
79. The father challenged the veracity of the mother’s hair follicle test results as the mother had bleached her hair shortly prior to her hair sample being submitted for testing.
j.80. Counsel for the independent children’s lawyer advised the Court that the independent children’s lawyer had made enquiries with the testing laboratory as to what impact the mother bleaching her hair would have on the testing. The independent children’s lawyer was advised by the testing laboratory that whilst bleaching of the hair could dilute the measure of the level of any drug usage, it would not result in a “nil drugs” result if the person tested had ingested any illicit substances during the period being tested.
k.81. Of the 19 requests for drug screens received by the father, he only completed nine. All were negative for illicit substances.
l.82. Whilst the father had submitted his hair sample for testing, the results of that testing was not available to the parties or the Court as the father had failed to fully pay the costs of the testing. Despite being asked by the Court to complete payment for his testing after the completion of oral evidence and to provide the results to the Court, the mother’s solicitors and the independent children’s lawyer, at the date of the writing of this judgment the father has not provided the result of his hair follicle test.
m.83. On the 27 March 2014 after the completion of the hearing of evidence, the father filed an Application in a Case seeking leave to adduce fresh evidence.
n.84. In support of that application the father filed an affidavit sworn 24 March 2014 in which he challenged the mother’s oral evidence given at the final hearing that she was in full-time employment with [D] Pty Ltd (“[D]”). The father deposed in his affidavit that after the conclusion of the final hearing the father was advised by the Child Support Agency that their attempts to pursue the mother’s arrears of child support with [D] had been unsuccessful as the Child Support Agency had been advised by [D] that the mother was no longer employed by them.
o.85. The father further deposed that on 24 March 2014 he called [D] and asked to speak to the mother and was advised the mother had not worked for that business for a week and a half.
p.86. The father’s Application in a Case was listed on 4 April 2014. The Court gave the father leave to adduce the further evidence as to the mother’s employment as the question of the mother’s current employment status and whether she had mislead the Court as to her employment status at the final hearing were matters relevant to the issues before the Court that reasonable diligence could not have discovered earlier.
q.87. On 4 April 2014 the mother therefore gave viva voce evidence explaining her current employment status.
r.88. This issue will be expanded on later in the judgment.
The Evidence
a.89. At the outset the Court notes that there were aspects of each party’s evidence that were not credible, particularly their evidence as to their behaviours and actions during the relationship.
During the Relationship
a.90. Both parties see themselves as the victim in their relationship and point to the behaviour of the other as the explanation for their clearly unacceptable behaviour and highly dysfunctional relationship.
b.91. It is the mother’s evidence that the father was verbally and physically violent to her through the relationship and that her desperation to keep that relationship going lead her to cover up that violence to the outside world. On those occasions when she made complaints to the police, she withdrew the allegations and did not pursue her applications for intervention orders. She also signed a document of no complaint with the police after the alleged assault in August 2010.
c.92. It is the mother’s further evidence that it was the father who was dealing drugs in their household during the relationship and that it was he who provided the myriad of illicit substances consumed during that relationship.
d.93. Whilst finally conceding her extensive use of illicit substances, it is the mother’s evidence that the father was equally as heavily involved in consuming those substances when they were together.
e.94. The father cross-examined the mother in relation to alleged text messages sent by her during the relationship. The father explained to the Court he had downloaded the messages from the mother’s mobile phone to his computer by way of back up. The messages purported to show the mother communicating with various peoples in relation to providing them with drugs. The mother reluctantly conceded having sent those text messages. It was her evidence that she did so at the request of and under pressure from the father.
f.95. It is the father’s evidence that the mother suffered from serious mental health issues throughout the relationship, whereby she exhibited irrational and at times abusive behaviour to which he was constantly subjected.
g.96. It is the father’s further evidence that the mother continuously lied to him throughout the relationship in relation to her health, financial circumstances, past relationships and activities.
h.97. The father gave evidence of the mother’s claim during their relationship that she had a brain tumour as an example of the extent of the lies the mother was prepared to tell in order to gain attention and sympathy.
98. The father also made reference to the mother faking severe asthma attacks requiring her to be taken to the hospital, which proved to be unsubstantiated by the medical practitioners at the hospital once the mother had been seen by them.
j.99. When cross-examined in relation to these instances, the mother’s evidence was most concerning.
k.100. In relation to the brain tumour episode, the mother somewhat glibly said that “she took it a bit too far” and showed no insight into the impact such a horrendous lie would have on those close to her including the father and her own mother.
l.101. By way of explanation for this behaviour, it is the mother’s evidence that when she was first referred for scans she raised with the father the possibility that she might have a brain tumour. When the father showed concern and care for her, she perpetuated the brain tumour story as she was desperate to keep that level of concern and care from the father because of her insecurities in relation to their relationship.
m.102. When shown documentation from a treating doctor who questioned the veracity of her claims in relation to the severity of her asthma and in particular his concerns about the mother’s failure to abide by directions for the proper management of her condition, the mother conceded that she had not followed the doctor’s directions, but if the Court were to examine medical records from Queensland, they would show a history of very severe respiratory difficulties.
n.103. In relation to the allegations made by the mother that the father was physically violent towards her throughout the relationship, the father is strident in his denials of those behaviours. It is his evidence that they are a continuation of the lies that the mother made throughout the entirety of the relationship and were in part made by her in an attempt to justify her own behaviours. It is the father’s evidence that these claims are also symptomatic of her long-standing and ongoing mental health problems.
o.104. In cross-examination the father conceded that there were times he had been required to physically restrain or control the mother when she was acting aggressively towards him. It is his evidence that during heated arguments when he was trying to leave the premises in order to diffuse those arguments, the mother physically grabbed and attacked him. In order to escape from the mother, he had to push or thrust the mother from him.
p.105. In relation to the incident in August 2010 where the mother alleges the father elbowed her in the face and kicked her, it is the father’s evidence that he was playing on the bed with his young son [Z] and had the television remote in his hand. It is his evidence that the mother came barging into the bedroom screaming at him and he pointed the remote at her pretending to mute her. It is the father’s evidence that the mother walked up to him and smashed the hand that was holding the remote which then flew out and hit [Z]. It is the father’s evidence that he yelled at the mother and as he was walking out of the room he threw the remote against the wall and it bounced off and hit the mother in the head. It is the father’s evidence that he did not believe this behaviour to be violent, but was rather a defensive action in response to an act of violence perpetrated against him and [Z].
q.106. It is the father’s evidence that his use of illicit substances during the relationship was limited to the occasional use of marijuana with his friends.
r.107. The father categorically denies that he ever dealt drugs. It is his evidence that all drugs other than marijuana in the parties’ home were those procured by the mother and that it was she who dealt drugs from their premises.
s.108. In relation to the charges laid against the mother as a result of the drugs and drug paraphernalia that she showed the police after the August incident, it is the father’s evidence that all drugs and drug paraphernalia were the mother’s. It is the father’s evidence that the mother’s admissions to the police that the drugs were hers were the truth and were not made as a result of him begging her to do so but because of concerns that if he were charged with drug offences, his former wife would prevent him from spending regular time with his sons [Y] and [Z].
t.109. In relation to the large amount of cash that was in the freezer at the time of the police attending the premises in August 2010, the father gave a myriad of different and increasingly implausible explanations as to the origin of those monies.
u.110. In the father’s affidavit sworn 3 October 2012 at paragraph 79 the father deposes as follows:
… As I was about to leave Ms Hedditch went over to the freezer and pulled out $5000 I had hidden in there and screamed at me “Don’t you want your drug money?”.
a.111. In the father’s affidavit sworn 6 December 2012 he deposes at paragraph 53AAA as follows:
… I admit that I kept some cash for a rainy day in the freezer.
a.112. In his viva voce evidence at the final hearing of this matter, it was the father’s evidence that the $5000 in the freezer belonged to a friend of his, Ms E, who had lent it to him. When the father was asked to explain why Ms E lent it to him it was his evidence that he “had no idea”. When asked why he had not put the money in the bank rather than in the freezer, it was his evidence that he was going to put it in the bank, and that was why it was in the freezer.
b.113. The father did not call Ms E to give evidence on his behalf in this matter.
c.114. Given the starkly contrasting evidence of the parties in relation to these matters, some insight as to the reality of the parties’ circumstances can be gleaned from the independent material available from DHS, police records and the other subpoenaed records.
d.115. On 7 November 2013 an order was made pursuant to s.69ZW of the Family Law Act 1975 (“the Act”) requesting DHS to provide to the Court documents and information in relation to DHS’s involvement with the parties and in particular [X].
e.116. Pursuant to that order, on 3 December 2013 Ms M, Family Law Liaison Practitioner of the Southern Metropolitan Region of DHS, provided the Court with a response (“the DHS response”).
f.117. Neither party challenged the contents of the information contained in the DHS response.
g.118. In the DHS response, it is detailed that between 1 September 2010 and 7 May 2011 there had been reported concerns to DHS in relation to these parties and [X] because of family violence as well as drugs and drug paraphernalia being in the family home which each of the parties claimed was the others.
h.119. The DHS response indicates that as a result of their enquiries DHS made a decision that the matter be transferred to the Investigation and Assessment team.
120. On page 3 of the DHS response, the following is set out:
1. “An announced home visit at the family residence was conducted and Mr Fowler was interviewed in regards to the reported protective concerns.
2. In relation to incidence of Family Violence that occurred on 30/08/2010. Mr Fowler stated that 4-5 days prior, Ms Hedditch (sic) had reported that she was not feeling well and was presenting as highly anxious. Ms Hedditch had ceased taking her prescribed medication (Exfexor) that managed her anxiety. Mr Fowler advised that he engaged in an argument with Ms Hedditch over her spending of money which escalated into a physical incident with pushing and shoving as he was trying to leave and she would not let him. Mr Fowler advised that Ms Hedditch contacted the police and he was verbally aggressive towards police and accordingly he was asked to leave the home.
3. Mr Fowler said that he and Ms Hedditch engage in verbal disagreements on a regular basis and that he attempts to physically walk away. It is documented that Mr Fowler stated ‘I pack my bags and spend a night away, but sometimes I flare up and I get into it, but I try to walk away… but it’s hard to walk away if someone spits on you’. Mr Fowler stated that he had never struck Ms Hedditch, stating that he had only “pushed her and kicked her to get her off me or in self defence”.
a.121. Page 4 of the DHS response sets out the following:
1. “On 12/10/10 a home visit was conducted following Ms Hedditch (sic) discharging herself from Melbourne Clinic against medical advice. At this time Ms Hedditch was angry in relation to Child Protection involvement. Ms Hedditch stated that she and Mr Fowler did have some problems with their relationship and blamed her own behaviour on this. Ms Hedditch informed that she had a Personality Disorder and Anxiety Disorder and as a result “flies off the handle” very quickly resulting in irrational arguments. Ms Hedditch stated that she is now aware that these disorders are a result of her past drug use and life style. Both parents denied any drug use, except occasional recreational Marijuana use by Ms Hedditch.
a.122. The DHS response indicates that on 20 October 2010 as a result of the police confirming that the substances found on the premises were speed which Ms Hedditch had acknowledged to police she owned and used, DHS again spoke to the parties. The DHS response details the following:
1. Ms Hedditch (sic) advised that Mr Fowler had brought drugs on to the family premises for the purpose of dealing them, that she had falsely taken the blame for the drugs which the police had found. Ms Hedditch spoke of physical and emotional Family Violence perpetrated by Mr Fowler and that he blames Ms Hedditch’s mental health issues as to the reason for the Family Violence. Ms Hedditch had advised of ending the relationship with Mr Fowler, however did not follow through with this plan.
a.123. On page 6 of the DHS response they set out the following:
1. Throughout DHS intervention both parents were asked to complete random supervised urine screens. Mr Fowler did not complete any requested urine screens until 04/02/11 which was negative for all illicit substances, however suggest dilution of sample. Mr Fowler often made excuses for why he did not complete requested urine screens on the days that they were requested. Father was requested to complete a screen on 11/02/11; this screen was not completed until 14/02/11 however was negative of all substances. A further screen was requested on 15/02/11, however was not completed until 17/02/11 and was also negative of all substances. Ms Hedditch (sic) produced several clean supervised urine screens except for her prescribed medications. There were no traces of illicit drugs detected and no dilution of samples.
a.124. The DHS response indicates that Child Protection substantiated that [X] was at risk of harm due to alleged parental substance misuse, Ms Hedditch’s mental health behaviours, as well as family violence between parents.
b.125. The DHS response notes that Child Protection ceased their intervention with the family in early 2011 as the parents had separated, the mother was compliant with her prescribed medications and had engaged with a psychologist who spoke positively of her progress. DHS noted that since parental separation there was an absence of family violence and threats, the mother was living with the maternal grandparents who they deemed to be suitable and the mother had produced clean drug screens.
c.126. In relation to the alleged assault in late August 2010, the mother deposes in paragraph 2 in her affidavit filed 27 August 2012 that on 31 August 2010 the police “attended at the house and took photographs from the weekend as I had a bruised face and leg”.
d.127. Annexed to the mother’s affidavit of 27 August 2012 is the statement prepared by Constable B of the [G] Police Station in relation to the incident. In paragraph 2 of his statement, Constable B states as follows:
1. We arrived at [address omitted] at about 7:20PM and I spoke to Ms Hedditch [DOB omitted] who stated she had had a verbal dispute at the rented house she shared with her partner Mr Fowler, earlier in the day. HEDDITCH had no visible injuries…
a.128. Perusal of the mother’s subpoenaed medical records indicate a level of alcohol and illicit substance consumption greatly in excess of that acknowledged by her in her many affidavits filed in these proceedings. It was only when giving her viva voce evidence that the mother was prepared to concede that her ingestion of illicit substances during the parties’ relationship was at a level that impacted on her daily functioning and her parenting, particularly in the six months leading up to the final separation of the parties.
b.129. Having considered all of the evidence including that of the parties, the evidence contained in the subpoenaed material and all other evidence placed before the Court, I make the following findings:
c.a) During the relationship, both parties were dealing drugs and each are equally responsible and complicit in that activity.
d.b) Both parties consumed illicit substances during the relationship, including marijuana, ice, speed, cocaine. They also abused prescription medication.
e.c) During the relationship, the mother’s unstable mental health and illicit drug consumption caused her to be at times irrational, highly emotional, argumentative and to blatantly lie to the father, to medical practitioners and to her family. These behaviours contributed greatly to the volatility of the relationship.
f.d) The father was emotionally and physically violent to the mother during the relationship.
g.e) [X] was exposed to the parties’ violent and volatile relationship and to their drug use.
h.f) The parties volatile and violent relationship and their drug use negatively impacted on their capacity to care for [X].
After Separation
a.130. It is the mother’s evidence that since separating from the father, she has worked very hard to address her mental health and illicit substance abuse issues.
b.131. It is the mother’s evidence that she voluntarily attended drug and alcohol counselling in June 2012 and that she has not used illicit substances since that time.
c.132. I note that when giving her viva voce evidence in response to a question from the Court as to when she had last used illicit substances, it was her evidence that she had not used illicit substances since she first sought drug and alcohol counselling. The mother then stated “June last year”.
d.133. The inconsistency between the mother’s evidence that she had not used drugs since June 2012 and her response to when she last used drugs in “June last year” was raised with the mother’s Counsel.
e.134. It was submitted by the mother’s Counsel that use of the term “June last year” was a mistake by the mother and the Court should accept her evidence that she had not used drugs since she attended drug and alcohol counselling in June 2012.
f.135. A transcript of the mother’s evidence was obtained in relation to her response to the Court’s question as to when she last used drug. Having viewed that transcript I am satisfied the use of the term “June last year” was made in error and am satisfied the mother has been consistent in her evidence she has not used illicit substances since June 2012.
g.136. Between April and November 2011, the mother engaged in DBT treatment with Mr C at the Melbourne DBT Clinic.
h.137. It is both parties’ evidence that when the mother was engaged in this treatment between April and November 2011, there was a marked improvement in both her mental health and illicit substance usage. It is the mother’s evidence that she had to cease treatment with Mr C in November 2011 because she could no longer afford the treatment. It is both parties’ evidence that the mother’s mental health issues and drug usage immediately worsened upon the cessation of treatment.
138. In June 2012 the mother reengaged with Mr C and it is the mother’s evidence, and that of Mr C, that she has continued to engage in that treatment, although for most of 2013 the treatment was not at the same frequency as in 2012 because of financial constraints.
j.139. It is the mother’s evidence that in late 2013 she was successful in an application for funding from Victims of Crime for ongoing counselling and that funding will enable the mother to continue her treatment with Mr C for at least another 12 months.
k.140. It is the mother’s evidence that in addition to DBT treatment, she has also sought assistance from Ms M, a credentialed mental health nurse therapist, to assist her to deal with her anxiety.
l.141. It is the mother’s evidence that in compliance with the orders that were made by this Court on 26 June 2013, she again engaged with the ‘Stepping Up’ program in relation to drug and alcohol counselling. The mother attended such counselling between 3 July 2013 and 29 August 2013 until full-time employment made it impossible for her to attend further sessions with that agency.
m.142. It is the mother’s evidence that ‘Stepping Up’ were happy for her to cease her involvement with that agency in August 2013 as she had been drug free for over 12 months.
n.143. It is the mother’s evidence that the father continues to act in a controlling and aggressive manner towards her and cited the recent example of him becoming very abusive at a changeover because she was 10 minutes late. The mother reported this behaviour to the police who flagged the possibility the father could face a further charge of breach of intervention order because of his behaviour on this occasion.
o.144. It is the mother’s evidence that because of the father’s continued abusive attitude towards her including the breaches of the intervention order for which he has now been convicted, she obtained an intervention order for her protection against the father on 8 August 2013 which is to last until further order.
p.145. It is the mother’s evidence that if she is successful in her application for [X] to live with her, she and [X] will continue to live with the maternal grandmother.
q.146. It is the mother’s evidence that she and the maternal grandmother are looking to obtain rental accommodation in [C] and that she had made preliminary enquiries about [X] attending [omitted] School in [C] when she commences school in 2015. It is the mother’s evidence that this is a small school and that [X]’s cousin [name omitted] already attends this school.
r.147. It is the mother’s evidence that until [X] starts primary school in 2015, she will ensure [X] continues to attend kindergarten at [S] Early Learning and Kindergarten in [G] (“[S]”). [X] has been attending [S] since she was six months of age and has many close friends there. It is the mother’s evidence that given how settled [X] is at [S], she would not remove [X] from that environment until it was time for her to start school.
s.148. It is the mother’s evidence that she obtained full-time employment with [D] in September 2013 as the [omitted].
t.149. At the final hearing of this matter it was the mother’s evidence that she had sought, and been given, 3 weeks leave by [D] in order to prepare for and attend the trial and that she would be returning to employment when the proceedings were finalised.
u.150. As set out previously in this judgment, the father filed an Application in a Case seeking to adduce fresh evidence after the conclusion of the final hearing on the basis that he believed that the mother had misled the Court as his enquiries had revealed that the mother was no longer employed with [D].
151. In response to the matters raised by the father, the mother gave viva voce evidence.
w.152. It is the mother’s evidence that in February 2014 the CEO of [D] came from Sydney and met the Melbourne contract-based employees to discuss their commitment to their employment with [D] going forward.
153. It is the mother’s evidence that the CEO of [D] was aware of the circumstances surrounding her upcoming trial as she had already made an application to have time off in order to be able to prepare for and attend the trial.
y.154. It is the mother’s evidence that she had discussions with the CEO about whether she would be seeking part-time or full-time employment at the conclusion of the trial and she explained to him that that would be dependent upon the outcome of the trial.
z.155. It is the mother’s evidence that after the trial was concluded she spoke to her manager and had to explain that she had been somewhat naïve in her expectations that there would be a decision made by the Court at the conclusion of the evidence.
aa.156. It is the mother’s evidence that until the outcome of the trial is known and she is therefore able to assess whether she will be able to work full-time or part-time, her future employment with [D] has been left in abeyance.
bb.157. It is the mother’s evidence that she has an extremely good relationship with her employer and it is her belief, arising from discussions she has had with [D], that once this matter is finalised she will be able to resume employment with them.
cc.158. The mother conceded however that at this time she is not employed by [D].
dd.159. She provided the Court with correspondence from Ms W, the finance manager of [D], addressed to “Judge Bender” dated 2 April 2014. It states as follows:
1. Ms Hedditch was employed by [D] Pty Ltd in a casual position from September to December 2013, before moving into a full-time role from January to February 2014. Due to Ms Hedditch being unable to fulfil her full-time employment obligations, [D] was not able to continue with her employment contract.
2. We would consider Ms Hedditch’s reapplication with [D] at a future time should a suitable position become available.
3. We wish Ms Hedditch a speedy resolution to this matter and will certainly support her where possible in her return to employment.
a.160. Whilst the mother clearly believes that she can step back into a role with [D] once the outcome of this matter is known and she is able to ascertain her availability for either full or part-time work based on her commitments to care for [X], the reality is she, at best, ‘gilded the lily’ when she told the Court that she was in full-time employment with [D].
b.161. The correspondence from [D] makes it quite clear that her contract was not renewed at the end of February 2014 and therefore she was not employed by them when she came before the Court.
c.162. The mother’s evidence to the Court should have been that “because of my commitments to the final hearing, my employer was unable to renew my contract but has indicated to me that once matters are resolved, they believe they will be able to offer me a new contract”. Whilst I am satisfied the mother did not deliberately lie to the Court, she chose to present her evidence in a way that painted the most positive picture of her employment situation.
d.163. The mother’s evidence on this issue has fed into the father’s belief that the mother is a habitual liar who will say whatever is necessary to paint herself in the best possible light.
e.164. The father does not believe that the mother’s mental health and drug issues that were so apparent during their relationship have been properly addressed by her in any way and that accordingly, [X] remains at risk if left in her unsupervised care.
f.165. The father remains sceptical about the drug screens that have been undertaken by the mother over the last 18 months. The father questions whether they were properly supervised, asks why they were not taken within 24 hours of the written request to do so and raises concerns about the two screens that were missed by the mother.
g.166. In relation to the results of the mother’s hair follicle test, the father produced documentation from the testing laboratory which raised questions in relation to the veracity of any test on bleached hair. The father questioned why the mother had her hair bleached so close to the timing of the production of the hair follicle and therefore posited that she had done so in the hope that bleaching her hair would undermine the potential of that process producing a positive reading showing the use of illicit substances.
h.167. The father does not accept the evidence from the independent children’s lawyer that the testing laboratory had advised that even if the mother’s hair was bleached, any use of illicit substances would still be revealed by their testing.
168. The father was also critical that the mother’s attendance for drug and alcohol counselling in 2012 and 2013 had only been for very short duration and therefore questions the mother’s evidence that she had undertaken the requisite recommended interventions to address her drug and alcohol issues.
j.169. In relation to the father’s own failure to undertake the majority of the supervised drug screens as requested by the independent children’s lawyer, he gave various excuses for his non-compliance, most of which seemed to centre around his responsibility to care for [X] and at times his two young sons.
k.170. When cross-examined by Counsel for the independent children’s lawyer as to the delays in him in providing a hair follicle for testing and then his subsequent failure to pay for the testing, the father lays the blame for his tardiness at the feet of the independent children’s lawyer and the testing facility. He fails to accept any responsibility to be proactive in ensuring he complied with the Court’s orders in this regard.
l.171. It is also apparent from his evidence that the father regards the need for him to undergo drug testing as unwarranted and he could not grasp the concern the Court must now hold as to his own claims to being drug free given his failure to undertake all requested drug screens and produce a hair follicle test result.
m.172. In relation to the mother’s mental health difficulties, the father is similarly sceptical that she is taking all necessary steps to address her issues. The father challenges Mr C about the efficacy of his interventions with the mother given there had been what he alleges are lapses in the mother’s treatment. The father also expresses his belief that the mother had been lying to Mr C in the context of the information she is providing him.
n.173. Mr C, whose evidence will be set out later in this judgment, was clear in his evidence that the mother has been in continued treatment with him since June 2012. Mr C is clearly of the view that on matters of importance, the mother has been truthful with him.
o.174. In relation to the nasty, aggressive and vindictive emails sent by the father, both to the mother and Ms K, the father, albeit somewhat reluctantly, acknowledges they were inappropriate and that they constitute family violence.
p.175. It is the father’s evidence that he now realises that such behaviour is inappropriate and that he “fell into the trap” of responding aggressively to messages and incidences that distressed him. It is his evidence he has worked hard to address this behaviour.
q.176. The father gave viva voce evidence that he is enrolled in a men’s behavioural change program. However he only conceded he was undertaking this course as a result of a condition imposed upon him by the State Magistrates’ Court as part of his sentence for breaching the intervention orders when this was put to him by the independent children’s lawyer. It was quite clear at the time he gave his evidence that the father’s initial evidence was given in such a way as to try and make the Court believe this was something the father had done of his own volition because he recognised the inappropriateness of his behaviour.
r.177. The father fails to see a correlation between the manner in which he gave his evidence on the men’s behavioural change program and the criticism he makes of the mother for her evidence in relation to her employment.
s.178. When being cross-examined by Counsel for the independent children’s lawyer in relation to the text messages sent to Ms K in 2013 and similarly in relation to the messages sent to the mother after they separated, it is the father’s evidence that such behaviour is “normal” when parties split up.
t.179. Perhaps the father’s attitude when closely cross-examined in relation to the behaviours that gave rise to the intervention orders taken out against him, the breaches of those orders and the other charges which he is facing is best summed up as follows:
1. I attack, they attack, I attack
a.180. The father is of the belief that the mother’s mental health issues are ongoing and that she continues to use drugs, behave erratically and lie compulsively. The father believes the mother is and always will be a danger to [X].
b.181. What is also apparent from the father’s evidence is that he has real difficulty in shielding [X] from his negative views of the mother.
c.182. Whilst it is the father’s evidence that he does not demean the mother in the presence or hearing of [X], the angry text messages he has sent to the mother when aspects of her care have angered him are clearly sent at a time when [X] is with him. The mother’s evidence of the father’s anger in front of [X] when she has been late at changeovers is convincing.
d.183. Whilst the lengthy litigation in this matter has, on some level, prevented the parties from moving on since their separation over two years ago, the continued intensity of the father’s anger and hatred of the mother and his inability to contemplate in any way that the mother is taking the requisite steps to address the issues that dogged their relationship is most concerning. This is particularly so when the father exhibits the same level of anger and antipathy towards his subsequent partner Ms K.
e.184. The father argues that his behaviour and the intensity of his anger and antipathy is unique to his relationship with the mother and Ms K and that the amicable and cooperative relationship he has with his first wife Ms N and their ability to put in place arrangements for their sons [Y] and [Z] better reflect his usual interactions with others and is indicative of his ability to properly focus on the needs of his children.
Ms C
a.185. Ms C is the maternal great-grandmother. Ms C swore an affidavit on behalf of the mother on 12 June 2013 and gave viva voce evidence at the final hearing.
b.186. It is the maternal great-grandmother’s evidence that theirs is a large, close and caring family which includes 8 grandchildren and 3 great-grandchildren.
c.187. It is the maternal great-grandmother’s evidence that she has seen [X] on all but two of the weekends that she has spent time with the mother since the orders were made in September 2012 and that she has observed [X] to have come out of her shell since she first started coming to them. She observes [X] and the mother as having a very close and loving relationship.
d.188. It is the maternal great-grandmother’s evidence that all of the family live in fairly close proximity to where she resides in [C] and that all birthday parties, Christmas and other big family occasions are hosted by her in her home.
e.189. The maternal great-grandmother acknowledges that the mother has a long history of drug and mental health issues but it is her evidence that she has seen a measurable improvement in her granddaughter in the last 18 months.
f.190. When questioned whether the family has the capacity to support the mother staying drug free and continuing to address her mental health issues, she responded very firmly “my word they do”.
g.191. When further asked whether a situation arose where she thought the mother had “gone off the rails” and [X] was at risk would she act to protect [X], it was the maternal great-grandmother’s very clear evidence:
1. My word I would – not a doubt.
Ms M
a.192. Ms M is a credentialed mental health nurse therapist who prepared a report in relation to the mother dated 14 October 2013. She also gave evidence on behalf of the mother at the final hearing.
b.193. Ms M has qualifications as a general nurse as well as in mental health, psychiatric nursing and therapy. It is Ms M’s evidence that she has been working solely in psychotherapy for the last eight years.
c.194. It is Ms M’s evidence that the mother was referred to her by her treating general practitioner on 29 April 2013 to address symptoms of stress and anxiety due to the ongoing trauma related to her past relationship with her ex-partner of three and a half years.
d.195. It is Ms M’s evidence that to date she had had 14 face-to-face sessions with the mother as well as 18 phone contacts. On average the face-to-face sessions are from 50 to 60 minutes and the phone sessions are from 20-45 minutes.
e.196. When discussing the treatment or strategies she and the mother utilise, Ms M described them in the following terms:
1. … we worked through the strategies and the treatment of her anxiety symptoms, specifically with cognitive behavioural therapy treatments and that was addressing her – the negative thoughts that caused the anxiety and challenging them and reframing them in order to reduce the anxiety symptoms.
a.197. Ms M was asked what, in her professional opinion is the prognosis for the mother. It is her evidence as follows:
1. I believe with my professional knowledge and experience and from the way Ms Hedditch has demonstrated particularly in the last year that she’s quite capable of managing her life and having very good home life for her child and herself. I don’t believe that she would need ongoing psychotherapy, except perhaps, as I said before, on a needs only basis. I think she is quite capable and is demonstrating that she is managing her life well and she has a good work life balance and that can only improve once the issue of custody and her home life is established with a child.
a.198. Ms M was asked her opinion of the likelihood of the mother relapsing into the use of illicit substances, given her previous history of drug dependency. It is Ms M’s evidence as follows:
1. In my opinion, I don’t believe – I think it’s highly unlikely that there would be relapse as far as her drug history is concerned because she has learned very different strategies in order to cope with her anxiety symptoms and she has a lot more to live for. She has established herself. She has increased her self-esteem and her confidence in her ability to cope much better with life. She has the strategies that she actually can’t unlearn.
a.199. In cross-examination the father asked Ms M that given the mother had previously given up drugs and relapsed, how could she be so confident in her evidence that the mother is unlikely to relapse. It is Ms M’s evidence that she believes the mother has been very open and honest about her history of drug abuse and that she would be unlikely to relapse because she now has strategies and skills that she didn’t have previously when she was using drugs.
b.200. Ms M was specifically asked how she thought the mother would respond if she was to again enter into an inappropriate or destructive relationship. It is Ms M’s evidence as follows:
1. I am of the opinion that I think she has learnt a lot over the last few years and she has attended dialectical behavioural therapy and also we’ve looked at various responses to her pain and her anxiety and depression. She has more confidence and self‑esteem that actually she is more aware and she is more aware of her boundaries and limitations that would set her up.
a.201. In Ms M’s notes from the session with the mother of 12 July 2013 she noted that the mother admitted that she had a male friend she had been seeing for seven months and that she was unsure of what level of friendship she could offer this man. Ms M indicated in her evidence that she remembers the session and that the mother raised with her a concern that the gentleman in question was “controlling” and insisting on her having more input into a house he was building and was putting pressure on her to have a more involved relationship than the mother wanted.
b.202. Her notes indicate that the mother recognised that she needed to step back from this person and that she cut ties with him shortly thereafter.
c.203. Ms M was also asked whether the mother’s attendance upon her was genuine in that the mother recognised she needed to address her behaviours or was the mother just “going through the motions” because she was in the middle of a court case. It was Ms M’s evidence as follows:
1. I actually do believe that she was making a genuine effort to change her life and she knew, she had enough insight to realise she needed ongoing sessions in order to improve her life but also to maintain a level keel to cope with the court case, but she was insistent on continuing that after the court events.
a.204. Ms M was asked her opinion as to how much longer she believed the mother should continue to attend psychotherapy with her. It was Ms M’s evidence that she believes that by the end of the year the mother’s attendance on her could proceed to an “as needs” basis. It is her evidence that in her practice she usually sees people regularly for up to two years after which time the level of involvement is not needed to be so intense.
First Constable G
a.205. First Constable G is a police officer stationed at the [P] Police Station.
b.206. First Constable G gave viva voce evidence at the final hearing of this matter.
c.207. First Constable G is the police officer who was in charge of investigating and preparing the brief of evidence in relation to the charges for breach of intervention orders and stalking made against the father.
d.208. It is First Constable G’s evidence that the mother attended at the [P] Police Station in 2012 in relation to multiple text messages that she had been receiving from the father in breach of the intervention order that she had for her protection against the father.
e.209. It is First Constable G’s evidence that he perused the text messages from the father on the mother’s phone and that he formed the view that they were abusive, that they constituted family violence and that in sending the text messages the father had breached the intervention order then in place against him.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
a.356. This subsection is not relevant to these proceedings.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
a.357. The findings of this Court that both parents prior to their separation did not place [X]’s needs at the forefront of their behaviours is well set out in this judgment.
b.358. Post separation, the father assumed the primary care for [X] and has to the best of his abilities cared for and loved her.
c.359. It is the mother’s evidence that she has been drug-free since June 2012. Further, it is the mother’s evidence that she is reengaged with her treating psychologist, Mr C, as well as mental health nurse Ms M, in order to address the mental health issues that impacted on her behaviours both prior to and during her relationship with the father.
d.360. It is the mother’s evidence that in order for her to be the best possible parent to [X] she will continue to engage with all appropriate health professionals in order to ensure that the inappropriate behaviours that impacted on her ability to properly care for her daughter to not reoccur.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person
a.361. The mother has a current indefinite intervention order against the father, the basis of which is the highly abusive and inappropriate text messages and emails sent by the father to the mother, the father’s manipulation of the mother’s email system and incidences of abuse at changeover.
b.362. The inappropriateness of his behaviour is not truly understood or acknowledged by the father and he exhibits limited insight of the impact these behaviours have on the victims of his abuse.
c.363. The father has been convicted of breaching the intervention order against the mother and of stalking her. It is apparent from his evidence that the father does not accept that his behaviour constitutes violence and that, despite pleading guilty, he did in fact breach the intervention orders.
d.364. When giving his evidence to the Court the father initially indicated he was about to undertake a Men’s Behavioural Change program, leaving the impression that this was something he was doing voluntarily in recognition that he needed to do something to address his behaviour. It was only when cross-examined by Counsel for the independent children’s lawyer that he conceded that he is only doing this course because he had been ordered to do so by the State Magistrates’ Court as part of his conviction for breach of the intervention order. This again reinforces the finding that the father has no insight about the inappropriateness of his behaviours.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
a.365. In most matters the Court hopes that its orders will cease litigation between the parties.
b.366. Whilst this is the Court’s hope in this matter, the antipathy between these parties makes it difficult to have great optimism that this will be the end of litigation between the parties.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
a.367. As previously set out in this judgment, it is the independent children’s lawyer’s view that it is in [X]’s best interests that she live in the primary care of the mother and spend time with the father.
b.368. In closing submissions, Counsel for the independent children’s lawyer indicated that the independent children’s lawyer’s proposal is based upon the fact that the independent children’s lawyer accepts that the mother has been drug-free since June 2012 and that she is engaged in, and will continue to be engaged in the necessary therapy to address her mental health issues.
c.369. It is submitted on behalf of the independent children’s lawyer it is not known if the father is drug free. The father’s failure to complete all drug screens, his failure to pay for the hair follicle test and indications in the subpoenaed material from Victoria Police that Ms K had reported to the police that the father was continuing to use ice all raise questions in the independent children’s lawyer’s mind as to whether the father is currently drug free.
d.370. The independent children’s lawyer openly acknowledges that the mother has a long standing and troubling history of drug abuse and mental health issues and that during the relationship she lied to the father. It is conceded these behaviours fed the father’s views of the mother and that, to a certain extent, she bears some responsibility for the animus that is exhibited towards her by the father.
e.371. Counsel for the independent children’s lawyer notes that since [X] has been spending four nights a fortnight with the mother there have been no concerns about the mother’s care of [X].
f.372. It was submitted on behalf of the independent children’s lawyer that the evidence of Dr J that the mother is undertaking the treatment that he recommends and that she has been drug abstinent for two years means he no longer has any concerns that the mother be the parent who has [X]’s primary care is very reassuring.
g.373. It was submitted by Counsel for the independent children’s lawyer that the independent children’s lawyer has real concerns in relation to the father’s behaviour.
h.374. The independent children’s lawyer submits that there has to be serious concerns about the text messages sent to the mother and Ms K. It is argued the high degree of premeditation and vindictiveness demonstrated by those messages sent by the father show an intent to destroy the mother and to reinforce her powerlessness.
375. It was submitted on behalf of the independent children’s lawyer that the father shows a pattern of aggression and a level of egotism that is consistent in all his interactions with those he sees as challenging him or his authority. This was demonstrated in his dealings with the police when they were investigating and then charging the father in relation to breach of the intervention order.
j.376. The independent children’s lawyer is concerned about what the effect on [X] has been of what was termed the “serial mothers” that have been dropped into [X]’s life by the father. The independent children’s lawyer questions how confusing this will have been for [X] and also questions what insight the father has in how this impacts on [X].
k.377. Counsel for the independent children’s lawyer expresses concern about the possibility of the father’s parenting style being very similar to the behaviours he displays when crossed in his adult relationships. The independent children’s lawyer points to the tone of the messages sent by the father to the mother when there were instances of parenting with which he disagreed. Those messages show the same level of rage, anger and denigration towards the mother as were exhibited in the messages that gave rise to the intervention orders and subsequent breaches.
l.378. In circumstances where the mother not only acknowledges her behaviours but is actively engaged in treatment to enable those behaviours to be addressed, and where the father does not acknowledge his behaviours, has no insight as to their impact and sees no reasons to address those behaviours, save and except if ordered to do so by the State Magistrates’ Court, the independent children’s lawyer supports orders that place [X]’s primary care with the mother, and at least initially supports limited time with the father in order to enable [X] to consolidate her primary attachment with her mother.
m.379. Counsel for the independent children’s lawyer advised the Court that her instructor, despite the absence of funding, thinks it is appropriate that he remain appointed in the matter for a further 12 months and that he is prepared to request and monitor supervised drug screens from both parties, particularly the mother. In the event there is a failure by either party to undertake such screens or there is a drug screen that is positive for illicit substances, the independent children’s lawyer would immediately seek to have this matter listed before the Court so that the question of [X]’s future living arrangements could immediately be addressed.
n.380. It is therefore submitted on behalf of the independent children’s lawyer that this Court could have a degree of comfort that if persuaded to make orders as sought by the independent children’s lawyer, there would be continued oversight of the living arrangements for [X] for another 12 months into the future.
Parental Responsibility
a.381. As set out earlier in this judgment, the mother is seeking orders that she have sole parental responsibility for decisions with respect to [X]’s education and health care. The father seeks an order for equal shared parental responsibility.
b.382. Neither Counsel for the mother, the father nor Counsel for the independent children’s lawyer sought to make submissions to the Court in relation to this issue. This matter was not raised with the report writer Ms B.
c.383. However, in Ms B’s report dated 6 November 2013 at paragraph 19 she states as follows:
1. As a result of the father’s persistent promotion of his position and view that Ms Hedditch remains untrustworthy and dishonest, he refuses to communicate or interact with the mother. Ms Hedditch asked why he does not provide details of where he lives when with the child, with Mr Fowler responding, ‘you never will, you’re a stalker and a nutcase, you are psychotic and have arranged people to come after us’. Mr Fowler was clear he wishes to have no interaction, communication or coordination with the mother regarding arrangements for the child. He does not believe there is any need to consult or include the mother’s views on any of the day to day decisions, or otherwise, as evident by his statement that the child will be attending the school local to his household that his sons currently attend, and that there will be no discussion or decision that will influence this plan. Ms Hedditch is in dispute about the father’s choice of school, proposing an arrangement that seeks to fund the child at a private school should the child be in her primary care.
a.384. In her viva voce evidence, Ms B indicated that she had a conversation with both the mother and the father in the room at the same time. Ms B indicated that when she asked the mother her views about [X] attending the same school as her older brothers, the mother indicated that it was her wish to send [X] to a small catholic primary school in [C] which is attended by her niece. It was her evidence that the father was very dismissive of this idea.
b.385. It was Ms B’s evidence that the father was very aggressive towards the mother in the joint interview, that she gave the father a number of opportunities to calm down and that when he did not do so she separated the parties.
c.386. It is Ms B’s further evidence that after separating the parties she was hopeful she and the father could speak civilly with each other. It is Ms B’s evidence that the father was very hostile towards her. Because of the father’s hostility, Ms B chose not to challenge the father but rather allowed the father to give what she described as his “very strong barrage of commentary” which included his observations that the mother is “a liar, thief, psychopath and drug addict”.
d.387. Whilst the father submitted in his closing submissions to the Court that he believes that he and the mother would be able to communicate in relation to decisions relating to [X], this is not supported in any way by his evidence before the Court.
e.388. The father’s dislike, in fact hatred of the mother, is palpable and his disdain for her as a person and as a parent permeates his every action.
f.389. It is also apparent that the mother has been, and is, intimidated by the father’s unremitting aggression, disdain and constant negative views of her parenting.
g.390. It is therefore very clear that these parties would not be able to communicate in any sort of meaningful way in order to make joint decisions in relation to [X]’s care.
h.391. The mother has been subject to ongoing domestic violence at the hands of the father and she now has an intervention order for her protection that does not have an end date.
392. In all of these circumstances this is a matter where an order should be made for sole parental responsibility and that responsibility should vest with the parent who has [X]’s primary care.
Consideration of equal time or substantial and significant time
a.393. Where parties have equal shared parental responsibility for a child, section 65DAA of the Act requires the Court to consider the child spending equal time or substantial and significant time with each parent.
b.394. Where the Court makes an order that one or other of the parents have sole parental responsibility, the full Court in the matter of Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346, held that the Court must still consider the possibility of equal time or substantial and significant time in the context of whether such an arrangement would be in the best interests of the child.
c.395. Neither parent is proposing a shared care arrangement for [X]. Given the level of antipathy between the parents, as well as the distance between their respective residences this is appropriate.
d.396. The parties proposals both provide for the parent with whom [X] is not living to spend significant and substantial time with the other.
Conclusion
a.397. As set out at the outset of this judgment, this is a very difficult matter.
b.398. [X] is a young, vulnerable four year old whose parenting to date has been less than ideal.
c.399. In her first two years of life, her parents’ interpersonal issues including drug use by both parents, her mother’s mental health difficulties and her parents’ conflicted and violent dysfunctional relationship meant that neither party placed [X]’s needs and care at the forefront of their behaviours.
d.400. It is the mother’s evidence that post separation she has done everything within her power to address her drug and mental health issues.
e.401. It is the mother’s evidence that she has been drug-free since June 2012 and that she believes she will continue to not use illicit substances into the future.
f.402. It is the mother’s further evidence that she has and is addressing her mental health issues. It is her evidence that she reengaged with her psychologist, Mr C, in June 2012 after her separation from the father and that she has continued to engage with him since that time. It is her evidence that she was recently successful in obtaining funding from Victims of Crime and that this will enable her to continue to engage with Mr C for at least the next 12 months.
g.403. It is the mother’s evidence that she has also engaged with Ms M, psychiatric nurse, to assist her to address the issues around anxiety and that again, her work with Ms M has considerably assisted her to address her difficulties with anxiety. It is the mother’s evidence that she will continue to engage with Ms M for as long as both she and Ms M believe it necessary.
h.404. Whilst the father challenges the evidence that supports a finding that the mother is drug-free, I am satisfied that the mother has been drug-free since June 2012. I accept that the 17 drug screens undertaken by the mother in the last 18 months were properly supervised, that they were done in a timely manner and that there was a reasonable explanation for the drug screens that were missed. I also accept that the hair follicle test established the mother had not used illicit substances in the three months preceding the test, even though the hair tested had been bleached. The enquiries made by the independent children’s lawyer that the hair follicle test would have shown the presence of illicit substances even if bleached is accepted.
405. What is concerning in relation to the mother’s drug use is the question of just how much insight the mother has developed as to the seriousness of her illicit substance abuse prior to and during her relationship with the father.
j.406. Whilst the mother finally acknowledged the extent of her illicit substance use prior to and during the relationship when giving her vive voce evidence, it is quite apparent that when she first separated from the father she had limited insight into the extent of her difficulties with drugs. This is supported by the report by Dr J where he is very clear that the mother showed no insight into her substance abuse problems.
k.407. It is also of some concern that whilst the mother’s evidence is that she engaged with ‘Stepping Up’ for drug and alcohol counselling, her attendance for such counselling was for a relatively short period of time. When she attended in 2013, it is unclear whether counselling stopped because of the mother’s inability to attend due to her work commitments or because she was advised by the counsellors that she no longer needed to attend.
l.408. However, the evidence of Dr J, Mr C and Ms B that two years abstinence of drug use is indicative of future abstinence is reassuring.
m.409. In relation to the mother’s mental health issues, the evidence from Mr C and Ms M of the mother’s engagement with and positive responses to the DBT and cognitive behavioural therapy again is very positive.
n.410. There clearly has been a marked improvement in the mother’s functioning with both Mr C and Ms M being very positive in their prognosis in relation to the mother’s future mental health.
o.411. The necessity for the mother to continue to engage with those professionals remains and the mother’s evidence of her commitment in that regard is accepted.
p.412. As set out previously in this judgment, there are aspects of the mother’s evidence that were less than satisfactory, particularly in relation to her evidence as to her behaviours during her relationship with the father. As already noted in this judgment her evidence as to her drug lifestyle including dealing drugs, the lies she told the father and others and the extent and cause of her mental health issues was not accepted.
q.413. There were also aspects of the mother’s evidence where her efforts to paint herself in the most positive light and to reinforce her somewhat negative view of the father did not help the Court or her case. Perhaps the best examples of this are the manner in which she relayed the text message from the father at the end of the preparation of the second report to Ms B and the evidence given by her at the final hearing in relation to her employment status.
r.414. However, unlike the father, I am not satisfied that this constitutes proof that the mother is an unmitigated liar. I am of the view that the mother’s evidence on these matters is in part as a result of the mother presenting herself in the best light in response to the father’s relentless presentation of her as a lying drug addict with severe mental health problems.
s.415. Whilst the father is self represented and was at something of a disadvantage, he did not help his case in the manner in which he presented his evidence to the Court. In particular, the Court would have been greatly assisted if his first wife had been available to give evidence as she is probably the best person to provide some insight as to the father’s parenting capacity.
t.416. The breakdown of his relationship with Ms K also did not assist the father in many ways. If he and Ms K had retained some degree of civility after separation she may too have been able to provide this Court with evidence as to the father’s parenting of [X].
u.417. Whatever may have been the shortcomings arising from this lack of evidence led by the father, the Court has real concerns about the father’s behaviours, both during and after the relationship.
418. As set out earlier in this judgment, much of the father’s evidence in relation to his behaviours during the parties’ relationship was not accepted by the Court. The Court is satisfied that during the relationship the father was involved in dealing drugs, that he consumed illicit substances other than marijuana and that he was at times violent, both physically and emotionally towards the mother. The Court accepts however there was a level of provocation during the parties’ relationship given the mother’s issues during that period in terms of the lies that she was telling, her mental health issues and her own extensive illicit drug use.
w.419. However, it is the father’s behaviours post separation that are of the greatest concern.
420. The family violence perpetuated by him by way of text messages, email hacking and overt displays of aggression toward the mother and Ms K is very concerning. The father lacks any insight as to the seriousness of the violence committed by him and its impact on the victims of that violence.
y.421. The father cannot, does not and will not accept that the mother is anything other than how she presented during their relationship and as expressed to Ms B, believes her to be “a liar, a thief, a psychopath and drug addict”.
z.422. All evidence that she has and is addressing those difficulties is rejected by the father, even in the face of independent evidence that includes supervised drug screens, a hair follicle test and the reports from Mr C and Ms M.
aa.423. It is apparent from the evidence that when the father encounters those who have a view that differs from his, whether that be Ms B, the police in the person of First Constable G, or at times the independent children’s lawyer or the independent children’s lawyer’s staff, the father becomes aggressive, abusive and not open to any view that differs from his.
bb.424. The father’s evidence that his behaviour towards the mother and Ms K is “normal” when couples break up and that he was “giving as good as he was getting” is also very concerning. It raises the question of what he will do or would do in the event that [X] should question or challenge his views or beliefs.
cc.425. The report writer Ms B was particularly concerned about this aspect of the father’s personality and the impact on his parenting of [X]. As set out earlier in paragraph 42 of her family report, she noted as follows:
1. … The father’s reluctant and extremely angry presentation is highly relevant when considering the fathers capacity to be insightful, empathetic, nurturing and consistent in his responses to [X]. In consideration of the father’s presentation in interviews with the writer for both the initial family report and more recent interviews, it suggests a pattern of behaviour that is deeply entrenched, with no ability to self-regulate his aggressive and explosive behaviour even when in his interest to do so. This then raises questions of [X]’s safety with her father, in addition to how this impacts on her own emotional wellbeing, as she has the profound dilemma of making sense out of vastly contradictory views and experiences communicated by the father.
a.426. The father’s highly negative view of the mother must put into question his capacity to promote a relationship between [X] and the mother.
b.427. The father argues that he has promoted the relationship between the mother and [X] as he has ensured that [X] has spent time with the mother in accordance with all orders made by the Court.
c.428. Further, the father denies he exposes [X] to his negative views of the mother. However, the intensity of his dislike and distrust of the mother is at such a level it is very difficult to accept that [X] is not aware of her father’s views of her mother.
d.429. It is also apparent from the father’s evidence, both in his affidavit material and in his viva voce evidence, that he genuinely struggles with accepting that the mother has anything positive to offer [X] or that it is genuinely in [X]’s best interest that she be given an opportunity to have an ongoing and meaningful relationship with the mother.
e.430. In contrast, the mother genuinely accepts that [X] loves her father, that she has a positive relationship with him and her older brothers and that it is in [X]’s best interest that that relationship be encouraged and supported.
f.431. It is the submission of the independent children’s lawyer that if the Court is satisfied that the mother is drug-free and is properly addressing her mental health issues, then it is in [X]’s best interests that she live primarily with her mother and at least initially spends relatively limited weekly time with the father. It is submitted by the independent children’s lawyer that the Court must have concerns about the father’s post separation behaviours and his inability to support the relationship between [X] and the mother.
g.432. To order a change of residence is not a decision made lightly by this Court and more particularly when it disturbs a long standing living arrangement for a child as young as [X].
h.433. However, in this matter, I am satisfied that change of residence is in [X]’s best interests. The father’s pre and post separation behaviours are such that the Court cannot be satisfied that [X] is not at risk of emotional harm if she remains in the father’s primary care given his grossly inappropriate behaviours post separation towards the mother and Ms K and more particularly, his intractable and unshakeable negative views of the mother which the Court is satisfied [X] is fully cognisant of.
434. Whilst the Court accepts the mother is now drug-free, and is satisfactorily addressing her mental health issues, there must still be some residual discomfort about whether she can maintain these behaviours once the scrutiny of the Court is taken away given her long history of difficulty with those issues.
j.435. Accordingly, it will be vitally important that safeguards are put in place to monitor the mother’s ongoing commitment to remaining drug-free and to continuing management of her mental health issues.
k.436. Orders will be made, with the assistance of the ongoing involvement of the independent children’s lawyer for which the Court thanks him, which will provide that the mother undergo random supervised drug screens upon the written request of the independent children’s lawyer and to do so for the next 12 months. The mother will also be ordered to continue to engage in therapeutic counselling with Mr C for the next 12 months or for as long as Mr C so directs. The mother will be ordered to authorise Mr C to contact the independent children’s lawyer in the event that the mother fails to engage in therapy with him as he reasonably directs.
l.437. Finally, it will be ordered that the mother and [X] reside with the maternal grandmother for a period of not less than two years.
m.438. Given the difficult adjustment [X] will need to make in relation to her change of living circumstances, the mother will be ordered to ensure that [X] continues at [S] until the end of this year. [S] has been the one safe haven for [X] over the last four years.
n.439. The time that [X] will spend with her father will, for the remainder of this year, be in accordance with the recommendations of the independent children’s lawyer and the report writer Ms B.
o.440. However, I think it appropriate that [X] be able to spend school holiday time with her father and in particular her brothers, and provision will be made for that time.
p.441. When [X] commences school next year, orders will be made that will increase the amount of time [X] spends with her father and brothers, such that that time will be each alternate weekend from after school Friday to before school Monday. There will be provision for [X] to spend time with the father and her brothers in the alternate week subject to the father and the mother living sufficiently proximate to enable the father to collect [X] from and take [X] to school the next morning. There will also be provision for school holidays and special occasions.
q.442. Finally, in relation to the question of parental responsibility, it is apparent from the findings in this judgment that it is not in [X]’s best interests for there to be an order for equal shared parental responsibility.
r.443. Given the finding of this Court that it is in [X]’s best interests that her primary carer be the mother, orders will be made that the mother have sole parental responsibility for decisions in relation to [X]’s education and health care. Orders will be made that the mother keep the father fully informed in relation to all decisions made by her in relation to those issues. The father will also be authorised to participate in all aspects of [X]’s education that normally involve a child’s parent and for him to speak to all [X]’s medical treaters.
I certify that the preceding four hundred and forty-three (443) paragraphs are a true copy of the reasons for judgment of Judge Bender
Associate:
Date: 4 July 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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