Hillway and Emmerson
[2010] FMCAfam 592
•18 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HILLWAY & EMMERSON | [2010] FMCAfam 592 |
| FAMILY LAW – Parenting – both parents having a history of heroin addiction and criminal activity – extensive involvement of the Department of Human Services – various injuries to child – serious unexplained burn – ongoing deceit by both parents – whether either parent is now drug free. |
| Family Law Act 1975, Part VII, ss.60B, 60B(3), 60CA, 6OCC(1), 60CC(2), 60CC(3), 60CC(4), 60CC(4A), 61DA, 65DAA Federal Magistrates Court Rules 2001, r.15.29A |
| Applicant: | MR HILLWAY |
| Respondent: | MS EMMERSON |
| File Number: | MLM 4060 of 2006 |
| Judgment of: | Riley FM |
| Hearing dates: | 19, 20, 21, 22, 23, 29 & 30 April 2010 & 3 & 4 May 2010 |
| Date of Last Submission: | 4 May 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 18 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms O'Connell |
| Solicitors for the Applicant: | Fiona McGregor |
| Counsel for the Respondent: | Mr McGann on 19 April 2010 and thereafter in person |
| Solicitors for the Respondent: | Rigoli and Associates until 19 April 2010 and thereafter in person |
| Counsel for the Independent Children’s Lawyer: | Ms Mandelert |
| Solicitors for the Independent Children’s Lawyer: | Bowlen Dunstan & Associates Pty |
ORDERS
THE COURT ORDERS BY CONSENT THAT:
All previous parenting orders be discharged.
The father and mother have equal shared parental responsibility for [X] born [in] 2004.
AND THE COURT ORDERS THAT:
Until 25 June 2010:
(a)[X] live with her mother; and
(b)spend time with her father each week from after school on Friday until 5 pm on Sunday.
From after school on 25 June 2010, [X] live with her father.
After 25 June 2010, [X] spend time with her mother as follows:
(a)from 5 pm on 2 July 2010 to 5 pm on 9 July 2010;
(b)during school term, from after school on Friday to 5 pm on Sunday for the first and second weekends of a three week cycle commencing on 16 July 2010;
(c)during the first term holidays:
(i)in even numbered years, from after school on the last day of term until 10 am on the second Tuesday of the school term holidays;
(ii)in odd numbered years, from 10 am on the Wednesday of the first week until 5 pm on the third Sunday of the first term holidays;
(d)during the second and third school term holidays (other than the second term holidays of 2010), from after school on the last day of term until 10 am on the second Tuesday of the school term holidays;
(e)during the long summer holidays, each alternate week from after school on the last day of term until 5 pm one week later, with changeover at 5 pm, except that the mother is to return [X] to her father by 5 pm on the third last day of the holidays;
(f)from 5 pm Christmas Eve until 5 pm Christmas Day in even numbered years;
(g)from 5 pm Christmas Day until 5 pm Boxing Day in odd numbered years;
(h)from 5 pm on the eve of Mother’s Day until 5 pm on Mother’s Day;
(i)from 10 am until 5 pm on [X]’s birthday where the birthday falls on a non-school day in odd numbered years;
(j)from the conclusion of school until 7 pm on [X]’s birthday where the birthday falls on a school day in odd-numbered years;
(k)such further and other times as may be agreed between the father and mother from time to time;
(l)by telephone at all reasonable times;
(m)or as otherwise agreed between the father and mother.
The time [X] spends with the mother be suspended as follows:
(a)from 5 pm on the eve of Father’s Day until 5 pm on Father’s Day (notwithstanding paragraph 5 above);
(b)from 5 pm Christmas Eve until 5 pm Christmas Day in odd numbered years (notwithstanding paragraph 5(e) above);
(c)from 5 pm Christmas Day until 5 pm Boxing Day in even numbered years (notwithstanding paragraph 5(e) above);
(d)from 10 am until 5 pm on [X]’s birthday where the birthday falls on a non-school day in even numbered years;
(e)from the conclusion of school until 7 pm on [X]’s birthday where the birthday falls on a school day in even-numbered years; and
(f)such further and other times as may be agreed between the father and mother.
The mother allow [X] to communicate with the father by telephone at all reasonable times while [X] is in her care.
Changeover take place:
(a)at school if [X] is at school at the time of changeover; or
(b)at [omitted] Railway Station when [X] is leaving her father’s care; and
(c)at the [omitted] Club when [X] is leaving her mother’s care; or
(d)as otherwise agreed between the father and mother in writing.
The father enrol [X] at [S] primary school in [suburb omitted] with effect from and including term 3 of 2010.
The mother be permitted to attend any of [X]’s school functions normally attended by parents in accordance with any directions of the school.
The mother be entitled to receive copies of all school reports, notices and photo order forms directly from the child’s school at her own cost, if any.
After 14 days, the father be restrained from possessing any swords or any knives for any reason other than an ordinary domestic purpose.
The father and the mother each be restrained:
(a)from using illicit substances and/or from being effected by illicit substances during any period of time [X] is in his or her care;
(b)from exposing [X] to any illicit drugs, illicit drug use and/or illicit drug paraphernalia;
(c)from denigrating the other, or a member of the other’s family or allowing any other person to do so, within the presence and/or hearing of [X]; and
(d)from discussing these proceedings with [X].
The father and mother are to keep each other informed at all times of his or her residential addresses and telephone contact numbers.
The father and mother notify the other forthwith of any significant injury or illness [X] suffers while in his or her respective care and keep the other fully informed of any prescribed or recommended medical treatment.
The father and mother keep each other informed about any specialist appointments for [X] and provide the other with the opportunity to attend such appointments, where practicable.
The father and mother remain actively engaged with their treating general practitioners to manage their ongoing drug rehabilitation.
The independent children’s lawyer be discharged.
All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Hillway & Emmerson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 4060 of 2006
| MR HILLWAY |
Applicant
And
| MS EMMERSON |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders in respect of [X] who was born [in] 2004. [X]'s mother lives in [H] and her father lives in [O]. [X] currently lives with her mother and spends weekends with her father. [X] has a cast eye and a speech disorder but is generally in good health.
The mother proposed that [X] lives with her, continues to attend the local primary school where she is currently a student and spends weekends from Friday at 5 pm to Sunday at 5 pm with her father. The family report writer, Mr L, recommended that [X] live with her father and spend with her mother two out of three weekends from after-school Friday until Sunday evening, or even Monday morning if that were practicable, as well as a substantial amount of school holidays. The independent children's lawyer supported Mr L's recommendations and the father adopted them. He also proposed that [X] attends a Catholic school close to his home.
Mr L’s principal reason for his ultimate recommendation appears to have been that he considered that the father would provide [X] with calm parenting and would set proper boundaries, while the mother was loving but tended to be co-dependent and over-indulgent. Both parents at the time of [X]’s birth were heroin addicts with criminal histories. However, both parents in recent times appear to have substantially changed their approach to life.
The father relied on certain affidavits sworn by himself and his parents in this proceeding. The mother relied on the affidavits sworn by her, her grandmother and Dr J in this proceeding. The independent children’s lawyer relied on the three affidavits sworn by Mr L in this proceeding. Oral evidence was given by the father, his parents, the mother and Mr L. Numerous exhibits were tendered.
Background
The uncontested facts of the case include the following.
The father conceded that he had committed a number of offences relating to illicit substances, possession of regulated weapons and, in 2000 and 2003, wilful and obscene public exposure. He was placed on a sex offender program.
The mother’s police record indicates that she committed a number of offences between 1999 and 2004 relating to shoplifting, handling stolen goods, failing to answer bail, possessing a drug of dependence, making a false document for the benefit of another and loitering for the purposes of prostitution in a public place.
[X]'s parents lived together at the paternal grandparents’ house prior to [X]'s birth in 2004. During the pregnancy, both of [X]'s parents used marijuana and heroin.
When [X]’s mother was giving birth, she left the labour ward to use heroin. [X] was born with a heroin dependency. [X]'s parents separated one week after her birth [in] 2004. [X] remained in hospital for the first six weeks of her life.
The hospital alerted the Department of Human Services to [X]'s and her parents’ heroin addictions. The father conceded that he had been diagnosed with drug induced psychosis in 2003 and that, around the time of [X]'s birth, he had a number of admissions to hospital for psychiatric problems. The mother and father conceded that they had been diagnosed with hepatitis C. [Omitted] Hospital records state that the father had schizophrenia and polysubstance abuse.
The Children's Court made an interim protection order on
1 November 2004 placing [X] in the care of her maternal aunt, Ms J, and maternal great-grandmother, Ms E, with whom the mother was living. A supervision order for nine months was made on 31 January 2005 in substantially the same terms. [X] was to spend supervised time with her father once a week for a few hours at the home of her paternal grandparents.
On 6 July 2005, the mother breached conditions of the order by being drug affected whilst [X] was in her care and by providing a drug screen which was positive for heroin. The Children's Court found the breach proved on 2 August 2005 and made a further supervision order for nine months. On 2 December 2005, the mother consented to the Children's Court finding that she had again breached the order by being drug affected whilst caring for [X].
On 2 December 2005, a further supervision order in respect of [X] was made. Among other things, the order:
a)required the mother to continue to take methadone as prescribed by her specialist practitioner;
b)required the father to attend a psychologist and/or psychiatrist as agreed with DHS; and
c)permitted [X] to spend three hours once per week with her father under the supervision of the paternal grandparents.
The order expired on 1 May 2006. On 5 May 2006, the father filed the present application. He sought equal shared parental responsibility for [X], that she live with her mother and that [X] spend time with her father each alternate weekend from 5 pm Friday until 5 pm on Sunday and overnight each Wednesday.
The matter came before the court on 12 July 2006. Registrar Marrone made orders by consent until further order that [X] live with her mother and spend each Wednesday from 10:30 am until 2:30 pm with her father under the supervision of either of the paternal grandparents or the father's brother Mr S or Mr S’s wife Ms S. The paternal grandfather is a retired [occupation omitted]. The paternal grandmother is a retired [occupation omitted]. The orders provided for changeover to occur at the [omitted club].
On 30 October 2006, orders were made for [X] to spend four hours with her father each Wednesday and Friday from 10:30 am until
2:30 pm. The orders provided that if the paternal grandparents were unavailable for supervision, the mother could supervise [X]'s time with her father.
On 29 January 2007, the orders were varied to allow [X]'s time with her father to be supervised by either of his parents or such other person as was agreed in writing between the parties and the independent children's lawyer. The father misstated the effect of this order in his affidavit sworn on 9 April 2010. He said that the supervisor could be altered by agreement in writing between him and the mother.
The first of three family reports was prepared by Mr L on 18 April 2007. Its main points are set out below.
On 20 April 2007, it was ordered by consent until further order that [X] spend time with her father from 10 am each Wednesday until 2 pm each Thursday and as otherwise agreed. The orders required the paternal grandparents to continue supervising [X]'s time with her father but permitted the father to attend handover provided that he was accompanied by one of his parents. Changeover was changed to the mother's home in [H].
On 2 July 2007, it was ordered until further order that [X] continue to live with her mother and spend time with her father from 1 pm Tuesday until 4 pm Thursday each week. It was also ordered that the paternal grandparents be present during all overnight periods spent by [X] with her father and be in substantial attendance during all day time periods. More particularly, the father was not to spend more than one and a half hours away from the paternal grandparents when he was with [X]. The orders also required that any alternative supervisor be nominated by the father seven days in advance and be subject to the consent of the mother and the independent children's lawyer. The paternal grandparents gave the necessary undertakings to the court. A final hearing was scheduled for 11 April 2008.
Dr J was engaged by the independent children's lawyer to provide a psychiatric report in respect of the father. Dr J provided his report dated 27 March 2008 in the form of an affidavit sworn on 13 May 2008. Its main points are set out below.
In early March 2008, [X] sustained an injury which has been described as a burn. Photographs show a symmetrical, semicircular injury to [X]'s buttock area. The injury is a wound which at different points seems to be between one and three centimetres wide. The wound goes in a line from [X]’s tail bone to hip level on each side. Each parent says the injury occurred while [X] was in the other's care. This issue is discussed in detail below.
The mother took [X] to a GP on 10 March 2008 for treatment for the burn. The GP reported the matter to DHS which brought proceedings in the Children's Court. On 25 March 2008, the Children’s Court ordered that [X] be placed on an interim accommodation order with the maternal great grandmother, and the mother be permitted to live with her.
The final hearing in this court scheduled for 11 April 2008 was adjourned to allow the Children's Court proceedings to be concluded. The proceeding in this court was adjourned by consent until 15 October 2008, then to 17 November 2008, then to 20 April 2009, then to
22 October 2009 and then, finally, to 19 April 2010, when the hearing commenced.
In the Children’s Court, an interim accommodation order contest hearing was held on 6 and 7 May 2008. The mother, the father and DHS were separately represented. The Magistrate, Mr Levine, found in a judgment dated 9 May 2008 that the injury occurred when [X] was in the care of her mother, or possibly her grandmother, but not the father. However, his Honour was not able to determine how the injury occurred. His Honour ordered that [X] be placed in the care of the paternal grandparents on an interim accommodation order. [X]’s time with her father was to be supervised more or less on the terms of the then current orders of this court. [X] was permitted to spend from
1 pm each Tuesday to 4 pm each Thursday in the care of the maternal great-grandmother, who was to monitor the mother’s time with [X].
A second family report was prepared by Mr L on 30 November 2008, when [X] was four years old. Its main points are set out below.
On 3 August 2009, the department provided an Addendum Report to the Children’s Court. It concluded:
Both parents, when offered the opportunity, have parented [X] during contact in their homes. This access has [been] monitored by the paternal grandparents and maternal great grandmother.
Mr H, Mrs H and Mrs E have not reported any safety concerns in regards [to] the capacity of either parent to parent [X]. They are confident that both Ms Emmerson and Mr Hillway will be able to parent [X] with supports in place.
While both parents have addressed the protective concerns around [X]’s day to day care she is at risk in the future if
Mr Hillway and Ms Emmerson resume those behaviours associated with a longstanding heroin addiction: the possibility of relapse, offending to source the money necessary to buy drugs, parenting while under the influence of heroin, dishonesty in their admission of use of heroin and not acknowledging what is needed to manage that use.Mr Hillway and Ms Emmerson are required to accept that as parents to [X] they need to prioritise their child above their addiction and make a commitment to [X] and the Court to provide urine screens and undertake regular drug counselling to prevent relapse.
Ms Emmerson has the ongoing support of a Family Service provider in regards to parenting and Mr Hillway is seeking this out as well.
A family meeting was held to try to address the access and future primary care arrangements for [X]. While no agreement was able to be reached, all parties were in agreement that while subject to the Supervision Order an Application will be made by Mr Hillway and Ms Emmerson to the Family Court.
An updated Report from Dr L for the management [of] the primary care arrangements and access issues will be sought for [X] before she commences school in February 2009 (sic).
…
It is respectfully recommended that [X] be subject to a six month Supervision Order to Mr Hillway and Ms Emmerson pursuant to Section 280 of the Child Youth & Families Act (2005).
On 3 August 2009, the Children’s Court made orders that were described by Mr L as follows:
… a 6 month Supervision Order was made in the Children’s Court before Magistrate Levine, the provisions of which included inter alia that the Father and the Mother must take the child to a Paediatrician for assessment, must allow any recommended treatment to be carried out and must allow Reports to be given to the Department of Human Services, the Father and the Mother must submit to random supervised drug testing, the Father and the Mother must participate in assessment and/or treatment for alcohol and drug dependence as directed by the Department, the Mother must not drink alcohol to excess or use illegal drugs when with the child, the Father must not expose the child to the drinking of alcohol or use of illegal drugs and the child live with her parents according to the following schedule unless otherwise agreed between the parents:
(a) On the first week, commencing 3 August 2009 and every second week thereafter, [X] reside with the Mother from Sunday through to Thursday. [X] then reside with the Father from Thursday to Sunday.
(b) On each alternate week to that referred in (1), [X] reside with the Mother from Sunday to Wednesday. [X] then reside with the Father from Wednesday to Sunday.
(c) Access handovers to occur at 12 noon at [omitted] Police Station unless otherwise agreed between the parties.
The arrangement was basically three days with one parent in one week and four days with that parent in the next week, and the remainder of the time with the other parent. That arrangement lasted until
2 February 2010, when the last Children’s Court supervision order expired.
At some time in 2009, [X]’s cheek, below her eye, was grazed when a shoe hit her. On about 13 September 2009, [X] suffered a cut to her hand between her thumb and index finger. On about 13 December 2009, [X] was bitten by a dog. These incidents are discussed in detail below.
At an unspecified time, the father acquired a collection of swords and knives which he currently owns.
On an occasion in or around September 2009, the father decided not to spend his allotted time with [X] because he needed extra time for “something” he wanted to do. The father tricked the paternal grandfather into thinking that [X] was with the father, as per the court orders, and boasted to the mother on the telephone that he had been able to easily deceive his father. When this matter came to light during the course of the hearing, the father apologised “to everybody”. When the father was expressly asked what he wanted to do that made him decide not to spend time with [X], he said he was unable to recall.
When the supervision order made on 3 August 2009 expired on
2 February 2010, the arrangements for [X] officially reverted to the interim orders made by this court on 2 July 2007. They provided for [X] to live with her mother and spend from 1 pm Tuesday until 4 pm Thursday each week with her father.
[X] commenced school in February 2010 at a primary school close to her mother’s home in [H]. The circumstances surrounding [X]’s commencement at school are discussed below.
As it was not practicable for [X] to spend time with her father from Tuesday to Thursday while she was going to school, the parents made their own arrangements for [X] to spend weekends with her father.
Mr L provided a third report dated 17 March 2010. The main points in that report are set out below. Mr L did not know when he wrote his reports that the father had a collection of knives and swords or that he had deceived his father in the manner described above in September 2009.
The first family report
The first of three family reports was prepared by Mr L on 18 April 2007. [X] was then two and a half years old. Mr L noted that [X] was a friendly girl who was “not cautious or inhibited by temperament”. He said that the mother “managed the unremitting demands of a two-year-old with warmth, patience and a fair measure of skill in distraction and substitution”. When observed with her father, Mr L said that [X] became a little impatient at the attention that the adults were giving
Mr L, because she wanted to play with her father. However, Mr L said that the father managed that situation well and was able to share his attention between Mr L and [X].
Mr L also said:
I saw no signs of apprehension or anxiety in [X] while in the care of her mother, her father or her grandmother. [X] is quite attention seeking, and this in some ways reflects her stage of language development where she is not yet able to intervene to express her needs. Her behaviour when seeking attention is not disruptive nor does she act out. Both her parents manage her attention seeking well with simple verbal responses and signs of affection.
Mr L concluded:
7.1 In my observation, [X] has her primary attachment to her mother, … and [a] robust and warm father-daughter bond with [her father]. She is comfortable and at ease in the care of each of them.
7.2 [X] also derives considerable pleasure and comfort from being with her paternal grandparents ….
…
7.6 [In view of her parents’ heroin addiction,] it is my opinion that it is especially important for [X] that her parents share equal parental responsibility for her, so that she has the support of one if the other is incapacitated, and so that problems that emerge for [X] (she will, for example, soon need treatment for an eye abnormality) can be managed by them together.
7.7 Their present conflict makes this difficult, but this is why that conflict itself is the major extant threat to [X]'s welfare, rather than either of their problems or attempts to deal with them on which they tend to focus.
7.8 Further, it is my view that [X] should remain living with her mother, … and is now ready to begin spending substantial and significant time with her father … of the order, in the first instance, of one night a week, building to two nights in about three months time.
7.9 I think it prudent that the time [X] spends with her father continue to be supervised by her paternal grandparents because of the important supportive bonds she has with them….(emphasis added)
7.10 I would allow this requirement to lapse once [the father’s] treating practitioner certifies that his dependence has been stably managed for 12 months.
…
7.12 I consider that the provision in the orders of 29 January 2007, that the paternal grandparents or either of them shall effect handover at the commencement and conclusion of the father's supervised time with the child, remains an important strategy for avoiding further conflict between [X]'s parents. If practicable, it would be best for [X] if handover could occur at her home.
Dr J’s psychiatric assessment of the father
Dr J was engaged by the independent children's lawyer to provide a psychiatric report in respect of the father. Dr J provided his report dated 27 March 2008 in the form of an affidavit sworn on 13 May 2008. The mother tried to call Dr J, but was unable to pay his fee in advance so he declined the mother’s request to attend court. Counsel for the independent children’s lawyer said that she did not intend to call Dr J and the independent children’s lawyer would not pay for his attendance. Consequently, Dr J was not cross-examined.
In all the circumstances of this case, I consider that it is proper to receive Dr J’s affidavit in evidence pursuant to rule 15.29A of the Federal Magistrates Court Rules 2001, even though Dr J was not available for cross-examination. Dr J is an independent expert of considerable experience.
Dr J said the father was a never married 33-year-old who was on a disability pension for reasons of depression and who was living at home with his parents in [omitted]. He said he had not worked since the age of 24.
The father told Dr J that:
a)he had displayed some bullying behaviour at school;
b)[X] had to stay in hospital after her birth to withdraw from methadone;
c)the mother “did really well in dealing with her heroin problem and looking after the baby”;
d)he had slapped the mother in response to her slapping him;
e)following separation he and the mother continued to have arguments, but there was no physical violence.
Dr J described the father as follows:
[physical description omitted]. He had a stern and rigid manner. His speech and thought stream were fluent and coherent and he described no bizarre beliefs or abnormal sensory perceptions. He was alert and attended well to the interview.
Dr J concluded that:
… The bullying behaviour in primary years, admitted history of violence and alleged violence, patchy relationship history and history of criminal offending suggests an Antisocial Personality Disorder. The past abuse of alcohol, marijuana and heroin constitutes Polysubstance Abuse. The history of mood disturbance and reportedly psychotic symptoms probably reflects substance related disorders as well as character pathology.
Antisocial personality disorder is a descriptive term referring to disturbed conduct in childhood and criminal offending in adulthood. It is not amenable to treatment. …
There is a past history of mood and possibly psychotic disorder associated with substance abuse, but there is no current mental disorder. No psychiatric treatment is currently required.
There was insufficient data in the family report for me to gauge what, if any, parenting skills Mr Hillway possesses. I did not identify any period of assessment where he was seen alone with the child.
Factors suggesting an elevated risk of harm to others include male gender, single status, unemployment, low income group, past violence, past sex offending, past major mental illness, likely personality disorder, substance abuse, relationship instability, young age when first violent and past sexual disinhibition. That constellation of risk factors suggest a high long-term risk of harm to others. That harm can be minimised by a cessation of substance abuse and, hopefully, gaining regular employment and establishing a stable relationship. Such positive steps would improve the prognosis.
In the meantime I recommend that access continue to be substantially supervised in accordance with the Orders … dated 2 July 2007.
The second family report
A second family report was prepared by Mr L on 30 November 2008, when [X] was four years old. In relation to the father, Mr L said:
4.1 Mr Hillway presented at interview as a much more focused, confident and assertive man than I had observed him when we had met previously. Mr Hillway’s focus was clearly on [X], on providing her safety and stability which he sees as best assured by her having a stable base for her week with him. He is quite clear that he will continue to engage the active support of his parents in this task and that he wants ‘to see lots of her mother ... she loves her mother ... I don’t want to take her away from her mother in any sense ... I just want to be able to make sure she is safe.
4.2 He had been a little shaken by Dr J’s assessment of him because of its focus on past behaviour ‘that suggests and (sic) Antisocial Personality Disorder’ rather than on the significant role he has now assumed in seeing to [X]’s care. Nonetheless, I detected no signs of attempting to avoid or minimise his previous substance use and dysfunctional behaviour.
4.3 I indicated to [Mr Hillway] that while Dr J’s tentative DSM-IV-TR diagnosis must be based in this way on his prior behaviour and presentation at interview, the substantial changes he had made in his lifestyle over the past several years were the best indicators that any problems he had in that regard or with an immaturity of personality were being addressed.
4.4 I also said that I do not share Dr J’s view that patterns of behaviour such as Mr Hillway’s are ‘not amenable to treatment’ and consider that there are several cognitive-behavioural approaches that have shown fair measures of success where motivation is maintained.14 For this reason, I do share Dr J’s view that engagement with a professional counsellor would further assist Mr Hillway in this regard as well as with his continuing management of his substance dependence.
14 cf.: e.g. Davidson, K (2007) Cognitive Therapy for Personality Disorders: A Guide for Clinicians Routledge ISBN: 978-0-415-41558-3 ‘…It is increasingly recognized that a significant number of individuals with personality disorders can benefit from therapy ... cognitive therapy can reduce a patient’s tendency to deliberately self-harm and to harm others; it also improves their psychological well-being… [among] patients who are traditionally regarded as being difficult to treat: those with borderline personality disorders and those with antisocial personality disorders’.
4.5 All this leads him to focus on what he sees as the burden to him and his parents of his time with [X] having to be ‘supervised’. I spoke with him at length about why my recommendation was likely to be that this remain the case when [X] was with him, and when she was with Ms Emmerson. Much of the substance of this part of our discussion is reflected in my recommendations at … 7.3 & 7.4 below.
4.6 Mr Hillway also believes that the current arrangements for [X]’s transport between her parents are unsustainable and that, because of the need for his parents’ involvement the burden had fallen unfairly on him and them to date. He is concerned that
Ms Emmerson assumes this will continue if she does not have DHS support. I do not know how this is best handled, but agree that it will become a recurrent problem if not addressed.Mr L said in relation to the mother:
5.1 Ms Emmerson’s discussion with me on this occasion had the constant theme of her wanting things to ‘normalise’ for her with [X] after what she clearly sees as a period of unwelcome disruption to what she views as the proper order of things. She seemed to me even to have ‘routinised’ if not minimised this disruption and its causes and I found it quite dissonant that there was no attempt at further explanation of any contribution she had made to it.
5.2 Another example of what I saw as a somewhat naïve attempt to brush aside genuine concerns for the sake of a new normalcy came when she told me that while ‘[X]’s happier now…talking about her cousins at her grandparents place… she missed her Nana’s birthday because they wouldn’t be flexible’. I said at the time that I thought ‘talk or expectations of flexibility in the current circumstances are a bit optimistic’, and Ms Emmerson seemed surprised, as if she had no sense of the weight [of] the matters that had led to the Interim Accommodation Order or of Mr Hillway and his parents’ concerns for Ms Emmerson in her care.
5.3 In response to my prompt that I thought, at first glance, that both she and Mr Hillway should be very directly and regularly involved in [X]’s care, Ms Emmerson said that she believes that [X] should now spend ‘4 days here and 3 days with him … I’m happy to have her have time with him … his still needs to be supervised … mine is monitored’. I think she was indicating this for my agreement that others considered that she was of less risk to [X] than Mr Hillway. This is not my view.
5.4 She wants [X] to ‘go onto 4 year old kinder at my place ... it’s just across the road’. To achieve this, her suggestion is that ‘[X]’s with me from Monday at 11ish till Friday after kindy’. She thinks ‘Mr Hillway would prefer weekends … I’d like some flexibility’.
5.5 Ms Emmerson told me that she was ‘still on ’done’ and indicated that she felt she had her opiate dependence well managed. She is inclined to assume that others will share her confidence that this is so as part of the same ‘normalisation’ and again seemed surprised when I suggested a preliminary view that similar arrangements should be applied to her and Mr Hillway. It was clear that she did not agree with me.
5.6 It appeared to me that, while Ms Emmerson’s clear intent was to have matters settled, this was as much a form of implicit comment on her own needs and wishes as it was on [X]’s.
Mr L said in relation to [X]:
6.1 I saw [X] on 3 occasions for the purposes of this report. She remembered me quite well from our previous meetings. On different occasions, she told me different things about how she would like to spend her time, and I do not think she has any formed or even age-appropriately mature view about the matters. On occasion, she was inclined to say by rote that she wanted to spend ‘2 days at Daddy’s’. I tried once to have her count some pencils to see if she had a sense of the content of her request and she routinely counted 2 pencils as 3.
6.2 She would readily agree to any prompt that suggested she should see ‘lots of Mummy and lots of Daddy’ and would happily describe for me toys she had at her mother and father’s homes, furniture in her bedrooms (which she insisted on showing me at her paternal grandparents’ home) and things she liked doing with various family members. But, whenever I came close to direct suggestions about time to be spent she would fall back very inflexibly to saying ‘2 days with Daddy’.
6.3 This was confounded even more whenever I mentioned concepts of ‘where you like to live’. Her response to this tended to involve the last parent she had spent substantial time with. On different occasions she told me she wanted to ‘live with Daddy … he’s got a new house … and my tent is in Daddy’s new shed’ and ‘to stay with my Mummy … I don’t want them to take me away from my Mummy’.
6.4 I observed what I thought were differences in [X]’s behaviour when at her father’s or her mother’s. When with Ms Emmerson she seemed more cautious on occasion, looking to her mother for cues about how to respond to me and waiting for her mother to initiate or approve activities. This was at odds with what I would otherwise judge to be her fairly extroverted temperament.
Ms Emmerson was inclined to answer for [X], but to ascribe the answers to her. The interactions between the 2 were, nonetheless, warm and affectionate. I think I also detected signs of greater indulgence in [X]’s responses to me on different occasions about things her mother gives her and promises her.6.5 [X]’s behaviour when with her father at his parents’ home was more independent and ebullient. Mr Hillway managed her behaviour with simple, warm and affectionate verbal interactions, including several occasions when she displayed a little attention-seeking. I saw no signs of apprehension, withdrawal or disruptive behaviour during the time I observed them together.
6.6 From my observations and interviews, I am quite confident in my previous assessment that ‘[X] has her primary attachment to her mother, Ms Emmerson and robust and warm father-daughter bond with Mr Hillway’ although 1 think there is some insecurity in her attachment to her mother. That said, [X] is generally ‘comfortable and at ease in the care of each of them ... [X] also derives considerable pleasure and comfort from being with her paternal grandparents, Mr H and Mrs H’ and also from spending time with her maternal great-grandmother.
In conclusion, Mr L said:
7.1 I remain of the view that shaped my recommendations in my previous report that [X] needs access to the care of both her parents if the best outcomes are to be had for her welfare and development.
7.2 In my view, Mr Hillway and Ms Emmerson should retain shared parental responsibility for [X].
7.3 Professionally though, I am obliged to take note of the conclusions of my colleague, Dr J and also the proceedings that have led to the issue of Interim Accommodation Orders. I am concerned that there is still no satisfactory explanation of the injury [X] sustained while in her mother’s care, and these factors lead me to recommend that the time that [X] spends with either parent remain supervised.
…
7.5 [X]’s wishes about how she spends her time with her parents are confused, immature and ambiguous: they often reflect the wishes of the last parent with whom she has spent time, to the extent that I am certain that they involve a fair measure of balancing, , if not compliance.
7.6 In my observation, she enjoys good bonds with both
Mr Hillway and Ms Emmerson and members of her extended families. She is relatively comfortable and at home in both parents’ care, although she displayed a little more vigilance in interaction with me while with her mother.7.7 Mr Hillway and Ms Emmerson show some differences in parenting styles: Ms Emmerson is inclined to co-dependency on occasion and on others to treat [X] indulgently and as having a maturity beyond her years; Mr Hillway is clearer in setting boundaries and expectations, without being authoritarian.
7.8 It is my view that a significant amount of the stability which I consider is presently extremely necessary for [X] has been achieved under the terms of the Interim Accommodation Order, and that it would be imprudent to disturb those arrangements greatly.
7.9 In my view, [X] should now share her time among her parents as follows:
7.9.1 With her mother, from after kindergarten Thursday until Saturday morning in each week;7.9.2 With her mother, from Saturday morning until Monday morning fortnightly;
7.9.3 With her father at other times.
…
7.14 These arrangements will need revision when [X] starts school, and in my view that is an appropriate time to make provision for holidays.
The third family report
Mr L provided a third report dated 17 March 2010. In that report, Mr L said in relation to Mr Hillway and Ms Emmerson:
4.1 I spoke with Mr Hillway at my rooms and had the opportunity to speak with [X] there as well and to observe her with her father. Some confusion about appointment times meant that I had to make alternative arrangements to visit Ms Emmerson at her home while [X] was there.
4.2 I have decided not to report verbatim the substance of my conversations with [X]’s parents: their versions of even the most simple events are so divergent that either one or both of them has to have been giving very partial accounts of the nature of their past and present relationship and of events involving [X] since I last saw them, especially decisions about her medical treatment and schooling.
4.3 There is little purpose served by my repeating claims made at interview and already well detailed in documentary materials, other than heaping hearsay on hearsay. Cross-examination is a better test of veracity where claims are as contradictory as they are here, and when they go so directly to the heart of the issue of how to secure stable and safe care for [X], from which base she can grow and flourish.
4.4 I do note, however, that I have been consistently concerned that Ms Emmerson has been disingenuous with me in her choice of what she told and did not tell me, and in the particular colour or emphasis she chose to give to various events and circumstances that were important to assessing the current and past family dynamic, and the adequacy and safety of her parenting skills. I had this concern again, but this will be something that the Court will determine.
In relation to [X], Mr L said:
5.1 [X] is a vivacious and outgoing girl who remembered me from out (sic) previous encounters. She engages readily at a superficial level, but becomes quite stressed and even distressed and contrary when the conversation is steered towards her medical treatment. She sees a need to protect her relationship with her mother and is apprehensive about discussing these matters because she knows that doing so might impact on that.
5.2 She originally denied to me that a scar on her face was caused by a dog bite, but confirmed that it did later when with her father and he said it was alright to say what happened. Similarly when I cautioned her about being too aggressive in disciplining her dog, [B] lest it bite, she clearly looked to her mother for a non-verbal cue that it was alright to speak to me about it. When I asked whether another scar had been caused by a shoe hitting her, she at first denied it but later told me that ‘the shoe jumped up all on its own and hit me’.
5.3 I can only surmise about where [X]’s apprehension about discussing these things might have come from, although in her father’s presence [X] told me that ‘Mummy told me don’t tell’. However, I cannot give this too much weight because she also told me in her mother’s presence when I asked about her father that she ‘hate[s] him’ and is fairly clearly inclined, I think, to tell both parents what she thinks will please or, perhaps more importantly, what will not offend them. The conflict in her because of this is manifest.
5.4 I saw it acted out in strong attention seeking, withdrawal, disruption and aggressively defiant behaviour with both parents. In my observation, Mr Hillway was able to stop this more readily by physically containing [X] in a hug and calming her verbally. Ms Emmerson tried to manage it with only moderate effect with some time out.
5.5 Another observation I made of [X] ‘disciplining’ her dog, [B] also concerned me: [X] stood over the dog in a quite menacing way, she was waving her finger very close to the dog and speaking in an agitated and raised voice. I can only hope she has not learned this way of trying to manage behaviour from either of her parents. In my view, it will be imperative that both of them get assistance with parenting skills if they are to manage some of the problem behaviour I believe [X] is beginning to display effectively.
In conclusion, Mr L said:
6.1 Little has changed in the history of this matter or from my recent interviews and observations that would lead me to change my conclusion that [X]’s care, welfare and development will be best served by the active engagement of both her parents. This is now more difficult to achieve because [X] is at school and her parents do not live near one another.
6.2 [X] is now quite a conflicted girl: she is enmeshed in her parents(’) dispute and would either not speak openly with me about recent injuries she had suffered or confabulated explanations of them that sought to deny any involvement of her mother in them. In my observation she displayed quite sudden shifts of mood and behaviour when any of these matters were raised.
6.3 She also has physical needs that need consistent and structured attention. This [is] already happening with her eyesight, and although I have not assessed it formally, I suspect that she may need assistance with some elements of her speech as well.
6.4 [X] is also showing some signs of oppositional and defiant behaviour that is not usual for her age and that will need clear boundary setting and consistent management if it is not to degenerate further.
6.5 On balance, I still consider that the type of environment and parenting that will best address her present needs will be had if she lives with her father and spends substantial and significant time with her mother.
6.6 And I remain of the view that arrangements very similar to those I recommended in my report of 30 November 2008 (cf. §2.47.9 above) would best achieve this while acknowledging the pattern of [X]’s attachments and consolidating her relationships with both parents(.)
6.7 If her parents cannot secure living arrangements from which she can attend the same school when with either of them, my suggestion is that she stay with her father for most of the school week and spend time with her mother from after school Friday until Sunday evening (or even Monday morning if that is practical) on 2 weekends out of 3, and for a substantial amount of the school term holidays.
6.8 Both Mr Hillway and Ms Emmerson should be actively involved in having the range of [X]’s physical and behavioural needs assessed and treated, and the sort of cat and mouse game that seems to have emerged about her treatment needs to end if their daughter is not to be further harmed.
Mr L’s oral evidence
Mr L made it clear in oral evidence that he did not consider one parent to be a dramatically better parent for [X] than the other. He indicated, on balance, that he thought that the father’s calm and boundary-setting approach was better for [X] than the mother’s more emotional and possibly co-dependent approach.
Mr L said in oral evidence, in answer to questions from the court, that he thought that the father could manage to care for [X] without the active involvement of his parents but that it would be wise to enlist their support. Mr L said that, if the parents lived within about 20 minutes drive of each other, he would have recommended a five/nine or six/eight split.
Mr L said that he had seen the father four or five times over the years. He said that, when he saw Dr J, the father seemed to have engaged in minimisation and denial. However, Mr L considered that, more recently, the father had said to him that he was prepared to take more responsibility for his past behaviour. Mr L formed the view that the father was serious about his stated intention to be actively involved in [X]’s care.
Mr L’s reports and evidence as set out above did not take account of the fact that the father has a collection of knives and swords and did not take account of the deception the father had practiced on the paternal grandfather in September 2009. In relation to the knives and swords, Mr L said that, from a safety perspective, they should be under lock and key and [X] should not know that they were in the house.
In relation to the deception by the father of the paternal grandfather,
Mr L said it was a stupid act. He said he was concerned about why the father would have done such a thing. He said that it caused him to consider that the father’s progression away from his former anti-social behaviour was not as solid as he had believed.
Mr L said that these matters did cause him to reconsider his recommendations. However, Mr L then said that he was more concerned about the mother’s ad hoc, implausible explanations for [X]’s injuries and why the mother had started [X] at school. Overall, Mr L said that he had been very concerned about the mother’s deceptions and had felt that the father was being open and frank with him. Perhaps more importantly, Mr L felt that [X] had not actually been schooled by her mother in deceit but had somehow “caught” the mother’s approach to the truth.
Particular issues
The parties were particularly concerned during the hearing with the following issues. The findings set out below are based on the evidence as a whole.
Whether the father is still using heroin
Exhibit 1 consists of the results of the father’s supervised urine drug screens on 3 January 2010, 11 January 2010, 18 January 2010, 8 February 2010, 28 February 2010, and 25 March 2010 and 10 April 2010. All of the results were the same. They indicated that methadone metabolites but no other drugs were detected.
The father claimed that he was no longer using heroin. The mother maintained that he was. The mother said that in or around 2006, [X] found syringes and a pocket knife in the father’s bag. The mother also said that, on 4 October 2009, the father was clearly drug affected at changeover. The mother said that [X] told her that she and the father had stopped at the father’s friend’s place and the father had later stopped the car and made [X] stay in the back. The clear implication was that the father had bought heroin as recently as 4 October 2009 and had administered it to himself in [X]’s presence and while he was in charge of a motor vehicle. If that were true, it would be a matter of very considerable concern.
The father also, by his own admission, deceived his father as recently as September 2009 by saying [X] was with him when she was not. The father claimed he could not recall why he did not have [X] for the allotted period. In the overall context of this case, it is reasonable to suspect that the father was using drugs, or doing something else that he did not want to admit, as recently as September 2009.
However, in all the circumstances of this case, I conclude on the balance of probabilities that the father has not used heroin since January this year. In coming to that conclusion, I rely on the drug screens provided by the father. I have residual suspicions about the father’s drug use, but the evidence leading to those suspicions is not sufficient to support a finding. In particular, for reasons discussed elsewhere in this judgment, the mother is not a particularly credible witness. In any event, her evidence on the issue of the father’s drug use does not deal with the period since January 2010.
Whether the mother is still using heroin
Exhibit 9 is a bundle of drug screens for the mother for the period February 2006 to July 2009. They show various things. For example, the tests on 1 July 2009, 18 June 2009 and 2 June 2009 indicated that benzodiazepines, opiates and methadone metabolites were detected.
None of the parties produced expert evidence about what the test results actually mean. The mother maintained that the benzodiazepines that she had used were legally prescribed valium. She acknowledged that heroin falls within the class of opiates, but said that she had actually used another legal drug which falls within that class, namely, codeine.
The mother claimed that the drug screen results in some cases broke down the benzodiazepines and opiates into the particular drugs that she had taken. The mother referred the court particularly to the results for 22 June 2009. On that occasion, no opiates were detected. The analysis included the following statement:
GCMS CONFIRMATION: GC/MS analysis identified OXAZEPAM, TEMAZEPAM and NORDIAZAPAM.
Mr L, who has worked as a drug and alcohol counsellor, gave evidence without objection that Oxazepam, Temazepam and Nordiazapam are types of benzodiazepines. In the absence of any particular evidence that the mother was taking such drugs inappropriately or illegally, I accept that her benzodiazepine use was not untoward.
The mother also drew the court’s attention to a statement on the results for 18 June 2009. On that occasion, opiates were detected. The analysis included the following:
Positive immunoassay results without GC/MS confirmation are presumptive only.
…
GCMS CONFIRMATION: GC/MS analysis could not specifically identify any major members of the opiate class or their metabolites above the AS 4308 - 2008 cutoffs.
This urine should be regarded as being negative for the presence of Opiates.
None of the parties adduced any expert evidence about what that statement might mean. I presume that AS means Australian Standard. Otherwise, I take the statement at face value and regard the analysis on 18 June 2009 as being negative for opiates.
However, the results for 2 June 2009 and 1 July 2009 indicated the presence of opiates. The analysis included the statement that positive results without GC/MS confirmation are presumptive only. On the other hand, the analysis did not contain any statement that the sample should be regarded as negative for the presence of opiates. In the circumstances, I consider that the presumption should apply and I should regard the results as being positive for opiates.
I also note that shortly before the hearing commenced in this matter, the independent children's lawyer wrote to the mother’s solicitor requiring the mother to do a supervised urine test within 24 hours. The mother told the court that she had been busy. She did not have the test for 72 hours after the request was made. At that time, it was negative for opiates.
I draw an adverse inference from the delay in the mother undergoing the urine test. Although the mother may have been busy, if she had been drug free, it is to be expected that she would have given absolute priority to a drug test shortly before the final hearing was to commence, given that the mother's heroin use was likely to be a significant issue in the case. The fact that the mother did not have the drug test done within the specified period suggests that she knew it would be positive for opiates.
The father gave evidence that on 22 December 2006, the mother’s grandmother telephoned him and said that the mother was ill and needed his assistance. The father went to the mother’s house. He said that the mother screamed at him and demanded that he buy drugs for her. The implication was that the mother wanted heroin. The mother denied these allegations.
The mother’s grandmother swore an affidavit in this proceeding on
27 June 2007. However, it did not touch on the incidents alleged to have occurred on 22 December 2006. The mother said that she wanted her grandmother to give evidence but said she was sick on the two days of the hearing when it would have been appropriate for her to give evidence. There was no medical evidence to support that claim.
The father’s counsel played two tapes to the court that she said were made on 22 December 2006. The tapes were not tendered or transcribed. The father did not identify them in his evidence.
The mother was cross examined about the tapes. She admitted that the first tape recorded her swearing and shouting with [X] in the background. The mother admitted that, on the first tape, she said that she would take [X] with her, but it was not audible from the tape where she meant. The mother initially admitted that the first tape was made in December 2006 but then said it could have been made any time because she had had a lot of arguments with the father.
The mother admitted that the second tape recorded her grandmother’s voice saying, “You know what she wants, [Mr Hillway]”. The mother said that the grandmother was not referring to heroin but to the mother’s methadone which she needed over Christmas.
The father said that, on 22 December 2006, he found [X] at the mother’s place with a dirty nappy, and having obviously been left to cry for a long time. The father said that the mother was in no state to care for [X] on that occasion. The mother insisted that she was always able to care for [X].
On 23 April 2010, the matter was adjourned until 2.15 pm because counsel for the independent children's lawyer suffered an injury in the morning and it was unclear when she would be able to return to court. At lunchtime, the mother was found in the precincts of the court vomiting. She had to be taken to the sick bay. Court staff offered to call an ambulance for her. However, the mother said she would make her own way to hospital rather than wait for an ambulance. Ultimately, the mother told the court that she did not go to hospital. She claimed that she must have eaten something bad for lunch.
In these circumstances, counsel for the father invited the court to infer that the mother had used heroin during the course of the morning of 23 April 2010 and had avoided being taken to hospital because she knew that if she went there she would be tested for drugs.
It is well known that heroin causes many users to feel nauseous and vomit. It is also well known that food poisoning usually takes some hours to show symptoms.
In all the circumstances, and on the balance of probabilities, I find that the mother via her grandmother did ask the father to obtain heroin for her in December 2006. I find that the mother has continued to use heroin from time to time. I also find that the mother’s claims that she was no longer using heroin were false. These false claims indicate that the mother is not a witness of truth.
The significance of the mother’s continuing heroin use is primarily that it compromises her ability to care for [X]. As a heroin addict, it is likely that the mother will prioritise her wish to have heroin over her wish to care for [X]. That could result in [X] being neglected or placed in a dangerous situation.
The mother also claimed that the father in the past had facilitated her drug use. For example, she said that when she relapsed on 5 January 2005 and took a morphine tablet, it had been supplied to her by the father. I accept the mother’s evidence on this issue. It is consistent with the mother’s grandmother ringing the father on 22 December 2006 and implicitly asking him to get drugs for the mother. The father accepted that that was what happened, although he denied getting the drugs for the mother on that occasion. Currently, however, there is no proper basis to conclude that the father is still using drugs or supplying the mother.
The mother's use of cannabis
When the mother commenced her oral evidence, the court asked her whether there was anything in her affidavit sworn on 16 April 2010 that she wished to change. The mother initially said no. However, when she was asked whether the affidavit was true and correct, the mother said that she wished to change one thing, which she said was the result of a mistake made by her then solicitor, who had assisted with the preparation of the affidavit.
The mother’s affidavit sworn on 16 April 2010 said at paragraph 48:
I reiterate that I still moderately use marijuana, which assists me with my appetite as methadone restricts my hunger. I deny I smoke marijuana in the presence of [X]. I only use minimal amounts once [X] has gone to bed in the evening. I am currently seeking advice and treatment from my doctor with a view to minimise and ultimately eliminate not only the methadone but marijuana from my day to day life.
The mother said the same thing at paragraph 50 of her affidavit sworn on 6 October 2009. However, the mother told the court that, contrary to her affidavit evidence, she had not used cannabis for 20 months. The mother produced a bundle of drug screens which she suggested proved that she had not used cannabis in that time (exhibit 9).
The mother's drug screens for the period February 2006 to April 2008 showed a positive result for cannabis. The mother’s drug screens for the period April 2008 to 1 July 2009 are negative for cannabis.
I accept, based on those drug screens, that the mother did not use cannabis for the period April 2008 to 1 July 2009. However, the mother has not provided any drug screens more recent than 1 July 2009. Her admissions that she was using cannabis at the time that she swore her affidavits on 6 October 2009 and 16 April 2010 post date the mother’s most recent drug screen.
In all the circumstances of this case, I consider that the mother resumed using cannabis after 1 July 2009. I consider that the admissions made in her affidavits sworn on 6 October 2009 and 16 April 2010 were truthful. I consider that the mother attempted to mislead the court with her oral evidence that she had not used cannabis for 20 months as at May 2010. The evidence on this matter also indicates that the mother is not a witness of truth.
I proceed on the basis, therefore, that the mother uses cannabis at least on occasion. Mr L said that, even if the mother only used cannabis after [X] had gone to bed, it nevertheless compromises the mother's ability to care for [X]. That is clearly correct. If [X] has any medical, physical or emotional needs during the night, the mother may not be able to adequately deal with them because of the effects of cannabis. The result may be that [X] would be neglected or exposed to danger.
Whether the father has “turned his life around”
The father and the independent children's lawyer submitted that the father was now a very different person from the one who had been diagnosed with an antisocial personality disorder, had used heroin and had committed numerous offences including wilful public exposure. The material before the court does not indicate that the father has been found guilty of any criminal offences since 2004. The father's recent drug screens show positive results only for methadone. The father is no longer living with his parents, although he is living in a unit owned by them. The father is still unemployed. There was no evidence before court that the father is making any notable contribution to society.
Under cross-examination, the father admitted that he has a collection of knives and swords. He claimed that he had a licence to possess such weapons. However, all he produced to substantiate that claim was an expired membership card of an historical weapons society. The father’s counsel did not explain to the court how membership of such a society made lawful his possession of prima facie prohibited weapons.
The father said that he kept the knives and swords under lock and key. However, he later explained that they were in a wardrobe that was sometimes locked, but that the knives and swords were stored under some heavy drawers that made them inaccessible to [X].
Dr J considered that the father had an antisocial personality disorder and said that such disorders are untreatable. Mr L, on the other hand, considered that antisocial personality disorders are treatable and considered that the label is affixed too readily. Mr L considered that the father had made substantial improvements in his life. However, in saying that, Mr L had not been aware that the father has a collection of knives and swords. The father's counsel told the court that the father would forego his collection of knives and swords if required. I consider that to be a sign of the father’s increasing maturity.
The mother maintained that the father had ongoing drug induced psychiatric issues including schizophrenia. That allegation was not supported by the assessment by Dr J, who said that the father had no current mental health issues.
As mentioned previously, the father as recently as September 2009 deceived his father about whether [X] was spending the allotted days with her father and boasted about his deception of his father. When presented with virtually incontrovertible evidence in the form of a tape of his telephone conversation with the mother, the father admitted what he had done. His counsel urged the court to construe the admission as a good sign. However, it would have been almost impossible for the father to deny his deceit and his boast.
Moreover, the father said that he chose not to spend time with [X] because he needed extra time to do “something”. The father did not disclose to the court the nature of the “something” that he wanted to do in preference to spending time with [X]. He claimed that he could not recall. I do not accept that the father could not recall what the “something” was. These events occurred in about September 2009, about six months before the hearing in this court, and about one month after the last Children’s Court mention. I find that the father did not disclose to the court what the “something” was because it would not have put him in a good light.
It seems to me that the father is still a long way from functioning as an independent and mature person who is honest and responsible and who makes the sort of contribution to society that is expected of adults. Having said that, the fact that the father has overcome his heroin addiction, albeit with the assistance of the methadone program, and the fact that he has ceased to come to the attention of the police, are positive steps.
Whether the mother's house is filthy
The father maintained that he had been inside the mother's house on a number of occasions and said it was filthy with buckets of vomit scattered about, faecal material on clothes that were strewn around the house and piles of dirty dishes on the kitchen benches. The father referred particularly to an occasion when the mother said her house had been broken into.
The paternal grandfather also said that the mother's house was filthy. However, under cross-examination, he conceded that he had only entered the mother's house on one occasion, being the occasion of the break in, and had barely got past the front door.
DHS has had an extensive involvement with this family. It is well known that DHS conducts a home visits if there are concerns about the state of the person's home and for other reasons. The DHS records that have been tendered to the court mention that the father has alleged that the mother's house is filthy. However, no assessment by DHS concerning the state of the mother's house was tendered to the court.
Mr L visited the mother in her home for the purposes of preparing his reports. The court asked Mr L about the state of the mother's house. He said that it was about as untidy as his own house.
I accept that the mother's house may have been in a disgusting state on that day that it was broken into. If so, I consider that the perpetrators of the break in may have contributed to the mess. It is possible that the mother tidied up especially for Mr L. However, I note the absence of any evidence from DHS that the mother's house was unhygienic or otherwise unfit for a child to live in. In all the circumstances, I consider that the cleanliness of the mother's house is probably within an acceptable range.
Whether the mother has “bizarre” rituals at changeover
The father and his parents gave evidence that the mother routinely engaged in a long and bizarre process of saying goodbye to [X] at changeover. This included making the sign of the cross on [X]'s forehead, telling [X] that her mother would be dreaming of her, telling [X] that her mother would not be happy until she saw her again, rubbing [X]’s pet rabbit over her clothing and putting the mother’s perfume on [X]’s blanket and telling her not to let anyone wash it. The mother was also said to have frequently told [X] at changeovers that [B] was a particular star in the sky who was looking down on her. [B] was the mother’s cousin who was tragically hit by a car and killed at about the age [X] is now. [X]’s second name is [B].
The evidence from the father and the paternal grandfather was that [X] gets hyped up and distressed as a result of the prolonged and emotional good bye. The mother did not squarely deny most of these claims but said that she was simply trying to comfort [X].
When asked about the mother’s prolonged changeovers, Mr L said:
They're a less than helpful way to manage the transition, your Honour, if they occur. As I say, the essence of a good transfer, it seems to me, is quite strong reassurance in transit, a swift change and then the onus falls more on the receiving parent to take very strong steps to make the arrival pleasant, to distract at first, if there's, you know, signs of anxiety and then to make the arrival pleasant. So people typically, you know, take kids to the garden for a walk and look at the birds or, you know, "Let's go and get an ice-cream" or something like that because there's often a bit of acting-out behaviour that goes on over a period of hours, too, after the child arrives.
Mr L said later:
The evidence is that it's best if the parent that the child is leaving does the transporting and that gives some chance for debriefing and reassurance on the way. When they get to the other place, there should be a very quick transition to the parent who is taking care of the child and the parent who is leaving the child should depart quickly. … distress or upset or something like that in one parent sort of tends to kindle that in the children, too. … the transition should be fairly swift.
To spell it out, it is easier for a child if the changeover is quick and business like. While they are travelling to changeover, the mother should be positive about [X] spending time with her father. Very soon after arriving at the changeover venue, the mother should say something like, “Mummy has to go now, darling. I’ll see you soon. Have a great time.” There should be a quick kiss and a cuddle and then the mother should leave. It is then up to the father to engage [X] in an interesting activity or otherwise distract her.
The overall impression that the mother should be giving [X] before and during changeover is that she will be having a really good time with her father and that she will see the mother again before long. The mother certainly should not be conveying to [X] that she has anything to worry about when she is with her father, or that the mother will be suffering without her. If the mother is emotional and teary about being separated from [X], it is in [X]’s best interests that the mother does not allow [X] to see the mother’s distress. For [X], spending time with her father should be a positive experience, free from any guilt or anxiety about being away from her mother.
It is not acceptable for the father’s family to describe the mother’s conduct at changeover as “bizarre”, at least in [X]’s hearing. In fact, such a description is derogatory. If the father’s family must discuss in [X]’s hearing the mother’s conduct at changeover, they should only do so in entirely neutral language.
Whether the mother inappropriately changes [X]’s clothes at changeover
The father said that the mother often changed [X]’s clothes in public places during changeover, including at [omitted] railway station and near the [omitted] Highway in [S]. The mother said she did do this, but only for a good reason, such as to put [X] in a Christmas t-shirt on Christmas Day.
It might be appropriate to change a baby or toddler in public. However, [X] is now five years old. Her mother should not be changing her in public. There is no need for [X]’s clothes to be changed during changeover, unless they are wet or dirty, or inappropriate for the weather. It is up to the parent handing [X] over to ensure that she is properly dressed at the time of changeover.
Whether the mother has properly cared for [X]’s eye problem
[X] was born with an eye disorder. The father said that the mother had not properly dealt with it, although he did acknowledge that the mother had taken [X] to a specialist. It appears that [X] may have been misdiagnosed and prescribed inadequate treatment by the specialist. That at least seems to have been the view of a second specialist who [X] saw at the father’s behest. There was no suggestion that the mother should somehow have known that the first specialist’s diagnosis or treatment was inadequate. It is hardly the mother’s fault if the first specialist gave poor advice.
The parties each accused the other of not ensuring that [X] followed the appropriate treatment and wore glasses as appropriate. The father acknowledged that it was hard to make [X] wear her patch. All in all, I consider that the mother has more consistently than the father succeeded in ensuring that [X] follows her prescribed eye treatment.
Speech therapy
Mr L said that [X] has a speech disorder that needs attention. The father said it was a congenital problem from his side of the family that could be corrected with surgery. The mother said that she had arranged for [X] to be assessed through her school. In fact, exhibit 27 tendered by the mother shows that [X] was referred for speech pathology by her class teacher on 4 March 2010. That was very soon after [X] began school. There is no evidence that [X]’s speech disorder was addressed before that.
Whether the lack of attention to [X]’s speech disorder is the mother’s fault or the father’s fault, the main issue about [X]’s speech disorder is that it is absolutely imperative that it be properly diagnosed and treated. As Mr L said, it is necessary in [X]’s best interests that her parents work together to ensure the best possible outcome for [X] in relation to her speech.
The incident with the shoe
[X] had a graze beneath her eye which was caused by a shoe. On the father’s version of events, the mother in anger threw the shoe at [X]. (The father was not present when the injury occurred.) On the mother’s version of events, she had asked [X] to tidy up and [X] had thrown her shoe into the shoe basket. It had ricocheted and hit [X] below her eye. [X] told Mr L that the shoe had jumped up and hit her.
The mother put to Mr L that [X] was reluctant to admit that she had caused the injury herself. Mr L said that he was very concerned that [X] was not able to be entirely open and frank about any injury or other event that happened to her. He said that [X], as a five year old, needs to be able to communicate accurately to adults about anything untoward that has experienced.
That is obviously a fundamental need. [X] needs to be able to seek the protection of adults without fear of any repercussions. It is very unfortunate that [X] at such a young age has learned to be guarded with adults, or, worse, lie to them.
Considering all of the evidence as a whole, I do not accept that [X] threw the shoe herself. I do not find it plausible that a young child could throw a shoe so hard that it could ricochet straight back at her hard enough to cause a graze.
Nor do I accept that the mother threw a shoe at [X] in anger. The evidence, including material from DHS, clearly shows a close and loving bond between [X] and her mother. I do not accept that the mother would ever deliberately do anything to hurt [X], even in anger. On balance, I find that the mother did throw the shoe, but it was an accident that it hit [X].
Obviously, the mother should be more careful. For present purposes, however, this incident shows that the mother does not admit to her own poor behaviour, and is willing to blame others, even [X], when things go wrong. The incident also shows that the mother is able to proffer a glib but false explanation for events. Moreover, the mother is willing to involve [X] in the lie. This is appalling parenting.
[X]’s burn
[X] was in the care of her father from Tuesday 4 March 2008 until Thursday 6 March 2008. The mother said that [X] was at the mother’s grandmother’s place for a sleepover from Friday 7 March 2008, or Saturday 8 March 2008, to Sunday 9 March 2008. Records show that the mother took [X] to a GP, Dr W, on Monday 10 March 2008. At that time, the injury was present. The mother took [X] to Dr W again on Tuesday 11 March 2008. Dr W then referred the matter to the Department of Human Services.
Dr W took photographs of [X]’s wound on 12 March 2008. On 13 March 2008, [X] was seen by Dr B at [G]. Dr B told DHS (exhibit 15) that she thought the wound was a burn but she was not sure if the cause of the burn was thermal or chemical. Other doctors at [G] eventually formed the opinion that the burn occurred between two and four days before Dr W took the photographs, that is, the burn occurred between
8 and 10 March 2008. [X] was in the care of her mother, or perhaps the mother’s grandmother, at that time.
Various explanations for the injury have been offered, but none with any certainty. The Children’s Court was unable to determine how the injury occurred.
One explanation is that [X] sat on a toilet at her father’s place when cleaning fluid remained on the seat. It is well known that some toilet cleaners are so strong that they can cause severe chemical burns. The father said in paragraph 40 of his affidavit sworn on 9 April 2010 that he had conceded in the Children’s Court proceedings that there could have been cleaning products on the toilet seat at his house that had caused the mark on [X]’s bottom. However, the father said in his affidavit that he had made that concession before he knew how bad the burn was.
The father’s counsel interrupted the court’s questioning of Mr L in relation to this issue to say that the father had never admitted these matters, and they were just allegations by the mother. However, the admissions were made by the father in his affidavit as described above. I assume that Ms O’Connell simply made a mistake and did not intend to mislead the court.
In any event, I consider that the toilet seat explanation is unlikely. [X] was three years old when the burn occurred. She would have been too small to have sat so far back on the toilet as to have suffered a burn running from her tail bone to each hip.
Other explanations were that [X] sat on an open paint tin that had become very hot after being left in the sun, or had sat in a hot cooking pot. DHS officers asked [X] about the injury. [X] told them that when the injury occurred, she had been in the kitchen and then in the bedroom at her mother’s house. [X] said that the first person she told about the injury was her mother.
On the evidence before me, I am unable to determine how [X] was burned. However, based on the totality of the evidence before me, I consider that [X]’s burn occurred when she was in the care of her mother rather than her father or the mother’s grandmother. That is because the expert evidence indicates that the burn occurred when [X] was not in her father’s care and because [X] told DHS that the mother was the first person she told after the burn occurred. I do not consider that the mother intended [X] to be burned or did anything deliberately that caused her to be burned. Nevertheless, I consider that the mother inadequately supervised [X] or inadequately child-proofed her home.
It follows that the mother knows a good deal more about the circumstances surrounding the burn than she has told this court, or the Children’s Court or DHS. The mother’s refusal to disclose the true circumstances surrounding [X]’s burn, and her attempts to blame the father, are another example of the mother’s dishonesty. It also appears that the mother has involved [X] in the deception, by discouraging her from telling people what really happened. Again, this is very poor parenting.
[X]’s cut hand
On or about 13 September 2009, [X] cut her hand between her thumb and index finger. The mother said that she fell while running near a guinea pig cage and caught her hand on a nail, or wire or piece of wood. The mother said that she took [X] to receive medical treatment. It appears that the wound needed stitches. The mother told the father that he should not dress the wound, but should take [X] to a doctor for changes of dressing. It was clearly a significant wound. Photographs show that it became infected. The mother said that the father did not look after it properly. He did not effectively refute that allegation.
Mr L said the effect on [X] of a change of schools would be inconsequential. He said that the change of residence would be beneficial for [X], as she would then have calmer parenting for a majority of the time, with reasonable boundaries being set.
The mother challenged Mr L’s evidence, saying that he had only seen her and [X] together for a short period and that period was not typical, because the mother was about to go out.
It is true that family report interviews at the best of times are relatively short and only provide a snapshot of the nature of the relationships between parents and children. However, family report writers in general, and Mr L in particular, are very skilled at quickly discerning the dynamics of a relationship. It seems to me from his reports that he made certain observations that justify his description of the nature of the dynamic between [X] and each of her parents. The mother did not challenge Mr L’s observations as such.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The mother lives in [H] and the father lives in [O]. The distance between those two places makes a shared care arrangement unworkable, although Mr L did consider that, if the parents lived closer together, such an arrangement may well have been in [X]’s best interests.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Clearly, from the involvement of DHS in [X]’s life for a large part of the time since her birth, both of [X]’s parents have had a limited capacity to provide for [X]’s needs. However, both of them are doing considerably better now. Indeed, DHS is no longer active in [X]’s life. The last order of the Children’s Court provided for both parents to have equal care of [X].
According to Mr L, both parents presently have the capacity to provide for [X]’s needs, but the father has a somewhat greater capacity because he is able to provide calmer parenting with more clearly set boundaries. Mr L considered that [X]’s need for such parenting was decisive, given certain behaviours that [X] had already developed.
The paternal grandmother, who is a [occupation omitted], gave evidence that the father could better provide for [X]’s educational needs. On examination, it seems that the paternal grandmother was saying that had mostly been concerned with [X]’s moral development. In particular, the paternal grandmother was very concerned that the mother had made [X] lie about how the burn had occurred.
Moral development is of course very important. However, the father’s deceit of his father in September 2009 shows that his moral development is not yet complete either. Clearly, only a few months before the trial, the father told a significant lie to his own father about a matter concerning [X].
On balance, however, I consider that the mother has been much more deceitful in recent times than the father. Moreover, the mother has involved [X] in her deceits, by encouraging her to lie or withhold information from adults with whom [X] should be able to be entirely open and frank.
It seems clear from the way in which the parents spoke in court that the mother is considerably more intelligent and articulate than the father. Both passed VCE, but the mother seems to have a considerably greater intellectual capacity than the father. The father’s use of language in court was idiosyncratic, to say the least.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The parents both have had a lifestyle and background of drug addiction. The mother still has. Neither parent works outside the home. [X] has some behavioural issues that need to be addressed sooner rather than later.
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;
This factor does not apply in this case.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Within the confines of their drug addictions, both parents have shown a reasonable attitude to the responsibilities of parenthood. Obviously, however, drug addiction jeopardises good parenting, and potentially places the child at risk in all sorts of ways.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
This issue has been discussed previously. There was family violence, mostly perpetrated by the father against the mother. However, it is now largely historical.
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
No such orders have been made known to the court.
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
It would be preferable to make the order that would be the least likely to lead to the institution of further proceedings. [X] has already been the subject of an extraordinary amount of litigation in this court and the Children’s Court.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
I do not consider that there are any other relevant facts or circumstances.
Section 60CC(4): Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
b)has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
These matters have been addressed previously.
Section 60CC(4A): If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The circumstances since separation have been addressed previously.
Equal shared parental responsibility
Section 61DA of the Act provides as follows:
1.When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2.The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
3.When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
4.The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The parties are agreeable to an order that they have equal shared parental responsibility. I consider that such an order is in [X]’s best interests.
Equal or substantial and significant time with each parent
Where the parents have equal joint parental responsibility for a child, s.65DAA of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent. That section provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
4.Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
It is clearly not practicable for [X] to spend equal time with each parent. They live too far away from each other. In any event, I do not consider that it would be in [X]’s best interests to spend equal time with both parents. At her age, she would benefit from having a single base to call her home.
However, it is practicable for [X] to spend substantial and significant time with the parent with whom she is not living. The parents both live within suburban Melbourne, albeit on opposite sides of the city. The usual arrangement in such cases for weekend time, commencing from after school and finishing on the Sunday afternoon, is viable in this case and is in [X]’s best interests.
Conclusions
The essential question in this case is whether [X] should live with her mother or her father. I consider that it is in [X]’s best interests to live with her father. There are a number of reasons for that conclusion. Firstly, there is Mr L’s point that the father provides calmer parenting with more clearly set boundaries than the mother does. [X] would benefit considerably from the father’s style of parenting as she is already developing some behavioural issues. Secondly, there is the fact that the father is no longer using heroin or cannabis whereas the mother is continuing to use those drugs. The mother’s drug addiction may lead her to prioritise her need for the drugs over [X]’s needs, and may result in [X] being neglected or exposed to danger. Thirdly, the mother has been dishonest with the court, DHS and doctors about her drug use and [X]’s injuries. Worse, the mother has encouraged [X] to be less than open and honest about her injuries. This training in deceit is potentially very damaging for [X].
I acknowledge that the father perpetrated a major deceit on his father as recently as September 2009 and concealed from the court the nature of the “something” that led him to choose not to spend time with [X]. I also acknowledge that the father could have been using drugs as recently as December 2009. For the reasons discussed previously, the father is not yet functioning as adult members of society usually do.
I am particularly concerned about the father’s knife and sword collection. It seems to me that the knives and swords are potentially dangerous for [X], if not for others. I can see no sound reason for the father having such a collection, particularly in view of his history of weapons offences. It is to the father’s credit that he volunteered that he would dispose of his knives and swords if necessary. I consider that it is in [X]’s best interests that the father disposes of his collection of knives and swords within 14 days. I do not consider that the father has adequately secured the knives and swords in the past or that he would do so in the future if he were allowed to retain them. I also consider that it is in [X]’s best interests that the father be restrained from possessing in the future any swords or knives other than for ordinary domestic purposes.
Notwithstanding certain concerns about the father, I consider that the father is making better progress than the mother in overcoming his addictions and the corollaries of them. On balance, and taking into account all of the matters mentioned in these reasons, I consider that it is in [X]’s best interests that she lives predominantly with the father. She should finish the current term at her current school and then commence living with her father and attending a school near his home at the beginning of term three.
I accept that [X] should spend as much time as is reasonably practicable with her mother. Given the distance between the two homes, it seems to me that Friday after school to Sunday afternoon is the only realistic option during term time. Mr L recommended that formula for two weekends out of three. [X] is currently spending every weekend with her father. The mirror of that arrangement is not in [X]’s best interests in the long term. She needs to spend some weekend time in her home base with her father and his extended family. I consider that two weekends out of three with her mother is in [X]’s best interests.
As to school holidays, the father proposed and the independent children’s lawyer agreed that [X] should spend 10 days of the school term holidays with her mother. The proposal was for the first 10 days of the second and third term holidays each year, and the first 10 days of the first term holidays in even numbered years and the last 10 days of the first term holidays in odd numbered years. The mother did not argue against this arrangement. I consider that it is in [X]’s best interests, once the transitional period has passed.
In relation to the long summer holidays, [X]’s parents and the independent lawyer more or less agreed that [X] should spend alternate weeks with each parent. The father also proposed that [X] should be returned to him three days before school begins. I consider that arrangement to be in [X]’s best interests.
In relation to Christmas, the father proposed that [X] should spend from 5 pm Christmas Day to 5 pm Boxing Day with the mother in even numbered years, and 5 pm Boxing Day to 5 pm New Year’s Day in odd numbered years. No particular reason was put forward for that, apart from the travelling time between [O] and [H]. I do not consider that the travelling time is so great that [X] should not be able to see both of her families on Christmas Day. I consider that it is in [X]’s best interest for [X] to spend from 5 pm Christmas Eve to 5 pm Christmas Day with her mother in even numbered years and from 5 pm Christmas Day until 5 pm Boxing Day with her mother in odd numbered years.
The parents and the independent children’s lawyer agreed that [X] should spend with her mother from 5 pm on the eve of Mother’s Day to 5 pm on Mother’s Day, with corresponding arrangements for Father’s Day. I accept that those arrangements are in [X]’s best interests.
In relation to [X]’s birthday, the father and the independent children’s lawyer proposed that [X] in odd numbered years spend with her mother from 10 am until 5 pm if it fell on a non-school day and from after school until 7 pm if it fell on a school day. The mother said that she could make another day just as special, so was not too concerned about having time on [X]’s birthday. The proposal as it stands only provides for [X] to spend time with her mother on her birthday in odd numbered years, with no provision for even numbered years. I consider that it would be in [X]’s best interests to make the orders proposed by the father and the independent children’s lawyer in relation to [X]’s birthday. Of course, if the mother and father consider that the disruption would be too great, they can agree that the mother will forgo the birthday time in a particular odd numbered year.
Both parents and the independent children’s lawyer were agreeable to [X] having telephone contact with whichever parent she was not with at all reasonable times. I consider that arrangement is in [X]’s best interests.
The father and the independent children’s lawyer also proposed that both parents be restrained from:
a)using or being effected by illicit substances when [X] is in his or her care;
b)exposing [X] to illicit drug use or paraphernalia;
c)denigrating the other; and
d)discussing these proceedings with [X].
Orders in those terms are obviously in [X]’s best interests.
The father and the independent children’s lawyer also proposed that:
a)each parent keep the other informed of his or her residential address and telephone number;
b)the mother be entitled to receive copies of school reports and such like at her expense;
c)each parent keep the other informed of any significant injury or illness suffered by [X] and any medical treatment ordered for [X];
d)each parent advise the other of any specialist appointment made for [X] and enable the other parent to attend; and
e)the mother and father each remain actively engaged with their treating general practitioners in respect of their ongoing drug rehabilitation.
The mother did not oppose such orders. I consider them to be in [X]’s best interests.
There will be orders in accordance with these reasons.
I certify that the preceding two hundred and fifteen (215) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate:
Date: 18 June 2010
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