Howey & Greenwell
[2023] FedCFamC2F 1459
•15 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Howey & Greenwell [2023] FedCFamC2F 1459
File number: BRC 13215 of 2022 Judgment of: JUDGE TAGLIERI Date of judgment: 15 November 2023 Catchwords: FAMILY LAW – Review of Senior Judicial Registrar’s decision – interim parenting orders – where father had not complied with previous orders in respect of drug testing – where father’s time with child is supervised – application dismissed Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4AB(2), 60CC(2), 60CC(2A), 60CC(3) Cases cited: Deiter & Deiter [2011] FAMCAFC 82
Goode & Goode [2006] FamCA 1346
Marvel & Marvel [2010] FamCAFC 101
MRR & GR [2010] HCA 4
Division: Division 2 Family Law Number of paragraphs: 46 Date of hearing: 7 November 2023 Place: Hobart For the Applicant: In person For the Respondent: In person For the Independent Children’s Lawyer Ms Berck, Berck Solicitors ORDERS
BRC 13215 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HOWEY
Applicant
AND: MS GREENWELL
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
15 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Application for Review filed 22 September 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
This judgment concerns interim parenting orders that come for determination pursuant to an Application for Review by the Applicant Father Mr Howey (“the Father”) filed 22 September 2022. The respondent to the Application for Review is the Respondent Mother Ms Greenwell (“the Mother”).
In effect, by his application the Father seeks to discharge parenting orders made by a Senior Judicial Registrar on 19 September 2023. Those orders suspended previous interim parenting orders made on 24 May 2023 and provided for his time with the child X born 2017 (“the child”) to be professionally supervised. He seeks reinstatement of the orders made on 24 May 2023
THE ISSUES TO BE DETERMINED AND RESPECTIVE POSITIONS OF THE PARTIES
The outcome of this review will be dependent on how the Court resolves disputes about whether the Father’s alleged behaviours present such a risk to the child such that his time should be supervised.
Based on the affidavit material relied upon by the parties, the Independent Children’s Lawyer (“the ICL”) submitted that there were three relevant risks of harm to the child, being:
(a)The Father’s chronic cannabis use;
(b)Family violence and denigration of the Mother by the Father; and
(c)The behaviour of the family dog.
The ICL submitted that the Application for Review should be dismissed as the interim orders were in the child’s best interests at this time. The Mother agreed. They both emphasised the three risk factors and referred to evidence in the affidavits which tended to establish the existence of the risks of harm to the child on balance and the seriousness of them. The ICL also focussed on the views contained in the Family Report dated 14 August 2023.
THE PARTIES’ CASES
The Father relied on:
(a)The Application for Review filed 22 September 2023;
(b)His affidavit filed 21 October 2022;
(c)His affidavit filed 15 September 2023; and
(d)His affidavit filed 26 September 2023.
The Mother relied on:
(a)Her affidavit filed 25 November 2022;
(b)Her affidavit filed 18 July 2023;
(c)Her Notice of Risk filed 25 November 2022 (Exhibit R-1);
(d)Her Case Outline filed 15 September 2023;
(e)A Family Violence Order made 6 December 2022 (Exhibit R-2);
(f)Correspondence from veterinarian Dr B dated 9 August 2021, attached to her affidavit filed 5 January 2023 as MG-02 (Exhibit R-3); and
(g)Material from Queensland Police Service produced to the Court pursuant to s 69ZW of the Act and dated 5 January 2023 (Exhibit R-4).
The ICL relied on:
(a)Her Case Outline filed 18 September 2023; and
(b)The Family Report.
The essence of the ICL and Mother’s cases are that the child’s time with the Father needs to be supervised professionally because, in summary:
(a)His use of cannabis exposes the child to risks of physical harm ranging from injury in an accident to neglectful care and lack of supervision;
(b)His communication involving verbal abuse of the mother, including in the presence of the child, causes emotional harm to the child; and
(c)The family dog who resides with the Father is aggressive and may bite or otherwise harm the child.
They submit that, collectively, these risks to the child suggest that there is an unacceptable risk to the child if her time with the Father is not supervised.
The Father’s case can be paraphrased in the following terms. First, the Court should not have made orders for supervised time with the child when previously he had been given permission to use medicinal cannabis. Second, his use of cannabis is for health or medical reasons, and does not impair him or cause him to be a risk of harm to the child.
Regarding the Mother’s claims of family violence and denigration, he simply says that they are untrue, but did not intellectually engage in the issue of whether verbal abuse in the presence of a child carries with it a risk of emotional harm to the child.
Finally, concerning the risks of harm said to exist because of the dog, he says that the dog’s behaviour was aggressive and problematic during the parties’ relationship, such that vet advice was needed. However, he says that is not the case now and the dog’s behaviours have improved. In any event, he is prepared to put the dog down if that is what the Mother wants, or he will confine it to a separate area of the house when the child is present.
The affidavits disclose competing claims about whether the Father in fact keeps the dog entirely separate from the child when she has spent time in the family home, and competing claims about whether the Father uses cannabis in forms other than that medicinally prescribed.
LEGAL PRINCIPLES
I am required to apply the provisions of Part VII the Family Law Act 1975 (Cth) (“the Act”) and the pathway described in Goode & Goode [2006] FamCA 1346 and MRR & GR [2010] HCA 4 of the Act. The primary considerations in s 60CC(2) of the Act as they are to be applied to the untested evidence relied upon by the parties pursuant to s 60CC(2A) of the Act are particularly important, given the nature of the extensive allegations of family violence made against the Father. However, caution must also be applied as the allegations have not been tested, are largely denied, or should be understood in context.[1]
[1] Deiter & Deiter [2011] FAMCAFC 82; Marvel & Marvel [2010] FamCAFC 101.
Necessarily, because the evidence in dispute is untested, the Court relies on what is not in dispute or unchallenged evidence, and its impressions formed by the nature and detail of the evidence relied upon by each party.[2]
[2] Marvel & Marvel [2010] FamCAFC 101.
Ultimately, what orders are made about the Father’s time the child will be based on my discretionary assessment of what is in the best interests of the child, prioritising her protection over the maintenance of the Father’s relationship with the child and also informed by all considerations in s 60CC(3) of the Act, as instructed by the authorities to which I have referred.
EVALUATION AND DETERMINATION
At the outset, it is necessary to reject the Father’s contention that he was given permission by the Court’s orders made 24 May 2023 to use medicinally prescribed cannabis and that the Court’s orders of 19 September 2023 are inconsistent with permission given. This submission oversimplifies the terms and effect of the 24 May 2023 orders.
The effect of the 24 May 2023 orders plainly were that if the Father returned a positive urinalysis or hair follicle test for cannabis and he failed to provide a report from his treating general practitioner verifying that the result was consistent with his prescribed cannabis regime within 14 days of the result, his time with the child as stipulated in Order 2 made on 14 March 2023 would be supervised and in accordance with the supervision conditions referred to in the same orders.
There is evidence before the Court that the Father was requested to undertake directed testing by the ICL in April 2023.[3] I also accept the submission of the ICL, an officer of the Court, that the Father had been requested on a number of occasions to submit to testing.
[3] Affidavit of the Mother filed 18 July 2023 at [37].
Although there is no direct evidence of the Father having undertaken required drug testing since April 2023, the orders of 19 September 2023 note:
D.The Independent Childrens Lawyer informed the court that the Father had tested positive for cannabinoids [in] August 2023.
Curiously, neither the mother nor ICL bothered to tender a copy of the positive test result at the hearing, however, the Father did not dispute that he had recorded a positive reading.
On the basis of the matters at [20] to [22] of these reasons, I am comfortably satisfied that the Father has tested positive to cannabis in August 2023 and has not complied with other drug testing when requested by the ICL.[4] Further, he has not adduced evidence from his treating medical practitioner stating that the positive test in August 2023 is consistent with his prescribed use of cannabis.
[4] Orders 7 to 11 of the Orders made 14 March 2023.
Although the series of orders of 14 March 2023 and 24 May 2023 are complicated, a reasonable person and the Father, as a clearly well-educated and capable person given his qualifications and work, likely understood the combined and intended effect of them.
In addition, by not complying with requests made by the ICL for drug testing according to the 14 March 2023 orders, the Father has frustrated the intended effect of the 24 May 2023 orders that afforded him an opportunity for his time with the child to be unsupervised. The consequences of this are of his own doing in my view.
The matters at [18] to [25] of these reasons alone probably warrant dismissal of the Application for Review, because the Father is wrong in his overall submission that the Court’s orders are inconsistent and that he was given permission to use medicinal cannabis and spend time with the child. This oversimplifies the intent, terms, effect, and purpose of the orders.
There are also other reasons for concluding that the Application for Review should be dismissed. I now provide those reasons.
Risk assessment
The overall impression gained from the evidence is that a cautious and limited approach is necessary based on undisputed facts.
Those undisputed facts are that:
·The Father has used cannabis since aged 15 and has experienced periods of seeking to abstain, obtaining medical treatment for a dependency and using medically prescribed cannabis as recently as the present. This reflects a volatility and implies problematic effects from cannabis use;
·The Father admits and his electronic communications annexed to the parties’ affidavits demonstrate that he has used what can only be categorised as verbal abuse of the mother constituting derogatory taunts, which falls within the meaning of family violence as defined in s 4AB(2) of the Act; and
·The family dog has bitten the Father twice requiring hospitalisation, and his aggression clearly warranted sufficient concern to seek out professional advice from a vet.
Each of these undisputed fact alone would not, in my discretion, lead to the need for supervised time between the child and Father necessarily, but collectively they do as there is no acceptable alternative either agreed by the parties or to the Court’s satisfaction that would sufficiently minimise the risks of harm to the child leading it to being in her best interests to spend unsupervised time with the Father.
The risks of harm to the child are extensively addressed in the Family Report, such as they concern cannabis use. However, there is in my view a distinction between cannabis abuse and chronic cannabis dependency.
The Father’s use of cannabis is life long and there is little evidence before the Court to suggest that his use during the relationship created impairment, or that he committed driving offences based on impairment. Instead, he has acquired tertiary qualifications, engaged in complex and highly sensitive work and the Mother did not consider his cannabis use a barrier to having a family.
I suspect that the Mother’s concerns about the risks to the child presenting because of cannabis use are somewhat exaggerated. This is consistent with the assessment of the parties’ personalities and presentation on assessment by Family Reporter.[5]
[5] Family Report at [203].
This is not to say that there is no basis to have concern that the Father’s cannabis use may cause impairment or concerns about parental capacity, but the orders made on 24 May 2023, if complied with, would have alleviated such concerns. In circumstances where the Father has not complied with those orders, there is sufficient evidence of concern as to this type of risk presenting, but the extent of it impossible to accurately assess presently. This warrants caution.
While the parties disagree about how the child can be protected from the dog and they fail to identify an agreed alternate option, such as a regular training program with a qualified dog trainer and behaviouralist or removal of the dog from the Father’s home when the child is present, it seems likely that he presents as a considerable risk of physical harm to the child given the history of biting the Father, especially because dog behaviour may be unpredictable and reactionary.
It is also concerning that if the child were to spend time with the Father at his home, given the submissions the Father made to the Court that he was unprepared to build an enclosure on his property due to slope and cost, he would be in contravention of Order 15 made on 14 March 2023, which still has full force and effect.
The Father would be wise to reconsider his attitudes to training or an enclosure for the dog, especially as dog enclosures come in many styles and costs.
In respect of the second risk factor, I consider this to be a considerable risk to the child on the evidence before the Court, but do not ignore that the manner in which the Father communicates about and to the Mother may be influenced by cannabis use.[6] The tone, colour and terms of the text and electronic messages before the Court convey that the parties are acrimonious in respect of a range of topics and still carry heavily grievances which emerged during their relationship.[7] The communications also display precisely that which the Father states in his affidavit filed 22 October 2022 at [31], where he affirms that the parties are very different and have conflicting communication styles.
[6] Family Report at [210] to [213].
[7] For example, affidavit of the Mother filed 17 July 2023 at Annexure G-01 (text messages only) and Annexure G-03.
The above assessment is also informed by admission by the Father during the hearing that he called the mother “horrible” in the child’s presence.
I accept the well-known expert views of the Family Reporter about the extent and severity of the risks of emotional harm to a child exposed to the parental conflict in such a fashion.[8]
[8] Family Report at [210] to [213].
It is significant that there is a marked difference in expression of the Father’s evidence in his first affidavit, which I infer was prepared by a lawyer as he was represented at the time, and his subsequent affidavits which he prepared as a self-represented person. The tone and language of the later affidavits are conflictual, and he presented before me at the hearing in that manner, interrupting and laying blame alone on the mother. This too is consistent with the Family Reporter’s views.
The Mother presented more calmly at the hearing and her affidavit evidence demonstrated mostly child-focussed attitudes, but consistent with the views of the Family Reporter her evidence did not admit any contribution to the parental disputes on her part, which is somewhat concerning.
Her communications with the Father as annexed to both his and her affidavits are intense and voluminous also, and the impression gained is that she seeks to manage the Father’s time with the child. It is also curious and warrants careful examination of why the Mother was content for the child to spend unsupervised and overnight time with the Father until June 2022 and that changed after she insisted that the father get a car to share driving to facilitate changeovers.[9] If there was a genuine concern about the Father’s safety driving because of cannabis use, it is surprising that she proposed that he share the driving.
[9] Affidavit of the Father filed 21 October 2022 at [43].
In view of the matters addressed at [38] to [43] of these reasons, it seems that both parties tend to lack some personal insight into the effect of their own behaviours on their capacity to co‑parent, the effect this has on conflict and disputes concerning parenting arrangements for the child, and consequent risk of harm to the child.
As the manner in which the parties communicate and engage tends to inflame and entrench differences rather than find areas of common ground, it is surprising that the parties have not been ordered to undertake parenting separately courses or to use a parenting communication app which is effective in filtering inappropriate or abusive communication.
If the parties have not undertaken such courses and do not use a parenting communication app, the ICL would be wise to seek an order to that effect as it will be in the child’s interests in my view.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 15 November 2023
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