Hurley and Simpson
[2016] FamCA 139
•4 March 2016
FAMILY COURT OF AUSTRALIA
| HURLEY & SIMPSON | [2016] FamCA 139 |
| FAMILY LAW – CHILDREN – Where the father seeks an order for equal shared parental responsibility and orders that he spend increased time with the child on a graduated basis – Where the mother and Independent Children’s Lawyer propose that the mother have sole parental responsibility and for the child to have recognition only contact with the father – Where both parties have a history of illicit drug use – Where the mother has engaged in services and the evidence suggests she has a stable lifestyle currently and is able to care for the child – Where the father has continued to use illicit drugs, has failed and refused to undergo some random urinalysis testing – Where the single expert opines the father is unable to place the child as a priority in his life because of his continued dependence on illicit drugs – Where the parents do not communicate at all – Where there is a history of family violence which resulted in the father being imprisoned for a serious assault upon the mother – Where it is not in the child’s best interests for the parents to have equal shared parental responsibility –Where it is found to be in the child’s best interests for the child to only have supervised recognition contact with the father – Where the mother seeks the child’s surname be changed – Where it is in the best interests of the child if the child’s surname remain unchanged |
| Family Law Act 1975 (Cth) |
| Chapman and Palmer (1978) FLC 90-510 Ryan and Burnett [2008] FamCAFC 72 |
| APPLICANT: | Ms Hurley |
| RESPONDENT: | Mr Simpson |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Youssef |
| FILE NUMBER: | SYC | 4006 | of | 2013 |
| DATE DELIVERED: | 4 March 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 27 - 28 July 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Beck |
| SOLICITOR FOR THE APPLICANT: | G & D Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Ladopoulos |
| SOLICITOR FOR THE RESPONDENT: | David H Cohen & Co |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Sloane |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Marsdens Law Group |
Orders
All previous orders be discharged.
The mother have sole responsibility for the child, B, born … 2012, (“the child”) except the mother shall do all things and sign all documents from time to time to ensure the child is only known by the surname “Simpson”.
The child live with the mother.
The child spend time with the father as follows:
4.1.From 10.00 am to 1.00 pm on the first Saturday of May each year;
4.2.From 10.00 am to 1.00 pm on the first Saturday of July each year;
4.3.From 10.00 am to 1.00 pm on the first Saturday of October each year;
4.4.From 10.00 am to 1.00 pm on the first Saturday of December each year;
4.5.From 10.00 am to 1.00 pm on the first Saturday of February each year.
For the purposes of time pursuant to order 4 herein, all changeovers occur at Suburb M Police Station, N Street, Suburb M. For the purpose of this, the mother deliver the child to the paternal grandmother and/or the father’s current partner Ms O at the commencement of the father’s time and immediately depart the Police Station and avoid any contact with the paternal grandmother and/or the father’s current partner Ms O after changeover occurs, and the paternal grandmother and/or the father’s current partner Ms O return the child to the mother at the conclusion of the father’s time and immediately depart the Police Station and avoid contact with the mother after changeover occurs.
The mother is to continue to engage in services offered by the P Service and to follow all directions and comply with all requirements of that service.
The mother is to continue DBT therapy and obey all reasonable directions from her therapy provider.
The mother and the father shall ensure that the other parent is provided by email with a copy of any report by any such specialist medical consultant in relation to the child, within 14 days of their receiving such a report.
The mother shall ensure that the father is notified as soon as practicable if, while in her care:
9.1.the child is admitted to hospital; or
9.2.the child is involved in a medical emergency.
The father shall ensure that the mother is notified as soon as practicable if, while in his care:
10.1.the child is admitted to hospital; or
10.2.the child is involved in a medical emergency.
These orders authorise any school which the child attends from time to time to provide both the mother and the father with copies of all reports, circulars, notices and documents in relation to the child including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the mother and/or the father in relation to the child.
The mother and the father notify each other of any change in telephone contact numbers, such notification to be made in writing and within three (3) days of any change.
The mother and the father notify each other of any proposed change to their place of residence, such notification to be made in writing and not less than fourteen (14) days prior to the proposed change.
The mother and the father shall:
14.1.be restrained from:
14.1.1.discussing these proceedings in the hearing of or presence of the child; and
14.1.2.speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child; and
14.2.take all reasonable steps to prevent any other person:
14.2.1.discussing these proceedings in the hearing of or presence of the child; and
14.2.2.speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child.
Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hurley & Simpson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 4006 of 2013
| Ms Hurley |
Applicant
And
| Mr Simpson |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These proceedings involve final parenting orders for the child B (“the child”) born in 2012 and currently aged 3 years old. The mother and father had a relationship for a short period of time. Their relationship was characterised by the use of drugs, in particular the use of methamphetamines, and incidents of family violence (one of which led to the father being imprisoned). The child currently resides with the mother and has occasionally spent time with the father, supervised by the paternal grandmother, dependent on the results of urinalysis testing undertaken by the father. It is the mother’s case that the father continues to take illegal drugs and that use, coupled with his history of violent behaviour, puts the child at continued risk in his care. The mother acknowledges her history of substance abuse, however the evidence suggests the mother is now generally stable, clean of drugs and has greatly improved her parenting skills through her interaction and involvement with various agencies.
When the single expert made recommendations in his report of 14 May 2014, the principle recommendation was that the child not be left in the care of either parent in the medium to long term and that the Department of Community Services (“DoCS”) be asked to intervene to look at a long-term foster placement. As a consequence of that recommendation, I invited DoCS to become a party to the proceedings. They declined to do so, notwithstanding that they were in possession of the single expert’s report at that time.
Arrangements were made for the mother to engage in various services and in particular the Brighter Futures program through DoCS and there has been an engagement by the mother over a period of twelve months in services in a way that allows the single expert now to recommend that the child live with the mother.
In contra-distinction, the father has not engaged in services in the period of time that I have deliberately allowed this case not to proceed to final hearing, and as recently as December 2014 the father has used ice and continues to use marijuana on a weekly basis. The father is HIV positive and is on potent medication for that condition. Whilst the father has been required to undergo regular urinalysis, the results of that testing have been less than satisfactory. Because the orders for the child to spend time with him on an interim basis were predicated upon clean drug tests, the child’s time with the father has been significantly interrupted during the period before the case proceeded to final hearing.
APPLICATIONS
The father seeks an order for equal shared parental responsibility. He agrees that the child should ordinarily live with the mother. He asks that a regime of graduated time be implemented as follows:
5.1.For the first three months following the making of final orders he spend time with the child for two hours on three occasions each week under supervision;
5.2.For the next three months he spend time with the child for four hours on two occasions each week under supervision;
5.3.For the next three months he spend time with the child for eight hours on two occasions each week under supervision;
5.4.For the next three months he spend time with the child for eight hours on two occasions per week, unsupervised;
5.5.At the end of that 12 month period the child would be more than 4 years old. The father then seeks to spend time with the child for eight hours on one day each week, and overnight between 10.00 am Saturday and 6.00 pm Sunday, each alternate weekend. That arrangement on the father’s application would remain in place for 12 months (at which time the child would be more than 5 years old);
5.6.He thereafter seeks to spend time with the child each alternate weekend from 4.00 pm Friday to 6.00 pm Sunday, unsupervised.
The father also seeks block periods of time during school holidays once the child starts going to school and additional time on special days.
The final orders sought by the Independent Children's Lawyer are contained in Exhibit 18 and they are as follows:
7.1.That the mother have sole parental responsibility for the child;
7.2.That the child live with the mother;
7.3.That the child spend recognition contact with the father on five, three hour occasions each year, which occasions are to be supervised.
The mother seeks an order for sole parental responsibility together with an order that the child’s surname be changed from Simpson to Hurley
The mother originally sought that the child spend no time with the father but in oral evidence accepted that supervised recognition time would be in the interests of the child. The mother’s proposal by the end of submissions was similar to that of the Independent Children’s Lawyer in respect of time. Both the Independent Children's Lawyer and the father propose that supervision be carried out by the paternal grandmother or the father’s current partner, Ms O. The mother however, is not agreeable to the father’s time being supervised by the paternal grandmother or Ms O, and seeks that supervised time happen at Central West Contact Service. The mother offered to pay one half of the costs of the contact service.
In respect of the question of changeover, on the mother’s proposal changeover should take place at a contact service. In the event that a contact service is not ordered then the parties agreed that changeover take place at Suburb M Police Station. The Independent Children's Lawyer’s proposal and the father’s proposal was one that would allow the father to be present at changeover. The mother’s proposal is if changeover is to happen at Suburb M Police Station then it should only be between her and the paternal grandmother.
The Independent Children's Lawyer seeks an order that the mother is to continue to engage in services offered by the P Service and to follow all directions and comply with all requirements of that service and further that the mother continue DBT therapy and obey all reasonable directions from her therapy provider. The mother agrees with those orders being made.
The parties have reached some agreement on authorisations and provision of information in relation to health, education, contact details, and agree on certain restraints and injunctions.
In relation to changing the child’s surname as sought by the mother, the Independent Children's Lawyer proposed that the surname be changed to Simpson-Hurley. The father proposed that no change be made to the child’s surname (which is his name).
BACKGROUND FACTS
The father was born in 1981 and is currently 34 years old.
The mother was born in 1990 and is currently 25 years old.
The mother gave birth to F in 2008. F lived with the mother until she was 2 years old and then commenced living with her father. F now ordinarily lives with her father and spends alternate weekends with the mother.
In August 2009 the father presented to Suburb C Community Health with affective and psychotic symptoms relating to his ice and cannabis use.
The mother asserts the parties resided together between June 2010 and May 2013. The father says the parties did not begin to cohabit until June 2011. Both parties admit to using ice during the relationship. The father admits that he smoked ice and marijuana regularly and that he also injected ice.
On 31 October 2011 the father assaulted the mother and was arrested and charged with multiple counts of grievous bodily harm and kidnapping. The father assaulted the mother on multiple occasions whilst he locked her in the house for about four hours. I discuss the events of this day in detail below.
In December 2011, after spending six weeks on remand, the father was granted bail and the parties reconciled.
In early 2012 the mother was taken to J Hospital and admitted to the psychiatric ward because of her ice use. She remained there for about three weeks and says she then quit using ice. The father asserts in his affidavit that the mother was admitted to the psychiatric ward after she was charged with assaulting him. This incident was not raised during the trial.
The mother fell pregnant in early 2012 and returned to live with the father.
On 12 April 2012 the mother made an application to revoke the AVO that had been put in place to protect her from the father.
In June 2012 the father pleaded guilty to three charges of assault occasioning grievous bodily harm, three charges of common assault, one charge of stalk/intimidate and one charge of breaching an AVO, arising out of the 31 October 2011 incident. The father received a custodial sentence with 18 months non parole and 5 months parole.
On 20 June 2012 the father completed his intake at prison and admitted to using ice and cannabis.
On 12 July 2012 the father refused urinalysis in prison.
On 19 October 2012 the father was released from prison and the parties resumed their relationship.
The child was born in 2012. While in hospital, the child was tested for effects from the mother’s drug abuse, and the mother notified the hospital of her concerns regarding the father’s continued use of drugs.
On 27 February 2013 the parties received a letter from DoCS noting that the child was not at risk of harm and no investigation would pursue.
On 25 May 2013 the parties had an argument where the mother asserts the father punched her in the face. The police attended the home and the mother went to a women’s refuge with the child. The father was arrested and was held on remand for six weeks awaiting a hearing. The parties separated following this incident.
On 24 June 2013 the charges against the father were dismissed but an AVO was made for the protection of the mother and child.
From 11 to 14 July 2013 the child spent time with the father. On 14 July 2013 the father did not return the child to the mother.
On 17 July 2013 the mother filed an Initiating Application in this court.
An interim hearing was held on 31 July 2013 and interim orders were made providing that the child live with the mother and spend time with the father from 9.00 am to 3.00 pm each Saturday and Sunday and one day during the week and for each of the parents to submit to random urinalysis testing upon receipt for a request from the Independent Children’s Lawyer or the other party.
On 5 August 2013 the father tested positive to amphetamine and methamphetamine but the test was not disclosed to the other parties.
On 9 December 2013 the father tested positive for amphetamines.
Between December 2013 and October 2014 the child spent no time with the father.
On 23 May 2014 the father failed urinalysis testing for use of cannabis.
In June 2014 the child was burnt in a kitchen accident at the mother’s home.
On 23 July 2014 the father tested positive for cannabis, amphetamine and methamphetamine.
On 4 August 2014, when the matter was mentioned at court, the father advised the mother that he is HIV positive.
On 3 September 2014 the father tested positive for codeine, morphine, pseudoephedrine and cannabis.
On 30 September 2014 the father advised a treating psychiatry registrar of abstinence from ice and infrequent cannabis use.
On 20 October 2014 the parties came before me for an interim hearing. Orders were made for the child to spend time with the father subject to urinalysis testing and conditional upon supervision by the paternal grandmother. The orders envisioned a transition to time at a contact centre once a place became available.
In November 2014 the child recommenced spending time with the father.
In December 2014 the father did not complete urinalysis testing when requested to do so by the Independent Children’s Lawyer. The mother suspended the father’s time with the child.
On 20 January 2015 the contact centre cancelled the parties’ position on the waiting list for a place because the father failed to attend two appointments for an intake assessment. On one occasion the father says he broke his foot and was unable to attend. On the makeup appointment the father says he did not attend because his car broke down on the way to the appointment, and he telephoned the contact centre to notify them of his lateness and asserts they told him not to come at all.
On 22 January 2015 the father again failed to undergo urinalysis testing as requested by the Independent Children’s Lawyer.
On 24 March 2015 the mother’s solicitors wrote to the paternal grandmother offering her to spend time with the child in the presence of the mother.
On 24 April 2015 interim orders were made that upon the father complying with a random urinalysis within 48 hours of a request by the Independent Children’s Lawyer, the child’s time with the father could resume.
On 27 April 2015 a request for urinalysis was sent to the father by the Independent Children’s Lawyer. The father did not comply with the request.
On 15 May 2015 the father undertook urinalysis which tested positive for opiates, creatine and cannabis.
On 25 June 2015 the father tested positive for cannabis and creatine.
MAJOR ISSUES
The mother’s mental health and drug use
The mother has previously been diagnosed with having borderline personality disorder. This has caused her to self-harm, have emotional regulation problems, poor self-image, impulsivity, inability to care for herself, immature coping skills, use of prostitution and drugs and seeking out unstable relationships. The single expert has formed the view that the mother continues to suffer from borderline personality disorder.
The mother was the only child of her two parents who separated when she was young. The mother has not had a relationship with her birth father. The mother formed a close relationship with her step father who became part of the mother’s household when the mother was about seven years old. The mother had a rebellious relationship with her own mother during her teenage years and has been homeless on and off since the age of 13 years old. The single expert reports that there is a theme of abandonment in the mother’s life which gave the mother difficulties in developing a strong sense of self-worth and confidence.
The mother’s stepfather committed suicide by hanging himself in 2002 and the mother found her stepfather’s body.
The mother was treated for ADHD as a child and had emotional, behavioural and learning difficulties in primary school. The mother also has a history of post-natal depression and some anxiety adjustment disorders and has had admissions to the J Hospital and was treated with Avanza (a depression medication). The mother also has a history of self-harm and cutting her arm. She told the single expert she did this for stress release. The single expert however, formed the conclusion that there is no indication that the mother has ongoing clinical depression or anxiety and there is no evidence of psychosis. The single expert is of the view that the mother has chronic low-grade depression which is related to her long-term environmental adversity and rejection and her personality disorder.
The mother used ice and marijuana whilst in the relationship with the father. She stopped using ice when she left the father in early 2012 and stopped using marijuana when she left the father in May 2013.
In his updated report of June 2015 the single expert opines that the mother appears to be in a stable environment now. During oral evidence he said that the mother has engaged well with services. The mother’s case worker spoke positively about the mother following recommendations and said this had given him a degree of optimism that the mother may be able to step up to make and provide good parenting. He said that whilst it is still the early days, and the mother may need a longer period of time for support and observation, he has optimism that the mother is attempting to stabilise her life.
Ms Q provided evidence by affidavit and orally. She is a caseworker at the Brighter Futures program and has known the mother since early 2014. Ms Q was assigned as the mother’s caseworker on 2 March 2015. She says the mother has engaged very well with the Brighter Futures program and has been open to advice about parenting skills, childcare services, personal growth and general wellbeing. The mother has attended various parenting groups and has completed an anger management course. The mother also volunteers in the community kitchen. Ms Q indicates that the mother’s home is clean and tidy and during the period of her involvement with the mother she had not seen any indications that the mother is using illegal drugs.
FATHER’S MENTAL STATUS AND DRUG USE
The father has used speed, ice and marijuana regularly over the past ten years.
The father has had treatment for anxiety and at the time of the first report by the single expert, was seeing a counsellor. The single expert opines in his first report that the father probably has a mild generalised anxiety disorder with some panic symptoms but those difficulties are not debilitating. The father had a history of stable work but also used drugs consistently. The single expert reported that although the father has some antisocial features, his major personality style relates to poor self-esteem and this is reflected in his tendency to become anxious. The father’s use of drugs such as speed could make his anxiety worse, but using medication such as Xanax could reduce those anxiety levels. Overall, the single expert opined that the father’s personality difficulties are more self-esteem based personality problems leading to low confidence and dependency issues. He says the father could qualify for a diagnosis of personality disorder but it was uncertain.
In his updated report of June 2015 the single expert continued to have concerns about the father’s use of drugs and inability to demonstrate long term abstinence. During oral evidence the single expert indicated that the father’s drug taking is likely to impact on his whole life. He said that if the father is using drugs regularly, he is not able to place priority on the child over his own drug needs.
The single expert stated during oral evidence that the two well recognised side effects of using ice are an acute state of psychosis and ongoing development of a schizophrenia type illness which can move into an ongoing psychiatric condition including hallucinations or delusional ideas. According to the single expert, because ice is so uncontrolled, amounts taken are irregular and the higher the dose the more likely the user is to become irrational.
Records produced from corrective services in 2009 note that the father refused medication for psychosis because he was aware the psychosis was drug induced. The father denied this.
Records were tendered by the mother from Justice Health which record that on 19 July 2012 the father told one of the psychiatrists that he had experienced a drug induced psychosis. The father denied he ever reported this. The records suggest the father also reported having heard voices when using ice. The father also denied this during cross examination. Another record from Justice Health indicates that in November 2011 the father reported psychosis from taking speed.
I agree with counsel for the father that it is unlikely that the father told a support service that he had “drug induced psychosis”. The father indicated in the witness box he did not even know what that term meant and I accept that is so. However, I find that the father did say things to the service that led them to conclude that what he was describing was a drug induced psychosis.
At page 5 of the mother’s case outline document is a summary of the father’s drug tests. He has failed four tests for amphetamine or methamphetamine use. He has failed on about 9 occasions for cannabis use and has also been detected in respect of creatine, codeine, morphine, pseudoephedrine and opiates. The father also failed to undergo testing when required at the end of 2013, end of 2014 and early 2015. I find he was using ice heavily in 2014.
I have no evidence that the father has used ice in 2015. However, he has used ice consistently over a 15 year period.
The single expert opines that given the father has neither submitted himself to any rehabilitation service nor sought in any serious way to amend his lifestyle to eliminate drugs, it is very unlikely that the father no longer has a serious drug problem.
Counsel for the father put to the single expert that the father was using marijuana as a way to minimise the symptoms he suffers associated with his medical condition. The single expert said that it is very easy to rationalise using marijuana to manage side effects, but in the case of the father, he is reliant on it and it has become part of his lifestyle. The single expert opined that if the father wants to demonstrate that he is able to take responsibility and have a position in his child’s life, he needs to step up and take responsibility himself and remove drug taking as a feature of his life. It was put to the single expert that occasional drug taking would not make the father a bad parent, but the single expert asserted that if the father is using cannabis two to three times per week, it is suggestive of the habit being an important part of his life. If the rest of the father’s life was in order and there had not been severe family violence, the father had not had jail terms and problems with the police, then the single expert opined it could be argued that cannabis usage was not impacting the father’s life, but in this case the single expert is of the view that the drug taking is having a severe impact on the father’s life and he is having difficulty maintaining stability.
I find that the father continues to have a serious drug problem.
FAMILY VIOLENCE
On 31 October 2011 an incident occurred which resulted in the father spending time in prison. A police record of this incident is Exhibit 6. The father indicated that he did not completely agree with the facts that were presented to the court but I am satisfied that what I now record is what took place during a period when the father held the mother for about four hours.
The parties were at the father’s home and had argued over a number of minor issues. At around 3.00pm the parties had a minor verbal altercation and the mother left the home with a friend. She attended another friend’s home nearby. While she was away, the mother received numerous calls from the father and the father left the mother numerous voice messages. The mother returned to the father’s home at about 1:30am and found the father sitting on the front steps. The father had placed the mother’s personal belongings on the front lawn and began asking the mother where she had been. The father said to the mother “You are full of shit, you are nothing but a slut. You are a dog and just using me”. He then stood close to her face and said “You are a slut, you should be dead. You are nothing but a low life.” The mother pushed the father in the chest to move him away from her and entered the home. The father entered behind her and was yelling and screaming at her, demanding to see her mobile phone. The mother handed the father her phone and called the father a dog. At this stage, the parties were in the main bedroom of the home and the father stood up and slapped the mother across the left side of her face with his hand in a “backhand motion” causing immediate pain to the mother’s cheek. The mother said to the father “you are a low life junkie scum”. The father then hit the mother across her back shoulder causing immediate pain and the mother walked out of the bedroom to sit down. The father followed her and demanded her Facebook password. The mother refused to supply this. The father had a pair of blue and black scissors in his hand and something occurred which resulted in the mother’s scalp being cut causing it to bleed. The mother attempted to leave the premises via the rear door but found it was dead locked. She attempted to exit via the laundry but this was also locked. The father then followed the mother into the kitchen and hit her head and upper body causing pain to those areas. The father threw glasses and coffee cups at the mother and said to her “I’m going to kill you, I’m a psycho, I won’t do it quick and easy, I will lock you in the house for days and torture you until you beg me to kill you, or you kill yourself.” He further said “I’ll bite your nose off and make sure you have two glass eyes. Next time you see your daughter, she won’t recognise you and [sic] run away with horror”. The father then proceeded to punch the mother in the head and she kicked him in the groin area which enraged him. The father proceeded to punch the mother and pinned her to the bed, causing her more harm and pain. The mother tried to tell the father to stop but was having difficulty breathing. The mother attempted to leave through the front door but was unable to because it was also deadlocked. The father approached the mother, pulled the back of her hair and said “you are not going anywhere. If you are going to leave here is (sic) will be in a body bag”. The father restrained the mother from leaving by holding her ankles and dragging her across the floor. The father then had trouble breathing and went to another room. The mother followed him to see if he was okay and noticed he was holding a medium sized filleting knife. What followed with the knife is blacked out in the police records, but the father caused the mother some fear and pain with that knife. The mother was of the belief the father was going to stab and kill her. She ran into her daughter’s room and the father began throwing objects and furniture at her. He told her “The only way you are going to leave here is in a body bag. I am going to strip you naked and make you walk up to [Mr R’s] house past all the school kids, and flog you out the front of [Mr R’s] house and see if they will help you now.” Further physical violence occurred, the extent to which is unknown and the parties began to wrestle. The father then rang his mother and said “I’m going to kill her. This is it. she has done it now and pushed me too far”. When the mother heard this she attempted to escape by climbing on the kitchen bench, opened the kitchen window. She got out and took refuge with neighbours. Ambulance officers attended the location and the mother was taken to Suburb C Hospital for treatment. In oral evidence the mother said the incident took place over a four hour period.
Both parties were under the influence of drugs during the incident and the father was later arrested and charged with 14 different offences arising from what had happened on this day. The father pleaded guilty to the charges.
These events happened before the birth of the subject child and the parties reconciled after this incident.
There was a further incident which led to the final separation of the parties on 25 May 2013. On this occasion, the mother was laying in her bed with the child when F entered the bedroom wanting breakfast. The mother went to make breakfast for F and the father followed. The mother heard the father speaking to F in a way that the mother described as a “piece of shit”. The mother told F to go to her own bedroom and not talk to the father. The mother and father got into an argument during which the father repeatedly told the mother “pack your shit and get out”. The father said to the mother “if your mum doesn’t take you today I’m going to drag you out and drop you on your head”. The mother was very fearful for her safety and the safety of her two daughters. The mother told the father “yeah you would you dog”. The father took one step towards the mother and used his right fist to punch the mother in her left eye. The mother left the house and called the police. The mother went out for a walk and then returned and the father again hit the mother in the left eye. The police arrived and saw redness around the mother’s eyes. She had been crying and the police were unable to be positive as to whether or not the redness on the mother’s face was caused by an assault perpetrated by the father on the mother as alleged by the mother or as a result of crying. The police however accepted the mother’s version and charged the father with assault and obtained an apprehended violence order. There was subsequently a criminal hearing where the Magistrate was not satisfied that the version given by the mother could be accepted beyond reasonable doubt. The father spent six weeks on remand awaiting hearing before he was released. During oral evidence the father vehemently denied this incident and asserts the mother framed him. I am able to find that on this day the father at least behaved in a threatening and intimidating manner towards the mother.
THE APPROACH IN CHILDREN’S CASES
The objects of Part VII Family Law Act 1975 (Cth) (“the Act”) are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests.
Primary considerations
The benefit to the child of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a))
The single expert now recommends that the child live with the mother. The child has her primary attachment with the mother. The child will benefit from having a meaningful relationship with the mother.
The child would also benefit from having a meaningful relationship with the father if the child was not at risk of danger or exposure to physical, emotional or mental harm.
The need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b), noting s 60CC(2A))
The mother has been the subject of family violence at the hands of the father. There is an ongoing need to protect the child from being exposed to the possibility of future family violence.
The father has had considerable opportunities during the course of this litigation to avail himself of appropriate services and to provide urinalysis that would have satisfied the conditions, under the interim orders, to allow him to see the child on a regular basis. He has not done that. The single expert opines that it is unlikely, without the father’s serious commitment to rehabilitation, that his lifestyle will be free of drugs. The single expert opines that the father’s inability to become drug free evidences his inability to put the child as a priority. The father’s mental status and his use of drugs and its attendant lifestyle means that there is a need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations
Child’s views (s 60CC(3)(a))
Given the age of the child, this is not a relevant consideration.
Relationships of the child with the parents and other persons (s 60CC(3)(b))
Whilst both parents have a history of illicit drug use, the mother’s use of drugs and her accommodation now seems to be stable at least to an extent of providing some reasonable hope in the future for the child to remain risk free in the mother’s care.
When the single expert first saw the parties in February 2014, the child was at an age where she had just started to develop attachment behaviour and there was not a clear preference between the two parents. She seemed to have a strong familiarity with both parents and was comfortable with them. The single expert gave evidence however, and I find, that the child now has a primary attachment with the mother. The child has spent little time during a critical period in her life developing a relationship with her father. The child did not spend any time with the father between December 2013 and October 2014 and spent limited time with the father from 20 October 2014 (when further interim orders were made) until about 9 December 2014 (when the child’s time with the father was suspended due to the father not providing random urinalysis results as requested). The child has not spent any time with her father since about 9 December 2014 except for one occasion shortly before the final phase of the hearing where the child was picked up by the paternal grandmother and spent time with the father during the day time.
The child has a relationship with the paternal grandmother and the father’s partner, Ms O. The paternal grandmother gave evidence that when the child spends time at her household the child also plays with her cousins who reside with the paternal grandmother. Counsel for the father submits that if the court does make orders as sought by the Independent Children's Lawyer and the mother in respect of only recognition contact time for the father, then it is important that some contact with the father’s side of the family is maintained, but neither the paternal grandmother nor Ms O made applications in these proceedings.
Extent to which each parent has taken the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with and communicate with the child (s 60CC(3)(c))
The parents do not communicate with one another at all and I find they have no capacity to do so. They have not participated in jointly making decisions about any major long term issue in relation to the children.
Extent to which each parent has fulfilled their obligation to maintain the child (s 60CC(3)(ca))
The amount of $16 per week is deducted from the father’s social security benefits in respect of the payment of child support.
Likely effect of any change in the children’s circumstances (s 60CC(3)(d))
Since orders were made in July 2013, the child has been living with the mother. The proposal by the father deals with the effect of change by suggesting a graduated phasing in of increasing time with the father. The proposal by the mother and the Independent Children's Lawyer would not be all that much different from what has been happening up until now (although hopefully it would be a bit more predictable and the father would actually see the child in accordance with the orders; albeit for a short time on a small number of occasions during the year).
Practical difficulties and expense of the children spending time and communicating with a parent (s 60CC(3)(e))
There are no current practicable difficulties on the occasions when handover has taken place. There has been no incident at the police station and no incident between the mother and the paternal grandmother. Although the two women do not speak to one another when they are handing the child over, they are respectful of one another.
The capacity of each of the parents (and any other person) to provide for the needs of the children, including emotional and intellectual needs (s 60CC(3)(f))
The mother is now in a stable environment with a twelve month lease and has engaged with services. I am satisfied that she is able to meet the physical and emotional needs of the child.
Until the father has demonstrated long term abstinence, it is not possible for me to conclude that he has the capacity to adequately parent the child.
The maturity, sex, background and lifestyle of the children and parents (s 60CC(3)(g))
The child is 3 years old and appears to be developing normally for her age.
If the children are Aboriginal or Torres Strait Islander (s 60CC(3)(h))
Not applicable.
The attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s 60CC(3)(i))
The mother has approached her rehabilitation in the Brighter Futures program with commendable resolve. As already indicated, the father has not adopted a similar resolve and has not complied with requests to undertake random urinalysis in a timely way and many of his tests have been less than satisfactory.
Any family violence involving the children or a member of the children’s family and any relevant inferences from a family violence order (s 60CC(3)(j) and(k))
As detailed above, there has been family violence between the mother and the father (in October 2011 and May 2013) and the father has spent time in prison on the first occasion and time in custody without bail on the second occasion, notwithstanding the fact that the 2013 charges were later dismissed on the basis that the relevant standard of proof had not been satisfied.
The mother was hospitalised in the psychiatric unit of J Hospital in 2012 because of her ice use and remained there for about three weeks. The father asserts in his affidavit that the mother was admitted to the psychiatric ward after she was charged with assaulting him. These events were not raised during the hearing and I am consequently unable to make a finding about this incident.
There was a previous AVO made against the father on 24 June 2013 for the protection of the mother, the child and F (the mother’s daughter who spends each alternate weekend with the mother) for a period of 12 months. That AVO has now expired.
Likelihood of order leading to further proceedings (s 60CC(3)(l))
This consideration is of no particular relevance.
Any other relevant fact or circumstance (s 60CC(3)(m))
There are no other facts or circumstances that are of relevance.
PARENTAL RESPONSIBILITY
Given that there is family violence in this case, there is no presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility.
I find it is not in the best interests of the child for an equal shared parental responsibility order to be made in any event. There is no communication between the parties and it is unlikely that situation would change any time soon. The mother has agreed to provide particular information to the father about the child’s welfare from time to time. There is no point however making an order that the parents genuinely consult about major long term issues. Given that the child will ordinarily live with the mother, she should have sole parental responsibility for the child, apart from the issue in relation to the child’s surname which I deal with below.
TIME
Given that there will be no order for equal shared parental responsibility, the provisions of s 65DAA of the Act are not triggered. Even if they were, I would find in this case that it is not reasonably practicable to order equal time or substantial and significant time given the total lack of ability of the parents to communicate with one another.
Taking into consideration the matters referred to above, and in particular considerations under s 60CC(2)(b) and s 60CC(2A) of the Act, I conclude that it is in the child’s best interest only to have recognition contact with the father as proposed by the Independent Children's Lawyer and the mother.
Given that that is my conclusion, there is no need to implement the drug testing regime that the father has proposed in his orders.
I have previously made orders, during the time when the final phase of the hearing was pending, for the child to see her father at a child contact centre. Those orders were never made to work, principally because the father was unable to organise himself to complete the intake procedures at the child contact centre (he gave reasons relating to an injury to his foot and a breakdown of a motor vehicle). Whilst I do not comment on the validity of those reasons, the fact is, the father was not able to organise himself to get that regime of contact working. I do not think there is any particular need to take that risk again. The mother wants a contact centre because she does not like the paternal grandmother or the father’s new partner.
Both women gave evidence before me and in the context of the personalities in this case, I was reasonably impressed particularly with the father’s new partner. The paternal grandmother is in fact a State certified carer of two of her grandchildren. Whilst the mother has some justification for being critical about the insights of both women into the extent of the father’s drug taking, I am confident that if the father was affected by drugs to the extent that he would be a danger to the child, that neither the paternal grandmother nor the father’s current partner would allow the child to be with him. The risks are small given the amount of time that is involved. In those circumstances I conclude that supervision need not be at a contact centre but can be conducted by the paternal grandmother and the father’s current partner.
The Independent Children's Lawyer had originally floated the idea that the father could be at changeover with a supervisor at Suburb M Police Station. I inquired as to whether or not the mother was attracted to that idea on the basis that she could then make some observation of the father before the child went with the father. The mother indicated through her counsel that because of incidents that have taken place between the parties in the past, the mother would give up that advantage of observing the father’s condition before time with the child in preference for not having to have face to face contact with the father. Accordingly, changeover will happen between the mother and either of the two nominated supervisors at Suburb M Police Station.
The father sought an order that the mother provide him with the names and addresses of treating doctors and treating medical specialists. There is no necessity to do that. There will be an order however, that the mother provide by email to the father copies of any reports from any medical specialist consultant that the child attends.
The father asks for an order that he be permitted to attend any school event relating to the child to which the parents are ordinarily invited and to any of the child’s extra-curricular activities. Given the level of conflict between the parties and the orders for recognition contact that have been made, it is not in the child’s best interest to make that order.
CHANGE OF NAME
As indicated above, the mother wishes to change the child’s surname to Hurley. The father opposes that change of name, wanting the child’s surname to remain the same as his. The Independent Children's Lawyer proposes a middle course by changing the child’s surname to Simpson-Hurley.
In Reynolds and Sherman (2015) FLC 93-659, the Full Court expressed a “tentative view” that an order dealing with a child’s name and not allocating that responsibility to one or both the parents, falls within the broad terms of s 64B(2)(i) of the Act and is therefore a “parenting order” (see also Boland J in Ryan and Burnett [2008] FamCAFC 72). With respect, the tentative view expressed by the Full Court in Reynolds and Sherman must be the correct view. Section 64B(2)(i) relates to a parenting order which deals with “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for the child”. “Parental responsibility” means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children (s 4 and s 61B of the Act). Parental responsibility includes making a decision about a major long-term issue in relation to the child (see s 65DAC of the Act). Major long-term issues are defined in s 4 of the Act to include:
(d) the child’s name
It follows from the construction of the Act that a decision in relation to a child’s name is a decision about a major long term issue. A decision about a major long term issue is an exercise of parental responsibility. Accordingly, a decision about a child’s name is in my view a decision about an aspect of parental responsibility.
It follows that when considering the issue of the name by which a child is known, I must regard the best interests of the child as the paramount consideration.
In Chapman and Palmer (1978) FLC 90-510 at p 77,674, the Full Court said that in any application concerning the change of a child’s surname:
....The guiding principle is that the welfare of the child [now best interests] is the paramount consideration. It must stand above the wishes or proprietary interests of the parents.
The Full Court went on to say at pp 77,675-77,676 [as punctuated in the report]:
... the factors to which the Courts should have regard in determining whether there should be any change in the surname of a child include the following:
(a) the welfare of the child is the paramount consideration,
(b) the short and long term effects of any change in the child's surname,
(c) any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.
(d) Any confusion of identity which may arise for the child if his or her name is changed or is not changed.
(e) The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage or relationship.
(f) The effect of frequent or random changes of name.
The mother’s motivation for wanting to change the child’s surname is so that the child will have the same surname as herself and F (the child’s half-sister who comes into the child’s household every alternate weekend and half of school holidays). The mother says it is appropriate to change the child’s surname if an order is made for the child to only have recognition contact with the father.
Counsel for the father refers to a statement in the mother’s affidavit where she says, “I want [the child] to have a father in her life”. He submitted that that statement is contradictory to the mother’s proposal whereby she seeks not only limited recognition time between the child and father but also for the child to forego using the father’s surname.
Further, counsel for the father submits that if the court were to make an order in accordance with that sought by the Independent Children's Lawyer, then given the mother’s attitude to the father and the father’s family, it is a reasonable expectation that Simpson (as part of a hyphenated surname) will shortly be dropped off and the surname will ultimately remain as only Hurley.
I am not attracted to the hyphenated name as suggested by the Independent Children's Lawyer because I accept the argument of counsel for the father that it is likely that at school the first part of the surname will be dropped off given the length of the double barrel name.
I accept that if the child’s name is to be changed then it is better that that happen prior to her going to school to save her from any embarrassment that she might experience if her name is changed by a court or by agreement at a later stage.
There is some risk with only recognition contact that the child will not have a close connection with the father or his family. There is also some risk that given the father’s mental status and his use of drugs and its attendant lifestyle, the father may drift out of the child’s life.
At this stage however, the father is indicating an interest to remain known to the child and be part of the child’s life. It will in my view be useful for the child’s future sense of identity to retain the surname that she currently has. The retention of the father’s surname might also assist in the event that the father at some future date is able to rehabilitate himself sufficiently to open the door to a more expansive relationship with the child when she is older.
I conclude it is in the child’s best interest for her to retain her current surname.
I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 4 March 2016
Associate:
Date: 4/3/2016