Klimas & Binstead & Anor

[2016] FamCA 591

FAMILY COURT OF AUSTRALIA

KLIMAS & BINSTEAD AND ANOR [2016] FamCA 591

FAMILY LAW – CHILDREN – PARENTING – Interim – Where there are allegations that three parents who are intelligent professionals have drug addictions – Where orders are made pending further order for the children to have supervised time with the wife and the father/stepfather and for drug testing – Where orders are made for a Chapter 15 expert report and the appointment of an Independent Children’s Lawyer and a request is made for the Department of Family and Community Services to intervene.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

APPLICANT: Mr Klimas

RESPONDENT: Ms Binstead

2^nd RESPONDENT: Mr Watson

FILE NUMBER: PAC 1689 of 2013

DATE DELIVERED: 20 July 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 14 & 15 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd, SC

SOLICITOR FOR THE APPLICANT: Newnhams Solicitors

COUNSEL FOR THE RESPONDENT: Ms Devere

SOLICITOR FOR THE RESPONDENT: Mcphee Kelshaw

SOLICITOR FOR THE 2^ND RESPONDENT: Litigant in person

PROPOSED ORDERS

Pending further order

1. Orders 22 – 34 dated 23 April 2013 be suspended.

2. The applicant and 1^st respondent have equal shared parental responsibility of Y Klimas born … 2006 and B Klimas born … 2009.

3. Except for the order I make in relation to supervisors, the applicant’s application relating to C Watson-Binstead born … 2014 be dismissed.

4. The children Y and B live with the applicant.

5. Subject to these orders, Y and B spend time with the 1^st respondent each Saturday and each Sunday from 9am to 7pm on the basis that she reside at the home of the maternal grandparents, Mr and Mrs W.

6. Subject to order 10, the child C live with the 1^st respondent in the home of the maternal grandparents, Mr and Mrs W.

7. The children Y and B have telephone or, at the option of the 1^st respondent, Facetime or other similar communication, with the 1^st respondent each day they are not with the 1^st respondent.

8. One or more of the following persons be present during periods of time the children Y, B and C, are in the 1^st respondent’s care:

   8.1.Mr W, the maternal grandfather

   8.2.Mrs W, the maternal grandmother

   8.3.Ms A, the maternal aunt

   8.4.Mr D, the maternal uncle

   8.5.Ms X, the partner of the maternal uncle

   8.6.A person referred to in Order 9

   8.7.Such other person agreed in writing between the applicant father and respondent mother.

   Provided that:

   8.8.That person, other than Mr W and Mrs W, has signed an undertaking in the form attached to these orders and the 1^st respondent’s lawyers have filed and served the undertaking;

   8.9.Ms H born … 1973 and Ms H’s older daughter J not be present; and

   8.10.The child C is not to be alone only with the 1^st respondent and the 2^nd respondent and that in the event the 2^nd respondent comes to visit C then one of the supervisors needs to be present.

9. At the option of the applicant, which option is to be exercised in writing, the applicant at his expense can require that the children’s time with either the 1^st respondent or the 2^nd respondent be supervised by a professionally qualified supervisor or the employee of an organisation which provides a service of professional supervision such as Dial-An-Angel or Phoenix Rising and should the applicant so choose to employ such a supervisor then (without giving an undertaking to the court) that supervisor is to have the same obligations as set out in the undertaking attached to these orders.

10. The 1^st respondent is to reside in the former matrimonial home between 18 July 2016 and 4 August 2016 with the child C provided:

    10.1.Mr and Mrs T are present;

    10.2.The 2^nd respondent does not live there.

11. The 1^st and 2^nd respondents shall undertake supervised urinalysis as follows:

    11.1.Once each week with the results of the urinalysis of the 1^st and 2^nd respondent to be supplied to the applicant within 7 days of such urinalysis occurring and the 1^st and 2^nd respondents to pay the cost of such urinalysis;

    11.2.Within 48 hours of the 1^st or 2^nd respondent receiving a request from the applicant provided however that such request shall be limited to once each month and undertaken at the cost of the applicant;

    11.3.The urinalysis shall test for opiates, benzodiazepines, cannabis, cocaine, amphetamines and methamphetamines.

12. The applicant shall undertake supervised urinalysis as follows:

    12.1.Once each week with the results of the urinalysis of the applicant to be supplied to the 1^st and 2^nd respondents within 7 days of such urinalysis occurring and the applicant is to pay the cost of that urinalysis; provided that this order does not apply in the event that the applicant continues to have mandatory drug testing imposed as a condition of his professional practice and the applicant supplies to the 1^st and 2^nd respondents the results of those tests forthwith upon those reports being completed;

    12.2.Within 48 hours of the applicant receiving a request from the 1^st or 2^nd respondent provided however that such request shall be limited to once each month by each of the 1^st and 2^nd respondent and undertaken at the cost of the respondent who has made the request;

    12.3.The urinalysis shall test for opiates, benzodiazepines, cannabis, cocaine, amphetamines and methamphetamines.

13. That the applicant, the 1^st respondent and the 2^nd respondent be restrained from:

    13.1.Consuming illicit drugs including but not limited to amphetamines, methamphetamines, cannabis, benzodiazepines and opiates (provided however that this shall not prevent any party consuming opiates and benzodiazepines in strict accordance with a prescription issued by a treating medical practitioner);

    13.2.Consuming prescription medication including opiates and benzodiazepines except in strict accordance with the prescription issued by the treating medical practitioner;

    13.3.Consuming more than 2 standard drinks in any 24 hour period whilst the children are in their respective care.

14. The 1^st and 2^nd respondents are restrained from exposing the children to excessive alcohol consumption or illegal drugs or allowing any other person to do so while they are in their care.

15. The applicant and 1^st respondent are restrained from contacting each other either directly or indirectly except for the purpose of spending time with the children in accordance with these orders.

16. The applicant or his nominee is to deliver the children to the 1^st respondent at the commencement of the children’s time with the 1^st respondent and pick the children up from the 1^st respondent at the conclusion of the children’s time with the 1^st respondent.

17. The applicant and 1^st respondent are otherwise restrained from approaching each other except for the purposes of changeovers.

18. The applicant and the 1^st respondent be restrained from physically disciplining the children Y and B and/or permitting or allowing any other person to physically discipline the children.

19. Pursuant to s 68L Family Law Act 1975 (Cth) the children shall be separately represented and Legal Aid NSW is requested to arrange such representation.

20. The Registry Manager or her nominee notify the Senior Solicitor, Family Law Litigation, Legal Aid NSW of these Orders within 7 days from today.

21. Within 14 days from the date of these orders, the parties provide to the Senior Solicitor, Family Law Litigation, Legal Aid NSW copies of all relevant orders, reports, applications and affidavits filed on behalf of the each of the parties.

22. The final hearing of this matter is expedited and the matter is to be placed in Watts J’s judicial docket.

23. The Registrar of the Court is to request the Department of Family and Community Services to intervene and become a party to these proceedings on the basis that their involvement in the case will not necessarily continue to the final hearing if their participation is no longer necessary.

24. Pursuant to Division 15.5.2 of the Family Law Rules 2004, Dr L be appointed as a single expert to enquire into and report upon matters relating to the welfare of the children, Y born … 2006, B born … 2009 and C born … 2014, and that in preparing his report to the Court, Dr L will be requested to consider the following matters:

    24.1.Whether the children are at risk of physical or psychological harm in either household;

    24.2.The advantages and disadvantages of the children spending time with the applicant, 1^st respondent and 2^nd respondent;

    24.3.If the children are to spend time with the applicant, the 1^st respondent and the 2^nd respondent, whether any conditions should be imposed on that time and how it is to be implemented;

    24.4.Whether the applicant, the 1^st respondent or 2^nd respondent show any signs of mental ill health or personality disorder, and if so, an opinion as to the impact upon the child being parented by or cared for by that person or persons;

    24.5.The nature and extent of the relationships between each of the parties and the children; and between the children and their grandparents.

    24.6.The ability of each party to provide adequately for the children’s physical and emotional development;

    24.7.The willingness and ability of the parties to facilitate and encourage a close and continuing relationship between the children and their parents;

    24.8.To what extent do each of the children’s parents have the ability to provide a positive view of the other parent and their parenting of the children;

    24.9.Any assistance, services or courses that can be recommended to the parties to reduce the amount of conflict between the parties and to improve their parenting generally and any assistance and services that can be recommended for the children;

    24.10.The impact of the parents illicit drug use, prescription drug use and use of alcohol on their parenting capacity and ability to care for the children, both historically and currently;

    24.11.Any effect on the children being separated from their parents or their siblings including B and Y being separated from the 2^nd respondent;

    24.12.The impact of any family violence on the children and/or the parties;

    24.13.Any views expressed by a child and any factors the expert thinks are relevant to the weight the Court should give to the child’s views;

    24.14.Any recommendations that the expert would care to make or any other matters the expert considers relevant;

    24.15.Any other matter or information the expert feels should be advised of after conducting interviews.

25. That the costs associated with the expert (including cross-examination) be paid equally by the applicant and 1^st respondent.

26. 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.

FORM OF UNDERTAKING BY SUPERVISOR

I insert name of insert address acknowledge:

I have read the reasons of Watts J dated 20 July 2016.

I understand that my duty to the court is to:

Supervise the time that the children, [Y Klimas] born … 2006, [B Klimas] born … 2009 and [C Watson-Binstead] born … 2014, spend with [Ms Binstead] and [Mr Watson].

In the event that I form the view that either [Ms Binstead] or [Mr Watson] is affected by any substance and/or are in an emotional or psychological state which compromises their parenting capacity, I undertake to the Court to:

Inform [Mr Klimas] that that is my view.

Inform the Department of Family Community Services that I have formed that view.

Deliver the children to [Mr Klimas].

Date:

Signed:

Witness:

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Klimas & Binstead and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 1689  of 2013

Mr Klimas

Applicant

And

Ms Binstead

Respondent

And

Mr Watson

2^nd Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This is a matter that was listed in a duty list upon short notice. The immediate welfare of three children aged 10, six and nineteen months is in issue. The two older children, Y (“the first child”) and B (“the second child”), are the children of Mr Klimas (“the husband”) and Ms Binstead (“wife”). The child C (“the third child”) is the child of the wife and the 2^nd respondent, Mr Watson (“the father/stepfather”). All parents are intelligent professionals. The husband runs a number of successful health practices but has for a long time had a serious drug dependency for which he is receiving treatment and which is currently said to be in remission. The wife, who is a legal professional and has previously worked for a government agency for 12 years, has a serious addiction to methamphetamine (“ice”) and there are issues in relation to the wife’s current mental status. On 24 June 2016 the wife told a Senior Departmental Caseworker that she has had thoughts of killing herself in the past but the thought of her children being left behind had stopped her, however if she loses her children to the husband she will kill herself because she will have nothing left to live for. The father/stepfather who is a health professional who has worked for a government agency for approximately 20 years and has been on leave without pay from the agency since May 2015. He is an alcoholic and has a current addiction to ice.

2. Final parenting orders were made in this case in April 2013. The case proceeded on the basis that recent revelations in relation to particularly the use of drugs by the wife and father/stepfather create a significant change in circumstances from those that were understood to have existed in April 2013.

3. Apart from hearing some oral evidence from the maternal grandparents principally relevant to their capacity to supervise the children’s time with the wife, these proceedings have been dealt with on the papers.

APPLICATIONS

1. The orders the husband seeks are set out in Schedule 1.

2. The orders the wife seeks are set out in Schedule 2.

3. The father/stepfather sought no formal orders in relation to the third child but supported the orders that the wife sought in relation to the third child (a dismissal of the husband’s application in relation to the third child). This would allow the wife and the father/stepfather to make their own arrangements in relation to the third child not restricted by any court order.

BACKGROUND

1. The husband was born in1975. He is a medical professional who owns and operates three health practices.

2. The wife was born in 1975. She was admitted as a solicitor in 2003 and worked as a legal professional for a government agency. The wife has not worked since the birth of the third child in early 2015.

3. The father/stepfather was born in 1973. In his affidavit he seemed to give the impression that he was still employed by the government agency as a health professional. When asked about that, the father/stepfather agreed that he was currently suspended as a health professional and had been on leave without pay since May 2015 initially due to issues with alcohol.

4. The husband and wife commenced cohabitation in September 1993 and married in 2003.

5. The first child was born in 2006 and is currently ten years of age.

6. The second child was born in 2009 and is currently seven years of age.

7. On 20 June 2012 the husband and wife separated when the husband left the former matrimonial home.

8. On 23 April 2013 final parenting and property settlement orders were made by consent in the Family Court at Parramatta as between the husband and wife. The parenting orders that the parties entered into by consent provided that the parties have equal shared parental responsibility for the first child and the second child; that the children live with the wife and that the husband spend time with the first child and second child during school term each week overnight each Wednesday and each alternate weekend from Friday afternoon to Sunday afternoon (four nights per fortnight). If the wife was working the husband was also to have the first child and second child until 6.30pm each Thursday afternoon and each alternate Friday afternoon. During school holidays, the first child and second child would spend seven nights with the husband during terms 1, 2 and 3 school holidays and week about during Christmas holidays. The orders provided the wife be transferred the former matrimonial home and received one million dollars. The husband received in the property settlement the wife’s interest in various entities which conducted the various health practices.

9. In May 2013 the wife admits that she had used methamphetamine with her sister Ms H and her niece J (Ms H’s daughter).

10. In November 2013 the wife admits that she smoked methamphetamine for the second time with the father/stepfather. The wife says that the children were in the husband’s care at the time. The wife says that from November 2013 until March 2014 she and the father/stepfather would smoke methamphetamine every four to six weeks at the father/stepfather’s home on weekends when the first child and second child were in the husband’s care.

11. In March 2014 the wife says that when she realised she was pregnant she ceased using ice. The husband says the wife went on an overseas holiday as a way of ceasing to use ice.

12. In the middle of 2014 when she was pregnant, the wife commenced cohabitation with the father/stepfather.

13. In late 2014 the third child was born and is nearly 19 months old.

14. Since May 2015 the husband has been actively involved in encouraging the police to investigate the wife and the father/stepfather and having FACS assessing the risk to the three children in the wife and father/stepfather’s care.

15. In May 2015 FACS visited the former matrimonial home and interviewed the wife. She denied using ice.

16. On 27 May 2015 the wife says two officers from FACS visited the home to check on the third child as a result of the father/stepfather’s use of methamphetamines. The officers spent the day at the wife’s home. The wife denied to FACS that she was using ice but now admits that she had recommenced using methamphetamines at this time, smoking small amounts every few weeks. In an interview with the Department on 21 May 2015 the wife told the note taker that she “is anti-drugs and separated from the children’s father [the husband] due to his alleged prescription drug abuse obtained from his [health practice].” The Department’s inquiries in May 2015 concluded that there was no evidence to support the allegations of drug use within the wife’s household and therefore the severity of risk of harm was nil.

17. Shortly after the Easter school holidays in 2016 the husband purchased a fridge for the wife’s household after the first child told him that their fridge was not working.

18. In her interview with the Department on 3 June 2016 the wife denied that she used ice but she said that she suspected that her niece J uses ice (that was of course totally disingenuous). The wife contends that on 3 June 2016 FACS officers were satisfied in respect of her use of drugs (even though her statements to them at the time were untrue). This contention is unlikely given, as discussed below, the first child had told a Departmental officer on that day that the wife had admitted to the first child that she had used drugs.

1. On 9 June 2016 the husband retained the first and second children.

2. The wife was served with the husband’s application filed 14 June 2016 on that day.

3. On 15 June 2016 15 police officers (some in plain clothes and some in uniform) attended the wife’s home and initiated a search pursuant to a warrant. Police had sniffer dogs locating white crystalline powder from the “man cave” (the back shed) and removed it together with glassware. The wife was then arrested on suspicion of stealing pot plants and taken to G Police Station. The wife was detained for 12 hours and released on bail. The wife has been charged with stealing.

4. The evidence of the wife and the father/stepfather is that the last occasion on which they used ice was 16 June 2016 but told FACS it was on 18 June 2016.

5. On 19 June 2016 the father/stepfather telephoned FACS to admit to them for the first time his use of ice.

6. The father/stepfather told me he expects to be charged with offences associated with possessing and using ice. It is unclear whether the police are considering drug charges against the wife.

7. All parties appeared before me on 20 June 2016 when I made orders suspending the final orders made 23 April 2013 and made interim orders that until the interim hearing was finalised, the first and second child live with the husband and have supervised time with the wife. I ordered that the wife and the father/stepfather undertake supervised urinalysis and hair follicle testing as soon as was practicable.

8. On 24 June 2016 FACS carried out a risk assessment (detailed below).

9. The wife has undertaken urinalysis on 25 June, 27 June, 29 June, 1 July, 6 July and 11 July 2016. The wife did not undertake hair follicle testing until 1 July.

10. On 5 July 2016 the wife says she ceased residing with the father/stepfather and commenced residing with her parents. The wife has moved the children’s furniture and belongings to the home of the maternal grandparents and is in the process of finding tenants for the former matrimonial home.

11. On 8 July 2016 and the following scheduled occasion, the husband did not comply with the orders I had made giving the children time with the wife.

THE RELATIONSHIP BETWEEN THE WIFE AND THE FATHER/STEPFATHER

1. The wife in her affidavit filed on 11 July 2016 said that she ceased to cohabit with the father/stepfather on 5 July 2016 when she moved into her parents’ home with the third child. It seemed that her general intention was to stay at her parents’ home between 12 and 18 months. The wife says she continues a relationship with the father/stepfather but they do not intend to live together in the near future. She says that she is of the view that they both need to spend some time focussing on their respective mental health and sobriety for the sake of the children.

2. The father/stepfather still says he loves the wife and the fact that the wife has moved back to her parents’ home is something that the wife decided to do to maximise her chances of having the children live with her.

3. The wife gives further evidence that she intends to move into the former matrimonial home whilst her parents are overseas between 18 July 2016 and 4 August 2016 on the basis that the father/stepfather’s parents Mr and Mrs T move into the home with her. The father/stepfather will not live in the matrimonial home during that period.

4. It is relatively clear that the wife and the father/stepfather do not intend their relationship to end and that the better view of their current separation is that it is mainly a genuine attempt for them to focus on their own current problems with their respective addictions although it also probably is a forensic tactic to maximise their chances of a favourable outcome in the interim hearing.

THE WIFE’S DRUG USE AND MENTAL STATUS

1. As set out above, the wife admits to commencing using ice in May 2013 and to using it for the second time with the father/stepfather in November 2013. As indicated above the wife says she used ice from November 2013 to March 2014 every four to six weeks when the children were not in her care and gave up the use of ice when she realised she had become pregnant with the third child.

2. In her affidavit the wife asserted that during the second half of 2015 and January to May 2016 the frequency of her use of methamphetamine increased until by 2016 she was using methamphetamine on average several times a week. The impression given by that evidence was that there had been a progressive increase throughout that period. As indicated below, the wife’s hair follicle testing would indicate that over the four quarters of the last financial year, the wife’s consumption was at its highest in the first quarter and second highest in the fourth quarter. Her consumption took place in “the man cave” where all the drug equipment was locked up. I infer that that was out of the sight of the children but that the wife was using ice while the children were at home with her. 

3. In early 2016 the wife says that she found it increasingly difficult to organise herself to arrive at appointments on time and other behaviour which she believed was as a result of her use of methamphetamine.

4. On about 24 May 2016 the wife’s father observed that she was very distressed. He asked whether or not she was using drugs and she admitted that she had used ice. The wife’s father received a telephone call from the husband during which he said he needed to talk to him about the wife and expressed the view that the wife “needed to go to rehab” and referred to a rehabilitation facility called the U Facility.

5. On 31 May 2016 the second child and the wife had an argument in the morning. The second child rang the husband and asked him to pick her up which he did. There was then an exchange of text messages between the wife and the husband in which the wife wrote “I think it’s best that [the second chid] comes and stays with you for a while ... It’s not what a want but it’s what I believe is best for her atm. I’ll be honest …, I have little faith in my ability to help her, I do not think I can, in fact, I believe I only make things worse for her. I hope to God that you can do a better job with her.  I wish I could. I want to but I just can’t. I fail her every day and she doesn’t have time for this. She desperately needs help now if she is going to have any hope of a happy future. That is all I want for her and I don’t want to make that an impossibility for her due to my own shortcomings, it hurts me so much but I have to give her a chance to have a happy life. Please can you do for her what it is that she needs and that I cannot seem to do. I just want her to be ok.” The husband replied “ok, I’ll do anything I can to help.” The wife then sent a number of further text messages including “I’m in a very bad place. I’m scared.” The husband in one of the text messages asks whether or not the wife has called the U Facility. The mother responded by saying “I will call the [U Facility] when I can stop crying.”

6. The second child told a child protection caseworker on 3 June 2016 that her mother had locked her outside. The second child said her mother had got angry at her when she wouldn’t get out of bed to go to school.

7. The wife gives evidence about what happened on 31 May 2016 at [213]-[220] of her affidavit filed 11 July 2016. The wife says that the second child suffers from ADHD, ODD and dyslexia and that her behaviour was particularly challenging on the morning of 31 May 2016 (I accept that the second child’s behaviour can be challenging having heard from the maternal grandfather about an incident where the second child jumped into a pool against the instruction of her grandfather, when even though she had a floatation device on she couldn’t swim. He had to jump into the pool fully clothed after her). The wife disputes the assertion that she locked the second child out of the house (but I accept the second child thought she had) and says that the second child was clearly visible to her at all times through the glass door as she was ringing the husband. The wife says that her comment that the second child “desperately needs help now if she is going to have any hope of a happy future” was a reference to the second child’s learning difficulties and behavioural issues and says that her statement that “I’m in a very bad place, I’m scared” was a reference to the way that she was feeling at the time namely that she felt like she was a bad mother because of the argument that she’d had with the second child that morning. These assertions are untested and, taken with other evidence, these statements probably relate to where the wife’s addiction to ice had taken her, rather than the explanation she gives.

8. The husband says that on 11 May 2016 the wife admitted to him that she was addicted to ice and so was the father/stepfather and that she had been addicted to ice since the end of 2012. The husband says that the wife’s sister Ms H and her niece J introduced her to ice and that J and the wife introduced the father/stepfather to ice. The husband alleges that the wife admitted to him on 11 May 2016 that she was then smoking ice several times a day. It’s the mother’s evidence that at that time she was using ice several times a week. The wife gave a different version to FACS on 24 June 2016 where she agreed that her use was similar to that of the father/stepfather.

9. The wife’s involvement in drugs has led to her and potentially the children being in at least one dangerous situation. On 10 March 2016 at 2am in the morning the wife sent a text message to the husband saying that two males had just arrived at her home and that they were there to cause harm and rob them. One was a standover man and the other one was “absolutely off his chops”. She was lucky because there was another male in the house. She thought the people had been sent by her niece [J] and said “I feel so sick like I’m going to vomit. [J] is a desperate drug addict and a monster. She sees me as a soft target and she’s willing to have me harmed and terrorised so to extort money goods off me. Did they have a knife on them, a gun? Would they have hit me, raped me, tied up my children?” The wife then implored the husband to allow her to move with the children to a safer part of Sydney. The wife does not dispute the authenticity of the text and gives some more background about what happened in the early hours of 10 March 2016 at [167]-[174] of her affidavit of 11 July 2016.

10. The wife and the father/stepfather were both ordered by me on 20 June 2016 to undertake supervised urinalysis and hair follicle testing as soon as practicable. After this order was made, there was debate between the lawyers as to the circumstances in which hair follicle testing was to take place and the wife and the father/stepfather did not undertake hair follicle testing until 1 July 2016. The wife’s test is now available, the father/stepfather’s is not. 

11. Exhibit 11 is a report from ToxLogic containing the mother’s hair follicle testing results. The laboratory that carried out the analysis did so between the period 1 July 2015 to 25 June 2016. The report indicates it is possible to deduce an individual’s dosage over the four quarters through the analysis of successive segments of hair. The document would indicate that in those four quarters the mother’s use of amphetamine was as follows:

    50.1.From 1 July 2015 to 29 September 2015 .7ng/mg;

    50.2.From 29 September 2015 to 28 December 2015 .4ng/mg;

    50.3.From 28 December 2015 to 27 March 2016 .3ng/mg;

    50.4.From 27 March 2016 to 25 June 2016 .5ng/mg.

12. The report indicates that the results are consistent with the use of methamphetamines and that the presence of amphetamine is most likely to be due to the metabolism of methamphetamine to amphetamine. The report concludes in relation to the wife:

    The levels of methamphetamine detected are in the medium to high range when compared to other samples we have otherwise done. 

13. The wife has had eight urinalysis drug tests between 25 June 2016 and 11 July 2016 (Exhibit 4) which did not detect ice. I have one test from the father/stepfather which is also negative.

14. Exhibit 3 is a letter written by Dr K, psychiatrist, in August 2011 opining that the wife is a highly obsessional and driven individual who lacks emotional resources. There is a note in that document that the wife’s parents are not being supportive and she was feeling quite overwhelmed by her circumstances. The psychiatrist indicated that he thought the main difficulty appeared to be in the domain of personality functioning.

15. The wife’s use of ice may well have exacerbated the difficulty the wife has with her underlying mental status leading her to be obsessively concerned with gardening for long hours in the middle of the night and also to steal a large number of pot plants. As indicated, on 15 June 2016 the wife was charged with stealing pot plants and as part of her bail conditions put on a curfew between 9pm and 6am.

16. The father/stepfather reports at [13] of his affidavit that the police visit his home each night to ensure the wife’s bail conditions are being complied with. I infer this statement refers only to the time before the wife moved to her parents’ home.

17. Because the FACS file (Exhibit 12) was not tendered until the end of final submissions, I was unaware that the Department had recorded the wife’s suicidal ideation when interviewing her on 24 June 2016. That feature of the wife’s presentation was not referred to during submissions but for obvious reasons, causes me concern.

18. The husband makes the allegation that the maternal grandparents have stored their eldest daughter, Ms H’s, manufacturing paraphernalia at their home. Having heard from them, I’m relatively confident that that is not true and counsel for the husband did not put that proposition to them.

19. Between late May and early June 2016 the husband has repeatedly urged the wife to go to the U Facility rehabilitation centre. The husband has offered to meet all costs for the wife associated with that residential rehabilitation program. The wife said that she made inquiries of the program and gives evidence that it is a two staged program. The first stage is three to four months then the community decides whether you get admitted into stage two. The wife’s inquiry would indicate that she may not see the children for three to four months during the first stage of the program and that the community votes on whether you can see the children or speak to them in stage two. Given the wife’s view as to the adverse effect that would have upon the children she does not agree to go to the U Facility.

20. The wife does not at any point in her affidavit concede that she is addicted to methamphetamines. At paragraphs [335] to [341] she set out her position in relation to future treatment and in particular the wife says that although her treating medical practitioners have not recommended that she attend rehabilitation if her treating practitioners do make that recommendation then she would participate in residential rehabilitation in a facility in the Sydney or Hawkesbury/Nepean area and it would be on the basis that she would be able to take the third child to that residential rehabilitation. I do not have the advantage of knowing what the wife has reported to her treating professionals.

THE FATHER/STEPFATHER’S DRUG USE

1. The father/stepfather filed an affidavit in court on 14 July. He confirmed that he had been in a relationship with the wife since September 2013 and considers himself the stepfather of the first and second child. He says he is employed fulltime as a health professional with the government agency with whom he has been working for 20 years. The husband has annexed to his affidavit of 11 July 2016 what he says is a true copy of a public search that he did of the relevant professionals’ register which records the father/stepfather’s registration status as “suspended”. The father/stepfather indicated that in an interview with FACS on 17 June 2016 he admitted his “past recreational illicit drug use”. He gives evidence that FACS have deemed it appropriate to leave the third child in the care of the wife and himself. He also gives evidence on 15 June 2016 when the police raided his home that they had no concerns as to how the children were being looked after.

2. After the police had found methamphetamines at the wife’s home on 15 June 2016, the father/stepfather contacted FACS on 20 June 2016 saying that he knew the police would tell FACS so he wanted to be “honest”. The father/stepfather told FACS that he smoked ice “recreationally” and that he had stopped the previous evening. A file note records that the father/stepfather told the note taker that “he is not minimising his use, but he used to work for [a government agency],… and he heard the Department’s view of ice and how negative it is. [The father/stepfather] said that he does not think it is as bad as the Department says it is.” That statement by the father/stepfather shows an alarming lack of insight into the problem that he has

3. The father/stepfather gives a history of the use of ice consistent with the wife’s evidence namely that he first used in November 2013 and used the substance extremely rarely until the wife became pregnant with the third child and didn’t use again until approximately May 2015. He says “my methamphetamine use unfortunately did increase from approximately March 2016 to a few times a week. Nonetheless I refute the [husband’s] assertion that I am an addict and state that this assertion is nonsense”. The father/stepfather says he doesn’t intend to take any illicit substances in the future.

4. In final submissions the father/stepfather made a passionate address admitting that in late 2015 and early 2016 he drank to excess and used illicit substances fairly regularly. He admitted that he was compromised as a functioning adult and parent and expressed contrition about any harm that may have come to the children as a result, saying that it was something he would have to live with. While saying that he was determined that he wouldn’t repeat his drug use he maintained that he’d only used ice recreationally and insisted that he was not a “meth addict”.

5. I asked the father/stepfather how he thought his hair follicle testing report would compare with the wife’s. He said that he did not believe that the readings would be as high as his use of ice was less.

INTERVIEWS BY FACS WITH THE CHILDREN ON 3 JUNE 2016

1. The first child was interviewed by a child protection caseworker at his school on 3 June 2016. He said that the wife gardened “outside a lot” and the father/stepfather had been asleep in the “shed”. The first child talked about J being a regular visitor to the home and an associate of hers named O who the first child understood was now in jail because he’d done some “really bad things”. In that interview, the first child indicated to the caseworker that he knew about drugs “some are plants, some are made” and said “my Mum went through a bad stage and told me about them … Told me she’s been taking them”.

2. The second child was also interviewed by a child protection caseworker at her school on 3 June 2016. She spoke about walking home from school to the wife’s house and being at home “by ourselves or most of the time we’re by ourselves” (a reference to the first and second children being home alone).

3. The second child said “we always go to bed late. We don’t get dinner on time” and stated “dinner is late because they’re busy with everything else. Gardening and building”. The second child told the caseworker that it was the father/stepfather who made dinner and that the wife “just gardens and sleeps and does some stuff with [the third child]”.

RISK ASSESSMENTS BY FACS ON 24 JUNE 2016

1. FACS attended the home of the wife and the father/stepfather on 24 June 2016. A safety assessment decision report dated 24 June 2016 indicates that the wife and the father/stepfather informed the Department that they had stopped using methamphetamines on 18 June 2016 two days after the police raid on their home on Thursday 16 June 2016. This is inconsistent with the wife and the father/stepfather claiming they stopped using methamphetamine on 16 June 2016 (the day after the raid).  NSW Police located a small plastic bag with a small amount of white substance and drug use paraphernalia. The items were located in the back shed or “man cave”. The father/stepfather told the Department that he was an alcoholic. He also informed the Department that he’d used methamphetamines for approximately six months initially on a daily basis “however he has now been using methamphetamines every other day and up to three times a day”. At the home visit on 24 June 2016 Senior Case Worker Ms M records that “[The wife] advised her that she did not believe [the father/stepfather] is an alcoholic as he will only a have a VB in the shed and maybe bourbon in the evenings.” This statement by the wife shows her little insight into the fact that as the father/stepfather admits himself, he is an alcoholic.

1. The father/stepfather informed the Departmental Officer that he had used methamphetamines whilst he had the primary care of the third child and the other two children. He asserted to the Departmental Officer that “the only effects he experienced was he was easily distracted and much more alert but other than that the father/stepfather did not believe he was impacted by the use of methamphetamines”. The father/stepfather said he had not experienced any coming down from the side-effects of the drug because he knew he was always going to have more.

2. The wife informed the Departmental Officer that “she has a similar if not same pattern of methamphetamine use [to that of the father/stepfather] … the effects she experienced involved becoming very distracted and disorganised and being late for appointments for herself and the children”. It’s noted in the Departmental records that the wife had recognised that her methamphetamine use was “becoming problematic”.

3. The Department assessed that the third child could potentially be at significant risk of harm should the parents be under the influence of methamphetamines.

4. The Department’s observation between the third child and his parents on that day was positive and the assessment was that he was well cared for, was clean, tidy and dressed appropriately and had a safe and positive attachment with his parents. The wife and father/stepfather were attending to the third child during this assessment and the third child responded positively to his parents.

5. The Departmental officer expressed concerns for the wife’s psychological wellbeing. The wife disclosed that in the past she had considered killing herself. Senior Case Worker, Ms M, records in notes from a home visit on 24 June 2016 the following:

   [The wife] advises me she experiences symptoms of depression and is seeing or has seen a psychologist. [The wife] advises me only recently she has made a decision she has to take a stand against her ex-husband and his abuse however this stand often changes from one day to another.[The wife] advises me that if she loses her children to her ex-husband she will kill herself because she will have nothing to live for. [The wife] advises me that she has thought of killing herself in the past but the thoughts of her children being left behind has stopped her from following through.

   This part of the Departmental file was not drawn to my attention during submissions and it is the primary reason why I have relisted the matter prior to making the orders.

6. The Department records:

   Community Services is concerned the aprents [sic] are experiencing very high levles [sic] of stress and their capacity to deal with the stress without the use of illicit substances that [sic] will further complicate their emotional and psychological wellbeing.

7. The Department recorded their safety plan as:

   The [wife] and the [father/stepfather] have verbally agreed to not to use “Ice” or any other substance whilst caring for [the third child].

   The plan then referred to the current Family Court proceedings and the urine drug testing and hair follicle testing that had been ordered.

8. The wife and father/stepfather were noted to have agreed to participate in ongoing case work intervention and safety planning for the third child. The wife was assessed as demonstrating an ability to seek outside support for the children. There is also a note by Ms M that the Department intended to develop a safety plan for the wife and the father/stepfather to participate in a family meeting with the wife’s parents. There is no indication on the FACS file as to whether or not that safety plan has been developed.

ALLEGATIONS BY THE WIFE ABOUT THE HUSBAND’S DRUG USE

1. The husband has had his own battle with drugs.

2. The wife alleges the following:

   78.1.The wife first saw the husband using heroin in the mid 1990s.

   78.2.The husband smoked cannabis between 1993 and 1996.

   78.3.The husband started using Valium from the health practices in 2001.

   78.4.In late 2006 the husband told her that he had been injecting himself with morphine from the health practice. After discussion with the wife the husband did a “home detox” however resumed injecting himself with morphine after a week.

   78.5.In 2007/2008 the husband told the wife that he used to take valium tablets from the university labs and he used to take two 5 milligram valium tables from V Practice (one of his health practices) each night.

   78.6.In 2007 and 2008 the husband continued to inject himself with valium from the health practices.

   78.7.In 2009 the wife alleges that although the husband ceased using morphine he continued to inject himself with Valium. She alleges the husband also commenced taking Cymbalta on prescription being an anti-anxiety medication.

   78.8.In June 2011 the wife says that she attended a five day mediation course in Sydney but had to leave early as a result of the husband sending her a text with photo showing his arm dark red in colour and saying that he could lose his arm. The wife says this was as a result of missing the vein whilst injecting himself with Valium.

   78.9.Between June 2011 and January 2012 the wife says she took leave from work in order to care for the husband and assist him with his substance abuse and mental health problems. The wife says during this period the husband did cease injecting himself with Valium but did continue to take it in tablet form with medication he obtained through the health practice.

3. The husband’s original drug problem was with opiates and in particular methadone. The husband had that drug dependency issue since approximately 1995. The husband self-reported this problem in 2006. It was treated with implants until February 2010 when he again self-reported his illicit use of substances and commenced his association with his current treating psychiatrist, Dr R.

4. In a report to a GP dated 19 May 2010 Dr R records that the husband’s background problem is longstanding anxiety and panic disorder which he has been self-treating with morphine and occasionally Valium. He had easy access to opiates and benzodiazepines and that he was also currently using morphine.

5. In Dr R’s report dated 16 June 2010 he records that the husband had commenced taking Temgesic in 2006 and had subsequently used methadone intravenously. He underwent a rapid detox program with Naltrexone implants for 12 months. After a year off the implants he relapsed and had a further implant and took the drug orally. He then used Valium intravenously during panic attacks. His last relapse prior to seeing Dr R in 2010 was in 2009. He told Dr R at that time in 2010 that he had lifelong anxiety and that in February 2010 he had resumed using methadone. He had experienced significant withdrawal symptoms when ceasing to use opiates.

6. The husband was the subject of an investigation in July 2010 when the regulator made inquiries about the husband acquiring escalating quantities of Temgesic in his health practice.

7. The husband was the subject of a complaint to the NSW Health Minister in 2012 relating to an allegation that he was responsible for missing drugs of addiction at N Hospital. An investigation disclosed that a drug called Temgesic had gone missing from the practice. That drug is buprenorphine which is now prescribed for him according to Dr R (suboxone).

8. The husband has annexed to his affidavit filed 11 July 2016, a short medical report from his treating psychiatrist, Dr R who says that the husband has been under his care for treatment of opiate dependence and depression since June 2010. Dr R says that he sees the husband monthly and he has exhibited consistency and commitment to his medication regime and treatment approach, and has been compliant with all medication prescribed. Dr R’s opines that the medication prescribed to the husband does not cause any negative bearing on his ability to parent his children or on his daily functioning.

9. The husband also sees Dr E, psychiatrist, on a six monthly basis. Dr E is an independent psychiatrist appointed by the relevant professional disciplinary body. In a report dated 6 May 2016 Dr E opined that the husband seemed to be quite stable from a psychiatric perspective and that he was still suffering from opioid dependency that was in remission. Dr E opines that the husband also has an underlying depressive and anxiety condition which he manages through a combination of anti-depressants, benzodiazepine and psychological therapy. The husband takes 20mg a day of buprenorphine.

10. The husband regularly sees a psychologist, Ms S, weekly. Her notes were not available.  

11. The records subpoenaed from the professional disciplinary body indicate that the husband was fined $3,000 for not complying with urinalysis drug testing on 6 October 2015, 22 October 2015 and 7 December 2015. Dr E has however now made a recommendation that if the husband does not wish to continue clinical practice in his businesses then it would be reasonable to consider removing the condition requiring him to have urinalysis drug testing.

ALLEGATIONS BY THE WIFE ABOUT THE HUSBAND’S CONTROLLING BEHAVIOUR

1. The wife alleges the following:

   88.1.In 2010 and 2011 the husband’s alcohol consumption increased to one to two bottles of wine a night. The wife alleges that the husband told her that Dr R had given him medication to reduce his cravings for alcohol.

   88.2.On 17 June 2012 the wife alleges that she told the husband if their matter went before the Family Court she would have to disclose all the stuff about the husband’s chronic drug use. The husband then threw a full 1.25 litre bottle of mineral water at her, hitting her below the left eye leaving a graze and a bruise.

   88.3.On 19 June 2012 the wife says she took a photo of the bruising on her face as a result of the injury on 17 June 2012.

   88.4.In early 2013 the wife was told by one of the practice employees that the husband had been tracking her movements using the GPS on her phone.

   88.5.On 17 and 19 July 2013 the wife alleges the husband entered the former matrimonial home without consent and removed items from the home.

   88.6.In late 2013 the wife alleges the husband entered the father/stepfather’s home without invitation.

   88.7.In late November 2013/early December 2013 the wife says she found a tracking device in her car which she believes was installed by the husband. 

   88.8.In late 2013 the husband admitted that he had also been using the wife’s telephone bills to check on her whereabouts.

   88.9.In December 2013 the wife says she requested the husband return the children to her parents’ home. The husband refused. The wife attended the husband’s home to collect the children.  The wife alleges the husband put his hands around the wife’s arm and pushed her into the brick wall. The children were present.

   88.10.In March 2014 the wife says the first child told her that the husband had been “recording” the wife at changeovers. The first child also told the wife that the husband had a program that lets him change text messages and that the first child had seen him do so. The first child also told the wife that the husband had said he was creating a journal with all of the wife’s texts messages in them and that he was going to give them to the first child when he was older so that he could see the truth about what a horrible person the wife was.

   88.11.In May 2014 the wife organised a birthday party for the first child at the former matrimonial home. The husband attended and entered the home without the wife’s consent or permission.

   88.12.The wife says on 26 May 2014 the husband’s behaviour and ongoing control, stalking and harassment deeply distressed her and she sought to relocate with the children to the Mid North Coast and sought the husband’s consent.  The husband refused.

   88.13.The wife says in mid to end of 2014 the husband would send the wife text messages saying “You do not prioritise your children and you never have”, “You constantly use the children to blackmail me and get what you want”, “You’re extremely selfish”, “You have a mental illness.  It runs in the females in your family” and “The kids would be better off if you were dead”.

   88.14.The wife says in early 2015 he husband picked the children up from school on ‘his’ Friday and on the ‘other’ Fridays he would attend the wife’s home and enter without invitation. On occasions the husband would remain in the home and become heavily intoxicated.

2. The mother makes a number of allegations about the husband being in his motor vehicle and tracking the mother’s behaviour and movements. An example of this was on 1 July 2016 when the wife attended upon a GP to undertake the hair follicle testing. The wife says that she noticed the husband was parked outside of the doctor’s surgery with his headlights on.

3. The husband denies the assertions about his alleged violent, controlling and obsessional behavior. In the context of his interim hearing it is impossible to assess the extent to which those assertions are accurate.

HOW DRUG USE HAS EFFECTED THE WIFE’S PARENTING CAPACITY

1. The husband alleged that the wife told him on 11 May 2016 that she now falls asleep without warning when driving and that she also falls asleep at home. As a result she failed to take the second child to two appointments with her psychologist. The husband also alleged that the wife told him that she had fallen asleep without warning with a glass ice pipe in her hand waking up to find it smashed on the floor next to her.

2. It’s the husband’s case that the children are at risk if the wife drives a motor vehicle with them and are at risk of her failing to properly look after them as a result of her passing out when using ice.

3. The husband also has concerns that the wife struggles to complete simple tasks and struggles to maintain concentration (the husband cites the example of the wife making a second cup of tea for him on 11 May 2016, not appearing to understand that she’d made a cup of tea half an hour earlier).

4. The husband also complained that the children were exposed to inappropriate behaviour in the house next door to the former matrimonial home. On an interim basis the wife has taken steps to eliminate any risks in that regard by the move to her mother’s home.

5. The husband says that on 17 May 2016 an eleven year boy had been left to look after the third child whilst the wife went to collect the first and second children from tuition.

PARENTAL RESPONSIBILITY IN RELATION TO THE FIRST AND SECOND CHILD

1. The husband and wife each seek an order for interim sole parental responsibility in relation to the two elder children and the husband seeks to have parental responsibility to facilitate decisions which may need to be made by the husband regarding the third child. Notwithstanding that, amongst other things, the nature of the parties’ applications would indicate the difficulties currently existing with their ability to communicate with one another. I’m not at this stage satisfied the parties have a total inability to come to a joint decision in relation to a major long term issue in relation to the children. The problems that might arise if all parental responsibility for decisions about major long term issues were given to one of the parties at this stage mitigate against making either of the orders that the husband and wife seeks. The wife’s evidence is that she’s been responsible for making most of these decisions including since the husband and wife separated. My reasons indicate the current difficulties the wife faces. I intend to maintain judicial management of this case and in those circumstances in the event there is a dispute about a decision relating to a major long term issue then the matter can be relisted on relatively short notice.

2. Given that an order will be made for equal shared parental responsibility in relation to the first and second child on an interim basis, s 65DAA Family Law Act 1975 (Cth) (“the Act”) requires the court to consider whether or not the children spending equal time with each of their parents would be in their best interests and reasonably practicable. The current level of communication between the parties would lead to a conclusion that the parents do not currently have a capacity to implement such an arrangement. More importantly however, on an interim basis it is not in the children’s best interests. Section 65DAA(2) then requires me to consider substantial and significant time. The level of the parents’ current communication is in those circumstances not such a factor but again the case falls to be determined by best interests considerations.

3. The husband seeks an order pursuant to s 65C(c) of the Act for the third child to live with him. Neither counsel for the wife nor the father/stepfather made a submission challenging the husband’s ability to make the application and for the purposes of this interim application I’m prepared to accept that the husband is a person concerned with the care, welfare and development of the third child. The husband seeks an order that he have parental responsibility for the third child. It’s an agreed fact that the husband has no relationship with the third child and has spent no time with him in the first 19 months of his life. I would only be prepared to make an order placing parental responsibility for the third child with the husband if an order was made that the third child ordinarily live with the husband.

BEST INTERESTS

1. Neither counsel for the husband nor counsel for the wife specifically referred to particular statutory considerations. This was almost certainly because the determinative consideration was overwhelmingly the focus on the need to protect the children from physical or psychological harm from being subject to, or exposed to, neglect by the wife.

2. There is a need to protect the children from physical or psychological harm, of being subjected to neglect or worse, arising from the drug addictions of the wife and the father/stepfather. Based upon the expert report from ToxLogic (Exhibit 11) on an interim basis I am prepared to conclude that the mother has a serious addiction to the use of methamphetamines. I am also prepared to assume at this point, subject to any further expert evidence I might hear in the future in this case, that it is highly likely that the wife’s future wellbeing and her ability to capably parent the children will be significantly improved if she does something serious about attempting to deal with her addiction to methamphetamine. I make the same comments in relation to the father/stepfather.

3. There is no doubt that the children would benefit from having a meaningful relationship with both their parents.

4. The children will be interviewed by a Chapter 15 expert and at some later point I will have objective evidence as to any views expressed by either of the children.

5. There are some positive features of the wife’s parenting of the first and second children. They have attended school and extra-curricular activities. The mother has taken them to various appointments and activities although she has been late or missed some.

6. Counsel for the wife relied on page 147 of the FACS file (Exhibit 12). That part of the file records the second child telling a Departmental officer that the husband goes to bed during the day time when she is in the father’s care.

7. As indicated above, the second child has special needs with ADHD, ODD and dyslexia.

8. The husband has in a three week period failed to comply with orders for the first and second children to have time with the wife on two occasions out of six. It was not clear to me that the husband had a reasonable excuse for not complying with the court orders. His demonstrated inability to facilitate the children’s time with their mother raises concerns about him recognising the importance for the children in maintaining a relationship with their mother.

9. It is in the best interests of the first and second child, until the final hearing, to ordinarily live with the husband and spend supervised time with the wife. That time should be each Saturday and Sunday from 9am to 7pm. The two children should also have daily communication with their mother.

1. The husband has lack of a relationship with the third child. This raises a concern as to whether or not the risks to the third child in the wife’s household are of such magnitude in the short term that the third child should be removed from the wife’s household. The effect of that change to a 19 month old child may well be a traumatic one and I need to weigh that possible trauma against the other risks I have discussed.

2. If the wife is unable to obtain insight into the magnitude of the problem that she has and take appropriate measures to rehabilitate herself then it may well be that at a final hearing it will be concluded that it is in the best interests of all the children to be placed most of the time in the same household but that is not a result I am prepared to reach in respect of the third child on an interim basis.

PROPOSED ORDERS

1. When the Department interviewed the wife and the father/stepfather on 24 June 2016 the risk assessment of the two elder children was predicated on the fact that interim orders placed those two elder children with the husband and that this court was overviewing what was in those children’s best interests. It seems from my reading of the Departmental file that they assume because the court now has oversight of this matter their involvement need not be so great. It would very much assist the court in being able to ensure the safety of the children in the short term whilst determining long term arrangements if the Department were prepared to become a party to the proceedings and continue to have a very close involvement with the progress of the parents in this case.

2. The parties have agreed upon an order appointing Dr L as a single expert to provide a report to the court upon matters relating to the welfare of the children and I will make an order in the terms requested by the parties.

3. Turning to the issue of supervision, both the parents of the wife are now effectively retired being on leave from their employment but with no intent of returning to employment. The maternal grandfather seemed to have a better awareness of his daughter’s drug taking than did the maternal grandmother.

4. At the end of May 2016 the maternal grandfather observed the wife in a very distressed state which led him to ask her whether or not she was using drugs. The wife admitted to the maternal grandfather that she had used ice. At around about this time the maternal grandfather was also contacted by the husband who talked to him about his view that the wife needed to go to rehab and his suggestion that she consider a rehabilitation facility called the U Facility.

5. The maternal grandfather indicated that he was alerted to his daughter’s possible problems by her appearance and by what he described as her compulsive behaviour of collecting plants. The paternal grandfather was aware that his eldest daughter, Ms H, was addicted to ice but he was unaware that his granddaughter J was addicted to ice although he was aware that J was addicted to alcohol and he assumed she was addicted to some drugs. The maternal grandfather said that J attends his home about once a month. The maternal grandfather was confident that the wife had not consumed ice after she had moved into his household.

6. The maternal grandfather said that unlike his eldest daughter, the wife has told him that she hated the fact that she got addicted to ice and he believed she is intending to do everything possible to get off it. He said he advised her to go back to work because if she can get back into a normal work life pattern it will be beneficial for her future.

7. The maternal grandfather emphasised that he has never observed any neglectful parenting by the wife and he rejects any suggestion that he would place the welfare of the wife over the welfare of his grandchildren. The maternal grandfather lacked some insight where he indicated that he thought that the wife was “slightly obsessive compulsive” in nature. He did understand, however, that whatever her underlying mental status, ice exacerbated her problems. The maternal grandfather told me that he believed that he would be able to pick whether or not the wife was using ice or not by changes in her emotional state and the way she responds and even the way she talks. The maternal grandfather has experienced the wife speaking in a rapid fire fashion when she has been affected by drugs.

8. The maternal grandfather also understood that regular drug testing would be an aid for monitoring the mother’s drug taking.

9. The maternal grandmother said that she found out that her daughter was taking ice at the end of May 2016 when the maternal grandfather related to her the conversations that he had had both with the wife and the husband at that time. The maternal grandmother asked the wife about the frequency of her use of ice but the wife did not respond. It was the maternal grandmother’s impression that the wife was using on a “recreational” basis. The maternal grandmother said that she had seen the impact on drugs particularly on J.

10. The maternal grandmother conceded that she would not know what anyone would look like when they smoked or ingested ice and that she herself had not noticed any difference in the wife’s behaviour. That lack of ability to know when her daughter is affected by drugs is of some concern, however the maternal grandmother does understand that either she or her husband or one of the other supervisors would have the responsibility of being with the wife at all times when the children are with her. I am reassured by the fact that even if the wife is alone with the maternal grandmother for some period of time, ordinarily the maternal grandfather will be there and he has in the past been able to identify when the wife has been affected by the use of drugs. I accept the maternal grandmother would place the interests of her grandchildren over the interests of her daughter.

11. I have no evidence that Ms A (the maternal aunt), Mr D (the maternal uncle) and Ms X (the partner of the maternal uncle) take or have been in the past affected by drugs. That places them in a better position than the wife or the father/stepfather to look over the children in the short term. Accordingly, I will accept them as supervisors as long as they sign an undertaking in the form which is attached to these orders.

12. I shall require the supervisors other than the maternal grandparents to give a written undertaking in the following form:

FORM OF UNDERTAKING BY SUPERVISOR

I insert name of insert address acknowledge:

I have read the reasons of Watts J dated 20 July 2016.

I understand that my duty to the court is to:

Supervise the time that the children, [Y Klimas] born … 2006, [B Klimas] born … 2009 and [C Watson-Binstead] born … 2014, spend with [Ms Binstead] and [Mr Watson].

In the event that I form the view that either [Ms Binstead] or [Mr Watson] is affected by any substance and/or are in an emotional or psychological state which compromises their parenting capacity, I undertake to the Court to:

Inform [Mr Klimas] that that is my view.

Inform the Department of Family Community Services that I have formed that view.

Deliver the children to [Mr Klimas].

Date:

Signed:

Witness:

1. Although it wasn’t discussed during the hearing, on reflection, and given at this time I do not intend to order overnight time, it is appropriate that I give to the husband the opportunity during any period of time the children are with the wife or father/stepfather to, at his own expense, have the opportunity of employing a professional supervisor.

2. The parties have sought against one another the ability to require mandatory drug testing. The need is more strongly made out for the wife and the father/stepfather. However, the husband has been undergoing urinalysis drug testing for some considerable time. Although the test results in recent times have been clear, his history of drug taking is a sufficient basis to be cautious at this interim stage. I’m also mindful of the fact that the independent psychiatrist, engaged by the relevant professional disciplinary body, has suggested it might be reasonable for him to now cease urinalysis drug testing if he agrees not to participate in any clinical practice in the businesses that he operates. If that recommendation was accepted it would mean there was no drug testing of the husband in the short term and in my view that is not a desirable outcome at this point.

3. I have little information about the financial position of the parties. I know that the wife received one million dollars from the husband as well as an unencumbered matrimonial home when the property settlement occurred in April 2013. I have no information as to how much is left of those funds. The husband seems to continue to run successful health practices. In the short term I will place financial obligations on the husband but that is a matter of him funding drug testing and supervision (if applicable) without determining the ultimate way that that financial responsibility would be apportioned between the parties.

4. It is likely, on the basis of the material I’ve been provided for the interim hearing, that the wife’s elder sister, Ms H, and her daughter J have participated with the wife in using ice and particularly J is a corrosive influence on the wife. I intend to make an order pending further order that the wife not allow any of the children to be in the presence of Ms H or J.

5. The second child expressed concern to her psychologist that the husband was using physical discipline. I intend to make the order sought by the wife restraining the parents from using physical discipline upon the children.

6. The parties have been given notice that I wish to have a discussion with them about aspects of my proposed orders which were not directly the subject of submissions. For that purpose, I provide the orders that I propose which will be subject to any further submission made which I accept after the parties have read the reasons.

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 20 July 2016

Associate: 

Date:  20.7.2016

SCHEDULE 1 – ORDERS SOUGHT BY THE HUSBAND

1. This matter be listed on an urgent interim basis for interim hearing.

2. This matter be considered by the Magellan Registrar for placement in the Magellan program.

3. The Applicant be exempt from the requirement to file a s60I Certificate pursuant to s60I(9)(b).

4. Orders 22 to 34 of the Orders dated 23 April 2013 (“the Parenting Orders”) be suspended.

5. The Father have sole parental responsibility of “the children” being, [Y Klimas] born … 2006 (“[Y]”) and [B Klimas] born … 2009 (“[B]”).

6. The children live with the Father.

7. Upon the mother’s compliance with Order 9, Order 10, and return a negative urinalysis and/or hair follicle testing for a period of not less than 4 consecutive months in compliance with Order 9, the children spend supervised time with the Mother as follows:

   a.during the school term each Saturday for 1 hour from 11am until 12pm; and

   b.at such other times as the parties’ agree in writing.

8. The supervised time the Mother is to spend with the children in accordance with Order 7 is to be supervised by one of the following persons:

   a.The Father;

   b.The paternal grandmother, Mrs [F];

   c.The paternal uncle, Mr [F]; or

   d.Any other person agreed in writing by the parties’ not less than 48 hours prior to the supervised time the mother is to spend with the children.

9. The mother shall undertake supervised urinalysis (at the expense of the Father) for a period of 18 months upon compliance with Order 10:

   a.every Tuesday with the results of the test to be provided to the Father within seven days in default of which, the mother’s time with the children shall be suspended until the tests are provided; and

   b.random urinalysis and/or hair follicle testing to be undertaken within 48 hours of the Mother receiving an SMS text request from the Father, such requests to be limited to no more than twice per calendar month. 

10. Within 2 months of the date of these orders, the Mother enrol, attend, and then successfully complete the long-term residential treatment program at the [U Facility] with the Father to meet the cost of the mother’s attendance at such residential rehabilitation program.

11. Upon the Mother satisfying the requirements of Order 10, the Mother shall provide notice in writing to the Father:

    a.Confirming that the Mother has satisfied the requirements of Order 10;

    b.Providing documentary proof from the [U Facility] that the Mother has attended and successfully completed the relevant program

12. In the event the Mother fails to comply with Orders 10 the children spend no time with the mother.

13. The children have telephone time with the Mother upon compliance with Order 10 and Order 11:

    a.on one occasion in each week at a regular time to be nominated by the Father in writing, with the children to initiate the call to the Mother;

    b.on Christmas Day, Easter Sunday, Mother’s Day, the Mother’s birthday, and the children’s birthdays if the children have not seen their Mother on these days, with the children to initiate the call to the Mother;

    c.at all time when the children express a wish to telephone the Mother, with the children to initiate the call to the Mother.

14. The Mother shall not consume alcohol or any illicit substance 24 hours prior to or during her time with the children.

15. The Mother shall not consume alcohol or any illicit substance 24 hours prior to or during telephone communication with the children that is scheduled to take place pursuant to Order 13.

16. The Mother is restrained from exposing the children to excessive alcohol consumption or illegal drugs or allow any other person to do so while the children are in her care.

17. The Mother is restrained from contacting the Father directly or indirectly except for the purpose of spending time with the children in accordance with Order 7.

18. The Mother is retrained from approaching the Father at any place except for the purposes of changeovers as provided in Order 7.

19. The Mother shall attend and observe all meetings and comply with all recommendations of the [U Facility].

Parenting Orders for [C Watson-Binstead]

1. Pursuant to s65C(c) of the Family Law Act, [C Watson] born … 2015 (“[C]”), the son of the Mother and the Second Respondent Mr [Watson], live with his half-brother [Y] and half-sister, [B] in accordance with Order 6.

2. The Mother and the Second Respondent spend such time with [C] and have telephone time with [C] as ordered by the Court.

3. The Applicant have parental responsibility within the meaning of S61B of the Family Law Act to facilitate decisions which may need to be made by the Applicant regarding [C].

4. In the alternative to Order 20 and Order 22;

   a.the paternal grandparents of [C], being Mr and Mrs [T] (“the paternal grandparents”) be joined to the proceedings and [C] live with the paternal grandparents; and

   b.the paternal grandparents have parental responsibility within the meaning of S61B of the Family Law Act to facilitate decisions which may need to be made by them regarding [C].

5. In relation to [C], any other Orders as determined by the Court.

6. Pursuant to Section 68L of the Family Law Act 1975, the children be independently represented and that Legal Aid Commission of New South Wales, PO Box K847 Haymarket NSW 1238, arrange such separate representation and:

   a.Upon appointment, the Independent Children’s Lawyer file a Notice of Address for Service;

   b.Within 48 hours of notification of such appointment the solicitors for the respective parties:

   i.provide to the Independent Children’s Lawyer copies of all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports;

   ii.the parties forthwith complete all forms and questionnaires that the Independent Children’s Lawyer may require of them; and

   c.The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the National Legal Aid website, and in particular carry out the tasks set out therein as applicable. 

SCHEDULE 2 – ORDERS SOUGHT BY THE WIFE

1. That the applicant father, the respondent mother and the second respondent be restrained from:

   a.Consuming illicit drugs including but not limited to amphetamines, methamphetamines, cannabis, benzodiazepines and opiates (provided however that this shall not prevent any party consuming opiates and benzodiazepines in strict accordance with a prescription issued by a treating medical practitioner;)

   b.Consuming prescription medication including opiates and benzodiazepines except in strict accordance with the prescription issued by the treating medical practitioner.

   c.Consuming more than 2 standard drinks in any 24 hour period whilst the children are in their respective care.

2. That the applicant father shall undertake supervised urinalysis as follows:

   a.Once each week with the results of the urinalysis to be supplied to the respondent mother within 7 days of such urinalysis occurring and the applicant father to pay the cost of such urinalysis;

   b.Within 48 hours of the applicant father receiving a request from the respondent mother provided however that such request shall be limited to once each month and undertaken at the cost of the respondent mother;

   c.The urinalysis shall test for opiates, benzodiazepines, cannabis, cocaine, amphetamines and methamphetamines

3. That the respondent mother shall undertake supervised urinalysis as follows:

   a.Once each week with the results of the urinalysis to be supplied to the applicant father within 7 days of such urinalysis occurring and the respondent mother to pay the cost of such urinalysis;

   b.Within 48 hours of the respondent mother receiving a request from the applicant father provided however that such request shall be limited to once each month and undertaken at the cost of the applicant father;

   c.The urinalysis shall test for opiates, benzodiazepines, cannabis, cocaine, amphetamines and methamphetamines

4. That the second respondent shall undertake supervised urinalysis as follows:

   a.Once each week with the results of the urinalysis to be supplied to the respondent mother father within 7 days of such urinalysis occurring and the second respondent to pay the cost of such urinalysis;

   b.Within 48 hours of the second respondent receiving a request from the applicant father or respondent mother provided however that such request shall be limited to once each month and undertaken at the cost of the person making the request;

   c.The urinalysis shall test for opiates, benzodiazepines, cannabis, cocaine, amphetamines and methamphetamines

5. That the applicant father’s application in respect of [C Watson-Binstead] born … 2014 be dismissed.

6. That the Exparte Orders dated 20 June 2016 be discharged.

7. That the applicant father and the respondent mother be restrained from physically disciplining the children [Y] and [B] and/or permitting or allowing any other person to physically discipline the children.

8. That paragraph 22 to 28 of the Final Orders dated 23 April 2016 be suspended.

9. That the respondent mother have sole parental responsibility for the children [Y Klimas] born … 2006 and [B Klimas] born … 2009.

10. That the children [Y] and [B] live with the mother.

11. That one or more of the following persons be present during periods of time the children [Y] and [B] are in the mother’s care:

    a.[Mr W], the maternal grandfather

    b.[Mrs W], the maternal grandmother

    c.[Ms A], the maternal aunt;

    d.[Mr D], the maternal uncle.

    e.[Ms X], the partner of the maternal uncle.

    f.Such other person agreed in writing between the applicant father and respondent mother.

1. That the applicant father spend time with [B] and [Y] as follows

   a.Each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday morning commencing Friday 22 July 2016;

   b.For half of the NSW school holidays at times agreed between the parties and in default of such agreement for the first half of such holidays.

2. That the father’s mother [Mrs F], or such other person agreed in writing between the applicant father and respondent mother, be present during periods of time the father spends with the children [Y] and [B].