Labeck & Calandros (No 5)

[2021] FCCA 1046

FEDERAL CIRCUIT COURT OF AUSTRALIA

Labeck & Calandros (No 5) [2021] FCCA 1046

File number:	DNC 115 of 2020
Judgment of:	JUDGE YOUNG
Date of judgment:	17 May 2021
Catchwords:	FAMILY LAW – parenting – application concerning two children who are five and three years old – where the children live with the mother and spend time with the father – best interests of the children – where the mother is unable to support the children’s relationship with the father - where the mother appears to be negatively influencing the children’s relationship with the father – where the mother has repeatedly been found guilty of contravening parenting orders without reasonable excuse – where there are issues of family violence – where the children have been exposed to parental conflict – where the mother has a problematic relationship with alcohol and illicit substances – where the mother has been convicted of driving with a medium-range blood alcohol content on multiple occasions – where the father alleges the mother is associating with unsavoury persons – where the family consultant recommends the reversal of the care arrangements – Court satisfied it is appropriate to reverse the care arrangements.
Legislation:	Family Law Act 1975 (Cth) ss 4AB, 11F, 60CC, 65DAA, 69ZW
Number of paragraphs:	106
Date of hearing:	14, 15, and 16 April 2021
Place:	Adelaide
Solicitor for the Applicant:	Ms Farmer of Withnalls Lawyers
Solicitor for the Applicant:	Ms Bowen of Bowen Lawyers
Solicitor for the Independent Children's Lawyer:	Ms Tregear of Arafura Legal

ORDERS

DNC 115 of 2020

BETWEEN:

MR LABECK

Applicant

AND:

MS CALANDROS

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	17 MAY 2021

THE COURT ORDERS THAT:

1.That all previous parenting orders are discharged.

2.That the parents have shared parental responsibility for the children X born in 2016 and Y born in 2017 (“the children”).

3.In the event that either one of the parents, in the exercise of shared parental responsibility for the children, proposes to make a decision about a major long-term issue in relation to the children that parent shall:

(a)consult the other parent; and

(b)make a genuine effort to come to a joint decision about that issue.

4.The children shall live with the father.

5.For a period of three months from the date of this order:

(a)The children are to spend supervised time with the mother at A Family Services at times suitable to A Family Services.

(b)The children are to communicate with their mother by FaceTime or similar on Sunday, Wednesday and Friday from 6pm. The father may monitor the communication and if the mother engages in any inappropriate discussion or behaviour, including crying, the father may stop the call.

6.The mother is to enrol immediately in the Triple P program and Bringing Up Great Kids program (both available at A Family Services) and complete the programs as soon as is practicable. On commencement and completion of the programs she is to provide written evidence of having done so to the father.

7.The mother is to attend immediately on J House, Darwin, with a view to seeking alcohol and drug counselling and psychological support if recommended. She is to provide written evidence of having done so to the father.  

8.The father is to immediately enrol in the Circles of Security program (available at A Family Services) and complete the program as soon as is practicable. On commencement and completion of the program he is to provide written evidence of having done so to the mother.

9.After the expiry of the time provided for in Order 5 and on the mother having provided evidence of having enrolled in the Triple P program and Bringing Up Great Kids program and having attended on J House the children are to spend time with the mother as follows:

(a)In each alternate week, from after school or preschool Thursday (or 3pm if a non-school day) to the beginning of school Monday or the beginning of school Tuesday if Monday is a public holiday. Until Y commences preschool or school changeover for her is to take place at A Family Services at a time as near to 3pm Thursday and 9 am Monday or 9 am Tuesday if Monday is a public holiday as is convenient for A Family Services.

(b)That the children spend time with the parents equally during the school holidays and in default of agreement as follows:

(i)The first half of all school holidays with the father in even numbered years and the second half of all school holidays in odd numbered years, and;

(ii)The second half of all school holidays with the mother in even numbered years and the first half of all school holidays in odd numbered years.

10.That the children communicate with the parents as follows:

(a)With the mother during school terms each Wednesday and alternate Sunday (when the children are not with her) at 5 pm with the father to initiate the call by Facetime or similar;

(b)During school holidays with the non-care parent each Wednesday and Sunday at 5 pm with the care parent to initiate the call by Facetime or similar.

Days of significance

11.On the following days of significance, the children shall spend time with the parents as follows:

(a)With the mother from 5:00pm on the Saturday prior to Mother’s Day to before school Monday in each year;

(b)With the father from 5:00pm on the Saturday prior to Father’s Day to before school Monday in each year;

(c)In odd numbered years the father shall spend time with the children from 12.00pm Christmas Eve to 6.00pm Boxing Day;

(d)In even numbered years, the mother shall spend time with the children 12.00pm Christmas Eve to 6.00pm Boxing Day.

Changeovers

12.Changeovers shall occur as follows:

(a)at school on a school day otherwise at A Family Services;

(b)In the event it is a non-school day and A Family Services is closed changeovers shall occur at the Suburb G Police Station in the absence of any third parents between the father and the maternal grandfather with no other third person or the mother to be present unless otherwise agreed.

Communication

13.The parents shall:

(a)Communicate by email except in the event of an emergency when communication may be by telephone;

(b)Keep each other informed of their current contact details including their residential and postal addresses, telephone numbers, email address and Zoom or any other agreed video medium details and will inform the other of any change to any of these details within seven (7) days of any change; and

(c)Advise each other of any medical or other emergency involving the children whilst in their respective care.

14.That a copy of these Orders authorises the children’s school and medical practitioners to provide each of the parents:

(a)Copy of school reports, school newsletters, school photo application forms, parent/teacher interview notices and so forth regarding the education needs of the children; and

(b)Copy of medical reports including any referrals, information regarding any medical conditions suffered by the children, including treatment and any other information or material concerning the health and wellbeing of the children.

Travel  

15.That the children be permitted to travel interstate and/or overseas with either of the parents provided that the parent with whom the children are to travel provides to the other parent not less than 21 days written notice and provides itineraries, contact addresses and telephone numbers for the children whilst they are interstate or overseas so that the children can communicate with the other parent at all reasonable times.

Injunctions

16.That each parent be restrained and an injunction is granted restraining each of them from:

(a)Denigrating the other parent or the parent’s partners or members of that parent’s family via any social media platform or in the presence of or within the hearing of the children, and each parent shall remove the children from the hearing of anyone who may be denigrating the other parent or that parent’s partner or family;

(b)Discussing the court proceedings with the children or allowing the children to read or view any court documents;

(c)From video or voice recording or taking photographs of the other parent;

(d)Posting or making any reference to the children or parents to these proceedings on any social media platform;

(e)From exposing the children to abuse (including verbal abuse) or family violence and that the parents will take all measures necessary to remove the children from any act of family violence should such circumstances arise.

17.That the mother shall be restrained from and an injunction issue restraining the mother from the following:

(a)Attending at the children’s school for collection of the children except on the days the children are to spend time with the mother and on no other occasions unless the mother has made arrangements in writing to attend a parent/teacher interviews or school events;

(b)Consuming alcohol to excess or any illicit substances while the children are staying with her; 

(c)Permitting the children to come into any contact, direct or indirect, with Mr E.

18.That on no more than two occasions a year the father may make a written request by a solicitor to the mother to undergo a hair follicle test for illicit drugs. Within 24 hours of a written request made by the father’s solicitor to the mother, the mother shall book an appointment to undertake a hair follicle test as soon as practicable for the purpose of testing and/or detecting illicit drugs or substances and will notify father of the date the sample will be given:

(a)The mother will provide a 3cm segment of hair to be tested and such sample will be taken from the mother’s scalp by professional medical staff in accordance with the procedures of the accredited NATA laboratory for the testing of illicit drugs;

(b)The hair follicle test will be done by an accredited NATA laboratory;

(c)The mother will comply with all requirements and directives of the NATA laboratory and/or its technicians for the purpose of the hair follicle test procedure;

(d)The father will pay the cost of the hair follicle test in the first instance; 

(e)If the result is positive for illicit drugs the mother shall reimburse the father within 21 days of receipt of the hair follicle test report and tax invoice;

(f)That the mother will email her hair follicle test results to the father’s solicitor within 24 hours of receipt;

(g)That the mother is hereby restrained by injunction from colouring, cutting, bleaching or straightening her hair from the date of a request for the hair follicle test and until provision of the hair follicle test result.

19.The parties are to share equally in the costs of the independent children’s lawyer in the amount assessed by the Legal Aid Commission.

20.The appointment of the independent children’s lawyer is discharged.

21.All extant applications are dismissed.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Labeck & Calandros (No 5) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE YOUNG:

1. This is an application for parenting orders about two children: X, who has just turned five years old, and Y, who is almost four years old.  The mother and father began living together in late 2015 and their final separation was in late 2019.  Both children have lived with their mother since the time of separation.

2. The position of the applicant father is that the parents should have equal shared parental responsibility for the children and that the children live with the father.  He proposes that the children spend time with the mother from after school Friday to before school the following Monday in alternate weeks and that the children spend half of the school holidays with each parent.

3. The respondent mother's position is that the parents have equal shared parental responsibility and the children live with her until the youngest children reaches the age of five years in mid-2022 and thereafter the children spend equal time with the parents.

4. The Independent Children’s Lawyer adopted the recommendations in the Family Report.

5. The factual disputes between the parents centred on a number of different areas.  The father alleged that:

   ·the mother abused alcohol and illicit drugs, including methamphetamine;

   ·she associated with a man with a criminal record for rape or sexual assault and allowed the children to come into contact with this man and that she associated with other undesirable persons; and

   ·she had failed to comply with court orders and was likely to do so in future.

6. The mother alleged that the father had exposed her and the children to family violence and that he was temperamentally ill-equipped to properly care for young children.  The mother pointed to instances over a reasonably lengthy period of X refusing to transition to the father for time spending. 

   Course of the litigation

7. The father commenced parenting and property proceedings on 3 March 2020. On 12 March 2020, various orders were made by consent, including interim parenting orders.  In summary, those orders provided for the children to live with the mother and spend time with the father from 9:00am to 5:00pm each Saturday with changeover to occur at A Family Services, Suburb K.

8. There was also an order for the parents, within 24 hours, to undergo hair follicle testing to detect illicit drugs.  If one parent tested positive the children were to live with the other parent and spend supervised time with the parent who tested positive for illicit drugs. The father was promptly tested in accordance with the orders and returned a negative result. After a lengthy delay, on 23 April 2020 the mother provided a positive hair follicle test for methamphetamine. 

9. The father brought an application in a case to give effect to the consent order.  That was opposed by the mother.  After an interim hearing on 12 May 2020 I concluded that the consent order should not be given effect and was not in the best interests of the children because there was clear evidence that the oldest child, in particular, was experiencing distress during changeover with the father.  However, an order was made for an increase in the children's time with the father.

10. On 6 August 2020, the mother provided a further hair follicle test, which was negative for illicit substances. 

11. On 20 August 2020, the father filed a further application in case which resulted in orders on 3 September 2020 extending the children's time with him, providing for the children to spend overnight time with him on each Friday evening.

12. On 30 September 2020, the mother was found guilty of one count of contravening orders by failing to make the children available to spend time with the father. I dismissed other alleged contraventions for technical reasons but I was satisfied that the mother’s contravention was deliberate.

13. In December 2020, the mother was found to be driving a motor vehicle with a blood alcohol concentration of 0.085%. The children were in the car with her.  She was charged with an offence and on 2 February 2021 was found guilty and convicted of driving with a medium-range blood alcohol level.  She lost her driver’s licence.

14. On 25 January 2021, the mother provided a hair follicle sample which tested positive for amphetamine-like substances.  The laboratory report said that the result was not consistent with the mother’s use of her stated prescribed medications.

15. On 19 February 2021, further interim orders were made extending the time the children spent with the father from Friday afternoon to 12:00pm Sunday on each weekend.  Orders were made that the father was to collect X from B School, where she attended preschool, and Y from A Family Services.  The mother was not permitted to travel with the children to changeover or permitted to be present at changeover at A Family Services.  The intention behind the orders was to improve the chance of a smooth transition between the children, particularly X, and the father.  There were some indications that, in particular, X’s reluctance at changeover was influenced by the mother. 

16. At a contravention hearing immediately before the commencement of the trial I found the mother had contravened this order on three occasions without reasonable excuse by both collecting X from preschool on days the father was due to collect her and by being present at changeover at A Family Services. The mother asserted that she was “trying to help” by encouraging X to transition to the father. As the purpose of the order was to prevent X responding to her mother’s distress at changeover, and the mother was aware of that purpose, she had no reasonable basis for believing her presence would help. The reasons for decision in that application should be read with these reasons.

    Credibility

17. I generally found the father to be a reliable witness.  I did not find the mother to be a consistently reliable witness and she was often deliberately disingenuous or lacking in frankness. Sometimes she did not appear to acknowledge the seriousness of the issues and at times her own distress seemed to overwhelm her. Where her evidence is in conflict with that of the father I generally prefer the evidence of the father.

    The evidence

18. The applicant father is 33 years old.  He is employed in his father’s business.  The respondent mother is 37 years old.  She is not employed.  The parents began their relationship in 2015 and began living together in 2015.  X was born in 2016.  Y was born in 2017.  Final separation occurred in October 2019.

19. The father gave evidence about the mother’s abuse of alcohol.  He said that during the relationship she drank excessively two or three times a week.  He said that in July 2016 he found empty vodka bottles in the back of the mother’s car.  He said he spoke to members of the mother’s family about the issue.  He said he also refused to buy alcohol for the mother and objected to her drinking in the home.  The mother denied abusing alcohol and denied that the father had found empty vodka bottles in the back of her car.

20. The father also said that in October 2019, at about the time of separation, he found the mother smoking methamphetamine in the toilet of their home while he was engaged with the children.  The mother denied this occurred. 

21. A criminal antecedent report in respect of the mother was obtained by subpoena.  In 2009, she was convicted of driving with a medium-range blood alcohol content, fined and disqualified from driving for six months.  The blood alcohol reading was 0.106%.  In 2011, she was convicted of driving with a medium-range blood alcohol content, two counts of driving with a prohibited drug in her blood and reckless driving.  Each of these offences occurred in 2010.  The blood alcohol reading was 0.120%.  The nature of the prohibited drug or drugs was not described, although the mother said in her trial affidavit it was cannabis.  She was disqualified from driving for 12 months.  In 2012, the mother was convicted of driving with a prohibited drug in her blood.  In 2021, she was convicted of driving with a medium-range blood alcohol content and disqualified from driving for 12 months.  The blood alcohol reading was 0.085%.

1. I accept the father’s evidence and, having regard to the mother’s antecedent record, I am satisfied the mother abuses alcohol and illicit drugs and has done so over a long period.  The nature of her illicit drug use is unclear although during the course of the proceedings hair follicle tests returned positive for both methamphetamine and amphetamine-like substances. Her behaviour is entrenched and merits therapeutic intervention.

2. The father said he does not approve of illicit drugs and has not taken illicit drugs.  I accept that evidence.  The father said he did not “drink much” while the children were with him on the weekend but he drank alcohol after work “during the week – three or four beers”.  If this was a reference to three or four small bottles of full strength beer each day this would appear to be in excess of levels of consumption recommended by health authorities.  However, there was no other evidence to suggest that the father drank at harmful or problematic levels.

3. The father also alleged the mother allowed the children to come into contact with a man with whom she associated, Mr E, who is a convicted sex offender. The circumstances of Mr E’s conviction were not in dispute. The reasons for decision of the NT Court of Criminal Appeal in 2012 dismissing Mr E’s appeal against sentence were annexed to the father’s trial affidavit. In 2011 Mr E was convicted of sexual intercourse without consent and was sentenced to imprisonment for five years and six months with a non-parole period of four years. The reasons for decision referred to the circumstances of the offence by Mr E: the rape, involving frightening violence, of a former partner. The Court also referred to a brain injury suffered by Mr E and consequent poor impulse control, especially when he was affected by alcohol.  

4. The mother did not dispute these matters.  On 12 March 2020 she consented to an order restraining her from allowing the children to come into contact with Mr E.

5. Records from Territory Families produced pursuant to a section 69ZW of the Family Law Act 1975 (Cth) (the Act) order indicate that on 30 March 2020 the mother’s sister alleged that she attended at the mother’s home when the children were present and found Mr E also present.  The mother’s sister was intoxicated and an altercation between the mother, her sister and Mr E occurred.  It appears the sister believed that Mr E’s conviction was for a children sex offence (it was not) and believed the children were at risk from him.  Following a notification the mother was interviewed by a Territory Families caseworker and is recorded as identifying Mr E as her partner.  Although it is not recorded that it was put to the mother that Mr E was present in the mother’s home with the children it is implicit in the record that was not in dispute.

6. In cross-examination the mother denied the Territory Families record was accurate.  She alleged her sister’s claims were false and motivated by hostility to her.  She denied that Mr E was present at her home when the children were present.  She denied that she identified Mr E as her partner.  I give the mother’s denials no weight.

7. Although there was no direct evidence that Mr E was present at the mother’s home with the children on 30 March 2020, I am satisfied, on the balance of probabilities, that the allegation is true.  This constitutes a very significant breach of an order by the mother and reflects in a seriously adverse way on her judgment and parenting capacity. 

8. The mother’s association with Mr E appears to be associated with the consumption of methamphetamine. The mother said in evidence that the methamphetamine she had consumed prior to her positive hair follicle test in April 2020 had been purchased by Mr E. In response to a question from me, the mother was able to tell me the price and quantity of the methamphetamine he purchased. Her answer indicated some familiarity with such matters.

9. The mother said in evidence that she no longer associated with Mr E. She said he had been imprisoned in 2020. She professed not to know the reason. She said she had heard he was released in December 2020. I give the mother’s evidence little weight.

10. The father did not accept that the mother’s association with Mr E had ended. He said that on 15 March 2021 Mr E attended at his workplace while he was absent and spoke to another employee. The father said the employee later told him that Mr E was looking for him (the father) and wanted to fight him. This is hearsay and, while admissible, is insufficient to make a finding. 

11. The father also said that on 27 March 2021 he asked the children if Mr E had been to the mother’s home. He said the children had confirmed that Mr E had been present and that Mr E’s three year old daughter, L, also visited. Again, this is hearsay and I am not prepared to make a finding. However, I am not satisfied that the mother’s association with Mr E has ended.

12. There was other evidence to raise concern about the mother’s associations and use of alcohol. On 3 October 2020, she was found beside the road at Suburb G at 4:51am bleeding from the head. Police and ambulance services were called. The police report recorded the mother as reporting that after leaving the M Hotel she had attended a house party with persons unknown to her. At the party she said she was assaulted by a number of people because she refused to take drugs with them. The police attended at the address later in the day and retrieved the mother’s car key, wallet and jeans. The police reported that the occupants claimed the mother was drunk and offensive and had been told to leave. The occupants said she fell into a garden bed while doing so and injured herself. The mother declined to provide a statement to police and the matter was taken no further.

13. The father’s partner, Ms N, also gave evidence. She and the father commenced living together in 2020. She has a son aged 6 years who spends approximately equal time with her and his father. She said her son and the children get on well. She and the mother appear to have little relationship and she did not indicate any intention to address that. That is unfortunate.

14. The mother gave evidence about arguments and conflict at the end of the parents’ relationship. It is unnecessary to discuss most of this in any detail. The father admits that he behaved badly at the end of the relationship and there were arguments and yelling in front of the children for which he accepted responsibility. The mother alleges that on one occasion during an argument the father pushed her into a kitchen bench. The father denied doing so. However, I do not feel I can make a finding about that matter. The father did say that such was the level of unhappiness in the home at that point that he spent as much time away from the home as possible and during that period the mother was primarily responsible for the care of the children.

15. The mother also alleged that about a month before the parents’ separation they argued while the mother was driving the car. The car stopped and, according to the mother, the father smashed her head into the steering wheel. She said he then left the car and made his own way home. She said that she attended at the hospital and was treated for a laceration from which she still has a scar. She said the police were called by the hospital staff.

16. The father acknowledged there was an incident of the kind described by the mother. He denied smashing the mother’s head into the steering wheel. He said that after they argued he left the car but the mother drove off while he was doing so. He said that he hit his head on the car door and received a laceration with bleeding. He said the mother drove the car at him but he managed to get away.

17. There was no discharge summary from the hospital or police record put into evidence. I am unable to make any particular finding about this incident. However, both parents say the children were present and witnessed what was, on both versions, a violent incident. It must have been terrifying for the children. It reflects very poorly on the parents.

18. I am satisfied that the general description of the conflict between the parents at the end of their relationship should not be described as behaviour that “coerces or controls” within the meaning of section 4AB(1) of the Act. However, the incident described above can be expected to have caused the children, at least, to be “fearful” and so constitutes family violence, although I cannot say whether one or both parents were primarily responsible.

19. The mother also gave evidence about the anxiety of the children, particularly X, in transitioning to spend time with the father. The mother attributed this to X’s anxiety flowing from witnessing the father’s family violence. There was evidence, particularly from the A Family Services notes about changeover, which indicated that X was sometimes reluctant and anxious at changeover. Y, although younger, was usually enthusiastic about seeing her father, particularly as the time spending regime became more established in later 2020. The father’s view was that the cause of the difficulty for X to transition to him was the conduct of the mother and her deliberate undermining of the children’s relationship with him.  

20. The A Family Services notes for the month of December 2020 provide an indicative sample.  On 4 December 2020, X was distressed at transition although she spent some time with the father and gave him a hug at A Family Services.  The children said that she wished to return to her mother.  When returning to her mother she was still distressed and the mother said “What did dad do that makes you not want to go?”.  The mother also said some words of encouragement to X but without success.  On 11 December 2020, X transitioned to the father but Y did not.  The mother moved to a position with Y where she was apparently visible to X.  According to the notes the mother had been requested a number of times before this not to stand in that area.  Y then saw that Ms N’s son was also in the play area and she then transitioned without further difficulty. On 16 December 2020, the notes record X as reluctant to transition to her father.  The notes record the mother saying to the children “So what do you want to do?”, “It’s up to you” and the mother shrugged her shoulders and raised her eyebrows.  They also record Y watching her mother’s facial expressions and responding in the same way.  Changeover did not take place. On 19 December 2020, Y transitioned enthusiastically to her father but X refused.  While Y spent time with her father, X became upset.  The worker initially told the mother that if X did not wish to transition to the father then Y alone would spend time with the father.  X was upset about her separation from Y.  The mother expressed her objection to Y going alone, saying “No, I’m not happy about this, this can’t happen, I don’t want this to happen”.  X, at least, appears to have been present. Ultimately the father decided that Y should return to her mother rather than have X upset.  Y in turn was upset about that course but the father reassured her and she returned to her mother.  When the worker explained to the mother that Y had returned because the father did not want the children to be upset by separation, the mother replied “Oh, so we both don’t want the girls to be upset now do we?”  The father did, however, communicate to the worker that if Y wished to transition on the next occasion and X did not he would not return Y.  On 23 December 2020 Y transitioned smoothly to the father but X refused.  The worker indicated to the mother that Y intended to remain with the father and that the time would go ahead without X.  The mother asked the worker “If that was allowed to happen?” and observed that the children had not been separated before.

21. Against this background, the mother’s contravention of orders intended to facilitate the transition of the children, particularly X, to the father takes on added significance.  I am unable to say whether the mother’s behaviour was conscious in the sense that she was aware that the children responded to her cues.  However, I am satisfied that the mother’s contraventions were deliberate and she was aware of the purpose of the orders.  In evidence it was apparent that the mother harbours strong and, it seemed at times, overwhelming feelings of resentment and hurt following the breakdown of her relationship with the father.  This raises the question of whether the mother’s own feelings and emotional responses mean she is unable to properly facilitate a relationship between the children and the father. I have concluded the answer to that question at the present time is that she is not able to do so.

    Family reports

22. A family consultant prepared a Children Dispute Memorandum pursuant to section 11F of the Act dated 24 April 2020 and a Family Report dated 23 February 2021.

23. The memorandum recommended that the children should commence spending regular time with the father, with a view to incrementally increasing the time over the following months to two overnights a week.  That recommendation was broadly reflected in court orders.  The family consultant also recommended that if the mother’s drug testing were positive for methamphetamine consideration should be given to significantly revising the care arrangements and placing the children in the father’s primary care.

24. At the time the family consultant interviewed the parents for the Family Report on 8 February 2021 the father was willing to agree to the children gradually transitioning to an equal time arrangement but he doubted that the mother would agree to any increase in the children’s time with him.  The mother’s position was recorded by the family consultant as

    Ms Calandros did not provide a clear proposal other than to indicate that she was agreeable to the children spending limited time with Mr Labeck.  Ms Calandros indicated in the meantime she would submit a detailed proposal about the children’s living arrangements to the Court.

    The mother’s inability to provide a clear proposal may be explained in part by the fact that her previous lawyers ceased acting for her in August 2020.  Her current lawyer began acting for her in October 2020 but ceased acting on 27 January 2021 and resumed acting on 16 February 2021.  Nevertheless, her position is surprising given that the trial was due to start on 14 April 2021 and may indicate her reluctance to accept that the children should spend any substantial time with the father. The father’s position had changed by the time of trial to the children should live with him. 

25. Much of the Family Report was spent recording the allegations of the parents about family violence and drug use.  It is not necessary to consider those issues further.

26. The father described a highly volatile and distressing separation from the mother.  He claimed that the mother was “spiteful and vindictive” towards him and withheld the children from him and was actively attempting to influence them against spending time with him.  He spoke of his concerns about Mr E and said he believed the children were at risk of sexual abuse from him.  He did not accept that the mother had ended her relationship with Mr E.

27. The father however acknowledged the mother’s strengths as a parent.  He remarked “She is a loving mother and the kids love her dearly… They have a strong relationship for sure” and “I don’t want to take that away from the kids, I just hope one day she (Ms Calandros) will grow up”.

28. The mother said to the family consultant that the “children are never happy” about spending time with the father.  She wondered whether the children were being abused in his care because they exhibited emotional and “disturbed” behaviours after spending time with him.  The mother was not receptive to the proposition that the children may be upset about transitioning because of conflict between the parents.  She blamed the father for the children’s emotional presentation.

29. The mother denied that she or the children spent any time with Mr E but “with apparent annoyance remarked that Mr Labeck’s attitude towards Mr E caused her to wonder ‘has he (Mr Labeck) done something wrong to X?‘”   

30. Although the mother indicated to the family consultant that she believed the children were “experiencing abuse in Mr Labeck’s care” that allegation was not elaborated on by the mother in her interview with the family consultant and no such allegation was made in the trial. 

31. The family consultant asked the mother whether the children may have been exposed to parental conflict.  The mother replied that “it’s been a long time since X saw conflict between us”.  She denied speaking negatively to or about the father in X’s presence.

32. The mother denied consuming illicit drugs and dismissed the results of her initial hair follicle test on the basis that the reading for methamphetamine was “minute”.  She said the father made the allegation that she consumed illicit drugs to make her “look like a terrible person” and that “it was a set up from the start”.  The mother also denied consuming alcohol to excess and said “it’s not too much of an issue; as you do, I like a couple of beverages….It’s nothing too extreme”.  She said she currently drank one bottle of wine over three days.

33. The family consultant also interviewed Ms N, the father’s partner.

34. The family consultant interviewed the children together after an initially anxious presentation about separation from the mother.  The children were healthy and cognitively bright and, once in the writer’s children’s room, became animated and confident.  The children engaged in a drawing activity, drawing pictures of their dream house. X drew a picture of a rainbow where she said she would live with “Y, X [Ms N], dad and O [Ms N’s son]”.  When asked where her mother would live X replied that “mum and pop [presumably a reference to the maternal grandfather] will also live in the rainbow with me”.

35. The writer asked X whether there was anything which happened at her father’s home that caused her to feel scared, worried or sad.  She responded “mummy cries when I go to dad and I feel sad”.  She was asked if she liked spending time at her father’s home and replied “yes, I like it at dad’s, but Y didn’t go last time because she is a sookie baby”.  When the writer asked again about X’s feelings when she spent time with her father she responded “nothing makes me worried just mummy gets sad”.

36. The only comments Y made about spending time with her father was that she liked it and liked to ride and wash a pony who was said to live in a big cage.

37. The family consultant observed the children with the father and subsequently with Ms N.  The children appeared happy and relaxed with the father and playfully interacted with him, checking his heart and blood pressure with toy medical tools.  The father was affectionate towards the children and the children did not display any ambivalence about being in close physical contact with him.  When Ms N entered the children’s room X hugged her and engaged her in play.  Ms N interacted with the children in a calm confident and engaging manner and the children appeared happy and relaxed in her presence.

38. When it came time to go the father directed the children to put the toys away.  According to the family consultant this and other subtle interactions indicated that he adopted a more authoritative parenting approach, providing the children with clear directions and boundaries and he expected compliance.

39. When the family consultant first observed the mother arriving with the children, X appeared highly anxious and was clinging to the mother’s arm.  Once away from the mother, X quickly cheered up and engaged positively with the writer and her environment.  Y appeared to be a socially confident child and did not display the same anxiety as X.

40. On at least two occasions the mother queried the children about the interview with the family consultant and their time with the father.  When Y said “he needed to go to work” the mother muttered in a sarcastic tone “Mmm life story”.

1. At the end of the interview the mother asked the children “Are you girls going to pick up the textas or just leave them like that?”  The children replied “leave them like that” to which the mother replied “okay”.  The family consultant observed that the mother adopted a more permissive approach to parenting and did not necessarily expect the children to be compliant with her directives but allowed them to make their own choices.

2. In her evaluation the family consultant noted that while the father was scathing in his attitude towards the mother on a number of levels he was quick to identify strengths in the mother’s parenting and to acknowledge a strong relationship between her and the children.  The mother on the other hand was unable to identify anything positive about the father as a parent nor about his relationship with the children.  She seemed unaccepting and resentful of the father’s new relationship with Ms N.

3. The family consultant expressed the opinion that it was the parents’ attitudes towards one another which posed a risk of harm to the children’s emotional and psychological well-being.  The family consultant observed that the A Family Services notes indicated that there were times when the mother did not genuinely encourage the children’s transition to their father.

4. The family consultant expressed the opinion that when one partner is overwhelmed by their own feelings towards their ex-partner to the extent that they are unable to conceal such feelings from the children it is commonly due to their previous experiences of abuse and/or betrayal by the ex-partner.  There may also be issues of mental health or personality disorder.  The family consultant was of the view that family violence was a feature of the parents’ previous relationship.  The family consultant said she gained the impression that the father came to feel little empathy or compassion towards the mother and was prone to reacting to circumstances outside of his control with anger and impatience.  The family consultant said that the father described himself as an authoritative and “opinionated” person who gave the impression that he had little tolerance for alternative discourses or worldviews to his own.  According to the mother’s narrative she felt criticised, undermined and betrayed by the father and increasingly resisted his allegedly controlling and dominating attitude towards her, resulting in serious conflict between them.

5. The family consultant expressed the opinion that X, in particular, was at a developmental stage where by she could be expected to become increasingly sensitive about the conflict between the parents and deeply impacted by “divisive loyalty politicking” by them.  She said it would be surprising if X did not sense that her mother did not approve of her spending time with her father.

6. Despite the mother’s concerns about X’s disposition at changeover the family consultant expressed the view that X had a strong and loving relationship with the father and really liked Ms N and enjoyed her company.  The family consultant was of the view that Ms N is a positive influence on the father and the children’s lives.

7. The family consultant was also of the view that while Y was strongly and primarily bonded to her mother she also had a strong and affectionate relationship with her father and there was no doubt that he was a significant figure to her.

8. The family consultant noted that the allegations about the mother’s association with Mr E and her consumption of methamphetamine were matters for evidence but if her association with Mr E continued then his presence posed a potential risk of harm to the children.  If the evidence showed that the mother continued to consume methamphetamine she expressed the opinion that this posed a risk to the children because of the possible negative impact of the living in a home where methamphetamine is consumed, including lack of routine, parental instability and unpredictability, as well as the physical risk from exposure to methamphetamine chemicals.

9. The family consultant also expressed the view that if the mother’s evidence was accepted that she drank a bottle of wine over a period of three days this would not generally be considered to be a problematic pattern of alcohol consumption.

10. The family consultant said that if the court accepted the mother’s claims that she no longer used illicit drugs, in particular methamphetamine, and that her relationship with Mr E had ceased then, having regard to the fact that she had always been the children’s primary caregiver, any changes to their caregiving pattern at this stage in the development might cause significant distress.  Notwithstanding, she recommended that it would be in the children’s best interests to spend regular and significant time with their father in order to consolidate their relationship with him.

11. She said that if the children settled into a shared care routine then a more equal time living arrangements should be considered when Y reached five years of age.

12. However, the family consultant said that if there was evidence that the mother continued to contravene court orders in the absence of any significant risk to the children in the father’s care then she said a reversal of care arrangements should be considered. 

13. In oral evidence it was put to the family consultant that she was not informed by the mother of her history of driving under the influences of alcohol and/or illicit drugs.  The family consultant was also not aware of the positive test for amphetamine-like substances in January 2021 and the mother’s conviction in February 2021 for drink driving while the children were in her car.  The family consultant said that the mother’s record was indicative of “a problematic relationship with drugs or alcohol or both”.  She said that having become aware of this evidence she supported a reversal of the care arrangements for the children.

14. She recommended that the children should live with the father for a period of three months in order that they might establish a sense of security in his care.  She recommended that during this time the children should not spend significant time with the mother but there might be supervised time at A Family Services along with FaceTime or other similar communication three times a week.  She said this regime should extend for three months. 

15. The family consultant also recommended that both parents attend parenting programs: the father attend the Circles of Security course and the mother attend the Triple P Parenting and Bringing Up Great Kids courses. 

16. The family consultant also recommended that the mother should attend at J House for drug and alcohol counselling and psychological support.

17. The family consultant was of the view that if these steps were taken, which she expected should be able to be completed within six months, then the children could safely resume daytime or overnight time with the mother.

18. I accept the conclusions of the family consultant and her opinions.  I am satisfied that the children have a good relationship with the father and that the mother’s contraventions of orders are unrelated to any legitimate concern about the father’s care of the children but, instead, reflect the mother’s own anxiety and distress.  I am satisfied that the children have responded to that distress and that is the principal reason for the difficulties the children had in transitioning to their father at various times.

19. I am also satisfied that there is abundant evidence of what the family consultant described as the mother’s “problematic relationship with alcohol or drugs or both”.  The precise nature of that relationship is unclear because, I am satisfied, the mother has not been frank about these matters.  I am satisfied that the mother’s abuse of alcohol or drugs or both poses a risk to the children.  The fact that she was apprehended, relatively recently and while this litigation was in progress, with an excess blood alcohol level while driving with the children in the car is a clear demonstration of that.

20. I am also not satisfied that the mother’s association with Mr E has ceased.  Further, I consider it probable that she contravened an injunction preventing her from permitting the children to come into contact with Mr E.  This also constitutes a risk to the children.

21. It is not in doubt that the mother loves her children and the children have a strong relationship with her.  However, the mother’s lack of frankness about these issues indicates a lack of insight into the psychological and emotional needs of her children and the need to protect them from harm.

22. I accept the observations of the family consultant about the father.  I am satisfied that his conduct towards the mother lacked, at times, empathy and compassion.  I am satisfied that, as the family consultant observed, he is intolerant of worldviews other than his own.  There was some evidence of insensitive parenting by the father, such as when he removed one of X’s toys after she soiled her pants, ignoring the obvious explanation that the child was anxious.  These young children have been exposed to unacceptable and harmful levels of parental conflict. Ideally, the father’s sensitivity to them and insight into their needs will improve.      

23. Nevertheless, I am satisfied that the father is an engaged, child-focused and stable parent.  I am satisfied he is more than adequately able to care for these children and there is no risk of harm to them in his care.

24. In deciding a parenting case the court is required to follow the legislative pathway set out in Part VII of the Act. In identifying the issues and making the findings above, I have borne in mind each of the elements of the pathway. However, my express conclusions in relation to each element are set out below.

25. In determining what is in the best interests of a children the court must consider the matters in subsections (2) and (3) of section 60CC of the Act.

26. Turning to subsection 60CC(2), the primary considerations in determining the best interests of the children are:

    (a) the benefit to the children of having a meaningful relationship with both of the children’s parents; and

    (b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

27. When applying section 60CC(2) factors, the court is to give greater weight to the consideration set out in (b).

28. I am satisfied that there is benefit to the children in having a meaningful relationship with their mother and father. It is not in dispute that the children are strongly attached to their mother and that they have a good relationship with their father.

29. In my view (b) is also engaged. I am satisfied that the mother’s problematic relationship with drugs or alcohol or both constitutes a risk of harm to the children. In my view it is necessary that the mother engage with a therapeutic service such as J House to mitigate the long term risks to the children. Permitting the children to come into contact with Mr E shows a lack of judgment and insight. This also constitutes a risk to the children. 

30. I will now turn to the additional considerations in subsection 60CC(3).

31. In relation to (a), the children’s views, the children are too young to express a view.

32. In relation to (b), the nature of the relationship of the children with their parents and any other persons, they are strongly bonded to the mother who has been their primary carer. In interview and observations with the family consultant the children demonstrated they were comfortable and secure with their father and have a warm relationship with his partner, Ms N.

33. In relation to (c), the extent to which each of the parents has taken, or failed to take, the opportunity to participate in decision-making about major long-term issues for the children and spending time with and communicating with the children, the evidence was slight. It appears that given the level of mistrust and hostility between the parents little constructive communication has taken place. The mother has at times undermined the children’s relationship with the father. The father has consistently endeavoured to maintain a relationship with the children.

34. In relation to maintenance of the children under part (ca), the evidence was that the father had failed to pay his child support assessment over a considerable time, at least the last year. At the time of trial his arrears were about $17,000. He said that after separation he had made direct payments to the mother but she refused to acknowledge this to the Child Support Agency. He said, in effect, he then ceased payments out of anger. The arrears considerably exceed the amount the father says he should have been credited by the mother. The father also ceased full-time employment in his father’s business and was working part-time at the time of trial. The reason for him doing so was not entirely clear. It was not put to the father that this was not genuine or that it was intended to artificially reduce his child support liability but, if that is the case, its reflects poorly on the father. However, beyond the bare fact of the arrears I am unable to make any particular findings about these matters. The father is currently paying child support of $235 a week, which includes an amount for arrears.

35. In relation to (d), the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or any other child or other person with whom they have been living, I expect a reversal in the children’s parenting arrangements will be temporarily distressing for them. However, it is clear that the children have a good relationship with their father and a warm relationship with Ms N. The father is capable of providing a secure and stable environment for the children. I expect that after a period of adjustment the children will settle. I am satisfied that it is in the best interests of the children that there be a reversal of the current parenting arrangements.

36. In relation to (e), the practical difficulty and expense of the children spending time with and communicating with a parent and whether that will substantially affect the children’s right to maintain personal relations and direct contact with both parents, both parents live near to each other. Changeover has taken place at A Family Services or X’s school. This is not a particular issue.

37. In relation to (f), the capacity of each of the children’s parents to provide for the needs of the children, including emotional and intellectual needs, the evidence at trial focussed on this issue. Regrettably, the level of mistrust and hostility between the parents is potentially harmful to the children emotionally and perhaps intellectually. Both parents are responsible. In addition, I have concluded that due to the mother’s distress experienced during and after the breakdown of the relationship she is unable to properly encourage a relationship between the children and their father. This is not the case with the father who recognises the importance of the relationship between the children and their mother. The mother’s problematic relationship with alcohol or drugs or both is also likely to affect the children if the mother does not successfully address the matter.

38. In relation to (g) the maturity, sex, lifestyle and background of the children and of either of the children’s parents, and any other characteristics of the children the court thinks are relevant, there is nothing requiring further consideration.

39. In relation to (h), the children are not an Aboriginal or Torres Strait Islander children.

40. In relation to (i), the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents, both parents love the children but the poor relationship between the parents hinders their capacity to do what is best for their children. The other factors involving the mother have been mentioned.

41. In relation to (j), any family violence involving the children or a member of the children’s family, I am satisfied there has been family violence but this is historical and not currently a problem.

42. In relation to (k), no family violence order applies or has applied.

43. In relation to (l), whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children, I have given this consideration in the orders I propose to make.

44. In relation to (m), any other fact or circumstance that the court thinks is relevant, there is no other such fact or circumstance.

45. As the parents agree on shared parental responsibility there will be an order accordingly. The court is thus required by section 65DAA to consider whether the children spending equal time or substantial and significant time with each parent is in the best interests of the children. I am not satisfied that it is in the best interests of the children to spend equal time with each of the parents. I consider that the mother’s current inability to encourage a relationship between the children and the father, her problematic relationship with illicit drugs or alcohol or both and her history of non-compliance with court orders indicates that such an arrangement would have unacceptable emotional and psychological, and perhaps physical, risks for the children. I also have serious reservations about whether such a regime is reasonably practical having regard to the matters in section 65DAA(5), particularly (b) and (c).

I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       17 May 2021