Latham and Plume
[2009] FMCAfam 348
•16 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LATHAM & PLUME | [2009] FMCAfam 348 |
| FAMILY LAW – Interim parenting – application for change of residence of child – allegations of drug use – reliability of evidence given by parents – non-compliance with previous parenting and drug testing orders. |
| Family Law Act 1975, s.60CC |
| Goode & Goode [2006] FamCA 1346 Hogan and Hogan [2008] FMCAfam 1219 |
| Applicant: | MS LATHAM |
| Respondent: | MR PLUME |
| File Number: | WOC 459 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 3 April 2009 |
| Date of Last Submission: | 3 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 16 April 2009 |
REPRESENTATION
| Solicitor-Advocate for the Applicant: | Ms Luke |
| Solicitors for the Applicant: | Lukes Law |
| Counsel for the Respondent: | Mr Steward |
| Solicitors for the Respondent: | RMB Legal |
| Solicitor-Advocate for the Independent Children’s Lawyer | Mr Baird |
| Solicitors for the Independent Children’s Lawyer | DGB Law |
ORDERS
Order 11 made 16 July 2008 is varied so that it now reads:
“That each of the parents be restrained from discussing these proceedings, or the relationship between the parents, or any aspect thereof, with [X], or on his presence, or allowing any other person to do so.”
Orders 13 and 14 made 16 July 2008 are discharged and replaced by the following orders:
“13. The solicitor for either parent or the Independent Children’s Lawyer may request a parent to undertake supervised urinalysis within 24 hours of such request being made, in each case at the cost of the parent undertaking the test. The frequency of such requests shall be not less than once per month at the instance of the solicitor for a parent, and at the election of the Independent Children’s Lawyer, a further once per month.
14. In addition to urinalysis, the Independent Children’s Lawyer may request either or both parents to undertake at the cost of the Legal Aid Commission of New South Wales in the first instance, any other form of drug testing including hair testing at an interval of no more than once every three months.”
The Independent Children’s Lawyer has leave to file in chambers either consent orders or the terms of a proposed order relating to the appointment of a Family Consultant to prepare a further Family Report in this matter and/or the appointment of an expert to report on drug issues relating to the parents.
The matter be adjourned to 23 November 2009 at 10.00am for a three day final hearing.
Each party file and serve any affidavits on which they intend to rely by no later than 2 November 2009. No further affidavits to be filed after that date without leave of this Court.
The Applicant pay the hearing fee or obtain a waiver by no later than 2 November 2009.
No later than two (2) working days prior to hearing each party forward to my Associate a document setting out:
(a)The affidavits on which each party will rely at hearing; and
(b)The Orders sought at hearing.
Pursuant to section 13C of the Family Law Act 1975 the parties must within 14 days contact Relationships Australia on 02 8874 8010 to arrange an appointment as soon as practicable for an initial post-separation parenting assessment.
The parties must attend the appointment at any reasonable location nominated by Relationships Australia and complete the assessment.
If assessed as suitable and Relationships Australia nominates counselling, mediation including child inclusive mediation or a program to attend, the parties must attend (as the provider directs) as soon as practicable.
The parties shall comply with the requirements of the nominated program and the recommendations of the program coordinator including any referrals to complementary services.
Relationships Australia to notify the court no later than 48 hours prior to the adjourned date whether or not the parties have completed the assessment and the parties’ progress generally.
IT IS NOTED that publication of this judgment under the pseudonym Latham & Plume is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 459 of 2007
| MS LATHAM |
Applicant
And
| MR PLUME |
Respondent
REASONS FOR JUDGMENT
Introduction
These interim proceedings relate to [X] born in 1998 now 11 years old. The application in a case that brings the matter back before me was initiated by his 36 year old mother. The application is opposed by [X]’s 33 year old father. The evidence raises serious concerns about the welfare of [X], whether he is in the care of either his father or mother.
Background
In order to properly understand the context of the present application it is necessary to set out some background and a procedural history.
The parents cohabited for about 10 years, the relationship ending in about June 2006. [X] is their only child. The father commenced proceedings in April 2007. The mother has re-partnered and her new partner happens to be the father’s cousin. This relationship has added to the complexity of the case. There is a history of drug use and abuse involving the father, mother and her partner. Since separation the father has been the primary carer for [X], though for a period of about six months immediately after separation an equal shared care arrangement was in place.
A Family Report was prepared by a Clinical and Forensic Psychologist and it is dated 2 June 2008. The Family Consultant expressed concerns about the credibility of both parents, and about the unresolved relationship issues which seemed to inform the entrenched nature of mistrust and concurrent difficulties with cooperating about [X] (paragraphs 118-120). [X] was, however, settled in the current care arrangements with the father, but had expressed the view that he wanted to spend more time with his mother. Difficulties were noted in terms of the relationship between the father and the mother’s partner, and as a result of this, between [X] and the mother’s partner.
The matter came before me for hearing in Wollongong on 26 and 27 June 2008. Each party was represented by counsel, as was [X] through the Independent Children’s Lawyer. The Family Consultant gave evidence. The father’s case commenced with him giving evidence late in the afternoon of the first day of the hearing. At about lunchtime on the second day the proceedings were adjourned in somewhat dramatic circumstances.
Mr Moss, Counsel for the mother, had been cross-examining the father for some time. At a particular point in the proceedings, shortly before the lunch adjournment, he asked the father whether he would mind displaying to the court his forearm. The father indicated he had no concerns with this at all, and said words to the effect that it would show a scar from when he used to use speed with the mother. Mr Moss examined the father’s arm, as did other counsel, and as did I. There were three or four red marks on the father’s right arm about the size of a pin-head. Mr Moss asked the father when these marks occurred. The father indicated that he did not know but that the nature of his work as a bricklayer meant that he often had marks on his arms.
Shortly after the luncheon adjournment, all three counsel asked for the matter to be re-mentioned. Ms Reynolds, counsel for the Independent Children’s Lawyer, expressed concern about the evidence that had just been given, and the possibility that it indicated recent drug use. The Independent Children’s Lawyer was in a difficult position, but suggested that consideration be given to the father being ordered to undertake an immediate drug test. I indicated to the counsel that:
a)The evidence did not lead me to make any findings about recent drug use, or even lead to an inference of the same. The fact is that nobody in the courtroom was appropriately qualified to draw any conclusions from the red marks in the father’s right arm; and
b)Clearly the case was not going to conclude in the allocated time anyway; and
c)The Independent Children’s Lawyer should obtain further instructions over lunch; and
d)If there was to be further drug testing, arguable it should be done sooner rather than later.
After the lunch adjournment counsel for the Independent Children’s Lawyer indicated that the Wollongong Medical Centre was able to undertake urine and blood testing on Medicare on that same day. There was no opposition to her proposal. I therefore made the following order and notation on 27 June 2008:
1. That within two (2) hours of the making of this order, the Mother and Father forthwith (but not necessarily at the same time) attend upon a General Practitioner to obtain a referral to a reputable pathologist in the local area for the purposes of undertaking supervised blood and urine analysis for illicit drug abuse.
2. A copy of any certificate issued consequent upon this test is to be given to the solicitors for the Mother and Father within twenty-four (24) hours of receipt of the relevant certificate by the person undergoing the test, and is to then be forwarded to the Independent Children’s Lawyer within 48 hours.
3. The Independent Children’s Lawyer has leave to relist in relation to the results of these tests on 48 hours notice.
THE COURT NOTES THAT:
1. Mr W, the Mother’s de facto partner, has agreed to undertake the same tests at the same or similar time to the Mother and Father referred to in this Order.
As it turns out, the father did not attend in order to comply with the order.
On 9 July 2008 I made the following order dealing with school holiday contact:
1. That the Mother and the Father are to have equal shared parental responsibility for the child [X] born in 1998 in relation to the care, welfare and development of a long-term nature involving the child to include, but not be limited to, issues about:-
1.1 the education of the child – both current and future;
1.2 the religion of the child;
1.3 the health of the child;
1.4 any change to the child’s living arrangements that may make it significantly more difficult for the child to spend time with any parent.
…
5. That the child live with the Mother as follows:
5.1 Each alternate weekend from after school on Friday to the commencement of school on Monday;
5.2 For 2 afternoons per week from after school to 7pm, with such days to be agreed between the parties and if there is no agreement then the days are to be nominated by the Mother;
5.3 From 9am to 5pm on Mother’s Day;
5.4 For 4 hours on the child’s birthday and the Mother’s birthday;
5.5 For half of each school holiday period;
5.6 For half of the Easter long weekend;
5.8 From 9am on Christmas Eve to 2pm on Christmas Day in 2008 and each alternate year thereafter;
5.8 From 2pm on Christmas Day to 6pm on Boxing Day in 2009 and each alternate year thereafter;
5.9 Such other time that the child wishes to spend with the mother;
5.10 Such other times as agreed between the parties.
6. That the child live with the Father as follows:
6.1 From 9.00am to 5.00pm on Father’s Day;
6.2 For 4 Hours on the child’s birthday and the Father’s birthday;
6.3 From 2pm on Christmas Day to 6pm on Boxing Day in 2008 and each alternate year thereafter;
6.4 From 9am on Christmas Eve to 2pm on Christmas Day in 2009 and each alternate year thereafter;
6.5 At all other times that the child is not living with the Mother.
…
12. That without admissions the Mother and Father be restrained from consuming alcohol over the legal limit or taking illicit or non prescribed drugs 12 hours prior to or during any period in which the child is living with them.
13. That the Mother’s solicitor be at liberty to request the father, on at least one occasion each month, that he attend upon Southern pathology for supervised urine analysis within 24 hours of such request being made and that for the purpose of such testing the Father is to attend upon a General Practitioner to obtain a referral to Southern Pathology for the purpose of undertaking supervised urine analysis for illicit drug abuse, and that if no response is received by the 16th of each month that he will immediately thereafter undertake the supervised urine testing referred to above and that the father pay for such urine analysis.
14. That the Father’s solicitor be at liberty to request the mother, on at least one occasion each month, that she attend upon Southern pathology for supervised urine analysis within 24 hours of such request being made and that for the purpose of such testing the Mother is to attend upon a General Practitioner to obtain a referral to Southern Pathology for the purpose of undertaking supervised urine analysis for illicit drug abuse, and that if no response is received by the 16th of each month that she will immediately thereafter undertake the supervised urine testing referred to above and that the mother pay for such urine analysis.
15. That a copy of any certificate issues consequent upon the testing in orders 13 and 14 is to be given to the solicitors for the Mother and the father within 24 hours of the receipt of the relevant certificate by the person undergoing the test and is then to be forwarded to the Independent Children’s Lawyer within 48 hours.
16. That the mother is to do all things necessary to ensure that
Mr W does not physically discipline the child.
17. That the mother and father ensure that the child is taken to school on each school day and where possible that the parent that has the child in their care takes the child to school themselves.
18. That liberty be given to have the matter re – listed on 48 hours written notice if either party fail to undertake the urine analysis testing as requested or in regard to the test results of the parties.
19. That the matte be adjourned to 2 February 2009 at 9.00am at the Federal Magistrates Court in Wollongong.
20. That the hearing date of 1 September 2008 be vacated and all previous parenting orders be discharged.
The matter was adjourned to 18 March 2009 before me in Sydney. The father did not attend on that date. I adjourned the matter to 1 April and ordered that [X] be brought to the court on that date and be left in the childcare facility available at the court.
The mother’s application in a case filed 9 March 2009 sought, in effect, that [X] live with her and spend time with the father. The father’s response to the application in a case sought that [X] remains with the father and spend time with the mother, but always in the absence of her partner.
Issues at the interim hearing
By way of summary the mother’s main allegations in her evidence were that:
a)The father continued to use drugs and/or had mislead the court about the nature and extent of his drug usage.
b)The father had ignored orders of the court in relation to drug testing.
c)The father had not allowed [X] to spend time with the mother in accordance with the orders of the court.
By way of summary the father’s main allegations in his evidence were that:
a)Whatever his past drug usage may have been, it was no longer an issue and it did not, in any event, affect his capacity to parent [X].
b)[X] had expressed strong views against spending time with the mother if the mother’s partner was to be present at the time, due to fears he holds of him.
I stress that I have recorded above what I consider to be a short summary of the main allegations raised by each parent. I do no justice to the matters each parent raises, but my aim is to identify the main issues for determination in these interim proceedings. Those issues can be expressed as follows:
a)Is there the need to protect [X] from harm whilst in his father’s care arising out of concerns about his father’s past and/or present drug usage?
b)Is there the need to protect [X] from harm whilst in his mother’s care arising out of concerns about his relationship with the mother’s partner?
c)Has [X] expressed any news about where he should live and how much time he should spend with his mother, and if so what weight should be given to these views?
d)Are there any issues about the father’s willingness and ability to encourage a close and continuing relationship between [X] and his mother?
In the context of an interim hearing I am satisfied that this captures the main issues to be decided. At a final hearing I daresay there will be many other issues that need the court’s attention.
Applicable Law
An application like this is governed by Part VII of the Family Law Act and the Full Court's decision in Goode & Goode [2006] FamCA 1346 provides some parameters, and I incorporate into these reasons paragraphs from the said decision.
68. In our view… the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
I note however, that the present interim application is in a significantly different context to that of Goode & Goode. There is evidence from the parties and their witnesses. There is relevant and helpful subpoenaed material. I have a family report. The evidence of the mother and father is tested by cross-examination and thus the scope for making findings, even at an interim level, is considerably greater.
Parenting and drug addiction
In Hogan and Hogan [2008] FMCAfam 1219 (14 November 2008) I made the following general observations:
32. In a case where it is alleged that one or both parents, or any person involved in the care of a child, are addicted to drugs, this is highly relevant because, potentially:
a) It might undermine or even destroy the meaningful relationship that exists between child and parent (s.60CC(2)(a)); and/or
b) It creates a need to protect the child from physical or psychological harm from being subjected to, abuse, neglect, or family violence attributable to the drugs (s.60CC(2)(b)); and/or
c) It adversely impacts on the nature of the relationship of the child with the drug dependent person (s.60CC(3)(b)); and/or
d) It impairs the capacity of that parent or person to provide for the needs of the child: (s.60CC(3)(f)); and/or
e) It demonstrated a poor attitude to the child and to the responsibilities of parenthood (s.60CC(3)(i)); and/or
f) It might lead to situations of family violence (s.60CC(3)(j)).
33. From a social science perspective, parenting and drug addiction are a potentially dangerous mix for the child. Drug dependence creates a pre-occupation that is inconsistent with responsible parenthood. The compulsion for drugs is not inconsistent with parental love, but is often inconsistent with the ability to meet the needs of children. Choices are often made that compromise the ability of parents to protect their children. Funding and maintaining a drug habit creates instability in family life. Children can often become secondary priorities, and thus vulnerable to harm. Routines are often disrupted. Sometimes drug dependency leads to exposure to criminal behaviour and the criminal law. Even if a parent is physically present for a child, drug dependence often leads to emotional unavailability for children, which is sometimes the most damaging impact. In short, parental capacity is grossly compromised. (See generally Barnard M., Drug Addiction and Families, London: Jessica Kingsley; 2007.)
34. This research is background material to my judgment. It is not evidence. It is not material in respect of which I take judicial notice, and I make no findings of fact as a result of this material. It is background material, and it assists in understanding the expert evidence provided by the Family Consultant. One also lives in hope that parents might learn from it.
I believe these general comments apply as much to this case as they did in Hogan.
The Evidence
Because of the history of this matter, the very serious allegations made by the mother about the father’s drug usage, the apparent non-compliance by the father with the orders for contact, and the availability of time within my docket, I directed that there be limited oral evidence and cross-examination. In the end the father, the paternal grandfather, the mother and her partner all gave evidence and were cross-examined. In addition there was available a considerable volume of subpoenaed material.
I propose to discuss the evidence by reference to the issues that I identified above.
Protecting [X] from the father’s drug use
The father’s evidence about his past and present drug use is completely unreliable. He has filed two affidavits in these proceedings to date:
23 April 2008and 1 April 2009. The one consistent thread about the father’s evidence in relation to his drug use is that it is untruthful. He has not only lied in his evidence, but sought to fabricate absurd explanations and rationalisations in order to justify his actions or explain previous inconsistencies in his evidence. He was finally caught out in cross-examination on 1 April 2009 when confronted with admissions he had himself made to the doctors at the Dennison Street Clinic in Wollongong where he attends for the purposes of receiving methadone. The father sought to explain this very damaging evidence by alleging that his disclosures to the said clinic were fabrications by the doctor in order to justify his admission to the program. I completely reject that assertion. I accept that the documents produced by the clinic contain multiple admissions by the father about the nature and extent of his drug use between the period 8 January 2007 and 23 March 2009. By way of summary of this evidence, together with my own observations, I record as follows:
a)On 8 January 2007 the father admitted to consuming the drug oxycontin for more than the previous 12 months, and heroin when not on oxycontin. He admitted that he was taking heroin twice weekly, and oxycontin every other day. The notes indicate that fresh track marks were present and that he last used three days before his attendance at the clinic which was on referral from his GP. It also notes that he had been to Odyssey those years ago.
b)On 25 January 2007 there is a note that the father indicated that his father i.e. the paternal grandfather, had taken over control of his money. This is consistent with the evidence given by the paternal grandfather at the hearing.
c)On 4 April 2007 the father admits to using oxycontin.
d)On 28 June 2007 the father admits to a $100 per day drug habit and that his oxycontin had run out and he used heroin three weeks ago.
e)On 6 August 2007 there is an admission to using oxycontin two days previously.
f)On 2 October 2007 he admits to using oxycontin purchased on the black market.
g)On 4 October 2007 he admits to “started using”.
h)The last entry is 19 November 2007. The father had thus not only been on the methadone program for nine months, but during this time admits to using various drugs. Not only is none of this referred to in his affidavit of 23 April 2008, but his oral evidence in June 2008 denies drug use in this period.
i)On 2 July 2008 there is a note under the heading “RE ADMIT” which states: “has not succeeded in stop using, Using 2 oxycontin/day or heroin ¼ day as available”. There is a later note to the effect that he admitted using that morning. All of this occurs just a few days after the evidence he gave before me at the hearing in Wollongong, and a few weeks before the order was made by consent confirming that [X] should live with the father.
j)Between 9 July 2008 and 23 March 2009 there is a noticeable decline in the standard of writing used in the notes. The father appears to attend quite frequently though there are a few examples of missing his appointment. The notes referred to above are, in the context of these documents, notes made by the doctors who the father saw at the clinic. The other records produced indicate that his attendances were supposed to be daily, but that any disclosures made to the person who provided the father with his methadone dose is not recorded.
k)The records provide a detailed dosing history of every day between 24 March 2009 and 10 July 2008 and 16 September 2007 and 8 January 2007. The records indicate that during this entire period the father provided urine samples at most six times. In cross-examination it was put to the father that his failure to provide urine for testing purposes and his missed doses and doctors appointments, all indicated that he was using drugs at those times. He denied this, but it is not a convincing denial in the context of this case where orders for urinalysis were made but clearly not complied with by the father. The father indicated that his reluctance to provide urine samples was based partly on shyness (what he described as ‘stage fright’), partly because he was required to attend the clinic so early in the morning, and had already emptied his bladder by the time he got there, and partly because of his work commitments. I do not accept these explanations in the context of this case. If the father had ‘stage fright’ it certainly didn’t prevent him giving a urine sample about six times. The dosing history records actually indicate times of attendances and less than half are consistent with the father’s explanation of having an empty bladder or work commitments.
As I have indicated above, the father’s evidence about his past and present drug use is completely unreliable. His assurances that he has no current drug issues other than methadone and cannabis are quite hollow. His record of non-compliance with court orders in relation to drug-testing, and indeed his clear willingness to mislead the court about these issues, all tend to indicate that the father has not acknowledged the extent of his own drug problem and minimises the same to himself, his family and to the court.
In cross-examination the father stated: “none of these issues have affected my ability as a parent” (transcript 1 April 2009, page 10 line 39). The court is left with the impression that this actually represents the father’s real views about his drug usage.
In his closing submissions, Mr Steward, counsel for the father, referred to the passage cited above from Hogan & Hogan [2008] FMCAfam 1219 at paragraphs 32-34. He submitted, in effect, that despite the concerns expressed by me in the above passage, in this case there was no evidence about poor parenting of [X], or that his needs had not been met, or that family life was any more unstable than it would be in the context of a high conflict separation, or that [X] had suffered any actual harm, or that his routine had been disrupted, or that the father was unavailable for [X]. In effect the submission was that whatever the father’s past drug issues were, it had not affected his ability to satisfactorily parent [X] under the circumstances.
On one level, counsel for the father is correct. Indeed there is more evidence before me of [X]’s involvement in the very high level of conflict in these proceedings, than there is of any direct harm he is suffering as a result of his father’s drug issues. But there are broader issues here. There may be no evidence at this interim hearing of past harm, but I need to be mindful of the future risk of harm too. After all s.60CC(2)(b) is both retrospective and prospective in its ambit. It may well be that the scrutiny of pending court proceedings since June 2008 has tempered the father’s drug use, and indeed his return to the methadone program is consistent with this. One must also remember the clearly important role that the paternal grandfather has played in terms of assisting the father in his care of [X]. The grandfather is clearly aware of his son’s drug problem. He often drops in unannounced. He is in touch with both the father and [X] on a regular basis. He seems to closely monitor the condition of both of them. The paternal grandfather has played the essential role of ‘safety net’ of [X]’s welfare for most of the separation period. In a case that is tragically devoid of any heroes, the parental grandfather emerges as the unsung hero who has managed to support his drug-addicted son whilst remaining vigilant for his grandson. The paternal grandparents may well need to consider playing a greater role in the proceedings at a final hearing, especially if both parents are unable to deal with the issues that confront them, and which appear in this case.
I conclude this section of my judgment by stating that the father clearly has an unresolved drug issue that presents a long-term risk to the welfare of [X]. In the short-term however, pending a final hearing of this case, and provided the father is unable to demonstrate unequivocal compliance with the orders I propose to make, the safety net provided by the paternal grandfather leads me to conclude that there is no short-term risk to [X] such that he should move into his mother’s care. Clearly [X] has a strong relationship with his father. As will be seen below he has indicated a strong view not to leave his father’s care.
A change is not justified at an interim hearing.
However the father needs to understand that at a final hearing different considerations will arise, particularly if he is not able to establish to the court’s satisfaction that he is dealing effectively with his drug issues, and will comply with court orders.
Protecting [X] whilst in the Mother’s care?
At the interim hearing the major issues in this regard was the father’s concerns about the mother’s partner. In short the father is concerned about [X]’s safety when he is around. In his affidavit of 23 April 2008 at paragraph 13 he provides three examples of instances which, the father alleges, involved the mother’s partner physically abusing [X]. He confirmed this in his oral evidence in June 2008. In his affidavit of 1 April 2009 he refers to a further incident in December 2008 in which the father and the mother’s partner came to blows outside the latter’s home, in the presence of [X].
Both the mother and her partner gave evidence about this issue. Having heard the evidence I do not accept that the mother’s partner assaulted [X]. I prefer the evidence of both the mother and her partner in this regard. The father’s evidence about his drug taking casts a long shadow of doubt over the rest of his evidence. That shadow becomes ominously dark when one considers the enormous enmity that he holds towards his cousin, the mother’s partner. Overlaid on all of this is the evidence from the father himself and that indicated he has inappropriately involved [X] in these proceedings by discussing the same with him. The most likely scenario is that the father’s ill-will towards the mother’s partner has been projected onto [X] who, if he has said anything at all, has said things to his father that he thinks his father wants to hear. The evidence tends to indicate that there is in fact very little objective difficulty in the relationship between [X] and his mother’s partner. If there is a problem, it is entirely with the father himself. These findings are consistent with the submissions the Independent Children’s Lawyer makes. Out of abundant caution, however, pending final order I will not vary the order that states that [X] should not be disciplined by the mother’s partner.
At the interim hearing no great emphasis was placed on the mother’s own drug issues. It is certainly not an issue the court has overlooked. It will assume much greater importance at final hearing. The mother is attempting to give up her own cannabis consumption. That is commendable, and is very child-focussed. Unlike the father she has complied with orders for urinalysis.
The views of [X]
[X] is capably represented by Mr Baird as Independent Children’s Lawyer. He correctly submitted that the strong views that [X] holds have been expressed consistently since the Family Report last year. He wants to live with his father, and spend more time with his mother. Nothing has changed. [X] is 11 years old. He has already demonstrated a certain independence of will and mind in running away from his mother’s home. I fear he will do the same if I ignore his views, at least for the time being. Perhaps at a final hearing the circumstances of his parents will mandate another approach, but for the time being I cannot ignore his views. He wants to spend more time with his mother. So far his father has thwarted this from happening. The orders already provide for this to occur i.e. to spend more time. I don’t think I need to change the orders in this regard.
Father’s willingness to encourage relationship with the mother
The totality of the evidence leads me to conclude that the father has been less than willing to facilitate [X]’s relationship with his mother.
I have already found that the pretext he has used – concerns over the mother’s partner – has no objective basis. The evidence does not allow me to conclude at this stage precisely what the real basis for the father’s reluctance to permit this ongoing relationship is. The Family Report did indicate some unresolved emotional issues between the father and the mother, and this might offer some explanation. The father needs to understand that this consideration alone sometimes justifies a reversal of often longstanding residential arrangements for children. He might be able to overcome his drug issues, but could still lose this case if he does not encourage and facilitate [X]’s relationship with his mother. This involves not just compliance with court ordered contact, but an attitudinal change on his part. He must stop discussing these proceedings, or the father’s relationship with the mother, either with [X] or in his presence. He must deal with his almost obsessional distrust of the mother’s partner. He must start to understand the enormous psychological harm to [X] that will occur if he can’t deal with all of these issues. It is not an issue that figures prominently at an interim level, but I foreshadow that it may become far more significant at a final hearing.
Conclusion
This is a complex one. Both parents need to confront their past and present drug addiction issues. The paternal grandparents need to consider their future role in these proceedings. Both parents, but particularly the father, need to conform with legal orders. At the moment the court has considerable issues about trusting either parent. The present interim application is resolved on the basis of maintaining the status quo pending the final hearing. The views of [X], together with the safety net offered by the paternal grandfather, have influenced the court towards this outcome. The close scrutiny of pending final proceedings will hopefully force both parents to really focus on dealing with the issues they have to deal with.
Order 11 made 16 July 2008 is varied so that it now reads:
“That each of the parents be restrained from discussing these proceedings, or the relationship between the parents, or any aspect thereof, with [X], or on his presence, or allowing any other person to do so.”
I vary the order for drug testing as I am not satisfied that it is rigorous enough under the circumstances of this case. Order 13 and 14 made
16 July 2008are discharged and I make the following new order:
“13. The solicitor for either parent or the Independent Children’s Lawyer may request a parent to undertake supervised urinalysis within 24 hours of such request being made, in each case at the cost of the parent undertaking the test. The frequency of such requests shall be not less than once per month at the instance of the solicitor for a parent, and at the election of the Independent Children’s Lawyer, a further once per month.
14. In addition to urinalysis, the Independent Children’s Lawyer may request either or both parents to undertake at the cost of the Legal Aid Commission of New South Wales in the first instance, any other form of drug testing including hair testing at an interval of no more than once every three months.”
The Independent Children’s Lawyer has leave to file in chambers either consent orders or the terms of a proposed order relating to the appointment of a family consultant to prepare a further Family Report in this matter and/or the appointment of an expert to report on drug issues relating to the parents.
The final hearing for this matter is to be on 23 November 2009 for three days. All parties urged on me the need to determine this matter as quickly as possible, particularly as the evidence indicates that [X] was very much caught up in the cross fire of his parents’ conflict. I have decided that, on balance, a moderate delay before the final hearing is actually more in [X]’s best interests. The delay gives both parents the opportunity to demonstrate to the court that they have satisfactorily dealt with all of the issues that are referred to in these reasons for judgment. The delay will also give the paternal grandparents the opportunity to monitor the parents’ and [X]’s progress and to consider and possibly get legal advice about joining these proceedings. I further apprehend that there may be a delay in getting the expert evidence needed to assist the court in determining the true nature and extent of the drug issues affecting both parents, and what are the prospects of rehabilitation.
I intend to make an order that the parents undertake a post-separation parenting assessment with an organisation like Relationships Australia. The Family Consultant recommended this in his report, but it was not taken up by the parties in their consent orders in 2008. The Family Report may be released to the provider of such post-separation parenting assessment so that they have some understanding of the issues present in this case.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date:
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