Lauwens & Wynne
[2024] FedCFamC1F 152
•14 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lauwens & Wynne [2024] FedCFamC1F 152
File number: NCC 3025 of 2021 Judgment of: AUSTIN J Date of judgment: 14 March 2024 Catchwords: FAMILY LAW – CHILDREN – Final parenting orders – Where the mother and father’s use of illicit drugs and unstable mental health has impaired their parenting capacity – Where interim orders were previously made for the child to live with the paternal grandparents and spend one day each week with each parent – Where the interim orders were implemented until trial with respect to the mother, but not the father – Where it was mutually agreed the child should live with the paternal grandparents and they be vested with parental responsibility – Where the dispute was confined to orders that will regulate the frequency and conditions under which the child spends time with the mother and father to ensure her protection against the risk of harm – Where the mother has taken positive steps to address her illicit drug use, mental health and living standards – Where the paternal grandparents do not doubt the competence or quality of the mother’s temporary care of the child – Where the father claimed he was abstinent from all illicit drug use but failed to adduce scientific evidence to prove his assertion – Where the father’s unstable mental health overlays the problems created by his illicit drug use – Where the father is not equipped to provide reliable and safe care for the child – Ordered child spend time with the mother one day per week with such time to change when the child commences school – Ordered the child spend not less than four hours per calendar month with the father under the supervision of either paternal grandparent. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 64B, 65AA, 65D, 91B Cases cited: Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17
Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4
Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12
Division: Division 1 First Instance Number of paragraphs: 78 Date of hearing: 7 & 8 March 2024 Place: Newcastle Counsel for the Applicants: Mr Moon Solicitor for the Applicants: Peninsula Law Counsel for the First Respondent: Mr Graham Solicitor for the First Respondent: Legal Aid NSW Counsel for the Second Respondent: Ms Willoughby Solicitor for the Second Respondent: Harpers Legal Counsel for the Independent Children's Lawyer: Ms Kaiti Solicitor for the Independent Children's Lawyer: Strive Family Law & Mediations ORDERS
NCC 3025 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LAUWENS
First Applicant
MR B LAUWENS
Second Applicant
AND: MS WYNNE
First Respondent
MR C LAUWENS
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
14 MARCH 2024
THE COURT ORDERS THAT:
1.All former orders in respect of the child X (“the child”), born 2019, are discharged.
2.Parental responsibility for the child is removed from both the first respondent (“the mother”) and the second respondent (“the father”) and instead conferred upon the applicants (“the paternal grandparents”).
3.The child shall live with the paternal grandparents.
4.The paternal grandparents and the mother shall take all reasonable steps to ensure the child spends time with the mother:
(a)Until the child begins school:
(i)each Monday from 9.00 am until 5.00 pm;
(ii)on Mother’s Day from 9.00 am until 5.00 pm; and
(iii)on Christmas Eve from 9.00 am until 5.00 pm.
(b)After the child begins attending school:
(i)each alternate Sunday from 9.00 am until 5.00 pm (regardless of whether that Sunday falls in school term or school holidays);
(ii)each Wednesday in school terms from the conclusion of school until 7.00 pm;
(iii)on Mother’s Day from 9.00 am until 5.00 pm; and
(iv)on Christmas Eve from 9.00 am until 5.00 pm
5.For the purpose of implementing Order 4, the mother shall collect the child from either the paternal grandparents’ home or the child’s school (as the case may be) and shall return the child to the paternal grandparents’ home.
6.The mother is restrained from causing or permitting the child to spend any time with the maternal grandmother, Mr D, or Mr E.
7.The paternal grandparents and the father shall take all reasonable steps to ensure the child spends time with the father for a period of not less than four hours once each calendar month, on these conditions:
(a)such time is supervised by either paternal grandparent; and
(b)such time does not clash with the time spent by the child with the mother pursuant to Order 4 hereof.
8.Each party is restrained from denigrating any other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating any other party.
9.Each party shall forthwith notify the others of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a medical provider and shall authorise any treating medical provider to communicate with the other parties about the condition and treatment of the child.
10.The paternal grandparents shall authorise and request the principal of any school attended by the child to provide to the mother and father, at their respective expense, copies of all school reports and school photograph order forms relating to the child.
11.The Independent Children’s Lawyer is discharged upon the latter of the determination of any appeal or the expiration of the applicable appeal period.
12.Costs are reserved for 28 days.
13.Any and all other outstanding applications are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
These proceedings concern a child who is now four years of age and are contested between the paternal grandparents, the mother, the father, and an Independent Children’s Lawyer (“the ICL”).
By the time of trial, it was mutually agreed the child should live with the paternal grandparents and they should have parental responsibility for her. The dispute was confined to the nature of the orders which will regulate the frequency of the time the child spends with her parents and the conditions under which she may do so. The mother and the father both have a long history of illicit drug use and the extent to which such drug use has impaired their parenting capacity was the focal point of the litigation.
For the following reasons, orders are made for the child to regularly spend time with each parent, though the form of orders differs in respect of each parent. The child will spend unsupervised time with the mother, but only supervised time with the father. If and when the father wants to dispense with the requirement for supervision, the onus falls upon him to bring fresh proceedings to prove the durability of his abstinence from illicit drug use and the stability of his mental health. He did not do so on this occasion.
BACKGROUND
The child’s parents commenced a relationship in 2017 and the child was born in 2019.
The parents’ relationship was unstable and they finally separated in early 2021, after which time the child’s residence was fluid. At times, at the mother’s request, the child lived with the paternal grandparents. That remained the case from about August 2021, following which the child welfare agency ceased its intervention in the family’s affairs.
The paternal grandparents commenced these proceedings under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in September 2021, seeking orders that the child live with them and that they have parental responsibility for her.
In April 2022, a registrar made an order under s 91B of the Act inviting the child welfare agency to intervene in the proceedings but, by a letter sent to the Court in May 2022, the agency declined to do so.
Ultimately, in June 2022, interim orders were made for the child to live with the paternal grandparents and to spend one day each week with each parent, which orders were implemented until the trial in March 2024 with respect to the mother, but not the father.
In 2023, the father attended a birthday party for the child held by the paternal grandparents at their home, at which event he took an illicit drug and was then asked to leave when an argument developed, following which the paternal grandparents suspended arrangements for the child to spend time with him. In the few months which have since elapsed, they have allowed the father to see the child on only three occasions at their home under their supervision.
PROPOSALS
Paternal grandparents
By their Amended Initiating Application filed in October 2021, the paternal grandparents sought orders for the child to live with them and for them to have parental responsibility for her. They did not seek any prescriptive orders regulating the child’s interaction with either the mother or father, proposing instead that such decisions be left to them as an incident of their parental responsibility.
At the commencement of trial, they tendered a different Minute of the Orders they instead proposed,[1] containing prescriptive orders regulating the time the child would spend with each parent, subject to them fulfilling certain conditions. Before final submissions commenced, the paternal grandparents tendered a substitute Minute of Orders embodying their final proposal, which differentiated the circumstances under which the child would spend time with each parent.[2]
[1] Exhibit A1
[2] Exhibit A2
As it transpired, there was only a very narrow difference between the proposals made by the paternal grandparents, the mother and the ICL about when the child would spend time with the mother. They agreed the child would spend unsupervised time with the mother, but disagreed over whether it should be one day per week or one day per fortnight once the child starts school in early 2025.
Mother
By her Further Amended Response to Initiating Application filed in November 2023, the mother acceded to orders for the child to live with the paternal grandparents and for them to have parental responsibility for her. However, she sought orders requiring the child to spend substantial amounts of time with her, subject to her proving her abstinence from use of “illicit substances”.
At the commencement of trial, the mother tendered a different Minute of the Orders she instead proposed,[3] which was then replaced by a substitute Minute of Orders tendered before final submissions commenced.[4] She abandoned her proposal obliging her to prove her abstinence from illicit drug use.
[3] Exhibit M1
[4] Exhibit M4
Father
The father stood by his proposal contained within his Amended Response to Initiating Application filed on 19 January 2024.
He also acceded to orders for the child to live with the paternal grandparents and for them to have parental responsibility for her. However, he sought unconditional orders requiring the child to spend substantial amounts of unsupervised time with him.
Independent Children’s Lawyer
The ICL tendered a Minute of the Orders she proposed at the commencement of the trial.[5]
[5] Exhibit ICL1
Her proposal reflected broad agreement with the mother and the paternal grandparents about when the child would spend time with the mother.
So far as the father was concerned, the ICL agreed with the paternal grandparents that the child should only spend time with him under the supervision of at least one of the paternal grandparents.
EVIDENCE
The paternal grandparents relied upon their affidavits filed on 9 February 2024.
The mother relied upon her affidavit filed on 31 January 2024.
The father relied upon his affidavit filed on 9 February 2024. He was also granted leave to rely upon the evidence of his partner,[6] even though she did not affirm and file an affidavit in compliance with an earlier procedural order.[7]
[6] Exhibit F1
[7] Order 7(b) made on 20/12/23
The parties and the ICL relied upon:
(a)the Child Impact Report dated 1 April 2022; and
(b)the Family Report dated 6 January 2023.
Numerous other exhibits were tendered.
LEGAL PRINCIPLES
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA), but the presumption does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). Here, the parties agree it would not be in the child’s interests for parental responsibility to be conferred equally upon the parents.
If parental responsibility for the child is allocated in some way other than equally to the parents, as will be the case in this instance, then the exercise of the Court’s discretion about the child’s care arrangements is at large and the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
BEST INTERESTS – PRIMARY CONSIDERATIONS
Section 60CC(2)(a)
It was uncontentious that the child has, and will accrue benefit from retaining, meaningful relationships with both parents (s 60CC(2)(a)), subject to her being kept safe (s 60CC(2A)).
Section 60CC(2)(b)
Section 60CC(2)(b) directs attention to the need for the child’s protection from physical or psychological harm which might result from her subjection or exposure to “abuse”, “family violence” or “neglect”.
No submission was made that the child currently needs protection against exposure to “family violence”, which dissipated as an issue during the litigation.[8]
[8] Family Report at [108]
The paternal grandparents submitted to the court child expert that the child needs protection against the risk of her subjection to sexual “abuse” perpetrated by the mother’s step-father (Mr D),[9] but the issue was not pursued in evidence at trial. As a safeguard, the mother acceded to an injunction restraining her from allowing the child to be brought into contact with that person.[10]
[9] Family Report at [81] and [83]
[10] Exhibit M4, Order 11.2
The injunction is expanded to include the maternal grandmother, to which the mother acceded,[11] and the mother’s former partner (Mr E). Although the mother did not formally consent to the inclusion of Mr E, his inclusion was sought by the paternal grandparents and the ICL.[12] He should be included because he perpetrated family violence upon the mother and is bound by a State family violence order made for her protection.[13]
[11] Exhibit M4, Order 11.2; Mother’s affidavit at [142]
[12] Exhibit A2, Order 7.2; Exhibit ICL1, Order 7.2
[13] Mother’s affidavit at [140]-[141]
Although the child could feasibly be at risk of harm by reason of her “neglect” by either the mother or father if she happens to be in the care of either while intoxicated by illicit drugs, that concern tended to be addressed by the parties as a consideration in respect of the parents’ deficient parenting capacity (s 60CC(3)(f) and s 60CC(3)(i)) rather than them posing frank risks of physical or psychological harm to the child (s 60CC(2)(b)).
BEST INTERESTS – ADDITIONAL CONSIDERATIONS
Not all of the factors prescribed by s 60CC(3) of the Act were engaged, either by the evidence or the parties’ submissions. It is only necessary to address the factors which are relevant.
Section 60CC(3)(b)
There was no dispute the child enjoys warm and loving relationships with both paternal grandparents, the mother, the father, and her younger half-sibling, who lives with the father.[14]
[14] Family Report at [156], [157], [158] and [183]
The child’s complete estrangement from her parents and half-sibling could have long-term adverse repercussions for her.[15] Eventually, the parties and the ICL adopted the uniform position that the child should regularly spend time with each parent (albeit under different conditions) and so the child’s relationships with the parties and her half-sibling will not be compromised.
[15] Family Report at [185]
Sections 60CC(3)(f)(i) and 60CC(3)(i)
Some concerns were tangentially raised about the paternal grandparents’ capacity to meet all of the child’s physical, emotional and intellectual needs,[16] but such concerns were not raised in their cross-examination. Given agreement the child should live with them and they should have exclusive parental responsibility for her, those concerns fell away.
[16] Family Report at [89], [93], [104] and [108]
The emphasis was firmly upon the impaired parenting capacity of both parents by reason of their illicit drug use and unstable mental health, though the evidence in relation to each is different and is considered separately.
The mother has been forced to endure psychological distress caused by trauma experienced in both childhood and adulthood, the details of which need not be explicated.[17] Her illicit drug use can be traced back to age 14 years, when she began using cannabis, but then moved on to the use of harder pharmacological drugs at age 16 years. The mother was still using cannabis when she conferred with the court child experts in March 2022[18] and December 2022, at which later time she admitted her need to enter into a residential drug rehabilitation program.[19] Her drug tests between November 2021 and July 2022 show positive results.[20] The mother has tried but abandoned past drug rehabilitation counselling and has not admitted herself to a residential rehabilitation facility,[21] which she told the court child expert she would not do so if it meant surrendering her public housing accommodation.[22]
[17] Child Impact Report at [10], [38]; Family Report at [20], [24]
[18] Child Impact Report at [31]
[19] Family Report at [151]
[20] Mother’s affidavit at [97]–[99]
[21] Mother’s affidavit at [101]–[104]
[22] Family Report at [151]
The mother has not enjoyed stable mental health, which compromised her capacity to care for the child in the past. She openly admitted to the court child expert it was an issue of ongoing concern for her for which she needed treatment, which she was not receiving when interviewed in December 2022.[23] The mother even conceded she was liable to neglect the child if unexpectedly overtaken by a bout of psychological ill health.[24] She realised she could not meet the child’s emotional, cognitive, psychological and physical needs at the time she conferred with the court child expert in December 2022,[25] which was an entirely selfless and courageous confession for a young mother to make, indicating her willingness to put the child’s interests ahead of her own.
[23] Family Report at [132]–[133]
[24] Family Report at [126], [134]
[25] Family Report at [127], [151]
Had this litigation been heard and determined 12 months ago when that evidence was current, a bleak outcome might well have been forecast for the mother. However, her future is not so dim as those facts might suggest. To her enduring credit, she resolved to battle the adversity she has faced and change her life for the better, not least because she wants to retain a place of significance in the child’s life. The ICL correctly described her progress in final submissions as an “upwards trajectory”.
In her trial affidavit, the mother conceded she still uses cannabis,[26] but denied the use of other illicit drugs for the past four to five years,[27] about which she was not contradicted. She admitted in cross-examination she still uses cannabis daily though, for the past few weeks, such use has been legal, prescriptive and medicinal.[28] She said that, in coming months, she expects to migrate from medicinal cannabis with an active intoxicant to medicinal cannabis which does not. Of course, that evidence is aspirational, but the mother has at least devised a plan to eradicate her illegal drug use.
[26] Mother’s affidavit at [94], [100]
[27] Mother’s affidavit at [107]
[28] Exhibit M2
The mother has been engaged with a non-government social program since August 2022, which has aided her to secure stable accommodation, regulate her mental ill health through resort to psychiatric and psychological services, organise her eligibility for the legal use of medicinal cannabis through prescription, and obtain some employment producing regular but modest income. She is apparently eligible for the continued provision of those social services until October 2025.[29]
[29] Exhibit M3; Mother’s affidavit at [111]–[123]
As a witness, the mother impressed as thoughtful and insightful. She respected the parental role the paternal grandparents had played when she and the father were incapable of providing the care the child needed. The paternal grandparents also implied their respect for the mother’s rehabilitative achievements over the past 18 months. They ensured the child has spent one day each week with the mother, without any supervision, since June 2022. They said the child is happy and healthy when she is returned to them and they have had no reason to doubt the competence or quality of the mother’s care of the child in that time.
The father’s parenting capacity has also been impaired by reason of unstable mental health and illicit drug use, which lifestyle has brought with it the risk of clashes with violent and dangerous people.
The father’s cannabis use began when he was 12 years of age, but he was introduced to harder pharmacological drugs at age 15 years. He has multiple criminal convictions extending back to 2014 for drug-related offences, the last of which was in 2021. Conditions of sentences imposed for his convictions have required his participation in treatment programs and his abstinence from drug use, but he has been unable to comply.[30] Nor was he apparently able to adhere to the parenting plan devised by the child welfare agency in 2022, requiring his engagement with drug and alcohol services and his provision of negative results for random drug screens,[31] though he falsely asserted his compliance.[32]
[30] Child Impact Report at [6], [8], [32]; Family Report at [141], [143]
[31] Family Report at [115], [144]
[32] Father’s affidavit at [29]
Despite his angry denial to the second court child expert,[33] repeated in cross-examination, I accept the evidence of the first court child expert that the father was intoxicated when he was interviewed in March 2022.[34] Given the father’s positive drug tests in April and May 2022,[35] he seemed coy with the court child expert when discussing the details of his then current drug use in December 2022,[36] though he did admit his daily use of cannabis.[37] I also accept the evidence given by the paternal grandparents of the father’s intoxication and irascible behaviour at the child’s birthday party in 2023,[38] which the father only admitted in the most banal terms.[39]
[33] Family Report at [97]
[34] Child Impact Report at [7]
[35] Family Report at [144]
[36] Family Report at [95], [142]
[37] Famil Report at [147]
[38] Paternal grandmother’s affidavit at [88]-[106]; Paternal grandfather’s affidavit at [29]–[40]
[39] Father’s affidavit at [23]
The evidence-in-chief given by the father about past drug use is difficult, if not impossible, to reconcile with the information he furnished to the court child expert.[40] The father produced two drug tests from December 2021 and May 2022, which show positive results for both cannabis and another drug.[41] In addition, he admitted taking an illicit drug at the child’s birthday party in 2023. Despite his asserted intention to produce a recent negative drug test at the trial at the request of the ICL,[42] he failed to do so.
[40] Father’s affidavit at [22]–[26]; Family Report at [142]
[41] Father’s affidavit at [30]–[31] and [35]–[36]
[42] Father’s affidavit at [38]
The father said in cross-examination he ceased using cannabis in late 2023 and would not benefit from any drug rehabilitation. He expected his uncorroborated evidence should be accepted, but it is not. The father sought to excuse his failure to produce a single negative drug test since his last positive result in May 2022 by saying he could not afford a test, but I reject the excuse. On his evidence, he had enough money to buy drugs up until late 2023, prioritising that expenditure over payment for a drug test, and since then he has supposedly had at his disposal the money not spent on buying illicit drugs, which saving his partner quantified at $120 per week.
The father admitted in cross-examination how he was aware the other parties doubted his asserted abstinence from all illicit drug use, including cannabis, so he well understood the need to verify his account. Presumably, that is why he said in his affidavit he intended to produce negative drug screens at trial. His failure to do so, either voluntarily or at the request of the ICL, assumes critical importance. All evidence must be weighed and assessed having regard to the capacities of the parties to adduce and contradict it (see Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 454; Burke v LFOT Pty Ltd (2002) 209 CLR 282 at 330; Swain v Waverley Municipal Council (2005) 220 CLR 517 at [17]). The father had exclusive power to adduce scientific evidence to prove his abstinence from illicit drug use. The other parties had none.
The father’s partner did give evidence supporting his claim of abstinence from illicit drug use since late 2023, but I do not regard her evidence as being reliably corroborative. Given the father’s history of drug addiction and the unreliability of his own evidence about illicit drug use over the past few years, no finding about his abstinence is possible without corroboration by multiple negative drug tests over a prolonged period. More likely than not, the father still uses illicit drugs when it suits him.
The father and his partner both admitted their past use of cannabis within their home whilst the child, their own child, or both children were also present somewhere else in the house. They seemed not to appreciate that, at the very least, their intoxication was liable to compromise the quality of their care and supervision of any young child within the home.
Aside from drug use, the father’s past illicit drug supply has exposed him on some occasions to the danger of physical and psychological injury through violent home invasions committed by felons intent on stealing his drugs and money.[43] Either brazenly or naively, the father brushes off the seriousness of that risk,[44] but either way his cavalier attitude is antithetical to him being permitted to care for the child at his own home. She would be exposed to the same risk as him. Just because police were apparently unaware, in late 2023,[45] whether the father was still involved in illicit drug-related activities does not enable a finding that he positively was not – either then or now. He may or may not be, but his prolonged history of doing so suggests the risk of it still exists.
[43] Family Report at [117], [118]
[44] Family Report at [118]
[45] Exhibit F2
The father’s unstable mental health overlays the problems created by his illicit drug use. The court child expert said this after their interview in March 2022:
36.Parental Mental Health: Both parents have a reported history of depression, anxiety, and PTSD, for which they have required medication over the years. The father reported a number of medications he has been prescribed to manage his mental health; a regime that raises concerns if the father is also using or abusing pain or illicit drugs. The father demonstrated minimal insight into the relationship between his mental health, drug use and parenting.
(Emphasis in original)
Notwithstanding the issue being highlighted in that way, the father did not adduce any evidence at all concerning his current psychological state or his prognosis. He only conceded he is medicated for a range of conditions,[46] the severity of which remains unknown. His tendered medical records, covering the period between January 2023 and February 2024, do not fill the gap in the evidence.[47]
[46] Father’s affidavit at [31]–[33] and [37]
[47] Exhibit F3
I reject the submission made by the father’s counsel that such evidence was sufficient to justify finding that the father “has appropriately engaged with medical professionals”. He has undoubtedly consulted with doctors for a variety of conditions over a long period of time, but it cannot be reasonably discerned whether the frequency of his consultations has been appropriate, whether he is compliant with his medication regimes, or whether his conditions will be relieved or improved. He admitted to being “addicted” to prescriptive medications in the past.
The father is not presently equipped to provide reliable and safe care for the child. His partner did not inspire any confidence that she is a moderating influence on the father and represents a reliable safeguard.
Sections 60CC(3)(j) and 60CC(3)(k)
In early 2021, a family violence order was made against the father for the mother’s protection by a State court, which order followed the father’s conviction for assaulting the mother and the maternal grandmother.[48]
[48] Child Impact Report at [9]; Family Report at [19]; Mother’s affidavit at [138]–[139]; Father’s affidavit at [18]
Despite that frank incident of violence and the general history of turbulence within the parents’ relationship, neither the parties nor the ICL contended the child or anyone else requires protection against the risk of their exposure or subjection to family violence. The issue fell away.[49]
[49] Family Report at [108]
CONCLUSIONS
It was common ground the paternal grandparents should have exclusive parental responsibility for the child and she should live with them.
The essential issues are whether any orders should be made to regulate the child’s interaction with the parents and, if so, the nature of the conditions which must be imposed to ensure the child’s protection against the risk of harm.
The court child expert made cascading recommendations concerning the child’s interaction with the parents. She principally opined it would not be in the child’s best interests for her to spend any time at all with the parents if they had not engaged in effective drug and alcohol treatment, had not ceased illicit drug use, and had not achieved permanent sobriety.[50] On the available evidence, neither parent has fulfilled those pre-conditions. Any rehabilitation programs in which they have participated have either been abandoned or were completed unsuccessfully.
[50] Family Report at [184]
If, despite her principal recommendation, orders are nonetheless made to ensure the child spends some time with either parent, the court child expert alternatively recommended that such visits be confined to four hours each month and be professionally supervised.[51] The court child expert opined the child should not spend any unsupervised time with the parents until they had successfully undertaken some form of drug rehabilitation course and produced a negative drug test with longitudinal reliability.[52]
[51] Family Report at [194]
[52] Family Report at [191]–[192]
The court child expert’s recommendations were made in the family report despite her knowing the parties were then implementing the interim orders made in June 2022, enabling the child to spend one day per week with each parent without any supervision. Her recommendations remained unchanged during her cross-examination at trial, though she was inclined to express some optimistic hope about the mother’s rehabilitation when asked to make assumptions about the proof of her progress over the past 18 months.
Despite the court child expert’s recommendations, the parties and the ICL all agreed orders should be made to ensure the child does spend regular time with both parents, though there was disagreement about the form of such orders.
I reject the court child expert’s primary recommendation of immediate eradication of the parents from the child’s life, principally for two reasons. First, the court expert’s report was compiled about 15 months ago and she was ignorant of the rehabilitative steps since taken by the mother. Secondly, I consider it would be deleterious to the child to so dramatically rupture the arrangements under which she has been spending time with each parent since June 2022. However, I do accept the court child expert’s admonition to proceed cautiously.
The mother’s progress in recent times has been admirable and the child can probably safely continue spending one weekday with her until she begins school in early 2025, from which point in time it will no longer be feasible for the child to spend every Monday with her.
Once the child starts attending school five days per week, a number of other considerations which compete for the rest of her available time must be balanced: the frequency and the duration of the time she spends with the mother, the frequency and the duration of the time she spends with the father, and the avoidance of any disturbance to the stability of her primary residence with the paternal grandparents.
In an exercise of discretion, from 2025, the balance is best struck by requiring the child to spend time with the mother for one day on each alternate weekend, for a couple of hours after school on one afternoon every week, and on other special occasions.
To implement the orders, it was agreed the mother would collect the child, either from the paternal grandparents’ home or from school, and then later return her to the paternal grandparents’ home. Lest it not obvious enough, the mother should not be driving any vehicle if under the intoxicating effects of cannabis, medicinal or otherwise.
The father’s current parenting capacity is such that the child should only spend supervised time with him, which supervision the paternal grandparents are willing to provide and to which the father will submit if it is ordered.
The paternal grandparents and the ICL contended for orders which would enable the paternal grandparents to unilaterally determine if, when and how the child would spend supervised time with the father, but the idea is rejected. The orders should be prescriptive so that, in the event of some discord between the father and the paternal grandparents, there is a baseline of interaction between the child and the father which must be observed. If the paternal grandparents and the father can agree upon the child seeing him more frequently or for longer periods than the orders stipulate, that is their prerogative. The baseline visits should be four hours in duration once per month at times which do not clash with the child’s visits with the mother. Most probably, those visits will fall on Tuesdays before the child starts school and on the weekend once she begins school. Those details are left to the parties.
Given the frequency with which the child will spend time with the parents, there will be no need for orders regulating their telephone communication. To date, the parties have managed to make arrangements for the child to communicate with the parents without the need for prescriptive orders. Nobody foresaw any difficulty with them continuing to do so.
The remaining orders either accord with mutual proposals or could not be the subject of sensible opposition.
There is no need for any order authorising the parents to attend at the child’s school or her sporting events, as was proposed. They are not precluded by injunction from doing so. To the extent that the number of invitations to the child’s school functions might be limited, the parents must remember they consented to an order reposing parental responsibility for the child in the paternal grandparents and so they are entitled to priority.
Some proposed orders were abandoned by the parties and the ICL.[53]
[53] Exhibit ICL1, Orders 7.1, 8 and 10; Exhibit A2, Orders 7.1, 8 and 10; Exhibit M4, Orders 11.1 and 12; Father’s Amended Response filed on 19/1/24, Orders 11, 12 and 22.4
Costs are reserved for 28 days in the event that any party or the ICL wishes to make such an application.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 14 March 2024
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