Lawton and Armstrong and Anor

[2014] FCCA 1539

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAWTON & ARMSTRONG & ANOR [2014] FCCA 1539

Catchwords:
FAMILY LAW – Best interests of child.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DA, 65DAA

Family Law Amendment (Shared Parental Responsibility ) Act 2006

Applicant: MR LAWTON

First Respondent: MS V ARMSTRONG

Second Respondent: MS R ARMSTRONG

File Number: MLC 7461 of 2013

Judgment of: Judge Connolly

Hearing date: 16 July 2014

Date of Last Submission: 16 July 2014

Delivered at: Melbourne

Delivered on: 17 July 2014

REPRESENTATION

Counsel for the Applicant: NA

Solicitors for the Applicant: NA

Counsel for the Respondents: NA

Solicitors for the Respondents: NA

Counsel for the Independent Children's Lawyer: Mr Tesoriero

Solicitors for the Independent Children's Lawyer: Danielle Webb Lawyer

ORDERS

1. All previous parenting orders be discharged.

2. The child [X] born [omitted] 2000 (“[X]”) live with the maternal grandmother MS R ARMSTRONG.

3. The maternal grandmother have sole parental responsibility for [X] until the mother’s release from prison and thereafter the maternal grandmother and the mother have equal shared parental responsibility and the father have no parental responsibility.

4. [X] spend time with his mother as agreed between the mother and the maternal grandmother subject to the following occurring on the mother’s release from prison in 2015:

   (a)the mother comply with all directions of her treating mental health and medical practitioners and engage in any counselling or treatment as directed by them; and

   (b)the maternal grandmother engage in counselling to address the issues relating to [X]’s reintroduction to his mother upon her release in 2015.

5. The Independent Children's Lawyer be permitted to forward a copy of these orders and a copy of the family report to the Department of Human Services.

6. The mother have liberty to apply upon her release from prison in 2015.

7. The father spend no time with [X] until he can demonstrate a drug-free lifestyle by attending an inpatient drug and alcohol rehabilitation service and provides proof of his attendance.

8. The father have liberty to apply upon him being able to demonstrate a drug-free lifestyle.

9. Otherwise, all extant applications be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Lawton & Armstrong & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7461 of 2013

MR LAWTON

Applicant

And

MS V ARMSTRONG

First Respondent

MS R ARMSTRONG

Second Respondent

Introduction

1. This is an ex tempore judgment arising from the parties’ competing parenting applications. On 2 September 2013 the Applicant father filed an application seeking spend time with orders every alternate weekend from the conclusion of school until 5:00pm on Sunday as well as telephone contact and other times that might be agreed. He further sought an order that the child reside with the Respondent grandmother (being the maternal grandmother).

2. The second-named Respondent maternal grandmother filed a response on 7 July 2014 seeking, inter alia, orders that the child live with the maternal grandparents until the mother’s release from prison and further orders taking effect upon the mother’s release from prison.

3. The Respondent mother did not seem to file a formal response but by the time the trial commenced and certainly by the time the trial concluded, both the maternal grandmother and the Respondent mother supported the orders sought by the Independent Children's Lawyer which were:

   a)All previous parenting orders be discharged.

   b)The child [X] born [omitted] 2000 (“[X]”) live with the maternal grandmother MS R ARMSTRONG.

   c)The maternal grandmother have sole parental responsibility for [X] until the mother’s release from prison and thereafter the maternal grandmother and the mother have equal shared parental responsibility and the father have no parental responsibility.

   d)[X] spend time with his mother as agreed between the mother and the maternal grandmother subject to the following occurring on the mother’s release from prison in 2015:

   i)the mother comply with all directions of her treating mental health and medical practitioners and engage in any counselling or treatment as directed by them; and

   ii)the maternal grandmother engage in counselling to address the issues relating to [X]’s reintroduction to his mother upon her release in 2015.

   e)The Independent Children's Lawyer be permitted to forward a copy of these orders and a copy of the family report to the Department of Human Services.

   f)The mother have liberty to apply upon her release from prison in 2015.

   g)The father spend no time with [X].

4. The father’s application was supported by his affidavit sworn 2 September 2014 and filed on the same date.

5. The maternal grandmother’s response was supported by an affidavit sworn 29 October 2013 and filed 30 October 2013.

6. The Respondent mother filed an affidavit sworn 7 July 2014 and filed 7 July 2014.

7. The Independent Children's Lawyer filed a report prepared by Dr M on 23 June 2014 pursuant to an order of the Federal Circuit Court made 7 November 2013. Dr M gave evidence this day that the contents of her report were true and correct.

8. Each of the parties gave evidence and were cross-examined. Dr M gave evidence and was also cross-examined. The previous proceedings in this matter involved orders made by Dessau J on 7 February 2008 upon the father making an undertaking not to consume alcohol or use any illicit substance while in the presence of the child [X], and that he would attend for a post-separation parenting course and an alcohol and substance addiction course and would forward copies of the certificates obtained as a result of those courses to the mother. He further undertook not to denigrate or criticise the mother to [X]. Upon that undertaking, her Honour made orders that [X] live with the mother and spend time with and communicate with the father every alternate weekend from 5:30pm Friday until 5:30pm Sunday as well as school holiday and Christmas.

9. On 12 August 2011 those orders were discharged by Hughes FM, as she then was, who discharged all previous parenting orders on that date and made an order that the mother have the sole parental responsibility for the child, and that the child live with his mother and spend time with and communicate with the father only as agreed between the parties and in accordance with the child’s wishes or as ordered by the court.

10. When the matter returned before this Court on 9 October 2013, an Independent Children's Lawyer was appointed to represent the child and the matter was adjourned to 7 November 2013 in the duty list. There was also an interim order made for [X] to live with the maternal grandmother. On 7 November 2013, there was an order made for the preparation of a family report and the matter was set down for trial with the usual procedural orders.

Background of the matter

1. The Applicant father was born on [omitted] 1969 and is 45 years of age and resides at [address omitted]. He is currently unemployed. The Respondent mother was born [omitted] 1975 and is currently 40 years of age. At the time of swearing her affidavit, the mother was a prisoner in the [omitted]. She was incarcerated in 2012 for offences in relation to an attempted armed robbery and recklessly causing injury. She pleaded guilty to those offences and according to her affidavit is due for release in January 2015.

2. The parties first met in approximately 1992 and started living together shortly thereafter. They separated at the end of 2000. There is one child of the relationship, namely [X] born [omitted] 2000, aged 14 years. As previously indicated, there were various orders made by the Family Court and the Federal Magistrates Court which made provision for [X]’s living arrangements. Since the mother’s incarceration, [X] has lived with his maternal grandmother who resides at [address omitted]. She is 60 years of age, is in good health and works as a part-time [omitted]. The father’s relationship with the mother and the grandmother was characterised by a number of episodes of domestic violence. [X] witnessed those episodes. The evidence about the time spent by [X] with his father is somewhat confused but it is clear that at least from 2009 onwards he had very little involvement with his father. There were about three occasions where he spent time with his father which culminated with him having time with his father in April this year, and [X] has since then refused to spend any further time with his father.

3. Over all of this period of time, there were numerous intervention orders obtained by the mother and the maternal grandmother, and there were breaches of those orders on some seven or eight occasions by the father. The father’s criminal convictions were tendered to the Court and the father conceded a criminal history but indicated that the police acted corruptly in relation to a number of those convictions.

The law

1. The law with respect to the determination of children's issues was amended with the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). It is now incumbent upon the Court to decide matters in accordance with that legislation. Section 65D of the Family Law Act 1975 (Cth) provides that a Court may make such order as it thinks proper subject to s.61DA, which requires the Court to apply the presumption of equal shared parental responsibility when making parenting orders.

2. Section 65DAA(1) states that when an order provides that the child's parents are to have equal shared parental responsibility the Court must consider:

   a)whether the child spending equal time with each parent is in the best interests of the child;

   b)whether spending equal time is reasonably practicable; and

   c)if so, consider making such an order.

3. Section 65DAA(2) states that if the Court does not make an order for equal time in those circumstances it must consider whether the child spending substantial and significant time with each parent would be in the child's best interests and whether spending substantial and significant time is reasonable practicable.  The Court must also consider making such an order.

4. The legislation also defines what is meant by substantial and significant time (s.65DAA(3)) and the matters to be taken into account when considering whether it is reasonably practicable to make such an order (s.65DAA(5)).  The provisions concerning equal time are set out in s.65DAA below:

   Equal time

   (1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the Court will regard the best interests of the child as the paramount consideration.

   Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

   Substantial and significant time

   (2)    If:

   (a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)    the Court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the Court must:

   (c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the Court will regard the best interests of the child as the paramount consideration.

   Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

   (3)    For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

   (a)    the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends or holidays; and

   (b)    the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the Court must have regard to:

   (a)    how far apart the parents live from each other; and

   (b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)    the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the Court considers relevant.

5. In deciding whether to make a particular parenting order in relation to a child, the Court must still regard the best interests of the child as the paramount consideration (s.60CA).  However, in determining what is in the best interests of the child, s.60CC, the legislation has created a set of primary and additional considerations.  Sections 60CC(2) and 60CC(3) set out those considerations. 

6. Section 60CC(2):

   Primary considerations

   (2)    The primary considerations are:

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

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

   Note:     Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Section 60CC(3):

   Additional considerations

   (3)    Additional considerations are:

   (a)    any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

   (b)    the nature of the relationship of the child with:

   (i) each of the child’s parents; and

   (ii)    other persons (including any grandparent or other relative of the child);

   (c)     the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long‑term issues in relation to the child; and

   (ii)    to spend time with the child; and

   (iii)   to communicate with the child;

   (ca)  the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

   (d)    the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i) either of his or her parents; or

   (ii)    any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)     the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

   (f) the capacity of:

   (i) each of the child’s parents; and

   (ii)    any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)    the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

   (h)    if the child is an Aboriginal child or a Torres Strait Islander child:

   (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)    the likely impact any proposed parenting order under this Part will have on that right;

   (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   (j) any family violence involving the child or a member of the child’s family;

   (k)     if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:

   (i) the nature of the order;

   (ii)    the circumstances in which the order was made;

   (iii)   any evidence admitted in proceedings for the order;

   (iv)   any findings made by the court in, or in proceedings for, the order;

   (v)     any other relevant matter;

   (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 child;

   (m)    any other fact or circumstance that the court thinks is relevant.

Findings and conclusions

1. The only real issue to be determined by the Court is the amount of time that the child [X] should spend with his father, if any. Both parties have criminal histories and both have spent time incarcerated (the mother told the family report writer the father was incarcerated for thirty days for offences related to drink driving, and this has not been challenged). [X] has been very fortunate to have his maternal grandparents who have cared for him particularly since his mother’s incarceration.

2. I found the report of Dr M to be particularly helpful and, although

   
   

   Dr M was cross-examined by the father her evidence was not in any way diminished as a result of cross-examination. Dr M reports that [X] presented as a reserved, very polite and respectful young man who is currently in year nine at [school omitted], but does not particularly enjoy school (although he indicated that he would probably complete schooling until year 12).

3. [X] made a number of observations relating to his father, set out in paragraph 55, 56, 57, 58, 59, 60 and 61 as follows here:

   55. [X] reflected on his memories of his relationship with his father. He stated that he remembered positive experiences such as motor bike riding and going to the beach. [X] stated that the bad memories outweighed the good memories. He stated that he worried about his father “smoking dope” and from experience with a family member was aware that it could trigger a schizophrenic response. “ I am worried about dad”.

   56. [X] recalled other negative memories of time spent with his father such as witnessing his father pushing the paternal grandmother whilst he was alcohol affected causing her to cut her head open. He stated that the police were called and they removed the father from the home. [X] also recalled his father “busting mum’s teeth” during an incident when he head-butted her. [X] also remembered witnessing his father driving a motor bike into a tree causing himself serious facial injuries.

   57. [X] shared that his response to the father’s behaviour was to avoid spending time with him. “I didn’t want to go because of his behaviour and the arguing. I didn’t want to be around it”. He disclosed further distressing incidents such witnessing his father shooting up drugs at the age of eight and feeling fearful of the likelihood of further episodes. [X] later recalled other bad memories such as “ the many times bad times the cops came to my primary school and he was taken away”.

   58. [X] indicated that he had spent time with his father in April 2014 after a couple of years of no contact.  He initially stated that he missed his father “a bit” but later stated that his father had turned up at school, and had pressured him into spending time. [X] stated that the father also told [X] not to disclose any negative information about him when attending this session for the preparation of the Family Report. [X] had hoped to do fun things with his father, “but it didn’t happen”. He stated that they went to the beach and bought chips and for the rest of the two days, they sat and watched TV. He stated that they spent their time indoors and “it was boring and we had nothing to do”. He also referred to his father going to the shed “to smoke dope” and was aware of his longstanding marijuana usage. [X] was not perturbed by his father’s accommodation but stated that he felt guilty when they slept in the paternal grandparents house and the father had to sleep on the couch.

   59. [X] was uncertain about spending time with his father in the future. He initially stated that he would do so when he was ready but with further discussion [X] seemed dejected and was not optimistic about their relationship. He shared that he felt embarrassed going out with his father because of his dress code, and referred to him wearing a beanie. [X] had attempted to share his feelings with his father but stated that his father did not listen.

   60. [X] shared that he did not have a lot of trust in his father’s capacity to change.  [X] stated that he did not want to engage with his father in counselling. His experience of counselling had not been helpful and he felt worse for having to discuss his history. He also stated that it was not his responsibility to assist his father. “ I don’t want to have to make him change”.

   61. [X] discussed the option of spending time with his father during this session. [X] was quite shocked at the prospect and was quick to decline the opportunity. He stated “if I see him I won’t be able to do my exams tomorrow”. He stated that he worried about his issues with his father at school, “particularly when he shows up and parked on the wrong side of the road”. [X] was also adamant that his father not receive information about his progress at school. “He doesn’t bother with anything. He doesn’t pay for supporting me”.

1. Dr M then went on to describe the relationship that [X] had with his mother. In paragraph 62 she says:

   [X] described a close relationship with his mother. He stated that he was very distressed when she was incarcerated but had enjoyed spending time with her every week. He did not feel embarrassed visiting her and shared that it was easier as other children were also present at the prison. In a discussion about what he would choose if he had three wishes, he stated that there was nothing he wanted. He did not seek that his mother be released stating that she had done wrong and had to accept responsibility for her offences. [X] did not know the reason for his mother’s incarceration and was very keen to be told the detail.

1. In paragraph 63 Dr M details the relationship that [X] has with his grandparents:

[X] stated that he enjoyed living with his grandparents and looked forward to being reunfied with his mother and live with her upon her release. He stated that living with his grandparents “ feels like I have a mother and father”. He has never been worried living with them. [X] was aware that his grandparents were not too happy with him spending time with his father but he did not let their views influence him.

1. Dr M then observed [X] to have a relaxed and comfortable relationship with his grandparents. She did not observe [X] with his father, as he was very anxious and declined any contact with his father, despite some encouragement from Dr M.

2. Dr M then evaluated Mr Lawton’s behaviour. In paragraph 67, she says as follows:

   Mr. Lawton presented with long standing volatile behaviours characterised by an arrogance and sense of entitlement to a relationship with his child. He portraying himself in grandiose terms as a loving and capable parent and showed total contempt for others. These behaviours were extremely concerning due to his lack of insight into the impact of his long standing history of chronic substance abuse on his parenting capacity and ability to make responsible parenting decisions. The risk posed by his behaviours was indicated by his disclosure such as exposing [X] to his marijuana usage, and historical concerns such as shooting up in front of [X] and taking [X] to drug dealers.  The father’s contempt for the mother and grandparents was evident with a history of pernicious behaviour characterised by physical and verbal abuse.  The father’s behaviour is of a chronic nature and given the history and his lack of engagement in services to address the concerns, any future relationship will place [X] at risk of emotional and physical harm.

1. At paragraph 69 she makes observations about the mother’s relationship with [X]:

   Ms. V Armstrong presented with her own personal vulnerabilities. She presented with deep remorse over her past behaviours and the impact of her incarceration on her son. She also felt disempowered in supporting [X]’s relationship with his father due to the chronic nature of the father’s abusive behaviours.  The mother demonstrated insight into [X]’s best interests and was cautious about future orders placing the onus of responsibility on [X]. She was also concerned about emotional harm to [X] in being exposed to the ongoing contact from the father at school. The mother was mindful about her own behaviours and the harm caused to [X] by her offending behaviour. Her enthusiasm to resume the care of [X] was tempered with an understanding that she would need to earn her son’s trust. Her willingness to engage in counselling during and after her incarceration were indicators that the mother is realistic about the challenges of reunification and is motivated to ensure as stable a transition back into the community as possible.

1. At paragraph 68 Dr M said of the maternal grandmother:

   Ms. R Armstrong presented as a caring and compassionate grandmother who has assumed the care of her grandson under distressing circumstances. The grandmother demonstrated insight into [X]’s needs and was child focussed in her decision making. She was assertive in prioritising [X]’s best interests and was visibly torn between the importance of a supporting the [X]’s relationship with his father but also concerned about the likelihood of harm in their relationship. The grandmother was a somewhat naive in her allegiance to her daughter, glorifying her role as a parent to [X] without regard to the protective concerns and her criminal history. This emotional support is encouraging for both [X] and Ms. V Armstrong in their goals toward reunification after the mother’s release. However, given the mother’s history, it is important that the grandmother monitor the mother’s progress and support her in engaging with counselling services. The grandmother would benefit from counselling to support [X] in his reunification with his mother, given the potential challenges for the mother and [X].

2. She concluded that [X] presented as a mature young person who is struggling with his current pressures and has endured significant hardship both as a result of his mother’s incarceration and the ongoing pressures from his father. While he was loathe to reject his father outright, he was clearly concerned for his father’s wellbeing. He was, however, quite certain that his father needed to accept responsibility for his abusive behaviour before any resumption of the relationship.

3. Dr M also concludes at paragraph 71:

   [X]’s separation from his mother has caused him significant distress. However, [X]’s bond with his mother has been sustained by ongoing contact. [X]’s maturity was demonstrated by his insight into prioritising his mother’s need to accept responsibility for her behaviour over his emotional need for reunification. [X]’s best interests would be met by a reunification with his mother after her release, within the confines of the mother attending counselling to sustain the positive changes made in prison.

1. At paragraph 72, Dr M sets out her recommendations as follows:

   a) That the child lives with the grandparents until the mother’s release from prison in January 2015;

b) After the mother’s release in January 2015, the child lives with the mother with ongoing contact with his grandparents;

c) That the grandmother has sole parental responsibility for the child until the mother is released from prison and thereafter the mother has sole parental responsibility for the child.

d) That the father has no contact with the child until he can demonstrate a drug free lifestyle. This would be addressed via attending an inpatient drug and alcohol rehabilitation service and provide proof of his attendance.

e) That the father provides supervised drug screens for a period of 12 months to further demonstrate a drug free lifestyle.

f) That the grandmother consider seeking a further Intervention Order if the father attempts to have contact with [X].

g) That the mother engages with post release counselling services as recommended by her counsellors.

h) That the grandmother attends counselling prior to the mother’s release from prison to provide [X] and the mother with the necessary support.

1. I accepted the evidence of Dr M, her recommendations and the basis upon which she formed those recommendations.

2. The evidence of the mother is set out in her affidavit. She indicates that she has been seeing a counsellor while in prison and has completed a psychological course in prison called Frame of Mind. She has also completed an anger management course as well as a drug and alcohol course. She has completed random urine screens and they were presented at the Court and were all clean of illicit drugs although they did indicate some prescribed medications. She says that as a result of her period of time in prison she needs to be on her present medication for depression as well as borderline personality disorder. She says she will continue to follow the recommendations of health professionals upon her release from prison.

3. It is clear from the past history that the mother’s desire is that [X] should have a relationship with his father, but that is impossible until his father realises the problems that he has with drugs and alcohol. The father in his evidence conceded that he had smoked marijuana on a regular, daily basis since he was 15 and his evidence was that he saw no reason to give it away. He conceded that he had not taken the random drug screens he had been ordered to and while he denied that he took heroin or other drugs, he indicated that he used methadone regularly, but that this was to remedy a problem he had with excessive sweating in summer. Further, he conceded in evidence that he had used marijuana in [X]’s presence – most recently in April – and appeared to find nothing wrong with that.

4. This is captured at paragraph 11 of the maternal grandmother’s affidavit:

   Whilst we were before the Judge at the Children’s Court the father told the Judge that he had shown [X] how to inject illicit substances into his arm in order to explain to him the dangers of drug use. The Father also lifted his shirt in court to show the Judge the needle marks, bruises and skin rashes on his rib cage which he said were from drug use. [X] told us that the father had given him scissors and shown him how to cut up marijuana.

This was not challenged by the father.

1. In his evidence the father conceded that there had been a number of episodes of violence including knocking the mother’s teeth out and head-butting [X]. The mother also indicated that the father used heroin in front of [X] and I accepted that evidence; I found her to be a truthful and honest witness.

2. It is clear from both the father’s evidence and his demeanour in Court that he lacked any insight into the effect of his behaviour upon [X]. Unfortunately, I think it is unlikely that he will do anything to rectify that. I am satisfied that it is not in [X]’s best interests for him to spend time with his father until his father is able to demonstrate a drug-free lifestyle and modify his behaviour to eliminate violence and to protect [X] from involvement with illicit substances.

3. The recommendation of Dr M is that the father should have no contact with the child unless he is able to demonstrate a drug-free lifestyle and provides proof of attendance at an inpatient drug and alcohol rehabilitation service and clean drug screens to the Court. In these circumstances he may have leave to apply to spend time with [X].

4. Accordingly I am satisfied that it is in the best interests of [X] that he spend no time with his father, and that the orders sought by the Independent Children's Lawyer, the maternal grandmother and the mother are in the best interests of [X] and I so order.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Connolly

Associate: 

Date: 17 July 2014