Lendrum & Carriel
[2010] FMCAfam 1322
•30 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LENDRUM & CARRIEL | [2010] FMCAfam 1322 |
| FAMILY LAW – Parenting – one child aged 5 – Mother has long drug history - credit of Mother in issue – Mother’s failure to disclose extent of addiction - impact on parenting arrangements – period of supervision – type and frequency of drug testing – balance child’s need for relationship with Mother against need to protect child. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA & 65DAC |
| Akston & Boyle [2010] FamCAFC 56 |
| Applicant: | MR LENDRUM |
| Respondent: | MS CARRIEL |
| File Number: | SYC3851 of 2007 |
| Judgment of: | Sexton FM |
| Hearing dates: | 14, 15 & 16 September 2010 |
| Date of Last Submission: | 16 September 2010 |
| Delivered at: | Sydney |
| Delivered on: | 30 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Schonell |
| Solicitors for the Applicant: | Milne Berry Berger & Freedman |
| Counsel for the Respondent: | Mr G Gould |
| Solicitors for the Respondent: | Lawyers Central |
ORDERS
All previous parenting orders be discharged.
[X] live with the Father.
School terms
[X] spend time with the Mother during school terms as follows:
(a)Each alternate weekend from 3.00pm or after school or day care (whichever is applicable) on Friday until 9.00am or at the commencement of school or day care (whichever is applicable) on Monday when the Mother will collect and deliver [X] from school or day care;
(b)In the event the Mother’s Day weekend falls on a weekend [X] is with the Father, the Mother’s Day weekend be substituted for the weekend immediately following the Mother’s Day weekend noting that if this order applies, it will mean [X] will spend 2 consecutive weekends with the Mother, and then 2 consecutive weekends with the Father before resuming the alternate weekend time;
(c)
In the event the Father’s Day weekend falls on a weekend [X] is with the Mother, the Father’s Day weekend be substituted for the weekend immediately following the Father’s Day weekend noting that if this order applies, it will mean [X] will spend
2 consecutive weekends with the Father, and then 2 consecutive weekends with the Mother before resuming the alternate weekend time;
(d)[X]’s weekend time with the Mother re-commence on the first weekend after the school term starts if she has been with the Mother in the first half of the immediately preceding school holidays and on the second weekend after the school term starts if she has been with the Mother in the second half of those school holidays.
School holidays
[X] spend time with the Mother during school holidays as follows:
(a)For the first half of each school holiday period in 2010 and all even numbered years thereafter;
(b)For the second half of each school holiday period in 2011 and all odd numbered years thereafter;
(c)For the purpose of this Order, school holidays start at 9 a.m. on the first full day of the holidays and finish at 6 p.m. on the last full day of the holidays, by reference to the New South Wales Department of Education school holiday calendar or the school holiday calendar of the private school [X] is attending.
[X]’s weekend time with the Mother be suspended during all school holiday periods.
[X]’s birthday
[X] spend time with the Mother on her birthday as follows:
(a)If a weekday, from after school until 6 p.m. when the Mother will collect [X] from school or daycare (whichever is applicable) and return her to the Father at [omitted] Station at 6 p.m.
(b)If a weekend day, when [X] is not scheduled to be with the Mother, from midday until 6 p.m. when the Father will deliver [X] to the Mother at [shop omitted], and the Mother will return her to the Father at [omitted] Station at 6 p.m.
Easter period
Notwithstanding any other order, [X] spend time with the Father during Easter from 8.00am Good Friday until 8.00pm Easter Monday each year.
In the event the Easter period falls in a school holiday period when [X] is due to spend time with the Mother, [X] spend the other half of that school holiday period with the Mother.
Christmas Eve until Boxing Day
Notwithstanding any other order herein, [X] spend from 9.00am Christmas Eve until 8.00pm Boxing Day with the Mother in even numbered years, and the Father in odd numbered years, and alternating thereafter each year.
Changeover
Unless otherwise provided in these orders, changeover occur at school or daycare whenever applicable, but otherwise the Mother will collect [X] from the [omitted] Railway Station at the commencement of time periods, and the Father will collect [X] from [shop omitted] at the conclusion of the time.
Supervision
Until the end of the 2012 calendar year at the earliest, [X]’s time with the Mother, whether in school terms, holidays or at any other time, be at all times supervised by:
(a)Either of the Mother’s parents; or
(b)Any other member of the Mother’s biological family; or
(c)Ms H; or
(d)An independent and accredited supervising agency; or
(e)Any other person agreed by the parties.
In the event that persons named in Order (11) herein are not available for supervision, [X] remain with the Father.
No person referred to in Order (11)(b) or (e) shall act as a supervisor until the Mother causes to be provided to the Father (or his solicitor if requested by the Father) an Affidavit by the proposed supervisor indicating:
a)That person’s understanding of their duties; and
b)A commitment to immediately contact the Father in the event the Mother appears to be either intoxicated or affected by any illicit substance.
All costs and expenses relating to the provision of supervision are to be the sole responsibility of the Mother.
The Mother shall no less than two days (2) prior to the commencement of any period of time spent with [X] notify the Father by email of the identity of the person who will be the proposed supervisor(s) on that occasion.
Telephone and other electronic communication
In relation to telephone communication:
(a)Until [X] is 10 years of age, [X] be made available to speak by telephone with the Mother during school terms between 6.45pm and 7.45pm on two occasions each week being the Monday and Thursday when the Father will facilitate the communication and ensure the speakerphone is switched off to give [X] full privacy;
(b)[X] be available to speak by telephone with the Father and Ms L between 6.45 p.m. and 7.45 p.m. on Mondays and Thursdays each week when [X] is in the Mother’s care during school holidays, and with the Mother at the same times when [X] is in the Father’s care during school holidays;
(c)The party with the care of [X] (if not the party with the birthday) ensure she speaks to the other party by telephone by no later than 9 a.m. on the other party’s birthday, and on Ms L’s birthday;
(d)Each party facilitate [X] initiating telephone contact with the other party or any other member of that party’s extended family, should she wish to do so, at any reasonable time;
(e)When [X] has attained 10 years of age, Order (16)(a) and (b) be discharged and [X] have liberal access to a telephone in each party’s home to enable her to initiate contact with the other party or Ms L at any time;
(f)[X] be at liberty to communicate with the other party or Ms L by any electronic means at any reasonable time.
Parental responsibility
The party caring for [X] will have sole responsibility for making decisions about the day to day welfare and development of [X].
Subject to Orders (27) – (31) the parties have equal shared parental responsibility for major decisions concerning [X].
Drug testing and health reviews
Until at least the end of the 2012 calendar year, within 24 hours before and after any proposed period that [X] spends time with the Mother, the Mother submit herself to [omitted] Pathology for urine testing, such urinalysis to be conducted in accordance with the Australian/New Zealand Standard 4308:2001: Procedure for the collection, detection and quantitation of drugs of abuse in urine and immediately upon the result being available to the Mother’s general practitioner, the Mother scan a copy of the result to the Father’s email address.
Until at least the end of the 2012 calendar year, on no more than one occasion in each three calendar months, the Mother shall submit herself for hair follicle testing at [omitted] Pathology, or any other accredited clinic, with the Mother to provide no less than 3 centimetres of hair for such testing, and the Mother be restrained from taking any steps to interfere with the test result.
Upon request by the Father at any time, but no more than twice per month, the Mother shall submit herself to [omitted] Pathology for urinalysis testing (under supervision and chain of custody), when the testing will take place within 8 hours of the request being made, such urinalysis to be conducted in accordance with the Australian/New Zealand Standard 4308:2001: Procedure for the collection, detection and quantitation of drugs of abuse in urine.
The Father communicate such requests for urinalysis to the Mother directly by SMS text message or mobile telephone, and immediately upon the result being available to the Mother’s General Practitioner, the Mother scan a copy of the result to the Father’s email address.
If any urine test or hair follicle test result proves positive to any substance referred to in the following notation, all orders relating to [X] spending time with the Mother be suspended until all the following conditions are met, or unless otherwise agreed by the Father:
Notation: For the purposes of this order the term ‘substance’ means but is not limited to Methadone Metabolite, Opiates, Amphetamine Type substance, Benzodiazepines, Cannabinoids, Cocaine Metabolite, Barbiturates, Buprenorphine
(a)The Mother has attended for urine testing and has produced 3 consecutive negative results for three (3) consecutive weeks;
(b)The Mother’s treating practitioner/practitioners have provided a report to the Father outlining the reasons for the relapse and offering a rehabilitation plan within 48 hours;
(c)The costs of such testing be paid for by the Mother; and
(d)The Mother provide results to the Father forthwith upon availability.
Within fourteen (14) days of the making of these orders the Mother do all things and sign all documents necessary to authorise the Father to communicate, correspond with and request documents from her treating medical practitioner/s, and the relevant representatives of the drug testing facility.
Within fourteen (14) days of the Mother attending a new medical practitioner and or laboratory and testing facility the Mother disclose the contact details of the medical practitioner, laboratory and testing/pathology representatives to the Father by email and do all things and sign all documents necessary to authorise the Father to communicate, correspond with and request documents from her treating medical practitioner, and from the relevant representatives of the drug testing facility.
[X]’s schooling
The Father be permitted to send [X] to [N] School in 2011, or [L] if she is offered a place.
In the event the Father proposes a change in [X]’s school during her primary years, with the exception of [L], the Father comply with Order (28) before enrolling [X] in that school.
The Father consult the Mother about the proposed change, provide detailed information about the proposed school, his reasons for selection of the school and details of any fees, and the Mother provide written feedback to the Father within 14 days of notification from the Father, as to her opinion, and the Father have regard to the Mother’s opinion before deciding on a school.
Subject to Orders (27) and (28) the Father be solely responsible for determining the school [X] attends at any time.
The Mother sign all documents requested and provided by the Father relating to [X]’s schooling, and return them to the Father within 7 days.
The Father give the Mother as much notice as practicable of any proposal to change [X]’s school.
In the event the Mother fails to sign enrolment/application forms presented to her in accordance with these Orders, pursuant to Section 106A of the Family Law Act 1975 a Registrar or Deputy of the Federal Magistrates Court of Australia will have the power to execute any document or instrument to give effect to these Orders.
Information sharing
Each party notify the other in writing immediately upon any change to their mobile telephone number or email address.
The Father provide all authorities necessary to ensure the Mother receives school reports, welfare reports concerning [X], and information about school or other events involving [X] to which parents are invited.
The Father provide the Mother with details of [X]’s enrolment in any extra curricular activities.
The Mother provide the Father with at least 48 hours notice of her intention to attend any event involving [X] when [X] is in the Father’s care.
Each party notify the other, as soon as possible, but within 24 hours of any medical emergency involving [X].
The Father advise the Mother of details of any party to which [X] is invited on the Mother’s weekend or holiday time.
Restraints
The Mother be restrained from using any illicit or illegal substance.
The Mother be restrained from consuming alcohol when she has the care of [X] or in the 24 hour period before she has the care of [X].
The Mother be restrained from smoking in the presence of [X] including in any motor vehicle in which [X] is seated, at any time, and the Mother take all reasonable steps available to her to ensure that nobody else smokes in [X]’s presence.
The Mother be restrained from taking [X] to a Narcotics Anonymous meeting.
The Mother ensure that any time [X] is present with her, the Mother’s partner, Mr D, shall not attend the Mother’s premises, and the Mother take all steps to ensure Mr D has no contact with [X].
Each party be restrained from making any negative comment or gesture about the other party or any member of the other’s party’s family in the presence and/or hearing of [X].
Travel with [X] outside Sydney
The Mother be restrained from removing [X] from the Sydney Metropolitan Area overnight without first notifying the Father and obtaining his consent in writing and if written permission is provided by the Father the time spent must be supervised in accordance with these Orders, and the Mother must notify the Father of the contact telephone number, location and where [X] will be staying 7 days prior to leaving Sydney.
The Father notify the Mother no later than 7 days prior to any school holiday period, if he intends to remove [X] from the Sydney Metropolitan Area during those holidays and provide the Mother with details of his destination including telephone contact numbers.
In the event that either party wishes to take [X] overseas (subject to the Orders concerning supervision and Order (45)), that party is to provide to the other party no later than 6 weeks prior to the proposed travel, details of the holiday destination and proposed dates of travel, and an itinerary when available, but prior to the date of travel, and the party travelling shall provide [X] with phone communication with the other party on two separate occasions in any one week of travel.
General
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
AND THE COURT NOTES:
The parties are at liberty to vary these orders by written agreement between them.
In the event further litigation is commenced between these parties, concerning parenting arrangements, before the end of 2012, the matter should, if practicable, be listed before Federal Magistrate Sexton.
IT IS NOTED that publication of this judgment under the pseudonym Lendrum & Carriel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3851 of 2007
| MR LENDRUM |
Applicant
And
| MS CARRIEL |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns parenting arrangements for the parties’ only child, [X], aged 5 years. After a 4 year marriage, the parties separated in April 2006, when [X] was under 12 months of age. [X] has lived with the Father since then, though she has spent regular time with the Mother. The Father re-married in November 2008. He and his wife,
Ms L, work full time, and [X] therefore attends day care each weekday, [omitted] (near Ms L’s workplace) on 2 days a week, and [omitted] (near the Father’s workplace) on the other 3 days.
The central issue in this case concerns the Mother’s long term drug addiction and her dishonesty about the extent of her past drug and alcohol use.
The parties married [in] 2002, separated on 1 April 2006[1] and were divorced in August 2007. [X] was born [in] 2005. The Father is 39 years old, has a degree in [omitted], is a [occupation omitted]. His wife has a Masters in [omitted] and works full time as a [omitted]. The Father and Ms L live with [X] [in] [suburb omitted]. They have no other children. The Mother is 41 years old and lives in her own unit in [suburb omitted]. She is not presently working and relies on a private income. The Mother says she has been in a relationship with Mr D, aged 37 years, since May 2010 and they spend 3-4 nights a week together. According to the Mother, Mr D is from Melbourne and a former drug addict, who has not “used” for 20 months. Mr D has met [X] and stayed overnight with the Mother while [X] has been in the Mother’s care. The Mother consents to an order that [X] have no contact with Mr D.
[1] Court divorce record
History of litigation relating to [X]
On 5 June 2007, final orders were made by consent in the Family Court providing for [X] to live with the Father and spend time with the Mother, at first on a supervised basis. The Mother was required to undergo drug testing and to consult her psychiatrist regularly. On condition the Mother’s test results were negative over a 3 month period, the orders provided for [X] to spend unsupervised time with the Mother on alternate weekends from Friday until Sunday and on one night in the alternate week. If the Mother tested positive to illicit drug use, time was to be suspended until she produced 3 consecutive negative results over 3 consecutive weeks. The orders provided for the parties to have equal shared parental responsibility.
In January 2009, the Father was advised the Mother had been admitted to hospital following excessive alcohol use. On 31 March 2009, the Father filed an application in this Court seeking orders for [X]’s time with the Mother to be supervised, and for Dr H, specialist Hepatologist, to prepare an expert report on the Mother’s condition and prognosis.
The matter first came before me on 13 May 2009. Dr H was appointed as a single expert to undertake an assessment of the Mother. Interim orders were made by consent, and without admissions, for [X]’s time with the Mother to be supervised. The Court noted that the Mother was attending a clinical psychologist, Ms T weekly, her psychiatrist Dr G every 2-3 weeks and Narcotics Anonymous meetings several times each week.
In July 2009, Dr H, Professor of Medicine at Sydney University, specialist in Gastroenterology and Hepatology, reported on the Mother whom he interviewed in May and July 2009.
By the time the matter next came before the Court on 3 August 2009, Dr H’s report had been released to the parties. The report indicated that the Mother was “participating in appropriate treatment” [2] and had a favourable prognosis for recovery from her addiction. The matter was adjourned for a period of 6 weeks to allow Dr H to be put on notice that he was required for cross examination regarding the contents of his report. The matter was listed for interim hearing on 18 September 2009.
[2] Page 4 of Dr H’s report dated 21 July 2009
On 18 September 2009, Dr H was not required for cross-examination, as the parties were in agreement that [X]’s time with the Mother should be unsupervised. The matter was listed for final hearing, a family report was ordered and trial directions made. The previous supervision Order was discharged. The matter was listed for final hearing on
14 September 2010.
On 3 September 2010, a report prepared by Family Consultant, Mr L[3] was released to the parties. Mr L recommended that [X] continue to live with the Father and spend substantial time with the Mother, 5 nights a fortnight, on an unsupervised basis.
[3] Exhibit 3
Parenting arrangements from 18 September 2009 to date
In accordance with interim orders made on 18 September 2009, until the first date of this hearing, [X] was spending time with the Mother from 3 p.m. Monday until 6.30p.m. Tuesday in one week, and from 6.30p.m. Friday until 6.30p.m. Monday in the other week and for half school holidays. [X]’s time with the Mother was conditional on the Mother abstaining from using alcohol or any non-prescription drug.
On 16 September 2010, at the conclusion of the hearing, as a result of the evidence as to the Mother’s illicit drug use, the Court ordered, pending further order, that [X]’s time with the Mother be supervised by either one of her parents, her neighbour Ms H or another person agreed between the parties.
Issues in dispute
The dispute concerns the amount of time [X] spends with the Mother and how that time is implemented. The Father believes [X] would benefit if the single overnight in the alternate week was stopped and that the alternate weekends be limited to after school Friday until Sunday evening. In his opinion this arrangement would provide [X] with a more settled routine, and minimise the risk of her exposure to the Mother’s drug use. The Mother seeks an order that [X] spend equal time with each party, or 5 days out of 14 as recommended by Mr L, made up of Friday to Monday in one week, and Monday to Wednesday in the other. The Mother says she is prepared to do all the driving and intends to find work to ensure [X]’s time with her is maximised.
The remaining issues for determination concern the length of time [X]’s time with the Mother should be supervised, the identity of the supervisors, the school [X] will attend in 2011 and thereafter, and the regime for the Mother’s drug testing. The Mother accepts that [X] should be supervised while in her care for a period of 6 months. She accepts that [X] should not have contact with her partner and that she not be permitted to take [X] to Narcotics Anonymous meetings as she has done in the past.
Legal principles
The principles governing this case are set out in Part VII of the Family Law Act 1975. Section 60CA provides that I must regard the best interests of [X] as the paramount consideration. To determine her best interests I must consider the primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3). Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, I must consider all the factors before making a determination. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I give these matters particularly careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture.
The Mother’s credit
This case is complicated by the Mother’s admitted dishonesty about her past illicit drug use. Given she has deliberately misled the Father, her medical advisors, the expert report writers, her legal representatives and the Court as to the extent of her drug and alcohol use, I cannot form an accurate picture of the Mother’s substance abuse history since separation, notwithstanding her own admissions prior to hearing. I have no basis on which to accept the Mother as a witness of truth.
I have regard to these uncontested facts:
a)
The [omitted] clinic notes for the Mother dated 27 January 2009 state that the Mother was admitted with an “alcohol/heroin relapse”. The Mother’s father rang the Father to tell him the Mother was in [clinic omitted] because of excessive alcohol consumption, without mentioning that she had used heroin. This advice was confirmed in the Father’s solicitors’ letter of
27 January 2009 to the Mother’s solicitors. There was no mention of the Mother having used heroin. In the correspondence between solicitors over the following weeks, there is no reference to the Mother using heroin in January 2009[4].
[4] Annexure N & FF of Mother’s affidavit sworn 5 May 2009
b)On 24 April 2009, the Mother instructed her solicitors to seek an opinion from Dr G as to her capacity to care for [X] unsupervised[5]. The letter states that the Mother lapsed on one occasion in January 2009 but has otherwise been abstinent from heroin since November 2007. The Mother gave false instructions as she now admits she was using heroin regularly during the first half of 2009.
[5] Exhibit 8
c)In April 2009, when on her own evidence the Mother was regularly consuming heroin, the Mother instructed her solicitors to advise the Father’s solicitors that she considered supervision in the school holidays to be unnecessary[6].
[6] Annexure UU of Mother’s affidavit sworn 5 May 2009
d)In her Affidavits sworn on 5 May 2009 and 28 July 2009, the Mother deposes to having taken heroin on one occasion in late January 2009 and otherwise not to have used heroin since November 2007. In her May 2009 affidavit, the Mother deposes to the Father insisting that her time with [X] be supervised which the Mother regarded as unreasonable. The Mother deposes to complying with all orders relating to drug testing, and to doing more than required under those orders. She deposes to the range of treatments in which she was involved[7]. Despite this range of treatments, including twice weekly drug testing, attendance at Narcotics Anonymous 3-5 times a week, visits to her psychiatrist every 2-3 weeks and weekly sessions with her psychologist, the Mother was using heroin on a regular basis during this period unbeknown to her treating practitioners, and undetected by the drug tests as a result of her deception.
[7] Paragraphs 137 to 143 of Mother’s affidavit sworn 5 May 2009
e)On 13 May 2009, the Mother had been using heroin regularly in the preceding months, yet she told the Court that she had used only once in January 2009, since November 2007.
f)In May and July 2009 Dr H was advised by the Mother that she had used heroin only once in January 2009, since November 2007.
g)When the matter came before the Court on 3 August 2009, the Mother sought an order that supervision of her time with [X] be lifted on the basis of her contention to the Court that she had only used heroin on one occasion, in January 2009, since November 2007[8].
[8] Page 5 of Transcript of 3 August 2009
h)On 18 September 2009, the Mother instructed her legal representatives to submit to the Court that she had only had one relapse since November 2007, in the full knowledge that was not the truth. The Mother’s deception about her heroin use during the period May until September 2009 to Dr H and to the Court, resulted in the Court making orders by consent, for [X]’s time with her Mother to be unsupervised.
i)In March 2010, the Mother gave a false history of her drug use to Dr B, consultant physician. She told Dr B that she was a previous IV drug user, but had been “clean for two years”[9].
[9] Exhibit 5
j)In her Affidavit sworn on 26 August 2010, the Mother deposes to having had another single event lapse in May 2009 when she consumed heroin. She says she told no-one but Dr [omitted] who prescribed her buprenorphine.
k)In August 2010 Mr L was advised by the Mother that she had used heroin once on two separate occasions since November 2007, in January 2009 and May 2009.
l)On 7 September 2010 the Mother’s solicitor delivered a letter to the Father’s solicitor[10] disclosing that the Mother had consumed heroin every 1-2 weeks for approximately 3 months in 2009, the last occasion in June 2009, “shortly before she recommenced taking buprenorphine”[11]. The letter states that the Mother purchased heroin shortly before using each time, for $80 on each occasion. The letter states that the Mother never used heroin when [X] was in her care, never took [X] with her to collect the heroin, and never used heroin on the day she collected [X] or the day before she collected [X]. At Page 2 the letter states:
[10] Exhibit 1
[11] Page 1 of Exhibit 1
We are instructed that our client did not disclose the relapse until the present time because she was terrified that she would be prevented from seeing [X]. Our client deeply regrets not disclosing the incident to your client and to the Court.
We are instructed that since June 2009 she has not consumed any illicit substance. We are instructed that our client has not consumed any alcohol since January 2009.
m)In a statement to the Court dated 13 September 2010[12], the Mother said she last used heroin in June 2009 after using approximately 12 times over a 14 week period, not more often than once a week.
[12] Exhibit 2
n)Ms K gave evidence as a friend of the Mother, whom she met at Narcotics Anonymous meetings. She offered her services as a supervisor. In cross-examination, Ms K said the Mother had told her that she used heroin frequently for the 12 month period before June 2009. This contradicts the sworn evidence the Mother gave to the Court during this hearing.
o)
The Mother says she sees Dr G, consultant psychiatrist, every 3-4 months for support. Dr G was not on affidavit but I gave leave to the Mother’s counsel to call him as a witness. Dr G told the Court that the Mother had not consulted him in relation to her use of heroin but rather for a second opinion about a previous diagnosis of bi-polar which he questioned. He prepared reports dated
6 December 2008 and 3 May 2009. In his report dated 3 May 2009, Dr G states that in his opinion the Mother “is fully aware of the significance and danger of drug use.”[13] He said he had not been aware of the Mother’s heroin use in the first half of 2009 but understood she had a “well controlled” drug problem. He recorded in his notes on 6 April 2009 that the Mother was not on drugs. I find that Dr G has minimal and incomplete knowledge of the Mother’s drug history.
p)
The Mother says she sees Ms T, psychologist, once every 6-8 weeks. She used to see her more regularly until mid-2009 but says she did not want to disclose her use of heroin to her, because the Father could subpoena the notes. The Mother did not tell
Ms T about her drug use in the first half of 2009. Ms T, who was not on affidavit, at the request of the Mother’s counsel, was given leave to appear by phone. She said that she understood the Mother had one drug relapse in 2009, and one in 2008. I find
Ms T has minimal and incomplete knowledge of the Mother’s drug history.
[13] Exhibit 8
In these proceedings, the Mother adduces no medical evidence of her current mental state, her progress in treatment, her risk of relapse or her prognosis. The Mother adduces no medical evidence in relation to the likely impact of her heroin use on her capacity to parent [X].
The Mother tells the Court that she is well supported by her family. She says that in 2006 her Mother wrote a cheque for $600,000 on her behalf to reimburse the Father’s business the funds the Mother had withdrawn for her heroin use. The mother chose not to adduce evidence from any members of her family who have observed what occurs in her household when [X] is with her and would have information about the pattern of the Mother’s past drug and alcohol use which may have been helpful to the Court. The Mother does not explain why her partner, her parents and her siblings, were not on affidavit in these proceedings.
The Father’s credit
The Father impressed me as a devoted Father who wants what is best for his daughter. He did not discover the extent of the Mother’s drug use until well into their marriage. He realised very early in [X]’s life that the Mother’s parenting capacity was impaired because of her heroin addiction. He presented as a Father who is exhausted by the ongoing struggle to balance [X]’s need to have a solid relationship with her Mother with his responsibility to ensure [X] is always safe, both physically and emotionally. I accept the Father as a frank and honest witness.
THE PRIMARY CONSIDERATIONS
The benefit to the child of having a meaningful relationship with both of the child’s parents
[X] enjoys a warm and loving relationship with each parent and each party acknowledges her need for a continuing meaningful relationship with each of them.
The Father says that [X]’s time with the Mother gives her a sense of self-worth, identity and security, and that it is important for [X]’s welfare that regular time with the Mother continues. He seeks to reduce [X]’s time with the Mother for reasons of [X]’s safety.
Mr L says that [X] needs “reliable consistent” time with the Mother. He says children form relationships from proximity and modelling, which is why in his opinion, 2-3 nights a fortnight is not enough, and he recommends [X] have as much exposure to the Mother as possible in a variety of situations. Mr L says supervision is appropriate if the Court finds the Mother is likely to relapse to drug use. I refer to this issue later in these Reasons.
I give [X]’s need to enjoy a rich and meaningful relationship with each parent significant weight in this case.
The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence
The parties have a difficult relationship and generally confine their communication to emails. The Father describes changeovers as tense and acknowledges his contribution on occasions to unpleasant exchanges between the parties. The Father does not trust the Mother as to her drug use and says he is therefore hyper-vigilant in his observations of her. The Father tells Mr L that the Mother appears to resent his wife and that although they have only crossed paths on rare occasions, there was an incident at the end of 2009 when the Mother verbally abused Ms L in [X]’s presence.
The parties agree that [X] is aware of the tension between the adults and rarely discusses the Mother when with the Father and vice versa. A clear example of her awareness occurred at the end of 2009, when the Mother unexpectedly attended the Information Session at [L] with her sister-in-law and niece. [X] was present with the Father and Ms L. On the Father’s version [X] became distressed when the Mother was insisting [X] leave her seat next to the Father to sit with her. The Father and Ms L depose to [X] being so distressed that they decided to leave the evening early to take her home. On the Mother’s version, [X] was upset because she wanted to sit with the Mother. On either version of events, it is evident that [X] suffers as a result of the parties’ acrimony.
The Mother tells Mr L that she is conscious of the adverse impact on [X] of the acrimony between the two sides, and would like to work with the Father to achieve a more harmonious relationship between the two households. The Mother is critical of the Father for failing to engage in therapy for this purpose at Unifam. The Father sees no point in engaging in co-parenting therapy with the Mother, while the Mother continues to lie to him about something as important as her drug and alcohol use.
I am in no doubt that [X] is adversely affected by the conflictual relationship between the parties, and I take this finding into account.
The Mother gave a long history of drug addiction to Dr H. According to his report[14], the Mother told Dr H that she started using cannabis when in Year 11 at school at aged 16. She says she started using ecstasy at aged 18, but claims her drug use was limited until 1997, when her first husband introduced her to heroin. She started smoking heroin at aged 30, and this became a daily habit from the age of 33 in 2001. She told Dr H she was smoking up to $1,000 worth of heroin per day and smoked most days from 2001 onward. She claims to have injected heroin only once when she intended to harm herself at the end of 2007 with a polydrug overdose. She has used other illicit drugs including crystal methamphetamines as late as September 2007. The Mother has had 9 admissions to detoxification units between 1998 and 2009, the majority of admissions between 2004 and 2007, and extensive outpatient treatment.. After discharge in 2007, she started on buprenorphine maintenance. She told Dr H she continued the buprenorphine treatment until January 2009, and relapsed 2 days later on only one occasion, when she also drank an excessive quantity of alcohol. She claimed not to have used heroin or alcohol since then.
Dr H reviewed her drug test results and noted that none showed morphine, nor any other illicit drugs for the 2 years prior to July 2009. The Mother told Dr H that she abused alcohol from October 2008 until January 2009. Although not a psychiatrist, Dr H found no current evidence of mental illness. Dr H did not make reference to the Mother’s diagnosis of Borderline Personality Disorder referred to in a letter from her psychologist, Ms T in May 2009, for which the Mother undertook 10-11 months of dialectical behaviour therapy in 2008[15].
Dr H concluded[16] that:
…the urine tests demonstrate a high level of compliance with the treatment programme and excellent control of illicit drug use.
[14] Dated 21 July 2009
[15] Exhibit 5 – Letter from Ms T to Dr L dated 5 May 2009
[16] Page 3 of Dr H’s report dated 21 July 2009
The Mother tells the Court that her addiction is now under control and she has a low probability of relapsing[17].
[17] Paragraph 7 of Exhibit 3
The Father believes the probability of the Mother relapsing is high. He tells Mr L that he has observed the Mother’s mood to fluctuate and he believes the Mother has minimised the extent of her addiction and has concealed relapses. He reports [X] telling him earlier in 2010 that the Mother “sleeps a lot.”[18] The Father’s wife deposes to the Mother appearance in November 2009: “her pupils were dilated and she seemed to have a very intense expression/demeanour. Her body movements were very jerky.” In February 2010, the Mother advised the Father “opiates” may be revealed in her drug test because she is being treated with Codalgin Forte after an emergency admission to hospital for stomach pain. The Mother also advised that she had been prescribed Panadeine Forte following a tooth extraction and Valium for back pain. The Father questions why the Mother seems to continually find reasons to take opiates and requires Valium[19]. The drug test results annexed to the Mother’s affidavit of August 2010 reveal use of Valium in test results of 1 and 7 October 2009, 26 February 2010, 4 and 8 March 2010.
[18] Paragraph 12 of Exhibit 3
[19] Annexure D of Mother’s affidavit sworn 28 August 2010
As already noted, there is no expert evidence before me as to the Mother’s current mental state or likelihood of relapse. Dr G refers to the Mother having been diagnosed at one point with bi-polar disorder, the accuracy of which he doubted. However, given the state of the evidence, I am unable to make a finding as to whether or not the Mother suffers from bi-polar disorder, or how such a diagnosis might impact on her parenting capacity. Ms T refers to[20] the Mother having a Borderline Personality Disorder in 2008 for which she undertook dialectical behavioural therapy, but this information does not appear to have been available to Dr H or to Mr L or to Dr G because none of them referred to it in their reports, and neither counsel raised it during the course of the hearing. The Father made a number of observations about the Mother in his affidavit material which may, had they been interpreted by a psychiatric expert, have thrown some light on the Mother’s mental state. These include the Mother’s erratic work history, her disputes with members of her family, her problem with bulimia, her attendance on an almost daily basis at either Overeaters Anonymous or Narcotics Anonymous in the early period of the marriage, her threats of suicide and serious suicide attempts, her withdrawals of sums of $1,000 amounts from a number of ATM’s, including those located in gambling establishments and her behaviour, regarded as inappropriate by staff, at [omitted] Child Care Centre on two occasions in March 2009[21]. On the evidence available, I am unable to form a view as to whether or not the Mother has a Borderline Personality Disorder, or any mental health condition, or whether such a condition(s) would impact on her capacity to parent [X].
[20] Exhibit 5
[21] Annexure S of Father’s affidavit affirmed 26 August 2010
The Father deposes to first becoming aware of the Mother’s heroin addiction in August 2004 when he met her Narcotics Anonymous sponsor. The Mother said at the time, “I have been using heroin heavily for the last eight months. I have a real problem.” The Mother was then admitted to a clinic for 6 weeks. In December 2004, the Mother discovered she was pregnant with [X] who was born 5 weeks prematurely in August 2005. The Father says that he later discovered that the Mother relapsed after bringing [X] home from hospital. The Father deposes to an incident in February 2006, when [X] was aged 7 months. He says that he arrived home to find the Mother asleep under the influence of heroin, with [X] alone in a play pen, soiled and dirty. The Mother was then admitted to hospital for 4-5 weeks. The Father later discovered that the Mother had drawn down $600,000 from various lines of credit for the business between April 2004 and June 2006. The Father says the Mother continued to use heroin and told him she had driven the car with [X] under the influence, and taken drugs when at home with [X]. The Father says that after separation, the Mother was erratic in her parenting due to her heroin use, disappearing for periods of time and showing little interest in the care of [X].
For reasons already given, I am unable to make findings about how often the Mother has been using illicit drugs since the parties separated, when she last used, or when she is likely to use again. Mr L tells the Court he has no expertise in drug and alcohol issues. I am unable to rely on Dr H’s opinion because it is based on inaccurate information about the Mother’s past drug use.
I am also unable to rely on Dr H’s evidence about the Mother’s addiction to alcohol, because, on two separate grounds, I am not satisfied the Mother gave Dr H accurate information. Firstly, the [omitted] Clinic notes[22] disclose that the Mother was drinking to excess from July 2008. She told Dr H she started drinking in October 2008. Secondly, and more significantly, I accept the Father’s evidence that the Mother’s brother, Mr C, rang him to request a lunch in July 2009 because “there are things I need to tell you about [Ms Carriel] and [X].” They met at [suburb omitted]. Mr C told the Father the Mother had been drinking a lot, including with neighbours, and her garbage bins were full of bottles. He also told him the Mother and his older brother opposed his Development Application to Council. When cross-examined, Mr C claimed that he did not recollect a discussion about the Mother’s use of alcohol at the lunch with the Father. However, he did not deny that the conversation occurred and agreed he had told the Father about the DA proposal. Mr C agreed he had not been prepared to go on affidavit for the Father because he did not want to create problems in his family, particularly as his father had been unwell. I find Mr C’s decision not to prepare an affidavit a possible reason for his decision to give the evidence he did about his conversation with the Father during that lunch. On the other hand, I am satisfied that the Father, who I found to be a credible witness able to give specific details of what Mr C told him over lunch and had no reason to fabricate the story.
[22] Exhibit 6
Since orders were made in relation to the Mother being drug tested in these proceedings, the Mother has presented for testing as ordered. She tested positive for opiates on 20 May and 22 May in 2009, and on
10 February 2010, with explanations, but otherwise has returned negative results. The Mother acknowledges that she has successfully masked her relapses by the careful timing of her drug tests.
In cross-examination, the Mother says that she accepts that [X] is at risk of physical and psychological harm, if she consumes alcohol to excess, or consumes any heroin when [X] is in her care. The Mother also states that [X] would not be emotionally safe if she consumed alcohol to excess, or used any illicit substance while [X] was not in her care. Neither party disputes that [X] will be at risk of harm in both the short and long term, if the Mother continues to abuse alcohol and/or illicit substances. The Mother says “I need to stay off [the drugs] to be the best mother I can be.” “I would like to think I won’t relapse.” The Mother claims she can now control the urge to use heroin and understands what triggers her vulnerability to use, though accepts she was unable to control the urge in the first half of 2009.
The difficult question for the Court is how to structure an arrangement that gives [X] the benefit of a strong continuing relationship with the Mother and protects [X] from the risk of harm resulting from the Mother’s addiction[23].I find there are two issues here: one is the Mother’s addiction and her capacity to manage that addiction and abstain from alcohol and drug use in the future; the other is the Mother’s willingness and/or capacity to be honest with the Father when she does relapse, so that she can play a responsible role in guaranteeing [X]’s emotional and physical safety when in her care.
[23] Akston & Boyle [2010] FamCAFC 56
The evidence discloses that the Mother’s regular attendance on a psychiatrist, a psychologist and at Narcotics Anonymous will not ensure [X]’s protection from exposure to the Mother’s substance abuse. She does not dispute that she was relying on these supports during the first half of 2009, when, on her evidence, she was consuming heroin regularly. Although Dr H says regular supervised urine tests should be conducted for a period of 2 years, the evidence discloses that drug testing by way of supervised urinalysis will not guarantee [X]’s protection. The Mother was undergoing regular drug testing in the first half of 2009, which did not disclose relapse, despite the Mother using regularly during that period. The Father seeks an order that the Mother undergo hair follicle testing. Exhibit 7 discloses evidence about hair follicle testing. A senior forensic toxicologist, Ms S from the Victorian Institute of Forensic Medicine says that one centimetre of hair represents one month of drug history, 30 cm of hair represents 30 months of history. At a starting cost of $450 + GST the drug testing covers the 5 drug classes of opiates, cannabis, cocaine, amphetamines and benzodiazepines. A pathology centre in Sydney would collect the hair and the hair would be sent to the Victorian Institute as the only laboratory in Australia conducting these tests. The results are provided 6-8 weeks from receipt of the hair.
As already noted, the evidence discloses no basis for a finding that the Mother does not have a high likelihood of relapse. I am not persuaded that regular supervised urinalysis, coupled with regular attendance with treating health professionals, will minimise the Mother’s risk of relapse or the risk to [X]’s safety from exposure to the Mother’s substance addiction. On this basis, I accept Mr L’s evidence that given these circumstances, [X] should be supervised when with the Mother.
RELEVANT ADDITIONAL CONSIDERATIONS
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) the Court thinks are relevant and the weight it should give to the child’s views
[X] is 5 years of age and therefore too young to have her views taken into account.
The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
Mr L observed [X] with the Father and then with the Father and Ms L. He observed:[24]
The observation session was characterised by physical contact between the child and the adults. It was clear that Mr Lendrum and his wife are significant adults in [X]’s life.
[24] Paragraph 28 of Exhibit 3
Mr L says about [X]’s relationship with the Mother that “[X] was completely relaxed with her mother. It was clear that a close relationship exists between them.”
Overall, Mr L observed no substantial difference in [X]’s behaviour when she was observed with either parent over two sessions. He says:[25]
[X] impressed as an emotionally secure child who has benefited from her parenting arrangements. It was apparent that she is closely attached to her father and step mother, and also attached to her mother. Given that she has been substantially cared for by Mr Lendrum since she was one year old, it may be that he is her primary attachment figure, however, it is understood that the father was initially helped to care for [X] by his mother, and then by Ms L. It was also clear that [X] is substantially attached to her mother, notwithstanding Ms Carriel’s somewhat segmented relationship with her during her early years.
[25] Paragraph 32 of Exhibit 3
The Father deposes to [X] enjoying a close relationship with his mother and with his wife’s mother and grandmother whom she sees regularly. I accept this evidence. I also accept that [X] is likely to enjoy a close relationship with her cousin [Y], and the Mother’s brother and sister-in-law who live in the same building.
I have regard to these findings.
The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The Father says he is committed to ensuring [X] has a relationship with the Mother and has always facilitated contact, even when the Mother was in treatment. The Father says he and Ms L encourage [X] to speak to the Mother on the phone, have encouraged her to make birthday cards to give the Mother on her birthday and never discuss the Mother in a negative way in front of [X]. The Father says he supports [X]’s relationship with the Mother because, despite his own disappointment and distress at the Mother’s conduct, he understands the importance of that relationship to [X].
The Mother believes the Father undermines [X]’s relationship with her. She gives examples of the Father putting [X] in a T-shirt for her day care photos which said “I love Daddy”, interrupting [X]’s phone calls with her, calling her names such as ‘junkie’ and allowing [X] to call
Ms L “mum”. The Mother alleges the Father has denied her contact with [X] at times, and has not informed her about events to which parents are invited at day care. She says he ignores her emails and does not inform her of parties to which [X] is invited. She says he did not tell her about his move to [suburb omitted] for many months and refuses to give her his address or land-line number. He allowed Ms L to take [X] to [N] School without informing the Mother.
The Father denies the majority of the Mother’s complaints. He acknowledges that for a few months [X] called Ms L “Mum” but she then reverted to “[first name omitted]”. He says since the Court intervened in September 2009, [X] has called him ‘[first name omitted]’, Ms L ‘[first name omitted]’ and the Mother “Mummy”. The Father says it is open to the Mother to inform herself of events at daycare as she receives their newsletters. He says the Mother collects [X] from daycare and can inform herself about parties for [X]. He believes he informs the Mother about anything of significance involving [X]. He says he gave no thought at all to what she wore to daycare on the day of the photos. In relation to his address, he says he does not want the Mother to know where he lives because when she has been “high” on substances in the past, she has arrived at his home uninvited and caused disruption and trauma.
Each party reports some difficulties for [X] at changeover, though each says [X] readily moves from one to the other. The Father says the Mother imposes unnecessary stress on [X] by prolonging her goodbyes. The Mother says the Father has made unpleasant remarks to her about her appearance, and accused her of being ‘high’ when she has not been using. Each acknowledges the need to ensure civility for [X]’s sake.
It is evident that the parties’ complaints about each other arise from their poor communication and lack of trust and respect for each other. This has developed over a number of years. I find that the Father is exhausted by the Mother’s repeated relapses, and her ongoing refusal to be honest with him about her true condition at any time. He does not trust her, and on the evidence, he has a strong basis for not trusting her. I find the Mother has demonstrated little insight into what it would be like to be in the Father’s position. She has failed to appreciate the responsibility he carries for protecting [X] from exposure to her drug and alcohol addiction, when he cannot trust her or those around her to tell him the truth. I find the Mother expects a lot of the Father and it is unreasonable for her to expect the situation to change for the better until she faces the truth of the seriousness of her condition. A clear example is her complaint about the Father’s decision not to give [X] unsupervised time with her after her relapse in January 2009, without some assurance it would not happen again. The Mother complains about the Father’s attitude in the period January to March 2009, when it is now clear he had every reason to be cautious[26]. I find no basis for criticism of the Father in this period. Once appropriate supervisors had been organised, [X] re-commenced regular time with the Mother immediately.
[26] Paragraph 11 of Mother’s affidavit sworn 16 August 2010
I have regard to these findings in reaching my decision.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of her parents, or any other child, or other person (including any grandparent or other relative of the child) with whom she has been living
There is no dispute that [X] is settled and secure living with the Father and Ms L and accustomed to spending overnight time with the Mother each week. Although there is no evidence as to the likely impact on [X] of spending less time with either parent, given the strength of her relationships with the three adults, I expect that any change may cause [X] some distress and would require a period of adjustment.
In light of the more significant issues which arise in this case, this is not a matter to which I give significant weight.
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
The major practical difficulty in this case is the requirement for [X] to be supervised while in the Mother’s care. The Mother acknowledges her need for supervision over a 6 month period. The Father seeks a much longer period of supervision.
The parties agree that the Mother’s parents are appropriate supervisors and that a person from an accredited agency would also be suitable. The Mother adduces evidence from a number of other potential supervisors.
a)Ms K says she used illicit drugs until she was 19 years of age but has been “clean” for 15 years. She met the Mother 2 years ago at Narcotics Anonymous and they have been friends for 6 months. Ms K deposes to working as a [omitted]. She works full time, and would be available to supervise during the day on alternate weekends. She says she regularly supervises children under orders of the Children’s Court. She has a partner and has 4 children of her own, aged 11, 10, 5 and 4, the youngest being a foster child. Ms K has not met [X] but has visited the Mother at her home on one occasion and has known the Mother’s boyfriend for a couple of years. Ms K understands the Mother was “using” approximately weekly for a 12 month period before June 2009 but has not “used” since.
Ms K would have known [X] was spending time with the Mother, unsupervised during the period she was using in the 12 months prior to June 2009. Ms K is a [omitted] worker. It is evident that she did not form the opinion that a child needs protection from a drug abusing parent, (whether or not the parent is using drugs when the child is not in that parent’s care) because she did not report [X] to the Department as a child at risk, nor did she contact the Father. I agree with the Father’s counsel’s submission that I could not be satisfied that she would be an appropriate supervisor.
b)Mr C is the Mother’s brother. He, his wife and child, live in the same unit block as the Mother, two floors up. He understands if he were to supervise, he would be responsible for [X]. Mr C says he works full-time and has a child one year older than [X]. The children get on well. He says he could collect [X] after school on a Friday and supervise her on weekends. He would sleep in the Mother’s apartment or the Mother and [X] could stay in his apartment. He would be unable to supervise from a Monday to Wednesday during the week. Mr C says he has not seen his sister drinking alcohol but assumes she has a drink from time to time.
Mr C would have known [X] all her life, and would know at least something of the Mother’s drug history. As already noted, I am satisfied he was sufficiently concerned about [X] in July 2009 to telephone the Father about the Mother’s heavy alcohol use. Mr C lives in the same unit block as the Mother and is available to supervise on weekends. The Mother says she is close to the brother, and I conclude the brother would therefore be keen to support [X] spending time with her. While I understand the Father’s reluctance to accept Mr C as a supervisor since he was not prepared to give truthful evidence in these proceedings about the Mother’s alcohol abuse, I am satisfied on balance, that Mr C would protect [X] if he were a supervisor. I am also satisfied that Mr C would make himself available whenever possible, and in a practical sense, would be in a position to supervise overnight periods.
c)Ms C is an 18 year old university student who lives with her mother in the units in which the Mother lives in [suburb omitted]. She has known the Mother for 11 months and sees her 4-5 times a week. She babysat [X] on one occasion. Ms C says that if she were supervising [X], she would stay in the Mother’s unit, or the Mother and [X] could stay in hers. Ms C says she is aware the Mother “had alcohol problems” and “got drunk” and that she has used heroin, but not since June 2009. Ms C has never seen the Mother affected by heroin or by alcohol. In addition to her commitments at university on Mondays and Wednesdays, Ms C works part-time on Thursday afternoons, Saturday afternoons, Tuesday afternoons and Friday afternoons and nannies for “[Y]” in the units on Tuesday evenings.
Given the level of responsibility required of the supervisors in this case, I am not satisfied Ms C is mature enough or sufficiently experienced to supervise [X] in the Mother’s care.
d)Ms H is Ms C’s mother. She is [occupation omitted]. Her usual hours of work are 8.30-9 a.m. until 6 p.m. on week days, though is “on call” for “big events”. She has known the Mother since October 2009. Ms H says she is fond of [X] and would like to help with supervision. She says she would be available on weekends and could take [X] to school on a Monday morning. She would be prepared to cancel her [omitted] commitment on a Sunday morning if she were supervising. She would call the Father if she had any concerns about the Mother. She sees the Mother on most days and has “only seen her being a very good mother.” Ms H is aware that the Mother has a history of heroin and alcohol use until June 2009.
I agree with the Father’s counsel that Ms H would be a capable and responsible supervisor.
I have regard to my findings about the supervisors proposed, and to the times they would be prepared to make themselves available, in reaching my decision. I am also satisfied that the supervisors have a huge task ahead of them.
The capacity of each of the child’s parents and any other person (including grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
No question arises as to the Father’s or Ms L’s capacity to parent. I am satisfied on their evidence that they provide [X] with a loving, secure and stimulating environment in which [X] has been given the opportunity to develop firm relationships with a number of extended family members and close friends, along with their children. The Father runs his own business, has flexibility as to his working hours, and spends as much time as possible at home with [X]. It is evident that when in the care of her Father and Ms L, [X] enjoys a range of social activities with children of her own age and feels part of a supportive extended family and friendship group. Ms L describes [X]’s routine and the many and varied child-focussed activities she and the Father arrange for [X]. I accept Ms L’s evidence that “[X] is thriving and developing well” in that household[27].
[27] Paragraph 58 of Ms L’s affidavit affirmed 26 August 2010
The Mother’s capacity to care for [X] is in issue. Without being in a position to come to a view about the Mother’s mental state or the Mother’s likelihood of relapse to substance abuse, I am unable to conclude that the Mother has the capacity to parent [X] appropriately. While I accept that [X] enjoys a wide range of activities with the Mother including cooking, playing with the dogs, reading stories, going to the beach and museums, riding bikes and playing outdoor games, and spending time with friends and family, the Father and Ms L raise these concerns:
a)Ms L says at times after spending time with the Mother[28] [X] appears to be quite exhausted, often falling asleep either on the way home or as soon as she gets home. Her hair appears unkempt as though it has not been brushed for a considerable period. Her nails are often cut down to the skin which has occasionally caused bleeding.
b)The Father and Ms L believe the Mother is smoking cigarettes around [X] as she regularly smells strongly of cigarette smoke. [X] tells them she spends a lot of her time at the Mother’s brother’s unit with her cousin [Y] while the Mother sleeps.
c)The Mother took [X] to a number of Narcotics Anonymous meetings.
[28] Paragraph 74 of Ms L’s affidavit affirmed 26 August 2010
I am satisfied that the Father and Ms L provide [X] with a secure routine in a well managed household. I find that they are both intelligent and capable and committed to [X]’s welfare and happiness. I am satisfied the Mother also wants the best for [X] and does provide her with a varied range of fun activities when they are together. However, I also accept the Father and Ms L’s evidence that she smokes around [X] and that she saw nothing wrong with taking [X] to Narcotics Anonymous meetings, which gives me concerns about the Mother’s capacity to always put [X]’s needs ahead of her own. The fundamental difficulty here is that I am unable on the evidence available, to make findings about the impact of the Mother’s current mental state on her ability to care for [X].
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
The parties agree that [X] is presently progressing well. She is described by the Father as “a kind natured child who is well coordinated and able to cope intellectually. She is socially competent and her preschool teachers say that she is doing well and is easy to manage.”[29] The Mother describes her as “the most loving, affectionate, smart and athletically coordinated child. She is able to see connections and to work things out.”
[29] Paragraph 13 of Exhibit 3
However, [X] at 5 years of age has faced a number of challenges. Her parents separated when she was very young, and she had a number of changes in her care arrangements in her early years. The Mother was in treatment for periods of weeks when [X]’s time with her was limited. These are matters to which I have regard.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I have nothing further to add under this factor.
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
[X] has been the subject of litigation over a long period. Unfortunately, the Court is unable to form a view as to the likelihood of the Mother using illicit substances in the future. I agree with the Father’s counsel that [X] needs certainty and stability in her arrangements over the long term.
The Mother’s counsel submits that the Court should make interim orders for a period of 6 months and then review the need for supervision. As I am not persuaded I will be in any better position in
6 months time, than I am now, to reach a final decision, I find it is in [X]’s best interests for the Court to make orders on a final basis.
The onus will remain with the Mother to satisfy the Father that [X] is safe in her care.
Any other fact or circumstance that the court thinks is relevant
An issue arises as to which school [X] should attend when she starts in Kindergarten at the end of January 2011. The Father seeks an order for sole responsibility for the choice of [X]’s school. The Father seeks an order that she attend [N] School, close to his home, and then [L] when she is offered a place. He says he has already enrolled [X] in [N] school, and informed the Mother of his decision by email on 22 August 2010, when he confirmed to the Mother that [X] has not been accepted at [L] in 2011[30]. The Father has waitlisted [X] for entry to [L] in Years 5 and 7. The Mother has signed the enrolment form for [L], though she says “I did not want to”. As earlier noted, the Mother also attended the information night at [L] with her sister-in-law and niece.
[30] Annexure QQQ of Mother’s affidavit sworn 26 August 2010
The Mother seeks an order that [X] attend [K] School, an Anglican private school in [suburb omitted], 5 minutes from the Mother’s home. The Mother says she attended [K] in Years 9-12, her mother attended the school and her niece [Y] is a year ahead of [X]. She says [X] has been accepted in 2011. Although the Father concedes that he was originally prepared to put [X]’s name down for [K], acknowledged in the parties’ 2007 Child Support Agreement[31], he no longer supports that option. The Father’s solicitors made the Father’s wishes clear in a letter to [K] dated 25 August 2008[32]. The Father says [K] is a considerable distance from his home, and travel from [suburb omitted] to [suburb omitted] each day would be onerous for [X]. The Father and his wife are Catholic, not Anglican, and the Father therefore wants [X] and any future children he and his wife have together, to be educated in a private Catholic school. The Father believes attendance at [K] would deny [X] the opportunity to make friends in her residential area.
[31] Annexure II of Mother’s affidavit sworn 5 May 2009
[32] Annexure JJJ of Mother’s affidavit sworn 5 May 2009
There is no evidence before me as to the particular qualities of each school or what each school might offer [X].
I have decided [X] will attend [N] School or a school selected by the Father in the vicinity of his home. Both [N] school and [L] are located [in] [suburb omitted] where [X] is living with the Father and where she will continue to spend the majority of her time. Geographically, I am satisfied it will be easier for [X] to make local friends, attend after school activities and participate in her local community, if she attends a school close to her Father’s home. It is onerous for a child so young to travel a long distance to and from school each day.
There are difficulties in the parties’ communication and they have been unable to reach agreement as to where [X] should go to school, before she has even started her first year of school education. I am therefore not satisfied that that they are likely to consult constructively about [X]’s schooling when decisions are required in the future.
It is destabilising for a child not to have certainty about where she is going to school, at any time in a child’s school life. I have decided [X] should have that certainty. I have therefore decided that the Father will have sole responsibility for the selection of [X]’s school though he will be required to involve the Mother in the decision making process.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child and to spend time with the child and to communicate with the child; and has facilitated, or failed to facilitate, the other parent participating in decisions about major long term issues in relation to the child and spending time with the child and communicating with the child; and has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child
I am satisfied that each party has the financial capacity to meet [X]’s needs. The Father has his own [omitted] business, and Ms L is a [occupation omitted]. The Mother is from a family of considerable means and has income from her family trust and investment property.
There is nothing further I wish to add under this factor.
PARENTAL RESPONSIBILITY
Parental responsibility relates to decision making and not to the amount of time a child will spend with each parent. Section 61DA requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Section 65DAC applies whenever a parenting order provides for shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
a)Abuse of the child or another child, who at the time, was a member of the parent’s family (or that other person’s family); or
b)Family violence.
There are no allegations of family violence in this case.
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
In the present case, the parties both seek an order for equal shared parental responsibility, except that the Father seeks an order for sole parental responsibility in relation to the choice of [X]’s school. I have concerns about the parties’ present capacity to consult constructively about major decisions concerning [X], but am hopeful their ability to communicate will improve over time, as the Mother becomes more reliable. I will make the order sought by both parties.
As I am required to do, I have considered the question of whether [X] should spend equal time, or substantial and significant time with each party. I have considered whether such an arrangement would be in the best interests of [X] and whether it is reasonably practicable.
Mr L did not support an equal time arrangement because of the hostility between the two households. In his view, parties need to communicate freely and without hostility for equal time arrangements to work for the child[33]. I agree with his opinion. In relation to the question of substantial and significant time, I give considerable weight to his view that [X] would benefit from 5 days a fortnight with the Mother, being divided into blocks of 3 nights on an alternate weekend and 2 nights in the other week. For reasons set out in the Conclusion which follows, I have decided such an arrangement would neither be practicable or in [X]’s best interests at this time.
[33] Paragraph 35 of Mr L’s report dated 3 September 2010
Conclusion
[X], aged 5, is the only child of parties who have lost all respect and trust for one another. This is most clearly evidenced by the voluminous correspondence between the parties’ solicitors about every grievance that has arisen since these proceedings were started early last year.
The evidence discloses a sad history. The Mother was addicted to non-prescription drugs well before she met the Father. She did not tell him the truth about her condition and the Father had no experience or understanding of drug addiction. The Father became aware of the Mother’s serious heroin addiction well into the marriage. [X] was born 12 months after his discovery, and from that time, I find that the Father struggled to stay on top of a situation which required him to support a drug addicted wife, manage the care of a very young baby, and to run a business in which millions of dollars were at stake. The Mother spent at least $600,000 from his business loan monies to fund her habit between 2004-2006. From the time of their separation when [X] was not yet 12 months of age, the Father has lived with serious concerns about [X]’s safety when in the care of the Mother. Over a period of only a few years, the Mother was admitted for drug rehabilitation on
9 different occasions as she suffered repeated relapses. At times the Mother has accepted her need for supervision and at others, she has not. Since these proceedings were initiated by the Father, the Mother has given false evidence to her medical practitioners, to the Father, to the Court appointed experts, and to the Court. She has managed to hide her relapses and to achieve orders for unsupervised contact with [X], as a result of her deception. Regular drug testing and regular therapy has not controlled her addiction. The Father has therefore become hyper-vigilant as to the Mother’s state of sobriety. Every time he has left [X] with the Mother unsupervised the Father has been apprehensive about [X]’s safety.The Mother explains her behaviour by telling the Father and the Court that she was scared [X] would be prevented from seeing her, but a week or so before hearing, claims she decided to tell all. As already noted, I do not accept the Mother had an epiphany and suddenly felt the need to tell the truth. I find it more probable that the Mother feared the Father’s legal representatives would discover from subpoenaed material what she eventually disclosed. I therefore do not know the extent of the Mother’s drug use or alcohol use and cannot accurately assess the level of risk I am subjecting [X] to, when she is in the Mother’s unsupervised care.
The Family Consultant says [X] needs substantial time with the Mother to maximise the benefits to her of that relationship. Mr L says however, that the Mother needs to be drug fee and capable of caring for [X] and interacting with the Father. He says the Mother “appeared to be determined to live a drug free life, to have utilised efficacious therapies and to have gained insights into her motivation and behaviour.” He concluded that the Mother’s addiction is a “diminishing risk for the child” and that [X] should therefore spend substantial time with the Mother, to the extent of five nights a fortnight. I find this evidence can carry minimal weight in the face of the Mother’s false evidence.
The Mother is a drug addict. I find she was using heroin until at least June 2009 and alcohol until at least July 2009. I have no basis to conclude that she did not continue using beyond then. A question arises as to whether the Mother may also suffer from Borderline Personality Disorder[34] or from Bipolar disorder. The Mother’s mental state at the time of hearing was not the subject of any expert opinion available to the Court.
[34] Exhibit 5
Both Dr G[35] and Dr H[36] predicted that the Mother will maintain her sobriety. Both were proven wrong. Even so, Dr H recommended that the Mother should undertake supervised urine tests for “at least the next 2 years” and otherwise continue in treatment with Dr G and Ms T. Dr H was not available to give evidence at the hearing to hear the Mother’s latest evidence, so his opinion, based on false information as to the Mother’s capacity and prognosis, can carry little weight. I have regard, however, to Dr H’s opinion that :
Opiate dependence, like other forms of addiction is associated with a high rate of relapse…[37]
[35] Exhibit 8
[36] Dr H’s Report dated 21 July 2009
[37] Page 4 of Dr H’s report dated 21 July 2009
Mr L believes that [X] is at risk of physical and emotional harm if the Mother relapses while [X] is in her care. He says that [X] should be supervised if the Court finds the Mother has a high risk of relapse. Given the evidence available, I make this finding.
The Mother’s case rests entirely on her own evidence. She provides no affidavit evidence from a medical practitioner or any other health professional. She provides no affidavit evidence from a member of her family, despite telling the court they are supportive of her. This is given some weight by evidence of the Mother’s mother reimbursing $600,000 to the Father to repay her daughter’s withdrawals from the couple’s resources to support her drug habit. She acknowledges that she has not disclosed the extent of her actual drug use to the Father or to the professionals she has consulted. She has given false evidence to the court on a number of occasions since these proceedings were commenced. As already noted, I also find she has not been truthful about the extent of her use of alcohol. The Mother says when she has used heroin in the first 6 months of 2009, she has used alone, in her home unit. Mr Gould submitted that there is no evidence that anyone has ever seen the Mother drink or use heroin in last 14 months. I find this of no assistance.
I find that [X] must be supervised at all times she is in the Mother’s care for the foreseeable future. The onus is on the Mother to satisfy the Father that she is unlikely to relapse before supervision can be lifted. While it will be onerous for the Mother, for the supervisors and for [X] to remain supervised whenever she is in the Mother’s care, I find there is no alternative available to ensure [X]’s safety.
I have given careful consideration as to the time [X] should spend with the Mother. I have regard to the regime she has become used to, being alternate weekends and one night in the other week and to [X]’s need for a continuing strong relationship with the Mother. I have regard to the Father’s counsel’s submission that I must be cautious about giving too much time, given the risk of the Mother relapsing and the risk of a supervisor being unavailable if there is too much demand on them, and [X]’s routine being again disrupted. I have regard to the practical problems of continuous supervision and to the artificiality of supervised time for [X], particularly as she gets older. I have decided on balance to reduce [X]’s time with the Mother by eliminating the night in the off-week. She will continue to spend time with the Mother on alternate weekends for 3 nights. I have increased [X]’s telephone time with the Mother, and retained the half holiday arrangement. I am satisfied this regime will be difficult under supervision, but manageable, given both Mr C and Ms H live in the same block of units as the Mother and can be available on weekends.
I am not satisfied drug testing by either urinalysis or hair follicle testing will guarantee exposure of illicit drug use, but I find it provides some measure of protection, particularly when it is undertaken on a random testing basis. I am satisfied the Father recognises [X]’s need for a relationship with the Mother and will not irresponsibly use his authority to order random drug testing to undermine that relationship. I find the Father only seeks to protect [X] from harm.
In relation to changeover, I have decided to minimise face to face contact between the parties. Changeover will occur at [X]’s daycare or school whenever possible. Otherwise, changeover will occur in a public location. The parties can vary those arrangements if they wish to, when they review the supervision arrangements.
Given the difficult circumstances of this case, I have not made orders for [X] to spend time with each party on each party’s birthday or on other birthdays for significant family members. It will always be open to the parties to work out those arrangements should they believe such an arrangement is best for [X]. Each party will ensure [X] telephones the other parent if she is not with that parent on a birthday, including Ms L.
I have decided not to require the Father to provide the Mother with his home address or landline number, but I have required the Father to keep the Mother informed of his mobile telephone number. This situation is not optimum for [X], so I would expect the Father to review his position in the future. [X] should not be required to keep her location a secret. In practice, it will not be possible.
I have given consideration to requiring the parties to attend a post-separation parenting programme to between understand the impact of their acrimonious relationship on [X]. Given the complexities of this matter, I have decided not to make such an order. This does not prevent either party taking advantage of such a programme. It would seem imperative that the Mother undertake some form of therapy to gain some understanding of the impact of her addiction on [X], but that will remain a matter for her.
Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in the best interests of [X].
I certify that the preceding ninety nine (99) paragraphs are a true copy of the reasons for judgment of Sexton FM
Date: 30 November 2010