Levy and Mollison

[2019] FamCA 866

FAMILY COURT OF AUSTRALIA

LEVY & MOLLISON [2019] FamCA 866

FAMILY LAW – REVIEW OF SENIOR REGISTRAR DECISION –  Where the child is three years old – Where the father seeks that time with the child be unsupervised – Where the father’s communication with the mother constituted family violence – Where this communication was, on occasion, in the presence of the child – Where the risk of the child being exposed to such family violence is mitigated by supervised time – Where the parties do not agree on a professional supervision service – Where the father has a history of illicit drug use – Application for unsupervised time dismissed – Orders for hair follicle and urinalysis testing continued.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Levy

RESPONDENT: Ms  Mollison

INDEPENDENT CHILDREN’S LAWYER: Claremont Legal

FILE NUMBER: SYC 492 of 2017

DATE DELIVERED: 22 November 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 20 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cummings SC

SOLICITOR FOR THE APPLICANT: Barkus Doolan

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Santo Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Fermanis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Claremont Legal

Orders

IT IS ORDERED

1. That the Amended Application of the father filed 11 October 2019 is dismissed.

2. That in the absence of agreement as to an appropriate supervision agency, the contact pursuant to the orders made on 4 September 2019, shall be supervised by C Group.

3. That the operation of Orders 12 and 13 made on 3 May 2019, requiring the father to have hair follicle testing and urinalysis testing are extended and continued pending further order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Levy & Mollison has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 492  of 2017

Mr Levy

Applicant

And

Ms Mollison

Respondent

REASONS FOR JUDGMENT

1. Mr Levy (“the father”) and Ms Mollison (“the mother”) are the parents of X who was born on … 2016.

2. The parents separated in December 2016 when X was only 10 months old. Since their separation, their relationship has been acrimonious and they have been engaged in litigation about the appropriate parenting arrangements for X since these proceedings commenced in January 2017.

3. The application presently for determination is the application of the father to review orders made by the Senior Registrar on 4 September 2019. Those orders had the effect of suspending unsupervised contact between the father and X and provided for supervised time for three hours each Saturday between 10am and 1pm.

4. The mother and the Independent Children’s Lawyer seek the continuation of supervision. The father seeks a reversion to the previous regime of unsupervised, overnight time.

5. The matter proceeds by way of hearing de novo. Because these are interim proceedings and the enquiry is limited, it is not possible to determine issues of fact.

6. In the present case, there are allegations by the mother that the father has been violent towards her, that he continues to intimidate her through his communications and that he used illegal drugs. On her behalf it is submitted that the father’s manifest hostility towards the mother must affect the child.

7. The father, for his part, denies the allegations of physical violence and expresses regret for the tone of his communications. On behalf of the father, Senior Counsel submitted that the Court could have confidence that such communications will not be repeated.

8. It is necessary to provide a brief history of the relationship.

9. The parents started living together in August 2015 and X was born in … 2016. It is the mother’s case that the father had been a user of various drugs since 2012 and that his drug use reached a crisis in August 2016. The mother alleges that the father has been physically violent towards her on a number of occasions before separation, to which reference is made later in these reasons.

10. The father denied all allegations of physical violence, abuse or aggression.

11. Documents produced on subpoena by B Hospital show that the father self-presented seeking assistance with “his increasing dependence on stimulants” on 9 August 2016. He reported a long history of recreational drug use which had worsened over the past three to four years and “now frequent ICE and cocaine” use. The notes record “today reports has been up all night using ICWE”. I assume this is a reference to ICE.

12. At that time, the mother supported the father’s treatment.

13. On 11 August 2016, the B Hospital notes record that the father started using “meth” in 2012, both smoking and injecting and that his secondary drug was GHB “1-6 mls daily last use 3 days ago” and “Using 0.5 – 1 g of meth daily last use 3 days ago”.

14. On 16 August 2016 the father reported that he was coming down from a three day “Ice binge”.

15. On 19 August 2016 the father reported to B Hospital that the mother had told him that, if he used ice again, he would have to leave the house. He reported being disappointed with the mother’s attitude.

16. The mother alleges that the father threw a vacuum cleaner at her in September 2016 when she was holding X.

17. On 6 September 2016 the father reported to B Hospital that he had used ice over the past weekend.

18. The mother alleges further acts of violence and threats of violence over the ensuing few months.

19. In October 2016 the mother started seeing a psychologist, Ms L.

20. On 5 October 2016 the father reported a “relapse” to B Hospital.

21. On 21 October 2016 the father presented at B Hospital after having smoked 0.5 points of “meth”. The father reported using sex workers while intoxicated.

22. The mother deposed that on about 2 November 2016 she and the father argued and the father roughly pulled X away from her. She went onto the balcony and the father locked her out saying “When you are ready to behave you can come back in”. X was upset and crying.

23. On 8 November 2016 the father reported to B Hospital that he had used CMA, a form of methamphetamine, daily for 13 days, his use increasing over the weekend while “partying”. The notes record “Last used CMA yesterday, had a line of cocaine this morning “to get myself going”. The notes record has “limited insight on the impact his substance use and mood has on partner”. He reported two big arguments in front of X but usually “she’s not in the room”.

24. The mother alleges that on November 2016 she found drugs in their apartment. On 26 or 27 November 2016 there was an argument and she was threatened by the father and told to leave.

25. On 2 December 2016 the father reported to B Hospital that he was “using every day this week”. The notes record “Partner suspects drug use again but doesn’t know he’s using again”.

26. The mother met with a domestic violence counsellor on 7 December 2016.

27. On 8 December 2016, the mother alleges that she again found drugs in the father’s possession.

28. On 9 December 2016 the father told B Hospital that he had been in Melbourne all week for work and was “still using methamphetamines daily” although he had cut down the amount he used and was not injecting.

29. On 12 December 2016 the father reported that he was still using methamphetamines daily. The counsellor discussed with the father the effect of his drug use on his partner and noted “he is aware [his] using does limit his patience and his tolerance towards his partner”.

30. On 14 December 2016, the mother left the home with X and went to a refuge where she remained until February 2017 when she left Sydney and went to Melbourne to be with her family. The police took out an interim Apprehended Domestic Violence order (“ADVO”) for the protection of the mother.

31. On 8 February 2017 the B Hospital notes record that the father had “relapsed over the weekend”.

32. On 20 February 2017 the father told B Hospital that he had not used any drugs since returning from holidays in January, which would appear not to accord with his earlier statement.

33. On 27 February 2017 the father told B Hospital that “he only used a few lines of cocaine on Saturday while at the pub”.

34. On 14 March 2017, the father told his counsellor at B Hospital that he had not used “stimulant” for the past six weeks. Again, this does not accord with his statement on 8 February 2017. The counsellor noted that the father had no intention to physically hurt the mother but that he “wants her to pay for the lies and especially the AVO. He presented as very vindictive and is motivated to make her pay for the lies”. The counsellor recorded “At the moment, [he] does not want to address his drug use”.

35. There are no further notes in evidence from B Hospital.

36. On 29 March 2017, orders were made requiring the mother to return with X to Sydney and putting in place a regime of supervised time for the father with X on two days each week, for three hours. Random urinalysis was ordered.

37. On 17 August 2017, the Local Court heard the ADVO proceedings and dismissed the application. In the course of cross-examination the mother conceded that she had called the father a “piece of shit” on occasions and promised not to do so again. Also in the course of cross-examination, the father told the Local Court that he had abused recreational drugs during the course of the relationship for about two months.

38. The mother alleges that the father’s behaviour towards her on changeovers was hostile and that his electronic communication with her was and remains offensive.

39. On 28 October 2017 the father told the mother that the clothes X was wearing were “scummy”. On 3 November 2017 the father asked the mother on changeover “Is she going to wear these shorts every day?” The mother sent the father an email asking that he refrain from raising “non urgent” matters at changeover. The father responded with an email of two and a half pages, disputing, inter alia, the mother’s assessment that his comments were derogatory.

40. The mother deposed that, at changeover on 1 December 2017, the father told her that he would be quitting his job so she would not be getting much child support. X was present.

41. The mother deposed that at changeover on 8 December 2017 the father said to X, “Come on X, let’s go get a drug test”.

42. The mother deposed that at changeover on 3 March 2018 she asked the father whether X was OK and he replied “Why would I want to talk to you?”

43. The mother deposed that at changeover on 23 March 2018 the father grabbed X from her roughly and X cried.

44. On 26 April 2018 the orders were varied to provide for X to spend time with the father from Friday morning until Saturday afternoon in the first week of each two week cycle and from Sunday morning until Monday morning in the second week. The orders for random urinalysis continued.

45. Between 27 October 2017 and 5 October 2018, the father was requested to have testing on 27 occasions. He complied on 18 occasions. The mother does not accept that all of the tests were completed under the specified circumstances or that those results are reliable.

46. The mother alleged that the father, on changeovers, appeared to have been using drugs. On 6 October 2018, a day on which X was in his care, the father tested positive for methamphetamine and amphetamine. The mother responded by requesting hair follicle testing and that the father’s contact with X be professionally supervised.

47. The father did not agree and the mother withheld X.

48. The father sent the mother a text on 24 October 2018 in which he stated, inter alia:

    Yes I have made a huge bad judgement [sic] decision. It’s the worst decision of my life.

49. In that text the father asked the mother to give him a chance to prove that he could be a good father and offered to have hair follicle testing for 12 months “whatever is needed”.

50. On 23 November 2018, the mother proposed that contact be reinstated once the father had returned a hair follicle test showing no drugs present. The father provided clear test results on 5 February 2019.

51. In a text to the mother on 7 December 2018, the father  wrote:

    ...I’ve engaged an author who is currently going through every email, txt message, photo, recorded phone calls, recording when I’ve picked her up, recorded FaceTimes and all court papers. I’m writing a book on you and what’s gone on. It will be launched after our finals at Court. I’m 100% serious. The company is so interested to write this book you have no idea my dear...

52. On 26 February 2019, the mother proposed that X spend time with the father for four hours each week unsupervised until 6 April 2019, increasing thereafter to eight hours each week. The proposal was conditional upon random urinalysis testing and hair follicle testing every three months. The father did not accept that proposal and suggested he spend time with X at her day care centre. The mother agreed and the father spent time with X at day care on 25 March 2019 and thereafter weekly.

53. The mother deposed that on 27 March 2019 the father said to X in a FaceTime call:

    X, you want to go because your mother lets you watch ABCKIDS after you talk to me. [Mother] do you do you set that up on purpose do ya? Ya fucken dog. I’m going to get you...

54. On 3 May 2019, orders were made reinstating unsupervised contact in accordance with the April 2018 orders.

55. The mother alleges that the father’s behaviour on changeover continued to be hostile and threatening.

56. The mother deposed that on 11 May 2019 the father said to her friend who was in the car at changeover “Touch my daughter and I’ll fucking kill you”. X said to the mother “Mummy, why is daddy talking like that?”

57. An email exchange between the parents on 11 June 2019 relating to a proposal to change a weekend visit to the following day to allow the mother and X to have a holiday in February 2020, ended with the father writing:

    I’m unable to agree to any changes to my visitation orders during Feb 2020.

    I expect to pick up my daughter as per usual that weekend and all weekends as per the orders.

    If you leave NSW and don’t deliver my daughter that weekend I will certainly file in court and do everything in my power to have you brought before the court no matter what it costs me.

    Stick to the orders... You can’t have your cake and eat it. WIN/WIN. Something you still have no idea about.

    Don’t ask again for a change and me to accept make up days. It won’t be an option if you are unable to use your brain.

    Good night.

58. On 2 July 2019 the father texted:

    Please note that I will not be calling our daughter until after the next time I see her... It’s all going in the book darling. Keep up ya good work.

59. The mother did not reply. Later on the same day the father texted:

    All my calls are recorded darling. Since day one. I need them for the book. HahAa. You can’t handle the fact I’m clean it eats you up inside darling. Well guess what I’m clean as a whistle have fun this weekend with ya family. KARMA is just 8 days away.

60. On the same day the father texted:

    You have never once won with me and never will Darling, You bully everyone in life including your parents. But not me babes. I’m never going away no matter what you do. See you in court soon darling. Try and write your notes correctly next time.

    Love X [sic] Levy’s Daddy

    mwa

61. On 30 July 2019, orders were made by consent, reinstating the overnight contact. The orders specified that changeover was to occur at McDonald’s at Suburb D. The mother deposed that while at Court on 30 July 2019 the father shouted “fuck you” at her. The father deposed that he said “fuck her”, not knowing the mother could hear.

62. On 2 August 2019 the father texted:

    Give your daughter all the kisses you want before you hand her over. Once she is in my arms your cuddles and kisses stop. You play to [sic] many games at change over that stop from tomorrow.

    Try and not talk to me tomorrow. If you have anything to say please put it in a note. I will do the same. I struggle looking at you never mind hearing your annoying voice.

63. On 4 August 2019 the father messaged the mother saying he would return X at Suburb F at 5pm. The mother replied that the orders specified changeovers at McDonald’s at Suburb D. The father responded:

    See you at [Suburb E] then ya fucken idiot. Be there at 5pm or I will be taking her up the coast tonight.

    You don’t tell me what to do anymore. Ya want ya daughter tonight you choose. [Suburb E] it [G] st 7Eleven.

    And remember don’t fucken look at me or talk to me you waste of space in life.

    It’s [G] st 5pm [Suburb] F I decide. If u are not there by 5.05pm she is coming up the coast with me for the night. You crossed the line 8 weeks ago ya selfish POS. Keep theE and show the court I don’t care anymore. U are a horrible mum that is a control freak. 5:05pm or I’m off and will drop her at day care tomorrow.

64. The mother deposed that “POS” stands for “Piece of Shit” which appears to be a term that each parent has used to describe the other.

65. The mother agreed to collect X at Suburb F.

66. The father messaged:

    I look forward to receiving a letter from your fat loud mouth Solicitor this week talking more shit. Get it through your brain that I don’t give a fuck what you say or do anymore. Take her again I don’t care. We just go to court again and again. I don’t pay for my court and Solicitor so we can go back all day long darling.

    You think I’m going to be nice to you after last time withholding X. Never will I be nice to you again. Shoe Fat [Ms H] this. I don’t care.

67. “[Ms H]” is the mother’s solicitor.

68. At 4.34 pm that day the father messaged:

    Your daughter has been crying for 45mins not wanting to go home to you.

    She tells me she’s scared she won’t see me again.

    You POS.

69. The father deposed that he filmed X’s distress on his phone.

70. The mother collected X at 5pm. She deposed that the father laughed as he put X on to the ground and she walked towards the mother. The mother she asked X how she was and X said “I’m sad because I didn’t want to come back to you I wanted to stay with my dad but he said mummy said NO”. X screamed the word “no”. Later that evening, the mother deposed, X grabbed her by her neck and said “I want to hurt you”.

71. At 5.15 on 4 August 2019 the father messaged the mother:

    Cops think your a fucken idiot haha. Had a great chat to them thanks. I knew they would be here I can read you like a children’s book.

72. At 10.44pm on 4 August 2019 the father messaged:

    Person of seniority. POS. Her dance shoes are mine now buy some new ones with your new low child support haha. If you thought you were coming to an end with this we haven’t even begun darling. I’m playing you like a game of chess.  Your next dumb move sweet [an emoticon of a broken heart]. As I said your last move 8 weeks ago will be your silliest move since you were unfortunately born with those wonderful toes...

73. There then followed comments about the mother’s skin.

74. That message concluded:

    Nite nite babes. Sleep... well. You pretty thing.

    PMSL.

75. PMSL stands for “Pissing Myself Laughing”.

76. The mother deposed:

    That night I could not sleep. I stayed up all night crying and shaking with fear.

    After receiving all the abusive and horrific text messages referred to above I felt highly distressed, anxious and sick in the stomach. I was unable to attend work on 5 August 2019.

77. On the morning of 5 August 2019 the mother’s solicitors requested that the father submit to urinalysis in accordance with the orders. At 9am the father sent in a message a screenshot of a message sent to an unknown recipient, stating:

    I bet you $100 the fucken looser mother fire a drug test to me tomorrow thinking I’m on drugs. The dick head doesn’t realise I just hate her and she is a shit mother that uses our child. Imagine having to live with that cunt in life. Lol

1. The screenshot was sent to the mother with a covering message stating:

   Told you I can read you like a children’s book. You are a joke.

2. On 6 August 2019 the father texted the mother:

   Without Prejudice

   Hi POS. Person of seniority. Due to work commitments I won’t be calling X tomorrow night.

   I shall see her on Sunday. If you don’t turn up with her on Sunday then it is what it is. We just go back to court.

   My care factor is now gone what the POS in charge of X does. It’s evident the only one hurting is X. She can read and see everything in the book. Or trilogy as my author likes to say now. Lol

   But you don’t care about what X wants even the court can see that. That’s why I win every time we turn up.

   Take A picture of this again, send it to [Ms H], she can file it and dribble her mouth off at Court. With a stutter like last week when she tried to defend your stupid actions. GOLD. Tell her F45 can help her loose weight, she’s looking rather tubby for her age and height.

   POS. The cops though you were crazy when I gave them all the facts. Haha you took too many drugs when you were young..., myself and others think you have COOKED your brain.

   Enjoy being a cunt in life. You are certainly an expert and it by now love.

   Oh and the court will be told, there is no offence to me hating you. That is not grounds for me not seeing my daughter.

   Call the cops they think your a fucken Nutter.

   Till next time darling. Keep the facial cream up, bend the toes at night.

   Sleep well POS.

   See or don’t see you Sunday I don’t care.

   PMSL with my mates.

3. It is not clear what action on the part of the mother, if any, provoked that text.

4. On 8 August 2019 the mother filed an application to suspend contact and for orders in relation to the father’s contact with her.

5. The mother relied on the communications on 4 and 5 August 2019 in her application for the father’s time with X to be supervised.

6. However, those communications are not the only ones of concern in relation to the father’s attitude towards the mother.

7. An analysis of the father’s communications with the mother from separation onwards suggests an escalation of his animosity towards her culminating in the exchanges in August 2019.

8. On behalf of the father, Senior Counsel conceded that the mother’s communications to the father have been appropriate and respectful.

9. The Senior Registrar made orders on 4 September 2019 requiring the father’s contact with X to be professionally supervised.

10. The father proposed an agency “L Group”. The mother did not agree. The mother proposed “J Group”. The father did not agree. There has been no supervised contact.

11. The father provided a hair follicle test conducted on 24 October 2019 which did not indicate the presence of drugs.

12. The father tendered a letter from his treating psychiatrist, Dr K, who had provided a report in April 2019. The father first saw Dr K on 23 October 2018. Dr K opined that the father did not suffer from any major psychiatric condition and that his drug use did not meet the criteria for a diagnosis of a substance abuse disorder. Dr K did not have access to the B Hospital notes. Between October 2018 and April 2019 the father saw Dr K on eight occasions. The mother’s allegations about the father’s behaviour during this period, when he was seeing Dr K, are set out earlier in these reasons. The father did not see Dr K between April and September 2019.

13. In his letter dated 19 November 2019, Dr K stated that he had since seen the father on two occasions, in September and October, and had discussed the text messages with him. The father’s explanation to Dr K that he recognized that his behaviour was inappropriate but that he had not intended it to be threatening will be one of the matters to be explored in the substantive hearing.

14. Dr K stated:

    He agreed to put in place measures to avoid a recurrence in the way of reapplying anger management techniques and making appointments in the future with myself to help with this.

CONSIDERATION

1. These are interim proceedings. The matter has now been allocated to a docket and the first day before a judge set in January 2020. There is no expert evidence in relation to the effect on the child of the hostility expressed by the father towards the mother, and no opportunity to test the competing allegations of the parties.

2. However, it was conceded by Senior Counsel for the father that the text messages upon which the mother relied constituted family violence.

3. The primary considerations set out in section 60CC of the Family Law Act 1975 (Cth) (“the Act”) require a balancing of the benefit to the child of having a meaningful relationship with both parents against the need to protect her from psychological harm caused by being exposed to family violence.

4. If the mother’s allegations are ultimately accepted, the father has embarked on a course of conduct intended to intimidate and punish her.

5. I do not accept the submission by Senior Counsel for the father that X is not affected by the father’s behaviour. On 4 August 2019 the father indicated in a message to the mother that X had been crying for 45 minutes leading up to change over back to the mother. Whilst I can make no finding about the reasons for the child’s distress, it is of concern that she should have been distressed for such a long period and that the father, engaged in messaging the mother, and filming her distress, was apparently unable to soothe X.

6. If the evidence of the mother about the effect on her of the father’s behaviour is accepted, then it is likely that X will have been affected by the mother’s distress.

7. It is not in dispute that X’s relationship with her father is meaningful and of benefit to her. However, the provisions of the Act specify only that the relationship be “meaningful”, in the sense of being important, significant and valuable, not that it be optimal.

8. The allegations made by the mother, and the father’s communications with her, raise the risk that the father is unable to contain his hostility towards the mother  in his dealings with X. If the mother’s evidence is accepted, there have already been instances where X was present and experienced the father’s hostility towards the mother. On his own evidence, he appears to have given priority to filming X’s distress and messaging the mother to comforting the child.

9. I accept that the father has not sent any offensive or threatening messages to the mother since 6 August 2019 but there remains a risk that he will not be able to contain his hostility on changeover and that he will not be able to restrain himself from making comments to X about her mother.

10. Those risks cannot be addressed by supervised changeovers.

11. Supervision by a professional agency will protect X from the father’s attitude towards the mother and provide a record for the substantive hearing of his interaction with her.

12. The orders will provide for supervised contact on one day of each weekend for three hours and a continuation of the drug testing regime that is already in place pursuant to Orders 12 and 13 made on 3 May 2019. To the extent necessary, the operation of those orders will be extended pending further order.

13. The father deposed, in his affidavit sworn 15 November 2019, that he is unable to afford to pay for private supervision. Although that evidence has not been tested, and I note that Senior Counsel appeared for the father, it is to be hoped that he will be able to afford supervision for three hours a week.

14. That time is sufficient to maintain a meaningful relationship between the father and X until such time as the substantive matter can be heard. 

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 22 November 2019.

Associate: 

Date:  22 November 2019