Lincoln and Boland

FEDERAL CIRCUIT COURT OF AUSTRALIA

LINCOLN & BOLAND

[2018] FCCA 609

Catchwords:
FAMILY LAW – Parenting – issue in dispute the time a child aged 10 should spend with his mother – where the parties older child aged 12 does not want to spend time with the mother and where the mother accepts that this situation is irreversible – where the younger child is not resistant to spending time with his mother but has expressed a wish for the time to be supervised - mother proposing that she spend supervised time with the younger child for two hours per fortnight for the next six months and thereafter spend time with him for two hours per fortnight unsupervised – where there are concerns about the mother’s drug use, mental health and partner – where the child would be at unacceptable risk of harm if he spent unsupervised time with the mother – where there is no sign of anything changing for the mother – where there is no benefit to the child in the court making an order for indefinite supervised time – order made for both children to spend time with the mother as agreed between the parties with the father’s determination about whether time occurs to be final.

Legislation:

Family Law Act 1975, ss.60CC, 61DA

Cases cited:

Mazorski & Albright (2008) 37 FamLR 518

Applicant:

MS LINCOLN

Respondent:

MR BOLAND

File Number:

PAC 2985 of 2010

Judgment of:

Judge Terry

Hearing dates:

5 & 6 March 2018

Date of Last Submission:

6 March 2018

Delivered at:

Newcastle

Delivered on:

6 April 2018

REPRESENTATION

Counsel for the Applicant:

Mr Rugendyke

Solicitors for the Applicant:

Rowlandson & Co Solicitors

Counsel for the Respondent:

Mr Davies

Solicitors for the Respondent:

King Legal Pty Ltd

Counsel for the Independent Children's Lawyer:

Mr Murray

Solicitors for the Independent Children's Lawyer:

Coast Law

ORDERS

All previous parenting orders concerning [X] born (omitted) 2005 and [Y] born (omitted) 2007 (“the children”) are discharged.
The father shall have sole parental responsibility for the children.
The children shall live with the father.
The children shall spend time with the mother as agreed in writing between the mother and the father noting however that the father’s decision about whether time occurs shall be final and the father may require the time to be supervised.
The mother shall have telephone communication with [Y] at times agreed between the mother and the father but failing agreement each Sunday with the mother to place the calls between 6.00pm and 6.30pm and the father to ensure that [Y] is available to receive the calls.
The mother is at liberty to send letters, cards and gifts to the children and the father shall pass the letters, cards and gifts to the children unopened.
The mother may obtain from the children’s schools copies of school reports, order forms for school photographs, newsletters and other information routinely provided to parents but MAY NOT attend events at the children’s schools normally attended by parents without the written consent of the father first having been obtained.
Pursuant to s.68B of the Family Law Act the mother is restrained and an injunction is granted restraining her from approaching the children or attending at extra-curricular activities without the consent in writing of the father first having been obtained.
The father shall notify the mother as soon as reasonably practicable if the children or either of them is the subject of a medical emergency or an accident requiring attendance at hospital or is diagnosed as suffering from a serious illness.
Each parent is restrained and an injunction is granted restraining them from denigrating the other party, the other parties’ partner or any member of the other parties’ family to or in the presence or hearing of the children.
The mother is restrained and an injunction is granted restraining her from permitting or facilitating any contact or communication between the children or either of them and Mr D.
The parties shall keep each other advised of their residential address, telephone number and an email address and shall advice the other party of any change to those details within 7 days of the change occurring.
The father may obtain passports for the children and travel internationally with the children notwithstanding that the consent of the mother has not been obtained.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

PAC 2985 of 2010

MS LINCOLN

Applicant

And

MR BOLAND

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern parenting arrangements for [X] 12 & [Y] 10.
The parents separated 2007 when [X] was less than two and [Y] not yet born. Between 2007 and late 2013 the children lived with the mother and spent substantial time with the father. However in September 2013 the father withheld the children from the mother and they have spent very limited time with her since then.
They spent no time with her between late 2013 and early 2016, supervised time with her between February 2016 and February 2017 and have spent no time with her since February 2017. [Y] currently has telephone communication with the mother but [X] refuses to do so.
When the mother commenced proceedings in September 2015 her application was for week about shared care. When the trial began she was no longer seeking any fixed orders about [X] and the order she was seeking about [Y] was that he spend unsupervised time with her on alternate weekends and during school holidays.
The mother proposed that [Y] spend time with her on three consecutive Saturdays from 10.00am to 4.00pm, then on four alternate weekends from 10.00am to 4.00pm on Saturday and Sunday and then each alternate weekend from 10.00am on Saturday to 4.00pm on Sunday and for half of the school holidays.
The mother’s case was that she did not have a drug problem or concerning mental health issues as the father alleged. She maintained that the father had pushed her out of the children’s lives in 2013 using as an excuse his invalid beliefs about these issues and that over time he had alienated [X] from her. She conceded that the situation with [X] was now irretrievable but said that this was not the case with [Y] and that there was no reason why he should not be spending regular unsupervised weekend and holiday time with her.
By the end of the trial it was apparent that the mother would not be able to maintain her case that it was the father’s fault rather than hers that she had ceased to be a meaningful part of the children’s lives in late 2013. It was clear that she had been using drugs and might still be doing so, and it must have been apparent to her legal team that the mother’s failure to present a frank and open case in which she addressed the issues of her drug use, the status of her mental health and the nature of her relationship with her partner Mr D was likely to cause the court to be very cautious about making orders for [Y] to spend unsupervised time with her.
The mother’s counsel informed the court toward the end of the trial that the orders the mother now sought were that [Y] spend time with her for two hours per fortnight supervised by Big Brown House for six months and thereafter for two hours per fortnight unsupervised and that she be able to attend school events and extra-curricular activities. She proposed that her telephone communication with [Y] continue.
The father sought an order that both children spend time with the mother as agreed between the father and the mother. He agreed to the mother continuing to have telephone communication with [Y] but opposed an order that the mother be able to attend school events and extra-curricular activities. He also sought an order which would allow him to obtain passports for the children so that he could take them on holidays.
The Independent Children’s Lawyer supported an order that both children spend time with the mother as agreed between the parties. She proposed that orders be made for telephone communication between the mother and [Y] and for the mother to be able to send the children letters, cards and gifts and obtain copies of school reports and other information from the children’s schools.

The evidence

The mother relied on her affidavit filed on 22 February 2018.
The father relied on his affidavit and the affidavit of his wife Ms M filed on 22 February 2018.
A family report was prepared in November 2016 by Ms D, a Regulation 7 family consultant.
The mother, father and Ms D were cross-examined. Mrs Boland was not required.
I have considerable concerns about the mother’s credit as a witness. It frequently transpired that the evidence in her affidavit was not accurate.
There was an issue during the proceedings about the mother’s compliance with the drug test requests made by the Independent Children’s Lawyer. She must have realised that this was likely to be a problem for her case and in her trial affidavit filed on 22 February 2018 she said as follows:
At the time of deposing this Affidavit I have ordered and paid for another hair follicle test. I attended upon Dr N on 19 February 2018 to complete the test. I will provide the other parties and the Court, with a copy of the results when they are available.[1]
[1] Mother’s affidavit paragraph 76
At the commencement of the hearing I inquired about whether the results of this test were available. The mother’s solicitor said that they were not to hand and I stood the matter down so that she could make some inquiries about when they would be available. When the court reconvened I was informed that the mother had not in fact paid for the test although she still maintained that her doctor had taken a hair sample. I was told that she had not paid for the test because she had been informed that it would take 30 days to get the results.
Another conflict between the evidence in the mother’s affidavit and what emerged at trial was in respect of the hair follicle test the mother did in June 2017. The test was positive for methamphetamine (ice) and cannabis. In her trial affidavit the mother explained this as follows:
I took marijuana and methyl amphetamine the day after Mother’s Day 2017 when I was overwhelmed by the feeling of hopelessness at not being able to see the children. My mother being diagnosed with terminal illness told me that she wanted to see the children before she died. My neighbour saw me distressed whilst I was in the garden doing some gardening and gave me the drugs.[2]
[2] Mother’s affidavit paragraph 68
In cross-examination the mother said that the neighbour only offered her a cannabis cigarette. She denied that she had knowingly used ice and could not explain how it got into her system. She embarked on a long story about how she had been drinking port for an hour before the neighbour saw her crying. She said that she had a bottle of port in her hand when the neighbour saw her, rather undermining her claim that she was outside doing gardening. She agreed with the father’s counsel that given that Mother’s Day was on 14 May 2017, if she consumed the drugs the day after Mother’s Day she had done so five days after the court made the hair follicle testing order.
There were other occasions when the mother’s evidence in cross-examination or the information in other documents about what she had said did not match the evidence in her trial affidavit.
The mother was not a witness of credit to such an extent that even when there is nothing to contradict her evidence I cannot lightly accept that she is telling me the truth.
It is a huge problem for the mother was that she ran a minimalist case. She admitted that she had used drugs on four occasions between 2015 and 2018, being occasions immediately prior to her returning a positive drug test results, and it seemed to be her case that the court should accept that this was the extent of her drug use and should not use against her the fact that she failed to do a number of tests upon request and that some of the specimens she provided had dilute creatinine, on the basis that her explanations for not doing the tests might be true and her creatinine levels might be naturally low. It was essentially her case that unless something could be proved against her it could not be used against her.
This might be a valid approach in a criminal case where the Crown has to prove its case beyond a reasonable doubt; it is never a valid approach in a parenting case.
Another problem for the mother is that she failed to call Mr D who has lived with her since 2013 and with whom she said that she had a “deep friendship” to give evidence. The father and the family report writer both raised concerns about Mr D and the mother’s failure to call him is a significant problem for her case.
Finally the mother failed to call any evidence about the current state of her mental health. She said that the only counselling she had done recently was done anonymously online.
The mother’s lack of credit as a witness has significant implications for her case.
I do not have concerns about the father’s credit; I do not consider that the content of paragraph 66 of the Family Report raises a concern about his credit. The father was on occasion refreshingly honest. When he was asked if he turned up drunk to see [Y] after [Y] was born his answer was a simple “yes”.
However the father’s case was poorly presented. His trial affidavit was by and large a combination of updating material (in circumstances where his earlier affidavits were not and were never going to be before me) and responses to allegations made by the mother in her earlier affidavits which were also not before me. This has made my task of trying to piece together the history of the matter challenging and there are gaps I cannot fill. Information in the case outline document prepared by his solicitor is not evidence.

Background

The mother is 44 and the father 38. They commenced cohabitation in 2004 and married on (omitted) 2006. They have two children, [X] born on (omitted) 2005 and [Y] born on (omitted) 2007.
The parties separated in May 2007 when [X] was about 21 months old and [Y] as yet unborn.
Between separation and 2013 the mother was the children’s primary carer. However the father always spent time with them and the parties attended mediation on more than one occasion to discuss the issue of the father’s time. In 2008 they agreed that the children would spend two nights a week with the father and from 2012 when [X] started school it became five nights a fortnight.
By 2013 both parties were both living on the (omitted) and the children were going to school on the (omitted).
In June 2013 the mother began spending a great deal of time in Sydney, allegedly supporting a friend with a sick baby, and the children began spending more and more time with the father.
In or about (omitted) 2013 the mother commenced a relationship with Mr D. This troubled the father, as Mr D had been in prison from 2007 to 2013 for being knowingly involved in the supply of drugs. The mother had used drugs in the past and as time went by the father formed the view that she was again using drugs. He also alleged that it became apparent to him that the mother was neglecting the children and was not properly feeding them and ensuring that they were clean and had clean clothes.
In August 2013 the mother unexpectedly collected the children from school and spent two days with them in a caravan park which caused conflict between the parents.
In September 2013 the father through his solicitor told the mother that he intended to withhold the children from her until she produced three clean drug tests. The mother did only one of the tests although the father paid for her to do three and it would appear that the children spent no time with her after September 2013.
On 24 December 2013 the father filed an application seeking orders that the children live with him and spend time with the mother as agreed between the parties.
In January 2014 there was an incident at the father’s home. The mother came to the home. The paternal grandmother formed the view that the mother was trying to remove the children by luring them to the car by telling them that there was a tub of teddy bears in her car. The mother denied that it was her intention to take the children and said that she simply wanted to deliver the teddy bears to them.
The incident degenerated into the mother threatening the grandmother. The father applied for an ADVO and on 13 March 2014 an ADVO was made for the protection of him, his mother Ms J, his wife Ms M and the children.
The mother was served with the father’s documents but did not engage with the proceedings in this court. She did not file a response or attend court and on 9 April 2014, final orders were made in her absence which provided for the father to have sole parental responsibility and for the children to live with the father and spend time with the mother as agreed between the parents in writing.
Around the time of these orders being made the mother relocated to Queensland with Mr D. She said that she did so to care for her mother and also for her step-father who had been diagnosed with cancer.
The mother made some requests to see the children after the 2014 orders were made but the father would not agree to her proposals.
The mother’s step-father died in (omitted) 2015 and following his death the mother returned to NSW. On 17 September 2015, after not having seen the children for nearly two years, she filed an application in the Federal Circuit Court seeking to have the 2014 orders discharged and seeking an order that the children live in a week about arrangement.
On 16 December 2015 interim orders were made which provided for the mother to spend time with the children for two hours per fortnight supervised at (omitted) Contact Centre and that until such time as a place became available to spend time with the children for two hours per fortnight supervised by Big Brown House, a private accredited supervision service. An order was also made for the mother to have telephone communication with the children.
The children spent time with the mother supervised by Big Brown House from January 2016 to April 2016 and at (omitted) Contact Centre from April 2016 to February 2017.
[X] was frequently extremely distressed prior to the visits and very quiet when the father collected her at the end. On one occasion she was so distressed that the father had to take her away with him and on another it took 30 minutes for the supervisor to calm her down. However the father always complied with the orders and took the children to the visits and [Y] did not exhibit the same level of distress.
On 10 June 2016 an order was made for the preparation of a Family Report.
The family report writer was faced with a situation where the father was making allegations about drug use by the mother but where there was limited evidence to support a conclusion that the mother had a drug problem. She tended to the view that the problem in the matter was that the father was aligning the children and unreasonably resisting them having a relationship with the mother.
The family report writer recommended that an interim order be made for the children to spend unsupervised time with the mother for half a day each fortnight for three months progressing to a full day a fortnight for three months.
Mr D attended the interviews and the family report writer was concerned about Mr D’s aggressive demeanour and about some things the children said about him and recommended that the mother ensure that the children were not brought into contact with Mr D for the time being.
She recommended that Mr D do some drug tests and engage in therapy to address his assessed aggression and intimidatory style of relating to others and that if at the end of the children spending six months of time with the mother Mr D had produced clean drug tests and engaged in therapy, that he commence spending half of the full day the children were spending with the mother with the children.

She recommended that the father and [X] have therapy to address separate issues which concerned her (in the father’s case his assessed aligning of the children to reject the mother) and that an updated report be prepared three months after the children were re-introduced to Mr D.
On 8 December 2016, following the release of the report, consent orders were made which provided for the children to continue to have supervised time with the mother until 11 March 2017. Thereafter the mother was to have two unsupervised visits of two hours in March and two unsupervised visits of three hours in April followed by three hours each alternate Sunday commencing on 7 May 2017 and then 8 hours each alternate Saturday commencing on 6 August 2017.
The mother was restrained from bringing the children into contact with Mr D.
Order 8 of the orders provided however that the progression to unsupervised time was conditional upon the mother doing random drug tests within 24 hours of being requested by the Independent Children’s Lawyer to do so with such requests to be made no more than once per month and with the results being free of illicit substances
Unsupervised time never commenced because the mother failed to satisfy the drug testing requirements.
The mother was requested to do a drug test on 8 December 2016 but failed to do so. She offered no explanation for this in her trial affidavit. She did a test in January 2017 and the result was clear but the result of the test she did on 13 February 2017 was clear but with sample integrity issues (it had dilute creatinine).
The result for the test the mother did on 7 March was clear.
The mother voluntarily did tests on 27 March 2017, 10 April 2017 and 18 April 2017. The first two results were clear but the last while clear had sample integrity issues (dilute creatinine).
On 9 May 2017 an order was made for the mother to submit to urinalysis within 24 hours and to do a hair follicle test by 16 June 2017.
The mother did the urinalysis within 24 hours and it was positive for cannabis.
A further urinalysis test done on 23 June 2017, which was clear but the hair follicle test (which the mother submitted to on 28 June 2017) was positive for methyl amphetamine and cannabis.
On 10 August 2017 the matter was listed for trial in March 2018.
On 25 July 2017, 14 October 2017 and 1 December 2017 the mother did urinalysis which produced clean results (save for the 13 October 2017 sample which contained Oxazepam but no issue was made about this at the trial) but the sample she provided on 5 September 2017 had sample integrity issues (dilute creatinine) and the mother failed to do tests requested on 18 November 2017, 3 January 2018 and 1 February 2018.
The orders made on 8 December 2016 did not provide a fall-back position for what was to happen if the mother failed to satisfy the drug testing orders which were to trigger a move to unsupervised time and the mother had not seen the children since February 2017.
The mother has been having telephone communication with the children. [Y] responds well to that but [X] does not take part. The mother also endeavours to find out the children’s wishes so she can purchase gifts for them but [X] also does not respond to that.

The parties current circumstances

The mother is living in a one bedroom unit on the (omitted) with Mr D, the maternal grandmother and Mr D’s grandson [A] which she said was a family placement sanctioned by the Western Australian child welfare authority. She said that she and Mr D shared a bedroom, [A] slept on a single bed and the maternal grandmother slept on the couch.
At trial the mother said that the maternal grandmother was not always there as she spent months at a time in (omitted) with another family member. She did not mention this in her affidavit.
The mother said that she had applied for a three bedroom house through the Department of Housing and expected to be allocated a house shortly. She provided no evidence of having made that application which is a problem given her lack of credit but I accept that she might have made it; it would be logical given her circumstances.
In the mother’s affidavit she said that once she was allocated a house she intended to live in it with the maternal grandmother and [A] and that Mr D would be moving into his parents’ home in (omitted).[3]
[3] Mother’s affidavit paragraph 17
In yet another example of contradictory evidence, the mother said during cross-examination that Mr D would in fact be living part of the time in the new home and part of the time with his parents. She was unable to explain why he would not be living with her all the time once the new home was obtained.
The mother is in receipt of Centrelink benefits. She is a carer for her mother. Whether she receives Centrelink benefits for [A] or whether Mr D does is unknown to me.
The father lives in (omitted) with the children, Ms M (whom he married on (omitted) 2011) and their two children, [B] born on (omitted) 2010 (7) and [C] born on (omitted) 2012 (5).
The father previously managed a (business omitted) owned by his parents but they have sold the (business omitted) and he is currently working as a (occupation omitted).
[X] commenced high school this year at (omitted) School. She does (hobby omitted). [Y] is in Year 5 at (omitted) School and plays (hobby omitted). [B] and [C] also attend this school.

The children’s best interests

Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and s. 60CC (2) and (3) of the Family Law Act 1975 contain the matters to which I must have regard in order to determine their best interests.
The primary considerations in s. 60CC(2) are:
a) the benefit to the children of having a meaningful relationship with both of the children's parents; and
b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
S.60CC (2A) provides that in applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2) (b).
The additional considerations in s. 60CC (3) include the children’s views, the nature of their relationship with each of their parents, the capacity of each parent to provide for the needs of the children and whether there has been family violence.
Sometimes it is necessary to make findings about the s. 60CC (3) matters to inform considerations of the s. 60CC (2) matters. This is such a case and I intend to start by considering the matters in s. 60CC (3).
The first of the s. 60CC (3) matters is any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's views.
The family report writer said as follows about [X]’s views in 2016:
In interview, when asked her views about future parenting arrangements, [X] was clear to state she wished to remain living with the father. She said she was not sure that she would feel safe having unsupervised time with the mother but could not identify what the risk to her might be. [X] was clear to state she would feel more anxious if Mr D attended the unsupervised time but again could not identify what risk he may pose to her.[4]
[4] Family Report paragraph 91
[X] did not express total opposition to seeing the mother when she spoke to the report writer in 2016. In the main she attended the supervised visits between February 2016 and February 2017 and notwithstanding that there were some issues with this time, the father agreed that both would children would commence spending unsupervised time with the mother in March 2017 if she had complied with drug testing orders.
However she never did and Counsel for the Independent Children’s Lawyer informed the court orally and in his case outline document that [X] now did not wish to spend any time with or communicate with her mother or receive letters cards or gifts from her.
It is clear from the family report that the report writer was of view that the father had aligned the children and was unreasonably resisting them spending time with their mother. It was her opinion that the children should be spending regular unsupervised time with the mother and by implication, it was her opinion that [X]’s expressed fears and reluctance about spending time with the mother should not be pandered to.
However as a result of the evidence I heard at trial, I do not accept that the father ever formed a plan to wrest the children from the mother. Between 2007 and 2013, the children lived primarily with her and the father was content to spend time with them. In 2012 the father’s time with the children increased to six and then seven nights a fortnight but it was the mother who instigated increases in the time.
In 2013 the mother formed a relationship with Mr D. She also, for reasons she asserted were valid and were connected with supporting a sick friend, began to leave the children more and more with the father.
The father formed the view that the mother was using ICE. From his perspective this was not an unreasonable suspicion; the mother had historically used drugs and he considered that aspects of her presentation supported his view.
At the report interviews in 2016 the family report writer was sceptical about the father’s claims about ICE use because there was no evidence to support them but the mother tested positive for ICE in a hair follicle test in 2017, tested positive for cannabis in May and June 2017 and between 21 July 2016 and the time of trial produced three samples with integrity issues and failed to comply with six requests to do urinalysis.
The mother has failed to dispel a concern that the father may have been right about her drug use in 2013.
After the father commenced court proceedings in late 2013, the mother dropped off the radar and went to Queensland and she remained there until August 2015. The orders made in April 2014 provided for the mother to spend time with the children as agreed between the parties but although the mother sometimes asked to see them, she did nothing to put the father’s concerns about her drug use to rest.
I have considerable sympathy for the father and do not blame him for being concerned about the prospect of the mother spending time with the children.
I do not consider that the father set out to do harm by telling the children that Mr D had been to prison. In an ideal world he might have reflected on the necessity of telling the children this but I am not inclined to be unduly critical of him for it.
In my view, and it was also the view of the Independent Children’s Lawyer, there was no evidence of alignment and the evidence supports a finding that from September 2013 onwards the father was simply trying to be protective of the children.
The consensus at trial, even by the mother, was that [X]’s views about spending time with her mother should be respected and I agree that this is appropriate.
At the time of the Family Report interviews, [Y] was willing to spend time with his mother. The family report writer said as follows:
When asked his views on future parenting arrangements, [Y] was clear to state he wants to remain living with the father and that there is nothing he does not like about the father or the stepmother. When asked if would feel comfortable spending time with the mother outside of supervision, [Y] said he would and when asked if this time might progress to overnight weekend and holiday time, [Y] said he thought this would be a good idea. When asked if it would be alright if Mr D was present during unsupervised time, [Y] said it would not.[5]
[5] Family Report paragraph 101
Counsel for the Independent Children’s Lawyer said that not long before the trial, [Y] told the Independent Children’s Lawyer that he was willing to spend time with the mother again provided the time was supervised and he proposed that it be supervised for two years. He said that after that he may be ready to see her unsupervised. [Y] said that he wanted to communicate with the mother and have calls each weekend.
There was discussion during the hearing about the possibility that [Y]’s views had been influenced by [X]’s views and by the father’s lack of support for the children spending unsupervised time with the mother. It was suggested that [Y] might feel the need to align his views with the accepted view in the household about whether it was safe for the children to spend time with the mother.
This could be the case and certainly [Y] gave no reason for picking a period of two years for the supervision but his own lived experience with and in connection with his mother could also have a bearing on his views.
[Y] has never been resistant to spending time with his mother and it might be that if an order was made for supervised time to happen for six months and then for unsupervised time to commence he would not resist going, but this is not a case which turns on [Y]’s views. The outcome will depend on a weighing and balancing of all of the s. 60CC (2) and (3) matters.
I must consider the nature of the relationship of the children with:
i) each of the children's parents; and
ii)other persons (including any grandparent or other relative of the children).
[X] does not have a relationship with the mother at present. She has not seen or spoken to her since supervised time ended in February 2017 and does not respond to her overtures about identifying presents she would like.
[Y] willingly attended the supervised visits when they occurred. He told the family report writer in 2016 that he enjoyed seeing his mother. He was keen to spend time with her at the family report interviews and was physically affectionate to her.
However [Y] has not spent time with the mother for over a year. His relationship with her is tenuous at present.
The children have a good relationship with their father, his wife and their two younger siblings. I am satisfied that they have a good relationship with members of the father’s and Mrs Boland’s extended family.
I must consider the extent to which each of the children's parents has taken, or failed to take, the opportunity:
i) to participate in making decisions about major long-term issues in relation to the children; and
ii)to spend time with the children; and
iii)to communicate with the children;
The mother withdrew from the children’s lives more and more during the second half of 2013 and whether the excuses she gave for this are accurate I cannot determine. She went to Queensland in 2014 and remained there until August 2015 and was not available to spend regular time with the children even if the father had agreed to it.
Although the family report writer was highly critical of the father, she recognised that the mother’s behaviour had had an impact on the willingness of [X] in particular to spend time with her. She said as follows:
It is also highly likely that [X] felt abandoned by the mother which may have caused [X] to feel angry with the mother and/or not trust the mother.[6]
[6] Family Report paragraph 92
The report writer expressed the view in her report that the father retaining the children in 2013 may have been the trigger for the mother experiencing a mental health crisis and disappearing from the children’s lives for over two years.[7] I do not accept that there is any foundation for this opinion. The mother had been withdrawing from the children’s lives prior to that. There is a real possibility that either drug use or her relationship with Mr D or both were triggers for what occurred although I cannot make any definitive finding about it. It is also possible that there was some unrelated decline in the mother’s mental health, but I do not accept that the father’s actions were to blame.
[7] Family Report paragraph 30
The father in contrast has always been available to spend time with and communicate with the children.
I must consider the extent to which each of the children's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the children.
The father primarily supports the children. The mother is in receipt of Centrelink benefits and is not in a position to make a significant contribution. The only relevance of this issue, however, is as to who should pay for supervised time if the court orders that this occur.
I must consider the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from:
i) either of his or her parents; or
ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
The change of circumstances proposed in this case was for [Y] to resume spending time with his mother.
If an order is made for him to spend supervised time with her, this would be in accordance with his views and would ensure that he maintained a bond of sorts with her. From this perspective it would be a beneficial change.
The difficulty in the case is whether this order is practical and whether its benefits outweigh its detriments and I will have to consider that later in the judgment.
Unsupervised time would only be appropriate and beneficial for [Y] if it did not result in him being placed at unacceptable risk of harm and this also is something I will have to consider later in the judgment.
I must consider 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.
Both parents live on the (omitted) and travelling distance is not a relevant issue in the case.
The mother said that she could afford to pay for supervised time with [Y] for six months. Whether she could continue doing so indefinitely is something I cannot be certain about.
I must consider the capacity of each of the children's parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the children, including their emotional and intellectual needs.
The father is providing well for the children on a day to day basis and is properly attending to their education.
It was by implication the mother’s case that he was not properly attending to their emotional needs because he was preventing them having a relationship with her.
I do not accept that this is the case. In my view the father acted protectively of the children by withholding them in September 2013.
Through his solicitor, the father requested that the mother do three drug tests. In her affidavit, the mother said that she did the tests and the results were negative. She provided the result of a test done on 8 October 2013 which was clean and had no sample integrity issues but the father said in oral evidence, that he deposited the money to pay for three tests into the mother’s account but she only did one test. I prefer the father’s evidence.
The mother failed to file a response when the father commenced court proceedings in December 2013 and in March 2014 she relocated to Queensland. She did not attend court on 9 April 2014 and final parenting orders were made in her absence which provided for her to spend time with the children as agreed between the parents. The mother said that the father refused all of her requests to spend time with the children after the orders were made but provided no evidence that she took any steps to put to rest the concerns he reasonably held about her at that time.
The mother failed the children after late 2013. She denied that this had anything to do with the fact that she had formed a relationship with Mr D or with her using drugs and came up with a series of excuses for what had happened.
She said that mid-2013 she commenced supporting a friend whose baby was dying from a rare brain tumour and as a result was not fully available to the children; she claimed that the father took advantage of this and in or about September 2013, began making unfounded allegations that she was using drugs and withheld the children from her. She alleged that by late 2013/early 2014, she was suffering severe anxiety and depression (and she eagerly adopted the hypothesis of the family report writer that the father’s conduct was either the cause of this or exacerbated it) and as a result she went to Queensland.

She said that in Queensland she had to care for her ill mother and her dying step-father and it was only after her step-father’s death that she was able to return to NSW. Since then she had been making an assiduous effort to see the children and the fact that she had failed to do a number of drug tests, provided several samples with dilute creatinine and tested positive for illicit drugs on three occasions could all be explained away and should not be used to deny her time with [Y].
The mother was not a witness of credit and while elements of her story may be true, I do not accept that there is a reasonable explanation for why she was simply not available for the children between September 2013 and September 2015.
A real possibility, given that the decline in the mother’s parenting of [X] and [Y] coincided with her commencing a relationship with Mr D, is that this is a series of possibly untrue excuses and that since she formed that relationship, she has returned to her old habit of using illicit drugs and has been prioritising her relationship with Mr D over being available for the children.
I do not want to be unduly harsh but when I have a witness as lacking in credit as the mother, it is difficult not to be incredulous about her plethora of excuses for not being available for the children, not complying with drug test requests and providing samples with integrity issues, and the story the mother told in the witness box about the bottle of port and the neighbour and the cannabis cigarette heightens my concern about the extent to which any excuse she gives should be believed.
The fact that the mother has let the children down in the past is not necessarily a reason why she should not see [Y] in the future if he is willing to spend time with her. However there are a number of potential risk factors for [Y] if he was to spend unsupervised time with the mother, and one is being exposed to drug taking or to the effects on the mother of craving drugs, being under the influence of drugs or recovering from the effects of drug use.
The mother admitted that she had historically used illicit drugs including speed, LSD and ecstasy. She told the family report writer that she had not used ICE but in cross-examination, she said that when she was a recreational drug user she had used a drug called Shabu which she believed may have been methamphetamine.
The mother denied that she had been regularly using drugs since 2013 but has never provided a reliable account of her drug use since the proceedings commenced.
In the affidavit she filed when she commenced proceedings on 15 September 2015, she said as follows:
As Mr Boland has previously alleged that I am a “ice-user” and a “drug addict” I am willing to submit to random chain of custody drug screen urinalysis to demonstrate to Mr Boland and this Honourable Court that I don’t consume illicit substances and that there is no risk to the children in my care.
Whilst I have been waiting for my grant of Legal Aid to be approved to commence Court proceedings in the Family Law Courts I have undertaken two chain of custody urinalysis drug screens to the AS/NZ 4308:2008 standard. The first test I undertook on 24 June 2015 is annexed hereto and marked “L9”. The test states that my creatinine levels may indicate sample dilution. I spoke to my doctor, Dr V who advised “You cannot drink the amount of coffee that you usually drink each day before such a test or that will be the result. It’s very common.”
I then undertook a further chain of custody urinalysis drug screen on 17 August 2015. Annexed hereto and marked “L10” is a copy of the results. Both urinalysis results are negative for any illicit substances.[8]
[8] Paragraphs 74-76 of the mother’s affidavit filed on 15 September 2015.
Although the 17 August 2015 results were indeed clear, what the mother did not say in that affidavit was that shortly afterwards she used cannabis, she said because she was distressed about the passing of her step-father. She asked the court to believe that this was an aberrant event which was not evidence of regular use of illicit drugs.
At the family report interviews in 2016, the mother told the family report writer that she had not used drugs after the age of 25 save for using cannabis after the step-father’s death. She strongly denied that she had been using ICE or other drugs in 2013 when the father retained the children.
I have considerable scepticism about whether this is correct given the evidence about the drug testing between 21 July 2016 and the present time.
The mother did not do the tests she was requested to do on 21 July 2016, 8 December 2016, 1 May 2017, 18 November 2017, 3 January 2018 and 1 February 2018.
She said that she was unwell on 21 July 2016, offered no explanation for her failure to do the test requested on 8 December 2016, said that she was on her menstrual cycle on 1 May 2017 and said that she was unaware of the requests made on 18 November 2017, 3 January 2018 and 1 February 2018. She alleged that her solicitor was on holidays between 22 December 2017 and 29 January 2018 and was ill between 29 January 2018 and 5 February 2018.
On three occasions the results of the tests the mother did do indicated that there were sample integrity issues in that they had dilute creatinine.
The family report writer was asked about this and said that she had undergone some education about it and had been told that dilute creatinine can be the result of a person consuming a large quantity of liquid to dilute their urine so that the drug does not show up upon testing. When a laboratory is asked to test for drugs in accordance with the Australian standard, it does not test for the presence of any drug in the urine; it tests for the presence of drugs above a threshold quantity.
I accept that it is noted on the test results in which dilute creatinine is identified, that low creatinine may be due to sample dilution. There are other reasons why creatinine can be low including illness or naturally low creatinine but the mother, knowing how critically important it was to show that she was not using drugs, did not provide medical evidence which suggested that these were issues for her.
The mother’s counsel submitted that the court could not draw an adverse inference against the mother on the basis of the dilute creatinine unless the court made a finding that the mother had deliberately diluted her urine.
I do not accept this submission. These are not criminal proceedings in which the Crown bears the onus of proof. They are parenting proceedings in which the court must determine the orders which are in children’s best interests. The mother clearly knew that the dilute creatinine was an issue; she referred to it in her affidavit. She chose to do nothing to dispel the possibility that she had deliberately diluted her urine to avoid detection of drugs and I am satisfied that I can take this into account, together with the fact that some of her results were positive for illicit drugs and that a number of tests were not done, in trying to determine whether the mother is being truthful about her drug use.
In summary, between 21 July 2016 and the present, the mother has tested positive for illicit drugs on two occasions including for ice in June 2016, failed to do six tests and returned three samples with dilute creatinine.
The mother would have the court believe that the only time she has used drugs in the last three years was at or about the time the drugs were detected, an improbable situation when the positive results are taken together with the samples with dilute creatinine and the occasions when tests were not done.
Yet another problem for the mother is that despite admitting in her affidavit that she had used ice as well as cannabis in May 2017, in cross-examination she denied knowingly using ice.
The mother has not done a drug test recently. I cannot be satisfied that she is not using drugs at present, and because of the minimal information she provided at trial and her complete lack of credit as a witness, I cannot assess the extent of the problem.
The family report writer while commenting that there was no evidence available to her that the mother was currently using drugs, said as follows in her report:
Following discussions, the mother agrees to access relapse prevention strategies from a drug and alcohol counsellor, to ensure, when stressed in future, she does not relapse and use illicit drugs.[9]
[9] Family report paragraph 34
The mother has not done any drug and alcohol counselling in recent years, did not suggest in her affidavit that she had any intention of doing any in the future and did not take the opportunity during cross-examination to assure the court that she would do so. She continued to quietly maintain that concerns about her drug use were a beat-up.
A second potential risk factor in relation to the mother, although this risk factor may not be so much in terms of [Y] being at risk of harm in the mother’s care as of him being let down again by the mother, is that the state of her mental health cannot be determined.
The mother told the family report writer that on two occasions between the ages of 10 and 11 she self-harmed by overdose and alcohol and that she experienced suicide ideation when she was pregnant with [Y] in 2007 and again in 2015. At trial she said that she had suffered from severe depression during the period when she was not seeing the children. She said that she had some treatment in Queensland and that after she returned to the (omitted) in 2015 she saw Mr N, a psychologist, on two occasions.
In the brief report Mr N prepared, he said that the mother presented with major depression.
Mr N’s notes were subpoenaed after proceedings commenced in this court in 2015 and during the family report interviews in 2016, the report writer raised with the mother in the presence of Mr D that the mother had told Mr N that she felt controlled and possessed by her partner and wanted to move out of the relationship but was scared of his reaction.
The mother hastened to inform Mr D that she had not been talking about him but had been referring to the father which was clearly not correct. Since then the mother has not been to see any psychologist or counsellor and she said at trial that this was because she did not want their notes subpoenaed. She said that she was doing some anonymous online counselling.
I cannot make a finding about the current state of the mother’s mental health or whether it is likely to decline in the future rendering her unreliable in regard to the children. The mother ran a minimalist case and there is no evidence which would enable me to make a finding about this issue.
The mother’s housing is unsatisfactory in terms of [Y] spending any overnight time with her but this is not an issue given the mother’s amended proposal.
Mr D is a significant concern in the matter. In her trial affidavit the mother said that the children related well to Mr D after they were introduced to him but both children expressed reservations about him when talking to the family report writer.
[X] told the family report writer that she found him a bit scary at first but got used to him and didn’t find him scary. However, she had been informed by the father at some point that Mr D had been in jail and expressed some fear of spending time with him the future.
The family report writer said as follows about [Y]:
[Y] reports to remember when he lived in the main with the mother and reports Mr D stayed overnight in the home on occasions and sometimes he, the mother and [X] stayed overnight in Mr D’s home. When asked his view of Mr D, [Y] said "he's tough but nice and he gives me cuddles and plays with me but I don't like it when he drinks alcohol." When asked why, [Y] said Mr D "got a bit mean" and when asked what he did that was mean, [Y] said "he doesn't do anything mean, he just looks and sounds mean, it's the same if we say or do something he doesn't like." When asked if Mr D is ever like this when he has not been drinking alcohol, [Y] said yeah but it's worse when he's been drinking.”[10]
[10][10] Family Report paragraph 95
Perhaps most importantly, the family report writer found Mr D aggressive and intimidating when she challenged him.
Neither child acknowledged Mr D during the observation session at the family report interviews although they were both heard to say goodbye to him at the end.
I have no means of assessing Mr D for myself because he did not give evidence at the hearing.
The family report writer recommended that Mr D not be brought into contact with the children until he had completed some interventions and the mother seemed to recognise that Mr D was an issue in her case because she proposed that she be restrained from bringing the children into contact with him.
The difficulty with this is that Mr N’s notes and the content of the family report suggest that the mother is either unwilling or unable to stand up to Mr D. The mother is sharing accommodation with him and even if she gets a house this will continue in the future. I can have absolutely no confidence that the mother would be able to make Mr D stay away if [Y] was spending time with her at her accommodation or even spending two hours unsupervised with her at a different place.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children's parents, and any other characteristics of the children that the court thinks are relevant.
The family report writer was concerned about [X]’s highly anxious presentation at the family report interviews and recommended that she have psychological treatment as soon as possible.
The father has not arranged for this to occur. It appeared to be his case that part of the problem in 2016 was that [X] was highly stressed and anxious about spending time with the mother. His evidence and the unchallenged evidence of Mrs Boland was that since time ceased in February 2017, [X] had been very settled and happy. This is credible and I am not convinced that there would any utility in me making an order for [X] to attend counselling if she is going to be permitted to choose whether she can spend time with the mother.
I must consider the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
The father has demonstrated a good attitude to the children and the responsibilities of parenthood. The mother has not shown a good attitude in being intermittently unavailable to spend time with the children but I have considered the issues which have a bearing on this (drug use, mental health and Mr D) elsewhere in the judgment.
I must consider any family violence involving the children or a member of the children's family.
The mother alleged that the father was verbally abusive during their relationship and that he would damage property by punching walls or doors when angry. She also claimed that he physically abused her at the time of separation by grabbing her by the arms and that he threw an item at her pregnant abdomen at the time of separation.
The father said that the parents both verbally abused each other and denied any physical violence. He counter-alleged that the mother threw a TV remote at him.[11]
[11] Family Report paragraph 13
The mother was not a witness of credit and I am not prepared to accept her uncorroborated word that the father was violent to her. I cannot be sure that the incident the father recounted about the TV remote is accurately recounted either and there is no context for it.
There were no issues between the parties in the 2007-late 2013 period but the mother behaved aggressively on two particular occasions after that.
On 22 December 2013 the mother repeatedly rang the (employer omitted) where the father was working demanding to speak to him. She admitted that she repeatedly demanded that he come to the phone or she would come to the (employer omitted) and admitted that Mr D joined in and threatened that he was going to come in and shut the (employer omitted) down. The father was sufficiently concerned for his safety to make a complaint to the police.
The mother admitted that in January 2014 she threatened to knock the paternal grandmother out and knock her head off during a dispute at the father’s home in January 2014. This frightened the paternal grandmother and was an act of family violence.
The mother’s behaviour during the calls made the father feel concerned for his safety and the threats to the paternal grandmother were acts of family violence.
The mother may have been in a particularly bad place in her life at the time, but she did not run a case that her life had changed since then and therefore there was no risk of her lashing out in this way in the future. She did not mention her threats to the paternal grandmother in her affidavit.
Family violence is not a major issue in this case, save that given that I cannot resolve concerns about the mother’s drug use and the state of her mental health, I have some concern that she might lash out and makes threats in the future.
The mother told Mr N that she was afraid of Mr D’s reaction if she separated from him but I cannot find on the state of the evidence that there is family violence in the mother’s relationship with Mr D as family violence is defined in the Family Law Act.
I must consider if a family violence order applies, or has applied, to the children or a member of the children's family - any relevant inferences that can be drawn from the order, taking into account the following:
i)the nature of the order;
ii)the circumstances in which the order was made;
iii)any evidence admitted in proceedings for the order;
iv)any findings made by the court in, or in proceedings for, the order;
v)any other relevant matter;
On 13 March 2014, a twelve month ADVO was made for the protection of the father, his mother Ms J, his wife Ms M and [X], [Y], [B] and [C] from the mother.
An ADVO was also obtained by the father at or about the same time for protection from Mr D.
It will not assist me to consider these orders as a separate issue.
The mother said that a final ADVO was made in January 2014 to protect the husband’s friend Mr P from the mother after he alleged that the mother was harassing him regarding the whereabouts of the children. The order was certainly made (in the mother’s absence) because the mother attached a copy of an interim order to her affidavit but it was not referred to by anyone at trial as a significant issue.
I must consider 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.
The father first filed proceedings in December 2013. Those proceedings quickly ended but the current proceedings began in September 2015 and have been on foot for over 2 ½ years now. It is stressful and difficult for parents and children to be involved in ongoing court proceedings and this is a case in which it is important that the court as far as possible make the orders which are least likely to lead to further proceedings.
An order for no time or for time in accordance with the children’s wishes is the order least likely to lead to further proceedings. An order for time carries with it a high risk of further proceedings because of either supervised time breaking down and the parties or one of them looking to the court for a solution or there being ongoing issues with the mother’s mental health or drug use.
I must consider any other fact or circumstance that the court thinks is relevant but there are no other relevant matters.
I must now return to the primary considerations and the first of these is the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from harm from being exposed to or subjected to abuse neglect or family violence.
S. 60CC (2A) of the Family Law Act requires me to prioritise the first consideration over the second.

It was agreed by all parties at trial that it was not possible to make orders which would restore [X]’s relationship with the mother.
The focus in the case was on [Y] and he will not have a meaningful relationship with his mother unless he spends time with her. Telephone communication will keep a relationship going but it is not a relationship which will fit within the category of being significant, valuable and important to the child.[12]
[12] Mazorski & Albright (2008) 37 FamLR 518
However there are safety concerns. If [Y] is exposed to drug use by the mother, to the mother being under the influence of drugs or craving drugs, to the mother being in a severely depressed state or to any aggression by Mr D, not only will he be at risk of physical or psychological harm, his relationship with his mother will not be valuable to him, and the mother has failed to dispel concerns that if [Y] spent unsupervised time with her he might be exposed to those things.
The mother’s case at the end of the trial was that [Y] would not be at unacceptable risk of harm if he spent limited periods of unsupervised time with her; she proposed two hours.
The family report writer was asked about this and expressed the opinion that the risk would remain whether the time was short rather than long and given the nature of the risks in this case, there is merit in this opinion.
If time is supervised, the accredited provider of the supervision can make an assessment of sorts of the mother’s state before time commences and not allow time to occur if there is any obvious problem but if time becomes unsupervised the father would have to make that judgment. That places a burden on him and gives rise to the risk of either conflict occurring between the parents which [Y] might witness or to the matter returning to court.
The other problem with unsupervised time even of short duration is that I can have absolutely no confidence that the mother would be able to prevent Mr D being present.
If [Y] spent supervised time with the mother, he would not be at risk of harm as a result of exposure to the mother using drugs and possibly not to the mother being under the influence of drugs and Mr D could be kept away. [Y]’s relationship with his mother would not be especially meaningful if he spent only brief supervised time with her accompanied by telephone calls, but he would maintain a relationship of sorts with her.
However a relevant issue in this case is whether the court should consider making an order for supervised time if there is no prospect of time ever becoming unsupervised.
It is not usually desirable to make an order for long term supervised time. The risks are high that the arrangement will break down due to such things as resistance by the child, inability to pay the cost of the supervision or unavailability of the chosen supervisor. It also does not lead to a meaningful relationship between the parent and the child and that in turn leads to the question of whether the order is being made for the benefit of the child or the benefit of the parent.
There are exceptions to every rule but an order for supervised time is usually only made if there is some prospect of time becoming unsupervised in the future and there is no foreseeable prospect of that in this case. I have no idea what the current state of the mother’s drug use or mental health is. She put forward no proposals for dealing with these issues which she did not admit existed and I can have absolutely no confidence that anything is likely to be different for the mother in the future.

Parental Responsibility

On 9 April 2014, an order was made that the father have sole parental responsibility for the children. At the commencement of the trial the mother was seeking an order for equal shared parental responsibility but at the conclusion of the trial she consented to an order that the father retain sole parental responsibility for the children.

Conclusion

The mother has not been a reliable and committed parent since she commenced a relationship with Mr D in 2013. The extent, if any, to which this coincided with other problems for the mother and the extent, if any, to which this caused the other problems I do not know but after the mother commenced that relationship, she became very unreliable about spending time with the children and the father began to raise concerns about the level of care they were receiving.
The mother has a variety of excuses for her unreliability including the need to support a friend with a sick baby, a need to go to Queensland to care for her dying step-father and depression. Whether there is more to it than that and the extent, if any, to which drug use played into the mother’s mental health issues, I do not know as the mother did not present a frank and open case but whatever the cause of it, in my view, there is a considerable risk that the mother might prove unreliable in the future in spending time with [Y].
That would not necessarily be an insurmountable problem if [Y] was willing to see his mother, and he is. [Y] is attached to his father and is being well looked after. His father is not going to let him down and with support and counselling children can live with the fact that one parent is unreliable. They can be taught that it is not their fault and can benefit from the opportunity to have an ongoing relationship with a parent when that person is in a good place.
However that is not the only problem in this matter and the remaining two problems, the existence of Mr D in the mother’s life and the fact that I cannot exclude the possibility that the mother is using drugs or make any findings about the nature and extent of her problem with drugs cannot be so easily overcome.
The children expressed mixed feelings about Mr D at the family report interviews. The family report writer found him aggressive and confrontational and his ability to behave in that way is demonstrated by the calls he made to the father in 2013. The mother told a counsellor in 2015 that she wanted to separate from Mr D but was afraid of his reaction. She denied saying this when the family report writer asked her about it when Mr D was present which brings into question the mother’s capacity to stand up to Mr D.
Mr D spent several years in prison for being knowingly concerned in the supply of drugs. The mother is currently using drugs. Mr D has never done a drug test. The mother denied that he was an illicit drug user but she was not a witness of credit.
The mother said one thing in her affidavit and another in cross-examination about whether Mr D would be living with her if she obtained a home through Department of Housing.
I have no faith that the mother would be able to ensure that Mr D did not intrude if I made an order for unsupervised time.
If the mother has, as she claimed in court, a deep friendship with Mr D, it is extremely difficult to understand why she chose not to call him as a witness except if she feared that he might harm her case.
The other problem for the mother is that it is open to me to find that she is currently using illicit drugs. The mother’s refusal to properly address the concerns about her drug use by doing all the drug tests she was asked to do and providing credible information about the history of her drug use over the last few years means that I simply cannot be satisfied that she does not currently have a drug problem.
This is many implications for the case. If the mother is using illicit drugs she may be unreliable in spending time with [Y], and [Y] could be exposed to harm in her care either because she openly used drugs while she was with him or was craving drugs or was under the influence of a drug.
I could not expect the father to support unsupervised time with this issue unresolved which creates a high risk of orders not being adhered to.
I do not accept that it would be appropriate to make an order for unsupervised time in this matter, even for the limited period the mother proposed. I could not be sure that [Y] would be safe, nor would it not be fair to ask the father to support such an order when he could not be sure on any given occasion about the mother’s mental health or whether she was using drugs or whether Mr D might be hovering in the wings waiting to take part in the visit after the father dropped [Y] off.
The problem for the mother then becomes that there is simply no evidence on which I could find that things are likely to be different in the future and for reasons outlined earlier, I do not consider it appropriate to make an order for long term supervised time. While this is something which may occasionally be appropriate it is not appropriate in this case. It could easily break down and it would deliver no benefit for [Y].
The Independent Children’s Lawyer submitted that regrettable as it was, the only appropriate order in this case was that [Y] as well as [X] spend time with the mother as agreed between the parents and failing agreement as determined by the father.
I agree with this submission. I acknowledge that it may well mean that [Y] does not see his mother for quite some time. The father is unlikely to agree to time occurring unless the mother satisfies him that she is not using drugs and that Mr D is off the scene and there is no sign of the mother being either willing or able to do those things. In addition, if the mother asks to see [Y], the father may well defer to [Y] as to whether he wants to see the mother and [Y] may not be willing to express a wish to do so knowing that [X] will not see the mother and that his father has concerns about him doing so.
However as I pointed out in submissions, the father has complied with the order for the mother to have telephone communication with [Y], so if the mother were able to demonstrate some real change and [Y] was willing it is not beyond the bounds of possibility that some time could be agreed in the future.
The mother asked for an order that she be able to attend school events and extra-curricular activities. The father opposed this. The mother does not always respect boundaries and is not always civil to the father. It would not be in the children’s best interests to make an order which could result in both children becoming upset at places they regard as safe havens and places where they expect to enjoy themselves. I do not intend to make that order, save that I will order that it can occur with the father’s written consent.
It is always sad if the end of court proceedings is that children do not see a parent but the court cannot always mend broken family situations, and in this case there is at least the ongoing possibility of telephone communication and the sending of letters cards and gifts.
The Independent Children’s Lawyer proposed an order that the mother be able to obtain copies of the children’s school reports and other information normally provided to parents. I have reflected on whether this order would benefit the children. On the face of it perhaps it won’t but if it keeps the mother interested in the children and gives her something to talk to [Y] about on the telephone, it will have some benefit and I intend to make this order.
The father sought an order that he be able to obtain passports for the children and travel internationally with the children and I intend to make this order. If I do not then the matter may have to return to court, and there is nothing to suggest that the father intends to leave Australia permanently or for any lengthy period with the children.

I certify that the preceding two hundred and twenty seven (227) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 6 April 2018

[2018] FCCA 609

6 April 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies

Procedural Fairness