MACALLAN & JARRED

[2020] FamCA 658

FAMILY COURT OF AUSTRALIA

MACALLAN & JARRED [2020] FamCA 658

FAMILY LAW – PARENTING – Review of the decision of a Senior Registrar – Where there are two children, both aged two and a half – Where both parents have a history of significant substance abuse – Where there is a serious risk of harm in the care of either parents – Where the paternal family have provided undertakings to the Court – Order for the children to live with the father at the home of the paternal grandparents – Order for the children to be supervised by the paternal family – Orders for the mother to have supervised time.

APPLICANT: Mr MacAllan

RESPONDENT: Ms Jarred

INDEPENDENT CHILDREN’S LAWYER: Ms Wilkins

FILE NUMBER: SYC 3128 of 2020

DATE DELIVERED: 11 August 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 31 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Givney

SOLICITOR FOR THE APPLICANT: Anderson Lawyers

COUNSEL FOR THE RESPONDENT: Mr Gardiner

SOLICITOR FOR THE RESPONDENT: Clinch Long Woodbridge

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Phillip A Wilkins & Associates

undertakings

1. The Court NOTES the written undertakings dated 3 August 2020 given by Ms B MacAllan, Mr C MacAllan, Mr D MacAllan, Ms F MacAllan and Ms G in relation to supervision of the subject children.

Orders

IT IS ORDERED PENDING FURTHER ORDER

1. That the children Y and X born on … 2017 live with the father provided that:

   (a)The children and the father live at the home of the paternal grandparents at K Street, Suburb L.

   (b)The children are at all times supervised in the father’s care by one of Ms B MacAllan, Mr C MacAllan, Mr D MacAllan, Ms F MacAllan or Ms G.

   (c)That the children not be permitted to be passengers in any vehicle driven by the father.

2. That the children spend time with the mother as follows:

   (a)On each Saturday and Tuesday for a period of three hours supervised by a person agreed upon between the parents, and in the absence of agreement, by M Services at the expense of the father.

   (b)On one other day in each week for a period of three hours supervised by a person agreed upon between the parents, and in the absence of agreement, by M Services at the expense of the mother.

3. The Court NOTES that orders 8, 9, 10 and 11 made on 30 June 2020 remain in force.

4. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

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 MacAllan & Jarred 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 3128 of 2020

Mr MacAllan

Applicant

And

Ms Jarred

Respondent

REASONS FOR JUDGMENT

1. Y and X are twins aged two years and nine months. They are the children of Mr MacAllan (“the father”) and Ms Jarred (“the mother”), neither of whom has demonstrated that he or she is capable of caring for them.

2. Competing applications for parenting orders were heard by the Senior Registrar on 30 June 2020. He made orders that the children live with the mother. Before the Senior Registrar, the only options for the care of the children were the mother or the father.

3. The father filed an application to review those orders and the operation of the orders was stayed by the Senior Registrar on 20 July 2020.

4. Thus the matter comes before me as a hearing de novo. Where there are disputed issues of fact, those issues cannot be determined here. There is, however, a large volume of material produced on subpoena from the police and from hospitals which speaks eloquently of the failures of both of the parents.

5. Before me, the father relied on an affidavit sworn by him on 29 June 2020 and an affidavit of the paternal grandfather sworn on 2 June 2020.

6. The mother relied on an affidavit sworn by her on 15 July 2020 and an affidavit of Dr N, an expert in interpreting drug testing results, sworn 25 June 2020.

7. At the commencement of the hearing of the interim applications before me, I indicated to the parties that I was considering asking the Department of Community and Justice (“DCJ”) to intervene in the proceedings because I was concerned that the children were at risk with both parents and that there was no responsible adult who could oversee the welfare of the children in the care of either of them.

8. Ultimately, in the course of the hearing, the paternal grandparents provided undertakings that the father and the children would live in their home, that they would not allow the father to drink alcohol or use drugs, or to drive with the children in his car and that they would remove the children from the father’s care if he were to do so.  The paternal grandparents are both retired health professionals. Undertakings in similar terms as to supervision of the children in the father’s care were also given by the father’s brother and sister-in-law and by the children’s usual babysitter, Ms G.

9. Primarily for that reason I have determined that the children should remain in the care of their father, subject to the condition that he and the children live in the home of the paternal grandparents.

10. The brief history of the matter which is set out below is taken from the parents’ respective affidavits. I do not accept that either of them can be relied upon as an accurate or truthful historian. Each of them has lied in their reports to police and to various medical professionals and I cannot assume that they have not lied in their affidavits.

11. The parents commenced a relationship in December 2016 or February 2017 and separated in May 2017. The mother alleges that the father was violent towards her during the relationship and that charges were brought against him.

12. The twins were born in Country P in 2017. The mother alleges that hospital staff expressed concerns about the father’s excessive use of alcohol and drugs while she was in hospital with the babies and he was staying at the hospital’s facility for expectant fathers.

13. In December 2017 the mother came to Australia with the twins and they lived together with the father in his apartment for seven weeks. The mother alleges that the father drank alcohol to excess, used drugs and that, on one occasion, he was so intoxicated that he was injured by running into a glass door. The father alleges that his injuries were caused by the mother’s assaulting him.

14. On 6 February 2018 the mother returned with the twins to Country P.

15. The father visited in August 2018. After two nights the mother asked him to leave because he was drunk. The father alleges that the mother was also drunk.

16. Each parent alleges a series of contacts thereafter where each says the other was drunk, behaved inappropriately and neglected the children.

17. In November 2018, the mother returned to Sydney with the twins and moved into a unit which is owned by the self-managed superannuation fund of the paternal grandparents, where she remains.

18. She has never paid rent for the unit. The paternal grandfather deposed that he agreed for the mother to stay for a short time until she found a job. Because the unit is required to be rented for market value, the father has paid market rent to his parents’ fund. The mother has been asked to vacate the unit by a letter dated 12 June 2020 from the solicitors acting for the owner.

19. On 8 March 2020, the mother left the children with the father and travelled to USA. She deposed that the children went into the father’s care “so that I could travel for a 10-day vacation to USA commencing 9 March 2020”.

20. When the mother returned to Australia on 19 March 2020 she was required to go into isolation for 14 days due to the COVID-19 regulations and the father refused to return the children to her care. They have remained in the father’s care since then. They are cared for while the father works by a combination of a nanny and day-care and they spend one day each week with their paternal grandparents.

21. Each party makes allegations against the other of substance abuse and of violence. Each alleges that the other has left the children unattended at times. Each alleges that the other is an unfit parent.

22. I propose to set out what is known about the substance abuse and anti-social behaviour of each of the parents from the documents produced on subpoena. This summary may not be complete but it is sufficient to explain why neither of these parents can have the care of the children unsupervised.

THE MOTHER

1. In January 2017 the mother presented at the emergency department of Q Hospital with fever. The notes record “Says she has had a busy week of partying with alcohol & drugs”.

2. In May 2017 the mother called police alleging that the father had assaulted her at his home and tried to strangle her so that she could not breathe. She alleged that he forced a remote control into her mouth restricting her breathing. The police attended. The police noted that the mother “was very vague with her description of the incident”, was unsure how she got the phone to call the police and was unable to locate the remote control device.

3. In December 2018 the paternal grandfather told the police that he had attended at the mother’s home and that the children were in the home alone. The children were 13 months old. He said that the mother had gone to a hotel. The police spoke to the mother who confirmed that the children were home alone but said they could not get out of their cots and were safe. The police viewed CCTV footage of the mother arriving at a hotel in Suburb R by taxi and ascertained that the children had been left at home alone for 45 minutes to an hour. It was not clear how long the mother had intended to leave the children unattended.

4. Police made a report to child welfare authorities.

5. In January 2019 the mother contacted the police alleging that the father had attended her home and let himself in to check on the children. The police spoke to the father and had no concerns about the children. Police records note:

   It appears [the mother] may be attempting to manipulate the situation to her benefit as she is trying to start family law proceedings… [the mother] was attempting to provoke [the father].

6. In May 2019, when the father returned the children to the mother’s care she assaulted him in the presence of the children. The father was observed by police to have lacerations on his forehead and nose. The mother admitted to ripping his shirt, slapping him multiple times and grabbing his nose. The laceration to his forehead was caused by a plate. The father told the police that the mother was drunk. She admitted having had two glasses of wine.

7. The mother was charged with assault occasioning actual bodily harm and an Apprehended Domestic Violence Order (“ADVO”) was taken out for the protection of the father. A condition of the ADVO was that the mother not approach the father within 12 hours of drinking alcohol. She was later convicted on the assault charge.

8. In December 2019 the mother called police, after he collected the children from her, alleging the father was drunk. The police spoke to the father who “did not appear intoxicated at all” and told the mother they had no concerns for the children.

9. The mother was admitted to the S Unit at Q Hospital for “Alcohol withdrawal” in late February 2020.  A document titled “Drug and Alcohol Comprehensive Assessment and Treatment Plan” dated 27 February 2020 records the mother’s average daily consumption of alcohol as two bottles of wine and that she had been drinking at that level for 12 months. The purpose of her admission was panic attacks and withdrawal management. She said she had started drinking heavily in 2017.

10. The notes record that the mother said she was not concerned about the welfare of the children and state that the children are currently in the care of the father and the mother “assures me they are safe”.

11. The mother was discharged two days later.

12. On 8 March 2020 the mother left the children in the care of the father and on 9 March 2020 she travelled to USA.

13. On 14 March 2020 the police received a call from a person purporting to be a friend of the mother alleging that she was walking past the father’s house and heard screaming. The police performed a welfare check and found nothing of concern. When the police tried to report back to the complainant they found that the number was linked to the mother.

14. The mother returned to Australia on 19 March 2020 and went into government mandated isolation.

15. On 31 March 2020 the mother sent to the manager of the business owned by the father a report from a psychologist relating to the father’s psychological state in 2017. The manager told the police that she did not know the mother and had never spoken to her.

16. On 3 April 2020 the mother contacted the paternal grandfather threatening to send “documents and other incriminating things” to the father’s clients and suppliers.

17. Also on 3 April 2020, the mother complained to the police that the father was exposing the children to risk of COVID-19. The police recorded that the mother “sounded to be intoxicated”. The police attended at the father’s home and saw the children, apparently healthy and happy.  

18. The mother was arrested and charged with breaching the ADVO. The police placed further restrictions on the mother, requiring her to have no contact at all with the father and not to approach the children’s pre-school.

19. In early April 2020 the mother was again admitted to the S Unit, the reason for admission being “Alcohol detox”. She reported vomiting non-stop since Saturday and shaking. The notes state “Went to USA and relapsed.” In early April 2020 the notes record that the mother was drinking two to three bottles of wine per day. The notes record that the mother had “No supports in place”. The notes record that the mother was currently on bail and that it was a condition of her bail that she not consume alcohol.

20. The notes record that the mother had been drinking since she was eight years old and that her drinking had become problematic in 2016. She said that she had no previous alcohol related admissions. She was discharged the next day.

21. In mid April 2020 the mother again presented to the S Unit claiming that the father had gone to her house and drugged an open bottle of wine. She was not admitted.

22. The mother spoke to a doctor at the S Unit on 30 April 2020. She was noted to be intoxicated at the time. The notes record that she was drinking a bottle of whiskey per day.

23. In early May 2020 the mother was admitted to the S Unit for alcohol detoxification and was vomiting and unable to tolerate food. She said she was drinking two to three bottles of wine daily. The mother said she was considering a residential rehabilitation facility on the north coast of New South Wales. The notes record that the mother had “a few” alcohol free days over the last year and that morning tremors were settled by alcohol. She reported previous, occasional cocaine use. The mother said her alcohol consumption was “out of control”. She was noted as being alcohol dependent and at high risk of relapse. She reported to a different medical professional that she had no alcohol free days.

24. The mother discharged herself against advice in mid May 2020.

25. She next saw a doctor at the S Unit on 19 May 2020. The notes of that consultation record that the mother had no recollection of the consultation in late April 2020. The notes record “Refused all other supports including counselling/group work. Unwilling to consider rehab”. The mother was advised to refrain from drinking and remain abstinent for at least 12 months. The notes record:

    Not willing to do any planning in case of relapse this time “I won’t relapse but if I do I’ll figure it out at the time” – not willing to consider rehab or Antabuse – became frustrated with conversation and walked out.

    Significant ambivalence about abstinence.

26. On 25 May 2020 the mother complained to the police that she had received threatening messages from the father’s brother. The police attended and looked at the messages. They discerned no threat and declined to take any further action. The mother asked the police to make a report “for the benefit of her case at Family Court”.

27. In June 2020 the mother was sentenced in relation to two breaches of the ADVO to a community service order for 18 months commencing in late June 2020.

28. Hair follicle samples provided by the mother tested positive for alcohol on 11 June 2020 and 7 July 2020. This was at a time when she was on bail conditions not to consume alcohol.

29. Urinalysis testing carried out on 14 July 2020 recorded a creatinine level of 4.41; on 16 July 2020 a creatinine level of 1.66; on 21 July 2020 a creatinine level of 1.76. However, I was not taken to any evidence that allows an interpretation of those results.

30. The ADVO against the mother for the protection of the father continues until May 2022.

THE FATHER

1. In July 1991 the father was convicted of a mid-range drink driving offence and disqualified from holding a licence.

2. In January 1993 the father was again convicted of a mid-range drink driving offence and disqualified from holding a licence.

3. In August 1993, the father was convicted of driving whilst disqualified. He was sentenced to a community service order.

4. In February 1995 the father was convicted of breaching the community service order.

5. In June 1998 the father was convicted of a mid-range drink driving offence and disqualified.

6. In October 1998, the father was convicted of driving whilst disqualified and his license was disqualified for two years.

7. In July 2001 the father was convicted of using an unregistered and uninsured   vehicle, failing or refusing to undergo a breath test and driving recklessly, furiously or in a manner dangerous. He was fined and placed on a bond.

8. In May 2003 the father was convicted of destroying or damaging property and placed on a bond for two years with a condition that he have counselling for drug and alcohol rehabilitation.

9. In October 2003 the father was convicted of negligent driving.

10. In February 2007 the father was convicted of a middle-range drink driving offence and placed on a bond with a condition that he have counselling for drug and alcohol rehabilitation.

11. In March 2007 the father was convicted of negligent driving and driving whilst disqualified and placed on a bond for 18 months with the same conditions.

12. In April 2011, the father was convicted of driving without a licence and refusing to undergo a breath test. He was placed on a bond for five years with specific conditions that he undertake drug and alcohol rehabilitation at Q Hospital with a named doctor.

13. In April 2011 the father refused to undergo a breath test.

14. In August 2012 the police were called to the home of a friend of the father who asked police to remove him from her home because he was intoxicated and had unintentionally kicked her child.

15. In December 2012 the police were called to the home in which the father then lived with a girlfriend and her children. The police recorded that the father was drunk and abusive, behaving in a sexually explicit way and that the children were upset. The father was argumentative and aggressive with police. He was physically restrained and handcuffed and found to be in possession of two grams of cannabis.

16. In December 2012, the father was convicted of possessing a prohibited drug and fined.

1. In January 2017 the father was convicted of impersonating a police officer and placed on a bond for two years with a condition that he undertake mental health treatment.

2. In September 2017 an ADVO was made for the protection of the mother against the father for 12 months.

3. In October 2017 the father was convicted of operating a vessel with a mid- range consumption of alcohol.

4. In September 2018 the father was convicted of a high range drink driving offence. He was sentenced to a community service order for 12 months to undergo rehabilitation and disqualified from driving for nine months.

5. In November 2018 the father commenced a 12 week rehabilitation program at T Hospital. The admission document, dated 26 November 2018 noted that the father admitted to drinking 12 beers daily and a long history of alcohol dependence.

6. In a letter written by Q Hospital to T Hospital dated 23  November 2018, reference is made to the father having been initially assessed in 2013 (I infer relating to alcohol misuse), and attending again in 2017 and 2018. The father was last reviewed at Q Hospital on 1 November 2018. Q Hospital opined that the father suffered from “Major depression (long term, recurrent)” and “Alcohol Misuse Disorder.”

7. The nursing notes at T Hospital record that the father was “here by court order”.

8. In a urinalysis test performed at the request of the hospital in November 2018, the father tested positive for cannabinoids, cocaine and benzodiazepines.

9. The discharge summary, dated mid December 2018, noted the diagnosis as “Alcohol Misuse Disorder” and “Major Depression”.

10. In February 2019 the father, allegedly drunk, had an altercation with a taxi driver and broke the driver’s EFTPOS machine.

11. A sentencing report prepared for a court attendance in March 2019, to answer a charge of high range drink driving (second offence) stated that the father told the reporter that he had not drunk alcohol for 78 days. That was unlikely to have been true. The father said that he had been diagnosed with depression 10 years ago and was currently engaged in mental health treatment for the past 18 months. He stated that he considers himself an alcoholic.

12. On 9 June 2020 the Senior Registrar made an order for hair follicle testing to be carried out before the matter next returned to Court. The father did not comply with the order.

13. In July 2020, when the children were in his care, the father tested positive for cannabinoids, cocaine and alcohol.

DISCUSSION

1. Whilst both of the parents’ records make note of engagement with therapists, neither parent provided any reports from treating therapists. Counsel for the father, in submissions, referred to the father’s willingness to engage with a therapist and with a psychiatrist on a regular basis. Whether this was an empty offer will no doubt be a significant matter in the final determination. Similarly, whether the mother establishes a therapeutic relationship and makes objectively reasonable attempts to deal with her alcohol problems will be a matter of significance.

2. The present state of the evidence does not establish that either parent has taken any reasonable steps to address his or her problem with alcohol.

3. There is no evidence that the mother has any family or social support in Sydney. She is currently unemployed although she has about $60,000 in the bank. She has been asked to vacate the premises where she currently lives. Although the mother has expectations of securing rental accommodation in Sydney there is no evidence that she will able to do so. Neither is there evidence that the mother would be able to find accommodation that would enable the children to continue in their present pre-school.

4. Since the children have been living with the father, they have been attending pre-school on Wednesday, Thursday and Friday. They have a regular carer, Ms G, on Monday and Tuesday. They have regular contact with their paternal grandparents and with the father’s brother and his family. Thus since March 2020 they have had a consistent routine.

5. In circumstances where the mother is unable to proffer any responsible adult who could guarantee the safety of the children in her care, the proposal of the father, and more importantly of the paternal grandparents, is the only proposal which gives any assurance of safety for the children.

CHILDREN’S TIME WITH THE MOTHER

1. For the reasons which have been explained, the time that the mother spends with the children must be supervised.

2. There is an issue about the father’s willingness to facilitate the mother’s spending time with the children. It is asserted in his case that he made offers of supervised time immediately after the mother came out of isolation but that she refused supervision. The mother asserts that the father has refused to allow her to see the children until arrangements were put in place pursuant to orders made on 9 June 2020. The mother had three sessions with the children supervised by M Services in June but has not seen them since 23 June 2020.

3. The father proposes that the children spend three hours with the mother each Tuesday and Saturday, supervised by a contact centre. Although in his Application in a Case filed 1 July 2020, he proposes an unspecified progression to unsupervised time, I understood that, through his counsel, he withdrew that proposal. In any event, I do not propose that either of the parents should spend unsupervised time with the children.

4. The orders will provide for supervised time as the father proposes.

5. The costs of the supervision will be met by the father.

6. In the event that the mother is able to afford supervision on one other occasion each week then there can be one further session at an agreed time at her expense.

DRUG AND ALCOHOL TESTING

1. Dr N deposed that hair follicle testing is reliable to monitor chronic alcohol use.

2. To that end the orders made by the Senior Registrar on 30 June 2020 requiring each of the parents to have hair follicle testing every three months will be continued, pending further order.

THERAPY AND COUNSELLING

1. The father, through his counsel, undertook to the Court that he would attend upon a psychiatrist monthly and a psychologist weekly.

2. The mother in her affidavit deposed that she has had two sessions with a psychologist with whom she has since disengaged but that she intends attending on another psychologist fortnightly.

3. I do not propose to make any orders about the attendance of the parents on therapists but they will understand that when this matter comes to final determination, the steps that each has taken, or failed to take, to address the concerns that have been raised about their ability to care for the children will be carefully scrutinised.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 11 August 2020.

Associate: 

Date:  11/08/2020