MacDougall & Weber
[2021] FedCFamC1F 355
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
MacDougall & Weber [2021] FedCFamC1F 355
File number(s): MLC 7363 of 2017 Judgment of: MCCLELLAND DCJ Date of judgment: 5 October 2021 Catchwords: FAMILY LAW – PARENTING – Where the father struggles with illicit substance abuse – Where the father and paternal grandmother have failed to engage in proceedings – Where the child exhibited significant behavioural and emotional problems after spending time with the father – Where the father has failed to participate in spend time and communication opportunities – Orders made for the mother to have sole parental responsibility – Spend time arrangements with the father to be made at the mother’s discretion. Legislation: Family Law Act 1975 (Cth) ss 60CC, 67, 65DAA
Child Youth and Families Act 2005 s 162
Cases cited: Baines & Tanner [2021] FedCFamC1F 69 Division: Division 1 First Instance Number of paragraphs: 39 Date of hearing: 5 October 2021 Place: Sydney (via videolink) The Applicants: No appearance Counsel for the Respondent: Ms Paterson Solicitor for the Respondent: St Kilda Legal Service Co-Op Solicitor for the Independent Children's Lawyer: Trapski Family Law ORDERS
MLC 7363 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WEBER
First Applicant
MS WEBER
Second Applicant
AND: MS MACDOUGALL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
5 OCTOBER 2021
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The Mother have sole parental responsibility for the child X born 2012 (“X”).
3.X lives with the Mother.
4.Spend time or contact between the Father and/or paternal Grandmother (“the Applicants”) and X be entirely at the Mother’s discretion, and on such terms and conditions as the Mother requires.
5.X be permitted to travel outside the Commonwealth of Australia notwithstanding that the consent of the Father has not been obtained.
6.The Mother is permitted to apply and maintain a passport for X without obtaining consent of the Father AND IT IS requested that the Department of Foreign Affairs and Trade issue a passport for the said child upon application by the Mother.
7.All extant applications are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym MacDougall & Weber has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
This matter concerns an application for parenting orders in respect of the child X, born 2012 (“X”). In circumstances where the father and the paternal grandmother have failed to appear in these proceedings, the matter has proceeded on an undefended basis. In doing so, I refer to the affidavit of the Independent Children’s Lawyer (“the ICL”) dated 28 September 2021, which sets out the attempts made to ensure that the father and the paternal grandmother are aware of these proceedings. I note that by way of an email sent yesterday on 4 October 2021, the Court received an email from the paternal grandmother indicating that the parties were aware of these proceedings and further advising that they were not intending to participate. In those circumstances, the matter has proceeded on an undefended basis.
By way of overview, regrettably, despite attempts that have been made in the past by the mother, the ICL, officers of the Court and, indeed, officers of the Department of Health and Human Services (“the Department”), as it was then known, to facilitate the child having a relationship with the father, that has not been possible. This has been as a result of the father’s failure to address challenges he experiences as a result of substance abuse. Accordingly, I have made orders as sought by the mother, which are supported by the ICL. Those proposed orders are as follows:
(1)All previous parenting orders be discharged.
(2)The Mother have sole parental responsibility for the child X born 2012 (“X”).
(3)X lives with the Mother.
(4)Spend time or contact between the Father and/or paternal Grandmother (“the Applicants”) and X be entirely at the Mother’s discretion, and on such terms and conditions as the Mother requires.
(5)X be permitted to travel outside the Commonwealth of Australia, notwithstanding that the consent of the Father has not been obtained.
(6)The Mother is permitted to apply and maintain a passport for X without obtaining consent of the Father AND IT IS requested that the Department of Foreign Affairs issue a passport for the said child upon application by the Mother.
(7)All extant applications be dismissed.
(8)Any other orders this honourable court deem appropriate.
By way of background, the father was born in 1988 and the mother was born in 1990. The parties commenced cohabitation in October 2011 and X was born in 2012. In May 2013, an intervention order was made against the father, naming the mother and the child as protected persons. This occurred following the father attempting to remove the child from the mother’s care by breaking into her home. In 2014, the father commenced to see the child on alternative weekends. As a result of the father regressing in his use of amphetamines, the child’s time with the father was suspended. However, it resumed in January 2017 in circumstances where the father stated he had given up use of amphetamines.
In June 2017, the mother re-partnered with Mr B. On 27 August 2017, orders were made for the father to return the child to the mother’s care in circumstances where the father had over-held the child, expressing concerns that the child was at risk of harm due to the presence of Mr B in the mother’s household. On 14 November 2017, the father failed to attend a court event relating to the mother’s pursuit of parenting orders. Further, the father failed to file documents in accordance with directions made. On 28 March 2018, the father filed a response seeking weekend time and half of the school holidays with the child. Additionally, the father sought an order that the child live with him on a week-about basis in circumstances where he was able to secure appropriate accommodation.
On 3 April 2018, orders were made for the child’s time with the father to be suspended and for the appointment of an independent children’s lawyer. On 15 May 2018, the parties reached agreement in respect of consent orders, whereby the child commenced spending three nights each fortnight with the father. Those orders provided, at Order (11), that the father was to complete drug testing at the request of the mother. Despite several requests, the father completed only one drug screening test, which tested positive for use of an illicit substance. On 11 December 2018, final parenting orders were made by consent providing, inter alia, for the child to live with the mother and spend time with the father on alternative weekends, and half of the school holidays and special occasions.
On 16 February 2020, the father filed a fresh application for parenting orders. On 23 March 2020, the Department received a report pursuant to ss 162(1)(d), (e) and (2) of the Child, Youth and Families Act 2005. The report raised concerns for the sexual and physical wellbeing of the child in the care of the mother. Specifically, the report alleged that the child was at risk as a result of potentially being exposed to sexual abuse at the hands of the maternal uncle, whom the Department noted had been found by police to have had child pornography material in his possession.
Following investigation, the Department determined that the child was not at risk of such abuse in the mother’s care and expressed confidence that the mother has, and will continue to, protect the child from any potential abuse at the hands of the relevant maternal uncle. In the Department’s s 67 report to the Court, the Department noted, inter alia, that Child Protection has assessed that there is insufficient evidence to suggest that X is at immediate or significant risk of harm in the care of the mother and will not take any further action. The Department also noted reports from the child’s school that the child was progressing well at school, that there were no behavioural issues, and the school was not concerned about the welfare of the child in the mother’s care.
In their s 67 report to the Court, the Department recommended that efforts be made to re-establish the child’s relationship with the father:
…upon evidence to suggest he is not using methamphetamines.
In that context, the Department recommended a monitoring regime where the father engaged in random, supervised urine drug screening and engagement with drug and alcohol treatment services. The Department further recommended that the child’s time with the father should commence, on a supervised basis, to support their reconnection and to monitor and support the child’s behaviour to minimise any regression.
As noted by counsel for the mother and counsel for the ICL, regrettably, the father has not complied with a drug treatment and monitoring regime. Accordingly, it has not been possible for the child’s relationship with the father to be restored. The child has not spent any face‑to‑face time with the father since May 2019, and the last telephone or FaceTime contact between the child and her father was on 17 September 2020. On 28 September 2020, orders were made suspending the previously ordered time between the child and the father until the father provided a hair follicle test that did not detect illicit substances. Orders were made providing for supervised time with a supervised contact service in the event of a clear hair follicle test being provided.
Those orders were made in circumstances where both the father and the paternal grandmother appeared in person and were self-represented at the proceedings. Unfortunately, no such drug screening test has been provided. This matter was listed for mention before me on 19 February 2021, at which time there was no appearance by the father or the paternal grandmother, despite court officers attempting to telephone both parties. On that basis, this matter was set down for hearing today before me. Both the mother and the ICL have provided relevant evidence, and I have referred to the affidavit of the mother and as well as the affidavit of the ICL, that goes to the issue of service.
By way of formality, I will place on the record, in respect to the issue of service, the email received by my associate from the paternal grandmother yesterday, 4 October 2021, which reads:
To whom it may concern. Due to the inability to afford further representation, not being eligible to obtain legal aid or to afford the tests required, especially during this pandemic, I can’t see my son receiving a fair trial. Therefore, with a heavy heart, we have no option to withdraw our request for access to [X].
(As per the original)
The paternal grandmother’s initials and name were at the bottom of that email. Despite the contents of that email, I am satisfied that the primary reason that the child’s relationship with the father has not developed and, on the basis of the evidence presented, is not reasonably capable of developing into a meaningful relationship, is as a direct result of the father’s failure to address the challenge he experiences with substance abuse.
In terms of the relevant legal principles, I refer to a recent decision I handed down: Baines & Tanner [2021] FedCFamC1F 69 at paragraphs [66]–[69] and [71]–[82].
Both the ICL and the mother have provided comprehensive and detailed submissions in respect to the Court making orders that are in the best interests of the child, having regard to the relevant s 60CC considerations set out in the Family Law Act 1975 (Cth) (“the Act”).
By way of summary, in the context of the findings I have made regarding the background, I note as follows. Firstly, in respect to the issue of parental responsibility, I find that:
·The father has not participated in the proceedings since September 2020 and did not attend the s 11F child and family assessment.
·While the father is experiencing drug addiction, there is little hope that the parents can effectively co-parent together; and
·As noted in the child and family memorandum dated 18 September 2020, the parties’ relationship has become hostile with a mutual lack of trust and there has been a communication breakdown.
The report writer also noted, at paragraph 32, that it appears unlikely that the parents will be able to work cooperatively and to make decisions together regarding the child. In those circumstances, I am satisfied that an order for sole parental responsibility should be made. Also in those circumstances, the requirement of s 65DAA does not apply such that the Court is not required to consider orders for the child to spend equal or substantial time with the father. The Court, rather, has the task of making such orders as it considers in the best interests of the child in the circumstances.
In terms of the s 60CC(2)(a) primary consideration of the child having a meaningful relationship with the father, I accept the submissions that although X would benefit from having a meaningful relationship with both parents, it is not in her best interests to have contact or a relationship with the father while he is having his current problems associated with drug addiction.
In that context, it is significant that the father has failed to participate in these proceedings and, most relevantly, undergo the necessary steps to have a relationship with X, which is, essentially, to undertake drug rehabilitation therapy and enter into a program of ongoing monitoring.
The second primary consideration, which is related to the first, is the need to protect the child from the risk of harm, either psychological and/or physical in s 60CC(2)(b). In these circumstances, I am satisfied that the child would be at risk of both psychological and physical harm in the care of the father in circumstances where he was under the influence of illicit substances. I accept and agree with the submission of the mother, supported by the ICL, that, in those circumstances, his behaviour is likely to be erratic and unreliable.
I also accept the evidence that, when drug-affected, the father is not child-focused in his communication and interaction with X. I further accept the unchallenged evidence of the mother that the child demonstrates significant behavioural and emotional problems after spending time with the father, which is of concern. I further accept the evidence of the mother that, in the period subsequent to the child not spending time with the father, her behaviour has been much more settled. The mother’s evidence in that respect is confirmed in the report provided by the Department to which I have earlier referred. That report, in turn, refers to information that the Department received from the child’s school.
In summary, there is unquestionably an unacceptable risk in making orders for the child to spend time or communicate with the father unless and until he takes action to address and monitor his use of illicit substances. Regrettably, insofar as it is a predictor of the future, over the past several years, the father has been unable to do that.
In terms of the additional considerations of s 60CC(3)(a), X is nearly nine years old. I accept the mother’s evidence that X is clear in her statements that she no longer wishes to spend time with her father, although I note that at one stage she indicated, at the start of 2020, that that was her desire. Despite indications at that time, I accept that this has changed in the months since then, and I accept the mother’s evidence that the child makes no mention of the father or paternal grandmother.
In terms of s 60CC(3)(b), I accept the evidence that, quite clearly, the relationship between X and the father has been difficult, with the father being unreliable in the past and often not attending at the appointed times in respect to contact arrangements. As I have indicated, X has not spent time with the father since May 2019 or spoken to him since September 2020. As noted, X has indicated that she no longer has a desire to spend time with the father and has not made reference to that prospect occurring, or to the prospect of spending time with the paternal grandmother, since September 2020.
I accept the mother’s evidence that X’s behaviour and demeanour has improved, as confirmed in the report from the child’s school, and I also accept the evidence of the mother that the father has, by his own choice, had minimal input in making long-term decisions in relation to X.
This is despite the fact that the father has the mother’s contact details, including telephone numbers and email addresses, and has been able to contact the mother regarding decisions about X, and he has not attempted to do so.
In terms of the mother, I accept that the mother has been the parent who has had primary responsibility of the child since the child was born and has made decisions in respect of school selection, medical decisions and also religious decisions.
In terms of s 60CC(3)(c), the father has failed to take the opportunity to participate in spending time and communicating with X, despite orders that, at the very least, provided for him to have regular FaceTime communication with X pending hair follicle drug screening tests.
I note, in that respect, that at the hearing on 7 August 2020, Senior Registrar Hoult made orders for the father to have telephone contact with X. Of the 13 possible opportunities to make those calls, the father called X on only three occasions, with the last call occurring on 17 September 2020. As I have indicated earlier, X has not had communication with the father since that time.
It is also relevant that, on 28 September 2020, Senior Registrar Hoult suspended the 7 August 2020 orders until the father had provided the ICL and the mother’s lawyers with hair follicle test results that did not detect illicit substances. That has not occurred. At the case management hearing on 19 February 2021, I noted that neither the father nor the paternal grandmother appeared before me.
Due to the lack of contact from the father and his failure to comply with the orders, the father has not participated in making decisions about major long-term issues in relation to the child since May 2019. The father has not spent time with the child, as I have indicated, since May 2019, or communicated with the child since September 2020. The father has failed to produce hair follicle test results as required in these proceedings and also as required by Child Protection. If he had done so, it would have facilitated the father spending time with the child.
In terms of s 60CC(3)(d), X has a strong and loving relationship with the mother and her brother, Mr C. As I have indicated, the mother has been the primary caregiver for X throughout her life. X’s brother and mother have been the only constant people in X’s life.
On the basis of the evidence presented by the mother, which I accept, the child enjoys a secure and stable relationship and family life with the mother. I have also accepted the evidence of the mother that the child has been unsettled on occasions that she has spent time with the father. I also accept the mother’s evidence that, since the child has not spent time with the father and the paternal family, she has become a much happier and healthier child with significant improvements in schooling, behaviours and social relationships.
In terms of s 60CC(3)(f), the mother has, clearly and admirably, been able to provide for the needs of X, whereas the father has provided little support. The mother, in addition to providing a loving and secure environment, as noted by the ICL, has sought appropriate counselling for X to assist X to better manage her behaviours and has organised tutoring to address X’s learning difficulties. Pleasingly, as I have indicated, the mother’s efforts in that respect are bearing some fruit. Comparatively, I accept the mother’s evidence that the fact that the father has been adversely impacted by his addiction to illicit substances has impacted upon his ability to engage with the child and, one can reasonably infer, has impacted upon his ability to engage with the child even by way of electronic communication, despite orders being in place for that to occur.
There has not been evidence presented by the paternal grandmother or the father in these proceedings, but I note the mother’s concern, which appears to me to be reasonably based, that orders providing for the child to spend time with the paternal grandmother risk that such spend time orders will be used as an opportunity for the child to spend time with the father. In so finding, I accept the mother’s evidence that that has previously occurred.
In terms of s 60CC(3)(g) and (i), I accept that the mother has cared for X and provided a secure, loving environment for her in her home with her brother, and has attended to the child’s best interests. Comparatively, the father has failed to undergo hair follicle testing and provide evidence of attempts to address his illicit substance problem and to engage in an ongoing program of monitoring.
In terms of the issues of family violence in s 60CC(3)(j) and (k), I note that there has been historical family violence against the mother by the father. In January 2014, the police took out an intervention order in the circumstances that I referred to above. In late 2013, the police were also called after the father arrived at the home, drug-affected and alcohol‑affected, and engaged in extremely aggressive conduct towards the mother. I accept the mother’s unchallenged evidence that the father’s actions included attempting to take X from the mother’s care at a time when she was only three months old.
As a result of that history of violence, I accept that the mother has genuine concerns, not only about the child’s safety but also her own safety, in circumstances where the father is under the influence of illicit substances.
In terms of other considerations, counsel for the mother outlined the orders sought by the mother for the mother to be able to obtain a passport for the child and for the child to be permitted to travel overseas. Those proposed orders are set out in paragraphs 5 and 6 of the mother’s Minute of Order. In the circumstances outlined to me by counsel for the mother, I accept that it is likely that if such orders were not made, there would be further disputation in the event that it was necessary for the mother to approach the father for his consent to permit the child to travel overseas.
There has been no suggestion that the mother would not return the child to Australia, and I accept the submission of counsel for the mother that it would be in the child’s interests to be able to engage in such overseas travel in the future, including, for instance, with a school excursion or by way of engaging in travel with the mother.
Accordingly, for all these reasons, I make orders as sought by the respondent mother, which are supported by the ICL.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 25 January 2022
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