Macey and Liddell and Anor

[2018] FamCA 1027

FAMILY COURT OF AUSTRALIA

MACEY & LIDDELL AND ANOR [2018] FamCA 1027

FAMILY LAW – CHILDREN – Interim – With whom a child spends time – Where the mother opposes the child spending any time with the father – Where the father seeks to spend time with the child under professional observation at a contact centre – Where the father has spent lengthy time in jail – Where there are concerns about the father’s history of anger, aggression, alcohol and illicit substance use – Where the father’s compliance with parole conditions is a concern – Where the father has not engaged in therapy for anger management – Whether risk to the child is outweighed by the benefit of spending time with the father.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61DA

Dieter & Dieter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
Marvel v Marvel [2010] FamCAFC 101
MRR v GR (2010) 240 CLR 461

APPLICANT: Mr Macey

1st RESPONDENT: Mr Liddell

2nd RESPONDENT: Ms Macey

INDEPENDENT CHILDREN’S LAWYER: Nicholas Eid Lawyer

FILE NUMBER: ADC 1539 of 2014

DATE DELIVERED: 7 December 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 23 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Praolini

SOLICITOR FOR THE APPLICANT: Angela Ferdinandy

COUNSEL FOR THE 1ST RESPONDENT: Mr Tredrea

SOLICITOR FOR THE 1ST RESPONDENT: Carmen Wood & Associates

COUNSEL FOR THE 2ND RESPONDENT: Ms Ross

SOLICITOR FOR THE 2ND RESPONDENT: Clelands Adelaide Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Lewis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Nicholas Eid Lawyer

Orders

1. That the Amended Application filed 20 September 2018 is dismissed.

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 Macey & Liddell and Anor 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 ADELAIDE

FILE NUMBER: ADC 1539 of 2014

Mr Macey

Applicant

And

Mr Liddell 

First Respondent

And

Ms Macey
Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. Mr Liddell (“the mother”) and Mr Macey (“the father”) are the parents of X born in 2012 (“the child”).

2. The child lives primarily with the mother and spends limited time with Ms Macey (“the paternal grandmother”) pursuant to orders made 29 September 2018.

3. By Amended Application in a Case filed 20 September 2018 the father seeks orders that he spend time with the child at the Suburb E Contact Centre on 12 occasions with an observational report being provided at the conclusion of the sixth and twelfth sessions.

4. The application is in anticipation of the father seeking more substantive time with the child.

5. The application is supported by the father’s Affidavit filed 16 November 2017 and his Further Affidavit filed 23 November 2018.

6. The mother opposes any order that would see the child spending time with the father.

BACKGROUND

1. Proceedings were originally commenced by the father on 27 June 2012.  On 25 October 2012 the proceedings were finalised by the making of consent orders which provided for the child to spend time with the father each Saturday and Sunday from 10 am to 5 pm except for the first weekend of each calendar month, each Wednesday from 10 am to 4 pm, one Thursday in each month from 10 am to 4 pm and one Tuesday each month from 10 am to 4 pm.

2. It appears that the father’s Application in a Case filed 16 November 2017 and the subsequent Amended Application relied upon the father’s Initiating Application of 27 June 2012 still being before the Court.

3. In 2014 the father was arrested and charged with a violent crime.  During the course of the incident he suffered a minor cut to his right hand and a small cut to his head.  There was adverse psychological sequelae for some months thereafter.

4. The father pleaded guilty and relied upon a report from Mr G, psychologist.  The father accepted that he had a long history of drug and alcohol abuse starting at around age 15.  He had blackouts and there were periods of impulsivity.  He used cannabis from an early age and developed paranoid ideation.  He commenced using methamphetamines and accepted that as at the date of offending he was using a substantial quantity of the illicit drug each day.  He experienced delusions and drug-induced psychosis.  He has attempted suicide and his psychologist was of the opinion that he suffered from Antisocial Personality Disorder and of relevance to the current proceedings had difficulty in managing anger.  At the time of his sentencing he had been in custody for almost a year.

5. He presented to the Court with a long history of prior offending which included driving offences and offences involving violence.  A conviction for assault causing harm in 2009 resulted in the father receiving a suspended sentence of three months and three weeks.  In 2013 he was convicted of assault causing harm and sentenced to six months imprisonment which was also suspended upon his entering into a bond of good behaviour for two years.  The 2014 offence was committed during the period of his bond.  The father was sentenced to a term of imprisonment of six years with a non-parole period of three years and ten months.

6. The father was released from prison in late 2017 and resides with his sister.

7. In his Affidavit filed 23 November 2018 he provides an explanation for his non-attendance in Court on 26 September 2018.  He states that his car had broken down in the H Town area and he was out of mobile phone range.

8. His counsel has tendered a bundle of documents from the Parole Board.  The father refers to his recent remand for a breach of parole and explains the breach by referring to occasions early upon his release where he was ill and not able to attend his appointments with the Corrections Officer.

9. He was released from remand on 19 November 2019 and concedes that he has not had any further appointments with his psychologist Mr M nor does he intend to do so, although there exists the possibility that he will obtain psychological assistance via the Aboriginal Prisoner Offender Service.

10. He also seeks to explain why two drug tests returned positive readings for amphetamine use on 12 June 2018 and 11 July 2018.  The father contends that the positive results were as a result of his benign use of a cold and flu medication that he had obtained from his mother’s home.

11. The mother opposes the father’s orders and refers to previous affidavits where she sets out serious domestic violence perpetrated by the father.

12. Dr K, psychiatrist, psychiatrically assessed the father and by reference to his report dated 13 March 2018 considered that the father was suffering from an “antisocial personality disorder”.  He considered that his stimulant use disorder and alcohol use disorder were both in remission based on the father’s reporting.

13. The psychiatrist summarised the father’s presentation as follows:-

    [The father’s] history is very concerning.  He has a long history of abusing illegal drugs (although he said he had not used any illegal drugs since 2013).  He has a history of anger and aggression and he has been convicted twice and he has been to jail once.

14. In terms of his prognosis, the psychiatrist considered:-

    [The father’s] prognosis is guarded given that he tended to attribute his problems to others and given that he has been out of jail since November but he has not started seeing a psychologist or psychiatrist.  On the other hand, if he does engage well with a therapist, and if he does abstain from illegal drugs and alcohol, then he may show significant improvement.

15. Exhibit “2” includes documents from the Parole Board following a request from the father’s solicitor.

16. The Parole Board executed a Warrant on 30 October 2018 for the purpose of bringing the father back before the Board.  It was alleged that:-

    Advice from your Community Corrections Officer indicates that you allegedly breached your parole by failing to report for supervision for a total of 7 weeks since 2 March 2018 and on 2 May 2018; failing to report for supervision on 24 May 2018, 25 May 2018 and 5 June 2018; failing to report for supervision on various occasions since 19 June 2018 and failing to report for supervision on 18 September 2018, 25 September 2018 and 27 September 2018.

17. The import of that information is to support the mother’s assertion that the father did not attend Court on 26 September 2018 for reasons other than mechanical breakdown.

18. By reference to Minutes prepared by Ms L dated 28 September 2018 to the Parole Board, it is alleged that the father had been non-compliant with reporting as directed to his corrections officer.

19. By reference to a further report to the Parole Board of 14 November 2018, Ms L summarises the father’s presentation as follows:-

    Although [the father] suffers from Antisocial Personality Disorder, given his non-compliance with reporting and having returned positive test results for amphetamine in both June 2018 and July 2018, the writer considers [the father’s] non-attendances may have been his attempt to avoid regular drug and alcohol testing.  With his poor compliance and superficial engagement with services, it is recommended that [the father] remains in custody awaiting his interview with the Parole Board.

20. The report also refers to the father’s statements that he had appointments scheduled with Mr M for 2 August 2018.

21. In his family report dated 19 June 2018, the family consultant recommended that the child spend time with the father for a 12 month period subject to supervision.

22. An important consideration for the family consultant is his assessment at [104]:-

    [The child’s] time with [the father] is more difficult to ascertain.  A balance needs to be struck between the benefits against the risks.  Given [the father’s] history with drugs, alcohol, violence and mental health issues, the culmination of these risk factors is concerning.  [The father] has been released from jail for less than 7 months and remains under the vigilant eye of his parole officer.  The writer gives weight to [Dr K’s] comments of probable antisocial personality disorder and the need for supervision.

23. I consider that the family consultant intended that his recommendation of supervised time was at best tenuous and was entirely dependent upon the extent to which the father could satisfy the Court that he was attending to his difficulty in controlling his anger, his propensity for violent conduct and the extent to which he continues to use alcohol and/or illicit substances.

24. Critical to that assessment would be the input and opinion of a suitably qualified psychologist or psychiatrist.

INTERIM PARENTING

1. In Marvel v Marvel [2010] FamCAFC 101 the Full Court considered the approach to be adopted when presented with contested evidence:-

   120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders.  Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted.  This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children.  Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   …

   122.In SS v AH [2010] FamCAFC 13 the majority (Boland & Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

2. In Dieter & Dieter [2011] FamCAFC 82 the Court was concerned where the contested facts related to an assessment of risk and it was said at [61]:-

   … Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending upon the evidence that is before the court.

3. The Full Court in Goode & Goode (2006) FLC 93-286 considered the principles applicable to parenting at an interim proceeding now affirmed by the High Court in MRR v GR (2010) 240 CLR 461.

4. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the principles underlying Part VII of the Act.

5. Section 60CA requires that in deciding whether to make a particular parenting order the best interests of the children are the paramount consideration.

6. The Court is then obliged to consider the provisions of s 60CC as to the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3).

7. In particular, and relevant to the current proceedings, when applying considerations as set out in s 60CC(2), taking into account s 60CC(2A), the Court is to give greater weight to the need to protect a child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.

8. Section 61DA of the Act provides that when making a parenting order the Court must apply the presumption that is in the best interests of the child for the child’s parents to have equal shared parental responsibility but that the presumption does not apply where:-

   (a)There are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence (s 61DA(2));

   (b)In interim proceedings if the Court considered it would not be appropriate in the circumstances for the presumption to be applied when making the order (s 61DA(3)); and

   (c)The Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests (s 61DA(4)).

PARENTING CONSIDERATIONS

1. The father seeks an order that he spend time with the child supervised at a children’s contact centre.   The mother opposes that order and contends that whilst the child may not be at physical risk, there exists the risk of psychological and emotional harm to the child if time resumes and then the father’s circumstances do not permit for a long term order being made.

2. Section 60CC(2) provides that:-

   The primary considerations are:-

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. The mother alleges that the father has perpetrated serious family violence.  She considers that she is at risk from the father and remains fearful of him.  She has no confidence in the paternal grandmother given her belief that she allowed the child to come into contact with the father notwithstanding the order of injunction. The mother is further concerned by the observation of the family consultant that the paternal grandmother would not make an appropriate supervisor given her apparent unqualified support of her son.

4. There is only a scant relationship between the child and the father.  The child told the family consultant that it was nice to see the paternal grandmother and the father during the observed interaction.  There has been little or no quality time spent between the father and the child since his incarceration in November 2013.

5. It was incumbent on the father to recognise the obvious areas of concern and present evidence that would enable the Court to assess whether the risks presented to the child as discussed by the family consultant were outweighed by the benefits of resuming a relationship with the father.

6. Since his release from prison in November 2017 it does not appear that the father has accessed with any energy the therapy that was considered necessary by the Parole Board and the father himself.

7. There is the uncertainty as to the reason why the father did not attend Court on 26 September 2018. The breach of his parole based upon his non-attendance for mandatory appointments and interview, together with two failed drug tests are issues that at the very least raise the spectre of the father not having addressed serious behavioural issues.  There is no evidence of the father engaging in any therapy in respect of anger management or family violence.

8. The affidavit material filed in support of the amended application is scant and does little more than highlight the substantial deficiencies and issues that arise from the Parole Board papers.

9. The proceedings are soon to be listed for a first day hearing and it is likely that a trial date will be given in the second half of 2019.

10. In the circumstances as presented I do not consider that it is in the best interests of the child to make orders in terms of the father’s amended application.

11. I make orders as appear at the commencement of these reasons.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 7 December 2018.

Associate: 

Date:  7 December 2018