Mahoney & Houston
[2018] FamCA 71
•15 February 2018
FAMILY COURT OF AUSTRALIA
| MAHONEY & HOUSTON | [2018] FamCA 71 |
| FAMILY LAW – CHILDREN – Parental responsibility – With whom a child lives – Where child currently lives with father and spends time with mother – Whether the mother is capable of caring for the child on a full time basis – Whether father’s parenting is affected by use of illicit substances – Whether unacceptable risk of the child being exposed to family violence – Whether child’s wishes should be determinative – Where ordered for father to have sole parental responsibility for all major long term decisions – Where ordered for child to live with father and spend time with mother – Where ordered for child to be able to communicate with other parent when not in their care |
| Family Law Act 1975 (Cth) |
| Baghti & Baghti [2015] FamCAFC 71 Banks & Banks (2015) FLC 93-637 Colgan & Colgan [2014] FamCA 828 Goode & Goode (2006) FLC 93-286 SCVG & KLD (2014) FLC 93-582 |
| APPLICANT: | Mr Mahoney |
| RESPONDENT: | Ms Houston |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | LEC | 35 | of | 2013 |
| DATE DELIVERED: | 15 February 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 14 February 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Dart |
| SOLICITOR FOR THE APPLICANT: | Burgess Family Law |
| FOR THE RESPONDENT: | No appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Carmody |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Order
The following Parenting Order shall apply for the child L born … 2006 (“child”) and all previous parenting Orders in respect of the child shall be discharged.
That the child live with the father.
Parental Responsibility
The father shall have sole parental responsibility for all major long term issues (as that term is defined in s 4 of the Family Law Act 1975 (Cth)) concerning the child.
In respect of major long term decisions that are within the sole parental responsibility of the father:
(a)that the father advise the mother in advance of making any long term decisions relating to those matters, of the details of his proposed decision and the reason(s) for his proposed decision;
(b)that the mother advise the father within 14 days of being notified by him pursuant to the preceding subparagraph, if she disagrees with his proposed decision and the reason(s) for that disagreement and any counter proposal;
(c)that the father consider any response from the mother before making a definite decision and advise the mother of the decision he has made and the reasons for it.
Notwithstanding paragraph 3 of this Order:
(a)the mother shall be responsible for the daily care, welfare and development of the child when the child is in her care; and
(b)the father shall be responsible for the daily care, welfare and development of the child when the child is in his care.
Time between the mother and the child
The child shall spend time with the mother as follows:
(a)during the child’s school terms on the last weekend of each calendar month, from conclusion of school on Friday until 5.00 pm Sunday (or 5.00 pm Monday if it is a public holiday or pupil-free day) except in the month of May, when the mother’s time with the child shall take place on the weekend on which Mother’s Day falls in lieu of the last weekend in May.
(b)if the mother’s weekend with the child falls on the weekend of Father’s Day, in lieu of spending time with the child on that weekend, the mother shall spend time with the child on the third weekend of that month.
(c)during the child’s school holidays on the following basis:
(i)during school term school holidays for the first half of those holidays in years ending in an even number and otherwise the second half;
(ii)in respect of term school holidays, visits during the first half of the holidays shall commence at midday (NSW time) on the last day of the child’s school term (day 1) and conclude at midday (QLD time) on the eighth day following;
(iii)in respect of term school holidays, visits during the second half of the holidays shall commence at 4.00 pm (NSW time) on the eighth day of the holidays (the last day of school term being day 1) and conclude at midday (QLD time) on the second last day of the child’s holidays;
(iv)in respect of the end of year school holidays, in years ending in an even number the mother shall spend time with the child for the first half of the holidays and otherwise the second half of the holidays; and
(v)the child’s end of year school holidays shall be taken to commence at midday the day following the child’s last day at school and conclude at midday on the second last day of the child’s school holidays.
(d)at such other times and for such other periods as may be agreed upon between the mother and the father, from time to time, in writing.
Collection and delivery
The arrangements for the child to spend time with the mother pursuant to this Order shall be implemented by the mother collecting the child from the child’s school (or another agreed venue in H Town) at the commencement of her visit and the father collecting the child from the kerbside of the mother’s address at the end of her visit.
The mother and the father shall each do all acts and things as may be necessary so as to ensure they are each punctual when implementing the child’s changeovers in accordance with this Order.
Telephone and Skype communications between the child and the parents
During those periods when the child is in the father’s care, the father shall use his best endeavours to facilitate the child having telephone and/or Skype (or similar) communication with the mother at any reasonable time requested by the child and in any event Skype (or similar) communication each Tuesday, Wednesday and Thursday between 6.00 pm and 6.30 pm and the father shall use his best endeavours to ensure the child has a quiet and private place to communicate with the mother in this regard.
During the child’s school holiday periods when the child is in the mother’s care, the mother shall use her best endeavours to facilitate the child having telephone communications with the father each alternate evening between 6.00 pm and 7.00 pm (commencing from the second evening the child is in the mother’s care).
In the event the child is in the father’s care on Christmas day, New Year’s Day or the mother’s birthday in accordance with this Order, the father shall use his best endeavours to facilitate the child having telephone or Skype communications with the mother on each of those days between the hours of 7.00 am and 8.00 am.
In the event the child is in the mother’s care on Christmas day, New Year’s Day or the father’s birthday in accordance with this Order, the mother shall use her best endeavours to facilitate the child having telephone or Skype communications with the father on each of those days between the hours of 7.00 am and 8.00 am.
The telephone communication between the parties and the child shall be initiated by the party telephoning the child on the other party’s telephone number.
On all occasions the child is to have telephone communications with the mother in accordance with this Order, the father shall do all acts and things as may be necessary so as to:
(a)allow the child to speak with the mother; and
(b)in the event the child misses a telephone communication from the mother, arrange for the child to telephone the mother as soon as is possible and practicable thereafter.
On all occasions the child is to have telephone communications with the father in accordance with this Order, the mother shall do all acts and things as may be necessary so as to:
(a)allow the child to speak with the father; and
(b)in the event the child misses a telephone communication from the father, arrange for the child to telephone the father as soon as is possible and practicable thereafter.
Exchange of Information
The mother and the father shall do all acts and things and sign all documents as may be necessary so as to:
(a)keep the other parent informed, at all times, of their residential address, email address, landline and mobile telephone numbers;
(b)keep the other parent informed of the names and addresses of all treating medical or other allied health practitioners who treat the child, from time to time, and authorise those practitioners to provide the other parent with all information they are lawfully able to provide about the child; and
(c)inform the other parent, as soon as reasonably practicable and by the best means available, of any medical condition, significant health issue or illness suffered by the child and in the event of the child being admitted to hospital for emergency treatment, treatment by an ambulance crew, or being taken to a medical practitioner for urgent treatment following any accident, injury or sudden illness. This Order authorises any treating medical practitioner to release the child’s medical information to the other parent.
This Order shall not prevent either the mother or the father from having the child treated, as a matter of urgency, for any sudden injury or acute illness or other medical or dental emergency which may arise in relation to the child during her respective periods of care, but in the event of such treatment being required, the parent arranging such treatment shall immediately and by the best means available, notify the other parent of the following details:
(a)the name and contact details of the medical professional administering the treatment;
(b)the medical or other complaint for which the child was taken to the medical professional; and
(c)any treatment and/or medication prescribed for or provided to the child and the reasons for the prescribing or provision of such medication and/or treatment.
The mother and the father authorise, by this Order, all schools attended by the child, from time to time, to provide to each of them all information/documentation sought by them in relation to the child’s welfare, progress and activities at school, from time to time (including, but not limited to, providing the mother and/or the father with copies of school newsletters and other notes/letters to parents, copies of the child’s school reports, details of the child’s parent/teacher interviews, copies of order forms for the child’s school photographs and certificates and awards obtained by the child), at each parent’s own cost.
The mother and the father shall each be at liberty to contact the teachers and/or principal(s) and/or administrative staff of all schools attended by the child, from time to time, (by telephone, in writing or in person), in order to obtain the information/documentation referred to in the preceding paragraph of this Order.
Overseas travel
The father shall be at liberty to take the child out of the Commonwealth of Australia during any of those periods when the child lives with him in accordance with this Order and at such other times as shall be agreed upon between the mother and the father, in writing, on the following conditions:
(a)the father shall give the mother not less than 8 weeks’ written notice of such intention; and
(b)at least 6 weeks immediately prior to the departure date, the father shall provide to the mother:
(i)an accurate, written itinerary for the trip, including, but not limited to, departure and return times and dates, the place(s) and country/countries the child will be travelling to and the approximate dates on which the child will arrive and depart each destination;
(ii)a telephone number/numbers and address/addresses at which the child and the travelling party can be contacted during the duration of the child’s holiday; and
(iii)copies of the child’s forward journey and return journey tickets or electronic tickets, (including air tickets).
That the child’s passport shall be held by the father.
Family Law Watch List
The mother, her servants and/or agents are hereby restrained from taking or sending or attempting to take or send the child from the Commonwealth of Australia.
The Court requests that the Australian Federal Police place the name of the said female child, L born … 2006, on the Family Law Watch List at all points of international arrivals and departures in Australia and maintain her name on the list until the child attains the age of 18 years for the purpose of preventing removal of the child from Australia by the mother in breach of this Order or by the mother’s servants/agents.
The Marshall and all officers of the Australian Federal Police and the Police Forces of the States and Territories are requested and authorised to give effect to this Order.
It is requested that the Ukraine Consulate refuse to include in the mother’s passport or in any other form, the name of the child and further that the Ukraine Consulate refuse to grant a passport for the child.
Miscellaneous
The mother and the father shall each do all acts and things as may be necessary so as to ensure that any changes they may wish to make to the Order contained herein and/or any additional/different arrangements they may wish to make in respect of the child’s living arrangements, from time to time, are discussed directly between each of them or via their respective family lawyers, and not discussed with or in the hearing or presence of the child.
That during all of those periods when the child is living with the mother and father in accordance with this Order, the mother and the father shall each:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)speak of the other parent respectfully; and
(c)not denigrate or insult the other parent or members of the other parent’s family, their friends or their partner/spouse to or in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent or members of the other parent’s family, their friends or their partner/spouse to or in the presence or hearing of the child.
Should the child express to the father a wish to communicate with or spend time with her siblings, the Father shall use his best endeavours to facilitate such time.
Default obligations
Each party shall do all acts and things reasonably required of the other including the signing or execution of all necessary documents to give effect to the provisions of this Order within 7 days of being requested to do so. In the event a party refuses or neglects to sign or execute and return a document within 7 days of presentation to them or a solicitor representing them then pursuant to Section 106A of the Family Law Act 1975 (Cth), a Registrar is hereby appointed and directed to sign or execute the same in the name of the defaulting party upon presentation of such document and an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.
The costs of and incidental to such request and production of documents to the Registrar shall be borne by the defaulting party without further Order of this Honourable Court and may be taxed or fixed by the Registrar and thereafter shall be recoverable from the defaulting party by the other party as a debt and an affidavit of the solicitor acting for the non-defaulting party or from the non-defaulting party themselves shall be sufficient proof of the other party’s default.
Notation:
A.It is noted that the mother uses various other names including Ms Houston, Ms Mahoney, ….
B.The father has indicated to the Court that he will refrain from using cannabis and this is a matter that the Court has taken into account when making this parenting Order.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mahoney & Houston 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 BRISBANE |
FILE NUMBER: LEC 35 of 2013
| Mr Mahoney |
Applicant
And
| Ms Houston |
Respondent
REASONS FOR JUDGMENT
These proceedings concern L (“the child”) born in 2006.
The child’s parents, Mr Mahoney (“the father”), and Ms Houston (“the mother”) cannot agree on parenting arrangements. The current arrangements are that the child lives with the father and generally spends time with her mother on a weekend each month during school term and for half the school holidays.
History of the proceedings
The proceedings were commenced by the father on 29 January 2013. Various interim orders have been made since that time and the matter was transferred to this Court in or about 2014.
The matter was placed in a ‘pool’ of cases ready for trial in or about late 2015.
Due to the backlog in this Court, it was not until 13 October 2017 that this matter was listed for trial for three days commencing 14 February 2018. Trial directions were made requiring each party to file their affidavits of evidence in chief by 24 January 2018 and an updated family report was ordered.
On 15 January 2018 the mother filed an application to adjourn the trial. Her application was dismissed on 19 January 2018 but the time by which she was to file her affidavit material was extended to 9 February 2018.
On 31 January 2018 the mother filed a second application to adjourn the trial. That application was dismissed on 8 February 2018.
The Order made on 8 February 2018 granted the mother leave to issue a subpoena to her treating general medical practitioner to give evidence by telephone in the event that the mother made any further application for an adjournment of the trial. No such application was made and no subpoena issued.
The mother did not file any material.
The mother did not attend the hearing on 14 February 2018. The matter was stood down so that attempts could be made to contact the mother by telephone. The mother was invited to make an application to participate in the hearing by telephone but she declined that invitation.
The hearing continued in the mother’s absence.
The only witness required for cross-examination was the father.
The reports of three experts were received into evidence together with certain documents produced to Court pursuant to subpoenas.
Proposals
The father proposes that the child continue to live with him and that he have sole parental responsibility for major long term issues. Further, the father proposes that the child continue to spend one weekend each month with the mother and half holidays.
Although the mother took no part in the hearing it is apparent from the family report prepared in November 2017 that the mother was proposing that the child live with her and spend alternate weekends and half holidays with the father. The mother proposed that she would be responsible for the transport on the weekends and that she and the father share the transport each holiday period.
The independent children’s lawyer supports the child continuing to live with the father and spending time with the mother as proposed by the father. However, an order for sole parental responsibility to the father was not supported nor the restriction on the mother travelling overseas with the child.
Issues
Although the hearing proceeded without any input from the mother the Court is nevertheless required to consider the matters set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”) before making a parenting order.
The following issues have be identified as particularly relevant to the determination of what parenting order is proper:
a)Whether the mother is capable of looking after the child on a full time basis by reason of her mental and/or physical health and/or alleged misuse of prescription medication and/or alleged obsession with computer games;
b)Whether the father uses illicit substances and, if so, how this impacts on his parenting ability;
c)Whether there is an unacceptable risk of the child being exposed to family violence; and
d)the child’s wishes.
Background
The father and mother commenced a de facto relationship in 2005 and married in early 2007. They separated on a final basis in March 2011, initially continuing to live under the same roof before the father and the child left the matrimonial home in November 2011. The mother and father are now divorced. There were separations prior to their final separation.
During their relationship the parties lived in a number of locations including Brisbane, the Ukraine, Perth in Western Australia and the North Coast of New South Wales.
The father is 50 years of age and a tradesman by occupation although he is currently unemployed. He lives in H Town in New South Wales with the child, who has lived with the father since the parent’s separation in 2011 apart from a brief period at the commencement of 2013 when the mother refused to return the child to the father after a holiday visit.
The mother is 44 years of age and in receipt of a disability support pension. She lives in BB Town about four hours’ drive away from the child’s residence.
The mother was born in Russia and grew up in the Ukraine. She emigrated to Australia in the late 1990’s to marry Mr Houston. The mother and Mr Houston have three children. One of these children is 18 and the other two are 17 year old twins.
In early 2007 the mother and Mr Houston were involved in court proceedings which resulted in an order that the three Houston children live with the mother and spend time with Mr Houston.
In contravention of that order the mother relocated with her three older children to the Ukraine. The father and the child followed soon after. The father returned to Australia in about February 2008 when his visa expired. The mother and the four children returned to Australia in about May 2008. The father, mother and the four children lived in Perth, Western Australia.
The father and mother separated from about May to about October 2008 and during this time the child lived at times with the mother and her half-sisters in Perth and at other times with the father and his parents in New South Wales.
This period of separation was a time of considerable upheaval for all four children. The mother was unwell at times and according to the information provided by her to Dr DD, psychiatrist, (whose report is in evidence) she took an overdose of the pain medication ‘tramadol’ and was admitted to hospital.
After the father and mother reconciled the father suffered an injury at work and was unable to work from in or about 2009 until after separation in 2011. The family relocated to New South Wales in 2009.
The mother was admitted to hospital for three weeks in 2009 because of suicidal ideation. It seems there were further hospital admissions in relation to suicidal ideation in 2011 and 2012.
The mother and Mr Houston were involved in further court proceedings resulting in an order being made in early 2010 that the three Houston children live with Mr Houston and for the mother to spend supervised time with them at a contact centre in X Town, New South Wales.
In 2012 the mother briefly returned to Western Australia and is reported to have informed both Dr DD and Mr FF, psychologist, (whose report is also in evidence) that she worked in the sex industry.
The eldest Houston child continues to live with Mr Houston but the twins have lived with the mother since sometime in early 2015. Sadly the twins have no relationship with their older sister.
The mother has been in receipt of a disability support pension for about 18 years in relation to a back injury allegedly sustained at the time of birth of her twins.
According to Ms GG, family report writer, the mother conceded to having developed a dependence on her pain relief medication which makes her “drowsy”.
The mother relocated to BB Town in or about November 2012 and proposed at that time that the child live with each parent on a month about basis. The father opposed this arrangement particularly given that such an arrangement would have required the child to attend two different schools.
For a period of some months in 2013 the mother suffered amnesia and there were further periods of hospitalisation.
The child has maintained a relationship with the mother since separation although her time with her mother was intermittent until the end of 2015 and since then she has generally spent at least one weekend per month with the mother during school term and some of her holidays. During the period March 2013 until the end of 2015 time between the mother and the child was supervised at a contact centre.
The child commenced at the H Town High School in 2018.
how parenting applications are determined
Part VII of the Act sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and of course the Court.[1]
[1] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637
The Court is not required to make findings of fact on every factual dispute raised by the parties.[2]
[2] Baghti & Baghti [2015] FamCAFC 71
The objects of the Act are set out in s 60B(1) and are to ensure that the best interests of children are met by:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children; and
e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Section 61C provides that each parent has parental responsibility for a child subject to any order made by the Court.
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.
Although I may not specifically discuss in these reasons each subparagraph of each relevant section in what is sometimes referred to as the ‘legislative pathway’ I have considered all sections as required when making my determination.[3]
Expert evidence
[3] Banks & Banks (2015) FLC 93-637
Dr DD
Dr DD is a psychiatrist who interviewed the parents in February 2014 for a psychiatric assessment. In relation to the mother he opined that her history was consistent with a “long-standing personality disorder with predominantly borderline and histrionic features.” In his opinion such a condition is likely to reduce the mother’s ability to cope with difficulties associated with child-rearing. He described such a condition as fluctuating and unpredictable. Persons suffering from such a condition are “likely to have emotional overreactions to children’s behaviour and be unable to tolerate difficult behaviour. They also reflect emotions back to children in an unmodified or even accentuated form rather than providing normal containment and emotional muting associated with parental reflection of emotion.” Such parents can pose an emotional risk to their children and in the current case he opined that “[the mother’s] long history of this regulated behaviour would be potentially very distressing if witnessed by her children”.
Dr DD recommended that the mother have long term psychological therapy addressing the nature of her interpersonal relationships and functioning which he considered was likely to involve years rather than months given the “length and severity of her dysfunction”.
In his view the mother and child should spend supervised time together until the child was in late primary school or the mother demonstrated a long period of emotional stability as evidenced by consistent geographical location, ability to maintain a therapeutic relationship with a treating mental health practitioner and an absence of chaotic interpersonal behaviour or psychiatric admissions.
The father was assessed as having no diagnosable psychological or psychiatric condition.
Mr FF
Mr FF is a psychologist who interviewed the parents, the child and the paternal grandparents on 27 February 2014. The release of his report was delayed pending release of Dr DD’s report which is dated 31 October 2014. Mr FF had the benefit of Dr DD’s psychiatric assessment of the parents prior to completing his report.
At the time of interview the father described the mother as a “good mum” and said he would like to see the child being able to spend time with her mother away from a contact centre. While expressing concern about the mother being “irrational” he did not have concerns that the mother would hurt the child. The father expressed concerns about the mother’s ability to provide consistent care for the child.
The mother expressed concerns about the father’s use of cannabis. The mother raised issues of violence during their relationship but refuted any physical violence. It is common ground that there were frequent verbal arguments between the parents when they were in a relationship.
The mother and father agreed to be interviewed together. The mother proposed at that time that the child live for half her time with the mother and half with the father even though this would necessarily require her to attend two different schools. The father proposed that the child live with him but spend unsupervised time with the mother.
The mother reported to Mr FF a history of suicide ideation and attempts to commit suicide.
In his observations of the mother and the child, Mr FF concluded that they had a healthy relationship and the mother appeared to be adequately emotionally available to the child. There were no signs of distress, anxiety or apprehension. Mr FF drew similar conclusions as a result of his observations of the father and the child.
Mr FF noted the mother’s presentation as “waif like and [she] wore old jeans and a loosely fitting pink jumper which frequently fell off her shoulders and made bare her upper torso.” In Mr FF’s opinion the mothers “dress code was provocative and inappropriate for the social context of assessment.” In his view the mother was “disorganised in her stream of thought”.
Mr FF concluded that the father had a greater capacity to provide for the child’s emotional needs and was more likely than the mother to promote a relationship with the other parent. He formed the view that the mother’s needs were likely to take precedence over the child’s. Mr FF considered that co-parent consultation and decision making would be complicated and recommended that the father have sole parental responsibility.
Mr FF recommended that the child continue to live with the father and commence to spend gradually increasing unsupervised time with the mother.
Ms GG
Ms GG is a senior mental health clinician with Legal Aid Queensland and holds formal qualifications in social work and psychology.
Interviews for the preparation of her family report were conducted on 29 November 2017 and involved the father, the mother and the child.
The mother informed Ms GG that she was involved in the arts. The mother reported that she has no contact with her eldest child who continues to live with Mr Houston in an area proximate to the father and the child. She identified her mother, neighbour and friends as her support network. She reported that the twins had not attended any schooling since January 2017, suffer “severe social anxiety” and are not employed. The mother acknowledged a history of suicidal ideation and suicide attempts and a two month period of amnesia in early 2013. She reported having made a false claim that she was suicidal in 2009 with the aim of being assessed for free. The mother complained that her current anti-depressant medication was causing a lot of problems and side-effects.
As to the reasons why the mother could not move closer to the child the mother explained that BB Town was a better location for her to exhibit her art and that the twins did not want to move because Mr Houston lived in the same general area as the child. Further she reported that she relies on her mother to provide assistance because of her health conditions and did not believe that medical appointments would be as readily accessible if she moved to H Town.
The mother complained that she had been misquoted in the report prepared by Mr FF but provided no particulars.
The mother acknowledged that the father loved the child and that he believed he was doing the right thing by the child. She identified the paternal grandfather as a very positive role model in the child’s life stating he is “terrific – an amazing man – best [Grandad] ever”.
The father reported to Ms GG that he was a very infrequent user of cannabis and denied the mother’s allegations relating to his use and involvement with drugs. He maintained that the last occasion he had used cannabis was three weeks prior to the interview after a funeral and that prior to that he had not used cannabis for about a year. The father confirmed these matters during his oral evidence but conceded that he had also used cannabis on New Year’s Eve 2018. He denied exposing the child to cannabis. He denied growing cannabis or dealing and expressed an intention to refrain from future use of cannabis altogether.
The father described the mother’s strengths as a mother as being – “warm and nurturing with the child” and said she was a “good mum” and that the child would benefit greatly from a close relationship with the mother as she enters puberty.
It is apparent from Ms GG’s interview with the child that the child misses her mother and would like to see more of her. the child described it as “hard” since her mother relocated. the child explained that she misses each parent when she is away from them. the child expressed a preference to live with the mother because her mother “cooks dinner every night – when she is not sore” whereas her father regularly gets takeaway. She also said that the mother “forces me to eat two pieces of fruit each day – she makes sure I’m healthy”. The child said she would be upset if the Court ordered her to continue to live with the father.
As to her future the child expressed a wish to live on a farm and work with animals.
Ms GG concluded that the child enjoys a close and loving relationship with each parent and despite the child’s expressed wishes, she recommended that the child continue to live with the father and continue to spend time with her mother at least monthly including school holidays. Ms GG expressed concern about the mother’s inability to facilitate the twins’ attendance at school, work or therapy to address the issues identified by the mother. In her opinion while the child presented as a “resilient and reasonably mature child, the decision of relocation requires a level of maturity far beyond that possible of a child of the child’s age.”
Evidence concerning the twins
The records from the II School in relation to the twins were tendered into evidence and I note with considerable concern that neither child attended school in 2015 with sufficient regularity to enable them to be assessed in any of their subjects. Most of their absences are unexplained. The school contacted the mother on many occasions and sought to provide assistance and remind her of her obligations to ensure the twins attended school. In May 2015 the mother is reported to have said that one twin feared people and the other had anger management issues. In June 2015 the mother is reported to have said to the school that she could not do anything to address the issues as the twins were “too big” to make them do anything. The twins are reported to have said to the school staff member “we are terrorists” and that they had a bomb and would bomb the school.
The twins were enrolled in a TAFE supported school in late 2015 but the records from TAFE 2016 indicate that the twins rarely attended in either 2015 or 2016. Messages left for the mother went unanswered and the twins were in the end excluded from attending.
Other evidence concerning the mother’s health
In May 2017 the mother was apparently involved in a car accident which resulted in a claim by her for damages. In a report by Dr JJ, neurosurgeon and spinal surgeon, dated 4 October 2017 he states that his examination was “hampered by significant inconsistency with bizarre gait with functional pattern”. He describes this as follows:
[Ms Houston] demonstrated a shuffling gait whereby she would drag her left lower limb along the floor seemingly having no ability to lift her foot, although could do so when she sat down. She also demonstrated zero voluntary movement against resistance at the ankle but without wasting, and then quivering of the left lower limb with weightbearing such that she had to “jump” to place her weight on her right lower limb which in fact confirmed normal power rather than significant weakness of her left quadriceps as indicated.
The mother was using a wheelchair (confirmed in Dr KK’s notes referred to below) but Dr JJ states that he can find no physical or organic reason for the use of a wheelchair. He obviously found it difficult to provide a diagnosis due to the inconsistencies in examination but concluded that the mother had an “inexplicable worsening of left sciatic symptoms with numbness and new right sided symptoms of numbness in the lower limbs but without MRI evidence of an acute lesion which may explain this. This most likely represents aggravation of a chronic condition…”
Dr KK, general medical practitioner, appears to have been the mother’s treating doctor and his records for the period 10 January 2014 to 13 November 2017 were received as an exhibit. The mother has been treated for chronic back pain and depression throughout that time. There were a number of unsuccessful attempts to wean the mother off her pain medication (Oxycodone) and she was referred to a pain clinic although it is unclear whether the mother attended. On a number of occasions the mother appears to have run out of her antidepressants and was advised against doing so.
There is no evidence that the mother has undertaken the therapy recommended by Dr DD in 2014.
The mother’s capacity to parent
As the mother failed to file any material as required by the Order made on 13 October 2017 and declined to participate in the proceedings, the evidence relating to her parenting capacity is limited to information purportedly provided by her to the experts engaged in the preparation of reports, the father’s evidence and the documents tendered during the hearing.
Discussion about the mother’s capacity
Sadly it appears the mother has struggled with mental and physical ailments for many years. I accept Dr DD’s opinion that the mother suffers from a personality disorder which causes considerable dysfunction in her life and that she requires intensive therapy.
In my view the impact of the mother’s various conditions negatively impact on her ability to provide appropriate full time parenting for the child. The mother’s twin daughters have not attended school with any regularity since coming into her care in or about early 2015. This has had a devastating impact on their education.
While I have no information about the twins’ current functioning I accept Ms GG’s opinion that it is concerning that the mother has been unable to address any of the issues surrounding them in the time they have lived with her. I conclude that this inability is more likely than not to be related to her personality disorder and perhaps her reliance on medication that causes drowsiness.
I accept that the mother’s capacity to function at an appropriate level may fluctuate but her care of the twins does not augur well for her ability to appropriately parent the child.
I also find that the mother has historically been unable to prioritise the child’s best interests over her own needs, e.g. relocating to BB Town in 2012; proposing that the child attend two different schools while sharing her time with the mother and father.
There is insufficient evidence for me to make any findings about whether or not the mother’s interest in playing computer games interferes with her ability to parent. Nor is there sufficient evidence for me to find that the mother misuses her pain medication although as noted there have been numerous unsuccessful attempts by her treating doctor to reduce her prescription.
The father’s use of illicit substances
The only evidence relating to the allegations by the mother is contained in the unsworn complaints attributed to the mother in the various expert reports.
The father concedes using cannabis as a young man but denies anything other than occasional use in recent years. In his oral evidence he admitted to using cannabis in or about early November 2017 after a funeral and again on New Year’s Eve (although the latter occasion was only conceded during re-examination). The father denied exposing the child to cannabis and denied dealing or producing his own cannabis. I gained the impression that the father was not too perturbed about engaging in what is a criminal activity. He stated that he intended to refrain from future use because of the health impacts. I consider it to be contrary to the child’s best interests for the father to continue using cannabis. It has the potential to expose her to criminal elements and presents poor role modelling.
There is no reliable evidence that the father is an habitual cannabis user or that he has exposed the child to cannabis. There is no evidence that his past use of cannabis has directly impacted on the child.
Ms GG opined that there was no evidence of which she was made aware that indicated the child’s behaviour was indicative of a child raised by a substance-using parent. No such evidence has been produced during the trial.
The father failed to comply with two requests made of him by the independent children’s lawyer to submit urine analysis drug testing. The first request was made on 30 October 2017. The father said in oral evidence that he attended at the pathology clinic but it was closed. He attended again but as he did not have a doctor’s referral the clinic declined to take a sample. He returned to the clinic after intervention from his solicitor and a sample was taken but it was destroyed before analysis because he was unable to obtain a doctor’s referral in time. The father maintains he was unaware of the second request.
While the father’s actions do tend to raise some suspicion that he may have avoided the drug test I am not prepared to infer that his failure should cause me to find he is a user of illicit substances (other than as admitted) or that he thereby poses an unacceptable risk of harm to the child.
Family violence
There are no protection orders in place nor is there evidence of a protection order ever being made against either parent.
It is common ground that the parties had verbal arguments during their relationship and the father concedes that on one occasion he threw a plate in the sink in frustration.
The mother has not alleged to any of the experts that there was any physical violence perpetrated upon her by the father but family violence can, of course, take many forms other than physical violence.
Whatever may have been the situation when the parties were together there is no evidence of any family violence since the parties separated in 2011.
I note that during the 2014 family report interviews the parties consented to a joint interview from which I infer neither party was fearful of the other.
I accept Ms GG’s assessment that:
93. In my opinion, the violence described by both parents would be best categorised as ‘conflict-instigated violence’; in which an argument has escalated to the point of violence. There were no elements of coercion or control identified by either parent and no instances of the violence becoming physical in nature. While verbal violence may be harmful to children, there were no allegations that any verbal violence was directed at the child. This leads me to believe that the risk of the child being exposed to verbal violence are greatly reduced since the parents’ separation, and given neither parent is currently in a relationship.
the child’s wishes
In 2014 when the child was interviewed by Mr FF she was only spending supervised time with her mother and she said she felt sad after leaving her mother but “okay once I get home”. She was at that time living with her father at his parent’s farm near H Town. the child said that if her mother was sick or her car broke down she did not see her but the mother “usually comes”.
The child missed her older siblings and wanted to see more of them. the child spoke of being worried if she did not know what her mother was doing.
When the child was interviewed by Ms GG in November last year she indicated a preference to live with the mother but her reasons for that preference are less than convincing. As noted above she referred to the mother cooking her meals and insisting she ate two pieces of fruit.
In my view, the child’s stated preference did not take into account the impact such a decision would have on her life. She is by all accounts a very accomplished sportsperson and competes regularly in competitions. The child’s paternal grandfather, in particular, is heavily involved in her sporting pursuits and her paternal grandparent’s farm is about six kilometres from where she lives. The child told Ms GG that she saw herself living on a farm and having a future working with animals. Such opportunities are unlikely to be available if the child were living with her mother at BB Town.
The child clearly sees a lot of her paternal grandparents and for a couple of months at the end of last year she spent the week nights at their home because the father’s work commitments required him to leave home early in the morning. The father nevertheless spent time with the child each evening and on weekends. the child and the father have lived with the paternal grandparents at various times. I note that the mother spoke very highly of the paternal grandfather during her interview with Ms GG.
I have no doubt that the child would like to spend more time with her mother and half siblings. Her eldest sibling lives nearby but she rarely sees her or communicates with her. The father described an occasion when the child had seen her eldest sibling at a competition and they had hugged each other and spent some time together. Sadly the father has not been proactive in ensuring the child maintains communication with her oldest sibling. the child spends time with the twins when she spends time with the mother and is in frequent communication with them via Skype.
I do not find the child’s stated preference to live with her mother as determinative. I have formed the view that her stated preference was indicative more of her missing her mother and siblings rather than a considered wish to change her place of primary residence. The impact of such a change would in my view be devastating for the child.
Other matters
Under the Act there is a presumption that equal shared parental responsibility is in the best interests of a child. The presumption may be rebutted if such an order would not be in the child’s best interests.
The independent children’s lawyer submitted that I should make no order about parental responsibility. Absent an order each parent retains parental responsibility.
In circumstances where the mother has been diagnosed with a personality disorder which has historically, at least, caused dysfunction in the mother’s life and in circumstances where the mother has been unable to manage the twins’ education I consider there should be an order made for sole parental responsibility in favour of the father. There may well be occasions in the future where decisions are required to be made about major long term issues for the child and she may require a passport. I am not satisfied that such decisions could necessarily be made in a timely manner absent an order in the favour of the father. I see no benefit for the child in failing to grant the father sole parental responsibility. I consider that a failure to make an order is more likely to lead to further litigation between the parties.
The order proposed by the father requires him to involve the mother in the decision making process for major long term issues and I consider that to be appropriate but in the event the parties are unable to agree the father will be able to make the decision.
An order for sole parental responsibility will also enable the father to obtain a passport for the child without the mother’s consent. He is not a flight risk and it is foreseeable that the child may at some future time wish to compete in sporting competitions at some overseas destination or travel overseas on holiday.
The independent children’s lawyer submitted that the mother should also be at liberty to travel overseas with the child. I am not persuaded that the mother’s current functioning would enable her to provide appropriately for the child in such circumstances and I also consider her to be a flight risk given her actions in 2007 when she removed the older children from Australia to live in the Ukraine in contravention of an order by this Court. In coming to this conclusion I have taken into account that the Ukraine is a signatory to the United Nations Convention on the Civil Aspects of International Child Abduction but I do not consider this fact to be a sufficient protection.
The independent children’s lawyer initially submitted that both parties be restrained by injunction from using illicit substances in the context of their care for the child. As discussed with counsel I see little utility in making an order enjoining someone from committing a criminal offence. In the context of parenting proceedings it might also be interpreted that such an order somehow condones the illegal activity at other times. I respectfully agree with the observations made by Rees J in Colgan & Colgan:[4]
[28] An order which restrains a person from using prohibited and illegal substances for specified periods before spending time and during the time spent with the children implicitly suggests that such use is condoned by the court at other times. Such an inference is inappropriate and an application in those terms is not appropriate and should not be made.
[4][2014] FamCA 828
I also note that there is no evidence suggesting that the mother has used illicit substances.
The independent children’s lawyer submitted in the alternative that a notation be included in the order as follows:
The Father has indicated to the Court that he will refrain from using illicit substances and it is a matter that the Court has taken into account when making these Orders.
In the father’s proposed order he too included a proposed notation in the following terms:
It is further noted that any use by the parties of illicit substances when the child is in their respective care is contrary to the child’s best interests.
As both parties supported some notation regarding drug use I propose to adopt the form of words submitted on behalf of the independent children’s lawyer save to record the indication was made in relation to the use of cannabis as the father denied any history of using any other illicit substance.
Conclusion
I am satisfied that the child has a close and loving relationship with each parent and her paternal grandparents and that those relationships should be maintained. I accept that the child wishes to spend time with her half siblings and each parent should facilitate those relationships. It seems the child spends time with her maternal grandmother at times that she spends time with her mother.
Despite the child’s stated preference I have come to the conclusion that it is in the child’s best interests to remain living in the primary care of the father and spend time at least monthly with the mother. I am satisfied that the child will be able to maintain a meaningful relationship with the mother in such circumstances and I am satisfied that the father will continue to facilitate the child’s relationship with the mother.
I also consider it to be in the child’s best interests for the father to have sole parental responsibility for major long term issues.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 15 February 2018
Associate:
Date: 15/02/2018
Key Legal Topics
Areas of Law
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Civil Procedure
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Standing
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Procedural Fairness
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Natural Justice
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