MASTERS & KAZAN

[2012] FamCA 1048

FAMILY COURT OF AUSTRALIA

MASTERS & KAZAN [2012] FamCA 1048

FAMILY LAW – CHILDREN –Best interests of the child – With whom a child lives –  Where there is a history of domestic violence – Where the Father has a significant history of drug addiction – Where the Father has failed to appear and has not filed any recent material – Where the Father has failed to comply with requests for drug testing – Where the Father has only spent minimal, supervised time with the child – Mother to have sole parental responsibility – Child to live with the Mother – Child to not spend time with or communicate with the Father

Family Law Act 1975 (Cth)

APPLICANT: Mr Masters

RESPONDENT: Ms Kazan

INDEPENDENT CHILDREN’S LAWYER: Jennifer Boulton

FILE NUMBER: BRC 11159 of 2009

DATE DELIVERED: 12 December 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 12 December 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance by the Applicant Father

SOLICITOR FOR THE RESPONDENT: The Respondent appearing in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr George of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jennifer Boulton Solicitors

Orders

1. The Mother have sole parental responsibility for making major long term decisions for the child, B (“the child”), born … November 2006.

2. The child live with the Mother.

3. The child shall not spend time with or communicate with the Father.

4. The Mother be at liberty to approach the Registry of Births, Deaths and Marriages in the state of Queensland to have the child’s name changed to B Masters Kazan, being the name the child is known as and that such change be recorded on the child’s Birth Certificate, and the court give approval for the Mother to change the child’s name without the Father’s signature on any Registry of Birth, Death and Marriages’ required documents.

5. The Mother be at liberty to approach the necessary government departments and passport office to renew the child’s current passport which is due to expire in September 2014, and if required the Mother be at liberty to apply for a new or replacement passport now and at any time in the future, and the court give permission for the Mother to do so without the Father’s consent or signature on the application documents.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Masters & Kazan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11159  of 2009

Mr Masters

Applicant

And

Ms Kazan

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These are parenting proceedings concerning the child, B, born in November 2006. The parties commenced co-habitation at C Town in November 2003 and ceased co-habitation in early 2005. Between November 2003 and 2007 it is clear on the evidence before me that the Father regularly used and was addicted to illicit drugs, including prescription medication, and was verbally and physically abusive to the Mother.

2. The uncontested evidence, given that the Father has not appeared today, a matter about which I will say more, is that in late 2004 the Father made an attempt to hang himself. In June/July 2006, the parties attempted again to live together when the Mother was pregnant with the child. However, after only about a month, the Mother returned to live with her own mother after threats of violence from the applicant Father and fear for her children’s safety, the children being a reference to her child of an earlier relationship, Ms D, who is now 18 and B then yet to be born who is namely the child.

3. Whilst there is no appearance by the Father today, reference to historical affidavits he has filed confirms admissions by him to the effect that during the period the parties were cohabiting just referred to the family was threatened by “drug dealers” and the Father was also found unconscious on an occasion in a hotel room with fire arms, drugs, and drug-making equipment.

4. As already noted, in November 2006, the child was born. Again, on the evidence of the Mother which I accept, between October 2006 and October 2007, the Father continued to display violent behaviour towards the Mother and a Protection Order was applied for by the police on her behalf. That Order was obtained and was breached by the Father and it is clear that the police attended the home on numerous occasions due to complaints from neighbours about hearing and observing fighting and violence. In that period the Father was admitted to the C Town Hospital for a drug overdose and for threats to kill himself. He was also charged with weapon offences, amongst other charges, and the E Town Drug Court, as it is known, made Orders for the Father to attend rehabilitation. On the first attempt, he was ejected from rehabilitation after some two nights. The Father was also charged with assaulting the Mother and being in breach of the Protection Order in about May 2007.

5. The Mother deposes, and I accept, that in November 2007 she found needles in the bathroom of the C Town property and the Father yet again agreed to attend rehabilitation. Between December 2007 and January 2008, the Mother was granted no contact Domestic Violence Orders in relation to the Father.

6. In February 2008, the Mother deposes that the Father spent a one hour period at the park spending time with the child under the supervision of the Mother and the paternal grandmother. That was the last time the Father spent time with the child prior to Orders made in early 2011. Before that, in about mid-2008, the Father requested mediation so that he might visit the child and supervised visits at the Foundation Contact Centre were agreed to. But the Father failed to attend the first visit and no further visits were scheduled.

7. On 5 March 2009, a protection Order was again made in favour of the Mother and was in force until 16 October 2010.

8. As a consequence of interim Orders made in early 2011, following the Father filing his initiating application on 17 December 2009, Orders were made for the child in effect to be reintroduced to the Father. The parties and the child were ordered to attend upon Ms F, family consultant, for regular meetings and for a family report to be prepared. Pursuant to paragraph four of those Orders, the child was to spend time with his Father at the C Town Contact Centre for two hours on alternate Saturdays to commence as soon as available. In the event, those visits terminated with the last of those visits being in October 2011 through it would seem the actions of no one but the Father.

9. For the purpose of these proceedings, the Father has been represented from time to time as is reflected through the Orders made in the course of the proceedings reaching this trial stage. However, according to the court file records, it would seem that in terms of affidavit material the Father has not filed any current material nor has he complied with any of the various Orders which required him to file material for the purpose of a trial. The most recent affidavit on the court file filed by the Father appears to be an affidavit he filed on 11 March 2010.

10. The court has the benefit of expert evidence. First, there was a psychiatric report dated 24 August 2010 compiled by Dr G who at that time recommended that some time be recommenced but that being contingent upon the Father demonstrating an abstinence from drugs by evidence of clean drug testing and that such time be supervised. The idea then was that the child be reintroduced to the Father under the supervision of a counsellor with a reassessment of the matter six months later.

11. To similar effect, family reports have been obtained from the family consultant, and again, the thrust of those reports was focused upon the potential reintroduction of the child to his Father in the context of what appeared to be the ongoing difficulties the Father had in terms of his addiction to drugs, and more importantly from the child’s point of view and the point of view of the Mother’s comfort about the child’s safety, the consequences of his drug use with respect to his own behaviour as has already been briefly referred to.

12. The family report of Ms F of 23 April 2012 highlighted some significant issues requiring assessment at the time of that report including the Father’s capacity and commitment to developing and maintain a significant relationship with the child; the impact of the Father’s past drug-affected behaviours; the impact those behaviours had had upon both the Mother and its potential effect upon the child; and the Mother’s capacity to move past that point in terms of being able to willingly support the child having an ongoing relationship with his Father. Of course the overriding question amongst all of that was the benefit, if any, of the child having an opportunity to know who his biological Father is and to have an ongoing relationship with him.

13. Whilst there were certain recommendations in that report that would have seen the child having an introduction to the Father and a level of supervision it was replete with many conditions none of which it seems on the evidence before me have been fulfilled by the Father. As was observed by Ms F, at paragraph 45 of that particular report, the Mother was struggling with her willingness to support the child having an ongoing relationship with the Father and there was observed by Ms F the possible need for her to receive therapeutic help to assist her with her own personal experiences, to move past those, to allow the child to enjoy supervised time with the Father.

14. In a similar theme, an affidavit by Dr G, expert psychiatrist, filed on 25 March 2011 contained a psychiatric assessment. Dr G observed of the Mother at the time of her assessment that the Mother was describing symptoms of post traumatic stress disorder and Dr G expressed the opinion that these symptoms would increase if the Father were to have unsupervised visits with the child. At that time, the Mother’s daughter from a previous relationship, D, was also observed by Dr G to be displaying similar symptoms and was fiercely defensive of the child. Dr G believed that there would be a threat to the stability of the Mother’s family were the Father and the child to have unsupervised time together.

15. Dr G assessed that the child himself seemed not to have knowledge of the Father and whilst she thought this to be contrary to his interests and that on that basis some contact was recommended, again it was subject to the proviso that the Father overcome his significant addiction already referred to. Dr G raised concerns about the Father’s propensity to relapse into drug addiction and the abhorrent behaviour as a consequence. Dr G reached the conclusion that any time the Father spent with the child should be contingent on the Father having demonstrated via drug testing an abstinence from drugs; that any time ought be supervised; and that any reintroduction would have to be supervised by an experienced counsellor with the potential for a review to occur six months after the introduction of the child to the Father.

16. Of course, a lot of water has passed under the bridge since March 2011 but relevantly, as exhibit 1 in the proceedings demonstrates, the Father has been non-responsive to opportunities given to him by the Independent Children’s Lawyer to participate in drug testing which would reveal whether or not he has met the conditions or questions raised by both the experts, Ms F and Dr G.

17. Much of the foregoing resonates with many of the section 60CC considerations I am bound to apply in determining orders in the child’s best interests. In particular, the primary consideration of the benefit of a child having a meaningful with both parents is matched by another primary consideration important in this context, which is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. It is axiomatic that unless and until the Father demonstrates that he is free of his addiction to drugs there will be an ever present need to protect the child from the potential referred to. Moreover, in terms of assessing the benefit to the child of a meaningful relationship, of course in the abstract there might be benefit to any child having a meaningful relationship with a parent and the ability to know the parent. But in the context of this case, and in the case of this Father, that parent must be free of drugs and free of the consequences of his demonstrated abhorrent behaviour when affected by drugs.

18. I do not propose to list seriatim each of the additional considerations expressed in s60CC(3) as it will be already apparent from what I have already observed that many of those observations resonate with many of the considerations expressed in s60CC(3).

19. I accept the evidence of the experts and I accept that the Mother legitimately requires the Father to demonstrate fulfilment of the conditions that have been identified by experts before this matter can move past its present state, that is, where the Father is not seeing the child. If the Father is to have any meaningful relationship with the child, it is predicated upon him demonstrating the ability to comply with the conditions that have been identified by the experts which I accept. Moreover, that is the starting point for the Mother being able to address the prospect of the child having a relationship with the Father even in a supervised setting.

20. Against all of that background, the child, who is represented by an Independent Children’s Lawyer represented by Counsel before me today agrees with the Orders sought by the Mother in terms of the Mother’s further amended response filed 7 December 2012. That is, the Independent Children’s Lawyer and the Mother both contend that those Orders meet the child’s best interests in the current circumstances.

21. I am satisfied that the Father has had ample opportunity, given the Orders and directions of the Court, to press his application and the fact that he has done nothing to comply with the directions and extends to his failure to appear today puts serious questions upon whether he will ever fulfil the conditions but at least at this point whether he even suggests any attempts in a meaningful way to fulfil the conditions already referred to.

22. In those circumstances and for those brief reasons I am satisfied it is in the child’s best interests to make Orders in terms of the final orders as sought by the Respondent Mother set out in her further amended response as referred to and I make those Orders.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 12 December 2012.

Associate: 

Date: 12 December 2012