Mawson and Redding
[2017] FCCA 2769
•21 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAWSON & REDDING | [2017] FCCA 2769 |
| Catchwords: FAMILY LAW – Parenting – risk of harm to child – mother’s illicit drug use – issues of credit – child to live with father – child to spend limited time with mother. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG |
| Cases cited: Goode v Goode (2007) 36 FamLR 422 Slater & Light [2011] FamCAFC 1 Starr & Duggan [2009] FamCAFC 115 |
| Applicant: | MR MAWSON |
| Respondent: | MS REDDING |
| File Number: | PAC 5174 of 2015 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 5 and 6 June 2017 |
| Date of Last Submission: | 6 June 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 21 November 2017 |
REPRESENTATION
| Appearing for the Applicant: | Mr Storie |
| Solicitors for the Applicant: | Roderick Storie Solicitors |
| Appearing for the Respondent: | In person |
| Counsel for the Independent Children's Lawyer: | Mr Fermanis |
| Solicitors for the Independent Children's Lawyer: | Claremont Legal |
ORDERS
All previous parenting orders with respect to the child X born (omitted) 2013 be discharged.
The father shall have sole parental responsibility for the child.
The child shall live with the father.
The child shall spend time with the mother as follows:
(a)each Sunday from 10:00am until 6:00pm.
To facilitate Order 4 above, the father shall deliver and collect the child from the mother’s residence.
The mother is hereby restrained by injunction from permitting the child to come into contact with Mr A or permitting or causing third parties to do so.
The mother is hereby restrained by injunction from consuming any illegal drugs 24 hours prior to spending time with the child and during the times the child spends with the Mother.
Within 7 days from the date of the making of these orders, the mother shall contact Wesley Brighter Futures (omitted) on (omitted) and request to be assessed for suitability to access the service.
In the event that the mother is deemed suitable by Wesley Brighter Futures (omitted) to participate in their services, the mother shall fully engage with the service and comply with all requests by staff of their service.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Mawson & Redding is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5174 of 2015
| MR MAWSON |
Applicant
And
| MS REDDING |
Respondent
REASONS FOR JUDGMENT
Introduction
These are final parenting proceedings with respect to the child X born (omitted) 2013. At the time of hearing, the child was not yet 4 years old.
The parties to the proceedings are the Applicant father, Mr Mawson and the Respondent mother, Ms Redding.
The child has been living with the father since February 2016.
Issues for Determination
Before the Court are competing applications between the parents as to where the child is to live, and consequently what time the child is to spend with the parent with whom he is not living. The issue of parental responsibility also requires determination.
However, the competing applications are to be determined in the context of a matter which looms large in these proceedings, and that is the issue of whether the mother poses a risk to the child by reason of her consumption of illicit drugs.
Documents relied on
The father relied on the following documents at final hearing:
a)Amended Initiating Application filed 18 November 2016;
b)Notice of Risk filed 26 October 2015; and
c)Affidavit of Mr Mawson sworn 30 January 2017 and filed 31 January 2017.
The mother relied on the following documents at final hearing:
a)Response filed 13 May 2016;
b)Affidavit of Ms Redding filed 13 May 2016; and
c)Handwritten Affidavit of Ms Redding dated 6 January 2017, which became Exhibit 1 in the proceedings.
The following documents became Exhibits in the proceedings:
a)Exhibit 1 – Handwritten Affidavit of Ms Redding dated 6 January 2017; and
b)Exhibit 2 – Drug screening results of Ms Redding dated 15 April 2016, 22 April 2016 and 29 April 2016.
Best Interests Considerations
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. The central enquiry is for the Court to determine the outcome that will be best for the child the subject of the proceedings.
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.
The child’s best interests are ascertained by a consideration of the objects and principles in s.60B and the primary and additional considerations in s.60CC.[1] It is well recognised that the additional considerations may outweigh the primary considerations.[2] In applying the primary considerations set out in subsection 60CC(2), the Court is to give greater weight to the consideration set out in paragraph (2 )(b).
[1] Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 at [9]; The Full Court in Goode v Goode[1] mandated that the legislative pathway must be followed in all parenting cases. The High Court in MRR v GR [2010] HCA 4 affirmed the legislative pathway
[2] see for example Slater & Light [2011] FamCAFC 1at [45]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence: s.60CG (1)(b)[3]. The Court may include[4] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[3] See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)
[4] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
In Starr & Duggan[5] the Full Court stated that the legislation does not mandate consideration of the relevant sections in any particular order. The Full Court in McCall & Clark[6] also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be dual consideration of some matters. This is so because consideration of the s.60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals.[7]
[5] [2009] FamCAFC 115 at [38] per Boland, Thackray & Watts JJ
[6] [2009] FamCAFC 92
[7] See discussion in Starr & Duggan [2009] FamCAFC 115 at [35]-[36]
Background
The mother was born on (omitted) 1978 and is currently aged 39 years old.
The father was born on (omitted) 1983 and is currently aged 34 years old.
The mother has two children from a previous relationship, A who was born on (omitted) 2003 and B who was born on (omitted) 2007.
The parties commenced a relationship in 2010.
The only child of the parties, X was born on (omitted) 2013.
During the parties relationship the father worked long hours between 5am and 5pm as a (occupation omitted). The father says that when he would arrive home from work he would notice that the mother had done very little around the home during the day. The father would prepare dinner and shower the children[8] and prepare them for bed.
[8] Including the mother’s two older children
The father says that the children were often left in his care during the weekends when he would take them for drives, go canoeing and play at the park. The mother would attend to these activities occasionally however the father says that it was mostly left to him.
The mother denies that the father would assist with the care of the children upon his return home from work and says that the father would also work some Saturdays.
The mother submits that she was the primary carer for the child during the parties’ relationship. She would attend to the child’s needs including feeding, bathing, playing and putting the child to bed. The mother says that the father would rarely assist with this.
The parties separated on a final basis on 12 June 2015.
On 14 June 2015 the father received a telephone call from (omitted) Police Station to collect the child as the mother was being taken to (omitted) Hospital for treatment of her drug abuse.
Sometime in June 2015 the father received text messages from the mother threatening self-harm and harm to the children. Again, on 13 October 2015 the father received a telephone call from the mother asking the father to collect the child as she was “going to kill myself”. The father attended the mother’s home and contacted the police who told the father to take the child.
Between June 2015 and February 2016, the child was primarily living with the mother.
On 2 February 2016, Judge Harman made interim orders that the child spend time with the father each weekend from 5pm Friday to 5pm Sunday and any other periods as agreed to by the parents.
On 24 February 2016 further interim orders were made for the child to live with the father and spend time with the mother each Sunday from 10am to 6pm. The child has been living with the father since this time, and the child has been spending time with the mother, although at times not in accordance with the orders. There have been issues of non-compliance, not only with orders relating to time, but also with respect to the drug screening tests.
The proceedings were heard on a final basis in June 2016.
Primary Considerations
The Court is faced with the task of balancing the competing primary considerations set out in s 60CC(2) of the Act. The test to be applied in striking that balance is whether the parenting orders that are ultimately made will expose the child to an unacceptable risk of harm from being subjected to, or exposed to, abuse, neglect or family violence.[9] To put a child in the hands of a drug-affected parent would be to place the child at an unacceptable risk of harm in the relevant sense.
[9] Janssen & Janssen (No.2) [2016] FamCA 796
It has been held that a meaningful relationship is one which is important, significant and valuable to the child[10]. The focus is not on the relationship as such, but on the benefit the relationship might have for the child.
[10] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]
In determining whether an unacceptable harm of risk exists, it may not be possible to make specific findings of fact in respect of past conduct.
Mother’s Illicit Drug Use
The father says that the mother was using drugs and drinking alcohol on a daily basis during their relationship and that her use would increase on the weekends. He recounts occasions where the mother stole money from the father to buy drugs.
The mother, through her Affidavit, deposes to the following:
a)She first used methamphetamines in early 2012 and continued using through to about June 2012. At the time she would use the drug around two to three times a week. She fell pregnant in (omitted) 2012 and abstained from drug use;
b)She recommenced her use of methamphetamines in approximately March 2014, after an alleged assault by the father on her son A. She smoked methamphetamines two to three times per week, until she started rehabilitation as an outpatient through (omitted) Hospital in mid- June 2015; and
c)She relapsed on two occasions, and has not used since November 2015.
In cross-examination, the mother said that she was using the drug “ICE” for about five to six months before she went into rehabilitation; that is from about January 2015 to about June 2015. The mother also said in cross-examination that she used ICE from after she had the child until her relationship with the father ended[11].
[11] The child was born in (omitted) 2013, and the relationship ended in June 2015
The mother’s evidence is problematic: her evidence in chief was different to the evidence she gave during the hearing, and that in itself was inconsistent. By her own admission, the mother used ICE during the following periods:
a)Between August 2013 to June 2015;
b)Between March 2014 to June 2015; and
c)Between January 2015 to June 2015.
Whatever the commencement period, the mother was using ICE for no less than 6 months and at most for almost three years[12], at least two to three times per week, while the child was in her primary care.
[12] 2 years and 9 months
The mother admits to relapsing twice between June 2015 and November 2015.
The mother in these proceedings, albeit self-represented, relied on two affidavits. No mention was made in any of her evidence in chief that in September 2015 she was arrested for possession of a prohibited drug. At the time she was visiting her then partner in gaol. The mother admitted at the time that she had smoked ICE that morning, and that was why she had an empty bag with ICE residue on her when she visited the goal. She was sentenced to a s10 bond. These are matters that came to light during the mother’s cross-examination.
The father remains concerned that the mother is using illicit substances and alcohol due to the limited number of clear drug urinalysis results and as a result of the father’s observations of the mother.
As a result of the interim orders made in February 2016, there has been an ongoing and continuing obligation on the mother to undergo drug testing:
a)On 2 February 2016 the mother was ordered to, within 48 hours, provide urine samples for drug testing and if the drug testing report disclosed a reportable quantity of the substances tested for then the mother was to undertake similar tests each 7 days until a clear result was provided;
b)On 24 February 2016, the Court made a further order requiring both parties to undertake drug testing within 48 hours and thereafter not less than each 7 days; and
c)On 15 April 2016, the mother was ordered to commence compliance with orders made on 24 February 2016 within 7 days[13].
[13] And on that date, the Court relieved the father of his obligations to comply with order made on 24 February 2016 for provision of urinalysis
During the mother’s cross-examination, and after being called on to do so, the mother produced urinalysis results for samples collected on 15 April 2016, 22 April 2016 and 29 April 2016. The report dated 16 April 2016 showed a positive result for opiates, and the report dated 24 April 2016 showed a positive result for opiates and methamphetamines.
The mother’s evidence was that she took pain killers for her back and that was why the codeine was showing up, and that she was with a friend who was smoking ICE and that is the reason why her urine tested positive for methamphetamines.
The mother has at all times been aware of her continuing obligation under the orders going back to February 2016 and subsequently April 2016 to undergo weekly testing for use of illicit substances, but except on 5-6 occasions[14] she has not done so.
[14] Albeit she has only provided three results
Furthermore, despite being requested to do so by the Independent Children’s Lawyer on 28 April 2017, 16 May 2017 and 30 May 2017, the mother has not undertaken any further testing for illicit drugs.
While there is no evidence that the child has come to any harm to date as a result of the mother’s drug use[15], this does not automatically result in a conclusion that there is no risk of harm to the child as a result of the mother’s drug use[16]. At best it means that to date no such risk has materialised that is the subject of any evidence. It also means that the risk has to be ameliorated.
[15] Both admitted and possible continuing drug use
[16] Both admitted and possible continuing drug use
Other Alleged Risks
The mother says that during the parties’ relationship upon his return home from work, the father would consume large amounts of alcohol including on one occasion a two litre bottle of port and a bottle of beer in one sitting, she states that the father would drink until he passed out.
The mother also says that the father was a regular user of illicit substances during their relationship including methamphetamines on a daily basis and marijuana on most days and on some occasions he would consume ecstasy.
The father denies being a drug user. These allegations about his drug use during the relationship were not put to him during cross-examination.
Relevant Additional Considerations
Child’s views and Nature of the Child’s relationships
At the time of hearing the child was three years old, his views are not known and even if they were known the Court would not place substantial weight on them given his tender age.
There was very little evidence about the child’s relationships in the proceedings; albeit there were assertions made in the mother’s case that prior to February 2016 she was the child’s primary carer. Ultimately these were matters of little weight in the Court’s deliberations.
The extent to which each of the parents has taken, or failed to take, the opportunity to participate in making long-term decisions, spend time with the child and communicate with the child
On 19 February 2016 the mother did not allow the child to spend time with the father as ordered by the Court on 2 February 2016.
There have been continuing difficulties with the implementation of the orders and the retention of the child by the mother in circumstances where the orders have provided for the child to live with the father.
The father has complied with the Court orders for the child to spend time with the mother each Sunday. He says that on some occasions the mother does not answer the door and upon leaving he receives a telephone call to bring the child back. The father returns to the mother’s residence with the child and he has observed the mother looking “strung out or hung over”. The father has also observed a number of males at the mother’s residence.
On the father’s evidence the mother has retained the child on numerous occasions including on:
a)20 November 2016;
b)4 December 2016;
c)18 December 2016 with the mother refusing to return the child until 21 December 2016 when the father collected the child from the Federal Circuit Court building at Parramatta; and
d)8 January 2017 to 21 January 2017.
While the interim orders made in February 2016, provide for the child to spend time with the mother (in addition to the Sundays) as agreed between the parties, there is significant dispute between the parties as to whether the additional times that the child has spent with the mother have been agreed.
The Court ultimately accepts that they have not been agreed, or only partially agreed, and that the mother has sought to take advantage of the times when the parents have agreed for the child to spend overnight time with the mother by not returning him to the father as agreed.
The Court has very little confidence that the mother will comply with any future parenting orders.[17]
[17] Even while judgement was reserved, an application in a case was filed by the father seeking the return of the child. Orders were made by consent on 11 September 2017 for the child to be returned to the father.
Parents’ obligations towards maintaining the child
Neither party has led any sufficient evidence to address this consideration.
Likely effect of any changes in the child’s circumstances; Practical difficulty and expense of a child spending time with a parent and Capacity to provide for needs of the child
The child has been living with the father since the Court made interim orders to that effect on 24 February 2016.
The father and child live in a three bedroom home on the property of the paternal grandparents. The father has re-partnered with Ms T who also lives with the father together with her two children C who is 15 years of age and D who is 10 years of age.
The father’s evidence is that the child has formed a close and loving relationship with Ms T and her children.
The father has facilitated the child spending time with the mother in accordance with the interim orders.
There is no practical difficulty or expense associated with the child spending time with either parent as the parties live in close proximity to one another.
The father has provided for the child’s needs including ensuring the child receives adequate care with respect to his speech and learning difficulties.
Upon the child coming into the father’s care, he and the paternal grandmother had noticed that the child appeared to be delayed in his speech. The father arranged for the child to attend upon a paediatrician to have these issues addressed. The father further attended appointments with the child to assess his hearing and speech pathology. The father says that the child attended all but two or three sessions with his speech pathologist with the child missing these appointments due to the mother refusing to return the child to the care of the father.
The father has completed the ‘Up to Parents Online Programme’ as directed by the Court. He has also completed a ‘Triple P Parenting Programme’.
The mother enrolled in a parenting program in May 2016.
Maturity, sex, lifestyle and background of children and parents
The mother’s use of illicit drugs is addressed earlier in these Reasons. It is a significant matter for the Court in the determination of the child’s best interests.
Attitudes to the child and responsibilities of parenthood
The father has an appropriate and positive attitude towards the child and towards his responsibilities as a parent.
The mother on the other hand, through her admitted drug use, as noted earlier in these Reasons, has demonstrated a poor capacity to put the child’s needs above her own, a poor attitude to the child and her responsibilities as a parent. Furthermore, her poor attitude to the child and responsibilities of parenthood has been demonstrated by her lack of compliance with Court orders, not only with respect to drug testing, but more importantly with respect to the child’s living arrangements and limited time he was to spend with the mother pursuant to the interim orders. The mother has shown a disregard for Court orders, notwithstanding her assertion that she understood the importance of them.
Allegations of Family Violence
The mother alleges that the father physically assaulted the mother’s child A whilst the mother was absent from the home on 6 March 2014. Her unchallenged evidence is that on 7 March 2014, the mother received a call from the child’s school informing her that A had been taken from school by the Department of Family and Community Services to (omitted) Hospital. The mother says she was interviewed and was informed that the father had assaulted A. The mother’s evidence is that she understands the father was subsequently charged with assault occasioning actual bodily harm to which the father pleaded guilty and received a suspended sentence. There are no police or departmental records before the Court which support the mother’s assertions.[18] The allegations were not put to the father in cross-examination.
[18] This is in the context of Subpoena being issued to NSW Police and to the Department of Family and Community Service in April 2017. No material was tendered in the proceedings seeking to corroborate the mother’s allegations in respect of the father being violent towards her son A. The Court is in these circumstances entitled to draw a Jones & Dunkel inference.
The mother submits that following the assault of her child A by the father, there was a period of approximately six months where the father did not see the subject child due to an Apprehended Domestic Violence Order being in place for the protection of A and the mother’s daughter, B. The Apprehended Domestic Violence Order was not before the Court, and the father in his evidence, says that the application was dismissed and a final order was never made. The parties were not cross-examined in relation to these matters.
The mother says the father was verbally and physically abusive toward her during their relationship. She says the father would call her names such as “gronk”, “bitch” and “you’re a worthless piece of shit”. The mother says the father was controlling of her and that he would become angry when she did not do the dishes or clean up immediately after dinner.
The mother says that the father would assault her over minor things such as not having dinner ready by the time he arrived home from work. The assaults included slapping the mother to the side of her head or chest, knocking her to the ground and being left with bruises.
The mother says the parties separated on a final basis following a further assault on her by the father which resulted in a verbal altercation between the parties and then with the father pushing the mother to the ground, slamming her head into the car and “repeatedly” smashing her head to the ground.
The father denies being physically or verbally aggressive toward the mother during their relationship. He says that the mother was verbally aggressive toward him calling him names such as “cunt”, “fuckwit” and “no good dog”. The father says he would walk away from the mother when she was abusing him as he did not want to escalate the situation. The father says that on some occasions because the father refused to retaliate, the mother would push and punch him to provoke a reaction.
Since separation, the mother has placed herself and the child at risk by virtue of her relationship with Mr A.[19] For example, on 1 January 2016, the mother contacted the father again asking her to collect the child as her partner had “smashed her back window put petrol over bike…”. The Court accepts that the mother acted protectively towards the child by calling upon the father to assist her, however, her evidence during cross-examination as to the seriousness of this incident shows a lack of insight into just how great a risk the child was placed at.
[19] The person she was visiting in gaol when she was arrested for possession in September 2015
The Court has noted above the allegations and denials of family violence, and the lack of corroborative evidence in regard to the allegations. The Court does not make any findings of fact in relation to these matters.
While a risk of family violence remains, whether the child lives with the mother or the father given the historical allegations by each of the parents, such risks are assessed to be low and therefore acceptable. The risk to the child which arose as a result of the mother’s relationship with Mr A is ameliorated by the injunction preventing the mother from permitting the child from coming into contact with Mr A.
Parental Responsibility
The parents have a poor co-parenting relationship and a demonstrated poor ability to communicate with each other. There is no evidence to suggest that their relationship with improve or that either of them is willing to do what is necessary, or for that matter that they understand what is necessary, to improve their co-parenting relationship. It is unlikely that communication between the parents will improve to such a level that they will be able to jointly make long-term decisions concerning the child.
The mother’s demonstrated lack of ability to comply with Court orders also does not bode well for her ability to make appropriate long term decisions which are child focused.
Having regard to all of the evidence and the child’s best interests, the Court finds that the presumption of equal shared parental responsibility has been rebutted.
Issues of Credit
The mother, in submissions, said that the she felt like the father had lied throughout the proceedings, whereas she always admitted to all wrongdoing. The Court does not accept such a submission.
The mother did not, in her evidence in chief, disclose the following matters:
a)That she was arrested in September 2015 for possession of ICE while visiting her friend in gaol; and
b)That she returned positive results for drug screens conducted in April 2016.
Furthermore:
a)Her evidence is inconsistent as to when she commenced using ICE; and
b)She has not complied with orders for drug urinalysis.
Out of the three drug screen results which she provided to the Court, and only during cross-examination, two showed positive results: one for codeine, and the other for codeine and methamphetamines. The mother’s explanation for the positive result for methamphetamines in April 2016 is not accepted. Even if it was true, she has been associating with people who are smoking ICE. This was not a matter which was addressed in any of her evidence in chief, but rather, matters which only came to light as a result of cross-examination by Counsel for the Independent Children’s Lawyer.
Conclusion
In all of the circumstances and for all of the reasons set out above, it is in the children’s best interest for orders to be made as set out in the forefront of these reasons.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 21 November 2017
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