McCubbin and McCubbin and Anor
[2020] FCCA 853
•29 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| McCUBBIN & McCUBBIN & ANOR | [2020] FCCA 853 |
| Catchwords: FAMILY LAW – Parenting – final orders – two children, aged 14 and 6 years – with whom the children should reside – where mother, father and paternal grandmother all seek primary care – where the mother is primary carer – where the mother has had impaired parenting capacity until recent times – where the mother and father have both abused illicit drugs – where the father’s involvement in the children’s lives has led to destabilisation and harm particularly to the eldest child – where the father has consistently behaved in an emotionally manipulative and abusive way – where the father lacks the requisite parenting capacity to provide the children with a safe emotional environment – where the paternal grandmother lacks the emotional and physical capacity to be primary carer – where defined time and communication with the father and paternal grandmother would pose unacceptable risks to the children – best interests of children. |
| Legislation: Family Law Act 1975 (Cth), pt.VII |
| Cases cited: Goode & Goode (2006) FLC 93-28 U & U (2002) 211 CLR 238 Mazorski & Albright (2007) 37 Fam LR 518 |
| Applicant: | MS MCCUBBIN |
| First Respondent: | MR MCCUBBIN |
| Second Respondent: | MS JAMIESON |
| File Number: | NCC 1061 of 2015 |
| Judgment of: | Judge Betts |
| Hearing dates: | 12 - 15 March, 28 - 31 October, 1 November 2019 |
| Date of Last Submission: | 1 November 2019 |
| Delivered at: | Newcastle |
| Delivered on: | 29 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | Self-represented |
| Counsel for the First Respondent: | N/A |
| Solicitors for the First Respondent: | Self-represented |
| Counsel for the Second Respondent: | Ms Carty |
| Solicitors for the Second Respondent: | Gillard Family Lawyers |
| Counsel for the Independent Children’s Lawyer | Mr Mueller |
| Solicitor for the Independent Children’s Lawyer | Fielden & Associates – Family & Relationship Lawyers |
ORDERS
All previous parenting orders are discharged.
Parental responsibility:
The Mother has sole parental responsibility for the major long-term issues of the children X born in 2005 and Y born in 2013.
Children’s living arrangements:
The children live with the Mother.
Father’s time and communication with the children:
Subject to order 5, the Father is restrained pursuant to section 68B of the Family Law Act from:
(a) spending any time with the children;
(b) having any communication with the children;
unless in a letter, or in an email, the Mother has expressly agreed to such time or communication occurring.
For the purposes of order 4:
(a)the Mother is to keep the Father advised of a current email address at which the Father can contact her;
(b)the Father is restrained from contacting the Mother except by email to that address;
(c)if the Mother does agree to the Father spending any time with the children, or having any communication with the children, then the Mother is at liberty to impose such conditions as she considers appropriate. By way of example only, those conditions may include that:
(i)the Mother monitor any communications and immediately terminate them if she considers them inappropriate;
(ii)that any time spent with the children occur in a public location, and/or in the company of some other person (which may include a professional supervisor or supervising agency);
(iii)that the Father undertake a drug test prior to spending any time with the children or communicating with them;
BUT
(d)notwithstanding order 5(c), the Mother is restrained from requiring or permitting Mr A to participate in or monitor any telephone or electronic communications between the Father and the children, or from requiring or permitting Mr A to be present at any place where the Father is spending time with the children.
Paternal Grandmother’s time and communication with the children:
Subject to order 7, the Paternal Grandmother is restrained pursuant to section 68B of the Family Law Act from:
(a) spending any time with the children;
(b) having any communication with the children;
unless in a letter, or in an email, the Mother has expressly agreed to such time or communication occurring.
For the purposes of order 6:
(a)the Mother is to keep the Paternal Grandmother advised of a current email address at which the Paternal Grandmother can contact her;
(b)the Paternal Grandmother is restrained from contacting the Mother except by email to that address;
(c)if the Mother does agree to the Paternal Grandmother spending any time with the children, or having any communication with the children, then the Mother is at liberty to impose such conditions as she considers appropriate. By way of example only, those conditions may include that:
(i)the Mother monitor any communications and immediately terminate them if she considers them inappropriate;
(ii)that any time occur spent with the children occur in a public location, and/or in the company of some other person (which may include a professional supervisor or supervising agency);
BUT
(d)notwithstanding order 7(c), the Mother is restrained from requiring or permitting Mr A to participate in or monitor any telephone or electronic communications between the Paternal Grandmother and the children, or from requiring or permitting Mr A to be present at any place where the Paternal Grandmother is spending time with the children.
Other specific restraints against the Father:
The Father is restrained from entering upon or loitering within one hundred (100) metres of:
(a)any school that either child attends;
(b)the children’s home;
(c)any place of employment of the mother or of either child.
If pursuant to these orders the Father is spending time with the children, or is communicating with them, the Father is restrained from:
(a)denigrating the Mother, any partner of the Mother (including her former partner Mr A), or any member of the Mother’s household, to or in the presence of, the children;
(b)saying or otherwise communicating anything to the children which undermines the Mother’s parental authority over them;
(c)possessing, consuming or being in any way affected by illicit drugs;
(d)knowingly bringing the children into contact with any person who appears to be affected by illicit drugs.
Other specific restraints against the Paternal Grandmother:
If pursuant to these orders the Paternal Grandmother is spending time with the children, or is communicating with them, the Paternal Grandmother is restrained from:
(a)denigrating the Mother, any partner of the Mother (including her former partner Mr A), or any member of the Mother’s household, to or in the presence of the children;
(b)saying or otherwise communicating anything to the children which undermines the Mother’s parental authority over them;
(c)consuming or being in any way affected by alcohol;
(d)knowingly bringing the children into contact with any person who appears to be affected by illicit drugs.
Other specific restraints against the Mother:
The Mother is restrained from:
(a)denigrating the Father, any partner of the Father (including his former partner Ms B), or any member of the Father’s household, to or in the presence of the children;
(b)denigrating the Paternal Grandmother, any partner of the Paternal Grandmother, or any member of the Paternal Grandmother’s household, to or in the presence of the children;
(c)possessing, consuming or being in any way affected by illicit drugs at any time when she has the care of the children;
(d)knowingly bringing the children into contact with any person who appears to be affected by illicit drugs.
General restraint against all parties:
Each of the parties is restrained from discussing these proceedings with the children, including showing the children any court documents filed in these proceedings.
Machinery and other orders:
Within forty-eight (48) hours, the Mother is to facilitate a telephone call between the Independent Children’s Lawyer (“ICL”) and the children so that the ICL can explain the orders to the children. The Mother is to comply with any reasonable direction from the ICL in relation to the timing of that telephone call.
The Mother is at liberty to provide a copy of these orders to any school attended by the children.
The Mother is at liberty to provide the children’s treating psychologists or psychiatrists with a copy of:
(a) these reasons for judgment;
(b)the Family Reports in these proceedings.
The Registrar of the Federal Circuit Court at Newcastle is requested to forward a copy of these orders and reasons for judgment to the Department of Communities and Justice (NSW) within twenty-eight (28) days.
There be no orders for costs of the proceedings.
The Independent Children’s Lawyer be discharged upon compliance with order 13.
The proceedings be removed from the Active Pending Cases List.
NOTATION:
(A) After delivery of the orders the Independent Children’s Lawyer indicates that there would be no costs application brought.
IT IS NOTED that publication of this judgment under the pseudonym McCubbin & McCubbin & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1061 of 2015
| MS MCCUBBIN |
Applicant
And
| MR MCCUBBIN |
First Respondent
And
| MS JAMIESON |
Second Respondent
REASONS FOR JUDGMENT
Overview:
These proceedings concern the future parenting of two (2) vulnerable children:
(a)X born in 2005, who is presently 14 years and 9 months of age; and
(b)her little brother Y born in 2013, who is presently 6 years and 7 months of age.
The children’s parents are Mr McCubbin (“the Father”) and Ms Jamieson (“the Mother”). They were in a de facto relationship on the Region C from 2000 until 25 April 2015.
Though lengthy, the parents’ relationship was somewhat chaotic and tumultuous. They both abused drugs, including ice in 2014/2015 when their relationship entered its final downward spiral.
Their relationship finally ended dramatically - the Mother leaving the Father for his best friend Mr A. To add insult to injury, Mr A was engaged to marry the Father’s sister Ms D; the Father viewed Mr A as a brother-in-law. For her part, Ms D considered the Mother not only as her sister-in-law but also her best friend. The two couples had spent a lot of time together.
Initially after separation, the children lived in an ad hoc shared parenting regime - chaotic, conflictual and involving ongoing parental drug abuse.
In 2015 there was one brief round of litigation - but it ended abruptly and did not resolve anything. The ad hoc arrangements continued.
From mid-2016 the children lived primarily with the Mother and the Father’s day-to-day parenting role has become increasingly sporadic. He stopped working; he was emotionally ravaged by the trauma of the breakdown of his relationship with the Mother, and the consequent loss of his family. Since March 2017 he has in fact had very limited face-to-face contact with the children.
The Father has since relocated to Town E in Region F, Queensland, where he shares a rental home with the Paternal Grandmother. Getting to the Region C and back involves ferry rides, and a ten (10) hour drive each way. Or it involves airfares that he cannot realistically afford.
In truth however, the geographical distance between the parents and the attendant practical difficulties that arise, pale into insignificance. There are other, more diabolical problems for the court to contend with.
The parents’ mutual drug abuse is one such problem. The other major problem has been the intense, largely unremitting parental conflict – of which the Father has been the primary instigator.
X in particular has had a “front row seat” to her parents’ drug abuse and to their ongoing acrimony. She has been exposed to far more than any child should be, and has suffered enormously. She has reverted to self-harming. At her vulnerable age she desperately needs stability, for the conflict to end and to finish school satisfactorily.
The Mother has not been sufficiently attuned to X’s needs, as a result of her own drug abuse and prioritising her relationship with Mr A. The Father, because of his own personality vulnerabilities, has consistently chosen to involve X in the conflict, including at times sending her highly charged and emotionally abusive text messages. He has consistently undermined X’s relationship with the Mother, and even encouraged her to run away from the Mother’s home, which she did in spectacular fashion during the adjournment of the trial.
Ironically, X’s decision to run away - and her subsequent return to the Mother’s home – served as a “wake-up” call for the Mother and for X. They are now making major positive changes in their lives and in their relationship.
The same cannot be said for the Father. He has impressed throughout the proceedings as being highly self-centred, emotionally manipulative and at times downright emotionally abusive (particularly towards X). He has been more determined to hurt the Mother (and/or Mr A) than to protect and nurture the children. At times his behaviour has been frankly quite irrational. He is a markedly damaged human being.
Like many cases in this court, this case permits of no good outcome. At trial, the evidence demonstrated that, while both parents pose risks to the children, the Father’s risks are presently much greater – and relevantly unacceptable. As for the Paternal Grandmother, rather than acting protectively she chooses to overlook and excuse the Father’s behaviours. At times she has been complicit in them. She too poses unacceptable risk.
By the time the trial came to an end, the real issue was not so much whether the children should live with the Father and/or the Paternal Grandmother on Town E, but whether or not the children should even be able to spend time or communicate with either of them. The ICL ultimately submitted that it should be entirely at the Mother’s discretion. For the reasons which follow, I have come to the same view.
Material that I have taken into consideration:
In arriving at a decision in this matter I have had regard to the following material relied upon by the parties:
Paternal Grandmother:
(a)Her proposed parenting orders; [1]
[1] Exhibit 1.
(b)Her affidavits filed 4 February 2019 and 21 October 2019;
(c)Affidavit of Ms D filed 19 July 2016;
(d)Statutory Declaration of Ms D filed 7 May 2019; [2]
Father:
(a)His affidavits filed 8 March 2019 and 7 May 2019;
Mother:
(a)Her affidavits filed 18 January 2019, 19 March 2019 and 9 October 2019;
(b)Affidavit of Mr A filed 18 January 2019;
(c)Affidavit of Ms G filed 18 January 2019.
[2] Exhibit 13.
In the course of the trial, the parties tendered numerous exhibits which are referred to in these reasons insofar as I found them to be relevant. I have also had regard to the submissions made by each party at the close of the trial.
Parenting proceedings – the law:
The court’s power to make a “parenting order” is found in Part VII of the Family Law Act (“the Act”), with that term being statutorily defined in section 64B. Section 60B sets out a number of key objects and principles which underpin the operation of Part VII, which I do not propose to repeat here.
When deciding whether or not to make a particular parenting order, the court must regard the best interests of the children as the paramount consideration: s 60CA, s 65AA. In arriving at this statutorily-mandated best interests determination, the court is obliged to have regard to various mandatory considerations prescribed in section 60CC. There are two (2) so-called “primary” considerations in s 60CC(2) and fourteen (14) so-called “additional” considerations in s 60CC(3).
When a court is considering making a parenting order, section 61DA(1) of the Act imports a rebuttable statutory presumption that it would be in the best interests of the child concerned for the parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in “abuse” of the child or “family violence” as those terms are statutorily defined in sections 4 and 4AB respectively.
Pursuant to section 61DA(4), if the presumption does apply, then it may nonetheless be rebutted by evidence which satisfies the court that the making of such an order would not, in fact, be in the child’s best interests.
Pursuant to section 65DAA of the Act, upon the making of an order for equal shared parental responsibility for a child, the court is then obliged to follow the specific statutory pathway in that section as identified by the decision of the Full Court in Goode & Goode (2006) FLC 93–286.
In U & U (2002) 211 CLR 238, the High Court held that this court is not strictly bound by the competing parenting proposals of each party. Subject to each party being afforded procedural fairness, the court may craft different orders if required so as to meet the best interests of a child in any given case.
Injunctive orders are specifically sought in this case pursuant to s 68B of the Act. This section empowers the court to make orders or injunctions which are “appropriate for the welfare of the child” including for the personal protection of a child, or a child’s parent. There is a significant overlap between s 68B and s 60CC although the best interests of the children are not strictly the paramount consideration in the context of the injunctive power in s 68B.
Relevant factual findings:
This matter is factually complex and it is necessary for me to set out the relevant history in some detail. I will use headings for convenience.
The parents and their relationship:
Both parents came from broken homes, both were raised by their mothers and both of their mothers abused alcohol.
The Paternal Grandmother suffered depression and may also have been a sex worker at some stage, but this latter allegation is hotly-contested, uncorroborated by any independent evidence and in the end it is unnecessary for me to make any specific finding.
By age 14 the Father had been expelled from school.
The Mother’s home life was unhappy; she had felt depressed since about the age of 10. By age 12, she was smoking cannabis daily and she soon dropped out of school. She fell out with the Maternal Grandmother and was at risk of ending up on the streets. Instead she met and formed a relationship with the Father. [3]
[3] The Mother’s home life appears to have been particularly hard. Her brother went to gaol; her sister had her children removed from her care by the NSW Department of Families & Communities (“DoFACS”).
The parents met and formed their relationship when the Father was a 16 year old apprentice tradesman and the Mother was 13½ and no longer at school. Initially they lived under the Paternal Grandmother’s roof, with the Maternal Grandmother’s acquiescence. The parents both used cannabis and were having sex despite the Father being aware that the Mother was clearly underage.
The parents later moved into their own property on the Region C and went on to have the two children of the proceedings.
Throughout their relationship the Father was the primary breadwinner (working as a tradesman) and the Mother was the primary homemaker and parent – while continuing her daily cannabis habit. At one point the Father built a hydroponic room, primarily to support the Mother’s habit. The Father was arrested, charged with drug cultivation and ultimately pleaded guilty.[4]
[4] Exhibit 22. He was referred to the MERIT Program - being for drug users who seek rehabilitation and treatment.
Around 2014, the parents were introduced to the highly insidious and dangerous drug ice. They quickly became frequent users, if not addicts and their relationship soon fell apart. Ice made the Father more agitated and aggressive, leading to more arguments. The Mother began staying away from home for period, which also became a particular source of tension between them. Their relationship rapidly spiralled.
Final separation occurred when, on the evening of 25 April 2015, Ms D discovered the Mother at Mr A’s home. She physically attempted to force her way in and Mr A subdued her, later holding her down forcibly on the grass outside. In so doing, he choked her, causing her to briefly pass out and wet herself – a serious act of family violence on his part, likely fuelled by ice.
Police later found Ms D walking along the street that night. She made no complaint to them but this is not unusual for victims of family violence. Moreover, she and Mr A had had some involvement in the drug scene which may also explain her reticence to involve Police in their situation. For his part the Father gave evidence that Ms D had come to his home that evening screaming, covered in blood and with dirty bruise hand prints around her neck. I consider this evidence to be self-serving exaggeration – certainly the Police made no such observations.[5]
[5] Police records are Exhibit 21. Father’s version of events appears in his Affidavit filed 08/03/19, para 23. Note that the affidavit of Mr A’s mother, Ms G, corroborates that Mr A held her down on the grass.
I recount this choking event because various injunctive relief was sought about Mr A at trial and this event forms part of the relevant risk profile. It also contributed to some of the “bad blood” between the family thereafter.
First round of proceedings in 2015 & postscript:
With both parents regularly using ice and emotions running high, the Father initiated parenting proceedings on 4 May 2015. At that time the children were essentially in his care, the Mother being focussed on her new relationship with Mr A.
On the first return date (2 June 2015), interim orders were made for the children to live with the Maternal Grandmother and spend day time only with the parents. A Child Inclusive Conference (“CIC”) was ordered, an ICL was appointed and DoFACS were invited to intervene. The parties were ordered to undertake drug testing and drug rehabilitation.
The Father did not attend for the CIC.[6] The Mother took the children, although she turned up late.
[6] Exhibit 3.
The CIC Memorandum was confronting. At the tender age of 9, X could give a detailed description of her parents’ drug use, including the smell of cannabis coming from their bedroom. She also described undermining behaviour from the Father, who had told her that various persons visiting the Mother and Mr A’s home post-separation were “drug dealers” - making X feel anxious. Emotionally hurting his daughter in this way so as to get back at the Mother was to become a theme of the Father’s future behaviour.
Poignantly, X explained “I just wish I could be a kid…but I don’t feel like a kid at the moment”. The Family Consultant was concerned that both parents were exposing X to their adult conflict and potentially using her to “score points” against the other.
By the next court date in July, the Father had disengaged. The Maternal Grandmother had already returned the children to the Mother. The parents remained on drugs and were trialling a shared care arrangement of sorts. Despite the glaring risks of harm, DoFACS had not intervened.
In the circumstances the court discharged the previous orders, dismissed all competing applications and ordered that the CIC Memorandum be referred to DoFACS.
There were some positive postscripts. The Mother contacted DoFACS and they facilitated her undertaking a number of parenting courses. She also undertook some family violence counselling.
In December 2015 the Mother and Mr A hired a van and travelled up the coast of New South Wales together, in this manner quitting ice “cold turkey”. Though excruciating, they succeeded - which was no small feat.
The Mother and Mr A did however continue to use cannabis on a daily basis.
In the meantime, the ad hoc co-parenting arrangements limped on. Conflict continued. In April 2016 for instance, the Father jumped Mr A’s back fence and they had an argument. Police were called; they took out an AVO against the Father to protect Mr A. [7]
The current proceedings:
[7] The AVO expired in June 2007.
Around mid-2016, the Father re-partnered with one Ms B, who herself had an unfortunate child protection history. Her children had been voluntarily placed with their grandparents due to hers (and her partner’s) family violence and drug issues.
The Father started seeing less of the children, blaming the Mother who he says was jealous of the new relationship. This may be true, but I also consider it likely that the Father was also focussed on his new relationship rather than on the children.
This was the state of play when, in July 2016, the Paternal Grandmother initiated the current proceedings. Though living some 2 ½ hours away at Town H, she decided that the children should be living with her. She was not particularly close to either of the children, particularly Y, having moved away from the Region C in January 2015 when Y was only sixteen (16) months old.
While the Paternal Grandmother did have some legitimate concerns about the safety of the children in the care of the Mother and Mr A, her actions were not entirely selfless. She was worried about the ongoing impact of the parental separation on the Father. Her application was intended to bolster the Father’s position as a prospective “residence” parent.
The conflictual ad hoc arrangements came to an end after the Father briefly retained X and the Mother obtained a Recovery Order requiring her return. The Mother later texted the Father, saying “You’re dead to me and my kids you fucking asshole” – demonstrating the toxic co-parenting dynamic at that stage.
Thereafter, the Father spent alternate weekends with the children for a period. As before, an ICL was appointed and a CIC was ordered.
Child Inclusive Conference on 18 August 2016 [8] and altercation afterwards:
[8] CIC Memorandum is exhibit 4.
At the CIC, both parents agreed that the children were being exposed to high conflict and abusive adult behaviour. The Family Consultant described their co-parenting relationship as “very poor” and was concerned that the Father’s parenting style had the effect of undermining the Mother as a parent, potentially placing X at greater social risks.
X was anxious, explaining that she had experienced repercussions from both parents following the last CIC. The Family Consultant considered that X was continually being exposed to age-inappropriate information by parents and family members, somewhat empowering and increasing the risks to her. The Family Consultant considered that X’s closest relationship was in fact with Y, as both parents had been preoccupied with their own substance abuse and with their other relationships rather than with X.
The Family Consultant recommended counselling for the parents and for X. Notably there was no dispute by the adults, or X, that the Paternal Grandmother had “not been a close or consistent relationship for the children”.
Regrettably, following the CIC there was an altercation between the adults during their drive back to the Region C. The Father accuses the Mother and Mr A of cutting off his car. They in turn accuse him of driving aggressively behind them. Whatever happened, the two carloads of people all ended up stopped by the side of the road, with angry abuse and threats being exchanged. [9]
[9] The Paternal Grandmother tendered a video recording of the event as exhibit 2.
DoFaCS again declined to intervene in the proceedings.
In the meantime, X was becoming affected by the ongoing dispute. In August 2016 she was placed onto a Mental Health Plan pursuant to court orders.
Family Report of 27 March 2017: [10]
[10] Exhibit 5.
The Family Report writer appointed in this matter was a forensic psychologist. She ultimately wrote three (3) reports in total.
In the lead up to the first Family Report interviews on 6 March 2017, the Paternal Grandmother was homeless for a period. The Father also had no fixed abode, staying in motels around the Region C with Ms B.
Five days before the interviews on 1 March 2017, the Father was charged with driving while having methamphetamine in his blood. He was later convicted of this offence. [11]
[11] Exhibit 22.
Yet when asked about ice use in the course of the Family Report interviews on 6 March 2017, the Father failed to mention his recent drug driving charge. He instead told the Family Report writer that his last use of ice was back in 2014, [12] despite having said he stopped in August 2015 in the most recent CIC Memorandum. (In his trial affidavit the Father gave yet another version – saying he had used ice approximately five (5) times between June 2015 and July 2016 “due to the breakdown of my relationship and family”.) [13]
[12] Para 79.
[13] Father’s affidavit filed 08/03/19, para 51.
The Family Report writer observed the Father to speak over the top of X when in a heightened emotional state.
The Father was also observed to make derogatory comments about the Mother and Mr A around the children, which X picked up on and then repeated. X even manufactured a story about seeing Mr A holding her aunt Ms D up against a wall while holding a knife to her throat – an event which Ms D expressly disavowed in the witness box. Ms D had no conceivable motive to deny this event if it was true. Notably, X had told the same false knife story to her teacher in 2016 following which it seems that the Father had allowed her to stay with friends and paid her $50. [14] On balance I consider that the Father encouraged her to tell this story.
[14] Paras 149 & 198. The stories in those two paragraphs vary somewhat but relate to the same event.
The Family Report writer was concerned about the Father’s behaviours and attitudes, his apparent history of involvement in intense and volatile relationships, and his preoccupation with fears of abandonment or rejection. At trial she suggested that these were borderline personality traits. She thought that the Father lacked insight as to these matters, he saw himself as having little need to change and that he tended to externalise blame when feeling threatened or challenged. Having seen and heard the Father give evidence I would wholeheartedly agree with that assessment.
The Family Report writer was concerned about the Mother’s and Mr A’s continued use of cannabis.
The Family Consultant noted that communication between the parents was especially poor, that the Father displayed a high degree of relational control and that the Mother appeared submissive.
X was continuing to suffer. She expressed dismay that, unlike her peers with separated parents, “mine aren’t friends”.
The Paternal Grandmother was not viewed as a viable primary care option.
In the end, the Family Report writer’s recommendations included that the Mother attend substance abuse counselling, that the Father have psychological treatment to address his ongoing distress since separation and lack of adaptive coping mechanisms, and that he undertake a parenting course to educate him as to the negative impact of undermining the Mother’s parenting.
Neither parent took up those recommendations, to the detriment of the children.
Father’s time with the children drops away:
The Mother was concerned about the Father’s transience and ongoing aggression. She feared he was still using ice. Following one particular weekend visit with the Father, X disclosed to the Mother that she had been left to look after Y all weekend while the Father and Ms B slept, including change his nappies and feeding him. After this weekend, the Mother became resistant to the Father spending time with the children and it is common ground that his time with them markedly diminished from around March 2017 onwards.[15]
[15] Father’s Affidavit filed 08/03/19, paras 37 & 40.
On 26 April 2017 the Father’s urine drug screen produced a positive result for a methamphetamine-type substance. In my view he was still using ice. His life was in disarray.
In July 2017 there was a physical altercation between the Father and Mr A at X’s dance recital. Mr A was holding Y at the time. There are conflicting versions of events and nothing turns on the details. The Father ended up spending a night in custody as a result but no charges were ever laid or other action taken.
Father relocates to Town E – but the conflict continues:
In January 2018, the Father and Ms B relocated to Town E, moving into the Paternal Grandmother’s rental property.
Distance did not help things. The Father maintained the rage. He sent the Mother abusive and aggressive text messages in which he said such things as:
“Once a crack whore you are never going to change! Can’t wait to punch the fuck out of that cunt!!!”[16]
“I should have taken the kids and never let you see them again. Then you know how it feels. Then you get yours.” [17]
“Fuck off. You ruined mine and my kids life…I wish I knew how much of a cunt you were before I had kids with you. Fuck you. Fuck him. I wish I never knew either of you. You are BOTH DOGS…put that in your bullshit Affidavit. Call the cops cunt. Not like I haven’t been locked up before cause of your lies. Fuck you. Fuck him. Fuck the Court. Cause I know the truth and I will have my peace”. [18]
[16] Mother’s Affidavit filed 18/01/19, para 75.
[17] Ibid, para 76.
[18] Ibid, para 77.
The Mother and Mr A had “moved on”. They had a lot on their plate in terms of just managing their own household, as they were caring not only for the children of these proceedings but also Mr A’s children J and K who lived primarily with them. K has severe cerebral palsy and is confined to a wheelchair. He needed a lot of extra support and assistance.
So when the Father – from afar and with no day-to-day child-caring responsibilities – decided to throw verbal abuse at them, I have little doubt that the Mother and Mr A found it rather tiresome and at times galling. No doubt on occasions it soured the Mother’s attitude to fostering telephone communication between the Father and the children. But equally I have no doubt that on occasions when she failed to facilitate telephone communication the Mother was behaving just as bloody-mindedly as the Father. Hers was more in the nature of passive aggression.
Regrettably, Ms B chimed in with aggressive texts to the Mother as well. She accused the Mother of bad-mouthing her about her own children not being in her care. It is certainly possible that the Mother did so but the texts from Ms B were over the top. They included references to the Mother having lost her “fucking gorgeous smile” and telling her to “just grow the fuck up, shut the fuck up…stop being a child name calling across the playground shit…got something to say you dog? Fucking face me look me in the fucking eye at least while you have your junky crack whore little tantrum at me. Or save it for court”.
Disturbingly, the Father was engaging in highly charged texts to X. He was playing on her emotions, undermining the Mother as a parent, and generally de-stabilising her. It was emotional abuse.
In June 2018, he texted her a picture of a broken family photograph, telling her: “It’s been hanging for years and now its broken…it’s like how you have always loved speaking to daddy…now you don’t…first I lost your mum then it was my little man, my little boy Y. I never thought you my baby, my little princess, daddy’s girl”.
In another text he suggested that X might run away: “It sounds like you were with your mum then because you were very scared to speak. Love you and I love Y and know you can leave your mum’s whenever you like darling. Just hide from her and call me and I will come get you. Love always. Love Dad”.
On one occasion the Father texted a message addressed to the Mother on X’s phone. His message refers to how he has lost everything, time has stood still, and life is passing him by. This long plea from the heart concludes with: “Hey X that message was for your mum if she reads your messages which I think she does?” [19]
[19] Exhibit 10.
Around this time, the Mother caught X scratching at her wrist with scissors.
On 19 August 2018 the Father texted X saying he would be down on the Region C the next day and that wanted to see the children. He invited her to call back - if she had her phone. He then followed it with: “If not, please stop taking X’s phone, you are nothing but a putrid DOG MR A and they will always be my kids you poser!”
Interim Orders 23 August 2018:
On 23 August 2018, the court made interim Orders for the Father to spend some time with the children in August, and then during the October 2018 school holidays, and Christmas school holidays. The court specifically restrained the parties from denigrating each other in the presence of the children, or undermining the other parent’s parental authority.
The Father spent time with the children in August 2018 pursuant to those orders – the first time he had seen them in a number of months.
The October 2018 school holidays:
This was the first block time the Father had with the children since probably 2016. They spent it together in Town E. The orders envisaged air travel but after some last-minute difficulty with flight times the Father ended up driving.
As the time was ending, X wanted to stay on longer. The Father approved and then “cornered” the Mother by putting X on the phone to ask her permission. X asked to stay until the following Tuesday (the second day of the next school term) – saying that the ICL had told her that “if you and Dad agree on stuff, then its ok remember? So please can I stay til Tuesday”. When the Mother refused, X hung up on her.
Notwithstanding, the Father permitted X to stay until the Wednesday. She therefore missed her first three days of the next school term and a Headspace (mental health) intake team call she been on a 4 week waiting list for). X also returned home with her hair dyed blonde - courtesy of her aunt Ms D who had declined to seek the Mother’s permission before doing so as “we don’t talk”. The Mother had the hair dye removed.
Family Report of 17 January 2019: [20]
[20] Exhibit 6.
The updated Family Report interviews were undertaken on 10 December 2018.
At interview, the Father’s mood was variable and his changes in mood were quite rapid. His ability to modulate his emotional states during the assessment was below that normally expected, especially when pressed for details or asked to explain his attitudes - at which time he became defensive and then mildly aggressive. The Family Report writer was left with the impression that, when emotionally aroused, the Father had pronounced difficulty in logically processing information. He continued to have difficulty appreciating positions of other people when different from his own. He was rigid in his opinions and views.[21]
[21] Paras 101 and 102.
X was not in a good emotional state. Her self-harming behaviours (superficial cutting with scissors) had become more established. She was seeing a school counsellor, being bullied by other girls at school, and feeling socially isolated. Rather than talking to other peers, she would talk to the Father on her mobile phone during school hours. Her relationship with her Mother was becoming increasingly strained.
But when questioned about the impact of continuing conflict upon X, the Father disavowed any responsibility for the way she was acting. He thought that it was “better that the children were torn between two households than to only have one household”. [22]
[22] Exhibit 6, para 107.
The Family Report writer was concerned that Ms B seemed to have a peer-like relationship with X. For instance, when X complained to Ms B about her Mother not letting her wear tank tops, Ms B told her she would be happy to buy her one.
The Family Report writer remained concerned about the Mother’s ongoing cannabis smoking, Mr A’s involvement in drugs as well as evidence of his past family violence.
As for X, she expressed the unequivocal desire to live with the Father and complained that the Mother listened into their calls (which she probably did on occasions).
The Family Report writer considered that the Father was largely responsible for X’s emotional deterioration.
Fortunately for Y, he appeared unaffected by the parental dispute. He was achieving his developmental milestones and not displaying any overt behavioural or emotional problems. He was too young to be formally interviewed.
In the end, the Family Report writer remained concerned about all three parties:
(a)The Father appeared egocentric and unable to focus on anything other than the current parenting dispute. He was not working, telling the Family Consultant that the children “were his life”. The Family Consultant was concerned that his over-reliance on the children’s relationships to the exclusion of all else could place the children under emotional strain and hinder their emotional development, particularly if they felt responsible for him. Once again she recommended that the Father undergo psychological treatment to address his lack of adaptive coping skills, as well as undertaking a parenting course about the risks of undermining the other parent’s relationship;
(b)The Mother remained in desperate need of drug counselling for her daily cannabis habit. She also needed to work on her relationship with X, with family therapy being recommended;
(c)The Paternal Grandmother was once again found not to have a close relationship with either of the children. She simply was not seen as a viable residence option.
The Family Report writer recommended that the children not be separated given their close bond, and that they stay living with the Mother notwithstanding X’s strident views.
Christmas holidays 2018:
The Father spent block time with the children over Christmas 2018.
X again returned to the Mother with dyed hair, but also a spray tan, and fake eyelashes which the Father had organised at X’s request. The Mother again had the hair dye removed and when she complained to the Father he ended up apologising.
The Father also spent some time with the children in March 2019, just prior to the trial.
Part I of the trial (12 – 15 March 2019):
When the matter came on for trial, the Paternal Grandmother and the Father were both self-represented. The Mother was represented by Ms Carty of counsel and the ICL was represented by Mr Mueller of counsel. The ICL had no preliminary recommendation given the competing risks.
The trial proceeded very slowly. Only the Paternal Grandmother, Ms D and the Father were able to be cross-examined before it became inevitable that the matter would have to be adjourned part-heard.
By that stage I was so alarmed at the Father’s presentation and evidence that I felt it essential to conduct an interim hearing. By way of examples:
(a)The Father said that he had refused to even read the Mother’s or Mr A’s affidavits because they wrote “absolute bullshit” and were “absolute liars and narcissists”;
(b)He was disparaging and contemptuous of the Mother, describing her relationship with Mr A as “the Mother was rooting the dealer”. Then when asked about his own ice use, he pointedly said that, unlike the Mother, “I never sucked dick for ice”;
(c)The Father was argumentative, begrudging in any concessions and showed little or no insight into the emotional toll of his behaviour. He saw himself as the victim.
It emerged that he had failed to act sufficiently protectively of X when the child behaved in potentially dangerous ways on social media. Worse, he had even undermined the Mother in the process. For instance:
(a)The Father admitted that the Paternal Grandmother’s phone had social media photographs of X apparently in some form of sexual pose. While sombrely telling me that potentially thousands of people may have seen these inappropriate photographs, he had decided not to tell the Mother about it for fear that she may use it against him in the litigation somehow. He said, and I accept, that he was acting on the advice of the Paternal Grandmother in that regard;
(b)On another occasion X posted a photo of herself in a bikini onto social media, later complaining to him that the Mother had found out. The Father’s response was: “Hey cutie, its Dad. Probably best to delete or block everyone that has contact with your Mum”.
The worrying backdrop is that the Mother had in fact had to discipline X for such behaviour, limiting her mobile telephone access after she sent those sorts of photographs to her boyfriend. The Mother had even arranged a meeting with the school, attended by a Brighter Futures Caseworker, to assist her to manage the issue.
Instead of acting protectively as the Mother had done, the Father was “permissive”, positively undermining whatever boundaries the Mother had been able to put in place. His behaviour was dangerous and irrational. His actions also drew X further away from the Mother and closer to him. Frankly at that stage the relationship between the Mother and X needed all the help and support it could get.
Interim hearing and orders:
Both the Mother and the ICL sought to wind back the Father’s time in the interim. The Father continued to see himself as a victim. In his words “The more I try, the less I get” – betraying his true self-focus.
On 20 March 2019 I ordered that the Mother have sole parental responsibility, that the Father spend supervised time with the children at the L Contact Centre at Suburb M, and that the Father’s FaceTime and telephone communication with the children be suspended for two weeks - following which it would resume again. In the meantime I ordered that he have no electronic communication with either child before 1 July 2020 and that he not delete any messages between he and the children.
I otherwise ordered further hair strand drug testing and put in place injunctions in respect of non-denigration, illicit drug use, exposure to family violence or discussing the proceedings with the children.
The Paternal Grandmother was able to spend time with the children on three consecutive days from 9:00am to 5:00pm during school holiday periods with such time to occur on the Region C. During her time, she was specifically restrained from permitting the children to spend time with the Father, communicate with him, or from passing any messages from him onto the children.
I ordered that the Father enrol in a “parenting after separation” course within seven (7) days and that he do all acts and things to complete it.
I also prohibited personal cross-examination upon resumption of the trial, pursuant to s 102NA(1)(c)(iv) of the Family Law Act.
Turbulence in the intervening period:
Following the interim orders, the Father, the Paternal Grandmother and Ms B remained on the Region C for some time.
At home, X began to act out even more than before.
On 27 March 2019 she complained to the Mother about seeing sexually explicit video footage of the Father and Ms B on the Father’s mobile telephone on the last holiday period. She appeared to be upset. Whether she did or did not see such footage is unknown; the child was highly resistant to discussing it with the Family Report writer in the updated report and I am not able to make any finding.
On 31 March 2019 X ran away, spending the night at the home of her boyfriend N’s parents. She contacted Ms B, who then delivered X some clothes and toiletries at her request. X returned home the next day.
Pursuant to the interim orders, the Paternal Grandmother spent time with the children on 17 and 18 April. Though the orders provided for three days of visits, the Mother only provided the children for two days, citing illness on Y’s part. In truth the major reason for the reduction was that the Mother was irritated with the Paternal Grandmother for flagrantly breaching the interim orders during those visits by:
(a)deliberately orchestrating a telephone call between X and the Father; [23]
(b)allowing the children to “find” a letter in the Grandmother’s motel room that the Father had written to the children. Although the Paternal Grandmother claimed ignorance of the letter in the witness box, I do not accept her evidence and am satisfied that it was quite deliberate. For his part, the Father admitted that by writing the letter he “went against all orders…I was a bad-ass dad”.
X runs away:
[23] She claimed that she did so because she had good mobile phone reception at the time. And that the Father’s attempted calls to the children had been regularly frustrated.
On 21 April 2019 (Easter Sunday) X received a text message on her mobile phone purporting to be from “the Easter Bunny”. The message wished that she would “have an awesome day and eat lots of chocolate Easter eggs and always remember that the Easter bunny loves you more than anything…even eggs”.
Given the Father’s letter to the children three days earlier, and noting the content of the text, I am satisfied that the Father sent it – flagrantly breaching the court’s interim injunction against electronic communication.
The Mother later confiscated X’s phone as she wasn’t meant to be using it that day. X was unimpressed, leaving for a walk shortly afterwards. Her mobile phone had been left behind. The Mother thought she would return after having calmed down - but she didn’t.
Piecing together the exact timeline of what followed involves weighing up competing versions of events, and looking at the content of text and email messages. Unhelpfully, some of the text messages have exact times on them and others don’t. Moreover, the Father conceded that the chronology of events in his affidavit filed 7 May 2019 was inaccurate; it seems to have been “out” by a day.
I note that neither the Mother nor the ICL sought a positive finding that the Father was involved in X’s decision to run away. But it is certainly a real possibility that he was. His actions, the Paternal Grandmother’s actions, and the curious timing of Ms D’s actions all give rise to real suspicion.
Returning then to Easter Sunday, by the end of that day the Mother had become increasingly anxious and ended up making a “missing person’s report” to NSW Police. She repeatedly attempted to telephone the Father and the Paternal Grandmother - but they did not return her calls, or even acknowledge them by text.
At around 4.29pm on Monday, 22 April the Mother finally got through to the Paternal Grandmother by phone. The Mother was upset, telling her that X had run away and asking if she had her. The Paternal Grandmother denied having her. The Mother thought that the paternal family were involved in her disappearance; it was a tense phone call.
At 7.56pm that night, the Paternal Grandmother sent a lengthy email to the ICL, to the Mother’s solicitor and – although she said she was staying with him at the time – she sent it to the Father as well. The email referred to her 4.29pm phone call with the Mother, stated that she and the Father were both extremely upset and worried about X running away. She (and the Father) clearly thought that X had run away for good reasons:
“I know what the Court has ordered…& it goes against my better judgment where the children are concerned…
At the present moment…I do not know where my granddaughter is…neither does her mother…& it ‘sickens’ me to know that these are the measures my granddaughter will go to…placing herself in harms way…because she is so unhappy…
Leaving the children in Ms Jamieson’s care & denying them of FULL contact with their father (and me) is NOT doing the children any favours…
I commenced these proceedings for a VERY good reason…I have the childrens BEST interest at heart emotionally…
Ms Jamieson’s best interest was NOT to lose her pension income…
At this time…I am more than willing & happy…to go against all court orders & if I find X…to take her home with me to Qld & enrol her in school…though I know this would totally devastate Y…” [24]
[24] Mother’s affidavit filed 09/03/19, annexure “C”
Shortly afterwards, the Father texted the Mother to say that he hadn’t heard from X. He said he had messaged her boyfriend N’s parents and that they hadn’t heard anything either. But this was callous and untrue. N’s parents had already informed the Father that they had had contact with X and that she was safe. [25]
[25] Father’s affidavit filed 07/05/19, para 10 and annexure “3”. Though this was said to have happened on Easter Sunday, it happened on Easter Monday.
Shortly prior to 9.43pm on 22 April, X telephoned Ms D, telling her that she was safe, at a friend’s house, and that she did not want to return to the Mother’s home. At 9.43pm Ms D contacted the Police to inform them. She then texted the Paternal Grandmother at 9:51pm to advise that she had heard from X, then messaged the Father on Facebook at 10:03pm.
Sadly, Ms D did not see fit to contact the Mother. Nor did the Father or the Paternal Grandmother do so.
At trial, the Paternal Grandmother falsely claimed that she had in fact immediately told the Mother about Ms D’s call to her on 21 April. That was plainly untrue - as was the Father’s Affidavit to the same effect.[26] In fact, on the next day (Tuesday 23 April) the Paternal Grandmother texted the Mother at 11:55am falsely asserting that she had not heard anything about X. [27] This was callous deception to which the Father was a party.
[26] Father’s Affidavit filed 07/05/19, para 13.
[27] Exhibit 34.
In fact the Paternal Grandmother only revealed the discussion with Ms D in a text to the Mother’s Solicitor and the ICL sent at 2:14pm on Tuesday, 23 April. When the Mother followed up with an urgent text to Ms D, she admitted by way of text in reply that X was safe and with a friend. Ms D’s message to the Mother finished with a “please don’t contact me again”.
Unbeknownst to the Mother at that time, X was on a train headed north towards Ms D who lived in Region F, Queensland. Somehow Ms D managed to “guess” the exact train that X would catch, including the exact arrival date, time and location – Town O (in northern NSW). Having collected X, Ms D then took her back home to Queensland, via a Police Station. Ms D and X soon followed up with a complaint to DoFACS about the Mother’s household, drug use and alleged family violence in their home.
Unexplained questions abound. Why were the Paternal Grandmother and the Father evasive towards the Mother? How did X arrange and pay for the train? How did Ms D know exactly where and when to meet her? If X did tell Ms D where to meet her (as seems likely), surely Ms D would have told the Father and the Paternal Grandmother?
X was coy about the exact circumstances when interviewed again for the updated Family Report. The Mother has not pressed her for such details, which is understandable given all X has been through.
For my part, I consider that the paternal family were likely more involved in aiding and abetting X’s running away than they have admitted to. But I do not positively find that they orchestrated it. The following are also salient matters:
· the Father’s history of undermining the Mother as a parent;
· the fact that X felt she had no option but to run away in order to get the parental attention she had been lacking;
· the Father and Paternal Grandmother’s callous treatment of the Mother during the period the child was missing (and their neglect for the child’s welfare).
X lives with Ms D in Queensland for the next 3 months:
The litigation remained as intense as ever. The Mother promptly brought a Recovery Application to seek X’s return. Ms D was briefly made a party to the proceedings.
In the course of these further court events I expressed my concern to the parties that X may have run away specifically to live with the Father and that I did not see that as an outcome in her best interests at this time. Having heard this, to their credit the Father and the Paternal Grandmother both consented to an injunction restraining them from having any communication or time with X in the interim.
Having completely stopped cannabis a few months before the trial in January 2019, the Mother briefly relapsed at that time. She blames this on the stress of the child running away. Her relapse caused her to produce a positive drug screen. As Y was still in her care this constituted a breach of the illicit drugs injunction contained in the orders of 20 March 2019. Her breach troubled the ICL so much that she took the position that X should not be forced to return to her care pending trial. This was a complete 180 degree turnaround from the ICL’s submissions at the recent interim hearing. I indicated my disapproval of the Mother’s relapse and said that I would not be forcing the child’s return precipitously.
Ms D enrolled X in a new school and arranged for her to be placed onto a mental health care plan.
Y’s birthday fell during this period in 2019. Tensions were high. The Mother collected the Father’s present for Y the day after his birthday, in response to which he texted her to call her a “psycho” who must be “totally mental” while referring to himself as Y’s “real dad, not the drug dealer you are fucking”.
Ms D ultimately consented to an order for X to be returned to the Mother. She said this was what X wanted and that X and Y were missing each other terribly. The child was returned without incident on 4 July 2019 and Ms D was then removed as a party.
Although the Father sent X some money while she was with Ms D ($30), he otherwise does not seem to have had any physical contact with her while she was with Ms D. In that regard the paternal family appear to broadly have complied with my “no contact” injunctions.
Mother and Mr A separate:
On 5 July 2019, the Mother and Mr A separated amicably.
Drug use was a factor, as Mr A was continuing to smoke cannabis each night to help him sleep and had no intention of stopping. But the Mother was concerned not only about her need to stay abstinent from cannabis - but also the need to focus on her relationship with X. Mr A was potentially an obstacle to that.
For the first time in her life, the Mother was living independently. She and X also began family therapy through Uniting Care and Catholic Care. Notably she has not told the Father her new address as she does not want him to harass her now that she is living alone.
X becomes disillusioned with the Father:
The Father had never registered for the Suburb M Contact Centre, despite the interim orders of 20 March 2019. X was hurt by this.
She was further hurt on her birthday when, after having unsuccessfully tried to call X at school, the Father finally got through to her in the late afternoon and made it clear he was annoyed with her for not taking his calls. He then upset her by asking her questions about the past and by reminiscing on past birthdays and other events. Pointedly, he made a joke to X about sending her money for another “holiday”. X laughed but the comment only reinforced the Mother’s view that the Father was involved in her running away.
Updated Family Report for resumption of the trial: [28]
[28] Exhibit 15.
The updated Family Report interviews took place on 19 August 2019. The report was primarily an update as to X’s situation and views. Given the content of previous reports, the Family Report writer did not consider it necessary for the Father to participate.
X told the Family Report writer that she had deleted the relevant call and message logs. The Mother was convinced that the Father had encouraged X to run away.
By then though, X was upset at what she saw as the Father’s manipulation. Despite having very limited communication with her over the last few months, he had messaged her to say “hi” the very night before her Family Report interview and then sent two further messages that day wishing her a “nice day”. X saw the timing of the messages as no coincidence.
X said she hated her Paternal Grandmother.
The Family Report writer considered that when she ran away, X was hoping to live with her Father – a wish that had not come to fruition and which she was very disappointed about. X revealed that she suffered low mood most of the day and still had difficulties with peers. She had few friends. She did not trust adults.
The Family Report writer considered that the Mother’s contribution had been her past focus on her relationship with Mr A. The Father’s focus had been on de-stabilising X’s relationship with the Mother. The Family Report writer was concerned that the Father made overtures to the child and then failed to follow through. His mixed messages were confusing and upsetting for X, who the Family Report writer considered had developed a major depressive disorder.
The Family Report writer confirmed that parental communication remained poor and that X’s ongoing irregular communication with the Father was only causing further de-stabilisation and hurt.
The Family Report writer came to the following conclusion:
113.On the basis of information provided by X at this assessment the Father is not engaging with the children in an emotionally productive or predictable manner. The Family Consultant was advised that the Father has failed to engage with the supervision centre which was to facilitate time spent between the Father and the children. If the Father is proposing he spend time with the children, time spent with would be recommended to occur under conditions of supervision at a similar centre and it can be independently verified that the Father is showing reliability and that his time spent with the children is not undermining their relationship with the Mother or placing the children at risk.
X confronts the Father:
The Father was clearly upset at X’s newfound attitude towards him. He did not accept any responsibility, instead blaming the Mother for “brainwashing” her. Once again he sent the Mother aggressive texts.
On 17 September 2019 X had a lengthy telephone call with the Father. She had been refusing to take his calls but on this particular day she decided to confront him. The Mother was present for most of that conversation and gave detailed affidavit evidence about it.
X complained about the Father not seeing her at the supervised contact centre and he explained that he did not want to “feel like a chained up criminal.” The Father blamed the Mother for their lack of contact. The Father and X both became upset and the Father began talking over the top of her. He invalidated the child’s experiences and feelings. He would not accept that she may have simply wanted to get these things off her chest.
The Father thought that the call was a set-up by the Mother. But in truth, the Mother had no need to go to such lengths. The Father had consistently torpedoed his own case far more effectively than the Mother ever could have. The updated Family Report was damning. I consider that the child was speaking her own truth to the Father in that call, with the support of the Mother in the background. Instead of listening to his daughter, validating and supporting her, he pushed her away.
The Father failed to undertake the hair strand test in September 2019, as ordered on 20 March 2019. Instead he had a haircut, feebly trying to blame the ICL – by suggesting that she was supposed to have made a specific request for testing and that she hadn’t. This was a distortion of the plan wording of the order – with which the Mother had complied and for her part turned up a clear result.
Part II of the trial (28 October – 1 November 2019):
When the trial resumed, the Father was represented by experienced solicitor and counsel pursuant to my s 102NA order. He and Ms B had separated; he now disparagingly said she had only been “a fuck”.
The Father’s legal representatives advised that he was now willing to concede sole parental responsibility to the Mother and that he simply sought to spend time with the children. But those concessions were quickly abandoned by the Father soon after he got back into the witness box. He still wanted the children to live with him.
As before, the Father remained a most self-absorbed, angry and unimpressive witness. The Paternal Grandmother was also unimpressive. [29]
[29] I refer here to her evidence that she contacted the Mother immediately after having been advised by Ms D that she had heard from X.
The Mother was a reasonable witness. She came across as genuinely having turned a corner in terms of her insight as to drugs, and her insight into her need to really work on her relationship with X.
Overall, the Mother came across as having a lot more insight and child focus than the Father did. I am satisfied that, unlike him, she had gained some insight. She was positively proud of her efforts to give up cannabis and of her new-found accommodation and independence. Put shortly, she seemed to have done a lot of “growing up”.
Mr A was also a reasonable witness. While he continues to use cannabis each day, he does so because of difficulty sleeping as a result of his son K’s disabilities and disturbed sleep patterns. He did not want to take sleeping tablets as they affect him more. I also accept that he has done a good job as a father figure to Y for most of his life in what have been difficult circumstances. I accept that he and the Mother are separated amicably but remain on good terms and see each other regularly.
I do however consider that he perpetrated family violence against Ms D in the past. He choked Ms D at separation. He was heavily using ice at the time and this puts his behaviour into context although does not provide any excuse. I also consider that he was heavily involved in drugs, including supplying drugs when he was with Ms D. But this was years ago – and prior to him giving up ice “cold turkey” with the Mother at Christmas 2015. This was a major turning point for him in terms of risk, as his past ice use contributed to his past family violence towards Ms D.
It was apparent that all parties had breached the interim orders of 20 March 2019 in a number of respects. The Father, by communicating with the children contrary to the interim orders, failing to undertake the hair strand test, failing to undertake the parenting course, register at the contact centre and by continuing to denigrate the Mother to the children.
The Mother, by her past drug use and her exposure of the children to Mr A at a time when he was in possession of cannabis (albeit in a locked safe.) The Mother had also failed to facilitate all of the Father’s (albeit inconsistent) telephone calls to the children.
The Paternal Grandmother had facilitated communication between the children and the Father contrary to orders.
The Family Consultant was the last witness. Regrettably, part way through her evidence, the Father got up and walked out of the court room.
After the luncheon adjournment, his legal representatives then had to withdraw as the Father had not returned to court and was not able to be contacted. In the result the Father ended up self-represented again.
This was what should have been the last day of trial (31 October). I heard submissions from the ICL and from the Mother’s counsel. But as the Paternal Grandmother was worried about the Father’s welfare, I considered it unfair to force her to deliver her submissions then and there. Instead I adjourned to the next day for her to make submissions (by which time the Father would hopefully have been found.)
As it happened, the Father in fact attended on the next day and he apologised for walking out. Both he and the Paternal Grandmother made heartfelt submissions. Essentially they both pleaded not to be “cut out” of the children’s lives – which they both fear will happen if I leave it up to the Mother to determine their time and communication with the children as she and the ICL contend should happen.
Best interests findings:
I have already made numerous findings of fact which engage the various best interests considerations pursuant to s 60CC. These findings should be read with those earlier findings and I will proceed by way of summary as much as possible.
Although a number of the s 60CC considerations relate only to a “parent”, I have nonetheless factored the Paternal Grandmother into my considerations insofar as she is relevant.
PRIMARY CONSIDERATIONS
Section 60CC(2)(a) – benefit to the children of having a meaningful relationship with both parents:
A “meaningful” relationship refers to a relationship which is of substance and significance to a child. It is a qualitative adjective rather than a strictly quantitative one. [30] The court is required to look prospectively.
[30] See the decision of Brown J in Mazorski & Albright (2007) 37 Fam LR 518
The children clearly benefit from having a meaningful relationship with the Mother. She is their primary carer. Provided she stays abstinent of illicit drugs, and remains focused on the children, she has much to offer them.
The children could potentially benefit from having a meaningful relationship with the Father - but only if he moderates his undermining and emotionally abusive behaviour, which to date he has shown little capacity to do. His lack of self-control is coupled with a victim mentality and an almost total lack of insight into the harm of his own actions. Moreover, he has been stubbornly resistant to change. He may well have borderline personality traits and these may explain, or at least put into context, why he has acted in the way he has. But labels are not a solution. He needs serious psychological treatment and attitudinal change. Regrettably he has ignored those types of recommendations for years.
Unless and until he successfully undertakes serious psychological therapy as envisaged by the Family Consultant, I struggle to see a benefit – or at least a net benefit - in the children having a meaningful relationship with him.
The children could potentially benefit from having a meaningful relationship with the Paternal Grandmother. She has something to offer the children. For instance it is common ground that when she has read books to Y over the telephone, he has enjoyed it.
She has nonetheless aided and abetted the Father’s emotionally abusive attitudes and behaviours at times. When it comes to the crunch she has prioritised the Father’s needs over those of the children. She has facilitated breaches of orders and at times not been sufficiently protective of the children’s emotional needs.
Section 60CC(2)(b) – need to protect the children from physical or psychological harm arising from abuse, neglect or family violence:
There are risks associated with each party.
In the Mother’s case, she has been a long-term cannabis abuser. However she has finally quit cannabis as at April 2019 and, thus far, she has been successful in remaining abstinent. Against a backdrop of cannabis use since age 12 this is a real achievement. Moreover, her “cold turkey” efforts in ceasing ICE use in 2015 also deserve recognition.
But the Mother does nonetheless remain at some potential risk of relapse, most relevantly as to cannabis.
I am satisfied that the Mother has on occasion denigrated the Father to or in the presence of the children, and allowed them to be in the presence of Mr A doing so. She has not always promoted the Father’s relationship and at times she has permitted Mr A to be in the background during the Father’s calls, which has caused trouble.
Overall however I do not consider that the Mother’s parenting poses unacceptable risk to these children. She does however remain vulnerable.
Regrettably, the Father does pose an unacceptable risk to the children across a number of different facets.
My primary concern relates to the Father’s emotional abuse, undermining behaviours and volatility as have been noted at length.
There is an abundance of evidence as to the Father’s manipulative behaviours and their impact on X in particular has been profound.
Ultimately in his closing submissions, the Father told me that he was now seeing a psychologist and that he was taking a number of medications. But he had not put on any evidence about such matters and, whatever treatment he has had, it has been insufficient.
I am also concerned about whether or not the Father is still using ice. He continued to use ice in 2016 and 2017. He was dishonest with Family Consultants about his drug use. While his hair strand test of 30 November 2018 was clear, his hair strand test of 6 March 2019 – just prior to Part I of the trial - was positive for an amphetamine-type substance. He explained the positive by saying that he had used pseudoephedrine nasal spray in the days before the test, but if this is true then he had failed to disclose this to the testing authority. Nor did he mention it in his affidavit material. I do not accept his explanation.
Further, he failed to undertake the hair strand test that I ordered on 20 March 2019.
The Father accepted that he had used drugs as a crutch to escape the realities of life. I remain concerned that the Father could still be using ice, particularly noting his anxious and aggressive presentation at court and in many of his confrontations with the Mother.
The Father’s history of “repeated derogatory taunts” in text messages to the Mother probably constitute “family violence” as defined in s 4AB. But family violence per se is not the major issue here.
Turning then to the Paternal Grandmother, she admits to a history of alcohol abuse. She continues to drink, at times heavily. She has undertaken CDT testing however these have all been “normal” and it seems that broadly she has her drinking under control. I do not see her alcohol consumption per se as posing an unacceptable risk to the children spending time with her.
Her historical conviction in 1990 for cultivating and possessing cannabis was a one-off offence. It does not give rise to unacceptable risk.
I have some concerns about the Paternal Grandmother’s lack of protectiveness concerning sexual matters, noting the ages of the parents when their relationship commenced.
But my major concern about the Paternal Grandmother arises from her being overly permissive in respect of the Father’s emotional abuse of the children and not being sufficiently protective of them. On occasions she positively put the Father’s interests in the litigation over the children’s wellbeing. Specifically, she discouraged the Father from taking any action in relation to X’s social media photographs. She lied to the Mother after X went missing. Her actions constituted a complete betrayal of whatever limited trust between she and the Mother as may have existed (or at least been salvageable). Moreover, she also stated a clear willingness to breach court orders when X ran away – by saying she would take X back to Queensland even though it would “devastate Y”. In my view these matters collectively give rise to unacceptable risk should the children spend time with her.
I consider that orders need to be made which are protective of the children so far as both the Father and the Paternal Grandmother are concerned.
ADDITIONAL CONSIDERATIONS:
Section 60CC(3)(a) - views expressed by the children:
X has completely rejected her Father at this stage and wants to live with the Mother. This is as a direct result of her lived experience. Y’s wishes have not been canvassed but he no doubt wishes to continue living with the Mother. The thought that he might not do so has probably not even entered his mind.
X presently expresses hatred of her Paternal Grandmother but this is probably overstated. Y does not have a particularly close relationship with her.
Section 60CC(3)(b) – nature of children’s relevant relationships:
The Mother has a close and loving relationship with Y and is actively working on her relationship with X.
X and Y have a particularly close relationship and she has had to parent him at times. These children did not cope well when separated as a result of X running away. They should not be separated now.
The Father has a relationship with X but it has involved elements of emotional abuse. He has a history of prioritising his own emotional needs over hers. From X’s perspective he has been unreliable. He makes promises to her but then fails to deliver. He has let her down many times.
The Father has a limited but loving relationship with Y.
X is estranged to some extent from the Paternal Grandmother; Y does have a more positive, albeit limited, relationship with her from a distance.
As for Mr A, he and his children J and K have good relationships with Y and to a lesser extent with X. There has been some strain between Mr A and X but is hard to know exactly how strained that relationship has been given the Father’s influence. They do have a capacity to interact in positive ways at least some of the time. [31]
[31] See exhibit 27 (text messages).
Section 60CC(3)(c) – extent to which parents have participated in children’s lives:
Save for the early chaotic post-separation period, the Mother has consistently participated in the children’s lives. Until recently however, her participation had been diminished to an extent as a result of her ongoing drug use and her focus on her relationship with Mr A. She has now addressed those matters.
The Father has not been a consistent day-to-day presence in the children’s lives now for some years. In 2018 he chose to move a long way away from them.
The Paternal Grandmother chose to move a long way away her involvement in the children’s lives has also been limited.
Section 60CC(3)(ca) – Parental fulfilment of obligations to maintain children:
The Mother has borne the brunt of the children’s living expenses since separation, with Mr A’s assistance. The Father has been out of any regular work since late 2017 so any financial contribution he makes to the children must logically have been nominal since then.
Section 60CC(3)(d) – Likely effect of any changes in children’s circumstances:
These children have been through significant upheaval in their lives. X is in high school and the most important thing for her now is to have a stable and steady home and to repair her relationship with her Mother as much as possible. She needs to do this for her own physical and emotional wellbeing. In a little over 3 years she will be an adult. What precious childhood of hers remains must be carefully managed so that she finishes her high school education and develops into as well-balanced a person as possible.
There are some positive signs, as X seems to be a good student at school. She needs to be supported to achieve her potential.
Largely because of his young age, Y has come out of this dysfunctional family situation relatively unscathed. I would not want him to be visited with the same problems X has had.
The Family Report writer expressed various concern about the de-stabilising effect of the Father’s involvement in the children’s lives. She poignantly observed that “in some cases the risks of maintaining a relationship with a parent far outweigh the benefits”.
Putting in place orders for the Father or the Paternal Grandmother to spend defined unsupervised time with the children risks de-stabilising them.
Section 60CC(3)(e) – Practical difficulties and expenses:
There are real practical difficulties and expenses in maintaining family relationships given the distances involved. They add an extra layer of difficulty.
Section 60CC(3)(f) – Parenting capacity:
The Mother has demonstrated impaired parenting capacity up until recent times. X’s decision to run away was the belated “wake-up call” she seems to have needed.
But the Mother remains vulnerable. The Family Consultant was concerned that while the Mother presently has more confidence than she has ever had, but warned that her confidence could diminish if the Father put her under stress. Loss of confidence could cause the Mother to decompensate – with the risk of her returning to cannabis use. This is the last thing the children need.
The Father lacks the requisite parenting capacity to provide the children with a safe emotional environment. The Family Report writer considers his future prognosis to be poor.
As for the Paternal Grandmother, she is not a serious candidate for the role of primary carer. She lacks the emotional capacity but also the physical capacity given her age and state of health.
Section 60CC(3)(g) – Maturity, sex, lifestyle and background of children and of either parent:
X has been emotionally struggling for quite some time. The Family Report writer is concerned that X has an unstable self-identify and is at risk of future mental health problems unless she receives significant reciprocal parental attachment and appropriate responsive parenting. She is concerned that X may need even more support than the Mother is presently giving her.
Y is doing relatively well.
The Mother has taken a long time to grow up as a parent. The Father has yet to do so. He seems at this stage to lack emotional maturity.
Section 60CC(3)(i) – Attitudes to parenting:
Both parents could be heavily criticised.
That said, the Mother’s present parenting capacity, while somewhat vulnerable, is the best it has ever been.
The Father’s parenting capacity remains grossly lacking.
The Paternal Grandmother’s parenting capacity is also limited insofar as these children’s needs are concerned.
I have some concerns that the Mother, if appointed to act as a “gatekeeper” of time, will simply decline to facilitate a relationship. But she has shown a capacity to facilitate the relationships. The Mother sent the Father some drawings done by the children in 2019, and she also sent the Paternal Grandmother a photo of Y reading a book. She has facilitated telephone communication, even if not always as much as ordered. But sadly whatever trust the Mother may have had in the paternal family is all but gone since X ran away. She knows and it hurt by the fact that they lied to her.
On balance however, I think that if the Father and the Paternal Grandmother showed the Mother that they had changed their behaviours then the Mother would promote some form of relationship, albeit with appropriate safeguards. If she didn’t do so, then they could potentially re-apply to the court for further orders if necessary – not that I would want to be seen as encouraging that outcome. One would think that any such application would need to be well-supported by psychological evidence and that, realistically, X would by then be of an age that she could probably vote with her feet anyway.
Section 60CC(3)(j) & (k) – family violence and related orders:
There was some situational verbal abuse between the parents in the lead up to separation. The Father later had an AVO against him for the protection of Mr A. He has since been verbally abusive to the Mother in text messages on numerous occasions. There has never been any AVO between the parents however I do consider that the Father’s needlessly aggressive texts to the Mother probably fall within the definition of “family violence” contained in s 4AB of the Act.
The Paternal Grandmother has not at any time perpetrated family violence.
Section 60CC(3)(l) – Whether it would be preferable to make an order that would be least likely to lead to further proceedings:
This would most certainly be preferable. The orders I propose to make are least likely to lead to future proceedings although there is never any guarantee.
Section 60CC(3)(m) – Any other fact or circumstance the court considers relevant:
This is a case in which the children most of all need stability and protection from ongoing parental conflict. They need to be supported to complete their respective childhoods in a healthy way.
Applying the statutory pathway & arriving at orders:
Sharing parental responsibility for these children would be an unworkable disaster. Logically, the Mother should have sole parental responsibility.
On the evidence before me, the Mother is the only viable option as primary carer. Defined time and communication with the Father or the Paternal Grandmother would pose unacceptable risk to the children.
No-one contends for supervised time. The Father thumbed his nose at the interim order for supervised time and I would not want to set the children up for further disappointment. In any event, long-term supervision is not ordinarily in the best interests of children.
I propose to accede to the Mother’s and ICL’s submission that the Mother be given the role of “gatekeeper” for both the Father and Paternal Grandmother’s time and communication with the children. In doing so I acknowledge the risk that she may stubbornly refuse to ever permit any form of relationship even if they do address the concerns raised in this judgment. But I will take that risk; the alternative – unsupervised defined time – is much riskier.
I also propose to make orders which are highly prescriptive as to how the Father and Paternal Grandmother are to contact the Mother. It will have to be in writing. This way there will be a record of what was said. If the father in particular continues to be abusive towards the Mother then she can approach the Police for an AVO if necessary, and she will have the communications as evidence. The harassment and the aggression need to stop.
I will also impose a raft of injunctions to regulate the co-parenting environment and hopefully to keep the children out of harm’s way. One such injunction is that, absent the Mother’s written consent, the Father and the Paternal Grandmother are positively restrained from spending time or communicating with the children. This sends, and is intended to send, a clear and unequivocal message. Moreover the Mother in her discretion can impose terms and conditions as to any time or communication that does occur.
The one exception is that the Mother will be restrained from requiring or permitting Mr A to act in any sort of monitoring role. This would be an abuse of power and I will not permit it. Moreover his involvement would only inflame the situation.
As for Mr A, the ICL specifically contended that the Mother be restrained “from allowing the children or either of them to cohabit with Mr A for any period of time whether on a short-term, temporary basis or on a longer term more permanent basis”. [32]
[32] Exhibit 33.
The evidential foundation for such a restraint is his admitted long-term cannabis possession and use. He stores it in a safe with a code and only smokes it in the early hours of the morning in a room detached from the main house. Short of quitting altogether, Mr A is “controlling” his use of cannabis, although obviously it is illegal and potentially poses risk to the children. Perhaps most significantly, his access to, and use of, cannabis poses a constant temptation to the Mother to relapse. She knows this; it is part of the reason she moved out.
Mr A has also displayed some violence in the past. His criminal history[33] reveals juvenile offences of robbery while armed in company, larceny and some property damage, obtaining money by deception and assault occasioning bodily harm and a drug possession charge as an adult. However, his last conviction was back in 2011.
[33] Exhibit 24.
He perpetrated family violence in his relationship with Ms D, particularly when under the influence of ice. On one occasion he destroyed the bedroom door of their home, and on another occasion when arguing with her he put his fist through a wall. He choked her at separation.
But Mr A does seem to have improved his life when he stopped using ice.
Insofar as there has been aggression between he and the Father, I consider that the Father has been far and away the main aggressor.
In 2017 Mr A had an AVO taken out against him by his ex-partner in relation to some aggressive behaviour he displayed in response to a suggestion that his ex-partner’s then boyfriend may have inappropriately touched his children. But that event seems to be situational more than anything else. He did not breach that AVO.
There is no credible evidence before me that he and the Mother ever had a violent relationship.
Cannabis use is the major issue of concern for me in relation to Mr A.
The fact is that the Mother and Mr A maintain an amicable relationship - and whatever his faults might be, Mr A has been a good father figure to Y. Mr A must have done quite a few things right.
In determining whether the ICL’s proposed injunction is “appropriate” within s 68B, I have to walk a fine line between on the one hand protecting children and on the other hand not being unduly intrusive into the personal lives of adults. While separated, the Mother and Mr A remain friends and Mr A and his children remain valuable relationships, particularly for Y.
And to be frank, I am not sure I even understand the exact reach of the ICL’s proposed injunction. For instance, what does “cohabit” mean? Can they spend substantial amounts of time together but strictly sleep in separate homes? Would it stop them having a holiday together where they stay in separate rooms? If all the ICL’s injunction does is stop them from having a relationship but not from having substantial contact with each other then what is the point of it? As a matter of principle, should a court restrain these adults from “cohabitating” anyway? And what consequence should be attached to a breach – do the children get put with the Father or Paternal Grandmother?
In the end, I reject the ICL’s proposed injunction. I consider that the only “appropriate” restraint is that the Mother be restrained from knowingly exposing the children to Mr A if he is in any way affected by illicit drugs at the time.
The other injunctions and machinery-type orders I am making are self-explanatory. I consider all of them appropriate and in the children’s best interests. The anti-loitering restraint against the Father (order 8) is no more than an enforcement of the other restraints and will give the Mother comfort, which will be helpful.
In this particular case, the harrowing past history of the parents is such that the court will additionally order that a copy of these reasons and orders be provided to the NSW Department of Communities & Justice just to add an extra layer of protection for the children. Primarily this impacts the Mother; it gives her added incentive to maintain her current and much-improved trajectory.
Over the Mother’s objection, I am ordering that the ICL explain the orders to the children. X in particular will need to know what the orders say; the best person to explain them to her is the ICL. I think that leaving it to the Mother to do so would be unfair to all concerned. The ICL can also explain the orders to Y is such child-appropriate language as she sees fit.
Conclusion:
For these reasons, I make the orders set out at the commencement of the judgment.
I will hear the parties on the question of costs.
I certify that the preceding two hundred and sixty-five (265) paragraphs are a true copy of the reasons for judgment of Judge Betts
Date: 29 April 2020
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Injunction
-
Costs
-
Procedural Fairness
-
Remedies
0