MCDOWELL & REDFIELD

[2020] FCCA 2670

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCDOWELL & REDFIELD [2020] FCCA 2670

Catchwords:
FAMILY LAW – Parenting – interim orders – young child - allegations of family violence – recovery – competing live with applications – assessment of risk – best interests of child – orders made for the child to live with the father and spend time with the mother.

Legislation:

Family Law Act 1975 (Cth), s.67Q

Applicant: MS MCDOWELL

Respondent: MR REDFIELD

File Number: PAC 4725 of 2020

Judgment of: Judge Obradovic

Hearing dates: 14 and 22 September 2020

Date of Last Submission: 22 September 2020

Delivered at: Parramatta

Delivered on: 24 September 2020

REPRESENTATION

Appearing for the Applicant: Mr Gonzales

Solicitors for the Applicant: Gonzalez & Co

Counsel for the Respondent: Mr Blackah

Solicitors for the Respondent: John Hall Lawyers

PENDING FURTHER ORDER:

1. Subject to the undertaking provided to the Court by Ms B filed on 22 September 2020, the child, X born in 2020, shall live with the father.

2. The child shall spend time with the mother as follows:

   (a)Each Sunday from 8.30am to 6pm on Monday; and

   (b)Each Wednesday and Friday from 8.30am to 6pm;

   (c)And at all other times as agreed to between the parents in writing.

3. The father or his nominee shall respectively deliver to and collect the child from McDonald’s Restaurant Suburb C, NSW, at the commencement and conclusion of the child’s time with the mother.

4. The parents are both restrained by injunction from:

   (a)Drinking alcohol whilst in the presence of the child or for 12 hours prior to the child coming into that parent’s care; and

   (b)Using any illicit substance or misusing any prescription medication for a period of not less than 24 hours prior to the child coming into that parent’s care and for the duration of the time the child is in that parent’s care.

5. The mother and father each shall within 24 hours of receiving a request from the other party or the Independent Children’s Lawyer to do so submit themselves to urine drug analysis and attend to provide a urine sample for forensic testing with respect to the presence of cannaboids, opiates, amphetamines, methamphetamines and benzoids: 

   (a)A request for urine drug testing may not be made by either party or the Independent Children’s Lawyer on more than two occasions in each calendar month;

   (b)The test is to be conducted in accordance with the current Australian Standard for the collection and detection of drugs of abuse;

   (c)The parent undergoing the test shall provide to the pathologist photographic identification to be recorded before each test and the authority to provide the results of each test to the legal representative for the other parent and the Independent Children’s Lawyer immediately upon its completion;

   (d)Each of the parties shall pay the costs of their own urine drug tests and any referral.

6. The mother and father are to provide a hair sample to enable a full drug screen by hair follicle testing within 30 days of the date hereof and on receipt of the result is to cause his/her solicitors to forward a copy of that result to each of the solicitors and the Independent Children’s Lawyer.

7. The mother and father are restrained from taking any steps to interfere with the provision of hair follicle sample or to interfere with the test results.

8. Each party is to meet their own costs of such hair follicle testing.

9. The mother and father shall, forthwith, do all acts and things necessary to attend drug and alcohol counselling with an appropriately accredited or qualified therapist and/or service provider, and:

   (a)Do everything reasonably necessary obtain a referral (if required), undertake and successfully complete a program and/or sessions as recommended by that appropriately accredited or qualified therapist and/or service provider;

   (b)Follow all reasonable recommendations, directions and treatments provided by the appropriately accredited or qualified therapist and/or service provider and

   (c)Each party meet their own costs associated with undertaking such drug and alcohol counselling.

10. The mother shall forthwith attend her current treating psychiatrist and/or psychologist for the purposes of ongoing treatment and follow all reasonable instructions of that psychiatrist and/or psychologist including: 

    (a)attending all appointments made by the health professional for her;

    (b)taking all medication prescribed by the medical professional for her; and 

    (c)undertaking all treatment recommended by the health professional for her.  

THE COURT FURTHER ORDERS

1. Pursuant to s.68L of the Family Law Act1975 an Independent Children’s Lawyer is appointed for X born in 2020 and request the Legal Aid Commission of NSW to provide such representation.

2. The parties are to provide to the Independent Children’s Lawyer, within 48 hours of receiving notice of their appointment, all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

3. The parties are to provide to the Independent Children’s Lawyer immediately upon notification of their appointment, a copy of any subpoena issued in the proceedings.

4. List the matter for directions at 12 noon on 25 November 2020.

5. The parties are granted liberty to seek to have the matter restored to the list on 24 hours’ notice.

IT IS NOTED that publication of this judgment under the pseudonym McDowell & Redfield is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4725 of 2020

MS MCDOWELL

Applicant

And

MR REDFIELD

Respondent

REASONS FOR JUDGMENT

1. The Court heard on Monday last week, being the first day of a busy duty week, and continuing again a week later (being part-heard) the mother’s urgent application for a recovery order in respect of the parties’ only child, X who was born in 2020.

2. The Initiating Application was filed on 9 September 2020, with the Registrar making a determination to list the matter at short notice.  The father had, by the time of the first listing, filed an Affidavit, Notice of Risk and a Response. Given the matters raised in the parties’ material, the Court after commencing the interim hearing, adjourned it part-heard to give the parents the opportunity of putting on some additional material.

3. The parents are in significant dispute as to where their child should live on an interim basis. While the mother’s application sought a recovery order pursuant to s.67Q of the Act, she also sought a raft of interim parenting orders. The father, likewise, sought interim parenting orders.

4. There are few agreed facts between the parties as follows:

   a)The father was born in 1984. He is 36 years old.

   b)The mother was born in 1995. She is 25 years old.

   c)There is one child of the relationship, X born in 2020.

   d)After separation, the child lived with the mother. This was a period from at least July 2020 to early September 2020.

   e)The child has been in the father’s care since 9 September 2020 and spent very limited and supervised time with the mother.

5. The parties are in disagreement about when they commenced their relationship, when they commenced living together and when they separated. The mother says that the relationship started in about May 2019, that they commenced living together in December 2019 and that they separated in July 2020. The father says they lived together from late 2019 until April 2020, and that they were separated under the one roof until July 2020.

6. In any event, it seems that both parties lived at the father’s residence between December 2019 to July 2020.

7. The mother lives in a three bedroom home, with all of the usual amenities. She has friends who live close by and family members who she says are a good support system. It appears however, that one of these friends was present when the mother took the child and got in a motor vehicle while heavily intoxicated.

8. There are serious allegations of violence made by the mother against the father. They include:

   a)The father hitting her, slapping her, scratching her and kicking her;

   b)The father making threats such as “I will kick your head off your shoulders and down the street… I will kill you… you be careful what you say. I know where you live…”; and

   c)On 12 July 2020 being hit in the face with a rolled up t-shirt, having keys thrown at her and her belongings withheld.

9. The mother also alleges that the father is involved or has acquaintances who are involved in criminal bikie gangs.

10. The father refers to the mother as his former “de facto” although on his evidence, the parties cohabited for no more than 6 months.

11. Together with his mother, brother and brother’s family, the father lives on a family property in Suburb D, which has three detached dwellings.

12. The father was convicted for drug related offences and spent five years in jail from 2010. It appears that he was convicted for drug supply offences, including supply prohibited drug (large commercial quantity) as more than 4kg of methamphetamines were seized at the time of his arrest.  He says he now leads “a completely different life.”

13. It is clear from Exhibit 5 that the father has a history of drug supply, possess ammunition and possess prohibited weapon. Except for “drug related offences” for which he was jailed these matters were not addressed in his affidavits in any fashion. He submits that he has been rehabilitated and that his past criminal history and activities are not relevant to his current parenting capacity.

14. In his first affidavit, the father says that “since” (being a reference to his five year jail term) he has taken cocaine recreationally on the weekends. He now says that he stopped four weeks ago. He has, with his second affidavit, clarified his drug use saying that about 18 months ago when he was going through a rough patch for about a month, he used cocaine daily to supress his feelings. Thereafter, he says he used cocaine recreationally on weekends. The mother alleges that while the parties were together, the father used drugs on a daily basis including intravenously.

15. The father offers an undertaking from the paternal grandmother, who is aware of some of the father’s past drug use but it appears not all of it. The paternal grandmother is not a witness in the father’s case.

16. The father has a health condition, namely ulcerative colitis for which he is prescribed and takes steroids to keep the condition under control.

17. The father is self-employed as a tradesman.

18. The father’s evidence is that when he first met the mother she told him she had no driver’s licence as a result of drink driving. The mother denies that she had lost her licence as a result of drink driving but rather says that she had accumulated demerit points for speeding offences which resulted in the loss of her licence.

19. It is not clear how long the parties were in a relationship for (or if at all) before the mother fell pregnant with the parties’ child. At best it was a new relationship, which has not turned out well for either of the parents.

20. The father says that the mother moved in with him in late 2019, it appears into a home where the father has had a flat mate, for 14 years (who has recently moved out at the father’s request as a result of the allegations the mother has made against him). The mother says that prior to moving in with the father she had her own place, her own furniture and that she was employed. It appears from Exhibit 3 that the mother alleges the father has broken all her things, and that she had presented at the emergency department at Suburb E hospital following an incident of domestic violence perpetrated by the father. These are not matters which are referred to in the mother’s affidavits. Indeed, there is no sworn evidence of any admission to hospital by the mother as a result of an assault by the father.

21. The mother says that she was the child’s primary carer and that the father was disinterested in taking on a parenting role. The father on the other hand asserts that the mother did not cope after the child was born and that she found looking after the baby difficult, he says she lost her temper and shouted at the baby when she woke up.

22. The father says that when the parties first met he observed the mother to drink and smoke cannabis every day. The mother denies this.

23. The father alleges that on 22 February 2020 there was an incident where the mother was drunk and became enraged and started screaming that she wanted to take the baby and that she was leaving. This was said to have occurred in the context of the father’s extended family coming to visit the baby. The father says that the mother attempted to punch the paternal grandmother in face and that she then went out of the house and remained there until the police arrived.

24. The mother’s version of an event said to have occurred in February 2020 is different to the father’s version. She alleges the father was drunk, that he grabbed her by the neck and dragged her down the hallway. The mother says the paternal grandmother got involved and physically held the mother on a chair and prevented her from leaving.

25. Exhibit 5, being a COPS entry for 22 February 2020, does not note any evidence of effects of alcohol and drugs. The account set out in the police record is substantially different to the account in the father’s and the mother’s affidavit. Importantly, it appears that all of the witnesses to the incident were either family members or friends of the father, but that the person reporting was a friend of the mother. The police record suggests that the parties engaged in a verbal argument which was “instigated” by the mother “by stating that she was going to leave with the newborn child” and that the father refused to let her take the child. The mother was then said to have become extremely aggressive and started clenching her fists and was restrained by the father’s parents. The father did not want the mother to leave as she was upset and he did not want her to do anything stupid. According to the police records, the mother alleged that the father had choked her, which was “contradicted by all other present parties who stated that did not occur” and that the mother “was lying”. Apparently, the mother then retracted her statement about being choked and said she was assaulted by everyone. The police were not satisfied based on the conflict versions that any offences were established.

26. What appears to be a common thread is that on or about 22 February 2020 the mother wanted to leave the father’s residence with the baby but that the father and/or his family prevented her from doing so, that the police were called and that after police intervention the mother left with the child.  

27. The father says that “a few days” after the incident on 22 February 2020, the mother admitted herself to the mental health unit at Region F Hospital. It is the father’s evidence that the mother was prescribed medication which she later refused to take.

28. Exhibit 5 contains documents produced under subpoena by Region F Hospital; this was evidence tendered in the father’s case. The only document referable to this period when the father alleges the mother self-admitted into hospital a few days after 22 February 2020, is what appears to be an internal administrative note dated 28 February 2020. There is no reference to any hospital admission by the mother in late February 2020 or at any time after her discharge following the birth of the child in 2020 to date.

29. The note dated 28 February 2020, (part of Exhibit 5) is an email from the Region G Child Wellbeing Unit NSW Health apparently in answer to an email received by the community home nurse. It notes that the mother is fearful “the family would take her baby away” and that the mother has taken drugs. It is not apparent from the document when the drugs were taken, what drugs were taken or the quantity which was taken.  It appears that the mother disclosed the use of drugs to the community nurse, that she shows remorse for her behaviour and that the baby was never at risk as there were family members caring for the baby at the time. This is not a matter which is addressed in the mother’s sworn evidence at all.

30. What the mother does say is that the father and the paternal grandmother were “hounding” her and telling her that she was “having a mental episode”. She presented at the H clinic at Suburb J and spoke with a psychologist about adjusting her medication. The mother says she understood that she had post-natal depression. It is not clear from the mother’s affidavits what her diagnosis is and/or has been, what illness the medication is prescribed for, how long she has been receiving treatment and what her symptoms are.

31. The father’s evidence is that the parties separated in April 2020 after which time he slept on the lounge, or in the shed down the side of the house and occasionally on the back seat of his car.

32. The father says that one night after the parties separated in April 2020, he had a seizure in his shed as a consequence of colitis and stress. An ambulance was called. The father says that his extended family members went to his house and tried to rouse the mother, but could not and that the child was in bed with the mother. The father was taken to Suburb K Hospital by ambulance. He says that after he was released from hospital he asked the mother what happened to her and why she couldn’t be woken up the night before. The mother apparently said that she had taken two sleeping tablets to knock her out.

33. The mother says that she was asleep in the house and that no-one attempted to wake her up. She says she didn’t find out about the incident until the following day, and that she is prescribed Seroquel at night by her psychiatrist, and that she has been advised that this is safe enough for her to take with a baby. She denies taking a double dose of her sleeping tablets. The mother further says that she is always able to wake up to care for the baby during the night.

34. The father presumably leads this evidence about the mother taking two sleeping tablets in an effort to suggest that the mother’s use of medication and her behaviour pose a significant risk to the child. There is no evidence that the father or his father’s extended family were concerned about the child’s safety on that night nor that anybody took any action to remove the child from the mother’s care on that occasion, in circumstances where she apparently could not be roused and was co-sleeping with a 3 month old baby.

35. In addition, Exhibit 5, places the father’s seizure as having occurred on 27 May 2020 (not in April 2020) and that he was found by his family lying on the garage floor shaking, and vomiting. The ambulance note that the colitis has been poorly controlled recently. “Had dispute with partner and took himself out to the garage to drink beer.” This is a different account (presumably of the same incident) to the one contained in the father’s affidavit.

36. The father alleges that the mother started to leave the home at night and during the weekends leaving the child in his care or in the care of the paternal grandmother. The father says that during these periods he developed a close and loving relationship with the child, and that he was also involved in her care at other times after he would come home from work when the child was generally being cared for by the mother.  The father’s evidence about this is a little confusing as it is not clear whether he alleges the mother started to go out at night before or after separation. It appears he makes contradictory assertions in his evidence, or it may be that he is alleging that the mother both before and after separation would go out at night and leave the child in the father’s care. In any event, it is not clear why this is said as a criticism of the mother, at its highest it shows that the father cared for the child.

1. The father is critical of the mother for the way she fed the baby at night. He does not give evidence that he would get up to feed the baby, but rather would criticise the mother as to how she performed this task.

2. The father alleges that the mother’s drinking and pot smoking continued after separation and that her behaviour became more erratic. The father says she would scream at him one minute and then be polite the next. The mother denies that she smoked cannabis or drank alcohol during this time.

3. The father says that in about mid-July 2020, the parties had an argument. At the end of the argument, whilst holding the child, the father alleges that the mother drew a large carving knife out of the sink and whilst waving it at the father threatened to stab him. The mother denies that this is what occurred. The mother says that the child was in her rocker and that whilst she was washing the dishes, including a knife, the father stood over her and was verbally abusing her.

4. Exhibit 3 is a mental health assessment tendered in the mother’s case. It notes that the mother is “known with maternity previously”. The mental health assessment notes as follows:

   a)“No past mental health admissions” – it appears from other evidence presently before the Court that this may not be correct.

   b)“Recently charged with mid-range drink driving – she reports no past or present legal history” – it is clear from other evidence before the Court that the mother was charged with low range PCA a short time prior to the most recent high range PCA charge.

   c)“reports sometimes smokes THC – last use 10 days ago, reports minimal amount when she does use” – the mother’s sworn evidence is that she does not smoke cannabis;

   d)“reports occasional alcohol use, not excessive – 1-2 standard drinks (reports she has tried hard to decrease her alcohol use since having the baby)” – the mother’s evidence is that she has not been drinking alcohol “during this time” (being a reference to a period in February 2020).

5. The mental health assessment assesses that the mother poses no risk to children aged under 18 years, and notes as a protective factor “loves her 8 month old baby girl”. This is not a protective factor. The history which the mother apparently provided seems to be at odds with some of the other evidence in the proceedings as noted above, and as such, the weight which is accorded to Exhibit 3 is limited.

6. Exhibit 1 is a medical certificate from Dr L, who examined the mother on 11 September 2020. The mother presented with depression/anxiety worsened by acute stress. Exhibit 1 notes that the mother:

   Has a good understanding about her situation and is very keen to get help and improve and wants her baby back. She had mental health care plan done and will see psychologist. She is also referred her back to her psychiatrist who will perform further assessment regarding her mood and safety and her ability to look after her baby.

7. The father relies on Exhibit 6, being a urine screen test, showing that various substances were not detected in the sample provided to the laboratory. The sample was not provided under chain of custody. There is no expert evidence to explain the results, for example, what the time frame for detection of particular substances might be and what the fact of a non-detection of cocaine metabolites in respect of a sample collected on 16 September 2020, actually means in terms of possible use of cocaine. In the Court’s experience, cocaine is usually not capable of being detected in a urine sample after four days. The evidence therefore might support the father’s assertion that he is a recreational user of cocaine or that he has not used cocaine for a period of not less than four days.

Assessment of Risk

1. Police records and other evidence as tendered are evidence of what someone else (being an unknown person who is not a witness in these proceedings) asserts one of the parents (or others) have said. That evidence is not tested and simply by virtue of being a business record it is not necessarily a correct record of the hearsay and/or opinion evidence of a particular event. It is not sworn evidence. Notwithstanding those matters going to the weight of such evidence, such evidence is still relevant for the purposes of the risk assessment weighing exercise and the Court’s consideration of the veracity of the parties’ allegations, particularly if there are inconsistencies in the various accounts of the same event.

2. The mother expresses her remorse at her recent actions of driving whilst under the influence of alcohol with the baby in the car. One would hope that she is remorseful and that she will not do such a thing again. While she does not presently have a licence, and one would expect her to obey the law and not drive without a licence, the risk remains. Her explanation for both events, which are relatively recent, speaks of her acting irresponsibly and dangerously, not only as far as she and her child are concerned but all of other road users and their families who were put at significant risk of harm by her reckless actions. Driving after having two drinks might be forgiven in the sense that a person might underestimate the effect alcohol has had on them, but driving after eight with a baby in the car cannot.

3. The Court accepts that the mother has provided a liver function test, which in the Court’s experience indicates whether a person’s liver has suffered disease or damage, such as for example from heavy or chronic alcohol abuse. The test results provided “usually indicate normal kidney function”. Prima facie, it appears that the mother has normal kidney function, which might negate long standing alcohol abuse. However, there is no expert evidence to interpret the test results. Without an interpretation of the test results by an appropriately qualified expert, the results themselves are of little weight.

4. The evidence indicates that the mother has a history of depression and anxiety, that she has attempted suicide on a number of occasions, that she has had a troubled past with complex PTSD and that she is vulnerable. The mother alleges the father has been both physically and verbally abusive towards her, that he has not assisted in the care of the child, and that his action in retaining the child were done with an ulterior motive, that is to “punish her” rather than for child focused reasons. 

5. The father has a troubling history involving drugs and possession of firearms. Until recently, he has been, on his own evidence, a recreational user of cocaine. This in itself is troubling, noting that he states he is remorseful about this previous drug use and that he has sought the help of his family and friends to assist him in overcoming his habit. It does not appear that his family is aware of his most recent drug use, or indeed the extent of his drug use. The mother alleges a much more serious drug habit than the one the father admits to. A drug affected parent poses a significant risk to a young baby, a parent coming off drugs or a parent who is addicted to drugs, likewise poses a significant risk to a young baby, which might be through aggressive behaviour, neglect or other possible side effects of illicit substance use.

6. At first blush, neither of these parents is particularly well placed to care for an eight month old baby. It is a finely balanced case, with risks weighing heavily on both sides. What tips the balance in the father’s favour for the child to live with him on an interim basis is the undertaking from the paternal grandmother as well as the support network which appears to be immediately available to the father to assist him in the care of the child.

7. These are only interim orders being made on an urgent basis, with very limited evidence, which is yet to be tested.

8. It is appropriate for an Independent Children’s Lawyer to be appointed and for the parents to both undertake random drug testing and hair follicle testing. It is also appropriate for the mother to engage in drug and alcohol counselling and for the father to engage in drug and alcohol counselling. It appears that neither of these parents truly understands the dangers their behaviours pose to their little defenceless baby.

9. The Court is however satisfied that the mother is appropriately seeking help at present to deal with her mental health issues, and that with compliance with the orders made herein including the injunctive relief, the risks to the child are ameliorated such that supervised time is not warranted.

10. For all of those reasons, orders as set out at the forefront of these Reasons for Judgment are made.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate: 

Date: 24 September 2020