MENDALL & CALPIN

FAMILY COURT OF AUSTRALIA

MENDALL & CALPIN

[2020] FamCA 570

FAMILY LAW – PARENTING – Where both parents have a history of substance abuse – Where both parents have not provided full and frank disclosure of historical substance abuse – Where the mother has been drug free for almost ten months – Where it is in the best interests of the children to live with the father – Where the children have a loving relationship with both parents – Order for equal shared parental responsibility – Order for alternate weekends with the mother – Order for ongoing drug testing.

Family Law Act 1975 (Cth) ss 4, 60CC, 65Y, 68B

APPLICANT:

Ms Mendall

RESPONDENT:

Mr Calpin

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

7987

2016

DATE DELIVERED:

16 July 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

19, 22, 23, 24 & 25 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Finch (direct brief)

SOLICITOR FOR THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Schonell of Senior Counsel

SOLICITOR FOR THE RESPONDENT:

York Family Law Specialists

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Shea

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

IT IS ORDERED

That all previous parenting orders in relation to the children, X, born … 2012, and Y, born … 2015 (“the children”), be discharged.
That the mother and father have equal shared parental responsibility for the children.
That the children live with the father.
That, in the absence of agreement, the children spend time during school terms with the mother as follows:
(a)On each alternate weekend from 10am on Saturday until 5pm on Sunday.
(b)On the weekend of Mother’s Day from 10am Saturday until 5pm on Sunday.
(c)That this order be suspended on the weekend that includes Father’s Day.
That, in the absence of agreement, the children spend school holiday time with the mother as follows:
(a)For the first half of the school holidays at the end of Terms 1, 2 and 3, commencing at 10am on the day after the last day of term and ending at 5pm on the day which is the mid-point of the holidays.
(b)If the Easter holiday falls outside a school holiday period, from 10am on Good Friday until 5pm on Easter Monday in odd numbered years.
(c)For the Christmas school holidays at the end of 2020, for the first week commencing on the day after the last day of term until 5pm on the seventh day and each alternate week thereafter.
(d)For the Christmas school holidays in 2021 and thereafter, with the mother in the first half of the school holidays commencing at 10am on the day after the last day of Term 4 until 5pm on the day which is the mid-point of the holiday.
(e)For the Christmas school holidays in 2022 and thereafter, with the mother in the second half of the school holidays commencing at 10am on the day which is the mid-point of the holiday and ending at 5pm on the day before the commencement of the next term.
(f)At such other times as the parents agree.
(g)That alternate weekend time with the mother pursuant to Order 4 shall recommence in Term 1 after the Christmas holidays on the second weekend of term if the children were with the mother in the last week of the holidays and on the first weekend of term if the children were with the father on the last week of the holidays.
That in the event that the children are in the care of the mother on the period which includes Christmas Day, they shall spend time with the father from 10am on 24 December until 3.30pm on Christmas Day.
That in the event that the children are in the care of the father on the period which includes Christmas Day, they shall spend time with the mother from 10am on 24 December until 3.30pm on Christmas Day.
That for a period of one year from the date of these Orders, the children’s time with the mother is to be supervised by the maternal grandmother, Mr D or Mr Mendall, provided each signs an undertaking in terms of Annexure “A” to these Orders.
That, in the absence of agreement, all changeovers are to take place at McDonalds Family Restaurant at Suburb C.
That the father is to ensure the children communicate with the mother by telephone, FaceTime or other electronic means on at least three occasions each week, being Mondays, Wednesdays and Fridays, or otherwise as agreed between the parties, such calls to be for no longer than 30 minutes and to be attended by the mother and any member of her family.
That during any school holiday period when the children are living with the mother, she is to ensure the children communicate with the father by telephone, FaceTime or other electronic means on at least three occasions each week, being Mondays, Wednesdays and Fridays at 6pm, or otherwise as agreed between the parties, such calls to be for no longer than 30 minutes and to be attended by the father and any member of his family.
That, for two years from the date of these Orders, the mother is to continue to engage in therapy with a psychologist and a drug counsellor at such frequency and for such period of time as those practitioners deem appropriate and:
(a)The mother is to provide a sealed copy of these Orders together with a copy of the expert’s report of Dr H dated 5 December 2019 to her treating psychologist and her drug counsellor within 7 days of the date of these Orders.
(b)Within 7 days of the date of these Orders, the mother is to provide the father with an irrevocable authority which authorises and directs the psychologist and the drug counsellor to notify the father immediately if the mother stops attending appointments for any reason.
That for a period of 3 years from the date of these Orders, the mother is to submit to hair follicle testing once every 3 months, and for this purpose:
(a)The mother is to ensure that she provides a hair sample of at least 3 cm on each occasion, and
(b)The mother is to direct the laboratory to provide the test results directly to the father by email as soon as they become available.
That each parent must inform the other as soon as is practicable, if he or she is admitted to hospital for any reason and provide details of the arrangements for the care of the children during that hospitalisation.
That the father must inform the mother as soon as is practicable if he is arrested on any charge or convicted of any offence.
That the mother is restrained from bringing either of the children into contact with Mr F and/or Mr G.
That both parents be permitted to attend all events involving the children irrespective of which parent they are living with or spending time with at the time, including but not limited to:
(a)Sporting fixtures and events which parents ordinarily attend;
(b)Extra-curricular activities that allow for parental attendance or participation; and
(c)School functions and events that allow for parental attendance or participation.
That both parents are permitted to liaise directly with the children’s school principals or teachers to obtain any information about their progress at school or information about events such as swimming carnivals, sports days, parent/teacher interviews and other educational activities or to arrange for the sending out of newsletters, school photos and academic report cards and these Orders will be sufficient authority to authorise the release of such information to both parents.
That each parent will keep the other parent informed of his or her current residential address, telephone contact numbers (including mobile and home/work landline numbers) and email address and will notify the other parent of any change to those details within 48 hours of such change occurring.
That each parent will inform the other parent of the details of any person who spends overnight time in the presence of the children.
That the mother and father will keep each other informed as soon as is reasonably practicable of:
(a)Any significant medical problems, illness or injury suffered by the children while in their respective care;
(b)The full particulars of any doctor, medical practitioner therapeutic or health service provider or institution attended upon by the children while in their respective care;
(c)Any medication that has been prescribed for the children while in their respective care;
(d)Any specialist medical appointments with any doctor, psychiatrist, psychologist, counsellor or therapist that the children are due to attend; and
(e)Any occasion that the children are due to be hospitalised while in their respective care.
That the mother and father will inform each other immediately in the event of an emergency involving the children including, but not limited to, either the children suffering a serious illness or injury or the hospitalisation of the children.
That the mother and father are permitted to liaise directly with any doctor, hospital or other medical practitioners treating the children to obtain information about the physical and/or mental health of the children and the progress of any treatment the children may be receiving and these Orders will be sufficient authority to authorise the release of such information, including copies of any medical reports.
That the parents each be restrained from permitting any surgical procedure upon the children without the expressed written consent from the other parent.
That leave be granted for copies of the Single Expert Report of Dr H to be made available to any other counsellor, therapist, psychologist or psychiatrist treating the parents or the children at present or in the future.
That if either parent is to travel with the children that unless otherwise agreed expressly in writing not less than one month prior to such travel that such time shall not conflict with the time that the children spend with the other parent.
That upon written request by either parent both parents shall within ninety (90) days do all things necessary to obtain or renew a passport for the children, and such passports once issued shall be held by the mother.
That pursuant to section 65Y of the Family Law Act 1975 (Cth), each parent shall be and is, hereby, authorised, to remove the children from the Commonwealth of Australia, and only to countries which are a signatory to the Hague Convention, at such times, for such periods and travelling to such destinations as they may desire provided such travel occurs during periods that the children are in their care pursuant to these orders, and provided that:
(a)Each parent shall provide to the other not less than 45 days written notice of their intention to travel with the children, including a written itinerary of travel sufficient to identify the place or places that will be visited, the accommodation that will be occupied during that travel, and providing a copy of return travel documents;
(b)The mother shall hold the children’s passport at all times other than when they are being utilised for travel, and shall provide the passports to the father, in the event that he intends to travel at any time and has given notice in accordance with these orders, not less than 21 days prior to the anticipated travel and the father shall return the passports to the mother within 48 hours of returning to the Commonwealth of Australia.
That pursuant to section 68B of the Family Law Act 1975 (Cth) and on a without admissions basis, each parent is restrained by injunction from:
(a)Consuming or being affected by alcohol to the point of intoxication in the presence of the children, during any periods that they are spending time with the children or in the period twelve (12) hours prior to the children coming into their care;
(b)Taking, consuming or being in any way affected by illicit drugs whether or not in the presence of the children;
(c)Bringing the children into contact with any person that they know or suspect to be under the influence of illicit drugs or substances during those periods that each of the children are in their respective care; or
(d)Taking or permitting the children to be taken to or remain at any location or venue where the party knows or suspects that illicit drugs and paraphernalia will be present during those periods that each of the children are in their respective care.
That where these orders require the parties to communicate, that communication shall be by email or text except in an emergency.
That within five months of the date of these orders, the father pay to the Legal Aid Commission of NSW the sum of $7,604 being half of the costs of the Independent Children’s Lawyer.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

ANNEXURE “A”

I, [Name], hereby undertake that:
I will supervise X and Y’s time with their Mother in accordance with Orders made by the Court.
During any periods of supervised time, I will ensure that I am present with the Mother and the children at all times.
I will be present in same home or premises with the children overnight in accordance with Orders made by the Court.
In the event that I form the view that the Mother is affected by an illicit substance, or is mentally unwell, I will immediately remove the children from the care of the Mother and contact the Father.
I will inform the Father immediately if I become aware at any time that the Mother has used an illicit substance.
I will inform the Father immediately in the event that I have concerns in relation to the Mother’s mental health.
I will inform the Father immediately in the event that the Mother is admitted to hospital in relation to her mental health or drug use.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7987 of 2016

Ms Mendall

Applicant

And

Mr Calpin

Respondent

REASONS FOR JUDGMENT

Ms Mendall (“the mother”) and Mr Calpin (“the father”) are the parents of X, born in 2012 and Y, born in 2015, (“the children”) who have lived with their father since March 2018.
The mother also has two younger children, Z aged two years and W aged one year. Z’s father is Mr F. W’s father is Mr G. More will be said about them later in these reasons.
The competing parenting applications in relation to the children were listed for hearing over six days before me. After the fifth day, when all of the evidence had been heard, the Single Expert child psychologist, Dr H, had been cross-examined, and counsel for the father and Independent Children’s Lawyer (“ICL”) had concluded their submissions, the mother conceded that the children should live with the father.
The only matters remaining for determination were matters relating to the time that the children should spend with the mother and a number of ancillary issues which are set out below:
·    Parental responsibility;
·    Weekend contact with the mother;
·    The length of time for which supervision should be required;
·    The duration of the mother’s hair follicle testing;
·    The consequences of a resumption of substance abuse by either parent;
·    The mother’s requirement that the father be further tested for substance abuse;
·    School holidays;
·    Contact by the children with Mr F and Mr G;
·    Telephone/video contact;
·    The supervision of the mother’s engagement in therapy; and
·    Overseas travel.
Each parent sought ancillary orders to which no submissions were addressed, and to which no response was made. I have assumed that where an order sought by one party was not the subject of submissions by the other, there is no objection to my making that order.
In order to understand the competing arguments, it is necessary to have some understanding of background.

BACKGROUND

Each of the parents has a history of substance abuse. In the case of the father, that substance abuse was also coupled with antisocial behaviour and convictions for various offences including alcohol related driving offences.
Although the narrative which follows may not be complete, its intention is to illustrate the matters of concern in relation to both parents.

The Mother

Nowhere in her affidavit material does the mother provide a comprehensive history of her involvement with substance abuse. Documents produced by J Hospital suggest that the mother used illicit substances “on and off” since she was 17 and that she started smoking crystal methamphetamine (“ICE”) in 2013, although it appears she reported different dates to different professionals. The records indicate that the mother told J Hospital that, in addition to methamphetamines, she used marijuana and MDMA until she was about 21.
Since the mother, on numerous occasions in cross-examination, admitted that she had consistently lied about her history of use, it can be assumed that what she told J Hospital may not have been accurate or comprehensive.
After the mother and the father separated in April 2016, the mother was the primary carer of X and Y who were then aged three and six months. She lived at K Town in premises that she shared with the maternal grandmother. Mr D, the mother’s step-father, also lived in the premises when he was on leave from his employment in Country L. Mr D is a former public servant.
The evidence established that the mother used ICE during the period that the children were in her care but it does not establish the frequency of her use.
With the exception of a short period in 2017, from at least about May 2016, when the mother was using drugs, she was either living in her mother’s home or in a home located on the same block of land as the home her mother occupied. The maternal grandmother’s knowledge of the mother’s drug use and her attempts to monitor it, were the subject of criticism from the father.
The mother may have also lied about her mental health to various professionals and to the Court.
What is clear from the available evidence is that the mother not only lied about her drug use to medical professionals, the father and her family, but that she also lied to the Court in her affidavits, to the family consultants, and in permitting her then solicitor to make submissions based on her instructions which she knew to be untrue and significantly misleading.
Most egregiously, she lied by altering the results of two urinalysis tests, tendered in Court, to conceal test results that revealed she was using ICE and forged a test result, also tendered in Court, to evidence a negative result. Further, she concealed at least two and possibly three positive tests by hiding or not disclosing them.
In August 2016, the mother commenced a relationship with Mr F, Z’s father. The mother knew Mr F was a regular drug user. The mother admitted in cross-examination to her use of ICE during her pregnancy with Z, however this was not disclosed in her affidavit material.
In about December 2016, the maternal grandmother became aware of the relationship with Mr F. She deposed that she was horrified because she knew that Mr F was a regular drug user.

In March 2017 the mother asked the father to take the children because she was the recipient of threats by a former associate of Mr F. The nature of the threats was never explained by the mother but they were clearly sufficiently serious to cause her to be concerned about the safety of the children. After the children had been with the father for three weeks, they were retained by the maternal grandmother and returned to the care of the mother, without any consultation with the father.
On 23 March 2018, when X and Y were in the mother’s care and Z was four months old, the mother left her mobile phone in the father’s car when the children were collected by him for the weekend.
From the mother’s phone, the father discovered the following concerning things:
·    That in early 2018 the mother had attempted suicide by overdosing on paracetamol and was admitted to hospital.
·    That the three children were present in the house when the mother attempted suicide.
·    That X was distressed by the events.
·    That Mr F had the care of all three children while the mother was in hospital.
·    That while the children were in his care, Mr F was using the phone to acquire drugs and to have those drugs delivered to the mother’s home.
It is to be remembered that these events took place at the residence which is co-located with the residence of the maternal grandmother.
The father filed an application in the Federal Circuit Court and, on 9 April 2018, interim orders were made for the children to live with him. The orders provided for the children to spend time with the mother from 8pm on Friday until 4pm Sunday, under the supervision of the maternal grandmother. An ICL was appointed for the children. The mother was ordered to submit to hair follicle testing and the father to CDT testing and urinalysis testing.
At this time the father was living with his then partner at M Town.
On 12 April 2018 the mother told her general practitioner that, in the Court proceedings, she had been open with the judge about her recreational drug use. This was a lie. The mother maintained in Court that she was drug free.
In May 2018 there was a serious incident between the mother and Mr F when the mother was assaulted and Mr F punched out a window. Z, then six months old, was in the house. The mother deposed that the trigger was that she discovered Mr F and one of his friends smoking ICE in the bathroom. The police were called and removed a quantity of drug paraphernalia and of drugs which the mother asserted belonged to Mr F but which, nevertheless, was clearly strewn about her home. Records produced by the police state that both the mother and Mr F were smoking ICE. Mr F was removed from the home by the police and an Apprehended Domestic Violence Order (“ADVO”) was made for the protection of the mother. The ADVO was made final in May 2018.
Although the evidence is not clear, it would appear that Mr F was jailed as a result of the assault and that he was charged with breaching the ADVO on at least two subsequent occasions.
In June 2018, the mother used ICE with a friend, Mr G and on that occasion, W was conceived.
Mr G is described in the records produced by the police as a “middle range drug dealer” and the mother was aware that he both used and dealt in drugs.
For the first 22 weeks of her pregnancy with W the mother continued to use ICE. She admitted using ICE four or five times in the latter stage of the pregnancy. She resumed using ICE, according to her evidence when W was about four or five weeks old when she ceased breastfeeding, and was using daily by July 2019.
In June 2018 the mother told a family consultant, in a Child Inclusive Conference, that she was not using drugs currently or recently. She asserted she had only used ICE twice in her life. That was a lie.
The matter was before the Federal Circuit Court on 4 December 2018. On that day, the maternal grandmother heard, I accept for the first time, about the extent of the mother’s use of ICE and about the urinalysis tests that had been altered or forged by the mother. Orders were made on 4 December 2018 for the mother to undergo a regime of urinalysis testing at the request of the ICL.
Although, on 4 December 2018, the mother knew that she was pregnant with W, she did not tell the father or the Court.
In relation to the orders made on 4 December 2018, the mother deposed:
I was again devastated… I could not comprehend how the children could be punished this way for my mistakes. I take full responsibility for my actions, however, considering the children were not placed at any risk and the only reason my drug issues were exposed was due to a subpoena, I am still unsure if this decision was in the best interest of the children.
(Emphasis in the original)
Between 4 December 2018 and 23 July 2019, the mother continued to live in premises co-located with those of the maternal grandmother. The maternal grandmother instituted a regime of urinalysis tests for a short period. Those tests were in addition to the tests requested by the ICL. Whilst the mother appeared to be compliant with testing, she admitted that she concealed one positive test result from her mother, showing instead an earlier, negative result. The maternal grandmother either did not look at the result or accepted the mother’s word that it was negative. There is no evidence that the maternal grandmother asked the mother to have any test after March 2019.
W was born in 2019. By mid-April at the latest, the mother resumed using ICE in a pattern which escalated to daily use.
Shortly after the incident in May 2018 with Mr F, a CCTV monitor was installed in the mother’s residence so that the maternal grandmother could have some assurance about who was visiting. While the maternal grandmother and Mr D gave evidence that the general security of both residences was a concern, there is no doubt that they were also concerned to monitor who attended the mother’s home.
Unfortunately, neither of them ever watched the recorded footage other than briefly for the purpose of making sure the unit was working.
Had they actually monitored the footage, they would have seen that in the period between about April and July 2019, the mother’s drug dealer was coming to her house to deliver ICE.
In March 2019 the mother told a family consultant that:
… pre-separation she and [the father] had used “ice” on two occasions. [The mother] said that, when she found out she was close to 20 weeks pregnant, she took “speed” on two occasions before she decided to go through with the pregnancy.
That, too, was a lie by omission. The mother used ICE throughout the pregnancy until she received confirmation of the pregnancy at 22 weeks gestation. When the pregnancy test was conducted the result was positive for ICE and the mother continued to use ICE, although, she said, with less frequency, throughout the pregnancy.
On 25 June 2019 the mother completed a Parenting Questionnaire for the purpose of these proceedings in which she stated “The last time I used any drug was some months ago and I have spoke [sic] to my counsellor in regards to this who does not believe that I have a problem”. That was a lie.
By July 2019, the mother was using ICE daily.
Despite her stated vigilance, the maternal grandmother said that she did not know the mother was using drugs. She deposed, in her affidavit sworn 26 March 2020:
I Had [sic] noticed a change in her appearance and attitude and had been suspicious but as she cared for her children well and we never saw her doing anything out of the ordinary, we put it down to stress and anxiety.
That evidence seems to be at odds with notes kept by J Hospital relating to her admission to which further reference will be made later in these reasons.
The mother deposed, “In or around June 2019, I started to feel as though I was becoming addicted.”
The mother told her brother Mr Mendall and the maternal grandmother that she needed help.
A family meeting was called on 21 July 2019, attended by the maternal grandmother, the mother’s brothers Mr Mendall and Mr N Mendall, Mr Mendall’s partner and W’s paternal grandparents.
The next morning, 22 July 2019, the mother’s brothers took her to J Hospital where she sought admission.
The notes kept by the hospital record that:
The mother had broken down and admitted to family that she was back on ICE.
Family had questioned her about this as over the last 5 weeks the mother has been deteriorating – losing weight, sores all over her legs, not caring for children appropriately – she will let them sleep all day, not take them to the park or go to the shops.
…
During the 5 weeks relapse the mother had left the baby crying one night – she would not wake up (they were all staying at the [maternal] uncles on this occasion). On another occasion the baby was left in the same suit for two days.
The notes record, “Recently used from Fri 19/7 midi to Sat 0300 0.5g over the 2 days.” The mother conceded in cross-examination that the children came into her care at 10 am the following morning and that she would have still been affected by the drug at that time.
The notes of the hospital record that the mother was suicidal. The mother gave evidence that she was not suicidal but that she had lied to the hospital to get admission after being told that she would have to wait several months to enter into the drug rehabilitation program.
However, Mr P, W’s paternal grandfather who was a witness in the mother’s case, in cross-examination said that he recalled the discussion on 21 July 2019 and that the possibility of suicide was discussed. Mr G said that he was relieved when a decision was made to take the mother to hospital because he would have hated to wake up next morning to find she was dead.
If the mother was feeling suicidal, then this might well be the third occasion on which that has occurred. The mother disclosed in her evidence the attempted suicide in March 2018. In a report dated 2 December 2018, her therapist, Ms Q referred to “… disclosure of a previous suicide attempt in her youth”.
The mother was discharged from J Hospital on 19 August 2019.
She then entered the T Centre on 4 September 2019 and was discharged (a day early at her request) on 1 October 2019.
Since her discharge from the T Centre, the mother has had regular hair follicle testing and I am satisfied that she has not used any illicit substance.
However, I accept the evidence of Dr H, the single expert psychologist, that her recovery is in its early stages.

The Father

The father was a little more forthcoming about his substance abuse than the mother, but far from frank.
He deposed to using marijuana and “party drugs including speed and ecstasy” and smoking ICE as a teenager and through his twenties and while living with the mother. He admitted using ICE after he and the mother separated “on few occasions,” smoking marijuana on one occasion and using cocaine “on few occasions”. He denied the mother’s assertions that he also abused alcohol but, as will be explained, I do not accept that denial.
It is likely that the father’s alcohol abuse was extremely problematic, given his history of antisocial behaviour.
It would appear that the father told medical practitioners that he started drinking when he was 14. The father told Dr S, a psychiatrist who he consulted in relation to ADHD in 2017, that “he had tried most substances when younger”.
In 2003, the father was convicted of driving “recklessly/furiously or speed/manner dangerous” and placed on a bond for 18 months to accept the guidance of a psychiatrist.
In May 2006 he was convicted of larceny of goods valued less than $2,000 and in June 2006 of entering premises without lawful excuse and failing to leave.
In October 2007 it was alleged that the father had assaulted two other men and the police observed him to be “moderately intoxicated and argumentative”.
In 2009 the father was convicted in Queensland of a drink driving offence where he hit a pedestrian.
Shortly after, in Sydney, the police record that the father was observed yelling at women, making rude and offensive comments. When spoken to, the police noted that the father said “You can’t do fucken anything to me. I ran over an old lady in an unregistered car and got off. What the fuck can you do to me. [sic]” The father refused to move on when directed to do so and was eventually arrested and charged. The father denies that he made those comments but it is likely that he did. The police in Sydney would not have had knowledge of the incident shortly before in Queensland. That information could have only come from the father.
In February 2010 he was convicted of property damage.
In June 2011, the father told Dr V that he used ICE recently. In July 2011, Dr R reported that the father, then 25 years old, was referred to him in relation to vomiting blood “almost every weekend following excessive alcohol intake ranging from 6 to more than 20 drinks of alcohol in one night”. The father told Dr R that he was smoking marijuana regularly.
In January 2012 he was convicted of a low range PCA offence and disqualified from driving for three months.
In November 2013 he was convicted of using offensive language and resisting an officer in the execution of his duty.
In 2016 a Mental Health Plan was prepared for the father to address his stated problem with “Anxiety, Alcohol over consumption”. He did not follow up counselling.
In October 2017 he was convicted of an alcohol related driving offense and his licence was suspended for one month.
On 25 October 2017, Dr S reported “The impression is of poor behaviour associated with Attention Deficit Hyperactivity Disorder and substance use.” Dr S prescribed dexamphetamine.
Since the regime of Court ordered CDT testing was imposed, the father’s test results have shown elevated drinking in June 2018 and again in January 2020. His test results have not indicated a positive result for an illicit substances. Where the test results are positive for amphetamine, I accept that this is a result of the father’s having taken dexamphetamine prescribed for him to treat adult Attention Deficit Hyperactivity Disorder (“ADHD”).
It is against this factual background that the issues fall to be determined.

THE HEARING

The mother relied on affidavits of herself, the maternal grandmother, the maternal step-grandfather, her brother and Mr P.
The mother did not provide evidence from any of her counsellors or treating professionals.
The father relied on affidavits by himself, the paternal grandfather, the father’s sister, and a number of the professionals engaged with the children: Ms AA who supervises the children’s before and after school care; Ms BB who is the after school care co-ordinator; and Ms CC who is Y’s preschool co-ordinator. He also relied on three affidavits of Professor DD who is a medical practitioner and a highly qualified expert on forensic medicine in the context of addiction. The father also relied on an affidavit of his tattooist, Mr FF, who was not required for cross- examination.
The Court was assisted by an ICL and by a report from a single expert psychologist, Dr H. Dr H, in the preparation of his report, spoke to Ms CC, Ms GG, Ms HH who was X’s teacher in 2019 and Ms KK, who was X’s reading program teacher.
In the course of the hearing all of the witnesses who were required were cross-examined including Dr H, with the exception of Mr FF.
Minutes of proposed orders were provided by the parents and the ICL.

Parental responsibility

The father seeks sole parental responsibility for the children. The mother and the ICL seek orders which would provide for equal shared parental responsibility.
The parents are highly suspicious of one another. Each rushes to find sinister implications in the actions of the other. Each of them, throughout the hearing, endeavoured to highlight the bad behaviour of the other and to minimise her or his own responsibility for the position in which the children find themselves.
The father relied on two instances where, he asserts, the mother’s refusal to co- operate could have led to an adverse outcome for the children. The mother, in relation to the same incidents, asserts that they demonstrate the father’s unwillingness to accord her role in the children’s lives its proper weight.
The first instance was in February 2019 when the father told the mother that X needed to have his tonsils and adenoids removed. The father sent a text to the mother advising her of the visit to a specialist and his plan to have the procedure performed in a private facility on 8 or 15 April 2019. The mother initially responded saying that she agreed with the operation and would like to be present. On 6 April 2019, the father reminded the mother that the operation was on the following Monday. On 7 April 2019 the mother asked for a report from the specialist and stated that if she were not provided with proof that X needed the operation she would not agree to its proceeding and that she would take “serious legal action against you and the hospital or specialist facility conducting the procedure if the operation goes ahead without my consent”. The father responded “Go smoke some more meth” and a few minutes later, “I don’t know what your problem is. All the paperwork is with the specialist and the hospital. Do what you have to do. You never told me you wanted any paperwork before”.
There then follows a lengthy and antagonistic exchange which culminated in the mother telling the father that she would be contacting the hospital in the morning to say she did not consent to the operation and the father refusing to tell her at which hospital X would be treated. On the morning of 8 April 2019, the mother sent a message to the father saying that she had contacted the hospital and was happy for the surgery to proceed. The surgery had to be postponed because X had a fever. It proceeded without further acrimony a few weeks later. The father invited the mother for dinner after the surgery and she attended.
The second instance was in June 2020 when X had to be treated for a minor genital difficulty. The father notified the mother of the problem and told her he had taken a photograph so that he could get advice and to document the problem so that he could determine whether it was improving or worsening. The mother responded by accusing the father of publishing photographs of X’s genitals on the internet.
By comparison, when Y had an accident on the trampoline shortly before the hearing, both parents acted responsibly and appropriately.
The major long term decisions in which parents must agree if they share parental responsibility, as set out in Section 4 of the Family Law Act 1975 (Cth), are limited to:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
Of these issues, the only one in relation to which there is a foreseeable issue is X’s health. If his current difficulty persists, he may need to be circumcised. That is a significant decision for X and both of his parents should have input.
The father’s demonstrated attitude towards the mother is, at times, contemptuous. I do not accept that he would, if he were to have sole parental responsibility, properly consult with her and take her views into consideration.
Dr H said in cross-examination that each of the parents had limitations and that the children needed both of them to make responsible decisions in relation to their future.
Whilst I accept that the parents, in the past and in the throes of this litigation, have not behaved well in their dealings towards each other, they will be required to put aside their enmity and modify their acrimony to act in the interests of their children.
I note that despite the father’s criticism of the mother, the children have a very positive relationship with her and speak openly about her in front of the father.

The orders will provide for equal shared parental responsibility.

Weekend contact with the mother

There is no dispute that the children will spend alternate weekends with their mother but there are issues about the logistics of the arrangement.
The issues are complicated by the fact that the father lives in the southern suburbs of Sydney and the mother lives north of Sydney. There are some 130 kilometres and most of the Sydney metropolitan area between them.
Neither parent has any proposal to move closer to the other. Each has considerable family support in the area where they live.
In submissions, the ICL conceded that her proposal for a change over at 5pm on Friday was simply impractical.
The matter is further complicated by the father’s wish to enrol the children in weekend sport in his local area and the mother’s wish to enrol them in weekend sport in her area.
Dr H’s evidence was clearly to the effect that the children need to have as much time in their mother’s care as is practicable, even if their participation in weekend sport is affected.
The mid-point between their homes is at Suburb C and changeovers have occurred there for some time. In non-peak hours, the travel time for each of them to Suburb C is a little over one hour. The children, of course, have to travel for over two hours.
The father proposes that the mother collect the children from their Saturday sport and return them to his home on Sunday. That would involve the mother in round trips in excess of more than four hours on consecutive days and is unsustainable.
The orders will provide that the children are delivered by the father to the mother at Suburb C at 10am on Saturday and returned by her to him at Suburb C at 5pm on Sunday.
They are free to agree on alternate arrangements that facilitate the children’s participation in sport but the arrangements in the orders will be the default arrangements.
Although both parents sought orders for time on the children’s birthdays and on their own birthdays, I do not propose to make any orders relating to those days. The distance between the parents’ homes makes short visits impracticable.

The length of time for which supervision should be required

The mother accepts that supervision will be required and proposes supervision by the maternal grandmother, Mr D or her brother Mr Mendall for a period of six months to be followed by a further period of six months when the supervisor is present in the house at night when X and Y are there.
The proposal of the ICL is similar to that of the mother.
The father proposes that strict supervision continue for a year and then, for a period of another year, that the supervisor be present.
Dr H described the mother’s recovery as being in its early stages.
It is only since 1 October 2019 that the mother has lived in the community, after leaving the T Centre. Although it is to her credit that she has remained drug free since that time, only eight months have elapsed. The mother gave evidence that, during and after one of her pregnancies, she had remained drug free for 20 months but had then resumed using.
The orders will provide for the continuation of strict supervision for a period of one year. If the mother is able to maintain her abstinence until July 2021, she will have been abstinent for two years from the admission to J Hospital and it will be appropriate for the supervision to be relaxed.

How long should the mother’s hair follicle testing continue?

The mother proposes that the testing continue for a year. The father and the ICL propose three years.
After a year from the date of these orders, the children will be unsupervised in the mother’s care. It is appropriate that there should be the continued assurance of hair follicle testing to demonstrate that the mother’s continuing abstinence in the absence of supervision.
The testing will continue for three years.

The consequences of a resumption of substance abuse by either parent

The possibility that either parent will revert to substance abuse is alive. Each of the parties and the ICL has attempted to formulate a scheme to deal with such an eventuality.
Each has conceded that the task is impossible.
The mother will continue to have hair follicle testing every three months. The most likely indicator that the father is abusing alcohol is that he will once again be involved with the police.
It is impossible to predict the seriousness or severity of a relapse in either parent such as to craft an appropriate consequential regime.
In either event, the parties will be obliged to bring an application to vary these orders.

The mother’s requirement that the father be further tested for substance abuse

The father has submitted to urinalysis testing since June 2018. There have been two occasions when the test has shown that the father has drunk excessively, in June 2018 and January 2020. The tests have routinely shown that the father has consumed amphetamines.
The father was prescribed dexamphetamine by a psychiatrist in October 2017 for adult ADHD. He has been taking it ever since, with the exception of the period leading up to the first urinalysis test when, he said, he stopped taking his medication for a few days because he knew it would be detected in the test.
The father’s tests routinely show the presence of amphetamines and note that dexamphetamine has been prescribed.
Although throughout her case the mother tried to insinuate that the father was using dexamphetamine to mask his use of other amphetamines, that proposition was not put to the father and there is no evidence to support it.
The evidence does not support a conclusion that the children are at risk of the father using illicit drugs.
I accept that they would be at risk if her reverted his former pattern of alcohol use. However, it is likely that he would again come to the attention of the police if that were to occur.
On behalf of the mother, it was submitted that the father should submit to at least one further urinalysis test but it was not demonstrated that there was any objective purpose for such testing.

School holidays

The parties and the ICL agree that the children should spend half of their school holidays with their mother. They disagree about the logistics.
Dr H said in cross-examination that, for the 2020 Christmas holidays, the time should be broken up into small periods of a week to ten days but that in 2021 and thereafter, the children could spend half of the holidays in a block with each parent.
The orders will provide for the holiday period to commence on the day after the last day of the school term and the finish on the day before the first day of the next school term. If the parties are in any doubt, they can consult the internet where they will find the dates on which school terms start and finish which are published by the education department.
I propose to adopt the proposal of the ICL that the children will live with the mother for the first half of the holidays after the end of Terms 1, 2 and 3. She will collect the children from Suburb C at 10am on the day after the last day of term and return them to the father at 5pm on the day which is the mid-point of the holiday.
In 2020, the children will spend alternate weeks with each parent, commencing with the mother from 10am on the first day after the last day of term.
In 2021 and thereafter the children will spend the first half of the Christmas holidays with the mother in odd numbered years and with the father in even numbered years.
Both parents propose an arrangement for Christmas that involves a changeover on Christmas Day. The mother proposes 3pm, the father 4pm. No submissions or evidence were addressed to the merits of either proposal. The changeover will be at 3.30pm on Christmas Day.
Similarly, in relation to Easter holidays, no submissions or evidence were addressed to the merits of the competing proposals. The orders will propose that, in the event that the Easter holiday falls outside a period of school holidays, then in odd numbered years the children will live with the mother from 10am on Good Friday until 5pm on Easter Monday. In even numbered years they will remain in the care of the father.

Contact by the children with Mr F and Mr G

The mother agrees to the order sought by the father and the ICL which would restrain her from bringing the children into contact with Mr F. She opposes the order sought which would restrain her from bringing them into contact with Mr G.
Mr G is described in the records produced by the police as a mid-level drug dealer. He is also a drug user. He has convictions for common assault, breaking and entering in company with the intention to commit a serious indictable offence, possession of prohibited drugs and supplying drugs.
On behalf of the mother it was submitted that the children could be in Mr G’s company on those occasions when he either collects W from the mother or returns W. However, it was not explained why that was necessary.
There is no evidence that there is any benefit to X and Y from contact with Mr G.
Orders will be made as sought by the father and the ICL.

Telephone/video contact

Currently, the children have video contact with their mother on Mondays, Wednesdays and Fridays. There is no dispute that this should continue. Problems have arisen in the past when the father has limited the time that the children remain on the calls and has refused to allow the members of the mother’s extended family to participate.
The orders will provide that the calls should be for up to 30 minutes and that any member of the mother’s family can participate.

The supervision of the mother’s engagement in therapy

There is no dispute that the mother must continue to attend therapy with her psychologist and her drug counsellor if her recovery is to progress.
The mother proposes that this should be for a period of two years.
The mother does not oppose the father being advised if she stops seeing her therapists but opposes his proposal that he should receive reports and be able to have unfettered communication with her counsellor.
The mother’s position is reasonable.
The orders will provide that, for the next two years, the father is to be advised of the names of the mother’s treating psychologist and drug counsellor and that he be provided with an irrevocable authority addressed to her treating therapists authorising and directing them to advise him if she does not attend as they suggest. If the father then provides the authority to the practitioner, he will be assured that it has been received.

ICL’s costs

The ICL seeks an order that each party pay half the costs of the ICL or $7,604 each.
I accept the submission on behalf of the mother that she has no income for the purposes of this application and is unable to pay.
The father agrees to pay half of the costs but seeks five months in which to do so, which proposal is not opposed by the ICL.

I certify that the preceding one hundred and fifty-one (151) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 16 July 2020.

Associate:

Date: 16/07/2020

[2020] FamCA 570

16 July 2020

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction