MGP and WRD
[2003] FMCAfam 8
•24 February 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MGP & WRD | [2003] FMCAfam 8 |
| FAMILY LAW — Children — residence — family report prepared by clinical psychologist — inappropriate “test” adopted by report writer prior to making recommendations — weight to be given to recommendations contained in family report — weight to be given to child representative’s submissions — mother and father both former heroin addicts — mother’s drug usage remains a concern — need to protect child from exposure to inappropriate or irresponsible behaviour — separation of step-siblings — alteration of long standing status quo. |
| Applicant: | MGP |
| Respondent: | WRD |
| File No: | MLM 9141 of 2001 |
| Delivered on: | 24 February 2003 |
| Delivered at: | Melbourne |
| Hearing Dates: | 22, 23, 24 May 2002, 20, 21 June 2002 |
| Judgment of: | Walters FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Cronin |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondent: | Ms Bogan (22 May 2002 – 24 May 2002) Mr Mort (20 June 2002 – 21 June 2002) |
| Solicitors for the Respondent: | Slater & Gordon |
| Solicitors for the Child Representative: | Mr Hoult |
| Solicitors for the Child Representative: | Marshalls & Dent |
ORDERS
The mother and the father retain joint responsibility for making long term decisions regarding the care, welfare and development of J.
Each party have sole responsibility for making decisions regarding the day to day care, welfare and development of J during periods when J lives with him/her.
The child live with the father on a day to day basis.
The mother have contact with J as follows:
(a)each alternate weekend (from Friday evening to Sunday evening);
(b)for half of all school holiday periods (including the long summer vacation period); and
(c)for such other periods as shall be agreed upon by the parties.
Counsel will be heard regarding contact issues (including collection and delivery arrangements and other orders).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 9141 of 2001
| MGP |
Applicant
And
| WRD |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court are the parents’ competing applications relating to parental responsibility for their child J.
The parties to the proceedings are the mother, the father and the Child Representative.
The father lives in Wodonga. The mother lives in Rye (an outer suburb of Melbourne).
In the broadest of terms, the mother proposes that J live with her and that the father have certain defined contact with J. The father proposes that J live with him, and that the mother have certain defined contact.
Documents Relied Upon
The father relied upon the following documents:
a)his amended application filed 17 December 2001;
b)his affidavit sworn 29 April 2002;
c)the affidavit of his sister, TM, sworn 26 April 2002;
d)the affidavit of his mother, DM, sworn 26 April 2002;
e)the affidavit of his half brother, GE, sworn 26 April 2002; and
f)the affidavit of Jennifer Rosemary Horan, sworn 18 April 2002.
The mother relied upon the following documents:
a)her response filed 11 January 2002;
b)her affidavits sworn 11 April 2002 and 7 May 2002;
c)the affidavit of her grandmother, LW, sworn 8 April 2002;
d)the affidavit of her grandfather, HW, sworn 9 April 2002;
e)the affidavit of Mr R, filed 8 May 2002; and
f)the affidavit of Dr Ronald Korman (a medical practitioner), sworn 16 May 2002.
The Child Representative relied upon a family report prepared by Dr Todd Jacobson, clinical psychologist — which report is dated 16 April 2002. The report was prepared pursuant to an order made in this Court on 15 January 2002. The order for the preparation of the family report was made by consent.
None of the parties filed an Outline of Case Document.
Counsel for the Child Representative provided the Court with brief written submissions at the conclusion of the trial. The other parties did not provide written submissions.
During the course of the trial, counsel for the mother provided the Court with a Minute of Orders as proposed by the mother. The Minute was intended to replace the orders sought by the mother in her Response.
The father and his mother gave oral evidence and were cross-examined. Neither the mother nor the Child Representative (through their respective counsel) sought to cross-examine the other witnesses who swore affidavits in support of the father’s case. The mother and Mr R also gave oral evidence and were cross-examined. The other witnesses who swore affidavits in support of the mother’s case were not required for cross-examination.
Dr Jacobson gave oral evidence, and was cross-examined.
Background
J was born on 7 December 1999. She is now 3 years old.
The father was born on 30 January 1979. He is presently aged 24 years The mother was born on 12 March 1969. She is presently aged 33 (nearly 34) years.
The parties commenced what the father described as a defacto relationship in or about 1998. According to the father, they separated in or about January 2001. The mother asserts that they separated in April 2001. They were not married.
J is the only child of the parties’ relationship. The father has no other children. The mother has four other children — MK born 14 December 1986 (now aged 16 years), SK born 15 April 1988 (now aged 14 years), JW born 22 June 1994 (now aged 8 years) and LW born 23 June 1995 (now aged 7 years).
According to the mother, MK and SK are the children of her relationship with Mr K. Mr K and the mother separated in 1990. SK and MK reside with Mr K (pursuant to an order of the Family Court of Australia) in rural Victoria. The mother asserts that she maintains a good relationship with both MK and SK, but -
…because of distance my main communication with them is through telephone conversations and letters we write to each other.
Again according to the mother, JW and LW are the children of her relationship with Mr W. Mr W and the mother separated in 1997. Mr W apparently resides in NSW. In paragraph 8 of her affidavit sworn 7 May 2002, the mother said that neither she nor the children -
…have seen Mr W for 4 years, although he does maintain limited contact with JW and LW through written correspondence.
Until the commencement of the trial, J resided with the mother, JW and LW in Rye. I shall deal with the arrangements that were made for J after the commencement of the trial later in these Reasons.
The father’s parents separated when he was approximately 5 years of age. He continued to live with his mother and siblings. He has not had any contact with his father since he was approximately 15.
The father ceased living with his mother and siblings when he was 16. He had been using marijuana for a period of time. His mother discovered him using the drug and told him that he would have to leave home if he did not cease using it, as she would not tolerate drugs in her home. An argument followed, as a result of which the father moved out of the home.
The father’s family lived in Albury/Wodonga. After he left home, he obtained a flat in Albury. He later resided with one of his brothers and another person.
The father remained in contact with his mother and other members of his family after he left home.
Although the father worked in various jobs after leaving home, he did not gain permanent employment.
The father experimented with heroin when he was approximately 16. He said during the course of his evidence — and I accept — that he only used heroin on one occasion at that time.
The father met the mother in or about 1997 through mutual acquaintances. At that time, the mother was living in Sydney.
The father commenced using heroin regularly when he was approximately 19 years old. The father said — and, again, I accept — that he started using heroin (as opposed to the single instance of experimentation when he was 16) after he began associating with the mother and her then boyfriend. I did not understand the father to suggest that it was the mother who had introduced (or reintroduced) him to heroin, and I make no finding in that regard.
The parties commenced living together in a flat in Albury in late 1998 or thereabouts. The father was then 19 (almost 20 years old). The mother was 29.
At the time that the parties commenced living together, none of the mother’s four children were in her care. MK and SK resided with their father. JW and LW were in the care of the Department of Human Services (or its equivalent) (“DHS”).
The mother described her background as follows:
I have had a difficult family background. My mother and father separated when I was 4 years of age. My father cared for me for the next four years however sought help from the then Department of Community Services. As a result I was in the Department’s care from the age of 11 to 15 years.
I note that I have in the past been a user of illicit drugs. I admit that I have had problems in the past. However, since the birth of J I have been able to settle down and take control of my addictions. I have been on the methadone program since 1998.
The mother has an extensive criminal history for offences including burglary and theft, assault, use of illicit drugs, unlicensed driving and abusive language. During the course of the trial, the mother’s criminal history report for the State of Victoria and internal Police records from the State of New South Wales were tendered in evidence. The former became Exhibit “F1”, and the latter became Exhibit “F2”. The mother admitted that both sets of documents were accurate.
In paragraph 21 of her affidavit sworn 7 May 2002, the mother said:
Approximately one year into my relationship with the father, I was incarcerated for a period of 6 months (in New South Wales). At the time of my incarceration I was three months pregnant with J. I was imprisoned as a result of charges relating to theft. It was Easter and I stole food for my family’s Easter lunch. I was also suffering from severe food cravings during this period of my pregnancy and I stole food to satisfy these cravings as I had no other financial means.
In paragraph 29 of his trial affidavit, the father said:
In or about 1999, the mother was convicted of charges including goods in custody (sic.), obtaining money by deception, larceny, offensive behaviour and possessing a prohibited drug. She was imprisoned for at least 6 months. At the time, she was pregnant with J.
In paragraph 30 of his affidavit, the father said:
At that time I was also convicted of offences including theft, unlicensed riding and possessing a prohibited weapon. I was a co-offender with the mother in relation to the theft charge and received a 12 month suspended sentence and fine.
During the course of her cross-examination, it was put to the mother that she did not receive a sentence of imprisonment for 6 months for stealing because she did not have anything to eat. The mother then conceded that she was also facing other charges at the time. When asked why she had made no mention of the other charges in paragraph 21 of her affidavit, the mother said:
I didn’t know I had to. Sorry, I’m not good at preparing affidavits.
J was born shortly after the mother’s release from prison.
After the mother was released from prison, the parties obtained accommodation in Wollongong — where they were living when J was born. None of the mother’s other children were in her care at that time.
The parties’ relationship was volatile — and no doubt an unhappy one for both of them. Both parties used and abused drugs, including heroin and marijuana. The mother also used amphetamines. They had difficulties coping with their financial responsibilities. They had many arguments. The mother asserts that the father was physically abusive towards her. The father denies that the mother’s descriptions of his behaviour are accurate.
In paragraphs 32 to 37 (inclusive) of his affidavit, the father said that:
a)both parties were “overjoyed” at the birth of J;
b)he became actively involved in J’s care and would assist the mother with J’s daily needs (including bathing, feeding and changing nappies);
c)the parties continued to argue and to experience financial difficulties;
d)both parties continued to use drugs, which adversely affected the standard of care that they were able to offer J;
e)although he received some support from members of his family, the mother did not maintain contact with her family, and they did not visit her or offer her any form of support;
f)although having served a recent sentence for dishonesty offences, the mother continued to steal after J’s birth;
g)the mother’s “compulsion to steal” was a constant source of tension between the parties;
h)the mother was keen to seek the return of JW and LW to her care, and actively co-operated with the Department of Human Services for that purpose;
i)in or about late 2000, the mother moved to Rye in Victoria with J, and the father followed approximately one or two months later;
j)initially, the mother and J stayed with the mother’s father whilst she obtained accommodation; and
k)in December 2000, JW and LW were returned to the mother’s care.
I accept the father’s evidence as set out in the previous paragraph. I shall comment further upon the parties’ credibility later in these Reasons.
The parties finally separated in early 2001.
In or about April 2001, the father moved to Wodonga with his mother (who had previously been residing in a suburb of Melbourne) and a brother. By that stage, the relationship between the father and the mother had deteriorated to the extent that the mother would not permit the father to have contact with J.
Various events occurred between April 2001 and the commencement of the proceedings in this court in November 2001. The father describes these events in paragraphs 39 to 46 of his affidavit, and I accept the accuracy of the matters deposed to in those paragraphs. Suffice it to say at this stage that during that period the father remained in contact with J (and JW and LW as well), and that the mother used illicit drugs, consumed alcohol and had difficulty coping with the care of the children.
On 14 November 2001 an incident occurred in Dandenong. I shall return to this incident (which I shall call “the Dandenong Incident”) later in these Reasons.
Court Proceedings
The father’s initial application was filed in this court on 15 November 2001. It was made returnable on 27 November 2001. The application was dated 8 November 2001 and had been forwarded by the father’s solicitors in Wodonga to the court in Melbourne before the father became aware of the Dandenong Incident.
As a result of the Dandenong Incident, DHS took J into care. Departmental officers collected JW and LW from their school, and they were also taken into care.
On 15 November 2001, a Magistrate in the Melbourne Children’s Court made orders permitting the return of J to the mother’s care pending a Departmental investigation. JW and LW were placed in the care of the mother’s uncle. An interim accommodation order was made with respect to J and the child protection proceedings were adjourned to 28 November 2001. As a condition of the interim accommodation order, the father was granted contact with J each week from 12.00 noon on Monday to 6.00 p.m. on Tuesday.
As a result of the interim accommodation order being implemented, orders were made in this court adjourning the father’s application to
18 December 2001.
On 28 November 2001, a further interim accommodation order was made in the Melbourne Children’s Court. The proceedings were then adjourned to 17 December 2001. J was again released into the care of the mother pending the adjourned hearing. A copy of the interim accommodation order is annexed to the father’s affidavit. The order was subject to certain conditions — one of which was that the father could continue to have overnight contact with J each week from 12.00 midday on Monday to 6.00 p.m. on Tuesday.
The Children’s Court proceedings did not proceed beyond 17 December 2001. On that date, DHS withdrew from the proceedings, and the proceedings in this Court became the only relevant forum for consideration of J’s best interests.
On 18 December 2001 various orders were made in this Court. A Child Representative was appointed, and orders for defined contact were made. The proceedings were otherwise adjourned to 15 January 2002.
On 15 January 2002, the matter was set down for trial on 22 May 2002. A request was made pursuant to section 91B of the Family Law Act to the effect that the Department should intervene in the proceedings. The Department elected not to intervene.
Various other orders were made by consent on 15 January 2002. Relevantly:
a)a consent order was made to the effect that J live with the mother;
b)a consent order was made to the effect that the father have contact with J on an alternate weekend basis (from 11.00 a.m. Saturday to 3.00 p.m. Monday);
c)a consent order was made to the effect that the mother take J to a specialist medical practitioner for the purposes of a physical examination to determine whether J had been sexually abused; and
d)consent orders were made to the effect that both parties provide supervised urine drug screens on a twice weekly basis.
I shall deal with the issue of the alleged sexual abuse of J at that time later in these Reasons.
Further orders were made in this Court on 5 March 2002. There had been concerns that the mother was not complying with the program of supervised drug screens, and orders were made (by consent) to ensure her compliance. As well, the father’s contact with J was extended to each alternate week between 5.00 p.m. Thursday and 5.00 p.m. Monday.
The trial commenced before me on 22 May 2002. It continued on
23 and 24 May 2002.
As a result of concerns that I had regarding J’s welfare (which concerns had their genesis in the mother’s attitude and – at times – inappropriate behaviour in court, and in the material relied upon by the parties), and having regard to the fact that the proceedings had to be adjourned part-heard (for continuation on 20 June 2002), I made the following orders on 24 May 2002:
1. Until 20 June 2002, the father have contact with J as follows:
(a) from 5.30 p.m. on Friday 24 May 2002 until 5.00 p.m. on Friday 31 May 2002; and
(b) from 5.00 p.m. on Friday 7 June 2002 until 5.00 p.m. on Friday 14 June 2002.
2.Until 20 June 2002, the mother have contact with J as follows:
(a) from 5.00 p.m. on Friday 31 May 2002 until 5.00 p.m. on Friday 7 June 2002; and
(b) from 5.00 p.m. on Friday 14 June 2002 until 5.00 p.m. on Thursday 20 June 2002.
3. All residence and contact orders otherwise be suspended.
4.During the period that J has contact with the father, he have sole responsibility for her day to day care, welfare and development.
5.During the period that J has contact with the mother, she have sole responsibility for her day to day care, welfare and development.
6. The Child Representative nominate a medical practitioner upon whom the mother must attend for the purposes of supervised urine drug screens.
7. The Child Representative advise the mother’s solicitors by 4.00 p.m. on Monday 27 May 2002 of the nominated medical practitioner.
8. The mother attend upon the nominated medical practitioner on a twice weekly basis for the purposes of supervised urine drug screens.
9. The mother do ensure that the results of the supervised urine screens indicate that they were supervised.
10. The Child Representative be at liberty to ensure that the nominated medical practitioner is aware of the necessity for the supervision of the urine screens ...
11. The mother do ensure that the results of each screen are forwarded to the Child Representative when they are released.
12. Both the mother and the father be restrained by injunction from consuming or ingesting any non-prescribed medication, non-prescribed drugs and/or illegal substances.
13.Each party have telephone contact with J during the period that she is with the other parent pursuant to these orders, such telephone contact to take place each alternate day at 7.00 p.m.
14. The further hearing of all extant applications be adjourned to 10.00 a.m. on 20 June 2002.
The above orders were expressed to be on the undertaking of the father’s mother in the following terms:
DM undertakes to the Court:
1.To come home from her employment each day whilst the father has contact, to ensure there are no parenting problems.
2.In the event of having any concerns about the father’s care of J, she will immediately contact the Child Representative.
The trial continued on 20 and 21 June 2002. At the completion of the trial, I reserved my decision and made the following orders:
1.Until further order, the father have contact with J each alternate week from 5.00 p.m. Sunday to 5.00 p.m. Sunday the following week, commencing Sunday 23rd June 2002.
2.Until further order, the mother have contact with J each alternate week from 5.00 p.m. Sunday until 5.00 p.m. the following Sunday, commencing 30th June 2002.
3.During the period that J has contact with the father, the father have sole responsibility for the day to day care, welfare and development of the child.
4.During the period that J has contact with the mother, the mother have sole responsibility for the day to day care, welfare and development of the child.
5.The contact changeover take place at McDonalds Family Restaurant at Frankston.
6.The mother continue to attend upon a medical practitioner on a twice weekly basis for the purposes of supervised urine drug screens…
7.The mother ensure that the results of the supervised urine screens do indicate that they were supervised and, further, ensure that the results of each screen are forwarded to the Child Representative, when they are released.
8.Both the mother and father be restrained, by injunction, from consuming or ingesting any non prescribed medication, non prescribed drugs and/or illegal substances.
9.Until further order, the mother be restrained, by injunction, from consuming or ingesting the medication Ural.
10.Each party have telephone contact with J during the period that the said child is with the other parent, pursuant to these Orders, such telephone contact to take place each alternate day at a time between 7.00 p.m. to 7.15 p.m.
I shall comment on the orders relating to drug testing later in these Reasons.
On 5 December 2002, I made orders discharging the order for telephone contact that had been made on 21 June 2002, and reducing the frequency of the mother’s supervised drug screen program from twice per week to once per week. The proceedings were otherwise adjourned to 28 January 2003 for judgment.
Credibility
The mother was generally reluctant to answer clear and direct questions. Her answers were often evasive. She was petulant at times, and displayed exaggerated or inappropriate emotional responses at other times. Sometimes she was articulate and forceful in her responses to questioning. Sometimes she was vague and appeared confused. I did not believe much of what she said. I find that she is not a witness of truth. I am not prepared to accept her evidence unless it is specifically admitted (where relevant) or directly corroborated by a wholly independent source.
In so far as the history of the parties’ relationship is concerned, and many other peripheral matters, the father was not cross-examined by counsel for the mother. Much of the history recorded in his affidavit stands as unchallenged. By and large, however, I find that the father is a witness of truth. He responded to questions in a measured and appropriate way. With some exceptions, he was generally willing to give credit where it was due, and he frequently made realistic concessions. His impatience with and lack of respect for the mother were apparent, but, notwithstanding those factors, I formed a positive view regarding his credibility.
Unless I have specifically stated otherwise, where the parties’ evidence is in conflict, I prefer that of the father.
Each of the parties endeavoured to blame the other for certain of the problems that had befallen them during the course of their relationship (and since), but the mother’s willingness to attribute blame to the father was far more apparent and far more stridently expressed.
Family Report
The family report was prepared by Dr Todd Jacobson. Dr Jacobson is a clinical psychologist in private practice. His qualifications and experience were not challenged by any of the parties, and I accept his status as an expert in the field of clinical psychology. I also accept Dr Jacobson as a witness of truth.
Dr Jacobson interviewed both parties (and others) in February and March 2002.
In relation to the father’s use of illegal substances, Dr Jacobson wrote:
The father acknowledged having used illegal substances, those being heroin and marijuana. The father told the writer:
· He last used heroin approximately two years ago, and last used marijuana in January 2002.
· He is currently participating in a methadone treatment program and has participated in the program for the past two years.
· He is currently using three millilitres of methadone a day, and has been using this amount for approximately two weeks.
· He has reduced to this amount from 70 millilitres over the past four months.
Dr Jacobson continued:
The father denied the use of any other medication.
The father volunteered for a urine drug test. Results of the urine drug test indicate the presence of methadone in his system at the time the sample was collected. No other substances were found in his system at the time the sample was collected.
Later in the family report, Dr Jacobson wrote:
The father acknowledged that physical altercations occurred between the mother and him during the relationship. The father told the writer that:
· J was present on one such occasion;
· verbal altercations occurred between the mother and him “all the time”; and
· J has been present during these incidents too.
Dr Jacobson’s interview with the mother commences with the following observation:
The writer notes that the mother was difficult to interview as she was tangential and had difficulty recalling events “I have a very bad memory”, the mother said.
Dr Jacobson interviewed the mother on 22 March 2002. He had observed her with J, JW and LW on 27 February 2002. Dr Jacobson observed that the mother “seemed to be affected by some substance, as she appeared to be sedated”[1] on that day.
[1] Dr Jacobson also stated that, notwithstanding that the mother “appeared to be sedated”, she was “…attentive to the children”.
In relation to the mother’s use of drugs, Dr Jacobson wrote:
The mother told the writer that JW and LW were placed in foster care (prior to J’s birth) “because I had a breakdown because of concerns about domestic violence and drugs. They weren’t returned to my care. I got into a lot of trouble. I put all of my cards on the table”, the mother said. When asked, the mother (said) that she is now recovered from all the symptoms of the breakdown. “I don’t even suffer from depression”, the mother added.
When asked for more information regarding the reasons for her breakdown, the mother (said) that the breakdown was not because she was using illegal substances “it was because I wasn’t using drugs. Everything is a bit of a blur, but I was smoking dope”, the mother added.
The mother denied currently using illegal substances. However, the mother acknowledged having used heroin, amphetamines, marijuana and “barbiturates” previously. When asked, the mother (said) that she last used marijuana four months ago, heroin and amphetamines two years ago and barbiturates by prescription (sic.).
The mother (said) that:
·she participates in a substance abuse treatment program, that being a “relapse prevention program”;
·she is on a methadone program and is currently using “16 millilitres a day”; and
·she began the substance abuse program whilst she was in prison.
When asked, the mother (said) that she provided a urine sample for a urine drug test “last Saturday”. The mother (said) that she would not volunteer for a urine drug test in the context of the current assessment. “It’s totally unnecessary”, the mother said regarding her reason for not volunteering. When asked specifically, the mother told the writer that declining the opportunity to have a urine drug test in the context of the assessment is not because she has something to hide.
Dr Jacobson’s interview with the mother continued:
The mother (said) that she has been charged and convicted with “lots” of criminal offences, including theft. “I had a problem with shoplifting. I used to go out and steal (the children’s) clothing and toys…”. The mother (said) that:
· she was charged on one occasion for assault; and
· she was charged with “fraud”, that being returning items that she had shoplifted to get money, “and signing a cheque”.
The mother denied using illegal substances in J’s presence. However, (she said) that she has “of course” been affected by illegal substances in J’s presence. The mother said “I smoked at night when (the children) were in bed”. The mother (said) that she last was affected by illegal substances in the children’s presence two years ago.
Dr Jacobson’s observations of the father with J were positive, and he “neither observed nor overheard anything that caused him concern during the observation session”.
Similarly, Dr Jacobson’s observations of the mother with J, JW and LW were generally positive (apart from his comment to the effect that the mother “appeared to be sedated”). It would appear that that was the only matter that caused him concern during the observation session.
Under the heading “Opinion” Dr Jacobson wrote:
The writer has information to suggest that J has resided with the mother since J’s birth and has been in the mother’s exclusive care for approximately one year. It is the writer’s opinion that J is likely to be settled into a predictable routine in her mother’s care. Furthermore, the writer observed the children (J, JW and LW) interact together and observed no problem in their relationship. The relationship between J, LW and JW was obvious…
The writer notes that he has information provided to him by DHS that they have closed their file because they are satisfied there are no risks to J in the mother’s care.
It is the writer’s opinion that a change in the status quo residence arrangement must be predicated on risks to the child. It is the writer’s opinion, for the above reasons, that there is insufficient risk to J in her mother’s care to necessitate a change to the status quo residence arrangement.
Clearly, Dr Jacobson’s reasoning, as contained in the last paragraph quoted above, does not accord with the approach that this Court must take in relation to the issue of residence. The “test” propounded by Dr Jacobson is manifestly too narrow. I shall discuss the relevant law later in these Reasons.
I do not propose to set out all the passages appearing in the family report under the heading “Opinion”, but I have read and re-read all those passages — as I have read and re-read the whole of the family report. As a general observation, the report is poorly constructed and awkwardly phrased. The repetition of the expression “X or Y told the writer that...” makes the report very difficult to read. It is apparent, as well, that Dr Jacobson has given considerable weight to his view that “a change in the status quo residence arrangement must be predicated on risks to the child”.
The Court is not bound to accept Dr Jacobson’s recommendations, although it is important that appropriate weight be given to them. In the circumstances of the present case, I am of the view that Dr Jacobson has imposed upon himself an inappropriate test to justify “a change in the status quo residence arrangement”. Whilst his observations regarding the closeness of the relationship between the mother, J and J’s half siblings are relevant, and must be given appropriate weight, other factors noted by Dr Jacobson appear to have been “minimised”, as it were. For example, the problems noted by Dr Jacobson in relation to the mother’s drug test results raise significant concerns regarding the mother’s credibility and responsibility. The relevant passages appear on page 14 of the report. In my opinion, it is difficult to understand, given the matters raised by Dr Jacobson, how he could include the following passage in his report:
Notwithstanding the issue of the mother’s alleged substance abuse, the writer reiterates the above information and his opinions offered above.
Dr Jacobson also wrote:
Regarding other contentious issues, the writer notes that information provided to him by JW and LW suggests that the mother has had a role to play in influencing their perception of the father. For example, JW said, “Mum told me he (the father) is selfish”. Furthermore, LW told the writer that her mother said that the father is “just trying to get us to visit him each day”. Furthermore, the writer cannot discount that the mother has coached the children to make specific statements to him. For example, LW spontaneously (and out of context) told the writer, “Mum never smokes a bong”.
Having seen and heard the mother during the course of these proceedings, I am satisfied that it is indeed very likely that the mother has attempted to influence the children’s perception of the father, and that she did coach the children.
Dr Jacobson was cross-examined by all parties — at some length — on 20 June 2002. During the course of his oral evidence, I raised with him the approach that he had taken in his report. I suggested to Dr Jacobson that he had started with the proposition that the status quo should only be upset “for good reason”. “Good reason” (according to Dr Jacobson), necessarily involves risk. I suggested that the passages commencing on page 14 of the report reveal that Dr Jacobson’s approach was to analyze the risk, and to then reach a conclusion that the risk was not sufficient to warrant a change in the status quo. Dr Jacobson confirmed that his approach was as described.
A number of factors (arising from the evidence given during the course of the trial) were put to Dr Jacobson in cross-examination. These factors were raised in order to test or undermine the confidence that the witness had in the conclusion that he had reached. In the broadest terms, the following issues were put to Dr Jacobson in one form or another:
a)Problems in relation to the accuracy of the mother’s urine screens, and certain steps that she had taken to influence the results of those screens.
b)The fact that the mother, whilst on the methadone program with a doctor in the Rosebud area, had seen a different doctor and sought and obtained a prescription for Serepax.
c)The mother’s evidence to the effect that her use of the Serepax so obtained had begun to be something of a problem for her.
d)The quantity of alcohol consumed by the mother on a weekly basis.
e)The Dandenong Incident and the fact that J, JW and LW were taken into care for a short period (bearing in mind that the mother’s comments to Dr Jacobson were to the effect that the department had not been involved in her life since she had commenced living in Rye).[2]
f)The fact that JW and LW were in the care of the department for something in the order of two years, and were only returned to the mother’s primary care at the end of 2000.
[2] See paragraph 122 regarding that subject.
At the same time, counsel for the mother endeavoured to draw Dr Jacobson’s attention to various factors that might be thought to reinforce the conclusion that Dr Jacobson had reached in his report.
At the completion of Dr Jacobson’s evidence, the following exchange occurred between counsel for the mother and Dr Jacobson:
…is there anything that causes you any concern at this point in time from changing the recommendation that you’ve made? --- … Yes, I mean, I think that DHS having involvement with the children again on whatever date that was causes me concern. I don’t know really what the nature was of that involvement, but I’m going to have to, you know, presume that DHS had some serious concerns that they removed the children. You know, if the mother is now genuinely concerned about the children — no, let me step back for a second. The issue of her substance abuse, if for some reason she is genuinely motivated now to do something about it, I’d kind of wonder why now. I mean, clearly we’re in the middle of a trial about these matters. Why not before? I think that there are — I think there’s enough question marks over, you know, what’s going on in her life and her ability to look after the child as a consequence that if we want to play it I think fairly safe — if we look at residence with the father and maybe — you know, I don’t know what that really looks like, but you know, presumably with some assistance from the grandmother.
What if the situation were that any residence order that his Honour made were conditional upon — that is, I underline that word “conditional” so if she breaks it, the situation would be the child may very well end up living with the father — but conditional on the basis that she continue to undergo the methadone program and continue to seek drug counselling and education and continue doing the sorts of things that she’s doing now to remedy that situation in relation to her drug addiction. If those were actually put in as a scaffolding as conditions for any residence order, would that alleviate concerns on your part?---I think it would alleviate to a certain extent.
What I’m suggesting to you, Dr Jacobson, is a last chance scenario — that this is it. If she doesn’t comply, then there would be an order — what I’m suggesting — that the child — the residence revert to the father? --- Look, I think that’s a start. I mean, I think it probably — I mean, I’d like to think optimistically about these things and maybe it’s a flaw in me as a person as well as a professional, but I like to think optimistically about this. But I think at some point we have to say enough is enough, you know, it can’t go on any more. I mean (indistinct) proposing is what we want to be really clear with this mother, that next up is it.
In effect, Dr Jacobson, what I’m saying is the ball is in her court, isn’t it? You’re saying that you have some reservations in relation to her history and reservations in relation to her newfound faith to deal with her problems during the course of these legal proceedings, however, what I’m suggesting by way of conditional residence would basically put the full responsibility on her, wouldn’t it? --- Yes.
Given the fact that the child knows her as the primary carer, given the matters that the paternal grandmother has said in relation to the mother’s capacity to care for children — LW and JW inclusive in that, of course — and given your discussions with the Department and the like, it’s not out of the question, is it, to give her that last chance?--- Yes, I’d have to agree with that.
Put at its strongest, Dr Jacobson’s conclusion (in court) was that “it’s not out of the question to give the mother one last chance”.
In my opinion, Dr Jacobson was thoroughly confused by the conclusion of his oral evidence, and clearly uncertain as to the appropriateness of the recommendations that he had made in his report. I have absolutely no doubt that if Dr Jacobson had had the opportunity to sit in court and observe both parties, and hear their evidence, then he would have had even more doubts regarding the appropriateness of those recommendations.
The Law
Residence and contact orders are parenting orders. They arise in proceedings conducted under part VII of the Family Law Act. Section 60B sets out the object of part VII and the principles which underlie that object. They are subject to section 65E in that, in determining the outcome, the best interests of the child comprise the paramount consideration. That is the overriding principle.
The importance of the section 60B principles varies from case to case. Where there are no countervailing factors, the section 60B principles may be decisive — not only because they are contained in section 60B, but also because they accord with what is generally accepted to be in the best interests of children[3].
[3] See B & B: Family Law Reform Act1995 (1997) 21 FamLR 676 at 734
In deciding the residence and contact arrangements that will promote the best interests of a child, the Court must consider the various matters set out in section 68F(2).
Section 60B is in the following terms:
60B Object of Part and principles underlying it
(1) The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that, except when it is or would be contrary to a child's best interests:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c) parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children.
The Full Court discussed the effect of section 60B in B & B: Family Law Reform Act 1975 (1997) 21 FamLR 676 as follows:
9.6Section 60B(1) provides an optimum set of values for children of separated parents and is the goal to which the parents, society and the courts should aim, namely, that children receive "adequate and proper parenting to help them achieve their full potential" and that parents "fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children".
9.8 In relation to sub-s.(2), the following matters may be noted:-
-It sets out the principles "underlying" the object contained in sub-s.(1) and consequently is to be read as directed to effectuating that object.
-It is expressly made subject to the child's best interests.
-It cannot be regarded as an exhaustive list of principles which underlie the object in s.60B(1) or the child's best interests. There are a number of other matters which may in particular cases be equally or more important but which are not expressly contained in sub-s.(2), such as the wishes of children and their right to be protected from abuse. Those two matters, together with a number of other important considerations are set out in s.68F(2) as matters which the Court must consider in determining the best interests of the child. It is this circumstance which makes the inter-relationship between s.68F(2) and s.60B difficult to precisely define. The matters in the two sections vary but overlap. Neither purports to be exclusive or exhaustive. We will return to those aspects later.
9.9Dealing more specifically with the principles listed in s.60B(2), we would make the following comments.
9.10Paragraph (a) emphasises two matters, namely, the rights of a child to "know" both parents and to be "cared for" by both parents. These rights apply "regardless" of whether the parents are married, separated, have never been married or have never lived together.
9.11The first of those matters, including the broad issue of a child's psychological identity, has always been recognised as a fundamental consideration and it is unlikely that orders made under Part VII would interfere with that other than in the most exceptional of circumstances. The right to be "cared for" by both parents has to be read in the context that typically the parents of whom the paragraph speaks are separated and that is likely to involve different degrees of care by the individual parents, a matter which is largely addressed by the categories of parenting orders which the Court may make or the parties may agree upon.
9.12Paragraph (b) is the critical one in this appeal and that is likely to be so in most proceedings under Part VII. It provides, in effect, that children have a "right of contact, on a regular basis, with both their parents" and other people significant to their care, welfare and development. In that latter respect, the right of a child to have contact with, for example, a grandparent or other siblings, is provided for by s.65C which enables "any other person concerned with the care, welfare or development of the child" to apply for a parenting order…
9.13It is now well accepted that in most cases meaningful contact by children with both their parents is important to their welfare both in the short and long-term. That principle has been well established in Australia and in comparable overseas countries for many years…
9.14But it is equally recognised that there may be cases where the best interests of the children require that contact with one and on some occasions both parents be curtailed or even terminated. If the facts dictate that such an outcome is the appropriate one in the children's best interests there is nothing in s.60B which suggests or requires any different outcome…
9.15Paragraph (b) refers to the right of contact "on a regular basis"…
9.16In considering this aspect the Court must make the order which it considers to be in the best interests of the child. The nature and degree of contact is ultimately influenced by that, par.(b) providing guidance in that respect. This Court has in the past consistently attempted to make orders for contact which are practical and maintain as much direct and indirect contact between the children and the contact parent as is appropriate in the circumstances of that case. That remains the approach…The object in s.60B(1) would not be likely to be achieved in most cases by providing only for contact which was regular but infrequent. Consequently, having regard to the previous approach of this Court and the requirements of the best interests of the children, par. (b) should not be narrowly interpreted. Fundamentally it emphasises the desirability of contact, and "regular" carries with it a clear understanding that it should also be as frequent as is appropriate and by the various means which are considered to be in the children's best interests.
The Full Court in B & B continued:
9.53…the Court "must consider" the various matters set out in (a)-(l) of (section 68F(2)). That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge…The list is not intended to be exhaustive. That is made clear by par.(l) "any other fact or circumstance that the court thinks is relevant". This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.
9.54Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s.65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub-section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court's consideration of the matters in s.68F(2) and to the overall requirement of s.65E. The matters in s.68F(2) are to be considered in the context of the matters in s.60B which are relevant in that case. But s.65E defines the essential issue.
9.55Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case…
In Smith (1994) 18 FamLR 55, the Full Court, referring to the manner in which the Court should discharge its obligation under the Family Law Act in coming to a decision relating to the custody, guardianship or welfare of or access to a child said:
…the preferable approach to be adopted is to consider each of the matters referred to in the section (being the equivalent of section 68F(2)) separately and, having regard to the evidence upon each of those matters, make findings in relation to them, In the course of this exercise, the trial judge should consider, weigh and assess the evidence touching upon each of the relevant matters adduced on behalf of the parties. After a consideration of all those matters, a trial Judge should then indicate to which of those matters he or she attaches greater significance and how all of those matters balance out.
In Paskandy (1999) 25 FamLR 607, the Full Court said (at page 618):
The Judgment of the Full Court in Smith (above) was delivered before the amendments to the Family Law Act made as a result of the Family Law Reform Act 1995 (Cth). However, the comments referred to remain apposite.
in Burton (1978) 4 FamLR 783, the Full Court said (at page 786):
…we are of the view that no legal onus rests upon a party with whom a child is residing to show that a change would be detrimental to the child and no legal onus rests upon a party seeking a change to justify the change either by establishing that a change would be positively advantageous to the child or in any other way. An existing status quo is but one factor to be weighed with all other relevant factors in determining a particular case. When weighing that factor, the quality of the status quo would require examination — and if a long standing status quo is disturbed, then the factors which influence the Court to come to that conclusion should be clearly identified.
The Full Court’s remarks in Burton (above) were recently re-affirmed by the Full Court in Re: G: Children’s Schooling (2000) 26 FamLR 143 at 154[4].
[4] See also A v A: Relocation Approach (2000) 26 FamLR 382 at 405-6
In Re: David (1997) 22 FamLR 489, the Full Court said (at page 505):
While it is obviously a very serious step to alter a residence order in respect of a young child which has the effect of removing him from his principal care giver, there are some situations…where the Court has no option but to do so.
Discussion/Preamble
I have re-read, and now remind myself of the object of, Part VII of the Family Law Act, and the principles underlying that object — as set out in section 60B. I keep that object, and those principles, firmly in mind as I consider the matters set out in section 68F(2) and all other relevant matters. Indeed, I have borne that object and those principles in mind at all times during the preparation of this Judgment.
I am conscious of all of the following matters:
a)The welfare or best interests of J comprise the paramount consideration in this case.
b)I understand that it is necessary to evaluate each of the proposals advanced by the parties, and will do so (or have already done so) — directly or indirectly — in these Reasons.
c)I understand that the evaluation of the parties’ competing proposals must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for J (and for her best interests). I have performed that evaluation (or will perform it) — directly or indirectly — in these Reasons.
d)I understand that it is necessary to follow the legislative directions set out in sections 60B and 68F of the Family Law Act, and that I must consider the various matters set out in section 68F(2).
e)I understand that neither of the parties to these proceedings bears an onus to establish that a proposed change to an existing situation, or a continuation of an existing situation, will best promote J’s interests. I have taken into account the whole of the evidence which I consider to be relevant to J’s best interests.
Before proceeding further with these Reasons, I refer to paragraph 74 of the Full Court’s decision in A v A: Relocation Approach (2000)
26 FamLR 382:
In our view, the use of a structured series of analytical steps is an aid to the decision-making transparency and minimises the risks of a court falling into appellable error… In weighing the advantages and disadvantages of the proposal, we agree with the recent observations made by a differently constituted Full Court in Findlay and Boniface [2000] FamCA 676 (unreported). In dismissing a ground of appeal that challenged the adequacy and clarity of the steps taken by a trial Judge in reaching her decision in a parenting order case, the Full Court said...:
Her Honour’s obligation was not to laboriously and exhaustively set out each and every advantage and disadvantage which she saw in each proposal put forward by the parties for the residence of/contact with their child. Her obligation was to deduce, from the evidence, and from her assessment of the parties and their witnesses, the essence of their competing proposals, and to decide, having considered the relevant matters referred to in s 68F(2) … which of those proposals would be more likely to advance the child’s best interests, which she was required to regard as the paramount consideration. Her further obligation was to give adequate reasons to enable the parties, and any appellate court called upon to review her decision, to understand how she arrived at her decision and to demonstrate that in arriving at it she did indeed regard the child’s best interests as paramount and did consider the relevant matters arising under s 68F(2).
I bear in mind all the principles and dicta to which I have referred and remind myself that the Full Court’s occasionally stated direction to itself to avoid “an overly critical, or pernickety, analysis” of Reasons such as these necessarily recognises the “large element of judgment, discretion and intuition” involved in the decision making process[5]. I interpret these comments as inferring that a Judicial Officer should not “lose sight of the wood for the trees” (as it were). The principles and dicta to which I have referred form the foundation upon which these Reasons are constructed (and have structured the thought process that I have employed). I understand them and the need to apply them.
[5] See U v U (2002) 29 FamLR 74 at 101, A v A: Relocation Approach (2000) 26 FamLR 382 at 410 and Re G: Children’s Schooling (2000) 26 FamLR 143 at 150
Child Representative’s Submissions
In T v P (2002) FLC 93-049, the Full Court of the Supreme Court of Western Australia (dealing with an appeal from the Family Court of Western Australia under the provisions of the Western Australian Family Court Act, relating to residence of an ex nuptial child) said (at page 87,753):
It is not the function of a child representative to make recommendations in the sense of forming a judgment on the material that the representative gathers and then asking the court to act on that judgment. The function of the representative, as is the function of every other solicitor and counsel representing an interest, is to put relevant evidence before the Court and to make submissions on that evidence and to argue in favour of a course of action. The representative, unlike the court expert, has no peculiar skill to perform an expert opinion on that evidence. It could not be said that it is the intention of the (Family Law Act) that the child representative should make a judgment on the evidence so that the judge who is ultimately to decide the issue is required to give reasons for not acting on that view. It is not the intention of the Act that the decision making power is divided in this manner. The decision as to what is in the best interests of the child is a decision to be made by the judge and the judge alone who must make the decision after giving proper consideration to the evidence adduced by each of the parties and their submissions.[6]
[6] Before making the above observation, the Court referred to the decision of the Full Court of the Family Court of Australia in Bennett (1991) FLC 92-191 and P & P (1995) FLC 91-615.
I have paid careful attention to the submissions made on behalf of the child representative. At the end of the day, however, Mr Hoult for the child representative recognised that it is totally within the Court’s discretion to order the opposite of the outcome suggested by the child representative. The child representative suggested that the case was a difficult one, which was “finely balanced”, and that, “at the end of it all, it’s really the separation of siblings...that probably tips the scales in the mother’s favour”.
The Dandenong Incident
In paragraph 18 of her affidavit sworn 7 May 2002, the mother said:
On 14 November 2001, I went shopping in Dandenong with my friend Mr R. Mr R and I got separated whilst Mr R was looking after J. Mr R and I looked for each other but could not locate one another. Mr R panicked as he had to go to work and located the Department of Human Services office in Dandenong and took J there. The DHS kept J overnight. JW and LW were collected from school and also taken into care. The matter was further complicated when JW had made allegations that I had physically abused him. Investigation revealed that JW was referring to a time when he was hit with a strap for misbehaving. I confirm that I have used this form of punishment in the past. I did not deny that I had hit JW and I encouraged JW to be honest. I was given the strap as a child and I was not aware that this was illegal. Since that occasion I have never used corporal punishment on my children. Once the matter was properly explained the children were returned to my care. As a family we all sat down together and cut the strap to pieces.
In paragraph 5 of Mr R’s affidavit, he said:
The only time I had any concern with the mother was just before Christmas 2001. The mother and I went to Dandenong together to do some Christmas shopping. J came with us. Early in the day the mother requested that I look after J, JW and LW being at school, while she did some personal shopping. At the agreed time at which we were to meet I started looking for the mother. I was unable to locate her and, realising that we became separated, I became concerned about time factors. I had to be at work and because I was unable to locate the mother I made a judgment call that I would be unable to return to Rye and drop J off at a family member and get back to Noble Park in time to start my employment. I therefore decided to drop J off at the Department of Human Services Visey Care Centre in Dandenong.
The mother and Mr R were cross-examined at some length in relation to the Dandenong Incident.
I have already commented on the mother’s credibility. Mr R, on the other hand, was open and frank with the Court. He gave his evidence in a calm and balanced manner. I have no hesitation in accepting his evidence in relation to the Dandenong Incident.
Mr R lives in Rosebud, which is approximately 10 kilometres from the mother’s place of residence in Rye. Rosebud is approximately 60 kilometres from Dandenong.
Mr R is an acting supervisor for Berry Street Victoria — which is a welfare organisation looking after children and young people. He works in residential units for teenagers, which units are situated approximately 5 kilometres from Dandenong.
On the morning of 14 November 2001, Mr R collected the mother and J from Rye and drove them to Dandenong. The mother does not drive. The planned arrangements on that day were to the effect that the mother and Mr R were going to do some shopping in Dandenong, after which Mr R was going to drive the mother and J back to Rye. He was then going to drive back to his place of work near Dandenong. He was due to commence work at 1.00 p.m.
According to Mr R, it was the mother’s wish to go shopping in Dandenong in particular — notwithstanding that that would necessarily involve considerable travelling for Mr R, (and, of course, the mother and J).
After arriving in Dandenong at approximately 10.00 a.m., Mr R parked his car near the Dandenong market.
The mother then told Mr R that she wanted “…to do some personal shopping...alone by herself”. As a consequence, the mother left J with Mr R. It was agreed that she would meet them at Mr R’s car at 11.00 a.m.
Mr R waited at his car from approximately 11.00 a.m. to approximately 11.15 a.m. He then searched for the mother in the general vicinity, but could not find her. By 12.00 noon, Mr R was anxious. As he described the situation:
My mind starting racing, you know, a child in my hands who I didn’t know what to do with.
Mr R then drove to his place of work, thinking that he might be able to leave J in the office area. As it turned out, two of the residents were present (as was Mr R’s “boss”). He then — quite properly — reached the conclusion that residential units of that nature were not an appropriate place for a young child to be left. Accordingly, Mr R returned to Dandenong, arriving at approximately 12.50 p.m.
As appears above, Mr R was due to commence work at 1.00 p.m.
In the circumstances that confronted him, Mr R decided to leave J at the DHS care centre in Dandenong. He had not heard from and could not locate the mother, and was concerned about J’s safety if she were to be brought into contact with the teenagers at his place of employment (whom he described as “high risk kids”). Further, Mr R said:
I could have turned around and driven back to Rosebud and left her with her grandparents or something, but I just didn’t have that time frame.
Mr R left his contact details with the DHS worker. He then travelled to his place of work and rang his home in Rosebud to inform his daughter (who lived with him at the time) where he was and what had happened. He telephoned his daughter at approximately 1.20 p.m. He told his daughter that J was in the DHS care centre in Dandenong. Mr R confirmed that he rang his daughter specifically for the purpose of telling her where J was, so that if the mother were to contact his daughter, then she would be able to convey the relevant information to the mother.
Mr R also confirmed that he had told the mother, before she left to go “shopping”, that he had to leave Dandenong by 12.00 noon in order to travel to Rye/Rosebud and get back to work at 1.00 p.m.
Mr R described his relationship with the mother at that stage as “platonic friendship and support for her”. He said they would talk on the phone, occasionally share a meal and spend time together (with the mother’s children). He had then known the mother for approximately 6 months. By November 2001, they were seeing each other once or twice a week, and speaking on the phone with approximately the same frequency.
In paragraphs 16 and 17 of her affidavit sworn 7 May 2002, the mother deposed to the fact that DHS had no involvement in the care of her children (relevantly JW and LW) between 21 December 2000 (when JW and LW were returned to her care) and 14 November 2001. In cross-examination, however, the mother conceded that that was an incorrect statement. She then said that DHS was “constantly supervising” her. Further, she conceded that a DHS representative had telephoned her on the very day of the Dandenong Incident to discuss with her the fact that DHS proposed to do a home visit on 16 November. The supervision was in place because, according to the mother, “…there was a restoration plan in progress (in relation to JW and LW)”.
The mother’s evidence regarding the Dandenong Incident was vague and inconsistent. At first she said that she was not sure of the details of the arrangement to meet Mr R after she had been shopping. She later conceded that she had arranged to meet him at his car after an hour. According to the mother, she could not find Mr R when she looked for him at approximately 11.30 a.m. (being approximately 1 hour — according to the mother — after they had arrived in Dandenong and parked the car). Mr R’s car was not where he parked it.
The mother said that she knew that Mr R had to be at work by 1.00 p.m.
According to the mother, as soon as she realised that she had lost Mr R, she rang Mr R’s daughter (who is a qualified child care worker) and said to her:
I don’t know where he is. If he comes there, is it OK if he leaves J with you?
The mother said that Mr R’s daughter agreed to that arrangement and that she “thought everything was fine”.
Mr R said that he telephoned his daughter at approximately 1.20 p.m., and the clear inference from his evidence was that his daughter had not heard from the mother at that stage.
The mother said that after she found herself unable to locate Mr R, she hitchhiked from Dandenong to Rosebud — to Mr R’s home. She said that she arrived at Mr R’s home at approximately 3.30 p.m.
The mother said that she obtained Mr R’s work number from his daughter, and then rang him. He thereupon advised her of the arrangement that he had made for J. The mother said that she then rang the department (at approximately 4.00 p.m.). After the call she left Mr R’s home and was given a lift to her home by a friend of Mr R’s daughter. She arrived at her home “just after 5.00 p.m.” — and found a note advising her that JW and LW had been taken into care.
The mother later said that she telephoned Mr R’s home at approximately 2.00 p.m., and that she was informed at that stage that J was not there and that Mr R had not been there. She agreed that she could have asked Mr R’s daughter for his work number and telephoned his place of work at that stage.
I am not satisfied that the mother has told the truth about the Dandenong Incident. If she had telephoned Mr R’s daughter at any time after approximately 1.20 p.m., then she would have known that Mr R had left J with DHS. The mother gave no adequate explanation as to why she did not telephone Mr R’s home until approximately 2.00 p.m. Nor was it clear why, if the mother’s version is accurate, Mr R’s daughter did not provide her with the relevant information. Similarly, if the mother did telephone Mr R’s daughter at an earlier stage, then why did the daughter not tell Mr R of the mother’s phone call when he rang his home later in the day? Further, if the mother telephoned Mr R’s daughter at approximately 2.00 p.m., then why did she not then obtain his work telephone number (since he had not arrived at Rosebud and had been due to commence work at 1.00 p.m.?).
The evidence before me is such that I am left with considerable doubt regarding the mother’s whereabouts between approximately 10.00 a.m. and approximately 4.00 p.m. on that day. I do not believe her explanations regarding the events of that day. Relevantly, I do not accept that she simply went “shopping” and I do not believe that she spoke with Mr R’s daughter on the telephone as or when she said that she did. Nor do I believe that she hitchhiked from Dandenong to Rosebud. The mother’s whereabouts on that day are effectively unexplained. I find that she acted in a selfish and irresponsible manner, and that she was unconcerned with the welfare of J at that time.
The evidence discussed later in these Reasons (under the heading “The Mother’s Drug Tests”) also reveals that, at the time of the Dandenong Incident, the mother was on the methadone program, using Serapax (to the extent that it had become “a problem” for her) and smoking marijuana at the rate of “a couple of joints a day”.
The mother was also cross-examined about the passage in paragraph 18 of her affidavit sworn 7 May 2002 to the effect that JW had made allegations that (the mother) had physically abused him. The mother confirmed that JW and LW were placed in the care of her aunt and uncle (who did not swear affidavits in support of her case) after they were removed from the mother’s care on the day of the Dandenong Incident. They were returned to the mother’s care approximately two weeks later. It was less than clear from the mother’s evidence whether the strap referred to in the paragraph had been cut up before or after JW and LW were returned to the mother’s care.
Sexual Abuse Allegation — January 2002
In paragraph 56 of his affidavit, the father said:
During a contact visit on or about 13 January 2002, I had bathed J and put a nappy on her when she began to scream. I tried to loosen the nappy however she continued to scream so I removed it totally. J put her hands over her vagina and bottom and began walking backwards. She was hysterical and was clearly in discomfort. TM (the father’s sister) was with me and we agreed that J should be taken to a doctor. As it was quite late, I settled J and put her to bed. After she was asleep I telephoned the sexual abuse line as I was concerned about J’s behaviour. I was advised to take J to a doctor immediately when she awoke. I then rang the hospital and made an appointment for J the following morning.
On the following day (14 January 2002), the father and his sister took J to see a medical practitioner at Epping. They were advised that “it appeared that J had a ruptured hymen”. Sexual abuse was suspected. The medical practitioner contacted DHS.
Later in the day a departmental officer contacted the father and advised him not to return J to the mother pending an investigation by DHS.
The father was later contacted by a different departmental officer, who advised him that he should return J to the mother. After further discussions with DHS, and with his legal advisers, the father returned J to the mother that evening. The parties were due to attend court the following day.
The father’s sister swore an affidavit in support of the father’s case. She corroborated his version of events described above. She was not required for cross-examination.
When the proceedings came before me on 15 January 2002, I ordered the mother to take J to a specialist medical practitioner for assessment. The order was made by consent, and the parties agreed to J being taken to Dr Harry at the Gatehouse Centre for the assessment and treatment of child abuse at the Royal Children’s Hospital in Melbourne.
Dr Harry saw J on 16 January 2002. His report is dated 24 January 2001 (although the date should obviously be 24 January 2002). It is annexed to the father’s affidavit. No objection was taken to its introduction into evidence. The report concludes:
On examination, J was a well if rather grubby two year old. She had normal skin. There were no particular abnormalities to find on general examination. There were no unusual marks of trauma to her body.
On examining her genitals she had a very mild nappy rash. The external genital parts were normal. There was no vaginal discharge. The hymen and vaginal opening were normal as was J’s perineum and anus.
Opinion
This two year old girl has normal genitals and a normal anus. The absence of any medical findings does not exclude the possibility of sexual abuse having occurred.
In his opening address at the commencement of the trial, counsel for the father advised the court that the sexual abuse allegation would “…not form part of these proceedings”.
Counsel for the mother did not cross-examine the father regarding the subject of sexual abuse. Nor was he cross-examined in relation to the subject by counsel for the child representative.
During the course of her cross-examination by counsel for the father, the mother said that she had concerns regarding the father’s care of J due to the fact that he had “…taken her to the doctor for sexual abuse examinations when I don’t even have a partner, saying that Mr W (the father of JW and LW) has sexually abused her when the father knows I haven’t seen Mr W for five years”. The mother then suggested that the father “…might have done something to substantiate his case in court…he may have done something to J for his own needs”.
The mother said that she believed that the father had “manufactured in some way that visit to a doctor with some sort of evidence to suggest (J) had been sexually abused”.
The mother’s evidence in relation to this subject was confusing and difficult to follow. She confirmed, however, that she believes that the father manufactured or created an incident which gave rise to a suggestion that J had been sexually abused so that he could use the incident against the mother. The mother also said that she believes that there was a possibility that the father may have abused J himself in order to “…make it look bad for the mother”.
The mother confirmed that she had not previously raised any suggestion that the father –
a)may have concocted the incident giving rise to J being examined by Dr Harry; or
b)may have actually sexually abused J himself.
The mother eventually said that she did not think that the father had sexually abused J. The mother said:
…no, I don’t think he did that, but at the time, until the Dr Harry examination was done, I thought, “what if he has done something to make it look like Mr W, to make it look like me?”. Until the all clear happened from Dr Harry, I thought that in the back of my mind. I couldn’t help but think that.
At the end of the day, and as foreshadowed by counsel for the father in his opening address, this incident did not form part of any party’s case. I am conscious of the dicta contained in the decision of the High Court in M & M (1988) FLC 91-979, and am familiar with the subsequent development of the law regarding allegations of child sexual abuse in parenting proceedings and the “unacceptable risk” test. The fact of the matter is that, in the present case, there was no “disputed allegation of sexual abuse”.[7] This is a case, however, in which — assuming that such an allegation can actually be distilled from the mother’s evidence — I have “no hesitation in rejecting the allegation as groundless”[8]. Having seen and heard both parties during the course of the proceedings, having read Dr Harry’s report, and having regard to:
a)the fact that the mother did not raise any allegation of child sexual abuse against the father until she was cross-examined;
b)the fact that the father was not cross-examined about the subject;
c)the fact that the father’s sister was not required for cross-examination at all;
d)the mother’s description of Dr Harry’s conclusion as an “all clear”; and
e)my findings regarding the mother’s credibility,
I find that the granting of residence or contact to the father would not expose J to an unacceptable risk (or, indeed, any real risk) of sexual abuse. In making this finding, I bear in mind the standard of proof described in Briginshaw (1938) 60 CLR 336 at 362, and mentioned in M & M at 77,081.
[7] See M & M (1988) FLC 91-979 at 77,080
[8] See M & M (1988) FLC 91-979 at 77,081
The Mother’s Drug Tests
The issue of the mother’s drug tests was a significant one and occupied a great deal of time at trial. Notwithstanding the amount of time that was spent on the subject, it can be summarised relatively briefly as follows:
a)Both parties were users of illicit drugs whilst they lived together.
b)Both parties were addicted to heroin.
c)The father has taken positive steps to deal with his heroin addiction, and he has progressed to the stage that he has completed (or virtually completed) the methadone program.[9]
d)The mother has taken much longer to progress along the pathway established by her methadone program. In my opinion, the reasons why the mother’s progress is so far behind that of the father were never satisfactorily explained.
e)Given that the mother was on the methadone program at all relevant times, methadone should have appeared in all her drug testing results.
f)Having regard to certain comments that I had made in open court, and in the presence of the parties, on 15 January 2002, the mother well knew that her case would not be assisted if she were to continue to test positive for cannabis between that date and the trial (although, clearly, a positive test for cannabis would not — in itself — be fatal to the success of her application for residence of J).
g)The mother’s supervised drug tests did not always reveal the presence of methadone in her urine. From time to time they revealed the presence of cannabinoids. At other times, a “clear” test result was achieved (being a result that did not reveal the presence of any relevant drug — including cannabinoids and methadone).
h)The mother said that she had been able to achieve a clear test result by drinking large quantities of water and taking Ural the night before the relevant test. Ural is a readily available, effervescent drink, which is marketed as a “urinary and gastric alkaliniser”. It is available in sachets, which are added to water.
i)Some tests revealed the presence of benzodiazapines in the mother’s urine.
[9] See the affidavit of the witness Horan – who was not required for cross-examination.
At trial, the mother asserted that she had last used cannabis on the afternoon of Saturday 18 May 2002 (just four days before the trial commenced on 22 May 2002). Mr R’s evidence, however, was that the mother told him on the morning of the first day of the trial (Wednesday 22 May 2002) that she had “had a joint” the previous evening — in other words, on the night of Tuesday 21 May 2002.
The mother’s evidence in relation to her progress through the methadone program was vague and unconvincing. She asserted that she was “nearly off methadone” before the proceedings commenced. She was uncertain of her current methadone dosage, and was unable to say what her lowest dosage had been.
At one stage in her evidence, the mother said that she could not explain why methadone had not appeared in all her test results. It was only later that she made reference to her use of Ural. I do not accept her evidence in relation to the effect of Ural. Without further evidence, I am not prepared to accept the mother’s assertion that she was able to eradicate relevant traces of certain drugs the subject of testing by simply drinking large amounts of water and taking Ural. Of significance, though, is the fact that the mother’s alleged use of Ural was clearly for the purpose of distorting or masking what could otherwise have been anticipated to be a positive result for one type of drug or another — or perhaps more. Whilst the mother endeavoured to minimise the effect of her actions by saying that they were the result of her frustrations arising from ongoing positive testing for cannabis, the fact remains that – in my opinion – the only fair inference from her evidence is that she attempted to mislead the Court (and the father) as to her drug usage. Whether the mother used Ural in conjunction with copious amounts of water as she alleged, or (for example) substituted another person’s urine for her own makes no difference. Her intention was plain.
The mother was also cross-examined regarding the presence of Benzodiazapines in certain urine drug screens. The mother said that she was prescribed the drug in the form of Serapax “…to sleep and because I was so nervous and depressed and what not”. According to the mother, she was prescribed Serapax by Dr Bugiera, whose practice is in Rye. The mother said that she saw Dr Bugiera “shortly after the father left”. She later said that she saw him in or about March 2001.
The mother said that she used Serapax between March and December 2001. She was taking approximately two 30 milligram tablets each day. The mother did not tell Dr Bugiera that she was on the methadone program. She said that she “avoided” telling him, and made a positive effort not to do so. When asked why she did not tell the doctor that she was on the methadone program, she said:
Because you don’t get Benzos when you are on methadone. It’s not something that they do. You are not allowed to be on them I’d imagine.
The mother later conceded that she took her Serapax prescriptions to a different pharmacy from the one that supplied her with methadone. She then said that the Serapax were “…becoming a problem”.
Not only did the mother not tell Dr Bugiera that she was on the methadone program, but she also did not tell the doctor who was monitoring her methadone program that she was obtaining regular prescriptions for Serapax. The following extract from the mother’s cross-examination summarises the position:
So at one level, to just give his Honour some basic summary, you had a couple of doctors, a couple of pharmacies on tap and neither knew what the other was doing. That’s the position, isn’t it? - - - If you want to make it look bad yes.
His Honour: How would you make it look good? - - - Well, it doesn’t look good. I mean, it’s just reverting back to old behaviour.
It was later put to the mother that in or about November 2001 she was “on the methadone program, having (her) Serapax and having a couple of joints (ie of marijuana) a day”. The mother conceded that that was correct.
In paragraphs 42 and 43 of his affidavit, the father deposed to having received telephone calls from the mother in August and September 2001. In those telephone calls, the mother advised the father that she “was not coping”. On one occasion, the mother appeared to be experiencing some kind of paralysis in one of her hands or arms. Annexure RW7 to the mother’s affidavit sworn 7 May 2002 is a report from the mother’s “myotherapist”, in which various symptoms experienced by the mother in July and August 2001 are described. In paragraph 29 of her affidavit sworn 7 May 2002, the mother said:
In or about August 2000 (which clearly should read August 2001) I was afflicted with considerable health problems. I awoke one morning to find that I was paralysed on the right side of my body. My arms were particularly affected. The medical cause of this paralysis is unknown however my doctor believes that it could be related to my methadone intake. I have undergone a series of treatments and continue to see a myotherapist…During the time I suffered from paralysis I found it hard to lift and carry J. I contacted the father and requested his assistance. I sought assistance from the father because at this time we were getting on well and I thought he would offer his assistance in the care of J seeing as he is J’s father. He refused, saying that he could not afford to travel. Eventually he did come to Melbourne for one week.
I find that at the time that the mother suffered from her alleged “health problems”, she was on the methadone program, using Serapax and smoking marijuana at the rate of “a couple of joints a day”. Further, I find that the father did not refuse his assistance, as alleged by the mother.
As indicated elsewhere in these Reasons, I have no doubt that the father’s description of the mother’s behaviour contained in paragraphs 39 to 46 of his affidavit is accurate.
On page 7 of the family report, Dr Jacobson wrote that the mother told him “…that she participates in a substance abuse treatment program, that being a ‘relapse prevention program’”. She also told Dr Jacobson that “…she began the substance abuse treatment programs while she was in prison”. The mother was cross-examined about the program. She said that she could not remember its name. When asked where the program was held, the mother failed to answer. I find that the mother has not recently participated in such a program.
Further, I find that the mother has not been truthful regarding her drug use. I have considerable discomfort with the summary of the mother’s drug tests, and find that those tests are not an accurate guide to the mother’s actual drug use. I find that the mother has not dealt effectively (or satisfactorily — even from her own point of view) with her abuse of illegal and prescription drugs, and that she is unable to control her intake or use of the same. As well, I find that the mother is likely to continue to abuse illegal and/or prescription drugs in the future.
Other Matters
Two other broad issues occupied relatively significant parts of the time allocated for trial. In the light of the findings that I have already made in these Reasons (including my findings regarding the credibility of each of the parties), I do not propose to deal with these issues in any depth.
The first matter relates to the mother’s consumption of alcohol. Mr R’s evidence — which I accept — is that the mother has said to him, on at least one occasion, that she had concerns about the amount of alcohol that she was drinking. Mr Remingtson said that “once or twice” the mother said to him:
I’m having a bottle or a couple of glasses of bourbon. Do you think that’s too much?
It would appear, that during the period that the mother has known Mr R (being a period of approximately 6 months leading up to the commencement of the trial) she was consuming “a bottle or a couple of drinks” of a vodka mix drink (such as “Lemon Ruskie”) each night. Mr R also said that “on Saturday she might have four of those wine cooler things, like mixed ruskies or lemon ruskies”.
The evidence before me does not allow me to reach a firm conclusion regarding the mother’s alcohol intake. I find, however, that the mother has had concerns about her own alcohol intake. Further, I find that the mother has not only failed to deal effectively (or satisfactorily — even from her own point of view) with her abuse of illegal and prescription drugs, and that she is unable to control her intake or use of the same, but that she has also failed to deal effectively with her intake of alcohol. Having regard to the evidence of the father and his witnesses, I find that there is a strong possibility that the mother will abuse alcohol in the future.
The second matter was the parties’ attitude to each other. It was apparent to me that neither party respects the other. During the course of the closing address of the father’s counsel, I commented upon his client’s “coldness”. That comment arose — at least in part — from the failure of the father to ensure that the first period of telephone contact between the mother and J after the adjournment of the trial in May 2002 took place on time. It was my view that the father gave little priority to that contact arrangement, and the fact that the mother may have been worried and anxious during the first extended contact period seemed to mean little to him. It was put to me by counsel for the father, however, that the father did eventually make the telephone call and that, by and large, he has complied with all contact and other orders made during the course of the proceedings. Mr Cronin (for the father) urged me to bear in mind the father’s young age (and, by implication, his relative immaturity).
Having had the opportunity to review the evidence and re-consider the same, I am inclined to accept Mr Cronin’s submissions. I find that what I described as the father’s “coldness”, and his inability to identify positive qualities in the mother, do indeed stem from the frustration that he has felt as a result of his dealings with the mother over a lengthy period of time. I accept that the father’s current attitude to the mother reflects his frustration with the type of behaviour described in his affidavit. The father was able to overcome his drug addiction and take appropriate steps to set his life on a new course — one that will lead him further and further away from his and the mother’s previous lifestyle. The mother has not been as successful in that regard. Her erratic and at times irresponsible behaviour continued during the period leading up to the trial. It lead to Dr Jacobson’s conclusion (reached in court, during the course of his evidence) that, at best, the court might be minded to give her “one last chance”.
I am well aware of Mr R’s description of the father’s behaviour at contact changeovers. I neither minimise nor excuse that behaviour, but the thrust of Mr R’s oral evidence was that both parties behaved inappropriately from time to time. Having regard to the mother’s volatility and outspokenness, I have no doubt that a finding to the effect that all the incidents at contact changeover were caused by the father would be unfair and inappropriate. In my opinion, neither party would willingly miss any reasonable opportunity to abuse and belittle the other.
Discussion — Relevant Competing Proposals
I have already recorded the parties’ proposals in broad outline.[10] The mother seeks the orders set out in the Minute prepared on her behalf and dated 21 June 2001. A copy of the Minute is attached to these Reasons.
[10] See paragraphs 3 and 4 above.
The mother proposes that J, JW and LW continue to reside with her in her 3 bedroom rented property in Rye. She has lived in the property since approximately May 2001. According to the mother, she has “a close and supportive network of family and friends who live within a 5 mile radius of (her) home”.
The mother cares for the children on a full time basis. She is not employed, and is in receipt of an appropriate pension.
No other person resides with the mother and the 3 children.
The mother asserts that she has “built a new life for (herself) on the Mornington Peninsula”. It would appear that she and the children are well settled in her home and that J has her own bedroom. JW and LW attend the local primary school, and would appear to be progressing well. The mother proposes that, when J is old enough, she will join JW and LW at the same primary school.
The mother describes herself as being in the process of “building a strong and stable life” for herself and her children. She states that she is “no longer in a relationship of reliance”.
The mother’s grandparents live relatively nearby, in Rosebud. Both grandparents swore affidavits in the proceedings. Neither was required for cross-examination.
Both of the mother’s grandparents have recently experienced periods of ill health. Their affidavits are supportive of the mother’s case. The grandfather describes J as a “one hundred percent clean, happy, well adjusted and cheerful girl”. The grandmother describes her as a “a very happy and contented child”. They comment positively upon the assistance that they have received from the mother during their periods of ill health.
The mother is continuing on the methadone program. She states that she is “committed to remaining drug free”.
I have already commented on the mother’s drug use and the unsatisfactory nature of the evidence she gave in relation to the subject.
Dr Korman is the mother’s supervising prescriber for her methadone program. He swore an affidavit in the proceedings on 16 May 2002 and was not required for cross-examination. Dr Korman is a general practitioner, whose practice is in Frankston.
In a medical report dated 6 May 2002 (which report is annexed to his affidavit), Dr Korman wrote that the mother first approached his clinic on 4 February 2002 seeking to transfer her methadone program from her previous prescriber. She told Dr Korman that she had been on the methadone program for 18 months, during which she had not used heroin. The mother’s dose was increased from 50 mg daily initially to 70 mg daily as at the date of the report — due to “break-through opiate withdrawal symptoms”. To Dr Korman’s knowledge, the mother continued to remain heroin free at the time of the writing of the report.
Part of the mother’s proposal is that any order for residence of J in her favour be conditional upon her continuing to attend upon Dr Korman or his nominee in relation to the maintenance of her methadone treatment program.
The mother’s proposals also include conditions to the effect that she continue to attend upon a drug and alcohol counsellor at a centre in Rosebud and that she be restrained from consuming or ingesting non-prescribed medication, non-prescribed drugs and/or illegal substances. As is evident from the attached Minute, the mother also proposes to other orders designed to reassure the Court and/or the father that she can remain drug free.
It is the mother’s case that she is “devoted to her family”. The children are happy and healthy in her care, and she ensures that they are well fed and presented.
In relation to the mother’s proposals generally, I refer paragraphs 49 to 56 of her affidavit sworn 7 May 2002.
The mother proposes that J have regular contact with the father, including alternate weekends and half of the school holidays. I refer, in this regard, to the detailed proposals set out in paragraphs 5 and 6 of the attached Minute.
The father resides with his mother and brother in Wodonga. Both the father’s mother and his brother are in full time employment. The father attends to the majority of the cooking and cleaning in the home.
The home in which the father resides in Wodonga contains three bedrooms. J has her own room. The father uses the room when J is with the mother. When J is with him, the father shares a room with his brother. The father’s mother intends to purchase a larger home in Wodonga. The father’s brother has applied for an interstate job. If he is successful, then the only occupants of the home will be the father, his mother and J. The father expects to live with his mother “for an extended period of time”.
The father’s family is supportive of his application for residency of J. He has five siblings, three of whom reside in the Albury/Wodonga region. The father’s sister, TM, lives in Melbourne. She has permitted him to exercise contact with J at her residence when required, and has offered him “invaluable support”.
J has a close relationship with members of the father’s family.
The father recognised that his parenting skills were limited at the time the proceedings in this Court commenced. I am satisfied that the father’s parenting skills have improved since that time, and that he is now quite capable of attending to J’s daily needs (including when she is ill and in need of medical treatment).
The father is not employed, and is able to care for J on a fulltime basis. According to the father, another member of his family could care for J should he be unavailable for any reason. I accept the father’s evidence in this regard.
The father intends to enroll J in appropriate pre-school programs prior to the commencement of her formal education.
In paragraph 93 of his affidavit, the father said:
I am now “drug free” and enjoying the new opportunities that are available to me. I would like to undertake further study by correspondence whilst J is not yet at school. Upon J commencing school, I would seek to increase my studies or alternatively obtain part time employment. My priority, however, is to provide J with fulltime care.
Having seen and heard the father during the course of these proceedings, and having regard to all the evidence before me, I accept that the father is indeed “drug free”. I also accept that the likelihood is that he will carry out the plan that he has described in the preceding paragraph.
The father proposes that J have regular contact with the mother, JW and LW. He states that it is his intention to involve the mother in all important decisions affecting J’s welfare.
The father’s sister, TM, swore an affidavit in the proceedings on 26 April 2002. She was not cross-examined. After describing certain aspects of the parties’ relationship, the witness said that she regards the father as “a highly competent parent”. She has observed the father feeding, bathing and participating in different activities with J — including playing with her and walking with her. She fully supports the father in his application for residence.
The father’s mother was an impressive witness. She is clearly intelligent and insightful, and gave her evidence in a calm and balanced manner. She gave credit where it was due. I find her to be a witness of truth. She was supportive of the father’s application for residence of J, and supportive of the father himself. I find her to be a sensitive, sensible and responsible mother to the father and grandmother to J, and a wholly appropriate person to assist the father with the care and supervision of J.
The father’s mother is employed as a Senior Foster Care Worker at Upper Murray Family Care in Wodonga. She is 49 years old. She deposes to her qualifications in paragraph 3 of her affidavit. Of significance is the fact that she is a qualified drug and alcohol counsellor. She has six children (including the father) — aged from 29 to 19 years. She has at least seven grandchildren.
I accept that the matters deposed to by the father’s mother in her affidavit are true and accurate. Regrettably, I also find myself in agreement with her description of the mother as “erratic, volatile and manipulative”.
Both the father and his mother accept that the mother loves her children and that her parenting skills are more than adequate when she is not affected by drugs or alcohol. The father’s mother said, however, and I accept, that she has seen the mother smoke marijuana in front of the children, and that she has observed the mother to be clearly affected by substances whilst the children are in her care.
The father’s mother has observed the father and J together on many occasions. She has observed the father to be very attentive to J, and spoke positively of his parenting skills.
The father’s mother describes her (and the father’s) family network in the Albury/Wodonga area in paragraph 28 of her affidavit, and I accept her evidence in that regard.
The witness Horan is a registered nurse. She is employed as an “Alcohol and Other Drug Nurse” at the Upper Hume Community Health Service. She is responsible for supervising the father’s methadone program in Wodonga.
Ms Horan was not required for cross-examination, and there is no reason why I should not accept the matters deposed to in her affidavit.
Ms Horan confirms that the father “has shown strong commitment to making significant changes in his lifestyle” and that he has progressed satisfactorily through the methadone program.
Neither of the parties raised any significant concerns regarding the physical arrangements for J’s care, such as the accommodation that each could provide for her. I find that both parties can provide proper accommodation arrangements for J.
I find that the father has the capacity to properly and effectively care for and supervise J whilst she is in his care, and that he has the capacity to properly and effectively monitor and promote her health and education.
I am confident that the mother also has the capacity to supervise and care for J, and to monitor and promote her health and education. I find, however, that her capacity in this regard is seriously and adversely affected by her inability to reliably and consistently control her drug use. Her emotional volatility is exacerbated by her drug use. The mother’s occasional (or not so occasional) criminal activity manifests and emphasises the instability to which she is prone. I am also concerned about the mother’s intake of alcohol, which, I find, is excessive from time to time. The continuation of the mother’s drug and alcohol use seriously impairs her capacity to effectively care for and supervise J. I agree with the observation of the father’s mother that this behaviour on the mother’s part “…creates an environment in which visits from the police and DHS workers become part of everyday life, and the children are exposed to this”.
Although the mother did her best to reassure the court regarding her willingness and ability to change her lifestyle, I regret to have to find that the strong likelihood is that she will not succeed in her endeavour in this regard.
Discussion — s. 68F(2) Factors
J is a very young child. Her wishes are not a relevant consideration in this case, and none of the parties suggested that they are.
I find that J has a close and loving relationship with the mother, the father and the father’s mother. She also has a close relationship with her half brother and half sister, JW and LW.
Having regard to the findings that I have already made in these Reasons, and to the contact arrangements that have adhered since May 2002, I am unable to conclude that J is more strongly bonded to one parent than she is to the other.
The father’s mother impressed me as a sensible, caring and compassionate person — who can be relied upon to support the father in a positive, constructive and patient manner. I have no doubt that she will display the same qualities in her ongoing contact with J, and that the connection that J now has with members of the father’s family will continue to strengthen.
It is difficult to assess the likely effect of changes in J’s circumstances if she were to be separated from the mother on a permanent basis. I am aware that J has resided in the mother’s home, with her half brother and half sister. She has also had significant contact with the father.
Until the commencement of the trial, the father had had relatively limited contact with J. Since 24 May 2002, however, a “week about” arrangement has been in place. In other words, J has spent equal time with each of her parents[11].
[11] See paragraphs 57-60 above.
I find that J will not be more significantly or adversely affected by a “separation” from the mother (to be placed in the full time care of the father) than she would be by a “separation” from the father (to be placed in the full time care of the mother).
I am well aware that a residence order in the father’s favour would necessarily result in J being “separated” from JW from LW. That is a factor that I take into account in these proceedings, and weigh in the balance along with all other relevant factors. It is a factor that operates in support of the mother’s case. The fact of the matter is, however, that JW and LW were in foster care — together —for approximately two years prior to December 2000. J was born whilst JW and LW were in foster care. Although they may have had some contact with J after her birth and until they were re-united with the mother, it would appear that that contact was limited. Dr Jacobson observed JW and LW initiating play activities with each other (as opposed to J). During the course of his cross examination, Dr Jacobson speculated that “…they didn’t initiate play activities with J because the relationship is, in a sense, a non-traditional one — where they have been sort of introduced to their sibling…on a contact basis and didn’t…grow up with (her) in a traditional sort of way”.
Dr Jacobson’s evidence was that J is “…probably pretty malleable, and would adjust” to separation from JW and LW.
Dr Jacobson was specifically asked whether separation from JW and LW would be “a traumatic situation for J”. His response was:
I have to say that I don’t know, but if I had to put my best guess out there I would have to say that it would not be traumatic. It might be…somewhat distressing, but trauma, I would probably would not go as far as to suggest that it would be traumatic.
Having regard to all the evidence before me, I am satisfied that, although a permanent separation from JW and LW may be distressing for J in the short term, it is likely that she would soon adjust to her new environment (in the broadest possible sense). Dr Jacobson’s evidence suggests that J’s relationship with her older half siblings is not as close and supportive as the relationship between JW and LW themselves. In any event, I am confident that the father and his mother have the necessary patience and sensitivity to enable them to reassure J at all times, and to assist her to effectively overcome whatever distress she may feel as a consequence of separation from JW and LW.
Having regard to my findings regarding the mother, I am of the view that DHS will continue to have some form of involvement in the lives of the mother’s three youngest children (for as long as they live with her), and that there is a strong possibility that JW and LW will be removed from her care from time to time. Similarly, there is a strong possibility that DHS will remove J from the mother’s care from time to time if she were to live with the mother on a permanent basis.
There is no doubt that practical difficulties exist in relation to the facilitation of contact between J and the mother and the father. They live some considerable distance apart. Neither the father nor the mother drives. It follows that each must rely on public transport, or on another person to drive him/her.
Suffice it to say that the practical difficulty and expense of J having contact with each of her parents will not — in my view — unduly affect her right to maintain personal relations and direct contact with her parents on a regular basis. Clearly, J must undertake some travel whether she resides with the father or the mother. The practical difficulty of and the expense associated with that travel is likely to be significantly affected by the contact orders that I make.
Having regard to the shared residence arrangements that have adhered since May 2002, taking into account the fact that the father has demonstrated an ability and inclination to undertake regular travel from Wodonga to Melbourne in order to maintain his relationship with J, and in light of the fact that the father has an extended support network (in the form of his family — some of whom reside in Melbourne), I see no reason why the father should not continue to undertake such travel as may be necessary to facilitate the majority of the contact arrangements that will adhere as a result of the orders that I am about to make. That the greater part of the burden in relation to travel should fall on the father (and, of course, J) is reinforced by the fact that the mother also has JW and LW in her care and that she lacks the extended support network that is available to the father.
In the circumstances of the present case, I am of the view that this factor is not one of overriding significance. I propose to hear further submissions regarding appropriate arrangements of the facilitation of contact after the handing down of these Reasons.
I am satisfied that the father has the capacity to provide for J’s needs — including her emotional and intellectual needs. If the father has any difficulty providing for those needs himself, then I am satisfied that — with the assistance of his mother — he will find a way to ensure that those needs are properly and effectively met by others.
I have already dealt with the mother’s volatility, drug use and general emotional problems. I do not doubt that the mother has the capacity to provide for J’s needs (including her emotional and intellectual needs) much of the time. Until such time as the mother properly and effectively deals with her own problems, however, I find that there will inevitably be occasions on which the mother will lack the capacity to provide for J’s needs. Throughout the trial, the mother frequently blamed others for the various problems that have beset her throughout her life. There can be no doubt that she had a difficult and unhappy childhood and adolescence. She has been involved in a number of unhappy and abusive relationships, and she has an extensive criminal history. Her two eldest children do not live with her, and JW and LW were in foster care for an extended period of time. In my opinion, the mother is unwilling to take responsibility for her own role in certain of the misfortunes that have befallen her during her adult life. I do not mean to suggest that the mother is entirely to blame for all those misfortunes. Clearly, she is not. But the strength of her personality is such that, in my opinion, it is impossible to conclude that the mother was always powerless to affect the course of events that unfolded around her. To use the vernacular, the mother is “street wise”. She can certainly be articulate, outspoken and determined when she wishes to be.
In my view, there continues to exist a need to protect J from any form of harm that may be caused by being subjected or exposed to the mother’s (at times) inappropriate or irresponsible behaviour. I refer, in this regard, to the Dandenong Incident, to the mother’s drug use and to the mother’s volatility (amongst other things). I am well aware, of course, that the evidence before me does not suggest that J has ever come to serious harm (of any sort) whilst she has been in the mother’s care. That is a factor that I take into account and weigh in the balance, and it is certainly not without significance. But section 68F(2)(g) speaks of a “need to protect” a child from certain behaviours. In my view, the fact that such behaviours have not harmed the child in the past does not mean that they could not harm her in the future.
The only other factor under section 68F(2) that I consider to be of significance in these proceedings is the requirement that the Court consider the attitude to the child, and to the responsibilities to parenthood, demonstrated by each of J’s parents. I am satisfied that the father has demonstrated a responsible and proper attitude to J, and to the responsibilities to parenthood, since (at least) the time that he commenced the current proceedings. To pursue the current proceedings, and to continue to exercise as much contact with J as he has during the course of the proceedings (involving, as such contact does, a great deal of travelling between Wodonga and Melbourne), demonstrates to me that the father has considerable strength of character, and that he is prepared to subject himself to criticism, strain and anxiety in order to promote what he believes to be J’s best interests.
I am aware that there have been significant periods in the past when the father has not demonstrated an appropriate attitude to the responsibilities and duties of parenthood. I accept, however, that the attitude that he then displayed was a consequence of the unhappy and destructive relationship that he then had with the mother, and the abuse of drugs by both of them. I find that the father no longer abuses drugs and I find that he does not involve himself in any activity that could effectively compromise his care of or his relationship with J.
There can be no doubt that, for much of the time, the mother has also demonstrated a responsible and proper attitude to J and to the responsibilities of parenthood. For her to pursue the current proceedings — opposed, as they are, by the father and by his extended family — also demonstrates to me that the mother has considerable strength of character and that she, too, is prepared to subject herself to criticism, strain and anxiety in order to promote what she believes to be J’s best interests. As is the case with the father, there have been significant periods in the past when the mother has not demonstrated an appropriate attitude to the responsibilities and duties of parenthood. I also accept that the attitude that she then displayed was at least partially a consequence of the unhappy and destructive relationship that she had with the father at that time, and both parties’ drug abuse. Regrettably, I am unable to find that the mother no longer uses illicit drugs. The evidence before me also causes me to have concerns regarding her alcohol consumption, but I can make no finding in that regard. I cannot be confident that she no longer involves herself in activities that could effectively compromise her care of and relationship with J. I am left with hope, rather than confidence, that the mother can demonstrate an appropriate attitude to the responsibilities and duties of parenthood on a consistent basis for an extended period into the future.
I do not doubt that both parties love J. The reality is, however, that such a sentiment is often a “given” in residence cases. The father has done a great deal to improve his parenting skills and to confront and overcome the problems that he has experienced in his life. As I have observed elsewhere in these Reasons, I have no doubt that the mother has very good parenting skills — but I am not satisfied that she has done enough to confront and overcome the problems that she has experienced in her life. It seems to me that, given the mother’s age, her personal history, and the involvement of DHS in her life, the mother should have understood that her inability to recognise, confront and deal with her own problems would be likely to impact adversely on her capacity to care for J and, ultimately, her case for residence of J. Good parenting must always involve more than just love and good intentions.
I am aware that section 68F(2) draws the Court’s attention to family violence matters. Much of both parties’ cases before me revolved around allegations and counter allegations regarding their behaviour towards each other. The mother asserts that the father bullied and intimidated her, and was violent to her. The mother asserts that the father’s bullying and intimidation continued well after separation and still continues whenever they come into contact.
I have no doubt that the father has bullied and intimidated the mother from time to time in the past. Similarly, I have no doubt that he has behaved inappropriately, and has insulted and belittled the mother, at contact changeovers. I also have no doubt, however, that the mother has abused and insulted the father on various occasions. I have already described the mother as being “street wise”, and recorded my view that she can be volatile and manipulative. I do not condone any form of domestic violence or inappropriate behaviour on the part of either party. I find, however, that the domestic violence, occurred only to the extent admitted by the father and not beyond. I find, as well, that each party has subjected the other to verbal assault, and that — generally speaking —each “gave as good as he/she got” in that regard. I have not ignored the evidence presented by the parties in relation to this subject. Where the parties’ versions differ, however, I prefer the evidence presented by or on behalf of the father.
At the end of the day, it seems to me that this is not a factor that could have any significant impact — in the particular circumstances of the case before me — on the outcome of the proceedings. I can only hope that the making of final orders disposing of the proceedings will signal a fresh start for both parties in so far as their communication is concerned, and facilitate a reassessment by each of them of the manner in which he/she addresses the other.
During the trial I expressed some concerns regarding the father’s compliance with orders designed to ensure contact between J and the mother whilst J was in his care. Having reviewed all the evidence before me, however, I am satisfied that both parties can be relied upon to comply with any orders that the Court may be minded to make regarding contact. I am satisfied that each party will do little more than the minimum that is necessary to promote contact between J and the other parent. To the extent that this may amount to a factor to be taken into account in these proceedings, I find that it is a factor that does not favour one party’s case over the other.
Conclusion
In his written submissions, Counsel for the Child Representative concluded as follows:
There are a number of concerns regarding the mother’s drug usage. The mother has not demonstrated an ability to cure herself of drug usage and associated behaviours.
This is a finely balanced case. Considering all of the evidence and section 68F(2) factors, the submission of the Child Representative is that the child should reside with the mother.
For the reasons which I have given above, I am not prepared to make orders in accordance with the Child Representative’s submission. I have borne firmly in mind, throughout my consideration of the parties’ competing applications, the various factors and considerations referred to in B & B: Family Law Reform Act1975 (see above), and in the other legislative provisions or authorities referred to in paragraphs 88 to 98 above. I have imposed no legal or other onus upon any party, and have applied no presumptions of any sort. I have deduced from the evidence, and my assessment of the parties and the witnesses, the essence of their competing proposals — and I decide, having considered all relevant factors, that the father’s proposals would be more likely to advance J’s best interests (which comprise the paramount consideration in these proceedings).
I am well aware that the orders that I propose will change a pre-existing status quo (or, at least, the status quo that adhered until the commencement of the trial). In the circumstances of the present case, however, and for the Reasons that I have given throughout this Judgment, the change that the orders require is necessary and in J’s best interests.
In his oral submissions, Counsel for the Child Representative suggested that the factors which “tipped the scales” in favour of the mother’s case were as follows:
a)the separation of J from JW and LW;
b)the limited criticism of the mother’s care of J; and
c)the fact that DHS has had limited involvement in the mother’s life since JW and LW were returned to her care (apart from the Dandenong Incident and its aftermath).
I have considered all of the above factors and given what I consider to be appropriate weight to them. I conclude, however, that the mother has not adequately dealt with her drug problems, that her care of J will eventually, and inevitably, be adversely affected by her drug usage and other irresponsible behaviour and that I cannot be confident that the mother can offer J the degree of stability and security that can be offered by the father. As well, the father has the support of his mother and his extended family (and I do not propose to repeat the very positive findings that I made regarding the father’s mother).
Section 68F(2)(k) directs the court to consider “whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child”. This is an awkwardly phrased and somewhat obscure provision, but, in the circumstances of the present case, I am reminded of the cross examination of Dr Jacobson – and the suggestion of counsel for the mother that she be given “one last chance”. As difficult as it will no doubt be for the mother to accept, I have reached the conclusion that the best interests of J dictate that she should not be given any more “chances”. I find that the orders “… that would be least likely to lead to the institution of further proceedings in relation to the child” are those that I now propose to make.
Orders
I am satisfied that orders to the following effect are in J’s best interests:
a)The mother and the father are to retain joint responsibility for making long term decisions regarding the care, welfare and development of J.
b)Each party is to have sole responsibility for making decisions regarding the day to day care, welfare and development of J during periods when J lives with him/her.
c)The child live with the father on a day to day basis.
d)The mother have contact with J as follows:
i)each alternate weekend (from Friday evening to Sunday evening);
ii)for half of all school holiday periods (including the long summer vacation period); and
iii)for such other periods as shall be agreed upon by the parties.
I shall now hear Counsel (or, where appropriate, the parties) regarding the precise terms of the orders necessary to give effect to this Judgment. Relevantly, I shall hear submissions regarding specific contact arrangements, collection and delivery arrangements and general orders such as those set out in the mother’s Minute of Orders.
I certify that the preceding two hundred and forty-six (246) paragraphs are a true copy of the Reasons for Judgment of Walters FM
Associate: Paul O’Halloran
Date: 24 February 2003
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