Monroe & Collins
[2021] FamCA 315
•18 May 2021
FAMILY COURT OF AUSTRALIA
Monroe & Collins [2021] FamCA 315
File number(s): SYC 809 of 2014 Judgment of: HENDERSON J Date of judgment: 18 May 2021 Catchwords: FAMILY LAW – CHILDREN – Interim parenting – where the child lives with the father and spends no time with the mother – where the mother has a history of substance and alcohol abuse – where the mother is making positive steps to retrieve her functioning – consideration of the child’s right to a meaningful relationship with his mother – assessment of risk to the child – where the child’s right to a meaningful relationship with his mother outweighs any potential risk to him in re-establishing a relationship with his mother – orders made for the child to spend supervised time with the mother at a contact centre for two hours per fortnight as sought by the Independent Children’s Lawyer. Legislation: Family Law Act 1975 (Cth) ss 60B, 60B(2), 60CC(2) Cases cited: Goode & Goode (2006) FLC 93-286
M v M (1988) 166 CLR 69
McCall & Clark (2009) FLC 93-405
Number of paragraphs: 138 Date of hearing: 27 April 2021 Place: Sydney Counsel for the Applicant: Ms Lioumis Counsel for the Respondent: Ms Gillies SC Solicitor for the Applicant: Pearson Emerson Family Lawyers Solicitor for the Respondent: Santo Family Lawyers Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 809 of 2014 BETWEEN: MS MONROE
Applicant
AND: MR COLLINS
Respondent
ORDER MADE BY:
HENDERSON J
DATE OF ORDER:
18 MAY 2021
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.That the child of the relationship X born … 2011 spend supervised time with the mother for up to two (2) hours per fortnight or as may be available or recommended through K Centre (hereinafter referred to as “the contact centre”).
2.That the parties complete all courses recommended by the contact centre and accept all directions of the contact centre as to how time the mother spends with X is to occur.
3.That leave been given to the ICL to provide a copy of the following documents to the contact centre:-
(a)Copy of the single expert report of Dr B dated 25 November, 2019;
(b)Copy of the report of Professor C dated 1 November, 2019;
(c)Copy of the report of Professor C dated 24 April, 2021;
(d)Copy of the reports of Professor D.
4.That the father provide all necessary authorities and sign all necessary documents authorising Ms G Psychologist to liaise with the contact centre regarding the implementation of these orders and the time that X spends with the mother.
5.That in the event that the mother fails to comply with the orders of 21 January 2021 in respect of the regime of testing and/or returns a positive reading for the use of illicit drugs and/or the consumption of alcohol then Order 1 is suspended pending further order of the Court or written agreement of the parties.
6.The parties have liberty to approach my associate in Chambers on 24 hours’ notice if events occur that render these orders unworkable or concerns in relation to the child or either parent are raised by any contact centre worker.
7.The Independent Children’s Lawyer may provide a copy of this judgment as well as any report prepared in relation to this matter including reports regarding the mother’s mental health and addiction issues to the contact centre and to all treating clinicians of the mother, father and child.
THE COURT NOTES THAT:
A.That Orders 1 to 4 of the orders made 21 January 2021 continue to be operative and as set out hereunder:-
1. That within 48 hours of the date of these orders and at 30 day intervals thereafter, the mother is to undertake liver function testing and PETH testing noting them mother last completed a PETH test on 22 December 2020.
2. That the mother submit herself for supervised chain of custody hair follicle testing for alcohol and drugs of abuse with the first test following the date of these Orders to occur 2 March 2021 and at 3 monthly intervals thereafter noting the mother last completed a hair follicle test on 2 December 2020.
3.That the testing pursuant to Order 2 herein is to be conducted at an approved laboratory, accredited to conduct hair drug and alcohol testing to the recognised international standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to Order 2:-
a. The mother is to maintain her head hair at a length of not less than four (4) centimetres from the base of the scalp or skin, with neither head hair nor body hair is to be cut shorter than four (4) centimetres, treated, bleached or dyed until such time as this order is discharged.
b. The mother is to provide the collector with photographic identification to be recorded before each hair collection and will authorise the provider to provide direct to the ICL, the mother’s solicitor and the father’s solicitor the test results and in the event that a copy of the results are only provided to the mother’s solicitor then that solicitor shall provide a copy of such results to the ICL and the father’s solicitor within forty eight hours of receipt of the results.
c. The hair drug test may screen for drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opiods and metabolites and any other illicit drugs; and
d. The costs of any such testing to be met by the mother.
4. That within twenty-four (24) hours of the results being received for the liver function testing the mother shall provide a copy of such results to the ICL and the solicitor for the father.
B.The child's treating psychologist, Ms G, has agreed to liaise with the contact centre regarding the implementation of the orders and the time X spends with his mother.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Monroe & Collins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
This is an application by a mother to commence time with the parties' son, X, born in 2011 and aged 10. X lives with his father and has lived with his father since January 2018 when the mother was involved in a most serious and concerning incident of violence against her own mother.
Ms Lioumis of counsel represented the mother. The child, X, was represented by Ms Smith and Ms Gillies SC represented the father.
The Independent Children's Lawyer (“ICL”) proposed orders at the commencement of the hearing that:
(1)X commence to spend time with his mother at a contact centre, supervised, two hours per fortnight;
(2)That the child's treating psychologist, Ms G, liaise with the contact centre regarding the implementation of the orders and the time X spends with his mother;
(3)That the Independent Children's Lawyer be given permission to provide all the experts' reports to all the experts in this matter. I note that there are six medical reports concerning the mother’s functioning and a Family Report prepared by Dr B; and
(4)That in the event the mother fails to comply with the orders of January 2021 in respect of a regime of drug testing, a regime she has been complying with, and/or that she returns a positive reading for the use of illicit drugs and/or the consumption of alcohol, then any order for X to spend time with his mother is suspended pending further order.
The mother supports the orders proposed by the ICL and is clearly on notice that if she missteps, ongoing time and an ongoing relationship with her son is at risk. X has not spent time with his mother since he came into his father's care in January 2018, save for at the interview in October 2019 before Dr B and via telephone in 2020. There are sound reasons why the father has taken such a strong stance against X spending any time with this mother, even supervised time, a course that was recommended by Dr B in his report of November 2019. Such is the father’s resistance that he objected to X and his mother having a meeting in the presence of Dr B and he continues to resist any order that the child spend time with his mother including supervised time.
The father is resistant to the child spending any face-to-face time or having any communication with the mother at all as he asserts that the risk to X from his mother's uncontained behaviour, significant mental health issues, addiction to alcohol, addiction to prescription and/or illicit drugs, presents such a risk to X’s emotional functioning and psychological health that the benefit he will receive from spending time with his mother, even in a supervised setting, is outweighed by the potential risk of harm to his pleasing but slow progress in his behaviour and functioning.
Further, the father submits that X has particular emotional vulnerabilities as noted by Dr B and until Dr B’s report can be tested and all the evidence tested, the risk to the child’s emotional and psychological well-being outweighs any benefit to him in re-establishing a relationship with his mother. The father’s affidavit was silent on the benefit to X in resuming time with his mother when clearly there must be some given she was his primary carer from birth. The father and his partner were focused on the potential harms and risks to the child due to his mother's past functioning and behaviour, and X’s particular vulnerabilities.
There is no doubt that X is a particularly vulnerable child. This was noted by Dr B at paragraph 226 of his report, where he says:
The child has experienced an insecure attachment in the context of the mother’s disorganised behaviour under the influence of substances. This has left him vulnerable to emotional dysregulation and insecurity. The combination of genetic and environmental factors render him vulnerable to current and future emotional and behavioural problems including substance abuse.
He has been diagnosed with ADHD and is on medication which has been of assistance to him. There is no doubt the father and his partner Ms M have parented the child to a high degree and provided him with much needed stability, love, affection and consistency in his parenting and he is now reaping the benefits of this exemplary parenting. This was clearly absent when he was living with his mother as the facts will reveal.
The evidence I read was, even for an interim hearing, voluminous.
For the mother, an enormous court book consisting of some 300 plus pages that included:
(1)Reports of Dr C, a specialist in addiction medicine, dated 24 April 2021 and 1 November 2019 in respect of the mother;
(2)The mother’s affidavits of 20 January 2021 and 20 April 2021;
(3)Affidavit of her mother, Ms H Monroe, sworn 23 April 2021;
(4)Statement of Agreed Facts in relation to the appalling incident in which she assaulted her mother and effectively imprisoned her for 48 hours in 2018;
(5)The Child Responsive Memorandum, dated 7 November 2018;
(6)The Court Attendance Notice in relation to the agreed facts of these incidents, together with her threatening the life of the father. The mother spent time in jail and has been incarcerated in respect of these offences; and
(7)A Case Outline document prepared by Ms Lioumis.
There were four reports of Professor D the mother sought to rely on dated 21 February 2018, 16 April 2019, 9 July 2019 and 23 April 2021. Professor D had prepared the first three reports in relation to the mother's functioning for her criminal matters. He first saw her in 2018 and he stated that she was in such a poor mental health state he could not interview her and she could not give instructions. The last report of April 2021 was prepared for these proceedings.
There was objection taken to my reading these reports on the basis Professor D was not an expert under the Family Law Rules 2004 (Cth), nor was he the mother's therapist or treating doctor. I admitted these reports into evidence, these being parenting proceedings and because the factual history set out by Professor D, who is a forensic psychologist, together with his assessment of the mother’s improved functioning over three years and gaining some insight into the problems her functioning had caused her son was important information for the Court to have from a, prima facie, objective source.
For the father:
(1)A thorough and helpful Case Outline;
(2)The father’s affidavit, sworn 14 April 2021;
(3)The affidavit of X’s psychologist, Ms G, filed 21 April 2021 attaching a report prepared by her some time prior to 31 March 2021.
I also read the report of Dr B.
The short relevant chronology as opposed to the voluminous chronology, understandably prepared by the husband's counsel, is as follows.
The father is aged 61, the mother is 40.
The parties began to live together in June 2010.
Their son, X, was born in 2011.
The parties separated on 1 July 2012.
The mother's mental health significantly deteriorated after the birth of the child. Professor D initially diagnosed the mother in 2018 with bipolar disorder, personality disorder, clusters A and B, and alcohol use disorder in circumstances where she was unable to provide him a history, so poor was her mental health.
By 2019 the mother's functioning was at a stage where she could give him a history. After taking her history he diagnosed that she suffered from the following comorbid mental disorders: postpartum psychosis; post-traumatic stress disorder; persistent depressive disorder; separation anxiety disorder; and alcohol use disorder.
The mother's use of alcohol has been a consistent theme since at least X’s birth, and there is evidence in all the material, including Dr B's report, of her overuse of prescription medication. The mother was significantly unwell from the time of the child's birth and her concerning functioning and behaviour was well set out by the Independent Children's Lawyer in her submissions to me where she said that “X’s early parenting was, at best, chaotic”. It may be that it was also abusive, perhaps unintentionally as she was seriously unwell and her overuse of alcohol and prescription medication only exacerbated her underlying conditions.
The information from the COPS entries attached to the police records at pages 14, 15, 29, 30, 31, 35, 36, 37 to 38, 46, and 62 to 63 of the father's tender bundle is truly concerning. The mother was significantly affected by alcohol when X was three months of age, and police were concerned about her and the child. The police were concerned that the mother had been driving under the influence of alcohol when the child was nine months of age. In July 2013, the mother was hospitalised due to intoxication. X was two years of age at this stage.
In April 2014, the police found the mother was intoxicated again. X would have been three years of age. On 16 June 2014, the mother was intoxicated and argumentative. X was three years of age. The mother was violent to other people in October 2015, and significantly affected by alcohol. X was four at this stage. On 15 February 2016, the mother was screaming, losing her temper, was uncontrolled, uncontained and affected by alcohol. X was four and a half. On 29 April 2016 when X was almost five the police attended the home and reported the mother was significantly affected by alcohol and behaving poorly.
In March 2019 the police attended the mother's home and reported concerns she was significantly affected by licit or illicit drugs. It is reported in July 2017 that the mother is suffering from unstable mental health. X was six years of age at this time. In September 2017, X’s school made a report to the Department of Communities and Justice as they were concerned about X, his behaviour and appearance at school. His mother arrived at school drunk and they had made a report of this behaviour in May 2017 as well. X was six.
When X was six years and five months of age his mother had a significant psychotic episode which he fortunately was not involved in.
The mother found out that her mother had let the father take X with him to spend time with him on 6 January 2018. The father says her mother asked him to take the child as she was concerned about the mother’s behaviour and I accept this was the case. When the mother found this out she became angry and screamed at her mother to go and get her son back, and she called her all night via the telephone. The grandmother woke up, found her daughter in her room screaming and yelling at her, told her to come with her and tied her mother's hands together with tape. The mother was aided by a Mr N. The grandmother was placed into a car being driven by Mr N, a friend of the mother’s at the time. Mr N drove the mother and the grandmother to the mother’s home. The mother pulled her mother out of the car and led her into her bedroom, continuing to yell at her for handing her son over to the father. At some point the mother calmed down, untied her mother's hands and asked her if she would like a shower. The grandmother said her daughter's behaviour fluctuated from being normal to aggressive.
After the grandmother had a shower she went back into the bedroom where she was effectively imprisoned as Mr N stood in the doorway blocking her exit. The mother continued to come in and out of the bedroom at various times and continued to yell at her mother.
The mother sat on her mother whilst she was in the bedroom, pulled her hair, hit her around the face and chest, and this happened on four occasions. Mr N did nothing, just stood watching. The mother threw a glass of water over her mother, and told her mother they were going to collect X tomorrow. At about 8 am in the morning the three of them were driven by Mr N to X’s father's home. This poor grandmother had put up with this behaviour all night.
The grandmother went inside the father’s home, and fortunately the father did not bring his son out. The father observed bruising to the grandmother's left hand, left side of her face and to both wrists. The grandmother told him she had been assaulted and she had to get X back or she would be in “serious trouble”. The father rang the police.
This is not the only incident of the mother's out-of-control, most concerning behaviour however it is the most flagrant. The mother also breached an Apprehended Violence Order (“AVO”) which had been issued against her for the protection of the child's father. The mother rang the father repeatedly on the nights of 16 or 17 January 2019. He ultimately answered the phone, and he immediately recognised her voice. She said to him “You're the [one] going to be sorry”, “You are the son of the devil”, “You will get what's coming to you” and she hung up.
On 20 February 2019, the father received 37 text messages from the mother. Messages included statements such as “I have a new billionaire and I'm going to fuck you. Once you're in the tent? You put me on the map!”
On 21 February 2019, the father received 23 messages from the mother, saying things such as “If you don't keep your end of the deal I will destroy you”. The father went to Suburb P Police Station on 21 February to report the incidents.
It is undeniable that the mother was seriously unwell in 2018 and for part of 2019 and the reality is she has been unwell since the child’s birth. It is, as Ms Smith said, a chaotic and traumatic history for this little boy. It has taken the mother some time to come to realise that she is the real problem for her son and not, as she initially portrayed, the father.
The mother's affidavit of 20 April 2021 tells me that the last time she physically saw her son was with Dr B in October 2019. That she would regularly speak with her son via telephone when he spent time with her mother. The father had facilitated X spending time with his maternal family from the time he came into his father's care. This decision by the father was child focussed and gave X much happiness as he reported to Dr B.
The mother tells me at paragraph 38 of her affidavit she has apologised to her mother on many occasions:
I am deeply remorseful for my actions in January 2018. My mother has forgiven me and we are moving on with our lives as a family.
The mother said she cannot believe she treated her own mother in this fashion. I accept that she regrets her actions on 16 January 2019 and that since that time her life has changed.
The mother denies that she ever told X that phone calls she had with him should be kept secret from his father or that he would be going to live with her soon, or that his father didn't want him when he was a baby as he reported to his father she had. I accept the father had no idea his son had been speaking to his mother in 2020 and that this came as a shock to him and has damaged the hitherto excellent relationship he had with X’s maternal grandmother and that trust has now been lost.
There is evidence of negative drug tests, PETH tests and for hair and urine tests. There is evidence of regular and prolonged sobriety. There is no doubt the mother has complied with the drug testing and with the liver function testing regime, and her results are pleasing in that there is no evidence she is abusing alcohol. I accept that the mother is trying her absolute best to retrieve her functioning to care for herself so that she can re-establish her all-important relationship with her son.
However, for the father the world has not moved on as easily as the mother would say it should. He has had the sole job of caring for his son, which he has carried out to a high standard post-separation, a child who was damaged by having lived with his mother in the state she was in.
THE PARTIES’ EVIDENCE
Reading from the father's chronology he says the important events, apart from those which I have just referred, are multiple both in the past and in the present. That it is the destabilising of his son’s emotional well-being by spending time with his uncontained mother that is the real risk. It did the father little good to complain about the mother's behaviour from separation up to the time the child came into his care when he took no step by way of applying to the Court for orders, for example, and left the child with his unwell mother. I will not traverse every past event in this interim hearing as they are not relevant when it is an agreed fact that the mother was so unwell and I cannot make findings.
The father was well aware of the mother's significant abuse of alcohol at his son’s birth and, from the evidence I can see, he did little about this in terms of protecting his son. There is a long history of the mother seeking advice from T Medical Centre and I have been taken to notes from Dr Q where there are issues of the mother abusing prescription medication and her mother allegedly assisting in this. There are a litany of reports to the Department of Communities and Justice, to the school, to the police, to hospitals all related to the mother’s concerning behaviour and conduct yet X remained in his mother's care. That of itself is concerning. This past concerning behaviour of the mother is not happening now and has not for some time.
I am not in any position to analyse in any depth the historical notes Ms Gillies SC took me to. I am not tasked to make findings in interim hearings, and my task is to decide whether X should be given a chance to resume his relationship with his mother in light of her concerning mental health history, abuse of alcohol and prescription medication or should such a step wait to a final hearing when all the evidence is tested as the father submitted to me was the correct course.
It is clear that the maternal grandmother was very concerned about X and provided him to the father in January 2018 because of the significant deterioration in the mother's mental health and incapacity to care for her son. The mother was convicted of the assault and kidnapping of her mother, and she was incarcerated. Orders were made on 19 April 2018 that the father have sole parental responsibility and the child live with him.
The mother was in custody for six months from that period of time, released from jail on 10 July 2018. The mother came into contact with Professor D in February 2018 consequent upon her arrest, and this is where she began her slow but upward trajectory of taking on advice and adhering to recommendations of specialists in the field of addiction.
There is no doubt overuse of alcohol and misuse of prescription drugs can lead to mental health issues even for the non-vulnerable, whereas this mother clearly had some vulnerabilities as she approached adulthood.
When orders were made on 19 April 2018, telephone time was to take place between the mother and X as agreed by the parties. The father was entirely unaware that when X had been at his maternal grandmother's home that he had also had telephone conversations with his mother as he and the mother had not agreed in relation to telephone time.
The father only found out about this telephone time in late 2020 at a time when he says he noticed X’s behaviour had changed and he had become more anxious. The father asserts that the mother told X she was better now, he would be coming soon to live with her, he wouldn't be living with his father, his father never wanted him when he was a baby, and that the phone call should be a secret from his father. These are matters that the mother has denied she said to her son.
I cannot make any findings on this contested evidence at an interim hearing however I accept this is what X took from conversations he had with his mother. Fortunately, X was able to tell his father about the phone calls, and that is very positive for the father/son relationship.
The mother was at T Medical Centre from May to August 2018. The mother saw Ms J for monthly visits from May 2018, but I accept that there is a paucity of evidence to support that this occurred. Ms J, her psychologist, is the daughter of Professor D, the forensic psychologist, who prepared her reports for her criminal matters as well as a report for this hearing.
The mother attends Alcoholics Anonymous (“AA”) meetings and she has attended these meetings for some years now and attends six a week and finds them to be of benefit to her as they are on Zoom conducted from America, and she describes how these meetings are much more buoyant and engaging than the quieter meetings in Australia and she is receiving assistance from those meetings.
The mother said she tried to arrange telephone time with her son and had her lawyers send letters to the father in July 2018 and received no response. However the fact is there was no agreement for telephone time. The Child Responsive Memorandum noted it was of concern that X was not spending any time with his mother as at 7 November 2018 and that position continues today. The mother sends birthday cards to the child and sent congratulatory letters in November 2020. The mother says she was very careful to follow the guidelines of Dr B's report when speaking to her son on the telephone.
The mother contravened the AVO by contacting the father, as I have set out, and that occurred in 2019, a year after X was removed to his father's care. The mother says it was because the father would not allow X or did not agree to the child communicating with his mother via telephone. That is no excuse for such uncontrolled, uncontained behaviour.
Professor D’s report dated 16 April 2019 recommended that the mother’s criminal charges be dealt with under the Mental Health Act 1990 (NSW) rather than through the criminal justice system and this occurred. The mother pleaded guilty to the charges of intimidate with intent to cause fear or harm, assault occasioning actual bodily harm, and contravene restriction and was placed on a good behaviour bond.
Orders were made on 23 May 2019 that the parties were to do all things and acts necessary to engage the services of K Centre if the Court made such orders. The Independent Children's Lawyer advised in June 2019 she consented to supervised time. The father has resisted any face-to-face time or communication between his son and the mother at all.
The mother continues with her Alcoholics Anonymous meetings, despite COVID-19, and continues to undertake significant drug and alcohol testing in accordance with the orders for same.
Professor C, drug and alcohol professor, prepared two helpful reports. His first report is 1 November 2019 where he says he had been asked to provide an assessment regarding the alcohol use disorder for the mother.
The mother told Professor C she last drank alcohol in December 2018 and that prior to this she had been drinking for about a week over the Christmas period, about a bottle of wine a day. That she was drinking a bottle and a half of wine a day when she went to the L Medical Centre. That she did not drink alcohol whilst pregnant but relapsed after X’s birth and was, at worst, drinking two bottles of wine or champagne daily.
That she has not ever injected, used cocaine early in her life, did not like cannabis and has not done it for years. That she is taking the following medication: Ativan, Pristiq, 200 milligrams a day, Catapres for anxiety, 100 milligrams of Seroquel at night, and Imovane two at night for sleep. To look after herself the mother reported she studies, reads daily and carries out yoga.
Dr C assessed the mother as well, alert, not intoxicated or experiencing withdrawals, cooperative, answered all the questions, and that her reaction to the humiliation she experienced over the last two years was reasonable.
In this report dated 1 November 2019 Dr C refers to seeing the mother on 7 November 2019 and he found she was more anxious and more guarded answering his questions. I accept there is an error with these dates. There was no evidence of thought disorder, delusions or hallucinations, something that the mother had suffered from earlier on. She demonstrated a clear insight into her previous alcohol problems and was committed to maintaining her treatment program, strongly motivated to regain access to X, acknowledged the need to demonstrate abstinence from alcohol to regain this access and was eager to undertake appropriate monitoring to facilitate this.
In his opinion, she has a long history of excessive alcohol consumption and would meet the criteria for alcohol use disorder of at least moderate severity. The mother also described a period of taking high dose regular benzodiazepine, as well as Imovane. That she had ceased benzodiazepine some time ago and he was concerned that Imovane, which is also a benzodiazepine-like sedative, may be of concern for her and she should be monitored by a psychiatrist or at least a suitably experienced GP into what drugs she should or should not have. He wanted to review her in terms of her urine and drug test and alcohol biomarkers. He recommended long-term abstinence from alcohol, particularly should she seek unsupervised access with her son and that court orders for the monitoring of alcohol biomarkers and clinical functioning were appropriate.
He noted that in the report with Dr B, the meeting with the mother and the child went well, and it did. That is a statement I agree with. Dr C reported the mother demonstrates several risk factors for alcohol use disorder including a strong family history affecting her sister, father and grandfather, she has had various psychological traumas over her life recognised as triggers for alcohol use, and mental illness including anxiety and depression also increased the risk. Severity of alcohol use disorder can compromise any successful treatment. He notes that the current extent of Family Court issues is stressful and traumatising, yet she has abstained from alcohol. That she should continue with counselling, attending at AA, and can perhaps use medications such as Antabuse and topiramate.
The mother was reported to have demonstrated good insight into her problems, and acknowledged that the alcohol use has been a serious problem for her and ongoing abstinence is required. She doubted the need for long-term abstinence. Professor C reiterated that due to the severity of her previous problems, this was required, and at the second interview with Professor D she did not raise this as an issue and seemed to accept what Professor D said. Professor C reports at paragraph 7:
Ms Monroe had severe and relapsing alcohol use disorder with multiple relapses after hospital-based treatment. Accordingly, the risk of relapsing must be considered quite high. I would note that she has now been abstinent for almost a year and this is a very positive step. The natural history of alcohol problems is that relapses are well recognised. Relapse becomes rare (<5%) only when a period of about five years of abstinence has been achieved. Consequently, I am recommending ongoing monitoring for that period (another 3-4 years).
This report is from 2019. We are now in 2021 and some three years have passed.
He further opined that the mother should have a PETH test, the alternative is monthly CDT testing but it is less accurate. Monthly blood tests or hair testing at intervals of three months is also an option. PETH testing is very expensive.
Dr C noted that at the time of the serious incident in January 2018, the mother was prescribed dexamphetamine for presumed adult attention deficit disorder, as well as being prescribed benzodiazepine. Professor D had said that she was psychotic at this time and Professor C had read Professor D's notes. The mother herself told Professor C that in jail she had withdrawn from these drugs and felt much better off without them.
The good doctor reports:
I do feel the role of this cocktail of prescription medications in her episode of psychosis and the behaviour she committed during this period provides a significant explanation as to why this episode occurred and if these medications are not continued, why a recurrence of that psychosis is very unlikely.
Dr C wrote a further report dated 24 April 2021, where he says as follows. That there was testing undertaken by the mother for drugs and alcohol and that the test indicated she had used alcohol in the first half of 2020. The mother told Dr C she had used alcohol in this period and her GGT became elevated in May 2020 before returning to normal in August 2020. Dr C indicated there was a possibility of significant alcohol use in March, April, May 2020, the period of the community lockdown, as did the hair analysis provided for June and July 2020. The mother told him she consumed sporadic amounts of alcohol earlier in 2020, but had been abstinent since June/July. PETH testing had been performed monthly from October 2020 to March 2021 and all results were zero indicating no consumption of alcohol over that period. It is on this evidence that the mother was not abstinent in 2020.
The mother was not at the harmful drinking range according to her hair tests. Dr C said a long period of abstinence in the second half of 2020 and beyond indicates a capacity to control alcohol use for prolonged periods and would be reassuring regarding parenting and other functions. Professor C reports:
The long history of relapsing and remitting consumption raises the concern that further relapse is very much possible. The period of alcohol use in the first half of 2020 is of concern in that this reflects a continuing risk of further problematic use. Any alcohol use, even of a modest amount, is concerning given the context and the expressed desire to maintain abstinence from alcohol in relation to the court matters.
In my 2019 report, I commented that [the mother] was ready to control her drinking but was not ready to commit to long term and complete abstinence.
Taken together, I believe that further use of alcohol is highly likely.
Nonetheless, the progress appears to be favourable overall with long periods of abstinence and shorter periods of alcohol use. For example, the second half of 2020 onwards appears to have been associated with abstinence from alcohol which was achieved without major intervention. This favourable progress indicates that not all alcohol use leads to “relapse” in the sense that is relevant to child protection.
He commented that there should be, due to her continuing use of alcohol, periodic review and monitoring should continue, such as with PETH testing. The mother has agreed to a continuation of this testing.
Going to Professor D's last report, which he completed for these proceedings as his daughter, Ms J, was still on maternity leave. He says as follows: that the mother will resume treatment with Ms J in mid-May, that on the two occasions she presented for review her mental state was found to be stable, hair follicle tests support her being abstinent of illicit drugs, her presenting mental state and general appearance were determined to be consistent with her reports of having abstained from alcohol use. Two clinical areas of concern are grief, not being to contact her son and growing anxiety as the court appearance grows closer.
This was indicative of her currently stable mental health. That the mother is coping with these stressors and in this regard utilises meditation, yoga and Pilates and if there is any contact, Professor D says it should be under supervision.
Going to the reports of Ms G, X’s treating psychologist. Ms G appears to have an excellent understanding of the child. He has attended 20 psychological therapy appointments in 2019, four in 2020 and five in 2021. Her interventions significantly decreased in 2020 and I accept COVID-19 issues in 2020 would have been in part reason for a reduction in face-to-face meetings. Her opinion was that X experienced trauma and distress in his early childhood and that must be correct, related to inconsistency of care and exposure to problematic alcohol use. His symptoms are continuing and significant and the diagnosis is still current.
Ms G opined that X presented with symptoms and behaviour consistent with childhood trauma. It is possible the trauma is a result of his mother's changeable mental health issues and periods of neglect. He showed signs of “insecure attachment behaviour, complex interpersonal needs and ongoing grief and loss issues.” He has symptoms of “disassociation when overwhelmed and ‘shuts down’ when his emotions are heightened.” He has made many significant gains while in his father's care and, in particular, he was struggling at school when living with his mother. He was misbehaving. He could not settle, he was disruptive, he had no friends, a sad, unhappy little boy. Currently he is in a very different position and his capacity to manage relationships in the school environment has been enhanced by consistent care and understanding from the school staff and the commencement of medication, and he is making “positive progress at school and at home”. I would add his capacity to manage relationships has also been enhanced by the exemplary parenting he has received from the father and his partner Ms M as was noted by Dr B.
X’s school reports contained in the father's tender bundle attest to the child making excellent progress at school, coming from a very low base when in his mother's care. Ms G noted when she saw him for two sessions in 2021 he appeared to have regressed:
He appeared uncertain about the future, whether he would remain at his school and whether he would be able to continue his sports. It was initially thought the birth of his younger sister may have contributed to his uncertainty. X then disclosed that he had spoken to his mother (unsupervised) on several occasions while in the care of his grandparents. He was under the impression that she was no longer unwell and would soon be resuming his full time care. X asked questions about whether his father had “really wanted him when he was first born” saying that this was recent information from his mother.
X appeared to be destabilised and confused in January 2021, more agitated in sessions and uncertain about the future. Recommendations were made to protect X from “unsupervised access to his mother, especially considering the risk she posed to his psychological welfare”, and this is correct. I agree with this position.
The mother cannot have unsupervised time with her child. It must be supervised and supervised by professionals who know what they are doing and whose only consideration is to protect the child, for whether the mother said these things to her son or not, he has taken this from her. He is living in an environment where he has spent no time with his mother and an environment where I cannot imagine there are positive things said about his mother, if anything is ever said about his mother. For him, this must be creating anxiety.
To see his mother fortnightly, in a supervised setting where he is protected may be a way to alleviate his anxiety and stress, for he is not being removed from his father's care. He will continue to attend his school, his sporting and other activities, enjoy his father’s love and excellent care of him into the future. None of this is jeopardised by him spending supervised time with his mother.
It may be a positive for X to see his mother in a supervised setting and return to his father. Such a regime may provide him with the security he needs, namely to know how his life is to be continuing to live with his father, Ms M and sister.
The mother has an extraordinarily hard path to navigate in relation to time with her son progressing. The time that the Independent Children's Lawyer is positing is supervised time only. That can only be a short-term measure. Ms Gillies SC and the father were quite properly concerned that the mother would not stay the course, in that she would again become uncontained as the father asserts she has been on the telephone and cause X stress. That may be correct. It may not be. I do not know. The mother may become unwell again, she may relapse, her mental health may suffer, and she may not be able to sustain time at a contact centre. All these outcomes are possible.
However, the mother's progress is positive and nobody can deny that. Just reading Professor D's reports, where she could not even speak to him in February 2018, to being able to have insightful conversations with him in 2019, 2020 and 2021 is testament to that. The mother has had alcohol in 2020 and admitted this, but was not abusing alcohol. After this relapse of about three months in 2020 she again became abstinent and, as Professor C said, these are all positives for the mother. The risk is still there that she could, at any time, fall back into her very damaging and destructive behaviours and addictions. However, for the mother to even contemplate that the child would return to her care in the present circumstances is fanciful as supervised time has yet to begin, is only a short-term measure and may not be able to continue into the future. Thus it is imperative that supervised time goes well and the mother continues to retrieve her functioning so that a court could contemplate unsupervised time sometime in the future provided that was in X’s best interests and he was able to deal with that situation as well.
If, due to the mother's conduct, behaviour or functioning, or X’s reaction to spending time with his mother, time with his mother cannot progress further than supervised time, the Court may face the very difficult decision of making an order that there be no time. That is also a possibility.
The risks for X in not commencing to spend supervised time with his mother:
(1)The risk of not attempting to resume his relationship with his mother and the loss that that will occasion him into the future;
(2)Being denied the possibility of having his mother in his life and the benefit that he obtained from his maternal family, a relationship which the father had encouraged since 2018 is potentially traumatic as he progresses to adolescence and adulthood;
(3)There is a possibility of idealisation of the “lost mother” causing stress to his close and attached relationship with his father; and
(4)He may suffer increased anxiety about his mother, whether he may one day bump into her, whether she may again try to spend time with him amongst many others concerns for him.
The risks for X in commencing to spend supervised time with his mother:
(1)The mother and child commence their relationship at the supervised contact centre, the mother regresses and X loses that time with her. He suffers a second grief and loss of not having his mother in his life and his life becomes destabilised and he suffers emotional harm;
(2)Time with the mother and X goes well, but it can progress no further than supervision and must always be supervised, and the Court can see no way forward from that situation and that an order for no time is made and the grief occasioned to the child from such an outcome;
(3)Time with X and his mother progresses well, X continues to progress well in his father's care, and his father and partner cannot support this positive progression of time and this causes anxiety in the child and he becomes the ham in the sandwich resulting in emotional harm to him;
(4)Time with his mother progresses well, the Court sees the spectre of unsupervised time with the child and the mother as a possibility, a position the father cannot accept or support.
There is no spectre of unsupervised time presently let alone any spectre of the child living with his mother and being removed from his father’s care. If the mother is of a view that this is a potential, she must keep that to herself for the Court cannot see it at this time and to even hint at such a prospect to her child will be the death knell of her embryonic relationship with her son and the Court may have to move to cease her time.
THE CHILD
Ms G recommended X continue with his therapy on a fortnightly basis. Ms G opined as follows, that “He will have ongoing issues related to his early childhood experience”. His “prognosis remains positive, especially if his home life remains consistent, stable and secure” and it will. The father is in a stable, secure relationship. He has a little sister. He is enjoying his school, he is participating in activities, he is becoming, what I think he calls, one of the “good kids” at school, all due to the efforts his father has made. Ms G said:
X has limited capacity to understand and manage his mother's mental health needs and he may be destabilised by any suggestion that his mother will soon resume her care of him or that he will not remain in the care of Mr Collins. Therefore, it is important that prior to any commencement of contact, that analysis of X’s mother's capacity to adequately meet his psychological needs…is undertaken by a registered health provider.
This last recommendation has been carried out by Dr B.
In reality, there is no spectre of this child being removed from his father's care in the near future, if ever, and the Independent Children's Lawyer may feel it important to tell X this. With which parent the child lives is not an issue for this hearing. X resuming a relationship with his mother, his right to a relationship, as provided for under s60B and s60CC(2) of the Family Law Act 1975 (Cth) (“the Act”), provided it is in his best interests so to do, is the gravamen of the issue before me:
Section 60B
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a) Ensuring the children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child
…
Section 60B(2)
(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 to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
…
Section 60CC(2)
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents;…
Dr B was in the unique position to see the family together in his report which was prepared from interviews conducted in October 2019. He saw the father, his wife, X, the mother and the grandmother. X told Dr B, at paragraph 77:
When asked about the best thing about [X’s] mother, he told me, “She was kind and nice.” When asked about the worst thing, he responded, “She wasn’t really that bad.”
At paragraph 84, X told Dr B “that he would like to see his maternal grandmother, Ms H Monroe, together with his Mum. It was agreed that this would occur.”
X agreed to see his mother and grandmother and he had not been prepared for this event given his father and Ms M, the father's partner, were most resistant to X seeing the mother at all.
When asked about his mother at paragraph 75 of Dr B’s report X responded:
She was nice. I loved her a lot. She used to do a lot of stuff with me. She just did some stuff with me, but I can't remember what we did together because it was a long time ago.
When asked what his father and Ms M thought about him seeing his mother he said:
I don't know because we haven't talked about it.
He did not think there would be a problem seeing his mother. He likes his cousin. He likes his grandmother. There was some toing and froing getting X to the meeting as the father and Ms M clearly didn't want him to meet the mother when it was obvious he was in the safest of settings with Dr B being present. Further, when he did see his mother there was no problem for X at the meeting.
Dr B had heard Ms M yelling in the background on a phone call with the father about rescheduling the appointment that she was unwilling to attend with X unless there was a guarantee he would not be seen with his mother. This has little to do with Ms M. She is not his mother or his guardian and it is the father's decision, not hers, although I accept she loves the child and cares for him well.
The father and Ms M were most upset about this, despite Dr B saying he would be guided by X’s presentation whether he saw his mother or not. The Independent Children's Lawyer had to intervene to ensure this event occurred.
The father said that the mother behaved poorly, uncontained and unrestrained, in front of Dr B and thus how could I be certain that she would not behave this fashion at the contact centre? Her uncontained, poor behaviour was seeking constant cuddles from the child or for him to sit on her lap and saying that they would be playing a game soon.
To that end, I was pointed to paragraph 93 of Dr B’s report which is as follows:
Ms H Monroe spoke about his cousins. X asked about Z. Ms Monroe told him, “Mummy misses you so much.” She asked about playing sports and suggested, “We’ll have to have a game soon.”
I cannot see what is improper about that comment or that the mother was behaving badly. It is within the father's capacity at any time to allow the mother and child to see each other as there is no order preventing the father from agreeing to this. I do not see this as bad behaviour, rather the mother not thinking about what it meant to the child if she said they would be playing a game soon and that did not eventuate. It was not child focused and she was not at that point thinking about the impact on X of such a comment, however this was the first time the mother had seen her son in 18 months. Perhaps a forgivable error.
At paragraph 96:
When Ms Monroe again asked X for a big hug in a manner which made him look uncomfortable, the report writer spoke to her outside. Ms Monroe was asked not to repeatedly ask X to cuddle in to her and sit on her lap and to not promise and propose to do things that she was unable to currently follow-up on, such as playing sports. Ms Monroe responded in a tearful manner. She commented, “This is so difficult.”
(Emphasis in original)
This was an extremely difficult time for the mother. The father just has to reverse the situation to know how he would feel. What is important is that Dr B took the mother outside and spoke to her about not making comments such as this in front of the child and repeatedly asking him to cuddle her or sit on her lap and upon her return to the interview the mother’s behaviour was impeccable and entirely child focused and she took on board the advice given to her by Dr B. For example, X asked his mother about whether he could see her at Z's house. The mother responded:
Not at the moment. I do love you.
When X asked when he would come to see her, she responded “I can't tell you when. We're trying to sort it out. I can't give you a time”.
Perfect answers, when prompted by an expert, to refrain from certain comments or behaviours. In a very emotional situation the mother took the advice on board and enacted it. Had the mother continued in her prior fashion after this advice had been given then I too would have been most concerned about her capacity to control her emotions in front of her son.
The father said after the child returned home from the interview the behaviour of his mother as previously described adversely affected him. There could be many reasons for him being affected as such. I note he was not distressed or upset in front of Dr B at the very time these words were said. Perhaps it was the reaction of his father and Ms M that made him upset. I am unable to make a finding as this is an interim hearing. What I do observe is that after this conversation, and what father would describe as uncontained behaviour, X was not upset and gave “big hugs” to his mother and maternal grandmother prior to leaving them, refer to paragraph 101 of Dr B’s report.
At paragraph 103 X told Dr B he “liked living with his dad and Ms M and going to S School.” He was informed this wasn't going to change at present. He responded “So I'm not going to see my mum again for a while? When will I see you again?” and then asked to go back to his home.
An interesting observation was made by Dr B in his report at paragraph 142. He referred to a telephone conversation with Ms G. He discussed the issues for X she had identified in her meetings with him and his emotional and behavioural issues, his inattention, distractability, low frustration tolerance and poor impulse control. Ms G began to provide evidence of an insecure attachment and dissociative phenomena related to exposure trauma.
X thought his mother had been sick, which was an excellent explanation for his father to give him of why he was not seeing his mother if and when he asked. Ms G said that the loss of his mother was often referred to in their sessions and it is healthy he has been encouraged to talk about this with Ms G. Ms G explained she would be guided by the report writer about the appropriateness of X being seen with his mother for the family observation the following day. Importantly, Ms G said although the father had requested that she state that it would be inappropriate for X to be seen with his mother, she was not prepared to do so. This is somewhat damning of the father and shows an inability in the father to focus on X’s right to have a relationship with his mother which is one of the focuses of this interim hearing and the consequences for him of recommencing a relationship with his mother in the most secure of circumstances at every level, physically as well as emotionally and psychologically.
At paragraph 204, Dr B opines, X “spoke positively about residing with his father and stepmother”, nothing he did not like about it. He spoke “enthusiastically about his regular contact with his maternal grandmother and maternal cousins”, which has now unfortunately ceased due to the unfortunate issue about telephone communications which were being undertaken in the absence of the father’s knowledge. This was a very poor parenting decision by the mother and her mother and further supports the need for supervised time.
Dr B continues at paragraph 204:
X was surprised to see his mother. There was nothing he did not like about seeing her. He spoke positively of his memories about her. He spoke of his love for her and desire to re-establish contact. He had no concerns about this. He referred to her by her first name, Ms Monroe, in interactions with his father and stepmother and was observed to be hesitant to speak about her in their presence. The father viewed X’s wish to have contact with his mother as due to his protection from her problematic behaviour. He dismissed [X’s] wishes as he was only eight years old. The report writer respectfully disagrees with this view. At the age of eight, significant weight should be given to his views. That said, he lacked the capacity to make sense of why contact with his mother had been discontinued…
I am not today determining a wishes case. What I take from this paragraph is a missed opportunity by the father with the support of Ms G to give his son a chance to resume his relationship with his maternal family and, most importantly, his mother in a supervised setting. I would have hoped the father could have seen that at this point X was enthusiastic about spending time with and re-establishing his relationship with his mother and her family. There was no problem for this child with that occurring, a recommendation was made to that effect by Dr B yet nothing came of it.
I am now left with a conundrum that the father says the child is anxious because he had telephone time with the mother and I do not know what has changed between the time X saw his mother with Dr B in October 2019 and was quite enthusiastic to resume a relationship his maternal family and his mother and what the father, supported by Ms G, tells me is his anxiety. This conundrum cannot be resolved at an interim hearing. Perhaps the following statements of Dr B provide the answer however I cannot say.
At paragraph 228 Dr B states:
The father and stepmother had actively obstructed the child maintaining a relationship with the [mother]. This extended to their sustained attempt to obstruct her seeing the child during the assessment contrary to the writer's explicit instruction which they later justified but apologised for.
Paragraph 222:
Both the father and stepmother presented without obvious impairment in their mental state or parenting capacity. That said, it was evident that they expected to have their requests complied with. The father was unreceptive to alternate viewpoint, consistent with his narcissistic approach to the family circumstances. He thus was convinced that he had provided what was best for the child. He lacked the reflective capacity to recognise the importance of the child's relationship with his mother. The child had benefited from stability and opportunities provided [by the father and Ms M].
At paragraph 230 Dr B opines:
Although the father and stepmother repeatedly expressed their opposition and distress regarding the mother having contact with the child due to their alleged experience of the mother’s behaviour under the influence of substances their parenting capacity would not be impaired under such circumstances. That said, their resistance to an arrangement inconsistent with their wishes, may be met with resistance, given their desire to maintain control of the child's care.
Ms Gillies SC submitted that Dr B was not aware or did not address issues of allegations of drug abuse and focused only on alcohol abuse and thus the recommendations in his report required testing. I reject that submission for the following.
At Paragraph 226 Dr B says:
The child has experienced an insecure attachment in the context of the mother's disorganised behaviour under the influence of substances.
Dr B was most cognisant that she was both alcohol and drug abusing and uses the word “substances”. He was clearly aware of the substance abuse by the mother as he had read Dr D's reports. Dr D had seen the mother at a very low time in her life, knew the substances she was abusing and the consequence of that abuse for her mental health and functioning.
THE LAW
This is a parenting application and I must have regard to the principles in Goode & Goode (2006) FLC 93-286 and relevant factors in section 60CC(2) of the Act. This is an assessment of risk case and consistent with cases such as M v M (1988) 166 CLR 69 I must weigh up the risk of harm to the child in exercising their right to a relationship with the other parent for the law is clear, a child does not have a relationship with the other parent at any cost to the child.
In McCall & Clark (2009) FLC 93-405 at [117] their Honours quote Bennett J in G and C [2006] FamCA 994 where her Honour concluded that “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child”.
At [122]:
…the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests.
(Emphasis in original)
I have identified the risks to X in commencing and not commencing a relationship with his mother and I will have regard to the risks that have weighed on my mind in this matter.
There is no risk of physical harm to X from his mother as time will not commence at the contact centre and the workers will not permit the child to come into contact with the mother if she is affected by drugs, alcohol or otherwise behaving badly. If that happens, the mother will unlikely be able to retrieve any relationship with the child as the Court cannot have him suffer further grief in losing the chance of a relationship with his mother or for him to experience the uncontained, uncontrolled and concerning behaviour she is capable of.
His father and Ms M do not support the child’s time with his mother and they may not be able to support it into the future given they were resistant to him even seeing his mother at the assessment with Dr B. This may cause significant tension in the household if time continues and it is progressing well, for he will have a positive experience with his mother and go home to his father who has a negative attitude towards her, on justifiable grounds. This may destabilise him. This may cause further behavioural issues and interfere with his very pleasing and positive but slow trajectory into self-regulation. However it is clear the father and Ms M love the child deeply and wish only the best for him and if he is progressing well I would hope that will assist them to support his embryonic relationship with his mother.
The mother and child commence their time at the contact centre. It progresses well, and the mother relapses - alcohol or drugs - time ceases, and he will suffer a second loss of his relationship with his mother and a second grief. This would destabilise the child and may cause regression and is a matter of concern. However, Ms G is working with him and the contact centre and he is well supported in commencing and continuing time with his mother and if the time does not progress well as X and Ms G have a good relationship. Ms G understands the child’s functioning well and, importantly, the father is supportive of that therapeutic relationship.
I do not see the risk of the mother saying something untoward to the child at the contact centre is realistic given that if she did this, the contact centre workers would simply admonish her and/or cease her time with the child and this would be reported. These are trained professionals and they know precisely how to deal with poor parental comments. There are many instances of time being ceased by contact centre workers because of a parent’s poor behaviour. The centre will be provided with a copy of Dr B’s report, the orders I make and a copy of this judgment if they wish and Ms G is working with them.
There is a risk to X of time commencing, progressing well and it ceasing if spending time with her causes him emotional instability or insecurity. This risk has been minimised in that the child’s psychologist, Ms G, will liaise with the contact centre in relation to assisting X should any of these problems resolve. This is something the contact centre has agreed to and Ms G has agreed to and thus there are significant supports in place for X to commence spending time with his mother and for that time to progress well.
The Independent Children's Lawyer may provide the contact centre with any of the reports that have been provided to this Court at this hearing or otherwise. Ms G will liaise with the contact centre workers to inform them of X’s particular vulnerabilities and they will be on high alert for this child. Therefore, I do not see that the mother will be even able to say anything inappropriate to her son, and that is a risk that is just not foreseeable or likely in this scenario.
There is a risk that time with the mother and the child progresses extremely well but at a final hearing I cannot take it any further for a multitude of possibilities such as the reaction of his father to the child spending unsupervised time with his mother, or I am not satisfied his mother has overcome her serious mental health and addiction issues from which X suffered in the past.
However, this is an interim hearing. To deny X the opportunity to re-establish his relationship with his mother in light of the above risks and in circumstances where:
(1)She has agreed to every order the Independent Children's Lawyer has put forward;
(2)Time will be supervised at K Centre, an experienced and highly regarded contact centre in New South Wales;
(3)She is continuing and has agreed to continue the regime of drug testing and PETH testing that she has undergone now for approaching two years;
(4)She has agreed to continue to see her psychologist, Ms J, and any other professional the Independent Children's Lawyer proposes she see including attending any courses contact centre workers may suggest she should attend;
(5)The mother knows if any of her tests come back as positive for drugs or alcohol, her time will be suspended;
(6)Ms G will work with X and the contact centre to support him commencing time with his mother.
I find the risk to X has been minimised in the extreme and his right to be given an opportunity to have a relationship with his mother with that relationship commencing in a safe environment such that the contact centre provides, with the assistance of Ms G, outweighs any potential risks to the child from this time commencing and I will make orders put forward by the Independent Children’s Lawyer and consented to by the mother as I find they are the orders in his best interests.
The world has changed for X and his mother since X came into his father’s care and the past is highly relevant and this is why time with his mother can only be considered if it is supervised at a highly regarded contact centre such as K Centre. The risks to X of spending time with his mother are well known by the Independent Children’s Lawyer and have been addressed by her.
There are risks and hence the position of the ICL to balance the risks with the benefits for X in re-establishing his relationship with his mother. The risks have been minimised if not almost ameliorated entirely by the thoughtful and perceptive orders put forward by the Independent Children’s Lawyer.
There are significant benefits for X resuming time with his mother and that time progressing well. At Dr B’s interview he was very pleased to see his mother, delighted to see his grandmother, talked about missing his cousins and how much he enjoyed spending time with his grandmother. He told Dr B there was nothing that he did not like about seeing his mother. The father may complain that the mother acted inappropriately in front of Dr B however once the mother was told to cease this behaviour she took this advice on board and her conduct thereafter was impeccable. This is precisely how the contact centre workers will operate with the mother and the father. If there is an issue they will take the mother and the father aside if need be and explain to them what the problems are and only if the parents take on board their advice and act appropriately will time continue.
X has a right under the Act to have the benefit and input of both of his parents in his life and to have the benefit of a meaningful relationship with each parent. At this stage he has no relationship or, at best, a minimal relationship with his mother who had been his primary carer. It behoves a Family Court judge to promote a child’s right to a relationship with each of their parents provided the child is not at risk of harm in so exercising this right. I have identified what the risks are and I am entirely satisfied that, if they have been not ameliorated entirely, they have been so minimised that the greater harm is not allowing X a chance to form a relationship with his mother into the future.
The mother knows the consequences of her failure to comply with these orders. I will allow the parties to approach me on 24 hours’ notice if events occur that make these orders unworkable or concerns are raised by the contact centre workers. Both parents will be ordered to attend any course that any of the workers at the contact centre recommend that they attend.
Contact centre workers can be given a copy of this judgment and any of the reports prepared in relation to the mother's mental health and her addiction issues.
In these circumstances I find that these orders provide the balance between the right of X to commence a relationship with his mother, to obtain a benefit from that relationship if the mother continues to retrieve her functioning, and that that benefit and right outweighs any of the potential risks that exist in making a positive order for time between the child and mother.
I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 18 May 2021
Key Legal Topics
Areas of Law
-
Family Law
-
Evidence
Legal Concepts
-
Appeal
-
Expert Evidence
-
Natural Justice
-
Procedural Fairness
-
Remedies
-
Standing