Moran and Temple
[2016] FCCA 1378
•13 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MORAN & TEMPLE | [2016] FCCA 1378 |
| Catchwords: FAMILY LAW – Parenting – one child aged 8 years – child previously spent supervised time with the father – father seeks equal shared care arrangement – equal shared parental responsibility – unacceptable risk of harm – meaningful relationship – the child’s significant others –– best interests of the child – family violence-alcohol and drug abuse-mental health issues. |
| Legislation: Family Law Act 1975(Cth), Part VII |
| Cases cited: Goode & Goode [2006] FamCA 1346 MRR v GR [2010] HCA 4 Starr & Duggan [2009] FamCAFC 115 Heath & Hemming (No.2) [2011] FamCA 749 Re F Litigants in Person (2001) 27 Fam LR 517 McCall & Clarke [2009] FamCAFC 92 M and M (2000) O’Keefe & O’Keefe [2009] FamCA 382 |
| Applicant: | MS MORAN |
| Respondent: | MR TEMPLE |
| File Number: | NCC 772 of 2014 |
| Judgment of: | Judge Middleton |
| Hearing date: | 11 April 2016 |
| Date of Last Submission: | 11 April 2016 |
| Delivered at: | Newcastle |
| Delivered on: | 13 April 2016 |
REPRESENTATION
| Solicitor for the Applicant: | Burke & Mead Lawyers |
| Counsel for the Applicant: | Mr Bithrey |
| The Respondent: | In person |
ORDERS
The mother have sole parental responsibility in relation to the child X born (omitted) 2008 (“the child”).
In exercising sole parental responsibility for the child the mother is to:
(a)Notify the father of the decision she wishes to make;
(b)Ask the father for his views in relation to that decision;
(c)Consider the father's views before making a decision;
(d)Except in the case of emergency, in the event the parents have not agreed as to the decision to be made, within 14 days from the mother's request for the father's views the mother's decision will be final.
The child live with the mother.
Each of the parties is restrained from causing or permitting the child to spend any time with the father.
The mother is permitted to provide the child’s school and other care providers as the case may be with a sealed copy of these Orders.
A passport issue for the child without consent of the father.
A sealed copy of this Order be served upon the Australian passport office.
The mother is permitted to apply for a passport without the need of obtaining the father's consent to the application.
These Orders are sufficient authority for the father to obtain school reports, medical reports and other information from the child's school, treating health care providers and sporting associations at the father's own cost.
The mother must keep the father informed as to the child's treating and other healthcare providers, the school upon which the child attends, and any sporting clubs the child is a member of.
The mother must keep the father informed of any medical diagnosis relevant to the child.
The father contact Relationships Australia within 28 days of today's date with a view to enrolling in and completing the following courses:
(a)A domestic violence course acknowledging himself as the perpetrator;
(b)A parenting after separation program;
(c)Drug and alcohol counselling.
The father undertake (by provision of urinalysis screen in accordance with the Australian-NZ standard 4308:2001) urinalysis for drug screening as requested by the mother, or any solicitor engaged by her, not more than once each month, and for a period of 12 months, and provide copies of the results of the tests to the mother or her solicitor within 48 hours of receipt of same.
THE COURT NOTES THAT:
In the event that the father complies with the Orders contained in Order 12 and 13 above he will not be precluded from commencing proceedings to have the child spend time in his care pursuant to the threshold issues raised in Rice & Asplund.
IT IS NOTED that publication of this judgment under the pseudonym Moran & Temple is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 772 of 2014
| MS MORAN |
Applicant
And
| MR TEMPLE |
Respondent
REASONS FOR JUDGMENT
Edited from the transcript
Introduction
The mother Ms Moran aged 27 is the applicant.
The father Mr Temple is 30 years old and the respondent.
The application concerns parenting arrangements for X born (omitted) 2008.
The parents were in a relationship living together from February 2007 until November 2012.
The mother currently lives with the maternal grandparents and has done so since separation.
The mother has not re- partnered.
The father currently lives with his father. It is not known at the time of trial whether the father is in a current relationship or not.
The issues for determination are as follows:
a) whether the father poses an unacceptable risk of harm to the child due to:
1) drug abuse;
2) alcohol abuse;
3) mental health issues that are not treated;
4)family violence.
b) Whether the child should spend unsupervised time, supervised time or no time with the father.
A short history
The parents commenced a relationship in approximately April 2006.
The parents commenced living together for a brief period in about 2007 at the home of the maternal grandparents.
The relationship was marked with episodes of family violence and is described by the mother as being a volatile one. As a result the parties separated on a number of occasions throughout the relationship.
The parties lived together for the final time from approximately 2011 until September 2012; thereafter they separated on a final basis.
Since separation the mother has had another child namely, Y, born (omitted) 2015.
In 2008 there was a domestic violence incident. On that occasion the father assaulted the mother. The mother applied for and was granted an apprehended violence order issued against the father for her protection.
As result of that incident the father was convicted of assaulting the mother in circumstances where he struck the mother whilst she was holding the child in her arms. The mother’s head impacted with the head of the child.
The father was sentenced and placed on an 18 month good behaviour bond as result of the incident.
There was a further incident of domestic violence in 2011. On that occasion the father returned home heavily intoxicated, an argument ensued between the parties and the father punched his fist into a door on several occasions.
After separation the father was verbally abusive and threatening towards the mother and her family on many occasions.
The father at changeovers would often call the mother names like cunt, slut and dog. He would call the mother those names in front of the child.
The father withheld the child on 2 occasions in 2013.
On 9 February 2013 the father attended the maternal grandparents business and on that occasion threatened to kill the mother, the child and himself.
As a result of that incident on 20 February 2013, a final apprehended domestic violence order was granted for a period of 2 years protecting the mother from the father and naming the child as a protected person also.
On 28 May 2014, Judge Coakes ordered the parents to enrol and complete a parenting after separation course by 30 December 2014. He also ordered that the child spend time with the father supervised by Interrelate at (omitted).
On 10 December 2014 Judge Coakes ordered that the father submit to monthly drug screens in accordance with the relevant standard on the 3rd week of each month commencing 19 January 2015.
On 3 August 2015 Judge Vasta adjourned the matter to final hearing on 20 November 2015.
On 20 November 2015 the matter came before me for the first time and the father did not appear. I adjourned the matter to 15 December 2015 noting that if the father does not attend, the matter may proceed on an undefended basis.
On 15 December 2015 the father appeared on his own behalf and I adjourned the matter to 11 April 2016 for a two-day final hearing. I made orders requiring the parties to file and serve updated trial material.
The mother complied with my trial directions, the father did not.
Throughout 2015 the father failed to comply with requests for urinalysis, failed to attend the Contact Centre to spend time with his son, failed to attend court hearings and ultimately failed to comply with the trial directions of myself.
When the matter came before me on 11 April 2016, the father had not filed any material in accordance with my trial directions. Accordingly the father had no evidence to present before the court.
The evidence
The mother relied upon:
a) Case outline filed 11 April 2016;
b) affidavit of Ms Moran filed 29 March 2016;
c) affidavit of Mr D filed 29 March 2016;
d) amended initiating application filed 13 October 2015.
Both parties required the report writer for cross-examination and sought to rely upon the family report dated 14 May 2015.
There were 17 exhibits tended during the course of the trial.
Competing applications
The mother sought the following orders:
a) that the mother have sole parental responsibility in relation to the child X born (omitted) 2008;
b) that the child live with the mother;
c) that each of the parties is restrained from causing or permitting the child to spend any time with the father;
d) that the mother be permitted to provide the child’s school and other care providers as the case may be with a sealed copy of these orders;
e) that a passport issue for the child without the consent of the father any other person;
f) that a sealed copy of this order be served upon the Australian Passport Office which is requested to give effect to any application for the issue of an Australian passport on the child.
The father sought the following orders:
a) that the mother and father have equal shared parental responsibility for the care, welfare and development of the child X born (omitted) 2008;
b) that the child live with the mother;
c) that the father not consume alcohol for 12 hours before and during the time the child spends with him;
d) that the child spend time with the father:
(1) each alternate weekend from 6 PM on Friday until 5 PM on Sunday;
(2) for one half of each school term holiday period as agreed, and in default of agreement, for the 1st half in odd years and the 2nd half in even years;
(3) for a minimum of 3 hours on the child’s birthday and on the father’s birthday;
(4) from 9 AM until 5 PM on Father’s Day;
(5) for at least 4 hours on Christmas Day; and
(6) any time by agreement
e) failing other agreement the child shall be picked up and dropped from the mother’s home by the father.
The law
Pursuant to section 60CA I must regard the best interests of the child as the paramount consideration.
Accordingly, I must determine what is in the child’s best interests having regard to the objects and principles set out in section 60B of the Family Law Act 1975.
Those objects and principles are as follows:
FAMILY LAW ACT 1975 - SECT 60B
Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that 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; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring 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 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); and
(c) parents jointly 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; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
In determining what is in the child’s best interest I must have regard to the matters as set out in section 60CC namely:
FAMILY LAW ACT 1975 - SECT 60CC
How a court determines what is in a child's best interests
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) 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;
(m) any other fact or circumstance that the court thinks is relevant.
I must also make a determination in relation to parental responsibility. Section 61DA provides a presumption for equal shared parental responsibility unless the presumption does not apply or it is not in the child’s best interests, as follows:
FAMILY LAW ACT 1975 - SECT 61DA
Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
If I make an order for equal shared parental responsibility then the provisions of section 65DAA are triggered namely:
FAMILY LAW ACT 1975 - SECT 65DAA
Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note: Paragraph (c) reference to future capacity-the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
I must follow the legislative pathway as set out in Goode & Goode[1].
[1] [2006] FamCA 1346, 65
In the event that I make an order for equal shared parental responsibility the High Court has made it very clear that I must consider each of subsections (1)(b) and 2(d) of section 65DAA.
In MRR v GR[2] French CJ, Gummow, Hayne, Kiefel And Bell JJ stated:
“Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant"," [i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
[2] [2010] HCA 4
In Starr & Duggan[3] Boland, Thackray & Watts JJ stated :
“…. the legislation does not mandate consideration of the relevant sections in any particular order”.
[3] [2009] FamCAFC 115
In Heath & Hemming (No.2) [2011] FamCA 749, a decision of Justice Kent, His Honour when deciding that parenting case, went on to comment about the decided law in respect of parenting decisions, and also set out an approach to parenting cases, including one involving a proposed relocation. His Honour said, at paragraph 87, the following:
“Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case, including such cases involving a proposed relocation: -
(a) Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U [2002] HCA 36; (2002) 211 CLR 238)
(b) Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra))
(c) Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
(d) In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor [2011] FamCAFC 22; (2011) 44 Fam LR 439 at [142]).
(e) Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).
(f) If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
(g) If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
(a) Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
(b) Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
(h) The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
(i) To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively”.
As previously stated if I make an order for equal shared parental responsibility then the provisions of section 65DAA are triggered. As the High Court said in MRR v GR[4]:
[4] MRR v GR [2010] HCA 4
“This section is expressed in imperative terms.”
In light of those authorities I am of the view that it is appropriate to approach the legislative provisions in this order:
a) First make findings concerning the relevant s.60CC factors;
b) Then consider the presumption in s.61DA having regard to any findings of abuse or family violence and the findings made in relation to s 60CC with regard to the best interest principles;
c) If an order is made for equal shared parental responsibility, then consider whether equal time with both parents is in the child’s best interests and reasonably practicable;
d) If the answer to the above inquiry is in the negative then consider whether it is in the child’s best interests and reasonably practicable for him to spend substantial and significant time with each of his parent’s.
In my view there is a clear legislative intent that children have the benefit of both of their parents having a meaningful involvement in their lives to the extent that it is in their best interests for this to occur.
A summary of the evidence
The father did not challenge the mother’s evidence. It was explained to the father that if he disagreed with any aspect of the mother’s case or indeed her evidence he should ask the mother appropriate and relevant questions.
Prior to the trial starting I carefully explained to the father the trial process pursuant to the guidelines set out in Re F Litigants in Person[5].
[5] (2001) 27 Fam LR 517
I also provided the father with a copy of the relevant sections of the Family Law Act namely section 60CC, section 61DA and section 65DAA.
Notwithstanding those explanations the father declined the opportunity afforded him to cross examine the mother.
The mother gave evidence that she was the primary carer for the child and that there had been very little involvement from the father with respect to the care of the child during their relationship.
The mother said that the parties had reached an agreement towards the end of 2012 for the child to spend time with the father 3 weekends per month from Saturday afternoon until Sunday afternoon. She went on to say that the father rarely spent time in accordance with the agreement.
With respect to family violence the mother’s evidence revealed an assault committed upon her occurring in 2008 and as a result of which the father was convicted placed on an 18 month good behaviour bond.
There were threats, intimidation and violence in 2011 where the father punched holes in a door.
There were many occasions of verbal abuse and threatening and intimidating behaviour post separation.
The father withheld the child on 2 occasions in 2013. The father swore at and abused not only the mother but the maternal grandfather twice in 2013. In February 2013 the father attended the maternal grandfather’s work premises where he again attempted to have a physical altercation with the maternal grandfather and threatened to kill the mother and child and himself.
The father had been placed on a two-year apprehended violence order protecting the child and the mother, that order being made on 20 February 2013.
With respects to drug and alcohol issues, the mother said that the father consumed cannabis on a daily basis when they were together.
She asserted that there were no compliant drug screens received from the father.
She said that she forwarded a request for a drug screen on 30 January 2015 and received no response. A further request on 9 February 2015 and received no response. A further request on the 27 February 2015 and thereafter received a urinalysis result dated 8 May 2015 which had been returned on 30 March 2015 and that the urinalysis did not provide a chain of custody in accordance with the orders made.
A further request was sent on 15 December 2015 with no response.
A further request was forwarded on the 17 February 2016 with no response.
A final request was sent on 15 March 2016 again with no response.
On 15 December 2015 when the father appeared before me I had a conversation with him as follows:
Me: have you been complying with requests for undertaking urinalysis.
Mr Temple: I had been up until a few months ago. It’s just getting in the way of my life to be quite honest. I’ve got a lot of things going on that I’ve got to take care of at the moment. My father has just been diagnosed with cancer, going through chemotherapy. I’m trying to get work. I’ve got a lot of things going on, trying to just balance everything and work things out, and lately, that has been the last thing on my mind. I mean, it’s quite clear that am not on drugs. I’ve passed test after test. I would do one right now if they want to.
I said: unfortunately, Mr Temple. Unfortunately, though, there’s an order made by this court that you must do it when you are requested to do so. That order hasn’t been lifted. That order was made so that the court could determine, based on evidence whether what you say is true, and if you don’t do them, then certain inferences are drawn.
Mr Temple said: yes
I said: and the most likely inference is you’re not doing them because you do not want to be detected having drugs
Mr Temple said: that’s not a problem to me at all. Honestly. Yes.
I said: I understand that, that you understand what I’m saying. You need to comply with that order.
The mother gave evidence that the father attended a drug and alcohol rehabilitation centre in 2006 for his alcohol abuse.
She said the father drank to excess on a daily basis and at times would consume an entire case of beer in one sitting.
She said the father became aggressive when intoxicated.
The maternal grandfather gave evidence corroborating the mother’s version of events in relation to family violence.
He further gave evidence that he had arranged for the father to spend time on a fishing expedition with the child in the supervision of himself however the father contacted him on the day that this was to occur saying that he could not attend due to the weather.
The maternal grandfather gave evidence that the weather was suitable and that he had taken the child fishing in any event.
In the absence of any evidence from the father and in circumstances where the mother was not cross examined, I accept her evidence.
The family report was relied upon by both the applicant and the respondent.
The family report at the time of the hearing was some 11 months old. At paragraph 17 of the family report, the report writer states that the father believes that no problem exists in relation to alcohol or drugs. This is not consistent with the independent evidence contained within the subpoena and more will be said about that shortly.
At paragraph 77 the father told the report writer that he only had “the odd beer occasionally”. Again this is not consistent with the exhibits and in particular exhibits 1, 2, 3, 4, 5, 9 and 11.
At paragraph 83 of the family report the report writer sets out that the father told him he didn’t drink much because he couldn’t afford it.
At paragraph 87 the father again denied a problem with alcohol and drugs. The report writer notes that the father adopted an aggressive attitude and he formed the view that the father may be capable of intimidation and violence in certain circumstances.
At Paragraph 93 the report writer says it is clear the father does not take much responsibility for his own behaviour.
At paragraph 93 he further says that he definitely has difficulty accepting responsibility for his own behaviour. And in that context the report writer was referring to the father.
At paragraph 141 the report writer notes a strong bond between the mother and child that is clearly one of love and trust.
At paragraph 144 the report writer states there is clearly a bond between the father and the child.
At paragraph 145 the report writer notes the feelings between the father and the subject child was strong and genuine and paragraphs 146-150 the report writer notes close loving bond with the maternal grandparents and a strong positive bond with the paternal grandfather.
At paragraph 160, after noting in the previous 2 paragraphs the father’s non-compliance with orders relating to drug testing and in completing parenting programs, the report writer says that the father does very little to impress the court that he has carried out his responsibilities.
It is important to note that at the time the father was being interviewed by the report writer he had attended all but one supervised visit.
At paragraph 107 the report writer says there seems to be no situation that can arise now or possibly in the future with the two parents where they can rationally discuss the welfare and life of the subject child. This is very unfortunate but seems to be of fact in this situation.
Since that report the father appears, based upon the evidence before me, to have relapsed. He has continually failed to comply with orders and he has repeatedly come under the attention of the police due to his intoxication.
He has repeatedly let the child down by not attending the Contact Centre for the purpose of spending time with his child.
In light of that recent history, the recommendations made by the family report writer must be considered in that context. The recommendations are not consistent with the factual matrix as it appears a trial. As a result very little weight can be given to those recommendations. This is not a criticism of the report writer, it is simply a product of the father’s failure to address his issues and fulfil his responsibilities to parenthood.
Exhibit 1 is a COPS entry dated 26 April 2015. The entry reveals that the father was intoxicated and aggressive on that occasion and was taken into custody as an intoxicated person and was released the following morning at 9:30 AM.
Exhibit 2 was a COPS entry dated 11 May 2015 it again reveals the father was intoxicated and came under the attention of the police.
Exhibit 3 is a further COPS entry dated 30 December 2013 it again reveals the father was intoxicated and came under the attention of the police.
Exhibit 4 is a COPS entry dated 19 July 2015. This entry relates to the father’s charge of driving with the mid-range prescribed concentration of alcohol producing a reading of 0.125. The entry reveals that the father had tried to sleep off the effects of his intoxication for some three hours prior to driving on that occasion.
Exhibit 5 is a consultation dated 17 April 2015. The consultation notes that the father has bipolar which was diagnosed 2 years ago together with anxiety. The entry further reveals that the father stopped medication approximately 9 months ago and that he was drinking and smoking. The entry shows that the father at that time was living with the paternal grandfather who it is noted also has a mental condition. The entry finishes with a diagnosis of bipolar affective disorder.
Exhibit 6 is an entry dated 4 November 2014 that reveals that the father was suffering from depression and bipolar relapse.
Exhibit 7 is an entry dated 3 April 2014 which shows the father presented with depression and alcohol abuse.
Exhibit 8 is an entry dated 5 December 2013 with a recording of potential diagnosis for bipolar disorder.
Exhibit 9 is a letter from Corrective Services in relation to a pre-sentence report dated 8 September 2015. The letter reveals that the father provided information that he had been diagnosed with depression and bipolar at age 17. It reveals that he was at that time taking Pristiq 50mg and Volporate 800mg, further that he had not seen a psychologist for 5 years and that he was struggling with alcohol abuse and/or dependency.
The Contact Centre notes exhibited reveal that the father often had no credit on his phone and could therefore not be contacted, didn’t turn up to the Contact Centre and did not contact the Centre to advise them of same and cancelled his contact with the child repeatedly. The notes reveal that the father arrived at the Contact Centre at (omitted) intoxicated and on that occasion told the staff there that he couldn’t cope with supervised time and that he had lost his licence.
Exhibit 12 is a case note from the Department of Justice dated 21 August 2015 it notes the drink-driving charge and confirms a diagnosis of bipolar.
Exhibit 13 is a further case note from the Department of Justice dated 8 September 2015. That case note reveals that Dr K confirms the diagnosis of bipolar with depression and anxiety and that the father ceased medications approximately 9 months ago and confirmed that alcohol is an issue.
Exhibit 14 is a case note dated 24 September 2015 wherein it is noted that the father informed the note taker that he was struggling to get off the alcohol.
Exhibit 15 is a letter dated 7 April 2014 wherein the father is said to be seeking advice with regards to learning skills for managing alcohol and substance abuse.
I am satisfied on that evidence that the father has a long history of mental health issues and long standing history of alcohol dependency.
I am satisfied on the evidence that the father is not complying with the recommendations of his health care providers.
Assessing the evidence against the legislative pathway
The benefit to the child in having a meaningful relationship with both of the child’s parents
In McCall & Clarke[6] the Full Court said:
“the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant”.
[6] [2009] FamCAFC 92
The evidence of the family consultant shows that the child has a strong and loving relationship with both of his parents.
The family report writer provided evidence that the child clearly enjoys his time with his father and that the relationships the child has with his father and the paternal grandfather are particularly important in the life of the subject child.
I must determine whether it is in the best interests of the child for him to have a meaningful relationship with his father.
In determining whether it is in the child’s best interests to have a meaningful relationship, I must consider the other primary consideration contained within section 60CC(2)(b).
It is not in contest that the child should live with the mother nor that the child has a strong bond and a relationship that is loving and caring with her.
It follows that it is in the best interests of the child to continue to have a meaningful relationship with his mother.
The evidence on the face of it supports the child having a meaningful relationship with his father, however I must also consider s.60CC(2)(b).
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Set out previously the mother asserts that there is a need to protect the child as a result of:
a) family violence;
b) drug and alcohol abuse; and
c) mental health issues
Family violence
The evidence referred to above satisfies me that there has been family violence perpetrated by the father against the mother, maternal grandfather and in the presence of the child.
I note what the English Court of Appeal in Re L (contact: domestic violence) VM & H (2001) said in relation to family judges being required to have a heightened awareness of the consequences, including some long-term consequences, on children exposed to family violence.
In M and M (2000), the trial judge recognised the far reaching effects of inter-spousal violence on children when Malone J said:
“the father’s abusive behaviour represents a multifaceted danger for the children. There is a risk of violence to them personally and injury. There is a risk that violence poses when it involves living with fear, insecurity and vigilance. There is the ongoing fear that the father will emotionally or physically abuse the mother they love. There is the danger that E will learn from the father’s abusive behaviour that abuse is part of life for females becomes accepting of such behaviour. There is a danger that both children will come to believe, from the father’s abusive the mother, that woman a lesser beings”.
I am also satisfied that the father’s aggression and violence stems from his alcohol abuse at the very least. It may also stem from his inability to manage his mental health issues and the potential that he is still using drugs.
In those circumstances, I am not satisfied that the family violence perpetrated in this matter is confined to situational couple violence or separation instigated violence.
The police entries referred to above clearly indicate that the father has displayed aggressive tendencies whilst intoxicated and in public.
The family report writer noted that the father adopted an aggressive attitude and that the family consultant formed the view that the father may be capable of intimidation and violence in certain circumstances.
With reference to the family violence best practice principles I note the following.
Both the mother and maternal grandfather gave evidence that the child was present and became upset when witnessing the father’s violent and aggressive actions in 2013.
The mother gave evidence that she is still fearful of the father and that as a result of the family violence perpetrated upon her she wants to have no communication whatsoever with the father. In circumstances where the father has threatened to kill her and the child this is not unreasonable in my view
I note that the family report writer gave evidence that it was clear that the father does not take much responsibility for his own behaviour. I am satisfied that the father lacks significant insight into the effects of his behaviour on the child. I am also satisfied, having regard to the father’s failure to comply with orders requiring him to undertake and complete a parenting after separation program that he is not motivated to address this issue.
The father downplays his role in any family violence and tends to blame the mother and her family for his situation. I’m not satisfied that the father accepts that his violence was inappropriate and neither am I satisfied that the father has expressed any regret or remorse for his behaviour.
It is also concerning to me that the father has shown since June 2015 that he does not have the capacity to sustain an ongoing arrangement to spend time with the child. The evidence clearly establishes that he has either failed to turn up or cancelled times that the child is to spend with him on a regular and consistent basis.
I am not satisfied that the father has any understanding of the impact of this behaviour on the child.
Drug use
With regards to drug use the evidence clearly establishes that the father was consuming cannabis on a daily basis.
The evidence also establishes that the father has failed to respond to requests sent to him to provide urinalysis.
The father’s responses to me on 15 December 2015 where he said that the requirement for undertaking urinalysis “was just getting in the way of his life” reveals a complete lack of understanding as to his responsibilities toward parenting and the need to satisfy the court that his child will be safe in his care.
In those circumstances, I am satisfied that there are reasonable grounds to believe that the father continues to use drugs and even faced with the prospects of spending no time with his child cannot bring himself to address this issue.
Mental health
The subpoenaed material exhibited clearly reveals a long-standing diagnosis of bipolar disorder going back to when the father was 17 years of age.
From 2013 through to 2015 consultations with the father’s doctor reveal that he is suffering from the effects of ongoing depression and bipolar.
The evidence also satisfies me that the father is not seeking appropriate treatment, or if he is, is not complying with appropriate recommendations of his treaters with regards to psychological intervention and the need to medicate.
Indeed the information from Dr K provided to the Justice Department on 8 September 2015 confirms a diagnosis of bipolar with depression and anxiety and that the father had ceased taking medication 9 months ago and that alcohol was an issue.
The father himself on 24 September 2015 when speaking to a caseworker for the Department of Justice said he was struggling to get off the alcohol.
In those circumstances, I am satisfied that until such time as the father properly addresses his alcohol abuse and drug use and Mental Health issues there is an unacceptable risk that the child will be harmed either physically or psychologically as a result of being exposed to the father’s propensity towards violence, intimidation and aggression or neglect as a result of intoxication from drugs or alcohol.
I must then consider what orders I can make in order to protect the child from this unacceptable risk of harm.
As a result of the father’s failure to comply with trial directions, he did not put forward any evidence they could satisfy me that long-term supervision is appropriate and in the best interests of this child.
The evidence that I have before me gives me reasonable grounds to believe that his father is suffering a mental health condition and is currently struggling with his own health concerns relating to a diagnosis of having cancer.
Those factors would preclude the paternal grandfather from being a suitable supervisor absent any evidence to the contrary. Evidence I do not have.
There is no evidence from any contact centre that could satisfy me that there is an ability to facilitate long-term supervision for this child.
In O’Keefe & O’Keefe[7] O’Reilly J said:
“The authorities as to long term supervision are clear in providing that whilst conceptually and in practical terms such may be undesirable, always the children’s best interests is the paramount consideration, such that in cases where the choice is between supervised time between a child and a parent, as opposed to there being no time, there are occasions on which, particularly if there is an established relationship between a child and a parent to be preserved, supervised time should be favoured, even if the order be for long term supervision : see, eg,Moose & Moose [2008] FamCAFC 108; (2008) FLC 93-375 per Boland J at [118]-[119]”.
[7] [2009] FamCA 382
The family report writer gave oral evidence that the father should be given the opportunity to complete courses addressing the issues referred to above and comply with further requests for drug testing. He was of the view that in the event the father completed courses and produced clear drug screens, the child’s time with the father should increase.
With respect to the family report writer, it is obvious that if the father addressed the issues referred to above then it is in the best interests of the child to not only have a meaningful relationship with the father but to spend substantial and significant time with the father.
It was put to him that it would be most unlikely that the father would complete the requisite courses and produce drug screens upon request having regard to his past performance in relation to same.
The report writer stated
“not necessarily. If it were ordered no extra time until it does the course he might”.
The report writer conceded that if the current supervised time continued on the basis that that time would increase and be unsupervised after the father complied with further orders of the court relating to these issues it would create uncertainty for the child and that this would be detrimental to him.
The family report writer also conceded that if the court ordered no time this would create less uncertainty for the child and less detriment to him.
The family report writer conceded that the father’s parenting capacity could be compromised by drug taking, that a cautious approach was warranted when the court could not be satisfied the father was not taking drugs, that there was a risk of family violence due to alcohol abuse and drug taking, and that those risks must be given priority over the relationship between the child and his father.
I have no doubt that the child will suffer loss if I make an order that he spend no time with his father or paternal grandfather.
I also have grave concerns that the child will suffer harm either physical or psychological as a result of being exposed to the father’s violence and neglect.
Section 60CC(2A) provides in applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2) (b).
In weighing and assessing the evidence relating to risk, I am satisfied that the risk of harm to the child from being exposed to violence and neglect outweighs the risk of harm to the child as a consequence of spending no time with his father.
I am also satisfied that this case is not one consistent with the occasions referred to in O’Keefe for an order to be made for long term supervision.
The father has repeatedly failed to attend the contact centre to spend time with his son. There is no evidence before me to suggest that this pattern will not continue into the future.
I am satisfied that to order long term supervision will lead to further disruption, confusion and disappointment for this child and it is therefore not in his best interests to do so.
Relevant section 60CC(3) matters
I am satisfied that the child has a strong loving and caring relationship with his mother and maternal grandparents.
I am satisfied that the child has a loving bond with the father and paternal grandfather. I hope that the orders that I make will ultimately provide sufficient motivation for the father to address all of the issues that I’ve referred to above so that he can begin to have a meaningful relationship with the child.
As previously said it is likely that the child will suffer loss as a result of the change in his circumstances by no longer having the opportunity to spend time with his father, even on a supervised basis.
I note however that there has been considerable frustration in the child spending time with his father at the contact centre and that the father has, for reasons best known to him, failed to attend on a regular and consistent basis.
I am satisfied that the father’s attitude towards spending time with the child has caused confusion and already some loss for the child. It is now up to the father to do all that he possibly can so that his son has the benefit of enjoying a relationship with him in the future.
I am satisfied that the mother has the capacity to provide for the needs of the child including emotional and intellectual needs.
I am also satisfied that the maternal grandparents have the capacity to provide for the needs of the child including emotional and intellectual needs and I note that the child and the mother have lived with the maternal grandparents for most of the child’s life and that the child has a loving strong bond with each of the maternal grandparents.
I am further satisfied that at the current time the father does not have the capacity to provide for the needs of the child including emotional and intellectual needs. I am satisfied that the father lacks insight into his own behaviours and insight into the needs of the child particularly on an emotional level.
I am satisfied on the evidence that the mother has consistently shown a positive attitude to the child and to the responsibilities of parenthood. She has acted protectively and in the child’s best interests at all times.
Unfortunately the same cannot be said for the father. I am satisfied on the evidence that whilst the father clearly loves his child dearly, he has demonstrated an incredibly poor response to his responsibilities of parenthood.
I have already discussed family violence and how this has impacted upon the child.
On the evidence before me to the extent that it establishes that the father does not accept his role in the family violence, is not remorseful and will not address this issue there is a real danger that this child will learn from the father’s abusive behaviour that abuse is part of life for females and that he will become accepting of such behaviour. I am also satisfied that there is a real danger that the child will come to believe, from the father’s abuse of the mother, that women a lesser beings unless the child is no longer exposed to the father’s propensity towards family violence.
I am satisfied based on the evidence that an order that the child spend no time with his father is the order that would be least likely to lead to the institution of further proceedings in relation to the child.
If I were to make an order that supervised time continue and that the father comply with further orders of the court requiring him to undertake parenting programs and provide urinalysis upon request that, based upon his attitude and his past responses to such orders, he would likely breach those orders. That would no doubt result in the mother commencing further proceedings to bring about an end to the child’s time with the father.
It is appropriate in my view to allow the father time to consider my decision and to respond in a child focused way.
I do not wish to make orders that will effectively close the door on the relationship between the child and the father by placing roadblocks in the father’s way.
I will make an order that in the event the father completes a domestic violence course directed at perpetrators of violence, a parenting after separation course and produces chain of custody clear urinalysis over a period of 12 months on a regular basis then he will not have to satisfy me with regards to the threshold issues outlined in Rice and Asplund.
Section 61DA
Having found that the father has engaged in family violence the presumption contained in section 61DA (1) does not apply.
The evidence reveals that the parents have an extremely poor relationship. The mother gave clear evidence that she wishes to have no contact at all with the father.
The father in his submissions conceded that there is no communication between the mother and father.
The family report writer at paragraph 173 said:
“there seems to be no situation that can arise now or possibly in the future with the 2 parents can rationally discuss the welfare and life of the subject child. This is very unfortunate but seems to be a fact in this situation”.
I agree with the family report writer that it is a very unfortunate situation. However I must apply the law in consideration of the present-day factual matrix. It is trite to say that a child would benefit from an order providing that parents have equal shared parental responsibility however that order could not possibly be in this child’s best interests based upon the evidence before me.
I am satisfied that if I made an order for equal shared parental responsibility, the child would be exposed to ongoing parental conflict and that he could be psychologically harmed as a result of that ongoing conflict in his life.
In those circumstances I am satisfied that an order for sole parental responsibility for the mother is an order that is in the best interests of the child.
Whilst I make an order for sole parental responsibility, I am satisfied that it is appropriate for the mother to seek the views of the father before making the final decision and accordingly I will make an order providing for this.
I am also satisfied that it is appropriate for the father to be kept informed of the child’s development. It is important for the child’s future relationship with the father that the father be kept informed as to the child’s progress through school, any health concerns and any achievements that the child might make through his childhood. Accordingly, I will make orders providing for the mother to keep the father informed of those matters and for the father to be at liberty to seek information from relevant organisations at his own cost.
As a result of making an order for sole parental responsibility, the provisions contained within section 65DAA are not triggered.
For all of the reasons set out above I believe the orders that I make are the orders that are in the best interests of this child.
I certify that the preceding one hundred and eighty-seven (187) paragraphs a true copy of the reasons for judgment of Judge Middleton.
Date: 13 April 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Remedies
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Procedural Fairness
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