Mort and Bosley

[2018] FCCA 954

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORT & BOSLEY [2018] FCCA 954

Catchwords:
FAMILY LAW – Parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D

Applicant: MR MORT

Respondent: MS BOSLEY

File Number: PAC 1613 of 2011

Judgment of: Judge Newbrun

Hearing dates: 3, 4 April 2018

Date of Last Submission: 4 April 2018

Delivered at: Parramatta

Delivered on: 27 April 2018

REPRESENTATION

Counsel for the Applicant: Ms Santo of Santo Family Lawyers

The Respondent appeared in person

Counsel for the Independent Children’s Lawyer: Ms Conte-Mills

Independent Children’s Lawyer: Mr Meehan of JPM Legal

ORDERS

1. That all previous Orders in respect to the children [X] (“[X]”) born (omitted) 2007 and [Y] (“[Y]”) born (omitted) 2009 (“the children”) be discharged.

2. That the father have sole parental responsibility for the children.

3. That the mother’s consent not be required for the issue of an Australian passport for [X] (“[X]”) born (omitted) 2007 and [Y] (“[Y]”) born (omitted) 2009.

4. That the father keep the mother informed by way of post, of the school in which the children attend, his residential address and significant health issues relating to the children.

5. That in order to facilitate the father’s compliance with Order 4 herein, the mother is to notify the father’s legal representatives of her residential address within 7 days of the date of these Orders and thereafter notify the father by post within 7 days of any change of residential address.

6. That the children live with the father.

7. That the children spend time with the mother as agreed between the mother and the father in writing to be sent by post or email.

8. That pursuant to section 68B of the Family Law Act 1975, the mother is restrained by injunction from attending or coming within 100 meters of:

   (a)The father’s residence; and

   (b)The children’s school.

9. That pursuant to section 68C of the Family Law Act 1975, if a police officer believes, on reasonable grounds, that the mother has breached Order 8 herein, the police officer may arrest the mother without warrant and the mother be brought before the Sydney Registry of the Court or any other court exercising jurisdiction under the Family Law Act 1975, on the first day on which the Court next sits after the arrest, or as soon as practicable after that date AND IT IS NOTED that pursuant to section 122AA of the said Act a person who is authorised or directed by a provision of the Family Law Act 1975, or by a warrant issued under a provision of the Family Law Act 1975, to arrest another person may use such reasonable force as is necessary to make the arrest or to prevent the escape of that person after the arrest.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1613 of 2011

MR MORT

Applicant

And

MS BOSLEY

Respondent

REASONS FOR JUDGMENT

Introduction

1. These final parenting proceedings between Mr Mort (“the father”) and Ms Bosley (“the mother”) relate to the children [X] born (omitted) 2007 and [Y] born (omitted) 2009 (“the children”).

2. The father was born on (omitted) 1967 and the mother was born on (omitted) 1982.

3. Since 3 April 2014, the children have lived with the father and have not spent any time with the mother, save for a few hours on Christmas Day in 2014 with the time being supervised by the maternal grandmother.

4. On 3 February 2015 this Court made interim parenting Orders, inter alia, that the father have sole parental responsibility for the children; that the children live with the father; and that the mother spend time with the children on each alternate Sunday for a period of two hours at Catholic Care Contact Centre (omitted) supervised by a member of the Centre, with such supervised time subject to a regime of urinalysis drug testing in respect to the mother.

5. At this trial the mother was legally unrepresented. The Independent Children’s Lawyer (“ICL”) was represented by Counsel and the father was represented by his solicitor.  Despite the Court’s exhortations to the mother to remain participating in the trial at the conclusion of the oral evidence, the mother did not return to Court after the luncheon adjournment on the second day of the trial, and accordingly did not participate in making her oral submissions to the Court.

The parties’ proposals

1. The father’s proposals are set out in his Case Outline dated 28 March 2018.  Inter alia, he seeks final parenting Orders that he have sole parental responsibility for the children; that the mother’s consent not be required for the issuance of an Australian passport for the children; that the father keep the mother informed, by way of post, of the school the children attend, the father’s residential address, and significant health issues relating to the children; that the children live with the father; that the children spend time with the mother as agreed between the parties in writing, such agreement to be sent by post or email; and that the mother be restrained by injunction from attending or coming within 100 metres of the father’s residence and the children’s school.

2. The mother sought final parenting proposals replicating the Court’s final parenting Orders of 3 September 2013: inter alia, that the parties have equal shared parental responsibility for the children; that the children live with the mother; and that the children spend time with the father, during school term, from after school each alternate Friday to before school on the Monday, and during school holidays, for one half of each school holiday period.

Material relied upon

1. The mother relied upon the following documents:

   a)Her Affidavit filed 21 March 2018.

2. The father relied upon the following documents:

   a)His Affidavit filed 7 March 2018;

   b)Affidavit of the children’s treating psychologist, Ms A, filed 7 March 2018;

   c)His Case Outline dated 28 March 2018.

3. The ICL relied on his Counsel’s Case Outline dated 29 March 2018.

4. The following documents became evidence in the proceedings:

   a)Family Report of Mr J dated 20 November 2015 (Exhibit A);

   b)Blue tabbed documents marked F1 to F11, and red tabbed documents marked 1 to 28, in Sleeve 6, Subpoena to NSW Police (Exhibit B);

   c)Blue tabbed documents in Sleeve 2, Subpoena to NSW Police, marked 1 to 13 (Exhibit C);

   d)Red tabbed documents marked I1 to I9 in Sleeve 3 from (omitted) Hospital (Exhibit D);

   e)Red tabbed documents marked I1 to I20 in Sleeve 1 from the Department of Community Services (Exhibit E);

   f)Bundle of documents comprising a summary of requests for urinalysis and results, letter from ICL on each occasion to the mother in relation to testing, and test results (Exhibit F).

Evidence

1. The father was an impressive witness, but not so the mother.  The mother often presented as hostile.  Her oral evidence was unreliable and, for example, inconsistent with earlier statements made to the Family Report writer.  Her oral evidence pertaining to the ICL’s prior requests for urinalysis testing was opportunistic and lacked credibility.  The mother’s cross-examination of the father, the psychologist and Family Report writer was ineffective.  Where there is any conflict between the mother and the father’s evidence, or any conflict between the mother’s evidence and the psychologist or the Family Report writer, the court prefers the evidence of the father, the psychologist and Family Report writer.

2. The parties commenced living together in about (omitted) 2004.  They separated in December 2009, although they lived under one roof until August 2010 when the father moved out of the family home.

3. The mother has one child of a previous relationship, [A], born on (omitted) 2000.  [A] lives with his biological father and stepmother.  The mother does not spend any time with [A].  The father has a good relationship with [A]’s stepmother.  In January 2018 the father and [A]’s stepmother arranged for [A] to spend time with the children.

4. The father has one child of a previous relationship, Ms S born (omitted) 1994, and she lives in Queensland.

5. The father observes the children to be happy, healthy and well balanced children.  They both attended (omitted) Public School.  The child [X] is in Year 5, and the child [Y] is in Year 4.  Both children are performing well at school.

6. Since early 2017 the children have not made any reference to the mother; the father has not heard the children talk about the mother and the children have not asked the father about her.

7. When the children came to the father’s care in April 2014, he observed that the children were malnourished, had poor personal hygiene, were not well socialised and were not performing well at school.  Since the children have been in the father’s care he has been observant to develop them into well-balanced, settled and happy children.  They have both made groups of friends with whom they socialise readily, and they participate in extracurricular activities, including (hobbies omitted).

8. The father is presently unemployed and is unable to work as a result of a workplace injury that occurred in (omitted) 2012.  He regularly volunteers at the children’s school in the canteen and has done so since about 2010.

9. Since 2013 the father has resided in his home in (omitted).  It is a three-bedroom home with a large backyard.  He occupies one bedroom and the children each have their own bedrooms.

10. Since the children came into the father’s sole care, he has facilitated time for the maternal grandparents to spend time with the children whenever they have requested to do so.  This has occurred on five or six occasions since April 2014.  Recently, the father facilitated time for the maternal grandparents to spend time with the children in January 2018.

11. In early April 2014, the father received a call from a social worker from Family and Community Services (“FACS”) advising him that the mother was in a drug induced psychosis and had been admitted to hospital.  He was told to collect the children from school and take the children into his care.  The children have remained in the father’s care since that time.

12. When the children came into the father’s care, the child [X] told the father that the mother used to punch him in the chest.  He also told the father that the mother was “sick in the head”.

13. In about mid-April 2014, the father had an appointment with “Ms J” at the (omitted) office of FACS.  The maternal grandparents and some other people were also present.  The mother did not attend.  Ms J told the father that the mother had admitted to using the drug ice, and that the mother had told her that she was under the guidance of the Mental Health team.  Ms J stated that, “We are concerned that Ms Bosley’s drug usage is impacting on her mental health.”

14. On 12 August 2014 the father contacted Ms J at FACS.  Ms J told the father that they had closed the case on the mother; that the mother did not want any help; and that they were still concerned about her mental health.

15. The father then went to the children’s school.  When he arrived at the school, the child [Y] was crying and very upset.  She told the father that the mother had turned up at school, that that was the reason why she was crying, and that she did not want the mother to come to school.  This was the first occasion that the child had seen the mother since April 2014.

16. On 18 August 2014 the children told the father that the mother had attended the school again.  Both children appeared scared when telling this to the father.

17. On 20 August 2014 the mother attended the canteen at the school and ordered two drinks.  The father saw the mother and he observed that her eyes were bloodshot.  She appeared nervous and her voice was shaky.  Shortly after, the child [Y] told the father that the mother was at school.  She appeared upset and scared.

18. The children spent time with the maternal grandparents in August 2014.

19. In early December 2014 the mother attended the children’s school when the father was working at the canteen.  The mother came towards the father and spoke to him in an aggressive tone, asking when she was going to see the children.

20. On 18 December 2014, at Court, the mother asked the father’s lawyers if she could see the children on Christmas Day.  This was the first time the mother had made a request to the father’s lawyer to see the children.  The father, through his lawyers, made a proposal to the mother.  The mother agreed to this proposal.  On Christmas Day 2014 the father delivered the children to the maternal grandmother’s home, noting that such time by the children with the mother was to be supervised by the maternal grandmother.  At 6 PM that day the children were returned to the father’s home.  The children told the father that the mother had questioned them about who the father’s girlfriend was and if they wanted to live with her and see her.  The children told the father that they did not want to see the mother.  They asked the father not to make them see the mother again.  They stated that the mother scared them and that something was wrong with her.  They told the father that the mother’s brain was very sick.

21. On 14 January 2015 the mother knocked on the front door of the father’s home.  The mother stated that she wanted to see the children.  The father told the mother that she needed to comply with Court Orders and then she could see the children.  The father went back to the children and saw that they both appeared very scared and shaken by the incident.

22. On 6 February 2015, whilst the father was working at the school canteen, the father was approached by the school principal who told him that the mother had attended the school that day.  He informed the father that he had shown the mother a copy of the Court Orders of February 2015.  He told the father that the mother had been escorted off the school premises.

23. Some days later the mother attended the father’s home and banged on the father’s door.  The father did not answer the door and he called the police.

24. In early March 2015 the father observed the mother in a parked car near the children’s school.  The mother was later escorted off the school premises by the principal.  The father observed throughout this incident that the children were crying and very frightened.  The father contacted the police to report the incident.

25. In late March 2015 the police applied for and an Apprehended Violence Order (“AVO”) on the father’s behalf, listing the mother as the defendant.  The AVO was granted at that time.

26. In early May 2015 the father was driving the children to (hobby omitted) and saw the mother parked in her car. The child [X] had also seen the mother and he appeared panicked and scared.  He told the father that he had seen the mother and he didn’t want her to see him.

27. In late June 2015 the father’s lawyers informed the father that the mother had never attended drug screening as requested by the ICL on 3 June 2015.

28. On 6 October 2015, whilst the father and the children were having dinner, the child [X] said to the father that when he and his sister were living with the mother they were once so hungry that they had to have tomato sauce for dinner as there was nothing else to eat.

29. On 21 November 2015 the father took the children out for dinner.  When they returned home their neighbours told them that the mother had been at their home at 5 PM.  The child [X] asked the father to lock the door so the mother could not come in.  The child [Y] aggressively nodded her head.

30. On 22 October 2015 the father’s former lawyers received a letter from the ICL advising that the mother had attended their office and provided the name of the pathologist who would be conducting the drug screening.  This was done some nine months after the Court Orders of February 2015.

31. On 9 November 2015 the father completed the Kids in Mind course with Catholic Care.  The father completed this course as he was advised by Catholic Care that he was required to complete this course as part of the intake process at the centre.

32. On 30 March 2016, when the father was at home with the children, the mother came to the home and knocked on the door.  The father told the mother to leave and he heard her yell threatening verbal abuse against him.  The children heard this yelling and were crying for the father to call the police to get rid of the mother.

33. On 10 June 2016 the father was advised by Catholic Care that there was availability for the children to see the mother supervised at the contact centre in July 2016.  The father was concerned as to whether the children were psychologically ready to see the mother and he thereafter made an appointment with a psychologist.  In about mid-June 2016 the psychologist told the father that she did not believe it was in the best interests of the children to see the mother.

34. Thereafter, the father consulted his general practitioner and received a referral to see an alternative psychologist, Ms A.

35. Inter alia, since June 2017, the ICL has requested the mother to undertake urinalysis on five separate occasions in July, September, November and December 2017.  The mother did not complete any of the requested tests in accordance with the Court Orders of 21 October 2016.

36. In January 2010 interim parenting Orders were made in the Local Court providing, inter alia, for the father to spend time with the children, and for the children to live with the mother.

37. In early 2010 the child [X] commenced preschool.  Upon attending the preschool to collect this child, the father on some occasions observed that [X]’s clothes were dirty and that he smelled, and was advised by staff that [X] had often been sent to preschool without any lunch.  In 2012 the child [Y] commenced preschool.  Thereafter the father was advised by the preschool that the children were not regularly attending on the scheduled days.

38. In December 2012 the father had arranged with the mother to take the children on holiday.  When the father attended the mother’s home to collect the children the mother refused to let him take the children.  The mother told the father that she would not let the father see the children until the Court ordered her to do so.

39. At the beginning of the 2013 school year, the father volunteered at the children’s school, in their canteen, so that he saw the children, as the mother was not allowing him to spend any time with the children.  Whilst the father was volunteering at the children’s school, he frequently observed that the children were sent to school in their incorrect uniform, that their clothes were dirty and that they smelled.

40. On 3 September 2013, by consent, the parties agreed to final parenting Orders providing that the children live with the mother; and that the children spend alternate weekend time with the father, together with one half of the school holiday periods.  Both parties were restrained from consuming illicit drugs or drinking alcohol whilst the children were in their care.

41. In early February 2014, the father attended the children’s school and noticed that the mother appeared to be under the influence of drugs.  He observed that her eyes were bloodshot and that she was not behaving normally.

42. About two days later, the father attended the children’s school.  He had a conversation there with the maternal grandmother.  She acknowledged to the father that the mother had not slept in over a week due to taking drugs.

43. The father then contacted FACS and made a notification in relation to the mother’s drug usage and the risk to the children.  The next day he attended the local police station and was informed by the police that there had been various police attendances at the mother’s home.  He was informed that the police had concerns for the children’s safety and that an urgent request had been sent to FACS regarding the safety and welfare of the children.

1. On 25 February 2014 the father attended the local branch of FACS and met with a social worker, Ms J.  The father requested that the mother undergo drug testing.

2. On 14 March 2014, whilst the father was working at the school canteen, the children told the father that they had no lunch.

3. The parties have not communicated in relation to the children for four years.

4. Annexure D to the mother’s Affidavit filed 21 March 2018, is page 1 of a Discharge Referral from (omitted) Local Health stating, inter alia, that the mother had been admitted to hospital on 15 April 2014.  She was discharged on 22 April 2014 from the mental health unit at the (omitted) Hospital.  She had presented to the facility by ambulance after an acute decline in her mental state over the previous few days.  It was reported by her adoptive parents that she had been behaving erratically and was not taking her regular medication (Olanzapine 5 mg nocte).  It was reported that she had abused amphetamines and was tested positive “in UDS in hospital”.  The referral stated that the mother had had a short mental health admission in September 2013 with a similar presentation, diagnosed as drug induced psychosis, and had been commenced on Olanzapine.  It was stated that there was “poor compliance to medication, linked to (omitted) Mental Health team”.  The referral stated that the mother had remained “under the effect of overdose of amphetamines”, and appeared to be, inter alia, very sedated and mumbling.

5. In oral evidence, the father confirmed that the children were progressing well.

6. The father confirmed that his last telephone call to the mother was about four years ago.  These calls had ceased, he stated, due to the mother’s verbal abuse towards him.  He had had no text messages or emails from the mother.

7. The father confirmed that the children’s treating psychologist, Ms A, had been seeing the children for some two to three years. They did not see her much now as they were going so well and there was no need to see her.

8. The father stated that when the children were living with the mother he observed a change in the mother, including with her behaviour.  He could see that the mother was affected by something.  He gave as an example one occasion when he saw the mother at Coles at (town omitted), a few months prior to early April 2014, when he observed the mother’s behaviour to be aggressive, and she was speaking very quickly such that he could not understand her.

9. The father confirmed that the children do not speak presently about the mother.  The last time the children raised the mother was about a year and a half ago.

10. The father confirmed that the children see their stepbrother [A] on a fortnightly basis, and the maternal grandparents, the latter usually on their birthdays and at Christmas.

11. The father stated that a few months after separation, there had been an incident where he dropped the children off and the mother was late.  The mother arrived.  She jumped out of the car.  She came up to the father stating that she had been “stabbing pigs all weekend”.  The father stated that he could see the difference in the mother.  The father formed the view that the mother was using ice and that day he went to the police.

12. The father described an occasion when he came to the mother’s residence.  He observed the poor state of the house.  He described it as filthy, with clothes and food all over the place.  He stated that the child [Y] had rats in her room.

13. The father described another occasion when he formed the view that the mother was drug-affected.  He had dropped off the child [X] to the mother’s residence.  The mother had called out from her bathroom.  The mother told the father to get out of her premises.  He observed that the mother’s pupils were dilated, and that she was not the person that he had previously known.

14. The mother was cross-examined.

15. The mother was questioned in relation to her admission to hospital in about April 2014.  She stated that she was in hospital for stress.  She stated that she had used the illicit drug ice to deal with this stress.  She stated that she had only taken the illicit drug ice once before April 2014, in 2013.  Clarifying, the mother stated that she had only consumed the illicit drug ice twice before the trial.

16. The mother stated that in 2014 she had taken an overdose of amphetamines.

17. The mother stated that she had not previously spoken to a drugs counsellor as she did not see the need to do that.

18. The mother confirmed that as at April 2014 she was taking the medication Olanzapine for mood stabilisation.

19. The mother was asked whether after April 2014 she continued to see someone regarding her mental health, to which she answered that she did not have a mental health condition to start with.  She stated that she had attended once, following her admission to hospital in April 2014, to the (omitted) Mental Health Centre, being about a week after that admission.

20. The mother confirmed that in about early March 2015 she had been arrested for breach of an AVO, being an AVO for the protection of the father and children, when she had gone to the children’s school and walked towards the father and child.  She acknowledged that she had breached the AVO.

21. The mother was asked whether she agreed that, in relation to these proceedings, it was inappropriate for her to attend the children’s school.  She answered in the negative.  The mother then agreed that she had heard evidence at trial that the children had a fear of her.  The mother was asked to accept that, given the children’s fear of her, it was inappropriate for her to go to the children’s school without permission of the father or the school principal, to which the mother answered in the negative.

22. The mother confirmed that the final parenting Orders she sought were those Orders made by the Court on 13 September 2013 providing, inter alia, that she be the primary carer of the children and that the children spend time with the father.  It was then put to the mother that should the Court make such Orders, that might have an effect on the children, to which the mother stated that maybe such Orders would have to be implemented gradually.

23. The mother stated that she had complied with the requests that she undergo urinalysis.  When confronted by the ICL in cross-examination that certain urinalysis tests requested had not been performed by her, she agreed that one request had not been performed by her.

24. It was put to the mother that she had not complied with requests (made by the ICL) for urinalysis on numerous occasions in 2017.  When the mother was referred to the ICL’s written correspondence to her of 16 June 2017, sent to her address at (suburb omitted), relating to a request for urinalysis, the mother stated that she was not living at that address. Then the mother was reminded that a further written request by the ICL sent to the mother’ s same address on 17 July 2017 had obviously been received by the mother because she had proceeded to perform the test, although she did not complete the test within the timeframe requested by the ICL.  To this the mother gave no satisfactory answer.

Exhibits

1. The Court does not propose to refer to all subpoenaed records tendered in evidence.

2. The NSW Police records (Sleeve 2) contain an entry for 19 February 2014, referring to the police attending the mother’s residence at (suburb omitted), as a result of a call from a neighbour who was concerned for the children.

3. When the police arrived, the informant neighbour informed the police that the children had been roaming the streets since 8:30 AM.  The informant stated to the police that the children had not been fed all day, and that the mother had gone out shopping.  The informant stated that this was a regular occurrence and that the mother leaves the children outside for the day.  The police spoke to the children and the children informed the police that they had not had any food for the day, and did not want to go home as they were scared of the mother when she was sick.  The police spoke to the mother at length.  The mother told the police that she was receiving care and support from (omitted) Mental Health on a weekly basis.

4. Another police entry for 6 February 2014 refers to the police attending the mother’s residence, in relation to a call from neighbours of the mother stating that the children had come to their home informing them that the mother was sick.  The police spoke to the mother.  The mother told the police that she had ice about three weeks previously and that that was last time she had taken it.  The police observed that the mother appeared to be in a state of psychosis and was delayed with answering police questions.  She was observed to have bloodshot and glazed eyes.  The police spoke to the children, and the children told the police that the mother did not feed them lunch and would not let them go to school.  They told the police that the mother only feeds them breakfast and dinner and does not give them lunch.  The police spoke to a neighbour, who informed the police that the children were often found wandering the streets and that the neighbour would take them in and give them food.  The neighbour also advised the police that when the mother was coming down off drugs she would crash for days and no one knew who was looking after the children.  The police arranged for an aunt to come and pick up the children.

5. Another police entry (Sleeve 6) for 16 December 2013 refers to the police attending the mother’s residence on 15 December 2013.  Attending police were concerned at the fact that the children were not yet in bed at 9:35 PM, their general uncleanliness, the putrid state of the interior of the household, and the mother’s general apathy towards these issues when raised with her by the police.  The mother informed the police that she had been receiving ongoing medical treatment and had been prescribed sleeping tablets to help her overcome her recent insomnia, but did not disclose whether any mental health issues were also being addressed.

6. Another police entry for 11 September 2013 refers to the police attending upon the mother.  Upon arrival the police spoke to next of kin, who informed them that the mother was hearing voices and seeing people who were not there.  This was confirmed when the police spoke to the mother.  Ambulance officers attended and tried to talk to the mother to try to convince her to go to hospital.  Ultimately the police escorted the mother to the ambulance with assistance from the next of kin.  The police escorted the ambulance to (omitted) Hospital with the police scheduling the mother under section 22.  During the time waiting for security, the mother tried several times to escape.

7. The subpoenaed records tendered from the (omitted) Hospital, Exhibit D, Sleeve 3, included a discharge referral for the mother relating to her admission to the hospital on 15 April 2014 and which stated, inter alia:

   [The mother] has had short Mental health admission in September 2013 with similar presentation, diagnosed as Drug induced psychosis & was commenced on Olanzapine 5 mg nocte. Poor compliance to medication, linked to (omitted) Mental Health team.

   Summary of care

   [The mother] … was brought to the [hospital] by ambulance after an acute decline in her mental state for the last few days before admission.The patient remained under the effect of overdose of amphetamines (Positive on UDS), very sedated, mumbling, non-reactive was unable to arouse for the first day and her mental state could not be assessed. …

   … There is no significant evidence of psychotic symptoms and her presentation on admission was under the effect of amphetamines abuse.

   Patient agreed to be compliant with Olanzapine 5 mg once/daily and for a follow-up with (omitted) Mental Health Team.

8. A further document tendered from the (omitted) Hospital (ICL tab 5) under the heading “Mental Health” refers, inter alia, to the mother as,

   Patient teary, little eye contact.Non-cooperative,Aggressive occasionally during conversation.

   Worried about her children coming on Friday to meet her.

   Patient informed about amphetamines + ,but constantly denies.

   … Denies use of ice and speed.

Ms A, treating psychologist of the children (“the psychologist”)

1. The psychologist’s Affidavit, which had attached to it her three written reports, was filed 7 March 2018.

2. In the psychologist’s report dated 17 August 2016, she stated that she first met the children with the mother in 2013, when the family was in crisis.  She stated that the mother appeared drug-affected and had bruising to her face, arms and neck.  The children were dirty, inadequately clothed and hungry.  She stated that at the time FACS was involved as they were supervising the mother due to significant child protection concerns.  The psychologist had made contact with the mother’s case worker and the mother at the time, as the psychologist believed that the mother and the children were at serious risk of harm.  She stated that the mother had left her office after organising for the children to stay with the father for a while.

3. The psychologist stated, in the above report, that the mother returned some weeks later with a very aggressive man.  The mother had introduced this person as her lover and neighbour’s husband.  The mother appeared to be drug-affected, and was screaming and ranting.  The psychologist believed that she was showing signs of psychosis, and referred the mother to (omitted) Hospital Emergency Department for a psychiatric assessment and possible hospitalisation.  The psychologist spoke to the mother’s general practitioner, raising concerns about her mental health and well-being.

4. The psychologist stated, in the above report, that after linking the mother with a network of professionals, the mother returned to her office and was very abusive, screaming and ranting about not cooperating with services and other profanities.  Since this time in 2013 the psychologist stated that she has not had contact with or sighted the mother.

5. The psychologist, in the above report, stated that the children were referred for therapy in July 2016 for trauma experienced whilst living with the mother.  The father was unaware that the psychologist had met the children and the mother about three years previously.  The psychologist disclosed this fact to the father during their initial visit, as the children remembered meeting the psychologist with the mother.  The children were eager to talk to the psychologist about what had changed in their life since their first meeting.

6. On 7 July 2016, the child [Y] told the psychologist that when she lived with the mother, she regularly had no food and was left out all night while the mother had sex and used drugs with men.  She said that she felt scared around the mother because her moods were unpredictable, and she could not tell if the mother was going to be nice to her.  The child was very adamant that she did not want to see the mother because every time they had contact the mother became angry.

7. On the above date, the child [X] stated that the mother was very scary and angry all the time. He stated to the psychologist that he did not want to see the mother anymore because of her drug taking behaviour.  This child talked about the mother having lots of boyfriends that threatened to kill him if he told the father about what she was doing.  This child stated that he was hurt and angry with the mother because she made him feel unsafe.

8. On 18 July 2016, the child [X] talked with the psychologist about how he had been mistreated by the mother.  Examples included being left outside in the dark and cold, and being sent to neighbours to ask for food.  He stated that he was always afraid of being harmed by someone in the dark.  He stated that because of this he could not sleep in the dark and needed to know where his father was.  He also talked about how he was scared of the mother kidnapping him with her bad boyfriends, and that he would never see the father again.

9. On this date, the child [Y] talked about the mother leaving her alone in the dark without food or water.  She said that the mother would spend money on things for her boyfriends and herself, usually alcohol and food the children did not like to eat.  This child was very firm in not wanting to see the mother again.  She believed that the mother only wanted to harm her and was very frightened that she would keep her from the father.

10. Both children talked about having to go and see the mother in a supervised centre.  The children “stated that safe option”.

11. On 8 August 2016, the child [X] told the psychologist that he did not want to see the mother until she was drug-free and stopped hanging around bad people.  The child [Y] supported [X]’s point of view, and contributed that she felt happy that the mother was not calling or visiting them any more. She stated that the mother said mean things and made her feel bad.

12. The psychologist stated that the children did have real fears of being in contact with the mother or being returned to the mother’s care.  She stated that the children viewed the mother as an unsafe person and were afraid of her.  She stated that the children had asked that they have no contact with the mother unless they request it.

13. The psychologist recommended that only four sight visits per year occur with the mother, in a supervised setting.  The psychologist stated that for this arrangement to be overturned, the mother would have to prove that she has been drug-free for a period of twelve months, has stable housing, and is well enough to be a positive role model for the children.

14. In the psychologist’s final report of 28 February 2018, she states, inter alia, that the children have been clients of hers since 2016, and during this time they have repeatedly stated that they do not want to attend a contact visit with the mother.  She states that the children are still feeling traumatised by events that occurred during the time of the mother’s care.  She stated that the children have only witnessed the mother in a drugged state and acting in a threatening way.

15. The psychologist stated that the father was a very supportive father and had encouraged the children to visit the mother.  However, by reason of the extreme distress the children felt, the father had acted in the best interests of the children and not forced them to go.  The psychologist stated that the father had a very strong bond with the children and made them feel safe in his care.  He encouraged the children to participate in extracurricular activities, and to attend all school events.

16. The psychologist finally recommended that the father be granted sole parental care of the children, and that it should be granted that it would be up to the father’s discretion to allow contact with the mother.

17. The psychologist was cross-examined.

18. The psychologist stated that the last time she had seen the children for a consultation was in January 2018.

19. The psychologist stated that the children had come from strength to strength.  They were experiencing no anxiety.  They were happy and contented.  They had a strong attachment to the father.  They had a healthy unit as a family with the father. The children were well adjusted and they held strong views about the mother.

20. The psychologist stated her firm view that the children’s expressed views to her were based on their personal memories and not from what they had been told.  She stated that the children were very consistent in their accounts to her.

21. The psychologist stated that if the Court ordered that the children spend time with the mother, the children would refuse and they would do everything to avoid seeing the mother.

22. The psychologist stated that the children did not accept spending time with the mother at supervised site visits.  The children told the psychologist that they would run away if ordered to spend even unsupervised time with the mother.

23. As to the issue of prospective family therapy with a view to restoring the children spending time with the mother, the psychologist indicated little confidence and remarked that the children were very stubborn in their views.

1. The Court accepts the evidence of the psychologist, including her most recent recommendations contained in her written report of 28 February 2018.

Family Report

1. The Family Report of Mr J (“the Family Report writer”) became Exhibit A in the proceedings.

2. The Family Report writer interviewed the parties and the children in November 2015.

3. The mother was not seen with the children by the Family Report writer.  The Family Report writer stated that when interviews for the Family Report were being arranged, the father was reluctant to bring the children into contact with the mother, stating that they remained in fear of her.  The Family Report writer was informed prior to the Family Report interviews that the solicitor for the father and ICL believed that the children should not be seen with the mother in the first instance.  The Family Report writer stated that after the children and the mother were interviewed on separate days, it was decided not to bring the children into contact with the mother.

4. The father told the Family Report writer that he wanted the children to live with him and to spend time with the mother, “when she starts complying with the Court.”  The father expected the mother to be drug-free, as demonstrated by a series of negative blood tests.

5. The father was interviewed by the Family Report writer.

6. Inter alia, the father told the Family Report writer that until the mother recovered from her addiction to methamphetamine, he would keep himself and the children away from the mother.  He asserted to the Family Report writer that the mother’s ice addiction was severe and that she had severe mental health issues.  He asserted that she had drug induced schizophrenia and was not doing anything about it.

7. The father did not rule out contact between the children and the mother.  He contended to the Family Report writer that supervision was necessary because the children feared the mother and were very reluctant to see her.

8. The mother was interviewed by the Family Report writer.  The Family Report writer stated that the mother presented in a quiet and hesitating manner.  He stated that she provided only brief answers and was not forthcoming when asked to elaborate.  She was, however, cooperative and polite, and gave no indication of being affected by drugs.

9. The Family Report writer asked the mother why FACS had placed the children with the father in April 2014.  The mother stated that the father had made false accusations about her and that consequently the children were taken from her.  She explained that she was not herself at the time and that she was feeling stressed when the father began to make demands on her about the children and their parenting arrangements.  The mother denied using drugs, now or in the past, and said it was because she was “not herself” that FACS intervened.

10. The mother told the Family Report writer that she believed it would be in the best interests of the children if they lived with herself.

11. When the Family Report writer informed the mother that the children had stated that they feared her and did not want to see her, she said that they may have been influenced by the father; if given the chance they would want to be with her.

12. The child [X] impressed as a polite and cooperative eight year old, who was sufficiently competent to be seen alone by the Family Report writer.

13. [X] was asked by the Family Report writer if he thought about seeing the mother.  He answered in the negative and added that he did not want to see her.  He explained that he was frightened of the mother because she hits him.

14. The child [Y] presented, like [X], as a confident and articulate six year old.

15. This child told the Family Report writer that she had become sad when she was living with the mother.  She had had dirty clothes, and the mother never bathed them or took them to school.  This child stated that she would not like to see the mother.  In explanation, she told the Family Report writer that the mother had bad habits, that she would not bathe them or wash their hair, that she had locked them out of the house, that they had had to get food from neighbours, and that they had had to sleep at the neighbour’s home.

16. When this child was asked by the Family Report writer if she was frightened of anything, the child replied that she was frightened of the mother because she thought she was “going to kill us”, but that she was not that frightened because the father would not let the mother.

17. The Family Report writer provided an Evaluation.

18. Inter alia, the Family Report writer stated that the children’s aversion to the mother was clear.  The children had made it plain to the Family Report writer that they did not want to see or encounter the mother, and both said that they feared her.  They showed a strong bond with the father, and there was no indication that the father wanted to appropriate them, apart from wanting to protect them.

19. The Family Report writer stated that if the father’s assertions were correct, then the mother had not been able to admit her addiction, or recognise the impact that her addiction had had on the children.  The Family Report writer stated that his assessment indicated that there was a pressing need for the mother to subject herself to counselling and get legal advice.If she was unable to provide evidence that she had overcome her addiction, or that she was not taking drugs when she was due to spend time with the children, then the terms of the current Order might continue.

20. The Family Report writer’s Conclusion stated, inter alia, that in so far as the children had not been seen with the mother, the assessment remained incomplete.  If the mother could show the ICL that she was addressing her alleged addiction, and that she was psychologically motivated to do so, then an updated Family Report might be ordered with a view to bringing the children and the mother together.  The children should not be denied a relationship with the mother, but they feared her, and for that fear to be dealt with they would need to experience her as a benign presence, consistently and over time.  In addition, the children would need the support and intervention of a therapist to manage their emotional reaction.  And, given the mother’s failure to comply with Court Orders, she might consider submitting to addiction counselling.

21. Under the heading “Recommendation”, the Family Report writer recommended that an updated Family Report be ordered when the mother complied with Court Orders.

22. The Family Report writer gave oral evidence.

23. The Family Report writer confirmed that the mother had denied, when interviewed by him, using illicit drugs, “now or in the past”.

24. The Family Report writer confirmed that he had read the Affidavit of Ms A, the children’s treating psychologist.  He stated that the Affidavit was comprehensive and should be taken into consideration by the Court.

25. The family report writer stated that what the children had said to Ms A, psychologist, was comprehensive and more than what he recorded.

26. The Family Report writer stated that his impression was that the father was genuine in his responses, and was not out to malign the mother or denigrate her.  He stated that the children’s statements to himself appeared to relate to their reality rather than what had been told to them to say.

27. The Family Report writer stated that if the mother could demonstrate that she was not caught up with the drug culture, then the children’s time with the mother could be supervised.

28. The Family Report writer stated that if the mother could not demonstrate that she could put the children first and make them her priority, and given their emotional responses as set out in the Ms A's Affidavit, then further involvement between the children and the mother was inadvisable.

29. The Family Report writer stated that he had interviewed the children alone.  He stated that the children were intelligent and capable, and he had confidence to enter into a conversation with them.  He had asked non-leading questions of the children without putting ideas into their heads.

30. The Family Report writer stated that if the mother could show that she was clearly serious about dealing with her alleged drug problem, then the children would have a right to a relationship with her. 

31. The Family Report writer stated that it was important for the children to have a perception of the mother as a loving and caring adult with their best interests at heart.  This did not exist now.  He stated that when the children had that perception, more substantial involvement could occur.  The children had a fear of spending time with the mother and they needed to see the mother as a benign and affectionate figure that is able to meet their needs.

32. The Court accepts the evidence of the Family Report writer, and accepts his most recent recommendations as referred to in his oral evidence.

Relevant legal principles

1. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.

2. In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

3. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

4. 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: section 61DA of the Act. 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: section 61DA (3).

5. If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

6. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an Order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.

7. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration

1. The children have a meaningful relationship with the father and would benefit from a continuance of that relationship.  The children have been in the father’s primary care since early April 2014, and the children have progressed very well in his care.

2. The children do not presently have any meaningful relationship with the mother.  She has not spent regular time with the children since early April 2014.

3. The children may benefit from re-establishing a meaningful relationship with the mother, provided that they are not exposed to any significant risk of harm in spending time with her.

4. On the material presently before the Court, should the children presently spend time with the mother, whether supervised or unsupervised, the Court is of the view that they would be exposed to a significant risk of harm.  (This is elaborated upon below under the need to protect primary consideration.)  In these circumstances, the children would not presently benefit from re-establishing a relationship with the mother.

5. The evidence of the psychologist and the Family Report writer are consistent with the above views.

Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. There is a need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence if living with or spending time with the mother.

2. With respect to the children prospectively living with the mother or spending unsupervised time with her, the children would be exposed to the significant risk of physical abuse, neglect, and psychological harm.

3. Should the children live with the mother, or indeed spend unsupervised time with her, there would be an unacceptable risk of them being exposed to family violence.

4. The evidence before the Court indicates that the mother has a significant history of illicit drug usage, which likely continues to the present time, with consequential detrimental effects upon her mental health and capacity to function as an effective parent to the children.  The mother has experienced historical adverse mental health relating to her illicit drug use.  There is no persuasive evidence before the Court that the mother has sought to meaningfully address her illicit drug usage.

5. The Court does not accept the mother’s evidence as to only having consumed the illicit drug ice twice before the trial.  The Court infers that the mother’s illicit drug usage has continued to the present time by reason of her failure to comply with urinalysis drug testing as ordered by the Court (see Exhibit F in particular).  Further, in this context, the Court refers to the inconsistent evidence given by the mother to the Family Report writer and at this trial relating to her illicit drug use.

6. The children have been neglected in the mother’s care, the child [X] has been subjected to physical abuse by the mother, and both children have been exposed to the mother’s anger and unpredictable moods.  It is likely that the adverse effects of illicit drug use on the mother significantly contributed to these experiences of the children.  In this context, the Court refers to the children’s accounts to the father, the psychologist Ms A and the Family Report writer.

7. In relation to the significant risk to the children of being exposed to psychological harm, the evidence indicates that the children are fearful of the mother, by reason of their past lived adverse experiences with her, and should they be required to spend time with her, or indeed live with her, there is a significant prospect that they would experience adverse emotional harm.

8. The mother has failed to acknowledge, to date, the extent of her illicit drug use and consequential adverse mental health.  She lacks insight, in this context, as to the real risk that the children would be exposed to harm should they be required to spend time with her, or indeed live with her.

9. With respect to potential supervised time with the mother, whether regular supervised time or limited identification supervised time, the children would be exposed to the significant risk of psychological harm, and the Court refers to its discussion above in this context.  Further, by reason of the mother’s failure to address her illicit drug use and consequential adverse mental health, there is a real risk that the children would be exposed, through spending even supervised time with the mother, to the mother’s previously demonstrated anger, and her unpredictable moods and behaviour.

10. Further, in relation to the children potentially spending supervised time with the mother, in the view of the Court, a significant risk would arise that the mother would not reliably attend upon such supervised time, in particular by reason of her unaddressed illicit drug use and consequential adverse mental health, and her past erratic and unpredictable behaviour, with consequential adverse emotional effects on the children.  In particular, the children would suffer disappointment and increased loss of trust in the mother.

11. The evidence of the psychologist and Family Report writer are consistent with the above findings and views of the Court.

12. The Court gives significant weight to this need to protect primary consideration.

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. Whilst the Court notes the ages of the children, the Court gives significant weight to their expressed views to the father, the psychologist and Family Report writer, in particular by reason of their personal lived adverse experiences with the mother, and their consistent views, held to the present time, that they remain scared of the mother and do not wish to spend time with her.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The Court refers to its discussion above under the primary considerations.

2. Further, the Court notes the children’s positive relationships with the maternal grandparents and stepsibling [A].

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. The father has taken such opportunities.

2. The mother has failed to take such opportunities since the children passed into the primary care of the father; in particular, the mother has failed to comply with Court Orders relating to urinalysis drug testing, which was a necessary condition precedent to spending supervised time with the children.

(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

1. The father has fulfilled such obligations.

2. The mother, it would appear, has not sought to contribute to the children’s financial maintenance since they passed into the primary care of the father in April 2014.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The Court refers to its discussion above under the primary considerations.

(e) The practical difficulty and expense of a child spending time with and communicating with the 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

1. The mother lives in (town omitted) and the father lives in the (omitted) area.

(f) The capacity of each of the child’s parents; and 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

1. The father has such capacities.

2. In relation to the mother, the Court refers to its discussion above under the primary considerations.  The mother’s ability to presently provide for the emotional needs of the children remains adversely compromised whilst her illicit drug use remains unaddressed.

(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

1. The father has demonstrated significant maturity in relation to his primary care of the children, in particular since they came into his primary care in April 2014 to date.

2. In relation to the mother, the Court refers to its discussion above under the primary considerations; in particular, the mother’s failure to adequately address her illicit drug use demonstrates a significant lack of maturity and insight.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: 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 the likely impact any proposed parenting order under this Part will have on that right

1. Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. The father has demonstrated appropriate attitudes to the children and his responsibilities of parenthood.  Unfortunately, the mother has not demonstrated such appropriate attitudes or to her responsibilities of parenthood, and in this context the Court refers to its discussions above under the primary considerations.

(j) Any family violence involving the child or a member of the child's family

1. The children have been exposed to family violence, in particular whilst living with the mother, and the Court refers, inter alia, to the evidence of the father, the psychologist and Family Report writer.

(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: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter

1. The Court refers to its discussion of the evidence above, including the mother’s acknowledged breach of an AVO in early 2015.

(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

1. In the view of the Court, the father’s proposed final parenting Orders would be least likely to lead to the institution of further proceedings in relation to the children, as compared to the mother’s proposed Orders; in particular, the Court refers to its discussion above under the primary considerations.

m) Any other fact or circumstance that the Court thinks is relevant

1. The father proposes a final parenting Order that the children spend time with the mother as agreed between the parties, in writing to be sent by post or email.  In this context, the Court refers to its discussion above under the primary considerations.  Further, the evidence before the Court indicates that should the Court make this proposed Order sought by the father, the father would act protectively towards the children and would not act unreasonably, when considering whether to facilitate time between the children and the mother under such an Order.  The Court is satisfied, on the evidence before it, that the father would facilitate the children spending time with the mother, on an appropriate basis, in circumstances where he was comfortably satisfied that the children would not be exposed to any significant harm in spending time with her.

2. The father proposes final parenting Orders with respect to the mother being restrained by injunction from attending or coming within 100 metres of the father’s residence or the children’s school.  The Court refers to the evidence in these proceedings relating to the mother’s uninvited attendances upon the father’s residence and attendances at the children’s school; it will be in the best interests of the children to make such Order.

Parental responsibility

1. The father has been the primary carer of the children since they came into his care in April 2014, and an effective primary carer.  The mother has spent no regular time with the children since that time.  The parties have not communicated with each other positively for a lengthy period of time.  Whilst the mother’s illicit drug use, in particular, remains unaddressed by her, the father has no significant level of trust in the mother.  The Court is not satisfied that the parties could presently communicate or cooperate sufficiently to enable them to reach agreement on major issues relating to the children in a timely fashion.  It will be in the best interests of the children that the father have sole parental responsibility for the children.

2. At trial, the mother agreed with the father taking the children on holiday to (country omitted) departing Sydney or (omitted) 2018 and returning on (omitted) 2018.  She would not agree to proposed Order 3, sought by the father, that the mother’s consent not be required for the issue of Australian passports for the children.  In view of the Court’s proposed order that the father have sole parental responsibility for the children, it will be in the best interests of the children, in particular, that the Court make an Order, as proposed by the father, that the mother’s consent not be required for the issue of such Australian passports.

Summary

1. Evaluating the above considerations under section 60CC of the Act, the Court is of the view that it will be in the best interests of the children to make final parenting Orders in accordance with the father’s proposed final parenting orders as set out in his Case Outline dated 28 March 2018.

2. In final submissions to the Court, the ICL submitted that were the mother, in the future, to seek fresh parenting Orders in relation to the children (the Court noting that she would need to show a material change in circumstances), she would need to demonstrate to the Court, with appropriate and persuasive evidence, inter alia, that she was no longer using illicit drugs, and that accordingly her mental health was sound; that she had an effective capacity to parent the children; and that she no longer posed a risk of harm to the children.  There is force to these submissions.  The Court respectfully requests the mother to consider and reflect in depth the Court’s above Reasons for Judgment.

3. Finally, the ICL sought an Order for his costs.  Both parties are unemployed, and the father apparently has a concession card; they both have no real capacity to meet a share of the ICL’s costs.  The Court does not propose to make any Order for costs in this respect.

I certify that the preceding one hundred and ninety-one (191) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 26 April 2018