N and G
[2002] FMCAfam 327
•3 October 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| N & G | [2002] FMCAfam 327 |
| CHILDREN – Best interests – residence – contact – separation of siblings – drug abuse of both parties. Family Law Act 1975; ss.60B(1); 60B(2); 65E; 68F; 68F(2) B and B: Family Law Reform Act (1997) FLC 92 – 755 |
| Applicant: | P N |
| Respondent: | A M G |
| File No: | DNM2001 of 2002 |
| Delivered on: | 3rd October 2002 |
| Delivered at: | DARWIN |
| Hearing Date: | 3, 4, 5 & 27 September 2002 |
| Judgment of: | BROWN FM |
REPRESENTATION
| Counsel for the Applicant: | Mr McBride |
| Solicitors for the Applicant: | Nicholls Gervasi & Co |
| Counsel for the Respondent: | Ms Budrikis / Mr Goldflam |
| Solicitors for the Respondent: | Budrikis & McNamara / Northern Territory Legal Aid Commission |
| Counsel for the child: | Mr Biesse |
| Solicitors for the child: | Povey Stirk |
ORDERS
That the parties share responsibility for making all long term decisions concerning the long term care, welfare and development of the child of the relationship, D J G born 4 December 2000.
That the said child reside with the father who shall have responsibility for the child’s day to day care, welfare and development.
That the mother have contact to the said child, until the child commences school as follows:
(a)in Alice Springs on one occasion in each calender year for a period of two weeks accompanied by the father at a time to be agreed between the parties;
(b)that the father be responsible for all the costs of travel and accommodation for himself and the said child to enable the contact referred to in order 3 (a) hereof to occur;
(c)in Alice Springs on no more than three other occasions in each calender year for a period of at least seven days provided that the child is accompanied to Alice Springs by a person to be agreed between the parties, and on condition that the parties share equally the costs of the travel for the said child and accompanying adult to Alice Springs;
(d)in Adelaide at such other times as may be agreed between the parties, on the mother giving at least 14 days notice of her intention to take such contact in Adelaide;
(e)at all reasonable times by telephone;
(f)at such further or other times as may be agreed between the parties.
That the mother have contact to the said child once the child commences school as follows:
(a)for one half of all school holiday periods with the costs of contact to be borne equally by the parties;
(b)in the event that the mother is in Adelaide, on alternate weekends at exact times to be agreed between the parties provided that the mother gives 14 days notice of her intention to take such contact;
(c)at all reasonable times by telephone;
(d)at such further or other times as may be agreed between the parties.
That the mother be restrained from consuming illicit drugs during any period of contact and for at least 48 hours prior to any such period of contact, and from taking the child to any location where illicit drugs are being consumed or distributed.
That the child representative be discharged from his position on
2 October 2003.That the father attend and complete a parenting course as recommended by the child representative.
That for a period of 12 months that the father undertake regular monthly testing for the presence of illicit drugs and provide the results to the child representative.
That the documents produced under subpoena to the Court are to be returned upon the expiration of 28 days from the date of this order.
All application to be otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNM 2001 of 2002
| P N |
Applicant
And
| A M G |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a sad and perplexing case. It concerns what parenting arrangements will best serve the needs of a child who is currently twenty months of age, namely D J G (“D”), who was born on the 4th of December 2000. The parties to the proceedings are D’s father, P N (“the father”) and his mother, A M G (“the mother”).
Both parties acknowledge that in the past they have each had difficulties associated with the abuse of amphetamines. The central issue in this case concerns how each of them has responded to this difficulty since they separated in November of 2001 and what consequences this abuse of amphetamines has had for the care of D in the past and what is the potential for his care to be affected in the future as a result of drug abuse.
Because of issues associated with the past care of D by his parents, particularly in respect of their drug use, an order was made on the 11th of February 2002 that he be separately represented in these proceedings. As a result a child representative, Mr Biesse was appointed for D.
The father is the applicant in these proceedings. He commenced them in the Family Court at Adelaide on the 7th of November 2001. The mother is the respondent to the proceedings. She lives in Alice Springs with D. On 13th of December 2001, the proceedings were transferred to the Federal Magistrates Court for hearing in Alice Springs. The final hearing of the matter took place before me in Alice Springs on the 3rd, 4th and 5th of September 2002.
Each of the parties has indicated in a minute that has been filed with the Court what orders they seek in respect of D and what is their preferred outcome as to where and with whom of the parties D should live in future. It is the father’s position that D should live with him in Adelaide and have contact with his mother in Alice Springs on regular occasions throughout the year. It is the mother’s position that D should continue to live with her in Alice Springs, subject to her compliance with a number of conditions, namely that she successfully complete a parenting course, undergo regular counselling in respect of her parenting of D and most importantly not consume illicit drugs or expose D to situations where illicit drugs are consumed in future. In order to prove that she had complied with the condition in respect of her abstinence from illicit drugs she proposes that she undergo regular drug screenings and provide the results to the father’s solicitors. She also proposes that the father have regular contact with D during each year.
It is Mr Biesse, the child representative’s position that D should live with father and have contact with his mother on at least two occasions each year. Mr Biesse also seeks orders that would ensure both parties undergo a parenting course and that in future D is not exposed to any potential harm as a result of the consumption of illicit drugs by either his father or his mother.
D has two older half siblings namely J L G (“J”) born 13th of August 1994 and currently eight years of age and L A F G (“L”) born 14th March 1996 and currently six years of age. Neither party seeks any orders in respect of J or L. They are the mother’s children from two earlier relationships. J and L currently live with her in Alice Springs. It is of course implicit in the father’s position that, if successful, D would be removed from having regular contact with his two brothers and the children in effect would not grow up together as brothers.
D has lived in Alice Springs his whole life. His parents separated in November of 2001 when his father moved to Adelaide. Since that time D has lived predominantly with his mother in Alice Springs. His father has relocated to Adelaide permanently and has no plans to live again in Alice Springs. Accordingly the father’s proposal would involve a large degree of change for D and other people, with whom D is largely unfamiliar, would assume a major role in providing for his day to day care.
At the outset I described it as a sad and perplexing case. Mr Biesse describes it as being a difficult and finely balanced one. I agree with that description. Ultimately, what orders are made in the case will depend too a large degree on the assessment that the Court makes as to the success each of the parties has had in grappling with their amphetamine abuse in the past and the likelihood of each of them remaining free of drug use in the future. There can be little doubt that the continued consumption of amphetamines by either of the parties has the potential to expose D to a risk of both emotional and physical abuse. Each of the parties describes themselves as being now drug free and likely to remain so for the indefinite future. It will be necessary for the Court to assess the credibility of each of them in this regard.
The father’s background
The father was born in Vietnam on the 10th of January 1966. He is currently thirty six years of age. He came to Australia as a child during the course of the war in Vietnam and lived with adopted Australian parents, Mr and Mrs N, in Adelaide until he was seventeen years of age. He assumed their surname. His natural Vietnamese parents also immigrated to Australia and they too live in Adelaide. He has regular contact with them and is on good terms with both his Vietnamese and Australian parents. The father has a brother, B P, who was also fostered by an Australian family in Adelaide and he too has assumed the surname of his adopted Australian family. The father is close to his brother, B and his wife, J L P. Mr and Mrs P have one son, M who was born on the 21st of February 1995. They live in Woodville a suburb of Adelaide. The father has lived with Mr and Mrs P since he left Alice Springs alone on the 5th of November 2001. Mr and Mrs P are very supportive of the father in respect of his application for the residence of D.
The father is a commercial chef by trade. He came to Alice Springs about ten years ago and worked as a cook and a labourer in the town. He began a paving business in Alice Springs about five years ago. He has a good work history. He met the mother at sometime in late 1997 and they began to live together in November of 1998.
Since relocating to Adelaide, the father has obtained work as a forklift driver with the Southcorp Corporation, a wine-exporting firm. He plans to stay in this employment.
The mother’s background
The mother was born in Bendigo, Victoria on the 5th of April 1977. She is currently twenty-five years of age. She is the oldest of five children. She left school and home early. Her first child, J was born when she seventeen. J’s father is A W. Mr W has had little, if any contact with J for many years. The mother married L’s father, J G, in Victoria. They separated soon after L’s birth in 1996. He has not seen either L or J for about four years.
The mother has had a tempestuous relationship with her parents, Mr L and Mrs F G. No doubt the instability of this relationship was in part due to the mother’s decision to leave home early and her becoming a parent at an early stage of life. The mother also acknowledges that as a teenager she used a number of illicit drugs including heroin and marijuana. Notwithstanding difficulties in her relationship with her parents, the mother followed them to Alice Springs in 1996 when Mr G obtained a job as operations manager at Imparja Television in Alice Springs. She has lived in Alice Springs since that time with J and L. When the mother met Mr N and began to live with him in November of 1998, J and L also moved in. There can be no doubt that between November 1998 and November 2001, the father was a significant figure in both J and L’s lives. The mother has had some limited work in Alice Springs from time to time at Sahara Tours, at Scotty’s Tavern and at the Red Cross Cafeteria.
The parties lived together at a rented house in B Street, Alice Springs from November 1998 until September of 2001. D was born in Alice Springs on 4 December 2000. J and L have been attending and continue to attend O L S H C, a Catholic Primary School in Alice Springs.
As has already been indicated the parties finally separated on
5 November 2001. At that time they were living with Mr and Mrs G at their home situated at 1 C Court, Alice Springs. At this time the father went to Adelaide and began to live with his brother and sister-in-law, B and J P. D remained in Alice Springs with the mother, as did J and L. The father has had limited contact with D since the parties separated.
Since the parties separated the mother has commenced another relationship with A D S B. The mother is not currently working nor is Mr B. The mother receives a Commonwealth Benefit and some limited child support from J’s father as her sole means of financial support. She receives no child support from the father for D.
Both parties acknowledge that during their relationship they each used amphetamines, although they disagree as to who of them was the major instigator of its use. They also disagree as to the extent of their involvement in the sale of amphetamines during the course of their relationship.
The evidence
Each party was represented by counsel in the hearing before me. Mr Biesse appeared on his own behalf in his role as child representative. As ordered by the Court, both the father and mother filed affidavits of the evidence on which they sought to rely at the hearing. Each of the parties and their respective witnesses was cross-examined by counsel for the other party.
The father relied on the following affidavits filed on his behalf:
i)Of himself filed 13th August 2002;
ii)Of his sister-in-law J L P filed 13th August 2002;
iii)Of R J B filed 13th August 2002.
The mother relied on the following affidavit filed on her behalf:
i)Of herself filed 2nd September 2002;
ii)Of her current partner A D S B filed 2nd September 2002.
Mr Biesse did not file any affidavits of evidence on which he sought to rely. However he did cause subpoenas to be issued to a number of relevant witnesses and these witnesses gave their evidence-in-chief viva voce and were cross-examined by counsel for the other parties. These witnesses were as follows:
i)A B’s mother J M B-P;
ii)The mother’s father L G;
iii)The mother’s mother F A G.
Mr Biesse also tendered into evidence a number of documents that were relevant to the proceedings. These documents included the following:
i)J and L’s school records;
ii)The prior convictions of both parties and Mr B;
iii)Northern Territory Police documents in respect of the parties and Mr B and in particular details of alleged prior criminal behaviour;
iv)The mother’s medical records.
Mr McBride, counsel for the father tendered two publications produced by The Turning Point Alcohol and Drug Centre and The National Drug and Alcohol Research Centre respectively entitled “Getting Through Amphetamine Withdrawal” and “A User’s Guide to Speed”.
In addition the Court was assisted in the determination of the matter by a Family Report that was prepared by Michael Tyrell, a clinical psychologist. Mr Tyrell has experience in treating patients with problems relating to drug abuse.
It is now necessary to turn to consider the evidence in more detail, particularly the evidence of the parties relating to their use of amphetamines both before and after separation. Although I have some suspicions that the father is not completely frank about his use of drugs prior to the 5th of November 2001, I accept that since that date he has been abstinent from all illicit drugs and amphetamines in particular. He has received a great deal of support from his brother B P and his wife J P. However the most important factor in the father remaining drug free has been his resolve to remain so. I accept his evidence that the last time he injected amphetamines was on 2nd November 2001 and that his primary reason for leaving Alice Springs on 5th November 2001 was to be able to move to an environment away from amphetamines and people associated with its use. These are matters to his great credit. It is also clear to me that he loves his son very much and is motivated in this application by what he thinks are likely to be D’s best interests.
Mrs P was an honest and impressive witness. I accept that once the father arrived in her home in Adelaide in the latter part of last year, she watched him “like a hawk” to ensure that he did not take any drugs in her home. Since arriving in Adelaide the father has not completed any specific drug rehabilitation course. However with the support of his family he has essentially rehabilitated himself and passed through the necessary stages of withdrawal from amphetamine use. He has obtained temporary work as a forklift driver and the overwhelming likelihood is that this employment will become full time. It will provide him with a modest but adequate wage to support himself and D.
Both Mrs P and her husband are engaged in full time employment. As a result their son M spends a substantial amount of time during weekdays in the care of his maternal grandmother Mrs R B, who lives fairly close by. If the father is successful in his application, he proposes that D should join M in the care of Mrs B, whilst he is at work. I have no reason to believe otherwise than that Mrs B is a caring and devoted person who would readily and efficiently tend to all of D’s needs both physical and emotional. Mrs P, who is without doubt a competent and loving parent, similarly impressed me. However the fact remains that neither she nor Mrs B has at present any form of relationship with D. To all intents and purposes they are complete strangers to him.
Mrs P and her husband have been generous with their home and resources to assist the father through his drug addiction. In the past they have offered much financial assistance to the mother as well. They have reason to feel that their generous natures have been exploited in the past by the mother. As a result, Mrs P can now see no good whatsoever in the mother. In fact I got the impression that Mrs P loathes the mother and regards her as an incompetent and uncaring mother.
Mrs P has very little direct experience of the mother’s abilities as a mother. She has only met her and D and the other children on one previous occasion. That was at Easter of 2001 when the mother and father visited Adelaide with the children. However Mrs P was able to give evidence that was strongly suggestive of the fact that the mother was at that time in the grip of a significant amphetamine addiction and that this addiction was having an adverse effect on her ability to adequately parent not only D but also J and L. I accept that when the mother first arrived in Adelaide and during her stay there she spend substantial periods of time asleep.
It is not necessary for me to make any findings as to which of the parties introduced the other to the use of amphetamines during their relationship or whether one or other of them was more involved in its illicit sale than the other. In my view, the evidence is clear that they both began with a casual use of the drug and that this use escalated during the course of 2001 and that both of them were involved with its sale to other users to finance their own use. Their chief method of use of the drug was by intravenous injection. It also seems clear that the relationship between the parties also began to breakdown during this period and they began to verbally argue with one another more and more.
The use of drugs also resulted in an almost constant state of financial crisis during the latter part of 2001. The mother gave evidence, which I accept, that she and the father were using up to a gram of pure amphetamine a day during this period. The minimum cost of such a gram is about $100.00. On any view they each had a significant habit. They were selling to other users and these users came regularly to their home to inject amphetamines. The mother admitted that she and the father had a $1,000.00 per week habit and were forced to sell amphetamines to fund their own use. I accept that neither party nor any other visitor injected in the direct presence of any of the children.
However the mother shows, in my view, a singular lack of insight into the potentially deleterious consequences of her use of amphetamines on her ability to adequately care for her children when she deposed that their use enabled her to stay awake for long periods of time and enabled visitors to her home to play animatedly with her children when under its influence. She also quite frankly admitted that her primary motivation for taking amphetamines was to have fun. She described life at B Street when she and the father were living there and regularly selling amphetamines as “a party behind four walls”. The party came to an end when she and the father came to the notice of the Police.
As a consequence of this and other evidence that relates to the period of time after she and the father separated, I formed the view that the mother believes that she can stay in control of her amphetamine use and avoid the more serious consequences of its use. I believe that she thinks that she can easily be a social and casual user of amphetamines. Although I accept that she is in the main an honest witness who was at times disarmingly honest about her drug use in the past, I formed the view that she did from time to time attempt to minimise the difficulties she had had with amphetamine use in the past. She also seemed to me to be somewhat headstrong and immature. Certainly she does not take kindly to being given advice about her drug use and it seems to me she is markedly reluctant to undertake any form of drug rehabilitation course in future. She quite frankly said that she had problems with her life when people “poked their noses into it”. Accordingly I have grave concerns about her current stated desire to remain drug free for now and the future. The mother struck me also as being somewhat emotionally fragile. I consider that in such a state she is particularly vulnerable to future drug use. I am not altogether convinced that she has any great degree of insight into her vulnerability in this regard and of how easily she may fall into heavy drug use again and of the inevitable consequences of this on her ability to be an adequate mother. In this regard her unwillingness to undergo any form of rehabilitation is a matter of grave concern to me. The mother states that she has made inquiries at the Holyoake Centre regarding drug counselling for herself in Alice Springs. However the fact remains she has done very little about this. She has seen a counsellor at the Alice Springs Hospital but apparently had a falling out with him.
I have no doubt that 2001 was a difficult year for both parties, but particularly the mother. In July of 2001 her general practitioner, Dr Ingamells diagnosed that she was suffering from depression and prescribed anti-depressant medication. The parties’ use of amphetamines increased. Things came to a head in August of 2001 when both of them came to the notice of the police as a result of one of their customers paying for some drugs with property that had been stolen. Their home was subsequently searched by police and a number of stolen items were found there, as well as a quantity of amphetamines. It seems that a visitor to their house had used it to store stolen property that had been burgled from homes in Alice Springs. As a result, both parties were charged with possession of amphetamines and self-administration of amphetamines. On 23rd of August 2001 both the father and the mother pleaded guilty to these offences and each was fined the sum of $800.00. The drugs that had been seized by the police had been purchased on credit. Accordingly this placed both the mother and the father under some pressure from those who had supplied them with the drugs to make good the loss. The incident serves to underline in my mind the criminal milieu into which both the parties had fallen. They were also considerably behind in their rent. It seems to me that they were both to some extent teetering on the edge of the abyss.
The father seems to have had more insight into the difficulties that the couples’ use of drugs was causing them. He realised that the most effective way for them to break the cycle of drug use was to leave Alice Springs behind them and its associations for them with drugs. The father initially and then the mother exploited the concerns of Mr and Mrs P in respect of their drug use and associated financial difficulties and borrowed a sum of approximately $17,610.00 from them in order to pay outstanding rent, car payments, their fines, the money owed in respect of the drugs purchased on credit and other recurrent expenses.
The Ps were anxious that the parties should be in a position to clear their debts in Alice Springs and then move to Adelaide to start again with the children. Mr and Mrs P offered to help the parties with accommodation in Adelaide and access to possible rehabilitation treatment. This was generous and well-meaning conduct on the part of Mr and Mrs P. To my mind both parties behaved disgracefully in respect of the money advanced by Mr and Mrs P. However the mother was particularly disingenuous in respect of what she told them regarding her intentions of moving to Adelaide with the father.
The parties were evicted from their rented property at B Street in September. As a result they were forced to seek accommodation with the mother’s parents at their home at 1 C Court, Alice Springs.
I accept that during the period prior to the parties separating in November of 2001 that the mother and the father were able to jointly meet most of the needs of the children concerned whilst the family was living in B Avenue, Alice Springs. The father, to his credit, describes the mother as being a good and caring mother prior to being overtaken by her use of amphetamines. I also accept that the father was involved to a large degree in the care of each of the children.
In the latter stages of the family’s residence there, as the parties’ drug use increased and their financial insecurity grew, there was increasingly worrying evidence that this was not a suitable place for the children to live and the standard of their care suffered. It also seems to me that their relationship became an increasingly volatile one.
In this regard, in my view, there is evidence that tends to show that the parties were not coping particularly well with the care of three young children at this time. In the school records in respect of J and L are indications from their teacher, a Ms Reinhard, that J was regularly late for school and was dirty and unkempt and that he did not attend school with lunch or other necessary supplies. Ms Reinhard described J as smelling of cigarette smoke and having great difficulty concentrating in class. Whether Ms Reinhard is unduly fastidious, I do not know. However in my view it would be imprudent of me to discount her observations, particularly when coupled with each of the parties’ acknowledgments that this was a period of time when their lives were increasingly out of control. The only reason that can be given for this instability is their use of amphetamines and the particular lifestyle that went along with that.
Mr and Mrs G gave evidence that the time the parties spent with them between September and November at their home in C Court was a “horrible” one. The parties constantly argued with one another. Whether this violent emotional instability was as a result of amphetamine use or the increasing estrangement of the parties is impossible to determine. There was uncertainty as to whether they were going to Adelaide as a family or not. Both Mr and Mrs G considered that it would have been in their daughter’s interests to go to Adelaide to have a fresh start.
However ultimately the father went to Adelaide alone as the mother continued to prevaricate. With the assistance of Mrs P he arranged air travel for himself and D to Adelaide from Alice Springs on the 5th of November 2001. He intended to travel clandestinely to Adelaide with D and present the mother with a fait accompli in regards to his relocation. Although I appreciate the difficulty that he felt that he was in, in that he regarded both himself and D as locked into a cycle of dependency which only moving away from Alice Springs would break, this action does him no great credit. In any event the mother got wind of the scheme and confronted him at the Airport and on this he returned D to her.
D has remained in the care of the mother ever since. The father, as has already been indicated, commenced these proceedings within days of his arrival in Adelaide. For reasons that have already been provided, I accept that he has successfully abstained from the use of amphetamines since he left Alice Springs and is essentially rehabilitated. I was impressed with his resolve to remain drug free in future and of the support he has received and can anticipate continue to receive from Mr and Mrs P and other members of his Vietnamese family in Adelaide. It seemed to me that the father does have considerable insight into the difficulties that his past use of amphetamines has created in his life and the lives of the children concerned particularly D. True it is that the father has not had the pressure of having to care for three young children whilst he has rehabilitated himself, but the fact remains that he has been able to remain drug free since he left Alice Springs. My assessment of him is that with the support available to him in Adelaide that he will be able to remain so.
I am confident that the accommodation available to him at Mr and Mrs P’s home is adequate to provide for D’s needs. However the father is probably being unduly optimistic in his belief that he will be able to purchase a home for himself and D in the foreseeable future. Although I accept that the father played a significant role in D’s care whilst he was living in Alice Springs the fact remains that he is largely untested in the role of being a working and single parent and too a large extent, if he is successful in his proposal, much of the burden of caring for D will devolve onto others.
It is now appropriate to turn to the mother’s evidence and in particular her involvement with amphetamines since the father left Alice Springs in November of 2001, her living arrangements since that time and other matters that give rise to some concern regarding her ability to adequately parent D. This will involve an analysis of the evidence of not only the mother herself but also of her partner, A B, his mother Mrs B-P and particularly Mr and Mrs G.
The mother concedes that the past ten months since the father left Alice Springs have been chaotic for her and that she has had difficulty finding and maintaining accommodation for herself and her three children. Throughout this period she has been reliant to one degree or another on her parents for support. She has continued to have difficulty in budgeting.
Following the departure of the father for Adelaide, on the 28th of November 2001, the mother attended for the first time at the Central Australia Alcohol and Other Drugs Service (“CAAODS”). She reported to the counsellor there, a Mr Jamie Broadfoot, that she had had a three-year habit of daily intravenous drug use which had culminated in the use of 1 gram of pure amphetamines each day for the past three months. She also reported that she had been going “cold turkey” for the past five days. Mr Broadford recommended random daily urine screens to assist her with her resolve to remain drug free.
In December of 2001 whilst the mother was living with her parents, she stole her mother’s chequebook and forged a number of cheques using her mother’s name. Seven forged cheques in all were presented. The mother presented the cheques at supermarkets after purchasing a small amount of groceries and asked for the balance of the cheque in cash. As a result of this conduct she came to the notice of the Police. However her mother elected not to press charges. Her mother bore the loss resulting from the forged cheques, an amount of $750.00. This petty criminal behaviour does not sit easily with a person who reportedly wished to remain drug free.
Between the time the father left Adelaide and February of 2002 the mother lived briefly with a friend at 14 P Crescent, Alice Springs, with her parents at their home and in privately rented accommodation at M Crescent in Alice Springs. Despite the chequebook incident it seems that her parents remained willing to support her although I believe their chief motivation was the welfare of J, L and D. Mr and Mrs G were always willing to assist the mother with the care of the children at short notice and the mother was always willing to avail herself of this assistance.
The accommodation at M Crescent proved too expensive for the mother and as a result in February of 2002, she moved in with her boyfriend A B at his home situated at 2/2 W Street, Alice Springs. Premises that he rented from his mother. It seems that the mother had only fairly recently begun her relationship with Mr B.
Mr B gave evidence in these proceedings and was extensively cross-examined by both the child representative and counsel for the father. In addition, records in respect of his recent dealings with the Northern Territory Police in Alice Springs were tendered to the Court. Mr B made no bones about the fact that he was recovering from a severe and debilitating addiction to amphetamines at the time he gave his evidence. His evidence was that he and the mother had been mutually supportive of each other during their joint withdrawal from amphetamines from January of 2002 onwards. In his case the process of withdrawal had been particularly difficult. He testified that he had not used amphetamines since January and had not seen the mother use.
Mr B has some prior convictions in respect of the possession and use of drugs. On 11 November 2001 he was charged with the possession of cannabis and amphetamines. He was fined in respect of these offences. In late November of 2001 his premises at W Street were raided and searched by police. At that time 667.7 grams of cannabis and 20.1 grams of amphetamines were found together with a set of scales. The police apparently accepted that the amphetamines belonged to another person. Mr B was charged with the supply and possession of cannabis, possession of the proceeds of crime and some minor firearm offences. He received a suspended prison sentence and was fined.
I found Mr B to be a quietly spoken witness who gave his evidence flatly, without any emotional overlay. This was in marked contrast to his mother. He also seemed to me to be somewhat emotionally fragile. I formed the view that his rehabilitation was far from complete, although I wish him well with it. In this regard it is important to note that Mr B has been unemployed for sometime but has not been in receipt of any government benefits. He indicated that although he had completed the necessary forms he had not as yet been able to organise himself sufficiently to return them to Centrelink. He blamed this on his low self-esteem and a level of general lethargy that he had been feeling during the process of his withdrawal from amphetamines. To my mind this apparent level of paralysis in respect of something so fundamental as social security payment is eloquent testimony to the extent of his amphetamines addiction.
As was to be expected he spoke positively of the mother’s abilities as a mother and a parent describing her as being very caring and attentive to her children’s needs. He also deposed that he had noted a marked improvement in her mood during the time he had known her, which he admitted, was quite brief. He described the period during which she was apparently withdrawing from amphetamine use as being characterised by lethargy, mood swings and negative thoughts. He described her as having a self-destructive nature during these periods. It was his understanding that she was suffering from depression.
There were a number of aspects of his evidence that caused me concern. I accept that it is difficult matter to withdraw from a high level of amphetamine use. However it is also easy for Mr B to assert that he is now drug free, especially in the context of proceedings such as these, where his successful rehabilitation is likely to be a necessary prerequisite to the mother being successful in her application. Like the mother, Mr B has had only limited drug rehabilitation. He blames this on the lack of suitable facilities in Alice Springs and deposed that he was able to manage himself through the process of withdrawal. It was also my impression that life at the W Street unit, whilst the mother and D in particular, were living there was chaotic and too some extent the premises remained the habitue of drug users. This certainly is the position of Mrs B-P, to whose evidence I will turn in a moment.
On 31st January 2002 Police searched the premises at W Street again. During the course of the search the police located some cannabis, five mogadon and valium tablets and a prepared syringe. No charges were laid against Mr B. The police accepted that neither the syringe nor the cannabis was associated with him. The premises were searched again on 21 March 2002 but nothing untoward was found.
On the 12th of April 2002 the mother called the Police to the unit at W Street in respect of concerns that she had about a man who had apparently tried to break into her yard. This person complained to the Police that the residents of the unit owed him money.
Of most concern is the fact that on the 8th of July 2002 Mr B was charged with the possession of amphetamines when he was apprehended by Police in the early hours of the morning outside a block of units in Alice Springs. A bum bag he was wearing was found to contain some white powder and syringes. In his evidence Mr B indicated to me that neither the drugs nor the bag were his and that as a result he was unaware of the contents of the bag. I must say that I find this particularly unlikely. Mr B was due to appear before the Court of Summary Jurisdiction in Alice Springs the day after his evidence before me and I am not aware of the result of the charges that were laid against him. However if, as I suspect, he was aware of the drugs, this does not speak well of his drug rehabilitation or of his likely influence on both the mother and her children. It is a matter of great concern to me. His explanation for having someone else’s bag which contained the drugs was that following an argument with the mother he grabbed the bag without thinking and went out on his bicycle to see some friends and to cool down. I find the explanation particularly lame. However it is something of a double-edged sword, for if true, it indicates that the mother and he are still associating with amphetamine users and are as a result still subject to influences that may lead to their resumption of drug use.
Mr B’s mother, Mrs B-P was called to give evidence. Her relationship with her son is strained. There was no disguising her antipathy towards the mother. In fact I formed the view that her evidence was calculated to cause the maximum discomfort to the mother and her hopes of retaining D to live with her. Out of concern for her property at W Street and because Mr B was behind in the payment of the rent, she was a frequent visitor to the unit in W Street whilst the mother was living there. She did not paint a very attractive picture of life there. She deposed to an untidy and unsanitary unit and one that was frequented by people whom she regarded as unsavoury. She was forced to evict the mother and Mr B from the unit on twenty-four hours notice. Although I accept that her evidence was highly influenced by her palpable dislike of Ms G, it still gave me cause for concern. In particular she deposed to visiting the W Street unit and finding J and L unsupervised whilst their mother was in bed, apparently unable to be roused.
It is the mother’s case that she has significantly curtailed her amphetamine use since the father left Alice Springs for Adelaide, to such an extent that she is essentially abstinent from drugs. It is the assessment of this evidence that is the central issue in this case.
Unfortunately the mother had a falling out with Mr Broadfoot, the counsellor she saw at CAAODS and who had recommended that she undergo regular random drug screens. On the 11th of February 2002, as a result of the concerns of the father regarding her drug use, the Court also ordered that the mother undergo “regular testing for the presence of illicit drugs by way of urine analysis and also provide the results of such testing to the solicitor for the father.” The mother compliance with this order has regrettably been somewhat wanting. She was able to provide drug screens for 27th November and 18th of December 2001 and then nothing until 27th August 2002, shortly prior to this hearing. This causes me a great deal of concern. I have no doubt that the mother is well aware how long traces of amphetamines are likely to remain in her urine following use by her. The period is about 48 hours and in extreme circumstances 72 hours. I would have also expected that given the mother’s situation, if ever she was going to remain drug free, it would have been in the context of these proceedings regarding the care of D.
In her evidence the mother said that following a binge over Christmas, when she had been “drowning her sorrows”, she had injected amphetamines only four times since Christmas of 2001. This was on one occasion in March, two occasions in April, including her birthday as a “present” to herself and most recently about four weeks ago.
The mother gave a number of what I regard as fairly lame excuses for failing to provide the drug screens. Her excuses include that she did not have a car; that she was lazy; that she was depressed and that she had known that she would fail the tests and could not see the point of confirming this. All these matters caused me to harbour grave suspicions that the mother’s drug use was more than she was prepared to admit. I also formed the impression that if the mother found herself in a situation that she found difficult that she may liable to relapse into drug use. It confirmed my view that she is somewhat emotionally vulnerable.
Following her forced eviction from the unit in W Street, the mother lived briefly in premises situated at B Drive, Alice Springs. She was forced to leave these premises when there was an unfortunate incident involving Mr B and the owner of the house, a Mr V, who attacked him with an axe. I accept that Mr V is mentally ill and at the time was suffering some sort of psychotic episode and that no blame can be attached to either the mother or Mr B for it. L and J were staying with Mr and Mrs G at the time and it seems that due to difficulties the mother was having in finding accommodation, they have been spending more and more time living there with them. Most recently the mother and Mr B have also moved in with Mr and Mrs G.
The mother attached copies of J and L’s school reports to her affidavit. The reports for the first semester of 2002 indicate that both children have been regularly late to school and that this has had some consequences for the children’s work at school. I do not believe that this lateness can be sheeted home to either Mr or Mrs G and the times that J and L have been in their care.
The mother is currently in receipt of a supporting parent benefit. She also receives some child support from L’s father. Mr B has indicated that he will apply for some form of government benefit shortly. He wishes to return to study. In the past, prior to his drug addiction he had a worthwhile career in aged care. His mother describes him as being adept with children. The mother deposed that she wishes to break the cycle of her drug use. In future she wants to obtain her own accommodation for herself the children and Mr B but at the present time she has no concrete plans in this regard. I have formed the impression that she is still living from day to day to some extent. She is grateful for the support her parents have given her to date, however she described her relationship with them as being “on and off” and “hot and cold”.
Of the greatest importance is the mother’s evidence that she loves D and that she thinks that D loves her. She conceded rather poignantly in her evidence that although she is not perfect she had always tried to do the best she could for D and although she might not have always done the right thing by him, she did not believe that she had ever put him at risk. The mother also gave evidence, which I accept, that her feelings of depression have lifted and that she is feeling more mentally resilient.
Both Mr and Mrs G were impressive and honest witnesses. I have no doubt about the love they have for both the mother and each of her three children. They are devoted grandparents who have always been willing to step in to assist the mother through her various difficulties. I suspect that without the safety net of her parents’ home at 1 C Street, where the mother has been able to leave the children from time to time, she would have had much more difficulty with coping with the children and the responsibility of their care. It is generous of them to welcome the mother, the three children and Mr B into their home at fairly short notice. Remaining supportive of their daughter has at times challenged the limits of their love for her. Their support and loyalty to their daughter waxes and wanes depending on how well they believe that she is coping. I suspect that they are more optimistic than pessimistic in respect of their assessment of the mother’s ability to cope and remain drug free. This was certainly their position when they gave their evidence during the hearing before me. Mr G described himself as being “guardedly optimistic” about the mother’s ability to cope with the children and to remain drug free. This optimism on the part of both Mr and Mrs G was somewhat surprising to Mr Biesse, the child representative. In this regard it is important to note that neither Mr G nor Mrs G provided formal affidavits of their evidence. The mother did not call either of them in support of her case, although at the time of their oral evidence, they do in fact support her. To my mind this serves to emphasis the ambivalence of the relationship between the mother and her parents. Neither of them is unqualified in their support. I formed the view that they are apprehensive about alienating the mother from themselves and as a result losing contact with the children. As a result, I believe both of them would much rather have remained neutral in the mother’s eyes. Hence their reluctance to provide affidavits. The proceedings have placed them in an invidious position.
I have also no doubt that Mr and Mrs G have been very concerned about the ability of the mother to care for the three children as a result of her past drug use. They have continued to have their suspicions regarding the mother’s drug use. As a result they have contacted the Department of Family and Children’s Services on several occasions after the father’s departure from Alice Springs with their concerns. As a result workers from the Department have visited the various homes in which the mother has lived with the children. On one occasion J was tested at the instigation of workers as a result of injuring himself on a sharp object that was feared to be a needle. Fortunately this proved not to be the case. However to date, although the Department has opened a file in respect of the mother, they have not as yet chosen to intervene.
The reporting of their concerns to FACS has at times caused a rift to open between the mother and her parents. I formed the view that their relationship is likely to be a volatile one for the foreseeable future. Both Mr and Mrs G confirmed that their relationship with her had been “rocky” in the past. The mother is resentful when she believes her parents are being unduly intrusive into and controlling of her affairs. However at the present time both Mr and Mrs G believe that their daughter is coping well. In particular they report that she seems happier, is talking more and her sleeping patterns seem to have returned to normal. She seems more motivated and less lethargic. They also report that she has put on weight. These are positive indications in respect of her cessation of drug use and confirm the mother’s evidence that she has significantly curtailed her use of drugs.
Although they do not know Mr B very well and certainly were not aware that he was due to appear before the Court of Summary Jurisdiction in respect of a drug charge, they have only positive impressions of Mr B.
Both Mr and Mrs G are vehemently opposed to illicit drug use. They attended on Mr Broadfoot at CAAODS when the mother first attended and are disappointed that their daughter has not been willing to seek further drug rehabilitation. Again, rather poignantly, they indicated that in the last few years they had learnt a great deal about illicit drugs and their effects as a result of their involvement with the mother. It was their view that at the present time both the mother and Mr B were drug free.
Although Mr and Mrs G are supportive of their daughter, they did not strike me as being out of touch with the reality of the situation. They were both frank in their descriptions of what they saw as the past failings of their daughter. Mr G said that although he had seen no outright neglect by the mother of the children that at times he did not think that she had been doing the job that he thought that she should have been doing as far as their care was concerned. However it was his view that generally speaking she had been “pretty good” as a mother.
Mrs F G seemed to me to be a sensible and down to earth person. She is employed in a childcare centre and has raised five children herself. She too conceded that at times in the past her daughter had not been a competent mother and that her care of the children had been erratic from time to time. She too had been concerned about the type of people who had visited the unit at W Street when she had visited. However it was her view that the best option for D was to remain in the care of his mother with whom he was closely bonded and in close proximity with his two brothers. She described D as a normal but somewhat shy little boy. At the present time she had no concerns about D remaining in the mother’s care. However she did place the proviso on her view that it was necessary for the mother to “prove beyond a doubt that she did not have a drug problem”. It was clear to me that at the present time neither Mr nor Mrs G believe that their daughter has completely overcome her drug problem. Without doubt both Mr and Mrs G’s favourable impressions of their daughter are based on somewhat limited observations over a matter of weeks rather than months. As I observed to each of them, one swallow does not make a spring.
I do not accept that either Mr or Mrs G has significant problems in respect of the consumption of alcohol. They are both engaged in full time employment and hold responsible positions. Mr G has a middle management position at Imparja Television. Mrs G works with children as a cook and child care attendant at an Alice Springs Day Care Centre. There is no evidence to indicate that their consumption of alcohol has had any consequence in respect of their abilities to perform their jobs. Curiously, the only source of criticism of Mr and Mrs G in regards to their consumption of alcohol is the mother herself. Yet she has been content to rely on her parents to assist her with the care of her children on a consistent basis.
To her credit Mrs G did not seem to have embroiled herself in the dispute between the parties. Certainly I do not think that her relationship to her daughter has necessarily overwhelmed her ability to be objective in respect of the matter. She indicated in her evidence that the father had been a good father to all three of the children. She also indicated her belief that D would be well cared for and looked after if he moved to Adelaide. However she maintained her view that it would be better for D to remain in his existing situation.
I found the evidence of both Mr and Mrs G very helpful. In the context of this case, their evidence and the evidence of Mr Tyrell, the family report writer assumed central but conflicting importance.
The family report
The Court was assisted in this matter by a family report prepared by Michael Tyrell. Mr Tyrell is a clinical psychologist. He has been a psychologist for thirty years. He holds both bachelor and masters degrees in psychology. He has been preparing family reports for this Court and the Family Court for the last six years. In the context of this case, of some importance, is the fact that he has had extensive experience in the treatment and counselling of persons with drug dependency problems, including amphetamine dependency. He described himself as having a wide experience with amphetamine users in his clinical experience. I found him to be a well-qualified and impressive witness. I accept his evidence.
Mr Tyrell described the following symptoms of amphetamines use:
·sleep disturbance;
·mood swings;
·reduced appetite;
·chaotic life style;
·episodic aggression; and
·dysphoria (unpleasant mood).
In Mr Tyrell’s experience and from his reading of the relevant literature these symptoms could possibly persist for periods in excess of six months following withdrawal from use of amphetamines and it was not uncommon for users to suffer from “episodically disturbed moods” for considerably longer periods than this. His evidence was that users of amphetamines developed a tolerance to the drug very quickly. From a parenting point of view, the danger of amphetamine use is that users become “extremely centred” on obtaining and using the drug and although not necessarily negligent in respect of the care of their children the quality of that care was likely to suffer. There was likely to be a lack of constancy and predicability in that care and this had the potential to be detrimental for the children concerned. With extreme and protracted use, users’ lives were likely to become fixated on obtaining amphetamines and this was likely to lead to what Mr Tyrell described as “a chaotic life style”. In Mr Tyrell’s opinion, which I accept, these are the main problems associated with amphetamine use by parents who have responsibility for the care of children. Amphetamine use by a parent is almost certainly likely to lead to a qualitative decline in the parent/child relationship.
Mr Tyrell interviewed each of the parties and observed them with D in late May and early June of 2002. The father travelling to Alice Springs for the purpose of the report. Mr Tyrell did not interview Mr B. When the mother was first interviewed by Mr Tyrell he noted no signs that she was under the influence of any drug. However Mr Tyrell also noted that the mother cancelled two of her appointments with him. I believe this caused him to be somewhat suspicious of her. He arranged an interview at short notice at the mother’s home at the W Street unit, which he found to be “not noticeably dirty”. However he was somewhat concerned that the unit was not well resourced with equipment for a child of D’s age. He also found D himself to be a “little lonely” and to be “quite detached” from both his parents. He found this surprising particularly as D had been in the sole care of his mother for at least the past six months or so. He would have expected that given D’s age that there would have been a stronger primary attachment between him and his mother. His observations of the child with each of his parents caused Mr Tyrell to opine as follows:
“He (D) showed mild to moderate attachment to both parents looking to each for help or comfort when he hurt himself or dropped something. He is watchful of adults and shows little anxiety in new situations or with either parent.
He was a little more passive with his father probably because he remained in his stroller which he did not try to struggle out of and was not encouraged to exit by his father.”
As indicated, Mr Tyrell was somewhat surprised at this moderate level of attachment that D displayed to both his parents, however he did not think that it was indicative of emotional abuse. Mr Tyrell was also concerned at the possibility of D suffering some sort of “grief reaction” if removed from the care of his mother. For that reason, if D’s residence was to be changed, he proposed that there be some staging of his transition from his mother’s household to his father’s.
There is no doubt that Mr Tyrell formed a more favourable view of the father’s rehabilitation from amphetamine use than he did of the mother’s. As already indicated he was suspicious of the mother’s change of appointments with him. He also indicated that it was his experience that serious users of amphetamines could nonetheless present extremely well in spite of their drug use. Although he could not provide any concrete evidence in support of his position, in his evidence he indicated that he had “a clinician’s intuition” that the mother was still using amphetamines. His intuition was buttressed by the fact that the mother had not formed a clinical relationship with a drug counsellor or therapist in the period of time that she reported herself to be drug free. This being, in Mr Tyrell’s experience, the only effective way to ascertain whether a particular patient was drug free or not.
One of the reasons he formed a more favourable view of the father and his likely abstinence from amphetamine use was that he (the father) had removed himself from the “cues” and associations of his past drug use in Alice Springs. Something that the mother had not done. When told that the mother had used amphetamines on her birthday – a fact not reported to him – he was concerned at the mother’s ability to rationalise her drug use and what he saw as her lack of commitment to remaining drug free.
Given his age at the present time, Mr Tyrell did not consider D’s relationship to his two older brothers to be “hugely significant” at this stage. In my view Mr Tyrell was somewhat guarded in his opinion in this matter. However there can be no doubt that he was gravely concerned at the prospect of D being exposed to either of his parents using amphetamines. Because of his suspicions regarding the mother and her continued drug use, he preferred the father. He expressed his opinion in the following terms:
“Ms G appears to have suffered some personality impairing effects from her traumatic and at time emotionally deprived childhood and unsatisfactory development experiences. These are reflected in her relationship history and her continuing problems with ambivalent dependency both within and outside of her family of origin network.
Mr N appears to have until now suffered the opposite of Ms G’s needful attachment tendencies. He has been somewhat avoidant of attachments until he saw in D the opportunity for someone to love and care for.
There is little doubt that if Ms G is still using amphetamines, combined with the above traits, her parenting will at times be very conditional and chaotic, potentially unsafe and wanting.
To be a safe and nurturing parent she will need to permanently cease to use illicit drugs of addiction and be accountable to a drug specialist agency in this regard. She will need to obtain and accept ongoing objective counselling support from outside the family, including expert trauma counselling, to learn to maintain relationship constancy and safe and nurturing parenting skills.
She could obtain this in Alice Springs or Adelaide.
If D stays in her care and at least the above basic conditions are not met, D will be at high risk of later showing the signs of the passive abuse of emotional neglect that such chaotic families often yield. The household will almost certainly need to come under further Welfare attention in such a case.
If Mr N were to have D in his care full time, he would need to demonstrate conclusively that he can provide and afford a continuous and nurturing parenting for D while working full time, while also undertaking to be objectively accountable concerning his amphetamine and alcohol use for the indefinite future.
D would also benefit from both his parents attending a structured and expert parenting skills course, of which there are several available in Alice Springs and Adelaide.
Various government agencies could assist whether he or Ms G lived here or in Adelaide.
On the balance of probabilities he would be able to provide a more constant life situation and extended family environment for D over the next 5-10 years than Ms G, taking all into account. The practicalities of his full time work, single parenting and the heavy reliance that he will have to place on his extended family and/or other child carers will need to be carefully and realistically addressed before such a decision could be made.”
As I have already indicated, Mr Tyrell was somewhat guarded in his opinion. It seems to me that he expressed reservations in respect of both the parties and their ability to care adequately for D. However the factor that influenced him to the greatest degree would seem to have been his view that the father had made a more effective recovery from amphetamine abuse than the mother had, although he had no concrete evidence to indicate that the mother was continuing to use the drug.
The Law
The applications of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B(1) of the Act sets out the object of this Part of the Family Law Act. The object is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying this object are set out in section 60B(2) of the Act. These principles include, except where it would be contrary to a child’s best interests:
b)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
c)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
d)parents share duties and responsibilities concerning the care, welfare and development of their children; and
e)parents should agree about the future parenting of their children.
In the present case, for obvious reasons due to their very different perceptions as to what is likely to be in the best interest of D, the parties are unable to agree in respect of future parenting arrangements for him.
The application of these objects is subject to the provisions of section 65E which regards the best interests of the child concerned as being the paramount consideration in the making of any determination concerning the care of children.
In deciding the parenting arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in section 68F of the Family Law Act. The various sub-sections contained in section 68F comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act (1997) FLC 92-755. In this case it is the Court’s duty to make relevant findings of fact concerning the cases of each of the parties and then apply each of the relevant sub-sections contained in section 68F(2) to those findings in a common sense and practical way, in order to ensure that the final orders that are made result in a situation that will serve D’s best interests.
Section 68F(2) factors — determining the best interests of the children
(a) The children’s wishes
D is not yet two years of age. Obviously he is not of an age when he is able to express any wishes as to where he wishes to live and with whom.
(b) The nature of the relationship between the child, his parents, and other significant people.
D has been in the care of his mother since he was born. Although it seems clear that from time to time, the two older children J and L have spent reasonable periods of time in the care of their maternal grandparents, it seems to me that D has remained predominantly in his mother’s care through her various changes of accommodation over the last twelve months or so. It seems that she has taken the view that, given D’s age, it is more appropriate that he remain in her care. Although Mr Tyrell describes the attachment between D and his mother as being “mild to moderate”, it is my view that the relationship between D and his mother has been the most significant relationship in D’s life to date. However it is possible that the significance of this relationship to D has been reduced by either the mother’s drug use or her depression following his birth or a combination of both these factors. It is also possible that due to a combination of the limited time available for his evaluation and D’s natural temperament that Mr Tyrell has not had sufficient opportunity to fully assess the depth of the relationship between D and his mother. However it is of some significance that Mr Tyrell did not notice any signs that D had been subject to any emotional abuse or neglect whilst in the care of the mother.
I accept that Mr and Mrs G are likely to be somewhat partisan in their support of their daughter in this matter. However it did not seem to me that they were blind to her faults both as a person generally or in particular as a parent. In this context, it is my view that the evidence of Mrs G that D was a child who was closely bonded to and loved by his mother was evidence of some importance.
I also accept that D’s maternal grandparents love him very much and enjoy a close relationship with him. Similarly D has spent the whole of his life to date living with his older brothers, J and L. However D is not of an age when it is likely that he will be able to appreciate the significance of these relationships to him too any great degree. They are likely to be of greater significance to him, particularly his sibling relationship with J and L, as he grows older.
For the first twelve months or so of his life, D enjoyed a close and loving relationship with his father, who was closely involved with arrangements for his day to day care. However since that time, D’s relationship with his father has been fractured. Mr Tyrell regarded D’s attachment as also being “mild to moderate” to his father, although he did regard him as being a little more passive with his father than his mother. Given the period of time that had elapsed since D had last seen his father and his age, Mr Tyrell was surprised at this attachment. In the circumstances he would have expected a greater degree of attachment to the mother rather than the father. This may be testimony to the strength of the bond between D and his father but also may be symptomatic of an ability on D’s part to attach and detach to potential carers quite easily. This latter phenomenon may also be evidence that there has been a lack of consistency or constancy in respect of his care, particularly when he has been in the care of his mother. It may be evidence that D’s care has suffered as a result of uncertain care arrangements for him during his life to date. It must be borne in mind that Mr Tyrell thought that the lack of a primary attachment between D and his mother to be “a little unusual”. The fact remains however, in my opinion, that the evidence in respect of this aspect of the case is uncertain and too a large extent amorphous.
Clearly D has no relationship at all with any members of his paternal family or indeed with Mrs B, his proposed carer. I accept that Mr and Mrs P are caring and concerned individuals, however the fact remains that they have had only very limited involvement with D. I also accept that Mrs B is a competent carer of children and would be able to adequately attend to his needs. However for all essential purposes they are strangers to D.
Mr B has been a factor in D’s life since the early part of this year, a period of approximately eight months. Although I wish the mother and he well in their relationship, the position is that it is as yet untested and it must uncertain whether it will endure. Although Mrs B-P was critical of many aspects of her son’s lifestyle, she did indicate that he was extremely good with children. However in my view it cannot be said that Mr B has a significant relationship with D at this stage.
(c) The likely effect of any change in the child’s circumstances
I am gravely concerned at the potential for harm to be occasioned to D by him being abruptly removed from his current environment, particularly from the care of his mother with whom he is familiar. The father’s proposal must inevitably involve a large amount of change for D. He will be placed in the care of people with whom he currently has no relationship and will be living in an environment with which he is unfamiliar. Of major importance is the possibility that D will suffer a grief reaction as a result of being removed from his mother, his current carer.
I accept that the father is a loving and caring father, however he is largely untested in respect of his ability to care for a child on his own. He has never been a working and single parent. As a result I am concerned that, due to the father being involved with his work and D being largely unfamiliar with his proposed carers that any prospective grief reaction that D does suffer will not be managed well.
Mr Tyrell gave his view that the best possible way to manage any change in D’s care arrangements would be for the change to be graduated and slow. However due to the fact that the father lives in Adelaide and the mother lives in Alice Springs and neither of them is in a strong financial position, the reality of the situation is that any change of arrangements for D must be imposed abruptly and without any preparation. D will most likely not be able to have any contact with his mother for some time. She will not be available to minimise the adverse impact of D being removed from her care.
Although at the present time, due to his age, D does not have a significant relationship with his two older brothers, J and L, if D is removed from his mother’s care at this juncture, it will have the consequence of depriving D of having the opportunity to grow up with and develop close bonds with his two brothers. The relationship of siblings is one of the most significant of human relationships. It is a serious thing to contemplate the removal of D from his mother and thus deprive him of the opportunity to grow up with his two older brothers. This is especially so when consideration is given to where D will live and the likely practical difficulties that will be associated with D having regular contact with his mother and his two brothers.
(d) The practical difficulties associated with contact
Whatever proposal is ultimately preferred in this case, there will inevitably be enormous practical difficulties associated with the non-resident parent having regular contact to D. There are no easy solutions to the distance that exists between the homes of the father and the mother and the reality that neither of them is in a particularly strong financial position.
The father is currently employed on a casual basis as a forklift driver. He hopes in future to be employed on a permanent basis. At the present time he earns a comparatively modest salary. Certainly he could not be described as being in a strong financial position. The mother is in receipt of government benefits and is likely to remain so for the foreseeable future. She will have the care of two young children.
The father proposes that until D starts school he would pay for the costs of contact on one occasion per year in Alice Springs for a period of a fortnight. Thereafter he proposes contact on a further three occasions each year for periods of up to seven days on the basis that the parties share equally the necessary costs of contact. The mother proposes that the father should have contact to D at least twice per year for a period of up to three weeks on the basis that the parties share the necessary travel costs involved.
I have grave concerns that the parties, for obvious reasons, have each concentrated in this hearing on securing their primary objective – the residence of D – and have not given a great deal of thought to the issue of the other party’s contact. They have each proposed generous contact for the other but have not provided any realistic evidence as to how it is to be funded. It is also apparent to me that there remains a high level of mistrust and antipathy between the parties at the present time and as a result they are likely to have difficulty in communicating effectively with one another for some time to come. In these circumstances I have serious fears that no matter who of the parties is ultimately successful, there will be great difficulties in D maintaining regular contact with his other parent. There remains a very real danger that D’s relationship with at least one of his parents will be at worst severed or at best severely curtailed.
(e) The capacity of each parent to meet the child’s needs (including emotional and intellectual needs)
This is the central issue in this case. The major concern is whether in the event that D remains in the care of his mother, her continued use of amphetamines will compromise her ability to provide for the needs of the child, particularly his emotional well being. This is the basis of Mr Tyrell’s concern and the basis for his recommendation. On the basis of his “clinician’s intuition” he formed the view that the mother was likely to be still using amphetamines and as such would not in future be able to regulate her use for the future, certainly not over the period of D’s immaturity. For that reason he formed the view that there was a risk of D suffering passive emotional abuse.
Without wishing to appear trite or unduly simplistic, people who abuse amphetamines do not make good parents. They are subject to sleep disturbances and mood swings, amongst other symptoms. When in the grip of a severe addiction, their need to maintain their supply of the drug becomes the central feature of their lives. As a result their lives can lack structure. Quite simply they do not attend to the needs of their children because of their preoccupation with getting drugs. There is cogent evidence that indicates that the lives of both the parties in this case were in such a chaotic state prior to November of last year.
I accept that the father has made a good recovery from his amphetamine addiction. As such it is unlikely that his ability to be a competent parent will be compromised by the use of amphetamines in future. The evidence in respect of the mother is more problematic. I accept that she has been attempting to overcome her addiction in Alice Springs, however she has remained in the same environment in which she was previously using amphetamines on a heavy basis and as a result is subject to the same cues as previously prompted her use. Her response to the Court’s requirement that she provide proof of her abstinence from amphetamines has been poor. She also admits to some use of amphetamines from time to time. Her lifestyle, particularly in respect of accommodation for herself and her children since the father left Alice Springs has been unstable. As a result of these factors I am of the view that the mother is vulnerable to resuming amphetamine use in future, especially if she continues to live in Alice Springs.
However of great importance in this regard is the evidence of her parents that at the moment she presents to them as being essentially drug free and very much getting her life in order. I accept that at this stage, they are cautiously optimistic. However this change is comparatively recent and as a result cannot be described as being long standing and certainly cannot be regarded as permanent.
For a variety of reasons, in the circumstances of this case, I do not share that optimism. I am gravely concerned at the mother’s failure to provide regular drug screens as ordered or to undergo systematic drug counselling. I am concerned at her admission that she has used amphetamines in the past few months. As a result, I have formed the view that the mother has been understating her amphetamine use during the past few months. I do not share her confidence that she can be a safe and social user of the drug without a serious risk of returning to heavy addiction. I believe that to a large extent the mother lacks insight into her past drug use and its potentially deleterious consequences. In my view, in the environment of Alice Springs which she frequents, there remains an appreciable and significant risk that she will return to amphetamine use in future. This will have grave consequences for her ability to adequately parent D and provide for his emotional needs.
However, I also accept that when the mother is not using amphetamines she is a competent and loving mother. She is however far from perfect. There are indications that from time to time the standard of care provided for J and L has suffered. They have been consistently late for school, which causes me to have concerns that there have been problems in the mother’s home and in particular with her ability to organise herself and the children which may relate either to her drug use or her withdrawal from drug use. However they are described as being happy and polite children who are in good health.
For a variety of reasons the Department of Family and Children’s Services has become involved in the mother’s care of all three children. However the Department has not seen fit to remove any of the children from her care and I accept that it has now decided to end its involvement with the matter. I appreciate that the basis on which the Department would allow itself to become involved in the matter is very different to the criteria applicable to the Court’s decision in the matter. However its withdrawal from the matter does indicate that it does not presently have concerns that the children are in need of care within the parameters of the legislation governing its operation.
(f) The child’s maturity, sex, background and other characteristics
D is heir to a rich cultural heritage on both sides of his family. On his father’s side he has a close and extended Vietnamese family which is very much in touch with its cultural traditions. On his mother’s side he has an extended family of grandparents, uncles, aunts and cousins living in Alice Springs, who are clearly very interested in him and who love him dearly.
It is important that D be given an opportunity to remain in contact with the various aspects of his Vietnamese background. It is possible that as he grows older that D will be exposed to racism because of his cultural background. The greatest protection from the potentially corrosive effects of racism on children as they develop is strong role models from their own cultural background. The father is such a strong role model. It will also be clearly of benefit to D if he forms a relationship with his Vietnamese paternal grandparents. This is another factor to be considered in this difficult and finely balanced case.
(g) The need to protect the children from physical or psychological harm
I am satisfied that neither party would actively expose the children to any physical or psychological harm. However there seems little doubt, on the basis of Mr Tyrell’s report, that if either of the parties use amphetamines on any protracted basis whilst they are caring for D that there is the possibility that he will suffer some form of passive emotional abuse. He will be neglected emotionally because of his parent’s preoccupation with drugs. This poses a grave danger for D. For reasons already provided this forms the strongest argument for removing D from his current care arrangements and placing him in the care of his father.
(h) The attitude to the child and the responsibilities of parenthood
Neither party through their continued drug use during the early months of D’s life has exhibited a flawless attitude towards the responsibilities of parenthood. The father attempted, through subterfuge, to remove D from Alice Springs without the mother’s knowledge when he moved to Adelaide. I accept that he was motivated by what he thought was in D’s best interests at the time, however such an action is not the behaviour of a responsible parent. It is not appropriate for one parent to unilaterally impose their will on the other parent, especially in regard to something as fundamental as where the child concerned will live.
Since moving to Adelaide the father has established himself in his brother and sister-in-law’s home and has obtained work. He has removed himself from the temptations and cues of his previous drug use. He is now in a position to present a viable option for D’s on-going care. He is to be given a great deal of credit for this. I accept that he realises that for him to be able to care for D on a full time basis that it is imperative that he remains drug free. He has not however provided for D in any meaningful way since his departure from Alice Springs. In this regard I accept that his focus has been on getting himself free of drugs and in a stable situation in Adelaide. However, it is not greatly to his credit that he has failed to pay any child support for D since his departure from Alice Springs. No doubt, he is bitter that it has been left to him to repay the considerable debt the parties jointly owe to Mr and Mrs P that was incurred when they were both abusing amphetamines.
My impression of the mother is that she is a loving and basically competent mother when she is drug free. I accept that she does want to do the best for each of her children, including D. She is however emotionally vulnerable. She has suffered from depression. This may explain her use of amphetamines in the past. These factors have led to a degree of laxity in respect of her ability to adequately parent her children and have also led to a high degree of dependence on her parents for support. This view conforms with the evidence of Mr and Mrs G, which I accept. She also has a tendency to be resentful of support offered to her, especially when she perceives that support as including some level of criticism of her and her ability to cope. She is very sensitive of criticism. However it cannot have been easy for her to have been a single parent of three small children with only social security payments for her and the children’s financial support since the father’s departure for Adelaide.
The mother has said that she wants to remain drug free in future. For reasons already provided, I am sceptical that she will be able to maintain this resolve for any protracted period. My major concern in this regard is that her evidence leaves me with the impression that she believes that she can maintain some “recreational” level of use of the drug in future with some level of impunity. I am also concerned about her being subject to cues in Alice Springs in the form of her friends and associates, which will lead to heavier use in future, especially when she is feeling vulnerable or angry with her parents. Her reluctance to persist with any form of drug counselling in Alice Springs and her recalcitrance in respect of providing regular drug screens are not indications that give confidence in respect of her ability to remain totally drug free in future. My impression was that her accommodation situation with her parents remains somewhat tenuous. I have no doubt that her relationship with her parents is a tempestuous one. There is the constant risk that she will have a falling out with them and will move on again. I formed the distinct impression that both the mother and Mr B take life on a day to day basis. They do not have any clear plans in regards to work and accommodation and seem to lack direction. One of the responsibilities of being a parent is to provide a stable place for the child or children concerned in which to live. In this aspect, over the past eight months, the mother has been found wanting. The evidence in this regard is clear that the father is better placed to provide stable accommodation for D and has clear and well developed plans for his future.
(i) Family violence involving a child or a member of the child’s family
This is not a strongly relevant consideration in this matter. There is some evidence that there was some physical violence between the parties upon their separation. This seems in the main to have related to the inevitable tension and arguments that arose between them when they were in the process of separating and it was uncertain whether the mother would accompany the father to Adelaide or not. This was also a time when each of them was withdrawing from heavy amphetamine use. I do not believe that either of the parties is an inherently violent person.
(j) Any family violence order that applies to the child or a member of the child’s family
There are no Family Violence Orders applicable to either D or any member of his family.
(k) Where it would be preferable to make an order that would be least likely to lead to the institution of further proceedings
Parenting orders are never final in the sense that children’s and their parent’s circumstances change and as a result arrangements need to alter as a consequence of those changes. However, as far as possible, it is desirable that orders be made that will minimise the prospect of the parties seeking orders from the Court in future. Litigation is costly in both financial and emotional and does nothing to encourage an easy parenting relationship between the parties concerned.
In this particular case it is difficult to see which set of orders will be least likely to lead to the institution of further proceedings. In future the case will be bedevilled by the difficulties involved in the geographical separation of the parties and their suspicion and mistrust of one another amongst other factors. This is not a case where there are any easy solutions and where the future can be imagined with any degree of certitude.
Conclusions
This is a difficult and finely balanced case. The proposals of each of the parties have the potential for serious and detrimental consequences for D. As a result, neither of their proposals is particularly appealing. To my mind neither of them emerges as clearly superior to the other.
The father’s case can be put simply. It is now or never as far as D is concerned. To leave him in the care of the mother poses too many risks and uncertainties as far as her ability to care for him is concerned. The father remains deeply sceptical in regards to the mother’s testimony that she is drug free at the present time and intends to remain so. He contrasts his voluntary decision to remove himself from the environment of Alice Springs with all its associations with drug use for both parties with the mother’s choice to stay in the town. It is his case that there is an unacceptable risk that the mother will either resume her drug use or her existing use will accelerate out of control with inevitable detrimental consequences for D. He contrasts his relatively trouble free withdrawal from amphetamines use with the chaotic and unsettled past ten months of existence for the mother. It is his case, on the basis of Mr Tyrell’s evidence that given D’s age and level of development, there currently exists a window of opportunity to remove D form the care of the mother with comparative ease. This removal will become progressively more problematic as D grows older.
It is the mother’s case that the removal of D from her care is unwarranted at this stage and is fraught with potential dangers for D, particularly his likely distress at being removed from those who have been constant in his care for the whole of his life to date. But also because he will essentially be denied the opportunity to grow up with and form lasting and loving bonds with his two older brothers. It is her case that his life and development will become even more fractured than it already is. It is her case, supported by her parent’s evidence that she is currently addressing her drug dependency problems. As a result with their support and the support of Mr B she can be a capable and loving parent to D and so avoid the trauma involved in an abrupt change of his circumstances at this stage.
Although Mr Tyrell sees it as being beneficial, I cannot see how D’s care can be transferred gradually from his mother to his father in the current circumstances of these parties. If D goes to live with his father in Adelaide the transition will inevitably be abrupt.
It is the Court’s assessment of the mother’s evidence in respect of her current level of drug use and the likelihood in future of her remaining drug free that is the central issue in this case. This assessment will also involve Mr B and the likely influence he will have on the mother.
For the reasons provided, I was not greatly impressed by Mr B, although I am not aware of the outcome of the police charges against him in respect of the charge of possession of amphetamines.
I was more impressed with the evidence of Mr and Mrs G. I do not think that their natural love and loyalty necessarily overbore their objectivity in respect of their daughter and her ability to care for D. They seemed to be quite realistic about her shortcomings both as a parent and a person. Of the greatest importance in this regard was their evidence that the mother was happier, talking more, putting on weight, that her sleeping patterns had returned to normal and that she was generally more motivated and less lethargic. These are positive, objective indications that the mother has come some way in overcoming her drug dependency. However, the essential issue is for the Court to determine the durability of that change. In my view, the evidence indicates that the past ten months of the mother’s life have been chaotic and unstable. Once again, due to difficulties she has had in finding accommodation for herself and the children, she has had to resort to her parents. There can be no guarantee that she and Mr B will remain there for any lengthy period of time. I believe that Mr and Mrs G are likely to be a positive influence in the mother’s life, and as a result, in those of J and L and especially D, but there is always a risk the mother and her parents will fall out again. I am also concerned that the positive changes that Mr and Mrs G have observed in their daughter are of short duration. In those circumstances, I have grave reservations about the durability of the mother’s resolve to remain drug free for the future. In my view, there is a significant risk that she will resume intravenous amphetamine use and that this will have serious adverse consequences for D. I do not share that concern as far as the father is concerned. His lifestyle and living circumstances are far more stable than those of the mother and Mr B. This is by far the strongest factor in favour of the father’s case.
The only concrete evidence that the mother has used amphetamines since November 2001 has come from her own mouth. Two possibilities exist in respect of this evidence. Either she is being disarmingly honest in respect of her drug use or she is cunningly disingenuous and is minimising her use for her own advantage. There can be no doubt that there is ample evidence from which the Court would be able to draw inferences that the mother’s drug use since November of last year is greater than the she would wish the Court to know. These matters include her failure to provide regular drug screens, there only being one in the past eight months and that being only days before the hearing commenced and the unsettled nature of her accommodation arrangements since the father left Alice Springs.
In these circumstances, I think that it is prudent for the Court to have some regard to the opinion as expressed by Mr Tyrell. Mr Tyrell is a very experienced psychologist and has considerable experience in treating and assessing people with difficulties in the abuse of amphetamines. Although I am loath to place too much weight on his “clinician’s intuition”, I am not prepared to dismiss it out of hand given his considerable experience in dealing with drug addicted patients. His opinion accords with my own view that there is a significant risk of the mother’s drug use either remaining or escalating from its current level. There is no concrete evidence of her having a lasting commitment to any form of drug rehabilitation therapy in the future. This is a matter of the gravest possible concern. I accept Mr Tyrell’s evidence that the strongest indication that a person has a durable commitment to remain drug free is a therapeutic relationship with a drug counsellor or other suitably qualified professional.
D’s best interests are my paramount concern. In my view his best interests dictate that he grow up and develop in an environment free from the corrosive effects of drugs of addiction. In this regard, it is my view that the father is, on balance, better placed to provide such an environment than the mother. In my view, there is a real risk that if D remains in his mother’s care, she will, at some stage in the future, be subject to drug use at serious levels and this will result in the passive emotional abuse of which Mr Tyrell is fearful.
However, notwithstanding this finding, this case remains a difficult and finely balanced one. Two factors point strongly in favour of the mother, notwithstanding my concerns about her present and future level of amphetamine use. Firstly, there is the strong possibility that D will experience some form of grief reaction at being removed from the care of his mother. I accept Mrs G’s evidence that D is closely bonded to his mother and loves her very much. Mr Tyrell was surprised at the level of attachment that D displayed to his mother, describing it as “mild to moderate” and being somewhat unexpected given that the child had been solely in the care of the mother for some months prior to observation. However the fact remains that D is still attached to his mother and she has been a constant feature of his life since its beginning. In my view, I have to be some what cautious about drawing definitive conclusions about attachment based on what Mr Tyrell concedes are “snapshots” in the child’s life. Of more importance in this regard is the fact that Mr Tyrell observed no definitive evidence of actual emotional abuse or neglect whilst in the care of his mother. On any view, it will be a very significant change for D to go from the care of his mother to an environment in which persons who are strangers to him will provide a large part of his care. It is also a change that involves potential trauma for him. In this regard, although I accept that the father is a loving and caring parent, he is still untested as far as the stresses and strains of being a sole and working parent are concerned. If any change does react adversely on D it will not be possible for the mother to assist to any great degree with that trauma. It is incumbent on the Court to consider the effect on D upon any change of his living circumstances occurring. In this regard, I was impressed with the evidence of Mrs B and Mr and Mrs P. They are loving and caring people with considerable experience caring for children. The father will not be totally alone if he assumes the responsibility for the care of D. He will have extensive resources close at hand to assist him.
Secondly, and of great importance, is the fact that D will be deprived of having regular, daily contact with his two half brothers, J and L in the event that he goes to live with the father in Adelaide. He will essentially be deprived of the opportunity to grow up with and develop close bonds with his two older brothers. Clearly the relationship between siblings is one of the most important of all human relationships.
In the Marriage of H and H (1995) FLC 92-599 at page 81,971 Nicholson CJ considered with approval an American article entitled Issues of Split Custody; Siblings Separated by Divorce by Lori Kaplan, Linda Ade-Ritter and Charles B Hennon. In the article the authors considered that during early childhood, children frequently spent more time interacting with their siblings than with their parents, an interaction that did not diminish until adolescence or early adulthood. The authors also considered that “sibling relationships constitute one of the more common interpersonal relationships among humans. Not only do siblings influence the development of each other’s sociocognitive skills, but their relationships can be described as primarily a positive one, with high frequencies of altruistic, affectionate, co-operative and concerned behaviour.” The authors also emphasised the desirability of maintaining the continuity of relationships between siblings.
However, at the present time D is not yet two years of age and his brothers J and L are aged eight and six years respectively. There is a fairly wide age gap between D and his two older brothers. I also accept that given D’s age and level of development the relationship that he has with J and L is still in its formative stages. In Mr Tyrell’s view the relationship at this stage was not “hugely significant”. But, in any view, it is still a significant thing to deprive D of the possibility of developing normal close sibling bonds with his two brothers, as he grows older, although D is still very young, the fact remains that he has had constant contact with J and L for the whole of his life to date
But, I must also consider the fact that D on the one hand and J and L on the other have a different ethnicity from one another and each of them has a different father. These are factors that, to some extent, make it easier to justify a decision to separate D from his older brothers. As a result, I have reached the conclusion that notwithstanding the desirability that D should live with his half siblings, his best interests dictate that he should grow up in a drug free environment. This seems to me to be the most important and long running consideration in this case and a more important consideration than him remaining in close proximity to J and L. In my view, the best opportunity for D to grow up and reach his full potential and to be free of any possibility of emotional abuse, either passive or active, is for him to be away from the care of a parent who uses or abuses drugs of addiction like amphetamines. In this case, that option is clearly best provided by the father. This view is supported by the assessment of Mr Tyrell. I am also of the view that the desirability of removing D from the risk of further exposure to drug use outweighs any potential adverse consequences of removing him from his mother in the short term. This is the view advocated by Mr Biesse, the child representative.
For all these reasons I have formed the view that D’s interests will be best served by him living with his father in Adelaide.
For obvious reasons, the main focus of this case has been the mother’s drug use as she has had the care of D since the parties separated. However, that does not mean that the father’s previous involvement with amphetamines should be overlooked. As I have said, I am impressed with the efforts the father has taken to remove himself from an environment in which he had previously heavily abused amphetamines himself. I am also satisfied that the overwhelming likelihood is that he will continue to remain drug free. I accepted the evidence of Mrs P, a conservative person, but not one who was gullible or lacking in worldly experience, that she has been watching the father like a hawk since he arrived in Adelaide and she had seen no signs of drug use in him. However, the fact remains that issues arose in respect of the care of the older children when the father played a significant role in their care. Although I regard the father as having far more insight into his past use of drugs than the mother and as a result being a better option for D’s care, I do not regard him as being immune to future difficulties with drugs. Both parties have behaved irresponsibly in respect of amphetamine use in the past and both have jeopardised the children who have been in their care. As a result, I propose to make the orders as advocated by the child representative in respect of the father undergoing a parenting course and providing regular drug screens to him.
The father proposes that the mother have contact to D in Alice Springs on four occasions each year. He would accompany D for the first trip of fourteen days and pay the costs associated with that trip. Thereafter, he proposes that the remaining contact visits be of seven days duration and that the parties share the costs of travel equally. These costs would include the cost of D being accompanied by an adult. He also proposes contact in Adelaide in the event that the mother ever visits Adelaide. Once D reaches school age the father proposes contact for half of the school holidays.
The mother has not turned her mind as to the appropriate orders for contact in the event that she is unsuccessful in her primary application for the residence of D. In my view, in the difficult circumstances of this case, it is important that D have an opportunity to have regular contact with L and J in Alice Springs. For that reason the father’s proposal seems to be the best option available. For the reasons already provided contact in this matter will be extremely difficult because of the distance between the parties and the likely high costs of travel between Alice Springs and Adelaide. The father has not been able to contribute any sums towards the financial maintenance of D to date. No doubt he remains bitter about the level of the parties’ indebtedness to his brother and Mrs P. The mother is in receipt of a government benefit. As the father is likely to be in receipt of some income, it seems to me to be reasonable that for the first few years that he should bear a slightly heavier burden of the financial responsibility for the travel than the mother. Thereafter the contact should be for one half of each school holiday period in Adelaide with the parties sharing the costs of travel equally as the father proposes. There should be regular telephone contact between D and his mother as D grows older.
Postscript
On 26th September, 2002, prior to these reasons for judgment being delivered, Mr Biesse requested that the matter be re-listed for hearing. At that time, he filed an application in which he sought the following orders:
(i)That leave be granted to the child representative to have the proceedings reopened before judgment is handed down by Federal Magistrate Brown in relation to the hearing which took place on 3 September to 5 September 2002.
(ii)That the child representative be granted leave to file and serve a further affidavit in the proceedings.
(iii)That until further order of the Court the respondent mother be restrained and an injunction is hereby granted restraining her from removing the child D J G born 4 December 2000 from the town of Alice Springs in the Northern Territory of Australia.
(iv)Such further orders as this Honourable Court deems appropriate.
The application was listed before me in Darwin by way of a telephone link up on 27th September, 2002. On this occasion the mother was represented by Mr Goldflam, the father by his solicitor, Mrs Nicholls and Mr Biesse appeared on his own behalf.
In support of his application, Mr Biesse himself swore an affidavit in which he deposed to the following matters:
·that on 10 September, 2002, he had been told by the father that the mother and Mr B had been evicted from Mr and Mrs G’s home.
·this fact was confirmed by a letter dated 12 September, 2002, from the mother’s solicitor that indicated that she, Mr B and D had moved to rented accommodation in Alice Springs.
·that he had telephoned Mr G and had been told by him that there had been a physical altercation between him and Mrs G on the one hand, and the mother on the other, on 7 September, 2002, during which the Police had attended.
·that Mr G further told him that his wife had discovered antiseptic swabs and empty syringe packets in the mother’s bedroom at her home around 10 September, 2002.
·that Mr G indicated to him his belief that the mother was being pressured by either the Police or drug associates and as a result was considering leaving Alice Springs.
·finally, that Mr G had told him he had observed bruises on the mother consistent with her being assaulted.
Mr Biesse sought to have his affidavit containing these assertions admitted into evidence. For fairly obvious reasons, Mrs Nicholls supported his application. Mr Biesse argued that the evidence could be admitted as a result of the provisions of Order 30 rule 2A of the Family Law Rules. I do not accept this assertion. These are not interim or procedural applications.
Mr Biesse further deposed that neither Mr G nor Mrs G was prepared to depose any further affidavit in the proceedings and as his legal aid funding had been fully expended, he did not propose to subpoena either of them to give additional evidence to the Court. Accordingly, the extent of his application to re-open his case was to file the affidavit sworn by him to which reference has already been made.
Mr Goldflam objected to the affidavit on the basis that it was in the main hearsay. I agree with his position. In my view, the affidavit is objectionable and should not be admitted. It would be a different matter if Mr Biesse wished to re-open his case to call direct evidence from either Mr or Mrs G. But that is not the case here.
The only aspect of the affidavit that is admissible is the letter from the mother’s solicitors that confirms her change of address. There was no dispute between the parties as to this fact. The fact that the mother has moved away from her parents’ home does not change the view I reached after considering the evidence led before me on 3, 4 and 5 September, 2002. To some small degree it confirms concerns that I had that the rapprochement between the mother and her parents was not likely to be permanent. I see no reason to change the orders in this matter as a result of Mr Biesse's application.
The mother indicated through her solicitor on 27 September, 2002, that she was prepared to consent to an order restraining her from removing D from Alice Springs. In the circumstances, I made such an order. Given the final orders in this matter, that order is now otiose.
For all these reasons the orders of the Court will be as set out at the commencement of these reasons for judgement.
I certify that the preceding one hundred and fifty-two (152) paragraphs are a true copy of the reasons for judgment of Brown FM
Acting Associate: C M White
Date: 3rd October, 2002.
0
0
0