Nadolny & Palinkas
[2021] FedCFamC2F 621
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nadolny & Palinkas [2021] FedCFamC2F 621
File number(s): ADC 5860 of 2020 Judgment of: JUDGE DICKSON Date of judgment: 21 December 2021 Catchwords: FAMILY LAW – Parenting – interim hearing – where child has not spent time with the father for over 12 months – where parties never cohabitated – where there is a dispute as to the nature of the child’s time spending with the father pre-litigation – where father has used methamphetamines – where father was ordered by the Court to undertake a hair follicle test but failed to do so – where father concedes at hearing that he was using methyl amphetamines until October 2021- where there is no independent evidence before the Court as to the current status of the father’s drug use – where father has not yet completed parenting courses or commenced rehabilitation for drug use prior to interim hearing – where father is currently facing criminal charges – where mother raises allegations of family violence – where there has been an allegation that the father sexually abused the child – where father seeks supervised time – where the mother and the Independent Children’s Lawyer oppose any time spending between the father and child pending Trial – consideration of the assessment of risk – best interests of the child – where it is in the best interests of the child to spend no time with the father pending a Family Assessment Report and further evidence being put before the Court. Legislation: Family Law Act 1975 (Cth), Pt VII ss 4AB, 60B, 60CA, 60CC, 91B
Children & Young People (Safety) Act 2017 (SA), s 163
Cases cited: Dieter v Dieter [2011] FamCAFC 82
Goode v Goode (2006) FLC 93-286
Mazorski v Albright [2007] FamCA 520; (2007) 37 FamLR 518
Division: Division 2 Family Law Number of paragraphs: 72 Date of hearing: 9 December 2021 Place: Adelaide Counsel for the Applicant: Mr Bowler Solicitor for the Applicant: Starke Lawyers Counsel for the Respondent: Mr Robinson Solicitor for the Respondent: The Family Law Project Counsel for the Independent Children's Lawyer: Ms Lindsay Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 5860 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NADOLNY
Applicant
AND: MS PALINKAS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
21 DECEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and the child, X born in 2018, attend upon a Court Child Expert (practicing under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to be released by 29 April 2022 and that the family report address:
(a)Observed interactions between the child and the mother and the father, and any other family members;
(b)any views expressed by the child (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(c)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(d)the impact upon the child and upon the child’s relationship with the mother if the Court made orders as sought by the father;
(e)the impact upon the child and upon the child’s relationship with the father if the Court made orders as sought by the mother; and
(f)any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the child.
2.No later than 4.00pm on 14 January 2022 the parties must provide their contact telephone numbers and email addresses to [email protected].
3.Each party will do all things necessary to ensure the child attend upon to the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
4.The parties and the child shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
5.The Family Consultant shall be at liberty to inspect any material filed by the parties, and otherwise the following:
(a)Information provided to the Court by the respective Family Law Information Sharing Officers from SAPOL and the Department of Child Protection.
6.Upon the family report being provided to the Court, the Court will release the report and provide a copy to each party (or if represented, the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
7.Unless a party objects in writing within 14 days of the date of releasing the family report, a copy of the family report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the Choose an item:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
8.Unless otherwise ordered, no person shall release the family report, or provide access to the family report to any other person.
9.Within 24 hours, the father undergo drug testing pursuant to the hair follicle analysis process for the purpose of detecting any illegal drugs and/or substances and for the purpose of such testing the provision of the sample is to be personally supervised and observed by a qualified medical practitioner or an authorised delegate in accordance with the Chain of Custody Protocol specified in AS/NZ 4308:2008 with the father’s solicitor to file and serve an Affidavit annexing the results of such testing within 48 hours of receipt of same and prior to the adjourned date for hearing with the costs of such testing to be the responsibility of the father.
10.The father is restrained and an injunction is granted restraining him from cutting, shaving or bleaching his head hair; or cutting, shaving or waxing his pubic hair until the test has been completed.
11.The father do within 24 hours of a request by solicitors for the Independent Children’s Lawyer so to do provide a sample of his urine/blood to a qualified medical practitioner for the purpose of the administration of procedures to test for the presence of opiates, barbiturates, amphetamines, heroin, cannabis or any derivative of those substances, such sample to be provided to the medical practitioner in accordance with the Chain of Custody Protocol specified in AS/NZ 4308:2008 such that the integrity and identity of the sample can be guaranteed with the father’s solicitor to file and serve an Affidavit annexing the results of such testing within 48 hours of receipt of same and prior to the adjourned date for hearing.
12.The requests for samples are to be undertaken at such frequency as determined by the Independent Children’s Lawyer.
13.The cost of each such drug testing procedure shall be borne by the party providing the sample.
14.No later than 14 days prior to the adjourned hearing date, each party do have leave to file and serve one further updating affidavit, not to exceed five pages in length.
15.The parties and legal representative and the Independent Children’s Lawyer attend a Family Dispute Conference at the Legal Services Commission of South Australia on 4 May 2022 at 9:30am.
UPON NOTING that in the event that the parties are seeking an extension of legal aid funding to attend the Conference, they forward a request for an extension of funding to the relevant assignments officer at the Legal Services Commission of South Australia within forty eight (48) hours of the date of this order.
16.The parties, or their solicitors, each forward to the Legal Services Commission of South Australia, Family Dispute Resolution Unit, within seven (7) days of this Order the following:
(a)a copy of the said Order; and
(b)the current contact details of the parties (including current postal and telephone details).
17.The parties, or their solicitors, forward to the Legal Services Commission of South Australia Family Dispute Resolution Unit, at least twenty-eight (28) days prior to the date of the Conference, a copy of all documents filed with the Court on their behalf.
18.All interim applications do otherwise stand dismissed.
19.Further consideration of the matter is adjourned to 9:30am on 13 May 2022 before Judge Dickson for directions and trial management by phone.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Nadolny & Palinkas has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
BRIEF BACKGROUND
By way of Application in a Case filed on 5 October 2021 the father, Mr Nadolny (‘the father’), seeks orders for time spending with one child, X born in 2018 (‘the child’) who is now three years and five months.
The father was born in 1988 and is now 33 years of age. He describes his occupation as a tradesman. The mother, Ms Palinkas (‘the mother’), was born in 1992 and is now 29 years of age. Her occupation is Home Duties.
The parties commenced what is described as a ‘on and off’ relationship in 2016. There is one child of the relationship. The parties did not cohabit together during their relationship.
The father first commenced proceedings on 8 December 2020 seeking immediate time spending with the child. The child was removed from the father’s care by the Department of Child Protection on 6 December 2020. Save for two brief altercations which occurred between the parties on 23 December 2020 and 4 January 2021, as referred to herein, the child has not spent time with the father for over 12 months.
APPLICATIONS AND COURT ORDERS
The father’s Initiating Application was filed on 8 December 2020. At that time, the father was self-represented. The matter first came before the Court on 1 March 2021. The orders of 1 March 2021 are as follows:
…
UPON FURTHER NOTING:
a)The contents in the letter from the Department of Child Protection dated 26 February 2021; and
b)The information provided by the SAPOL information sharing project officer
AND UPON FURTHER NOTING THAT:
a)The response to the Notice of Risk was received in chambers from the Department of Child Protection AND this information is confidential and cannot be disclosed to any other person or entity without an Order of this Court; and
b)Information provided by SAPOL pursuant to the Family Law Information Sharing Co-location Project to promote safety of parties connected to Family Court matters are confidential and cannot be disclosed to any other person or entity without an Order of this Court; and
c)Penalties may apply pursuant to s.121 of the Family Law Act 1975 if the report is printed or published other than as directed in these proceedings
THE COURT ORDERS THAT:
1.The parties be at liberty to inspect only and the parties’ legal representatives and the Independent Children’s Lawyer (if appointed) be at liberty to inspect and photocopy the document produced by the Department for Child Protection in response to the Notice of Risk filed in these proceedings.
2.With respect to information received from the Family Law Information Sharing Co-Location Project the instructing solicitors are at liberty to make one copy only for their files AND the parties are at liberty to read the material only and no further hard or electronic copies are to be made or provided to the parties.
3.Leave with respect to the materials referred to above is granted on the condition that all copies are destroyed at the conclusion of the matter.
4.The respondent mother do file and serve their Response, Answering Affidavit and Financial Statement, Notice of Risk within 28 days.
5.Until further order, the child, X born in 2018, do live with the mother.
6.Until further order, the said child is to spend no time with the father.
7.Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed to represent the interests of the child X born in 2018 and to facilitate such appointment the parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within 7 days of the date hereof and that the Independent Children’s Lawyer use his or her best endeavours to meet with the said children such as to be in a position to make submissions to the Court on the adjourned date.
8.Pursuant to Section 69ZW of the Family Law Act 1975 (Cth), the Department for Child Protection do provide the Court with the following documents or information:
a. copies of any notifications regarding abuse allegations arising relating to the child X born in 2018;
b. copies of any notifications regarding abuse allegations arising relating to either party during the course of their adult lives, Mr Nadolny born in 1988 and Ms Palinkas born in 1992.
c. any assessments of investigations into such abuse allegations;
d. the outcome or findings of any such investigations; and
e. copies of any reports received by the Department for Child Protection in the course of investigating any such notifications.
9.Pursuant to section 69ZW of the Family Law Act 1975 (Cth), the South Australian Police Department shall provide the Court with the following documents or information:
a. copies of any reports or notifications of child abuse allegations or allegations of family violence involving either of the parties (Mr Nadolny born in 1988 and Ms Palinkas born in 1992) or the infant child X born in 2018; and
b. the outcome or findings of any such investigations, including antecedent reports for each of the said parties.
10.Noting the contents of the information provided to the Court by the Department of Child Protection and SAPOL, the father is to file and serve an affidavit setting out his relevant drug history and any criminal offences of which he has been convicted.
11.Pursuant to s.11F of the Family Law Act 1975 (Cth) the parties attend an appointment (or series of appointments) with a family consultant provided by the Child Dispute Services of the Federal Circuit Court on 13 May 2021 at 9.00am with the parties to telephone the Registry on 1300 352 000 to confirm their attendance.
The matter was adjourned to 31 May 2021 at 9:30am for directions.
On the 30 March 2021, the matter came before Senior Registrar Heuer (as she then was) pursuant to an Application in a Case filed by the father on 25 March 2021. The Application was listed for mention on 13 April 2021 at 11:00am by telephone and the father was directed to serve a copy of the Application and these orders on the mother’s solicitors forthwith.
On 13 April 2021, Senior Registrar Heuer made the following orders:
1.That leave is hereby granted to the applicant father, in the event that he continues to appear as a self-represented litigant in these proceedings, to inspect and copy material produced by SAPOL and by DCP pursuant to Section 69ZW Orders previously made.
2.That the applicant father is restrained, and an injunction is granted restraining him, from disclosing any s.69ZW material, documents or information to any person, other than to a legal practitioner who has been duly instructed by him in respect of these proceedings.
3.That the applicant father is hereby ordered, at the conclusion of these proceedings, to dispose of all copies of all such s.69ZW material & documents obtained or copied by him in a confidential manner of disposal (such as commercial secure shredding, etc.)
4.That further consideration of the matter is adjourned to 31 May 2021 at 10.00am before Senior Registrar Heuer by telephone.
5.That there be liberty to the Independent Children’s Lawyer to apply on short notice for any application or order(s) arising from the making of these Orders.
On 31 May 2021, Senior Registrar Heuer noted that the father was advised to communicate with the DCP Legal Officer in respect of the redaction codes in the DCP material produced to the Court and orders were made dismissing the father’s Application in a Case filed 4 May 2021 and 12 May 2021. The proceedings were otherwise referred to the docket of his Honour Judge Brown for mention on 3 August 2021 at 9:30am.
On 3 August 2021, the Court ordered inter alia that:
(1)The child live with the mother.
(2)That without admission as to the need for same, the father be restrained by way of injunction from:
(a)Attending at or within the vicinity of any place of residence or employment or day care of the mother and child;
(b)Removing the child from the care of the mother or any care giver delegated by the mother with the care of the child.
(3)The matter was adjourned to 3 September 2021 at 10:00am for interim argument NOTING that the proceedings were to be conducted on a face to face basis.
The matter was in fact listed before Judge Kari (as she then was) on 1 September 2021 and was due to proceed to argument. Unfortunately, the father’s counsel had discovered on the day that he was conflicted and sought an adjournment so that alternate counsel could be briefed. Judge Kari also noted that there did not appear to be any outstanding interim applications on foot. Given that:
(1)The father’s Application in a case filed 17 December 2020 had been discontinued on 25 February 2021; and
(2)The father’s Application in a Case filed 31 March 2021 and 12 May 2021 respectively were dismissed on 31 March 2021.
Judge Kari therefore made an order that no later than 24 September 2021 the father file and serve an Application in a Case together with an affidavit in support and in the event that the father did file such an Application, the mother was directed to file and serve an affidavit in support by 15 October 2021. The matter was listed for mention before me on a date to be fixed.
On 27 October 2021, the matter was listed for directions. On that occasion, the Court made the following orders:
1.Pursuant to section 91B of the Family Law Act 1975 (Cth), the Minister for the Department of Child Development (Families SA) is invited to intervene in these proceedings.
2.A copy of these orders is to be served upon the Minister for the Department of Child Protection, along with a copy of the Dispute Conference Memorandum to Court dated 13 May 2021.
3.The Minister be at liberty to inspect and copy all documents filed in these proceedings.
4.The Minister, or a representative of the Minister, is to attend on the adjourned date, even if the Minister determines not to intervene, so as to advise what steps the Minister proposes to take in respect of the child in these proceedings.
5.Forthwith, the father undergo drug testing pursuant to the hair follicle analysis process for the purpose of detecting any illegal drugs and/or substances and for the purpose of such testing the provision of the sample is to be personally supervised and observed by a qualified medical practitioner or an authorised delegate in accordance with the chain of custody protocol specified in AS/NZ 4308:2001 with the father’s solicitor to file and serve an Affidavit annexing the results of such testing forthwith upon receipt of same and prior to the adjourned date for hearing with the costs of such testing to be the responsibility of the father.
6.The father is restrained and an injunction is granted restraining him from cutting, shaving or bleaching their head hair; or cutting, shaving or waxing their pubic hair until the test has been completed.
7.By consent, during the period of the adjournment, the father be restrained and an injunction is granted restraining him from filing any further affidavits on his behalf SAVE AND EXCEPT for one affidavit to address the following:
a.The status of the father’s criminal proceedings, including the outcome of a pre-trial conference listed on 26 November 2021 and an arraignment on 12 November 2021;
b.Whether or not the father has commenced the Circle of Security Course on 12 October 2021;
c.Updating the court in relation to his counselling with New Roads and to obtain a report from his treating counsellor; and
d.Annexing a copy of the said hair follicle test.
8.Further consideration of the parties competing interim applications are adjourned to 2.15pm on 9 December 2021 before Judge Dickson for an interim argument with 2 hours set aside NOTING THAT the Court shall expect the parties to comply with r 12.06 of the Federal Circuit and Family Courts of Australia Rules (Family Law) 2021 (Cth) prior to the interim hearing date.
9.The proceedings will be conducted by Microsoft Teams. An invite will be emailed to the parties, or their solicitors if legally represented, the day prior to the listing date.
The Report from the Department of Child Protection dated 30 November 2021 as ordered pursuant to section 91B of the Family Law Act 1975 (Cth) (‘the Act’) was disseminated to the parties on 3 December 2021.
Argument took place on 9 December 2021. At the conclusion of submissions, judgment was reserved. These reasons are my judgment arising from the argument which occurred on 9 December 2021.
DOCUMENTS RELIED UPON
The father relied upon the following documents:
(a)Application in a Case and supporting Affidavit both filed 5 October 2021, seeking orders that the child live with the mother and spend time with the father. At the hearing, the father only sought orders for time to be supervised by a professional supervisor for day periods;
(b)Affidavits of the father filed 4 May 2021, 3 August 2021, 1 September 2021, 26 October 2021 and 9 December 2021;
(c)In addition, the father relied on the Affidavits of Mr B, filed 5 October 2021 and Mr C, filed 5 October 2021; and
(d)SAPOL Detailed Occurrence Report, dated 9 March 2021, Report dated 7 December 2020, ‘Exhibit F1’.
The mother relies upon the following documents:
(a)Response to Application in a Case, filed 22 October 2021;
(b)Affidavit of the mother, filed 28 April 2021;
(c)Affidavit of Ms D, filed 27 May 2021;
(d)Information provided to the court from the Co-Located SAPOL and the DCP Officers; and
(e)SAPOL Offender History Summary Report, dated 3 March 2021, ‘Exhibit M1’.
The father’s evidence
The father’s case, as outlined in the Affidavit of 8 September 2020, can be summarised as follows:
(a)The parties had an ‘on and off’ relationship after they commenced seeing one another in or about 2016.
(b)The father had spent overnight unsupervised time with the child after the parties relationship ceased. The father says that after the child was born, the parties did not live together on a full time basis. The father would attend at the mother’s home on a daily basis to see the child.[1]
[1] Affidavit of father filed 8 December 2020 at [9].
(c)He supported the mother and the child by purchasing nappies, clothing, food and bedding and other items as needed.[2]
[2] Ibid at [10].
(d)After the child turned 6 months of age, he would spend unsupervised time with the child at his home and the child would stay overnight two or three times a week.
(e)Just prior to Christmas 2018, the mother ceased time spending with regular contact and overnight stays restored in early 2019.[3]
[3] Ibid at [12].
(f)In February 2019, the father alleges that the mother again unilaterally stopped his time spending and thereafter withheld the child from seeing him. The father asserts that the mother forbade him from attending at her home.[4]
[4] Ibid at [14].
(g)In 2019 (being the father’s birthday), the father attended at the mother’s home and requested to be able to have the child overnight. The father goes on to say:
‘after some several hours out the front of the house, the respondent opened the door – let me in and finally allowed me to see the child. However, I was no longer allowed to take him home overnight for overnight stays from then onwards.’
(h)The father asserts that thereafter as he rejected the mother’s sexual advances, it became increasingly difficult for him to spend time with the child.
(i)The father sought assistance from ‘E Counsellors’ to ensure ongoing time spending.[5] The father asserts that after the counselling sessions broke down, the mother ‘started to refuse my attendances at the home where her and the child were living’.[6] The father alleges that at ‘at one stage it was some three months that the respondent had banned me from going to their home or for me to see X’.
(j)The father asserted that when he was in the presence of the mother, she would behave in a friendly and comfortable fashion. The father alleges that upon the maternal grandmother arriving, the mother would become ‘overtly and instantly extremely hostile towards me, so much so, that I would leave as she was “play acting” FOR her mother – or as if the mother was in charge of my visits’ [7](original emphasis).
(k)The father deposes that in February 2020, when he was visiting the mother’s home to see the child, as he left the home, ‘I pulled the front door closed, and the door handle broke. I stopped to tell her that I would return to repair the door handle.’[8]
(l)The father further deposes that he thereafter visited the home on 3 or 4 occasions when on a particular day he arrived ‘to find both the front door and the screen door wide open – although the respondent knew that I was on my way to visit. I walked in and announced myself. I had noticed that the wooden front door keys were in the door lock.’[9] The father goes on the describe that a disagreement took place in relation to time spending with the mother insisting that the father leave the home and that he could spend time with X at a local park and no longer inside her residence. The father deposes that as ‘I walked past the front door, I removed the keys from the front door lock – so that the respondent could close the door behind her while carrying X – as we left for the park. Then, before we even left the front yard, a further argument started – and I threw the keys down on the lawn and left.’[10]
(m)The father deposes that a few days later he returned to the mother’s residence and upon arrival the mother accused him of stealing her house keys during the visit previous. The father allegedly pointed to the keys on the front lawn which the mother then accused him of stealing. The father then deposes to having spent 3 hours with the child in the mother’s home.[11]
(n)On departing the mother’s residence, the father deposes that he ‘again pressed’ the mother for a fixed and regular agreed arrangement to see the child including overnight. The father alleges that the mother became abusive and threatening towards him and he called the police to attend ‘because of her screaming and shouting and accusations’.[12]
(o)The father deposes that upon the police arriving, they arrested the father and he was taken to the Suburb F Police Station. The father was charged with criminal offences of larceny and damage to property. The father was then placed on police bail, one of the conditions being that he was not to attend at the mother’s residence where the child resided.[13]
(p)The father alleges that the mother had ‘unlawfully created a false scenario to police where she has made a criminal complaint to police – in order to prevent me (in an unlawful stunt) from seeing my son’.[14]
[5] Ibid at [20].
[6] Ibid at [21].
[7] Ibid at [26].
[8] Ibid at [28].
[9] Ibid at [30].
[10] Ibid.
[11] Ibid at [31].
[12] Ibid at [33].
[13] Ibid at [34].
[14] Ibid at [40].
The father deposes in his Affidavit of 3 August 2021 as follows:
(a)For the period 12 October 2020 to 7 November 2020, the mother and child spent time with the father at his residence. The father goes on to depose that for the period 16 November 2020 to 22 November 2020, the child spent time with the father at his residence.[15]
(b)The father deposes that in the period 30 November 2020 to 6 December 2020, the child was in the father’s care but then returned to the mother, ‘given false allegations against me that involved the Department of Child Protection (‘DCP’).’[16]
(c)The father deposes that he last saw the child on 5 January 2021 for 20 minutes at the side of the G Supermarket at Suburb H.[17]
(d)In this Affidavit, the father goes on to set out a number of post separation parenting courses that he has enrolled at, including:
(i)On 9 July 2021 he started the J Centre ‘Post Separation Parenting Course’ which has been completed;[18] and
(ii)He has enrolled in the ‘Circle of Security Parenting Program’.[19]
[15] Affidavit of father filed 3 August 2021 at [4].
[16] Ibid at [5].
[17] Ibid at [6].
[18] Ibid at [9].
[19] Ibid at [10].
The father’s deposes in his Affidavit of 1 September 2021 as follows:
(a)In 2020, the mother spent weeks on and weeks with the child at his residence at Suburb L in the State of South Australia.[20] Then in the second half of 2020, there was an agreement that the child spend time with the mother and then spend a week with the father on a rotation basis. This arrangement continued until 6 December 2020. The mother then stopped the child spending time with the father. On 8 December 2020, the father lodged these proceedings seeking orders for the child to spend time with the father.[21]
[20] Ibid at [3].
[21] Ibid.
(b)The father deposes that the last occasion he saw the child was on 5 June 2021 for about 20 minutes.[22]
[22] Affidavit of father filed 1 September 2021 at [5].
(c)The father deposes that:
‘I have taken steps moving forward even before the last court hearing on 3 August 2021 as shown in previous affidavits. I am now seeking community guidance and support. I want to ensure that I am in the best mental and physical state prior to starting the upcoming Circle of Security Course in October 2021.’[23]
[23] Ibid at [7].
(d)The father deposes to having contact with J Centre and having met with a Mr K, Youth Worker.[24] He deposes to having been referred to J Centre Drug and Alcohol Rehabilitation[25] The father deposes to having enrolled in the J Centre Circle of Security Program and having engaged with M Centre in a program called ‘ROADS’ regarding his alcohol and drugs rehabilitation.[26]
[24] Ibid at [8].
[25] Ibid at [9].
[26] Ibid at [12].
(e)The father attaches urine testing results which appear to show nil illicit substances in the father’s urine tests.[27]
[27] Ibid at [13].
(f)In relation to the father’s criminal proceedings, he informs the Court that:
(i)The charge relating to a taser has been classified as a Dangerous Article/Unlawful Possession. The father deposes that this charge, if not resolved, will likely be set for trial in March 2022.[28]
[28] Ibid at [14.1].
(ii)In relation to allegations of breach of bail, the father deposes that this, if not resolved, will be listed for trial in March 2022.[29]
[29] Ibid at [14.2].
(iii)In relation to the charge concerning Marijuana in a glass test tube and a funnel and condenser being identified in the father’s garage on 4 March 2020, the father deposes that that charge is listed on 12 November 2021 for arraignment. The father considered that the trial would be listed in 2023 and deposes to having been advised by counsel that it was ‘unlikely’ that he would be going to gaol.[30]
[30] Ibid at [14.3].
(g)The J Centre Drug and Alcohol Counselling Referral Form, being Annexure W-3 to the said affidavit, was completed by the father and signed on 27 August 2021. The reason given for the referral was:
·‘To seek guidance and support to rid me of my illicit substance habits’; and
·‘To ensure I am in the best mental & physical state prior to starting my Circle of Security Parenting Course coming up in October’.
(h)The J Centre Referral Form, also being Annexure -3 to the said Affidavit, the father describes on a scale of 1 – 10 (with 10 being very concerned) his concern about use of amphetamine as 8. This is by comparison to alcohol listed at a rate of 3 and tobacco products at a rate of 7.
(i)Annexure -6 is a letter from M Centre dated 24 August 2021 in relation to the father’s involvement in the ‘New ROADS’ program which is said to ‘provide therapeutic rehabilitation support for people with substance abuse and co-morbid mental health issues’.
The letter goes on to state:
This letter is to confirm that Mr Nadolny engaged with New ROADS for an intake appointment on 23/8/2021. Once Mr Nadolny is assigned a Counselor, he will then be contacted to book in for counselling.[31]
[31] Ibid at Annexure -6.
In his Affidavit of 5 October 2021, the father deposes to time with the child across 2020 and the involvement with DCP as follows:
At about 9:22pm Sunday 6 December 2020 three government motor vehicles arrived. I do not know if any were Police Officers but I was informed that persons were from the Department of Child Protection (“DCP”). I was told that they had come around to take my son X. I refused X to be taken by DCP. The Officers searched my residence, downstairs and upstairs. It was raining. I invited them into the garage area. I co-operated with the Officers.[32]
The DCP told me that there was an allegation made. I was not told what the allegation was. It was arranged with DCP approval for X to stay with my neighbours that being N and his parents and sister.
On Monday 7 December 2020 at about 3pm I went to N’s residence next door where my son X was staying. I was present when DCP attended and I handed X to a DCP officer.
[32] Affidavit of father filed 5 October 2021 at [4.13].
The father deposes to having discovered from an inspection of DCP documents that a telephone call was made at 11.00pm on Saturday 5 December 2021. The father deposes that:
At that time X and I had left the mother’s residence. The mother was upset that X and I did not stay over at her residence. The mother and I finished SMS’s that evening at about 10.45pm that evening. The mother was angry at me as we had a massive disagreement about X and I not staying at her residence. I do not know who telephoned but it was malicious. The allegation was false. It was aimed at preventing our son X spending time with me. I deny the allegation. I have not been approached or interviewed by SAPOL in relation to the allegation.[33]
[33] Ibid at [5].
The letter from DCP provided pursuant to the section 91B order sets out the efforts made by DCP to interview the father as follows:
During the Departmental investigation, significant attempts were made by workers to contact and engage with Mr Nadolny (sic). Mr Nadolny actively avoided engagement with the department and avoided addressing the child protection concerns with the department. Attempts made by the department to engage Mr Nadolny are detailed below:
•8 December 2020 meeting planned for 10:00am at Suburb O office, Mr Nadolny did not attend. 10 December 2020 attempted phone call to Mr Nadolny no answer, voicemail left
•17 December 2020 attempted phone call to Mr Nadolny no answer, voicemail left
•17 December 2020 SMS to Mr Nadolny requesting he contact the department immediately.
•18 December 2021 phone call to Mr Nadolny by allocated worker, Mr Nadolny stated that his lawyer has advised that he is not to speak with the department, Mr Nadolny hangs up the call.
•31 December 2020 phone call to Mr Nadolny by allocated worker, Mr Nadolny states he is unable to talk to the worker and hangs up the call.
•8 January 2021, attempted 2 phone calls to Mr Nadolny, phone does not ring.
•8 January 2021 a letter is posted to Mr Nadolny requesting a meeting with Mr Nadolny on 21 January 2021 10:30am at the Suburb O office. Contact details are included if the meeting time and date are not suitable. 21 January 2021 meeting planned for 10:30am at Suburb O Office, Mr Nadolny did not attend.
•25 February 2021 case closure letter sent to Mr Nadolny.[34]
[34] See letter dated 30 November 2021 from DCP to the Court pursuant to section 91B order made on 27 October 2021.
The father deposes that the last occasion he saw the child was on 4 January 2021 at the G Supermarket at P Street.[35]
[35] Ibid at [6].
The father deposes that ‘an altercation occurred on that day between myself and the mother. It was a heated conversation however I deny assaulting her in any event’.[36]
[36] Ibid at [7].
The father deposes that on seeing the child in the carpark, the child ‘ran towards me and jumped in my arms, we hugged and he was very happy to see his father. I was also really happy to see my son.’[37]
[37] Ibid at [8].
The father’s Affidavit of 26 October 2021 responds to the mother’s Affidavit filed on 22 October 2021, and can be summarised as follows:
(i)That he has never pressured the mother to stay at his home.[38]
(ii)That there had been discussions of sharing the child on a 50:50 basis.[39]
(iii)That he has not bullied the mother or pressured her in any way to come with him or to be with him at his home. The father deposes that ‘There has never been undue influence but the opposite, it has always been voluntary.’[40]
(iv)That it was his ‘honest belief that the mother made the call to the Department of Child Protection out of anger and frustration’.[41]
(v)That there are no reasons why his time with the child should not be resumed and that he did not pose any risk to the child.[42]
(vi)The father denies that there are any ‘serious criminal drug charges’ being faced by him.[43]
[38] Affidavit of father filed 26 October 2021 at [6].
[39] Ibid at [7].
[40] Ibid at [9].
[41] Ibid at [12].
[42] Ibid at [14].
[43] Ibid at [15].
The father’s Affidavit of 9 December 2021, can be summarised as follows:
(i)That he has pleaded not guilty in the District Court of South Australia on arraignment on 12 November 2020 with a callover listed to 30 March 2022.[44]
(ii)‘The other matter’ pending is related to the District Court of South Australia matter in the Magistrates Court of South Australia. The judge has requested all disclosure be provided to defence. That matter has been adjourned to April 2022.[45]
(iii)That the father was not able to commence the Circle of Security Course on 12 October 2021 because it was fully booked until 2022.[46]
(iv)That he is still on the waiting list and awaiting a response from New ROADS.[47]
(v)That ‘I have learnt that hair follicle test so usage some 12 months (sic). It is for that reason I have not complied with Order 7(d) of this Honourable Court. I feel that it is discriminatory and that the other party should undertake the same tests’.[48]
[44] Affidavit of father filed 9 December 2021 at [4].
[45] Ibid at [5].
[46] Ibid at [6].
[47] Ibid at [7].
[48] Ibid at [8].
The mother’s evidence
The mother filed a Response to an Application in a Proceeding on 22 October 2021 and seeks orders for the child to live with the mother, father to undergo a hair follicle analysis, and that Affidavits filed by the father’s witnesses on 5 October and 7 October 2021 respectively be uplifted.
The mother’s case, as outlined in her Affidavit filed 28 April 2021, can be summarised as follows:
(a)The parties met in 2016 and had an on/off casual relationship.[49]
[49] Affidavit of the mother filed 28 April 2021 at [4].
(b)The father was invited to attend the child’s birth as the mother wanted the child to have a relationship with the father and thought it important that he attend.[50]
[50] Ibid at [6].
(c)Since the child’s birth, he has lived with his mother and spent what has been described as ‘sporadic and inconsistent’ time with the father. The mother deposes that sometimes she would not see the father for a month or two and then he would again reappear and ask to spend time. The mother deposes that she would ordinarily facilitate time spending which was mostly supervised whilst the child was a baby.[51]
[51] Ibid at [7].
(d)The mother deposes that when the child was approximately 6 months old, the father requested overnight time. The mother deposes that she was not comfortable with this given the child’s age and the lack of relationship and given that she was breast feeding the child.[52] The mother deposes that the father often proposed that she also stay overnight so that the child could be fed at the father’s home and that the mother was not comfortable with this suggestion.[53]
[52] Ibid at [8].
[53] Ibid at [9].
(e)The mother alleges that ‘there has never been a consistent routine with the father’s time spending’.[54]
[54] Ibid at [10].
(f)The mother deposes that on occasion, the father took the child for a visit and then did not return him at the agreed time. In 2020, the mother deposes that the father commenced threatening her by saying words to the effect ‘If you don’t let me have X I will take you to Court’ and ‘I’m not letting you take X home until you make a plan to have X come to my house’.[55]
[55] Ibid at [11].
(g)The mother deposes that the father’s harassment of her increased across 2020.[56] The mother alleges that each time the father came to her home to spend time with X, he would do so in an aggressive manner. The father would attend at her home and yell through the door words to effect, ‘hurry up, wake up X, I need to go’. The mother deposes that the father had no care for the child’s routine or whether or not the child was sleeping.[57]
[56] Ibid at [13].
[57] Ibid at [14].
(h)The mother says that in September 2020, the father demanded that he have X for a week. The father attended at the mother’s residence and ‘banged on the windows and doors, called me several times, and would not leave me alone until I eventually gave in to him taking X. I felt pressured to give in to stop the abuse. I had agreed to a few days for that visit, but not a whole week. The father then refused to return X until he “was ready”’.[58]
[58] Ibid at [15].
(i)The mother deposes that ‘the father acted in this way multiple times and ended up spending about three (3) weeks with X, in weekly blocks, in or around late 2020. The mother deposes that she felt she ‘had no choice but to allow this time given the ongoing family violence the father had subjected X and I to’.[59]
[59] Ibid at [16].
(j)The mother alleges that the child was in the father’s care in early December 2020. The mother received a call from the Department for Child Protection on 7 December 2020 saying that officers had removed the child from the father’s care. It was alleged that ‘someone had seen the father standing at the end of his bed, with his pants down, and with his penis touching X’s mouth.’ The mother describes being ‘horrified by this’.[60]
[60] Ibid at [17].
(k)Attached the mother’s affidavit and marked, ‘Annexure -1’, is a copy of a Safety Plan signed by the mother with DCP on 7 December 2020. The plan states that the child was to remain in the mother’s full time care and to have no contact with the child unless advised by DCP. Further, the father was not to attend at the mother’s residence.
(l)The father initiated proceedings on 8 December 2020 after the child was removed from his care.
(m)The mother deposes that on 23 December 2020, she was walking to her local Foodland with the child when the father approached her in the carpark. The child ran to the father who then picked up the child and said, ‘he was taking him’. The mother alleges that she informed the father that he should not be there ‘because of the Safety Plan’ but the father proceeded to put the child in his car in the front passenger seat without a child restraint and without a seatbelt.[61]
[61] Ibid at [21].
(n)The mother deposes that they both tried to get into the driver’s seat. The father put the key in the ignition and the mother turned around and tried to remove the keys. The mother deposes that she was screaming for help and eventually an off duty police officer came to enquire as to the altercation. The mother was assisted by the off duty police officer to remove the child from the motor vehicle and return him to the mother. The father then left the scene.[62] The mother then attended at the Suburb F Police Station to seek assistance in reinstating an Intervention order. The mother deposes that she was not assisted by the police who said that they could not help her despite her alleged injury, being bruising to her arm and a Safety Plan. The mother then attended at the Adelaide Police Station where a statement was taken.[63]
[62] Ibid at [22].
[63] Ibid at [24].
(o)On 31 December 2020, the mother deposes that the father attended at her home at 11.00pm to see the child. The mother was not at home and the door was answered by the maternal grandmother. The mother alleges that the father was reported by the maternal grandmother as being ‘noticeably intoxicated’ and the police were called.[64] Time was not permitted with the father on that occasion.
[64] Ibid at [25].
(p)The mother deposes that on 6 January 2021, she entered into a further Safety Plan with DCP. The Safety Plan confirmed that the child was to remain in the mother’s full time care. The Safety Plan expired on 6 February 2021. It was the mother’s understanding that the DCP had closed their file ‘due to insufficient evidence to pursue to investigation into the father.’ [65]
[65] Ibid at [27].
(q)The mother alleges that since January 2021, she had received messages from the father, which are set out in Annexure ‘-3’ to the said Affidavit.[66] The mother alleges that the father has also managed to ‘get into my phone contacts and calls me from other numbers such as my brother and sister.’[67]
[66] Ibid at [28].
[67] Ibid at [29].
(r)Under the heading, ‘Other Concerns Regarding the Father’, the mother deposes that she is concerned about the child spending time with the father given:
(i)When attending at the father’s home, it was in a state of disarray and a ‘complete mess’. It was said to be ‘dirty and dangerous with cords and toolboxes around the place as it appeared the father was renovating.’[68]
[68] Ibid at [30].
(ii)The father is the owner of two aggressive dogs who need to be restrained from each other in the yard because they ‘otherwise fight’. The mother is concerned that the child will be injured by the dogs.[69]
[69] Ibid at [31].
(iii)The father has a history of drug use. The mother deposes that the father has walked into her home with the intention of seeing the child with a glass pipe in his pocket.[70]
[70] Ibid at [32].
(iv)The mother deposes that she has found ‘little bags of drugs in the father’s home’ and has also found a bag of drugs on the ground in the room where the child was sleeping.[71] The mother deposes that on one occasion she found ‘little bags of drugs’ which fell out of the bed where the father had been sleeping with the mother and the child. [72]
[71] Ibid at [33]
[72] Ibid at [34].
(v)The mother deposes that the ‘father associates with questionable people’. Specifically, the mother is concerned that the father associates with persons commonly known as ‘bikies’.[73]
(vi)The mother says that as well as breaking into her home, the father has caused her power and water to be turned off at her residence, has tampered with her air conditioner to stop it from working and has poisoned her plants with lawnmower fuel.[74]
(vii)The mother is concerned for her safety as the father has ‘threatened to kill my family saying he knows where they live and has planned to kill them because he is not seeing X’.[75]
(viii)The mother says that the father broke into her home in March 2020. The mother said that she had the screen door push locked, not with a key, and the large door closed with her keys in the lock. The mother deposes that ‘the father screamed through the door, knocked on the windows and then pushed the screen door out of the door and proceeded to unlock the large door by sliding it across, before putting my keys in his pocket’. The mother deposes that the father said he wanted to take the child. The mother asked the father to leave and then made a police report about the incident.[76]
(ix)The mother deposes that she arranged for her landlord to change the locks as she was concerned for her safety.[77]
(x)The mother says that even after the locks were changed, the father again attended at her home and broke into her home. The mother alleges that she telephoned the police as the father was in her home without consent and was attempting to take the child. The father was taken by the police for questioning and an interim intervention order was issued and the father returned her keys.[78]
(xi)The mother alleges that in the weeks following, she received ‘several harassing messages from the father’ and as a result of the harassment, she reluctantly removed the intervention order prior to the first court date.[79]
(xii)The mother further says that there was never an agreement regarding a week about living arrangement.[80] The mother says that DCP made contact with her when they removed the child from the father’s care.[81]
(xiii)The mother denies that the child has sustained any serious medical injuries that have not been appropriately followed up by her.[82]
(xiv)The mother deposes that there has been no involvement with DCP in respect of her parenting.[83] She has no criminal history[84] and she does not use illicit substances and has no history of using same.[85]
[73] Ibid at [35].
[74] Ibid at [36].
[75] Ibid at [37].
[76] Ibid at [49].
[77] Ibid at [50].
[78] Ibid at [51].
[79] Ibid at [53].
[80] Ibid at [56].
[81] Ibid at [57].
[82] Ibid at [61].
[83] Ibid at [67].
[84] Ibid at [68].
[85] Ibid at [69].
In the mother’s Affidavit filed 22 October 2021, the mother deposes as follows:
(i)There were no set arrangements for X, the father would just take him. He was demanding and the mother was bullied into allowing time spending even though she was scared about it happening.[86]
(ii)The mother acknowledges that she stayed at the father’s home in October 2020. The mother says that she was bullied into allowing him to have the child and that she was scared to leave the child alone with the father and she stayed with the child at the father’s home for 3 weeks. She slept on the lounge.[87]
(iii)The mother says that the father would not allow her to take the child back to her home, unless she had given him a guarantee that she would give the child back to him. The mother deposes that she reluctantly agreed to a week on/week off arrangement because ‘it was what I felt I had to say’ and ‘I also could not keep staying at the father’s home because it was impacting too much on my mental health. I was feeling very anxious in the father’s home.’[88] The mother deposes that when she returned to her home, the father told her that he would return the child ‘when he was ready’.[89]
(iv)On 4 December 2020, the mother says that the father turned up and they went to the shops and he then dropped her back at home and he would not let the child stay with her because he wanted to have his night with X.[90]
(v)The mother denies making the notification to DCP on 5 December 2021.[91]
(vi)The mother does not agree to the father spending any time with the child given the seriousness of the allegations, the father not complying with DCP investigations, the father’s ongoing serious criminal drug charges, his alleged association with motor cycle gangs, his history of drug charges, his failure of not complying with orders to set out details of his criminal history charges and not yet producing a hair follicle test.[92]
[86] Affidavit of Ms Palinkas filed 22 October 2021 at [5].
[87] Ibid at [6].
[88] Ibid at [7].
[89] Ibid.
[90] Ibid at [10].
[91] Ibid at [13].
[92] Ibid at [17].
Affidavit of Ms D filed 27 May 2021
Ms D is an Administrative Assistant in the employ of The Family Law Project, solicitors for the mother. The Affidavit attaches material produced by DCP and SAPOL. That material can be summarised as follows:
DCP Material
(a)Case Note dated 30 March 2020 – ‘Annexure -1’: detailing an incident where the mother was at home with the child when she heard ‘banging and shouting at the front door’. It further details the father becoming angry attempting to get inside and entering the house without consent. The report states that he ‘took her keys and when she asked for it back he told her he would trade her house keys for X’.[93]
[93] Affidavit of Ms D filed 27 May 2021 at [4].
(b)Case Note dated 21 September 2020 – ‘Annexure -2’: Detailing an incident where the father attended the mother’s home unannounced. The father is said to have run out of the back door with the child, placed the child in his car without a car seat and drove off.[94]
[94] Ibid at [5].
(c)Case Note dated 5 December 2020 – ‘Annexure -3’: Outlining Child Protection history confirming the incidents of 30 March 2020 and 21 September 2020. The case note of 5 December 2020 refers to a report to DCP stating ‘the father was standing at the end of X’s bed with X sitting on the end of the bed holding a small toy. The father was holding the side of X’s head with one hand and his own erect penis with the other hand, with the tip of his penis touching his lips. The father had, or was going to put his penis in X’s mouth.’[95]
[95] Ibid at [6].
(d)Case Note dated 6 December 2020 –‘Annexure -4’: SAPOL visit the father’s home and sight the child. Child Protective Services advised that the story, ‘was possible as there is a link that shows methamphetamines make you highly sexualised and the father thought everybody had left then he may have tried, however, the child’s age and the time frame are known it is going to be extremely difficult to get any evidence’.[96]
[96] Ibid at [7].
(e)Case Note dated 6 December 2020 – ‘Annexure -5’: Confirmed that the child had still not been returned to the mother’s home at 8:00pm that day with the mother confirming that this is ‘not unusual’ for the father. DCP confirming that if the child is not returned by 8.30pm, they would do an unannounced home visit to the father’s residence.[97]
[97] Ibid at [8].
(f)Case Note dated 6 December 2020 – ‘Annexure -6’: Advising that DCP attended at the father’s home at 9.20pm where the father was home with the child. The father stated that ‘he knows’ the mother made ‘the allegations as last night he refused to allow X to enter her home to say goodnight’. The father ‘refused to allow X to return to the mother’s care for the night but did agree for him to stay with his friend’.[98] The workers briefly went inside and observed the house to be ‘cluttered with numerous tools within X’s reach’. The workers described the father as appearing to be ‘somewhat agitated and therefore may have been drug affected’. A Safety Plan made between DCP and the father and the friend who was looking after X that night.[99]
[98] Ibid at [10].
[99] Ibid at [11].
(g)Case Note dated 7 December 2020 – ‘Annexure -7’: The DCP offices attend to collect the child. The friend who had been looking after X overnight refused to hand the child over to the DCP workers and indicated that they would not hand over the child ‘without the father being spoken to’. The case note stated that the workers could smell alcohol and the friend was asked if he was drinking beer, which he confirmed that it was.[100]
[100] Ibid at [12]-[13].
(h)Case Note dated 4 January 2021 – ‘Annexure -8’: Refers to the incident at Foodland carpark on 4 January 2021.[101]
[101] Ibid at [14].
(i)Case Note dated 10 January 2021 – ‘Annexure -9’: An allegation that the father had been stalking the maternal family and further allegations that the child had been yelling in a high pitch scream at the maternal grandmother’s home.[102]
[102] Ibid at [15].
(j)Case Note dated 28 January 2021 – ‘Annexure -10’: Outlines the sequence of events from 6 December 2020 to 21 January 2021, including the father’s non-compliance with DCP investigations. DCP attempting to contact the father by phone and reaching his voicemail; the father terminating calls with DCP; the father not showing for the scheduled meeting with the DCP; and continually not engaging with them.[103]
[103] Ibid at [16].
(k)Case Note dated 25 February 2021 – ‘ Annexure -11’: Attaches a letter to the father from DCP confirming that they were closing their file in relation to the allegation of sexual abuse due to the father not making contact with the Department to be able to investigate and substantiate the allegations.[104]
SAPOL material
(l)Annexure ‘-13’: A copy of a Detailed Occurrence Report dated 7 November 2019 where the maternal grandmother reports that the father had ‘turned off the gas and power to the air conditioning’ and was ‘being aggressive and refusing to leave’.[105]
(m)Annexure ‘-14’: A copy of a Street Check Report dated 5 April 2020. Police called to mother’s home when the mother had refused the father entry to her home he ‘became angry’ and ‘was banging on the door’.[106]
(n)Annexure ‘-15’: A copy of a Detailed Occurrence Report dated 6 May 2020, which details the father having broken into the mother’s home, causing property damage and stealing her keys.[107]
(o)Annexure ‘-16’: A copy of a Detailed Occurrence Report dated 14 September 2020 where the father attended the mother’s home and took the child without the mother’s consent.[108]
(p)Annexure ‘-17’: A copy of a Street Check Report dated 20 September 2020 where the father attended the mother’s home and took the child without consent.[109]
(q)Annexure ‘-18’: A copy of a Street Check Report dated 6 December 2020 which makes reference to a welfare check conducted on 6 December 2020 after Crisis Care received an anonymous call about child abuse in the father’s home.[110]
(r)Annexure ‘-19’: A copy of a Detailed Occurrence Report dated 17 January 2021 regarding the incident on 4 January 2021 when an off duty police officer and members of the public came to assist the mother after the father attempted to remove the child from her care.[111]
[104] Ibid at [17].
[105] Ibid at [19].
[106] Ibid at [20].
[107] Ibid at [21].
[108] Ibid at [22].
[109] Ibid at [23].
[110] Ibid at [24].
[111] Ibid at [25].
Child Dispute Conference Memorandum to Court dated 13 May 2021
The parties were interviewed separately by Family Consultant Q. The father was interviewed by telephone and the mother interviewed by video. The father’s proposal was to spend time with the child and this increase until the parties had an equal time arrangement. The mother’s proposal was for there to be no time, but if time were to occur, then it occur at a Contact Centre.
The memorandum under the heading of ‘Agreements reached’ records that no agreement was reached between the parties.
Under the heading of ‘Drugs and alcohol’, the father reported that he ‘has a history of using methamphetamines and marijuana, he has not used methamphetamines in the last 12 months, and he last used marijuana “many years ago”’. He says that he does not consume alcohol to excess.[112]
[112] Child Dispute Conference Memorandum, dated 13 May 2021 at [11].
The father says that he was ‘charged with trafficking methamphetamines about seven years ago and received a suspended sentence with a 3 ½ year bond, and there are pending charges in relation to prescribed equipment being found in his garage and that this matter is next before the Court in July 2021.’ The father informed Family Consultant Q that ‘another man was responsible for the methamphetamine-related equipment that was in his garage and he expects the charges against him will be dropped’.[113]
[113] Ibid at [12].
The father did not raise concerns about the mother’s use of illegal substances or misuse of alcohol.[114]
[114] Ibid at [13].
The mother confirmed that she did not use illegal substances and did not consume alcohol to excess.[115] The mother alleged that when the father was under the influence of illegal substances, the father ‘switches off’ and displays unusual behaviour, for example, on one occasion he remained in the shower for five hours and was falling into the shower walls. The mother says that she found some of the father’s ‘crystal’ drugs in X’s bed after he had slept there.[116]
[115] Ibid at [14].
[116] Ibid at [15].
Under the heading ‘Child safety and well-being’ the Family Consultant notes that the Department removed X from the father’s care in December 2020. The father informed the Family Consultant that he was ‘not interviewed by the Department or police in relation to the allegations that were made at that time and he strenuously denies the allegations he has since seen in the Department’s material’.[117]
[117] Ibid at [16].
The father tells the Family Consultant that he did not have any concern about the mother’s care of X.[118]
[118] Ibid at [17].
Under heading ‘Future directions’, the Family Consultant observed that the child had not spent time with the father since December 2020.[119] The Family Consultant suggested that the Court might consider the father undergoing a hair follicle test.[120] The Family Consultant confirmed that she had not considered the material provided to the Court from the Department for Child Protection or SAPOL and that she was ‘unaware’ of the information contained in the material.[121] The Family Consultant opined:
(1)If the material indicated there are significant child protection concerns regarding the father’s care of X, the Court might consider that a cautious approach would suggest X spends no time with the father at this stage.[122]
(2)If the material does not indicate there are significant child protection concerns regarding the father’s care of X, the Court might consider that X could begin to spend time with the father at a contact centre.[123]
(3)The Court may consider ordering a Family Report.[124]
[119] Ibid at [33].
[120] Ibid at [34].
[121] Ibid at [35].
[122] Ibid at [36].
[123] Ibid at [37].
[124] Ibid at [38].
Documents produced by the Department of Child Protection
Letter dated 30 November 2021 from DCP to the Court pursuant to section 91B order made on 27 October 2021
In the letter dated 30 November 2021, the Department records the following:
…
During the Departmental investigation, significant attempts were made by workers to contact and engage with Mr Nadolny (sic). Mr Nadolny actively avoided engagement with the department and avoided addressing the child protection concerns with the department. Attempts made by the department to engage Mr Nadolny are detailed below:
•8 December 2020 meeting planned for 10:00am at Suburb O office, Mr Nadolny did not attend. 10 December 2020 attempted phone call to Mr Nadolny no answer, voicemail left
•17 December 2020 attempted phone call to Mr Nadolny no answer, voicemail left
•17 December 2020 SMS to Mr Nadolny requesting he contact the department immediately.
•18 December 2021 phone call to Mr Nadolny by allocated worker, Mr Nadolny stated that his lawyer has advised that he is not to speak with the department, Mr Nadolny hangs up the call.
•31 December 2020 phone call to Mr Nadolny by allocated worker, Mr Nadolny states he is unable to talk to the worker and hangs up the call.
•8 January 2021, attempted 2 phone calls to Mr Nadolny, phone does not ring.
•8 January 2021 a letter is posted to Mr Nadolny requesting a meeting with Mr Nadolny on 21 January 2021 10:30am at the Suburb O office. Contact details are included if the meeting time and date are not suitable. 21 January 2021 meeting planned for 10:30am at Suburb O Office, Mr Nadolny did not attend.
•25 February 2021 case closure letter sent to Mr Nadolny.
….
Ms Palinkas engaged fully with the department throughout the investigation including being available for phone calls and home visits. On 7 December 2021 when the department attended Ms Palinkas home and returned X to her care, workers noted that X appeared comfortable in Ms Palinkas care and no child protection concerns were raised. Ms Palinkas was noted to respond appropriately to the incident on 4 January 2021 when Mr Nadolny attempted to abscond with X from a shopping centre car park. During this incident, Ms Palinkas contacted the department after hours Crisis Response Unit (CRU) and engaged in ongoing communication with the department and SAPOL in regards to X's wellbeing and safety.
…
The department were notified by CPS on 18 December 2020 that the matter for X was closed. CPS did not pursue a forensic medical examination of X due to a lack of physical evidence sighted from the departments examination of X and the images provided by the department to CPS. Criminal charges were not pursued by SAPOL due to a lack of physical evidence and the individual who reported witnessing the sexual abuse being unwilling to provide a formal affidavit.
Current Assessment
The department have no new information to indicate that X is at risk of harm at this time. In addition, the department have received no information to indicate that the situation has changed for Mr Nadolny or Ms Palinkas in regards to their capacity to provide a safe care environment for X. A SAPOL safety check completed by the department on 30 November 2021 revealed that Mr Nadolny is currently on bail in relation to charges of manufacturing a controlled drug, prescribed equipment to manufacture a controlled drug and charges for possession or use of a dangerous article; unlawful possession. As such, in addition to the concerns relating to Mr Nadolny sexually abusing X, the department have additional concerns in regards to his engagement in criminal activity and related behaviours in addition to substance use and manufacture.
The department's assessment from the recent investigation therefore remains current. In the event that the Federal Circuit Court do order contact between X and Mr Nadolny, the department would recommend it be supervised in a family contact centre and that a family contact report be completed and provided to the Court. In addition, given the serious nature of concerns for Mr Nadolny, the department would also recommend that Mr Nadolny engage in a parenting capacity/mental health assessment with a psychologist and engage in substance screening.[125]
Documents produced by SAPOL
[125] See letter dated 30 November 2021 from DCP to the Court pursuant to section 91B order made on 27 October 2021 at 3 – 5.
Information provided by the Family Law Information Sharing Officer to the Court dated 1 March 2021
On 1 March 2021, the Embedded Officer from the Family Law Information informed the Court that the father had pending charges for:
‘Possess or Use a Dangerous Article (taser), Unlawful Possession, Breach Bail, Manufacture a Controlled Drug, Possess Prescribes Equipment to Manufacture Controlled Drug (Cannabis Oil & Methyl amphetamine).
SUBMISSIONS MADE BY COUNSEL
On behalf of the father
Mr Bowler, on behalf of the father, made the following submissions:
(1)In the absence of having complied with the order of the Court made on 27 October 2021, paragraph 5 for a hair follicle test, Mr Bowler held instructions to concede that his client had been using Methylamphetamine ‘until October 2021’.
(2)Mr Bowler also submitted that there had been no complaint by the mother in relation to the father’s care of the child.
(3)Whilst there are complaints about drugs and family violence, he submitted the father had spent significant time with the child and no risk had come to the child save for the allegation of sexual abuse.
(4)The mother is now opposing supervised time and it was ‘inconceivable’ why the mother had taken this position.
(5)Notwithstanding the allegations of drug, use the mother had stayed overnight at the father’s home.
(6)Despite her asserted concerns, the mother had done nothing about ceasing time spending.
(7)That there was no possible risk that could come to the child if the father was having time with the child under professional supervision.
(8)Mr Bowler referred the Court to the decision of Dieter & Dieter.[126]
[126] Dieter & Dieter [2011] FamCAFC 82.
(9)The father says that there was nothing which had occurred which came within the test of Dieter (supra), namely, there was no degree of probability that a harmful event has occurred or will occur.
(10)The mother had not said in any document that the child had been emotionally or psychologically abused.
(11)There is a complete lack of evidence in relation to the allegation of sexual abuse.
(12)The mother’s allegations regarding association with bikies and drug dealers did not specify those risks.
(13)It was ‘frankly extraordinary’ that the mother submitted that the risk to the child is so great that supervised time would cause the child to come to harm.
(14)The mother had not responded as to why she opposes the order professional supervision.
(15)Mr Bowler referred to documents contained in the Affidavit of Ms D which he says reflect poorly on the mother, namely, Annexure ‘-4’ dated 6 December 2020 where SAPOL had been trying to contact the mother and she hung up the telephone.
(16)Mr Bowler then referred to the Child Dispute Conference Memorandum, dated 13 May 2021, and said that in all of the circumstances, there was no risk to the child having supervised time with his father and that the father needed to redevelop his relationship with the child. It was asserted that the father had appropriately acknowledged the use of drugs.
(17)In relation to a question from the Court regarding the father’s purported involvement in the J Centre Drug program, Mr Bowler took instructions and submitted that the program was full for Term 4, and that the father had enrolled to commence in Term 1, 2022.
(18)Mr Bowler referred to Exhibit F1, the SAPOL Detailed Occurrence Report on page 3 of 8, where it stated under the heading of ‘Results’:
This notification was made by an anonymous complainant through CARL. The victim in this matter is 2 years old and is under shared custody between his biological mother and father. The complainant was located and spoken to and the veracity of the complaint is doubtful. CYPS Act s 163.
(19)Further, in the Report on page 4 of 8 under the heading of ‘Investigator action’:
See attached the email received from DCP:
Hi SAPOL, CPS and Suburb O DCP,
DCP After Hours and Western FVIS attended the father’s home on the 6/12/2020 and sighted X. X appeared well cared for and well attached to his father. Workers did not examine his body for any injuries.
Father was of the belief that DCP were present because his ex-partner had made up some allegations. Father was co-operative with DCP After Hours and agreed to a safety plan whereby X stay with a family friend for Sunday evening … It is noted that X’s father refused to allow X to return to his mother’s care tonight as he believes she had made the allegations and he was due to have the child for a further night. In the safety plan, X’s father has agreed to cooperate with CPS if a general health check is required. X’s father has been encouraged to call Suburb O DCP around midday if he has not heard from workers.
X’s mother was also informed of DCP involvement and is aware X is staying elsewhere for the night.
It is noted that DCP After Hours worker and SAPOL observed the bed which is a red racing car and that the end of the bed is not visible when the door is only ajar as reported by the notifier.
(20)Further, in the Report on page 6 of 8 under the heading of ‘FILING / FINALISATION REQUEST’:
‘This notification was made by an anonymous complainant through CARL.
The victim in this matter is 2 years old and is under shared custody between his biological mother and father.
The complainant was located and spoken to and the veracity of the complaint is doubtful. CYPS Act s 163 … refusing to provide a statement.
WDCFIS (R) attended the home address of the father which is the alleged scene. There are discrepancies between the complainant’s version of events and the scene itself.
DCP have spoken with the mother. She states the only issues she has when X returns from his father’s address is a poor bed time routine and disrupted sleep. DCP did not observe any obvious signs of injury and have implemented a safety plan, which includes the father having no contact with X until advised by DCP. The safety plain will expire on 8th January 2021.
CPS have confirmed they do not want to undertake a medical/health check.
As the victim is 2 years old and is unable to provide a version of events, no cctv is available, no forensic evidence or statement from the complainant I recommended this matter be filed, there is no reasonable prospect of conviction.
On behalf of the mother
Mr Robinson, on behalf of the mother, made the following submissions:
(1)Mr Robinson relied upon the mother’s documents as set out above.
(2)It was submitted that the mother had been bullied into providing the time spending and that the mother had been present for many of those occasions due to her weight of her concerns.
(3)Mr Robinson submitted that there were inconsistencies in the father’s own evidence, for example that the father’s Affidavit filed 1 September 2021 at paragraph 14.3 – the father refers to it being marijuana but tells Family Consultant Q in paragraph 12 that it was methylamphetamine.
(4)Mr Robinson submitted that if the father was running a ‘meth lab’ from his home then the risks to the child are ‘obvious and inherent’.
(5)Mr Robinson observed that the father had narrowed his application to professional supervision.
(6)Mr Robinson referred to the Affidavit of Ms D at page 24 that the person who attended at the father’s home, and who subsequently made the notification, was allegedly present to purchase drugs.
(7)Mr Robinson also referred to two attempts of the father to remove the child from the mother’s care as referred to above.
(8)Mr Robinson criticised the father saying that his Affidavit filed on 9 December 2021 was not ‘full and frank’ in accounting for the father’s criminal charges.
(9)Mr Robinson submitted that there was a distinct possibility that the father may be ‘facing gaol time’ and that it would be not in the child’s best interests to commence time spending if that was the case.
(10)Counsel referred to ‘Exhibit M1’, the SAPOL Offender History Summary Report:
‘CRIMINAL HISTORY (PIMS)
1.Possess prescribed equipment – date of offence 4/3/2020
2.Manufacture a controlled drug – date of offence 4/3/2020
3.Possess instructions for manufacture of a controlled drug – date of offence 4/3/2020
·On 9 September 2019, the father was convicted for possessing a controlled drug (not cannabis).
·On 21 November 2018, the father was convicted for possessing prescribed equipment.
·On 13 June 2017, the father was convicted for driving under disqualification or suspension.
·On 6 December 2016, orders were confirmed for traffic (type unknown) in a controlled drug – basic; drive under disqualification or suspension; fail to comply with bail agreement.
·On 9 July 2016, the father was sentenced for each of the confirmed orders and given a suspended sentence entering into a Bond for 3 years.
·On 28 May 2008, the father was convicted for drive with excess blood alcohol and contravene a condition of a provisional licence – PCA.
·On 26 February 2008, the father was convicted for misuse motor vehicle – sustained wheel spin.
·On 27 June 2006, the father was convicted for drive with excess blood alcohol and contravene condition of provisional licence – PCA.
(11)The mother opposed any orders for time spending between the child and the father.
On behalf of the Independent Children’s Lawyer
Ms Lindsay, on behalf of the Independent Children’s Lawyer, made the following submissions:
(1)Ms Lindsay relied upon the CDC Memorandum dated 13 May 2021, the letter from DCP to the Court dated 26 February 2021 and the letter from DCP to the Court annexing a Report dated 30 November 2021.
(2)There are significant child protection issues involving the father.
(3)The father’s conduct greatly concerned the Independent Children’s Lawyer.
(4)The submission made by the father’s counsel that there could not have been any impact on the child given the traumatic circumstances in which the child was eventually removed from the father’s care on the 8 December 2020 ‘concerned’ the Independent Children’s Lawyer.
(5)The Independent Children’s Lawyer referred to the father’s Affidavit of 3 August 2021 and submitted:
(a)That the father was to commence the Circle of Security Parenting Course in October 2021.[127]
[127] Affidavit of the father filed 3 August 2021 at [10].
(b)The father now submits in his Affidavit, filed 9 December 2021, that the said Course is fully subscribed and he cannot participate.[128]
[128] Affidavit of the father filed 9 December 2021 at [6].
(6)Ms Lindsay agreed with the submissions made by Mr Robinson that there had been a misrepresentation to the Court in relation to the father’s drug charges.
(7)Ms Lindsay submitted that the Court should order that the father, within 24 hours, undertake a hair follicle test.
(8)The Independent Children’s Lawyer opposed time spending in circumstances where:
(a)The father was using methylamphetamine up to October 2021.
(b)The father had misrepresented his criminal charges to the court.
(c)The father had not undertaken the Circle of Security Course.
(d)The father had failed to comply with orders of the Court, namely the order for hair follicle testing.
(9)The Independent Children’s Lawyer submitted that the father’s submission that the child was never at risk in his care showed ‘a profound lack’ of insight.
(10)Ms Lindsay submitted that this was a case whereby the issue of whether or not the child should in fact have a relationship with the father was a trial issue. It was submitted that the child ‘may benefit from not establishing a relationship with his father’.
(11)Ms Lindsay sought the following orders:
(a)The proceedings be listed for trial;
(b)A Family Report be prepared; and
(c)Injunctive relief being made restraining the father from removing the child from the mother’s care.
LEGAL PRINCIPLES APPLICABLE
The nature of an interim hearing
This is an interim hearing. Given the nature of an interim hearing, the Court is yet to hear oral evidence from the parties or any relevant expert in relation to the competing allegations and evidence with respect to what is in the best interests of the child.
The nature of an interim hearing has been described as one which is ‘significantly curtailed’. The Full Court has cautioned Courts at this interim stage from ‘being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible’.[129]
[129] Goode & Goode (2006) FLC 93-286 at 80,901.
At this interim stage, the Court is directed to have regard to less contentious matters such as any facts which might be agreed or issues which are not in dispute.
Consequently, the evidence before the Court at this interim stage is limited and any orders made are provisional in nature pending further evidence being made available to the Court, particularly when that evidence can be subject to cross examination.
In this case, the parties disagree about many matters. The father contends that with the mother’s consent he had extended overnight time with the child culminating in a week about shared care arrangement for the latter part of 2020. The mother does not deny that the father spent time with the child as he submits. The mother’s case, however, is that this arrangement was imposed upon her by the father against her opposition. It is the mother’s case that the father would either harass her to such an extent that she would capitulate to his demands, or alternatively, the father would simply take the child and keep the child in his care. It is agreed, however, that the parties have never cohabitated together.
Whilst the nature of an interim hearing is different to a final hearing, the legal principles to be applied upon in the Act are the same. Those principles are set out in Part VII of the Act.
Section 60CA of the Act sets out that in deciding whether to make any particular parenting order in relation to a child, the Court must regard the best interests of that child as the paramount or most important consideration.[130]
[130] Family Law Act 1975 (Cth), s 60CA.
The criteria upon which the Court must take into account in deciding how the child’s best interests are to be served, are set out in section 60CC of the Act. This section creates two classes of considerations, primary considerations and a longer list of additional considerations. The Court is directed to give greater weight to the primary considerations[131] which are linked to the overall objects and principles of the Act as set out in section 60B of the Act.
[131] Section 60CC(2A) of the Act.
The two primary considerations to be brought to account are as follows:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents;[132] and
(b)The need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.[133]
[132] Section 60CC(2)(a) of the Act.
[133] Section 60CC(2)(b) of the Act.
Section 60CC(2A) of the Act, directs the Court in applying the primary considerations to ‘give greater weight’ to the primary consideration relating to protective concerns applicable to children. Accordingly, the Court is directed to elevate concerns with respect to a child’s exposure to abuse, neglect and family violence in all things. This is not to say that the Court is to ignore the question of a child having a meaningful relationship with a parent. Rather, the Court must give greater weight to protecting the child in undertaking the delicate balancing act of the two competing issues.
The father’s case is that the child would benefit from resuming a relationship with him. The father’s case is that prior to the removal of the child by DCP on 6 December 2020, he enjoyed a level of care of the child (with the mother’s consent he says) which enabled the child to maintain a meaningful relationship with him. The father’s counsel submits that there were no complaints by the mother in relation to the father’s care of the child sufficient to cause the mother to cease those arrangements prior to the intervention of DCP.
The mother’s case, on the other hand, is that the father’s time with the child was imposed upon her by the father. The mother alleges that she had concerns about the father’s time with the child but fell into line with the father’s demands for time spending at a level that she did not consider in the child’s best interests, given his age, stage of development, and the father’s lifestyle. The mother alleges that if she did not agree with the father, he would take matters into his own hands, or act in such a way until she did agree.
The question of what is a ‘meaningful relationship’ is not specifically defined in the Act. It has been said that the use of the word ‘meaningful’ is to be considered in the ordinary meaning of the word. In the decision of Mazorski & Albright[134] the Court indicated that a meaningful parental relationship is one which is ‘important, significant and valuable to the child’ concerned.
[134] Mazorski & Albright [2007] FamCA 520; (2007) 37 FamLR 518, 526 at [26].
The question of the child maintaining a meaningful relationship with a parent is to be assessed globally and not by reference simply to historical matters. As part this delicate assessment process, the Court must look to future benefits which will come to the child if a meaningful relationship is maintained.
The father would say that he has not had any opportunity to continue or enjoy a meaningful relationship with the child for a period in excess of 12 months. The father would argue that the current status quo in terms of time spending, as it has existed for the past 12 months, does not support the Act in terms of promoting a meaningful relationship between the father and the child as the Court is required to do.
However, the mother’s case, which is supported by the Independent Children’s Lawyer, is that the father’s conduct and lifestyle represents a risk to the child which must take priority in determining what orders are to be made at this interim hearing. The mother and Independent Children’s Lawyer argue that the father has failed to provide any evidence confirming that he is now drug free. The father’s failure to comply with an order of this Court for him to undertake a hair follicle test in order to satisfy the Court that the father is drug free, is not a matter that can be lightly ignored. The mother argues that the father has a personality which lends itself to the father taking matters into his own hands. The complete failure by the father to comply with an order of this Court, which was designed to confirm his alleged drug free status, and then for the father to fail to comply with that order because it was ‘discriminatory’ is a serious matter.
Aside from a submission made by the father’s counsel at the hearing on 9 December 2021, that he held instructions that the father has not consumed methylamphetamine since October 2021, there is no evidence before the Court to support that assertion and consequently the Court cannot be satisfied that the father is no longer using illicit substances. That evidence in time may be put before the Court. The father has apparently taken pro-active steps to register and enrol in a number of parenting courses and rehabilitation programs designed to address his substance abuse issues. At this current juncture, however, there is no evidence before the Court, other than the urine tests undertaken by the father at a time and date convenient to him, to satisfy the Court that the father is drug free.
In addition, the father faces a number of serious criminal charges which are awaiting Trial. At this stage, the father is contesting those charges, as he is entitled to do. Some of the charges allegedly relate to the father’s ongoing involvement in ‘a drug lifestyle’. The father asserts that he has been advised by his counsel that he will not be facing a term of imprisonment. That of course, remains to be seen.
In addition, the mother argues that the father engaged in coercive and controlling family violence directed towards her in the presence of the child. Section 4AB(1) of the Act sets out that for the purposes of the Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.[135]
[135] Section 4AB(1) of the Act.
Section 4AB(2) of the Act, describes examples which may constitute family violence, including, but not limited to:
(a)An assault; or
(b)A sexual assault, or other sexually abusive behaviour; or
(c)Stalking; or
(d)Repeated derogatory taunts; or
(e)Intentionally damaging or destroying property; or
(f)Intentionally causing death or injury to an animal, etc.[136]
[136] Section 4AB(2) of the Act.
There are allegations made by the mother in these proceedings which would fall within the definition of family violence, as prescribed in the Act. Those allegations are denied by the father. The father’s denial, however, does not mean that the allegations can be ignored, particularly when combined with overarching concerns regarding the father’s use of illicit substances and his lifestyle choices.
In addition to the issues of illicit substance usage, and family violence, is the allegation regarding sexual abuse of the child by the father. The allegation is graphic and disturbing. The identity of the person who made the notification to the Department of Child Protection is protected under section 163 of the Children & Young People (Safety) Act 2017 (SA). The mother denies that she was the notifier. It is suggested in the documents provided by the Department, that the notifier attended at the father’s home to purchase drugs. There are conflicting accounts in the material provided by the Department as to the veracity of the notifier. The father vehemently denies any sexual impropriety towards his son. It is a curiosity that the father failed to engage with the Department when they were in the throes of undertaking their investigation in December 2020 given his strong denials. Page 4 of the section 91B report dated 30 November 2021 to the Court sets out the significant efforts made by the Department to contact the father. The father’s failure to engage and to simply ignore the Department, does not reflect well on him. In the end, given that the child was the subject of a Safety Plan, in the primary care of the mother, and spending no time with the father, the Department simply closed their investigation. This does not mean that there is no substance to the allegation.
The father’s counsel argues stridently that no harm would come to the child in having professionally supervised time with the father. In an objective sense, the child would be physically safe under the watchful eye of a professional supervisor. The mother’s counsel and the Independent Children’s Lawyer argue that there should be no time spending, even on a restrictive basis under supervision, until the father has demonstrated that he is drug free, there is clarity with respect to the father’s criminal charges and their outcomes, and there is testing of the evidence in relation to allegation of sexual abuse.
In my view, at this stage, there is merit to the argument that the father should put evidence before the Court in relation to his engagement and completion of drug courses and to comply with orders of the Court regarding drug testing and the father’s abstinence from same before consideration is given to even supervised time between the father and the child. Whilst it is not the role of the Court to be seen to ‘punish’ the father for his perceived lifestyle choices, there is merit to the submission that without some incentive to cease consuming methylamphetamine, the question ultimately will be, how does the father ultimately move from supervised time to unsupervised time. It is argued that if the father does not address the question of methylamphetamine usage now, why would time commence if it cannot progress and develop towards a normal and natural relationship? I do not consider at this stage that it is appropriate to make an order for equal shared parental responsibility and I consider that such an order is rebutted at this stage of the proceedings. Accordingly, the Court does not need to consider the child spending either equal time or substantial significant time with either of his parents. More importantly, given the child’s age, the seriousness of the allegations, the lack of any positive evidence before the Court as the father’s abstinence from drugs, and the father’s failure to comply with an order of this Court for hair follicle testing, in my view, the case requires a measured and child focused response.
During the next tranche of the proceedings, the onus is on the father to satisfy the Court that he has taken steps to undertake the courses set out in his affidavit and to further confirm with the Court that he has taken steps to cease using illicit substances. A Family Assessment Report will also be crucial in assisting the Court as to the appropriate orders for the child moving forward and the dynamic of this family.
CONCLUSION
Accordingly, for these reasons set out herein, I make the orders as set out at the commencement of these reasons.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Dated: 21 December 2021
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