PAINTON & PAINTON
[2019] FCCA 3541
•17 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PAINTON & PAINTON | [2019] FCCA 3541 |
| Catchwords: FAMILY LAW – Interim parenting – family violence – use of illicit drugs – where risk of harm to children from both parents. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MR PAINTON |
| Respondent: | MS PAINTON |
| File Number: | WOC 908 of 2019 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 18 September 2019 |
| Date of Last Submission: | 22 November 2019 |
| Delivered at: | Wollongong |
| Delivered on: | 17 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lawrence |
| Solicitors for the Applicant: | Nikolovski Lawyers |
| Counsel for the Respondent: | Ms Doosey |
| Solicitors for the Respondent: | Rossi Simicic Lawyers |
ORDERS PENDING FURTHER ORDER
Commencing from the date of these Orders, the Children X born … 2013 and Y born … 2015 (“the Children”) live with the Father as follows
(a)Week One: -
(i)From after school on Thursday (or otherwise 3:00pm) to before school on Tuesday (or otherwise 9:00am).
(b)Week Two:-
(i)From after school on Friday (or otherwise 3:00pm) to before school on Monday (or otherwise 9:00am).
Subject to Order 1 above the Children live with the Mother at all other times.
Changeover is to occur using the facilities provided by CatholicCare City A or B Centre with the costs to be equally shared between the parents, unless otherwise agreed between the parents.
Within 24 hours, the Mother and Father do all things necessary, sign all documents required and attend all assessments required to implement CatholicCare’s supervised changeover services in order to implement Orders 1 and 2 above.
The Father and the Mother each undertake (by provision of urine screen in accordance with the Australian/NZ standard 4308:2008 or any subsequent approved standard) chain of custody urinalysis for drug screening on no more than one occasion each calendar month and within 48 hours of receipt of a request to do so from the Independent Children’s Lawyer with such request to be communicated by email, SMS communication or facsimile transmission to the Solicitor for the party or the party directly and provide copies of the results of the tests to the other party and the Independent Children’s Lawyer within 48 hours of receipt of same. For the purposes of this order each party if unrepresented shall within 24 hours provide to the Independent Children’s Lawyer details of their mobile phone number, email address if available and facsimile phone number if available.
The Independent Children’s Lawyer has leave to file in Chambers a Minute of agreed order in relation to;
(a)further drug testing;
(b)the provision of a Family or Single Joint Expert Report; and
(c)any further agreed order.
In the period before the implementation of changeover pursuant to Order 3, changeover shall occur at the McDonalds Family Restaurant closest to the home of the Father on the basis that;
(a)Each parent will physically remain in their motor vehicle; and
(b)A responsible adult persons known to the Children will facilitate the Children going from the care of one parent to the other.
Liberty is granted to the parties to re-list the matter on 48 hours’ notice by joint application to the Court in Chambers in appropriate circumstances.
IT IS NOTED that publication of this judgment under the pseudonym Painton & Painton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 908 of 2019
| MR PAINTON |
Applicant
And
| MS PAINTON |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about two children X who is six years old and his brother Y, four years old. The Court must decide where the children live, what time they should spend with the other parent, and under what conditions. The Father is the Applicant. He is 39 years old and describes himself as the proprietor of a business. He lives at the home of the paternal grandparents in a suburb of City A. The Respondent Mother is 35 years old. She currently lives with the children at an undisclosed location in the City A area. The parents met in 2005, commenced cohabitation in 2007, married in 2010, and separated approximately mid-2019.
Background
At the outset the Court must record its profound sense of not being told everything by either of the parents. This is a decision that needs to be made, but is being made in a context of factual uncertainty which has been contributed to by both parents. It is a risk assessment exercise. The Court will conclude that there is a risk to these children whether they live with their mother, or live with their father. For the time being, the orders that will be made will reflect where the Court believes, doing the best it can, minimises the least risk for the children whilst maintaining a relationship with both parents.
There are other disturbing characteristics of this case. Both parents adopted polarised positions in the litigation. Both were represented by experienced Counsel, at the Interim Hearing. Both parents are represented by competent lawyers. Neither is presently legally aided. Notwithstanding this, both parties submitted, at various points during the interim proceedings, that they were impecunious and could not afford drug tests in the case of the Mother, and in the case of the Father that he could not afford to pay the Mother’s drug tests.
Each parent makes very serious allegations about family violence allegedly perpetrated by the other. Each parent denies that they perpetrated family violence except in the context of self-defence. There is an ADVO against the Father. The Mother alleges that the family violence commenced shortly after a cohabitation, and that it included sexual violence. The Father denies this.
The Father alleges that the Mother has experienced mental health issues from very early in the relationship, manifested by erratic behaviour and threats of self-harm. He further contends that at least from 2018 the Mother commenced problematic alcohol and drug use. The Mother alleges that the Father was a user of the cocaine and methamphetamine, and in fact introduced her to methamphetamine. The Father admits to using cocaine, but never methamphetamine. The Mother admits drug use during the last year of the marriage, including methamphetamine use once a week in this period. The Mother denies mental health issues, but does admit that there was at least one mental health referral/admission for her during their relationship.
The Mother alleges that she was the primary carer of the children, for most of their lives. The Father disputes this characterisation, and asserts he was actively involved in their care at all relevant times. The Mother concedes that shared care was put in place in between May and July 2019. There were times in the post separation period when both parents unilaterally retained the children from each other. An interesting feature of this case, however, is that notwithstanding what was clearly an acrimonious separation from mid-2019 and notwithstanding the serious allegations both make, the parents implemented an arrangement that was initially equal shared care, and then which resulted in the Father having regular and substantial time with the children. This only appears to have ceased on the commencement of the present proceedings.
In the lead up to the Interim Hearing a regime of drug testing was implemented. The evidence indicates that the Father promptly complied with all requests for him to undertake drug testing, and CDT testing. His results were unremarkable, and where a urine test was positive, he provided an acceptable explanation based on prescription medication that he was taking at the time.
The drug testing regime in relation to the Mother was, however, more problematic. Her drug tests were not provided on time even though they were negative. The evidence about the Mother’s drug use was contained in an affidavit in which she made a voluntary disclosure. Notwithstanding that, she declined to provide a hair test requested by the Father. Moreover, notwithstanding an order made by this Court on 24 September 2019 that she provide a hair sample for testing purposes, she once again declined. She contended that she could not afford the same.
When the matter was relisted before the Court on 8 November 2019, following the Mother’s non-compliance with the order of 24 September 2019, the Independent Children’s Lawyer who had been appointed, and appeared for the first time thought that she was able to secure funding for the Mother’s drug test but that turned out to be incorrect.
Risks to the children
The risks to the children appear to come from a number of different sources. It is clear that they are exposed to a highly conflictual situation. It is highly likely that they have been exposed to intense parental conflict during the relationship and after separation. The Court will form the impression that it is highly likely that the children have also been exposed to conflict between the parents which has escalated to violence which was primarily, but not exclusively, perpetrated by their father, sometimes in their presence. The Court will form the impression that it is also highly likely that the children have been present, or exposed to, periods when the Mother has dysregulated possibly because of the mental health stresses that she has experienced. The Court will form the impression, even on the basis of this very limited assessment, that it is highly likely that the children have been exposed to periods when their mother has been under the influence of drugs, and that these periods probably included times when the Mother was responsible for their care.
A number of factors will inform the risk assessment and management exercise. The focus must always be on protecting the children from harm. Of relevance will be whether the parents have acknowledged the risks to the children, denied or minimised them. Of further relevance will be to understand the support systems in place to protect the children from aspects of their parent’s behaviour which presents a risk of harm to them. The nature of the risk is also important. Some risks, perhaps including the risk of further exposing the children to conflict and family violence, can be mitigated by separating the parents, and either ensuring they have no contact with each other, or minimising the same. Other risks, for example possibly including the risk of the Mother continuing to use drugs, or relapsing into drug use, cannot necessarily be managed in the same way.
The competing proposals
The competing proposals were almost diametrically opposed. The Father sought that the children live with him and that he have sole parental responsibility. The Mother proposed that the children live with her, and that she have sole parental responsibility. The Father proposed that the Mother have limited daytime contact with the children supervised by the maternal grandparents. The Mother proposed that the Father have limited daytime contact with the children supervised by a professional supervision service.
The evidence before the court
In the Father’s case, he relied on the following documents;
a)Initiating Application filed 19 August 2019;
b)Affidavit of Mr Painton filed 12 September 2019;
c)Affidavit of Mr Painton filed 29 August 2019;
d)Affidavit of Mr Painton filed 19 August 2019; and
e)Notice of Risk filed 19 August 2019.
In the Mother’s case, she relied on the following documents;
a)Response filed 21 August 2019;
b)Affidavit of Ms Painton filed 22 November 2019;
c)Affidavit of Ms Painton filed 5 September 2019;
d)Affidavit of Ms Painton filed 21 August 2019; and
e)Notice of Risk filed 21 August 2019.
The following documents were tendered as evidence during the court of the proceedings;
a)The Mother’s drug test results dated 26 August 2019;
b)Documents produced pursuant to subpoena on NSW Police;
c)Documents produced pursuant to subpoena on QLD Police.
d)The Father’s drug test results dated September 2019; and
e)The Mother’s drug test results dated 2 September 2019.
The applicable law
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The Case Law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In Insley & Insley [2018] FCCA 438
The Challenge of Fact-Finding in this Case
[61] This Court is in a very difficult position. Whilst all the material before the Court can be closely scrutinised, the fact is that the evidence has not been tested and, in reality, cannot be tested for many months, simply because of the demands on the Court’s time from other cases. The Supplementary Written Submissions proposed by Mr Knox SC highlight the evidentiary issues and emphasise the importance of credit, even in an interim hearing.
[62] If the Court believes that there is substance to the Mother’s concerns, it is more likely to accept her proposal to remain in Melbourne, and to thus focus on what is the most appropriate arrangement for X to spend time with his Father and paternal family, but in Melbourne. If the Court accepts the Mother’s concerns about family violence and abuse, it is unlikely to accede to a proposal that involves the Mother and X to the (omitted), even if all the financial issues are satisfactorily addressed by the Father. The Court accepts that whether there is an objective basis for the Mother’s fear or not to bring her back to the (omitted) where she would be alone, and completely financially dependent on the Father, is merely likely to re-traumatise her, at least from her perspective.
[63] In Goode & Goode the Full Court warned against making findings of fact where findings are not possible. The Court did not rule out making findings of fact and, it must be remembered that findings can be made on the basis of uncontested matters, or admissions. To the extent, moreover, that findings may be differentiated from inferences, inferences may certainly be drawn from all of the material available before the Court.
[64] Senior Counsel for the Father quite properly referred the Court to the Full Court’s decision in Goode & Goode. Of course there have been later Full Court decisions that suggest in that, particularly in cases where there are allegations of family violence, a more nuanced approach is warranted. For example, the Full Court in SS & AH [2010] FamCA 13 at [100] noted that sometimes judges will have little alternative but to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. The Full Court stated that it is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue. Nonetheless, the Full Court warned, findings must be couched with circumspection.
[65] The Full Court in Marvel & Marvel (No.2) [2010] FamCAFC 101, in referring to its earlier decision in SS &AH stated at [120] that decision-making in interim proceedings is difficult, and thus a conservative approach is warranted, or one which is likely to avoid harm to a child.
[66] In Reece & Reece [2011] FamCAFC 24, the Full Court warned at [76] about the consequences of failing to have regard to expert evidence simply because it was untested in cross-examination. In that case the evidence was a Family Report. In this case, of course, it is a Child Dispute Conference Memorandum.
[67] In Deiter & Deiter [2011] FamCAFC 82, at [54] the Full Court suggested that s.60K (now s.67ZBB) of the Act signalled a clear policy imperative of ensuring that allegations of family violence are treated seriously and dealt with expeditiously. In an ideal world, these allegations could be dealt with at a discreet issues hearing, or an expedited final hearing. In reality, in a registry of this court where almost all of the cases involve allegations of family violence, neglect, abuse, drugs or alcohol and mental health, neither a discreet issues hearing, nor expedition is possible. It is nonetheless imperative that allegations of family violence are treated seriously.
[68] At [61] in Deiter, the Full Court discussed risk analysis:
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
[69] The Full Court at [77] noted that it is not open to a trial judge to simply ignore an allegation because it had not been tested.
[70] The Full Court in Enmore & Smoothe [2014] FamCAFC 131 at [39] explained that a finding of risk of abuse may be reached on the basis of evidence which falls short of that required for a finding that abuse has occurred. However, that is not to suggest that evidence aimed at establishing a possible risk of abuse should not be subject to careful scrutiny, since serious consequences can also flow from a finding that a child is at risk of abuse.
[71] In 2015, the Full Court in Eaby & Speelman [2015] FamCAFC 104 at [18] expressly stated that the comments of the Full Court at [68] in Goode did not mean that merely because the facts are in dispute the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts. Moreover, at [21] the Full Court recognised:
Much of what occurs in families takes place in private, as a consequence of which corroboration is often not available. It follows that the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.
[72] In Salah & Salah [2016] FamCAFC 100 the Full Court in 2016 focused on s.60CG, which requires a Court when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. Again, trial judges were reminded in that judgment that corroboration or objective support for allegations is not always necessary, especially because family violence often takes place in private in circumstances where no corroboration is available.
The existing orders
On 29 August 2019, and pending further order of the Court following an Interim Hearing, the Court ordered that the children live with their mother, and spend time with their father for two hours each week such time to be supervised by a professional supervision agency. Orders were made for drug testing. An Independent Children’s Lawyer was appointed. Directions were made for the preparation of the Interim Hearing.
Despite the order that was made for the Father to spend supervised time with the children, he did nothing to implement this order as at 13 November 2019 when the matter was last before the Court. This is surprising. If the Father’s explanation for this was that he could not afford private professional supervision, the Court would again be surprised. He led no evidence about his financial circumstances. As he lives with the paternal grandparents, a reasonable inference is that he appears to enjoy their support.
The Interim Hearing
The Interim Hearing took place on 18 September 2019. The Court reserved its judgement. As the Court was considering the material before it, however, it became obvious to the Court that it would be greatly assisted by further evidence about the Mother’s historical drug use. The matter was relisted on 24 September 2019. The solicitors for both parents attended. The Court raised its concern, and flagged its proposal to make orders for the Mother to undertake drug testing. The Father agreed. The mother opposed the same. She raised 3 issues, through her solicitor. Firstly that she could not afford drug testing. Secondly, it was submitted on her behalf that she had been candid in her disclosure of drug use, so there was no need. In addition she submitted that it was unfair because the father had short hair, whereas she had long hair. The Court did not accept the Mother’s arguments and made an order for hair testing.
The Court was anxious to deliver its reserved Judgment but still had not received the mother’s drug test as at 6 November 2019. The matter was relisted. The parents attended with their lawyers, and this time the Independent Children’s Lawyer appeared. The Mother’s position continued to be that she could not afford drug testing. As mentioned earlier in these reasons, the Independent Children’s Lawyer thought that she could obtain funding for this test. In any event, the Court must express its surprise at the proposition that the Mother could not afford the hair test in circumstances where it was a critical aspect of the Father’s case against her, and where she was able to continue to retain private legal representation and had, indeed, been represented by experienced Counsel at the Interim Hearing.
It is by no means unusual for this court to make orders for any form of drug testing, and to be told by parents that they cannot afford the same, even when the risk to children presented by their parents use of drugs, or the question of relapse into drug use, is the critical issue.
A curious feature of this case is that the Mother’s claim for impecuniosity was completely unsupported by any evidence. Having raised the issue on 24 September, the Mother could have filed evidence in support of her claim, but did not do so until her Affidavit affirmed 22 November 2019 filed 29 November 2019. The delay is hard to understand in circumstances where the children were living with her, but not spending time with their father. One possible inference that could be drawn is that she did not consider it in her interests to facilitate an expedited judgment from the Court.
After making the order for hair testing on 24 September 2019, Chambers wrote to the Mother’s lawyer on 15 October enquiring as to the receipt of the hair testing. As there was no response, there was a further letter on 6 November 2019. It was not until 7 November 2019 that the Mother’s solicitor formally advised the court: ‘ our client remains unable to undertake a hair drug test for the financial reasons as foreshadowed by the writer when the matter was last before His Honour.” It needs to be recorded that on 24 September 2019 when the Court ordered the Mother to do the hair test, against the opposition of the Mother, at no stage was the Court informed that the Mother was not going to comply with the order. Indeed, that fact was not communicated until 7 November 2019. One possible inference to be drawn is, again, that the Mother did not consider it in her interest to facilitate an expedited judgement from the Court
The Mother’s Affidavit filed 29 November 2019 contains one paragraph relating to her financial circumstances, paragraph 8. What becomes apparent from this evidence is that she is in receipt of Centrelink benefits of $704.40 per fortnight. She deposes to paying rent of $720.00 per fortnight. Even if the Mother received other allowances, her implied contention that she has no other income or sources of financial or non-financial assistance is implausible.
The Father asserts in his affidavit that on 11 June 2019 the Mother withdrew $6000 from a business bank account. The Mother does not respond to this allegation in her sworn evidence.
In her affidavit the Mother deposes to having completed her own Legal Aid Application for funding. The Court assumes she means funding for hair testing. She does not depose to having lodged that application. Given the Court’s concerns about the Mother’s conduct of this litigation and the possibility of strategic delay, the Court is not prepared to further delay its judgment.
Discussion
The material filed by both parents creates a strong impression that the children have a meaningful relationship with both of them. There is no question that the children would benefit from this continuing, in a prospective sense. Save for risk of harm issues, which will be discussed below, neither of the proposals advanced by the parents would facilitate the children continuing to have a meaningful relationship with the parents.
The Court must consider the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Even on the limited assessment that can be undertaken at an Interim Hearing, the Court has formed a strong impression, albeit on a preliminary basis, that the Father has, in fact, perpetrated family violence towards the Mother, and this was sometimes in the presence of the children. It is not possible to say, at this stage, whether all of the Mother’s allegations are correct, or whether all of the Father’s denials are incorrect. The Mother’s evidence about the family violence is detailed, is corroborated in many respects and she has the protection of an Apprehended Domestic Violence Order, albeit an interim one. The most compelling evidence that the Mother leads is the video evidence of the footage from the security cameras which clearly indicates an assault by the father against the mother. The video evidence is inconsistent with the Father’s sworn evidence about the incident. The Father’s Counsel sought to minimise the significance of this evidence by pointing out that the Mother appears, after the alleged assault, to then seek to re-enter the building. The implied submission was that the Mother was not in fear of the Father. The fact is that an assault appears to have taken place. The footage does not establish that the Mother actually re-entered the building, or what might have occurred later.
There are many ways to protect the children from any harm associated from being exposed to family violence. An order for supervised professional contact is only one way to protect the children. One possible interpretation of the events as disclosed in this case is that if the Mother believed that the children were either at risk of physical or psychological harm as a result of the family violence perpetrated by the Father towards her, it is unlikely that she would have facilitated the nature and extent of the post separation contact between the children and the Father. Her actions are inconsistent with the contention that there was either a physical or psychological risk to her children, as a result of the family violence. Of course, another way to protect the children, is to ensure that the parents do not come into contact with each other.
There is a risk of harm to these children associated with their mother’s drug abuse. The Father makes a number of very serious allegations in this regard but the most reliable evidence is the Mother’s own admissions contained in her affidavit of made 27 August 2019, filed 5 September 2019. At paragraph 24 the Mother admits that she first consumed crystal methamphetamine in 2018. She contends that the Father introduced her to it, but the Father denies this. She deposes to ordinarily consuming ice by smoking it off a piece of aluminium foil. She says that she started using ice to pacify the Father as he was a heavy user himself and also as a form of escapism during the final year of their relationship. Following this, she says she used ice approximately once a week. She contended that the Father ordinarily provided her with ice, or had her collect it from a friend of his. She contends that the Father sold drugs including ice. She deposes to regretting using ice and that she no longer consumes it. She says that she has commenced engagement with Relationships Australia to provide her with assistance and counselling.
The Father denies drug use, or drug supply, other than the use of cocaine on four occasions. The Father has provided clean urine and hair tests. The allegations against the Father can be taken no further, for the time being. By contrast, the Mother has steadfastly declined to provide a hair test, initially at the Father’s request, and subsequently even when a Court order was made.
It is important to understand when the Mother contends that she ceased drug use. She contends in her affidavit of 14 August 2019 that separation took place on a final basis on 28 May 2019. Thus, according to her evidence, she started using ice as early as May 2018. Moreover, and again according to her evidence, after separation she continued to use ice approximately once a week. There can be little doubt, the Court notes, that based on the Mother’s own evidence about the parenting of the children after separation, the periods of her care of the children probably coincided with her ice use if indeed it was only once per week. The Mother’s contention in her affidavit of 27 August 2019 that she no longer uses ice is problematic. She does not explain when she ceased to use the drug. She makes the assertion that she has ‘started engaging with’ Relationships Australia, but, even though that is vague, even the Mother does not contend that her engagement with Relationships Australia was in relation to her drug use.
Annexed to the Mother’s Affidavit of 22 November 2019 is what she described as the ‘Risk Assessment conducted by the Department of Family and Community Services dated 19 November 2019.’ The Court assumes that the Mother annexed this document to provide reassurance to the Court about the concerns relating to her. In the fullness of time what may emerge in cross examination on this document is the multiple instances of allegations made in this document not made in her sworn evidence, or vice-versa. For present purposes the Court’s focus is on what she told the case workers about her drug abuse. The relevant page is 10 of 24. There are inconsistencies between her sworn evidence to the Court, and the record made up of what she told the case workers. There are admissions by the Mother that she used “on weekends when the children were in bed.” There is no reference to the Mother’s contended engagement with Relationships Australia. There is no record of the Mother explaining that the drug tests she provided in the present proceedings were provided late. The Mother is not recorded as referring to the hair testing request by the Father or the order of this Court. The Risk Assessment is primarily based on the Mother’s own account. Curiously there is reference to cross-checking the Father’s allegations against the evidence he filed in these proceedings but not cross-referencing the Mother’s allegations against her evidence filed. There is also a reference to the Mother going out “she will have a drink or two” which is relevant to her financial means.
When the vagueness of the Mother’s evidence about her drug use is superimposed with her reluctance to provide hair testing, the Court is concerned about whether the Mother has properly disclosed the nature and extent of her drug use, when, if at all, the Mother ceased drug use, and how, if at all, the Mother’s risk of relapse can be assessed. The Court observes that the Mother was represented by a firm of family law specialists regarded by the court as experts in the field. It is hard to understand, given the confluence of factors referred to above, why the Mother would not agree to participate in hair testing, or why she would not seek to improve the quality of the evidence on which she relied.
The risks to the children is that the Mother is either continuing her drug use, or will relapse into drug use. How is this risk to be managed? It is somewhat surprising that in the orders that she proposes, only the Father is required to submit to drug testing, and not herself. This certainly does not add to any reassurance the Court might have about the Mother’s insight in relation to her drug use, whether it is past, or present.
Risks can be managed in different ways. As family violence is a pernicious activity involving two persons, that risk is often managed by keeping the perpetrator and the victim apart. That does not mean, of course, that the insidious effects of family violence do not continue in the absence of the perpetrator. What it does mean, however, is that the family violence itself can be controlled by ensuring that there is no contact or communication between the perpetrator and the victim.
With drug abuse, it is quite different. There are no two parties involved. There is no perpetrator, and victim. There is a user who generally, but not always, uses in private and is generally secretive about it. The risk can be mitigated by monitoring. This is difficult in circumstances where so little is known, in this case, about the Mother’s living circumstances. If the children were living with their father at the home of the paternal grandparents the Court would have reasonable assurance that if he used, or was under was under the influence of drugs when the children were in his care, that the paternal grandparents would have a protective role. The evidence suggests that the paternal grandparents had been involved in the children’s lives, to some extent. By contrast, if the Mother is living on her own with the children, there is no such protective mechanism. The traditional risk mitigation strategy for drug abuse is random testing. The problem in this case is that the Mother has not strictly complied with requests for drug testing and she has declined to comply with Court orders for hair testing, pleading impecuniosity, but leading evidence in this regard which the Court is deeply suspicious of. It would seem that she ignored the Father’s request for her to undertake drug testing at an earlier stage in the proceedings.
The history of this matter gives the Court real concern that the Mother is not being frank in her disclosure to the Court about her past and present drug use, or whether, and if so to what extent, she has engaged in professional services to assist her with a drug use. Whilst the Mother’s own admission, on affidavit, of her ice use is commendable, what might be perceived as lack of cooperation in seeking to understand the nature and extent of her drug use is highly problematic from a risk identification and management perspective.
There are, of course, other considerations that must be taken into account. For example, there remain concerns about the Mother’s mental health, despite what would seem to be the confidence of the Department of Communities and Justice in the recent risk assessment document.
The Court is unaware of the children’s views, but given their age, this would probably not be a determining factor.
Perhaps the most relevant other consideration is the likely effect of changes on the children, and in particular of that being separated from either of the parents. Even on the Mother’s evidence, it is clear that these children have spent time, including significant time, with their father in the past. At the moment, however, the Court is not confident that the children have recently spent time with him. It would probably be a major change in the children’s lives to remove them from the Mother’s care entirely, or to separate them from their mother for extended periods of time, but even this consideration may need to be subsumed to the need to protect them from any perceived risk of harm in their mother’s care.
Even on the limited information before the court, there are concerns about the capacity of each of these parents to meet the needs of the children. This is an issue that really needs further investigation, preferably by way of an Expert Report.
Orders in the best interest of the children
This is a difficult case, involving risk assessment and management in a case where the Court has deep concerns about inadequate disclosure by both parents relating to matters that would help the Court make an informed decision about what is in the best interest of their children.
The risk to the children in their Mother’s care could be mitigated if the Court could be reasonably satisfied of the Mother‘s willingness to strictly comply with orders of the Court for drug testing. The Court has a little confidence in this regard. It does not seem to be a priority for her.
Trying to protect the children from the risk of their mother’s relapse into drug use may best to be achieved on the facts of this case by ensuring that they are spending regular time with their father. This will also ensure and reassure the Court that they have a known support system available to them in the form of the paternal grandparents.
This is a case that would be greatly benefited by the provision of early expert evidence from an appropriately qualified person. The Independent Children’s Lawyer is asked to take the initiative in this regard.
Even though the Court has a lingering sense of the potential inadequacy of these orders, it is the best that can be done in circumstances where both parents have been so uncooperative with the provision of relevant evidence.
It is certainly not possible to make any determination in relation to parenting responsibility.
Given the unsatisfactory state of the evidence, and the concerns expressed by the Court, the Court has decided that it would be inappropriate to make an order that provides for these children to live with one parent, rather than the other. The orders will be framed as live with orders in respect of both parents.
The orders will provide for the children to be moved from one parents home to another in a fashion that ensures that the parents do not come into close physical proximity with each other. Regrettably, the use of family intermediaries seems problematic as the parental conflict appears to have extended to the respective families. For a limited time there may be no choice.
These orders need to come into effect immediately and will make no distinction is between school terms, and school holiday periods.
I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 17 December 2019
Key Legal Topics
Areas of Law
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Family Law
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Negligence & Tort
Legal Concepts
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Duty of Care
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