Pannier and Antigonos

FAMILY COURT OF AUSTRALIA

PANNIER & ANTIGONOS

[2014] FamCA 202

FAMILY LAW – CHILDREN – sole parental responsibility – with whom a child lives – best interests of children – allegations of abuse – where the children are the subject of a dispute as to parenting orders between the mother and the paternal grandmother – where the father sought no orders in his own right – where the subject children are currently in the care of the paternal grandmother – where the time the children spend with the mother has been suspended – where the court found that the children have not been exposed to abuse by either parent or a person who lives with a parent – Where the court is satisfied that the presumption of equal shared parental responsibility is rebutted by evidence that it would not be in the best interests of the children – Where orders made that the paternal grandmother have sole parental responsibility for the children, that the children live with her and resume spending time with the mother pursuant to a graduated regime and dependent upon the mother completing three urinalysis tests that do not record a positive result.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA

MRR v GR (2010) 253 ALR 368

APPLICANT:

Ms G Pannier

RESPONDENT:

Ms Antigonos

INDEPENDENT CHILDREN’S LAWYER:

Tom Reeve

FILE NUMBER:

SYC

1297

2011

DATE DELIVERED:

1 March 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

5, 6, 7 August 2013
20, 21, 22 November 2013

26 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Speirs

SOLICITOR FOR THE APPLICANT:

Speirs & Associates

COUNSEL FOR THE RESPONDENT:

Ms Antigonos appeared in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Sloane

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Marsdens Law Group

Orders

That all previous parenting orders in relation to the children:
P born on … 2003 and
B born on … 2005
(“the children”) are discharged.
That the applicant paternal grandmother have sole parental responsibility for the children but before making long term decisions in relation to the health, education or well-being, she shall advise the mother and father in writing of any such issue and take into account their views.
That the children live with the applicant.
That the children spend time with the mother as follows:
4.1 from 10:00 am until 1:00 pm each Saturday for three months
4.2thereafter from 10:00 am until 5:00 pm on Saturday and Sunday of each alternate weekend for a further period of three months
4.3thereafter from 9:00 am on Saturday until 5:00 pm on Sunday or Monday if that day is a public holiday each alternate weekend and for half of all school holidays
4.4from 12:00 noon on Christmas Eve until 10:00 am on Christmas Day in 2014 and each alternate year thereafter
4.5from 11:00 am on Christmas Day until 10:00 on Boxing Day in 2015 and each alternate year thereafter
4.6from 9:00 am until 5:00 pm on Mothers Day if the children are not otherwise in her care pursuant to these orders
4.7at such other times as the applicant and the mother may agree in writing.
That the children’s time with the mother shall not commence until she has completed three urinalysis tests under the supervision of Dr C or another general practitioner in her medical practice provided that:
5.1the first test will be completed within 36 hours of the judgment in this matter being delivered and
5.2the second test will be completed one week after receiving the results of the first test and
5.3the third test will be completed one week after receiving the results of the second test.
That the mother provide a copy of the urinalysis test results to the Independent Children’s Lawyer within 12 hours of receiving the results.
That in the event that any of the mother’s urinalysis test results records a positive result for illegal substances and in the absence of any medical explanation from a treating medical practitioner about the positive result, the children’s time with the mother will not commence.
That the children spend time with the father as the applicant and he may agree from time to time.
That the time between the children and father shall be day time only in the event he is not living with the applicant.
That the parties are hereby restrained from allowing the children to have contact and/or spend time with the maternal grandfather.
That the parties are hereby restrained from denigrating the other in the presence of the children and shall use their best endeavours to ensure that no other person denigrates the other parties in their presence.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all material produced on subpoena be returned.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pannier & Antigonos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1297 of 2011

Ms G Pannier

Applicant

And

Ms Antigonos

Respondent

REASONS FOR JUDGMENT

the proceedings

Ms Antigonos and Mr Pannier are the parents of two children:
P born in 2003 (11) and
B born in 2005 (9).
The children are the subject of a dispute as to parenting orders between the mother and the paternal grandmother, Ms G Pannier. The father sought no orders in his own right but was a witness in the case of the paternal grandmother. The mother has another child, M born in 2006, who is not a subject of these proceedings.
The paternal grandmother was born in 1954 and is presently aged 59 years. She has three children, being the father and two daughters. Ms D Pannier was born in 1987 and is employed in the hospitality industry. During the trial, she indicated that she would shortly move to Melbourne to take up a work opportunity. Ms E Pannier was born in 1988 and is qualified in the beauty industry. She is in a committed relationship with Mr F, with whom she has two young children.
The paternal grandmother is employed in an administrative role. She works full-time and receives assistance with the care of the children from her two daughters. The paternal grandmother and her family identify strongly with their indigenous heritage and culture.
The mother is of Greek heritage. She identifies strongly with her Greek traditions and culture. It is important to her that the children grow up with an awareness of both of their cultural backgrounds.
The mother and father, who are aged 34 and 38 respectively, began to live together in January 2002. They had a tempestuous relationship, which was characterised by drug use. The father agreed with the suggestion of counsel for the Independent Children’s Lawyer (“the ICL”) that the relationship was “volatile from the start” and that “there were arguments in front of the kids”. In 2002 they lived with the paternal grandmother from approximately seven months, until she objected to their drug use and required them to leave her home.
After P’s birth in 2003 the parents lived with the paternal grandmother for six weeks, until she evicted them from her premises when she discovered that they were stealing from her. During 2004 the paternal grandmother took out apprehended violence orders against the father for her own protection. In cross-examination the father said: “I think I remember the police speaking to me about a breach of an AVO with respect to my mother. I vaguely remember the incident, I was messed up on drugs in that period”.
A COPS entry of 2 January 2004 (exhibit 4) read in part as follows:
At about 6.30pm on Friday 2 January 2004 the defendant rang the home phone at … [H] Street in [Suburb A] and spoke to his sister who informed him that he was allowed to stay at the residence. At about 7.50pm that same day, the victim returned to her home address and entered the front door. Upon closing it, the victim heard the voice of the defendant yelling from the front. The victim opened the door and saw the defendant standing out the front with an object in his hand. The defendant and the victim had an argument about him staying at the residence and then threaten to damage the victim’s property. The defendant has then thrown a small concrete block through the front passenger side window of motor vehicle …, NSW registration, which was parked directly out the front of … [H] Street. This motor vehicle is owned by the victim and the concrete block caused the window to shatter. The defendant has then run away… The defendant was conveyed to [Suburb I] Police Station where he was introduced to the custody manager. The defendant was not interviewed as he appeared to be under the influence of illicit drugs.
An AVO for the protection of the paternal grandmother was granted on 7 April 2003.
The father was incarcerated between 15 October 2004 and 15 October 2006 having been convicted of aggravated robbery. The child B was born in 2005, while the father was in prison. B was born prematurely and spent two months in hospital. At the request of the mother, P lived with the paternal grandmother for some three to four months after the birth of B.
The mother maintained that she was on a methadone program between 2006 and October 2010. There was an issue as to whether she used illicit drugs as well as methadone during this period. I will consider the relevant evidence below in these reasons.
In December 2006 the mother gave birth to the child M. It seems that the parents reconciled at some time after the father’s release from prison and that he was present at M’s birth. The Department of Community Services assumed care of M on 19 January 2007, while he was still in hospital. Departmental officers apparently took this action because the mother failed to visit M regularly in hospital and due to concerns about drug use on her part.
The file of the Department of Community Services (exhibit 10) contained a letter dated 15 February 2007 to a caseworker from Dr J, Staff Specialist Paediatrician at K Hospital. Inter alia, this letter read as follows:
His mother, [Ms Antigonos], has a history of illicit drug use and was on the Methadone programme during her pregnancy. She is positive for Hepatitis C.
[M] was monitored on a Neonatal Abstinence Scoring Chart from shortly after his birth and he started to show signs of withdrawal from approximately 24 hours of age. He was commenced on morphine for management of his withdrawal on 8 December 2006 and this was continued on a reducing schedule for 7 weeks. The last dose was given on 23.1.07.
Neonatal withdrawal from Methadone typically commences between days 2 and 4 of life. The fact that [M] demonstrated signs of withdrawal by 24 hours of age suggests that his mother might have been using other opiates such as Heroin. Withdrawal from Heroin usually commences within twenty-four hours of birth.
Thus [M’s] early onset of withdrawal would support, although obviously not prove, the suspicion that his mother was taking a substance or substances other than Methadone.
In her oral evidence the mother denied that she had used heroin during her pregnancy with M. She said inter alia: “In 2006 I used marijuana at parties. I asked DOCS for help and stopped”. She said also: “there were issues with [M’s] health when he was born because of methadone and I was smoking”.
On 16 April 2007 a psychologist, Ms L, prepared an assessment for the care proceedings involving M (exhibit 12). The father obviously was in a relationship with the mother at this time and supported her application for restoration of M to her care. M was placed in the parental responsibility of the Minister for a period of six months pursuant to orders made on 15 June 2007. He was restored to the care of the mother, subject to certain undertakings which were operative for eighteen months.
Ms L reported, inter alia:
[The mother] stated that she used heroin for about three months towards the end of her pregnancy with [M]. She stated using $65 worth every two days. She was trying get on the “bup” (Buprenorphine) program but was told that it was not for pregnant women.
In cross-examination the mother was taken to the above passage in the report. She stated, unconvincingly in my view:
I said I was using heroin so I could get on a methadone program. I lied when I said I used heroin for the last three months of my pregnancy.
This evidence sits uncomfortably with the next passage in the report, which read as follows:
…she is currently on methadone and she has been stabilised on it. She stated that she wanted to get off all drugs. [The mother] stated that for the past three months she is on 20 mls methadone dose a day…and her last dose was on the day of this assessment.
Ms L reported:
[The mother] stated as her supports [the father’s] family, his mother and sisters, in Sydney. She stated having a good relationship with them…
The report further stated:
[The mother] described her relationship with [the father] as very good. They love each other. He is a good friend and a very open minded person…
On 1 November 2008 an incident took place between the mother and father in the presence of the children. This incident was described in a Facts Sheet dated 19 January 2009, which police presented to the Local Court in support of a charge of common assault laid against the father (exhibit 5). Inter alia, this Facts Sheet read as follows:
The defendant said ‘I’ve been waiting for you for four fucking hours, get in the fucking room. I wanna talk to you’. The victim told him again that if he wanted to talk her he would have to come outside.
About a minute later the accused walked to the balcony carrying the victim’s 2 year old son in his left arm. The accused appeared calm and relaxed. The accused got level to the victim and suddenly hit her using his right elbow and top part of his arm, which connected to the right side of the victim’s body. The victim stated that she felt pain as if she had been ‘crashed tackled’.
The accused turned and walked back into the apartment. The victim got up and took the child out of the accused’s arms. The accused went to the bedroom and got his belongings. A minute or two later the victim said to the accused, ‘just go, just go’. The accused ran at the victim knocking her down onto the lounge.
The victim covered her face because she was scared he was going to hit her face. The accused has landed on top of the victim. The victim felt a lot of pressure and pain on her back and neck area. The accused got up and the victim’s flat mate helped to get him out of the apartment…
Following this incident the father was convicted of assault and incarcerated between 19 January 2009 and 18 July 2009. In cross-examination the contents of the above Facts Sheet were put to him and, essentially, he did not take issue with this account of the incident.
Records of FACS (exhibit 9) contained emails between Mr N, a drug and alcohol clinical consultant, and Ms O, a child protection caseworker. These emails concerned drug testing of the mother in 2009. In an email dated 8 October 2009 Mr N wrote, inter alia:
I am sure this woman has used pain medication such as she reported ie the panadeine and mersyndol. But I also consider that she has also used morphine or heroin to have such a morphine result.
Yes, this woman is using more cannabis that she is reporting to the Department. She is still using regularly, at least several times a day, every day.
On 5 May 2010 the mother was involved in a car accident in Newcastle. No other vehicle was involved in the accident, which resulted in the mother’s car becoming airborne at a roundabout. The children B and M were in the vehicle but they were uninjured. The mother suffered a fractured patella and abrasions to her chest. She walked with crutches for approximately seven months, during which time she recuperated with her grandparents in Newcastle. The mother was not charged with any offence as a result of this incident.
After the mother and father separated in 2009, she lived in a refuge for six months and was then allocated Department of Housing accommodation at Suburb Q. The FACS file (exhibit 14) noted an incident on 29 August 2010, when two rangers found the child M wandering along R Street. The rangers stopped a police patrol which happened to be in the area. The relevant COPS entry stated “The risk for the child to be hit by a vehicle and seriously injured or killed was realistically very high”. M was three years old at the time of this incident.
On 5 November 2010 the mother requested assistance from the paternal grandmother and P went to stay with her. B lived with his maternal grandfather in Newcastle. There was a dispute between the paternal grandmother and the mother as to the duration of this arrangement. According to the paternal grandmother, all three boys lived with her between 23 December 2010 and 19 January 2011. The maternal grandfather then took B and M back to the mother but, on the account of the paternal grandmother, P refused to accompany them.
The mother and the paternal grandmother enrolled P at Suburb A Public School on 8 November 2010. The mother unsuccessfully attempted to remove him from school on 23 February 2011. According to the paternal grandmother, P attempted to hang himself after this incident. She contacted DOCS Helpline and arranged medical treatment and counselling for the child.
On 27 April 2011 the then Federal Magistrates Court made interim orders for P to live with the paternal grandmother and spend time with the mother. Orders were also made for B to live with the mother and spend time with the paternal grandmother and P. The mother retained P after the first occasion when he spent time with her pursuant to these orders, which was on 18 April 2011. The paternal grandmother attended the mother’s residence in the company of a friend, her daughter Ms E Pannier and a police officer. She was able to leave with the child at approximately 6:45pm.
On 5 May 2011 the then Federal Magistrates Court made interim orders to the effect that P and B live with the paternal grandmother. A recovery order was issued in relation to both children. The paternal grandmother retrieved the children from the mother with the assistance of a police officer.
On 18 May 2011 the maternal grandfather filed an application to be joined as a party in the proceedings. He also filed an Application in a Case and a Notice of Risk. Ultimately, the maternal grandfather took few effective steps to prosecute his case and his application was dismissed, after he failed to appear on several occasions. He disseminated affidavit material, which made serious allegations of abuse of the children by the paternal grandmother, in her neighbourhood and otherwise conducted himself inappropriately during the course of the proceedings. To her credit the mother wrote a sternly-worded letter to him, which warned him to stay away from her and the children and cease his interference in these proceedings (exhibit 15).
After the children went to live with the paternal grandmother pursuant to the orders of 5 May 2011, numerous complaints were made to FACS to the effect that they were abused by the paternal grandmother. On 10 October 2011 the mother insisted that police attend the home of the paternal grandmother to conduct a welfare check in respect of the children. The relevant COPS entry (exhibit 11) noted that the police officers declined to wake the children, whom they observed to be sleeping comfortably in appropriate conditions. The mother continued to complain to police and insisted that they return to the premises and “inspect the children”. Police officers did return to the premises, woke the children and caused their clothes to be removed. They observed no indication of any injury or sign of trauma.

According to the mother’s general practitioner, Dr C, she ceased taking methadone in November 2011. Dr C indicated that she has prescribed pain relief medication for the mother and referred her to the S Hospital Pain Clinic (exhibit 15).
In December 2011 the mother terminated the lease of her premises in Newcastle and moved to Sydney. She has resided at the same address in Suburb T for approximately two years. Her current partner, Mr U, is the lessee of this property but, according to the mother, he maintains his own home at Suburb V.
On 24 February 2012 this court ordered, pending further order, that the children live with the paternal grandmother and spend time with the mother each Saturday from 10:00am until 5:00pm. The mother was ordered to undergo chain of custody urinalysis and submit testing certificates. She has not complied with this order. Her explanation was to the effect: “I attended once and found it very invasive, I had to go in front of a gentleman. I told the ICL and he said not to worry about it”. She said also “I asked the pathology service for a woman but I was told that if it was a male on a particular day, it was a male”.
On 29 October 2012 this court made orders to suspend the children’s time with the mother. The bench sheet for that day noted that there was no appearance of either the mother or the maternal grandfather. The mother said: “I was not in court when time was suspended on 29 October 2012. I probably did not know about the dates”.
The father was released from prison in December 2012 and has since lived at the home of the paternal grandmother. Between about April and June 2013 he undertook an eight week course at TAFE and, in November 2012, he had held a job for six months. He hopes to gain an apprenticeship. He is on a methadone program and regular drug-testing is a condition of his parole.
The trial commenced in August 2013 but could not proceed to conclusion due to an illness suffered by the child M. Obviously, the mother needed to be with her son during his hospital admission and subsequent recuperation.
Over the objection of the paternal grandmother, I allowed the mother’s partner Mr U to act as her Mackenzie friend during the proceedings. There was some indication that he has legal training, and I took the view that the mother required support to conduct her case. Mr U gave no evidence in the proceedings.

The Evidence and Witnesses

The applicant paternal grandmother relied upon the following affidavits:
1.Ms G Pannier (the paternal grandmother) sworn on 20 March 2013
2.Mr Pannier (the father) sworn 6 June 2013
3.Ms D Pannier (the paternal aunt) sworn on 20 March 2013
4.Ms E Pannier (the paternal aunt) sworn on 19 March 2013
5.Mr F (the partner of Ms E Pannier) sworn on 19 March 2013.
The respondent mother relied on the following affidavits:
1.Ms Antigonos (the mother) sworn on 5 August 2013, 14 October 2011 and 20 November 2013
2.Ms W (the maternal grandmother) sworn on 2 August 2013
The mother requested that she present her final submissions in writing and was permitted to do so.
The mother tendered into evidence a bundle of documents (exhibit 15) which contained the following, inter alia:
1.Letter dated 25 November 2013 from her general practitioner Dr C.
2.The mother’s letter to the maternal grandfather, by which she expressed in the clearest possible terms that she wished him to have nothing further to do with the proceedings or herself and the children unless and until the court made orders which would permit him to see them.
3.A letter which extended an invitation to the mother to enrol in a Diploma course.
4.A letter which stated that the mother undertakes counselling at X Organisation.
5.Solicitors’ correspondence which indicated that the mother sought to spend time with the children at various stages of the proceedings.
6.The mother’s transcription of various text messages exchanged between herself and the father after his release from prison in December 2012.
I had the benefit of a Family Report dated 8 June 2012 prepared by Ms Y, together with her memoranda to the court dated 8 April 2011 and 21 July 2011 (exhibit 16). The Family Consultant also gave very helpful oral evidence. I had the assistance also of a Magellan Report dated 6 December 2011 (exhibit 3).

Approach To These Proceedings

In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests.
The court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.
Section 61DA requires the court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)). If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5). There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:
[8] Subsection (1) of s 65DAA is headed “Equal time” and provides:
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.
Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:
(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.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
[9] Each of subss (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. Subsection (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 subss (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 …
[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 (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent. …
[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. …

Section 60CC Considerations
Section 60CC(2) Considerations

There was no indication that the children will not derive benefit from a meaningful ongoing relationship with each parent. It was clear that both parents love the children and want what they perceive to be best for them. I consider that each parent genuinely wishes to play a constructive role in the lives of the children.
Since his release from prison in December 2012, the father has lived in the same home as the children and interacted with them on a daily basis. He gave this unchallenged evidence:
33.Since my release it didn’t take long for me to reconnect with [P] and [B]. I now spend time with the boys playing football, cricket, basketball, going on outings, watching them at school assemblies and school events. I help them with their homework. I love just being there for them.
The mother has had no contact with the children since 29 October 2012, when orders were made which suspended their time with her. In June 2012 the Family Consultant reported on [P’s] interaction with the mother as follows:
47.While, in the initial Child Inclusive observation, [P] was extremely distant from [the mother], he was more responsive towards her in the Family Report observations but still maintained a distance from his mother, avoiding her touch and remaining fixedly on whichever game he was playing. This was despite [the mother] calling [P] repeatedly to get his attention. He gave her a brief cuddle when asked to by [the mother] but he generally presented as uncomfortable throughout the observation.
The Family Consultant reported on her observations of the interaction between B and the mother as follows:
54.In observation [B] was warm and responsive towards his mother, his paternal grandmother and his aunt [Ms E Pannier]. He was somewhat “wound up” when with his mother and told her on more than two occasions “I told [Ms Y] everything Mum” when looking over at his mother and at the Family Consultant. He was somewhat anxiously trying to tell his mother this and [the mother] tried to distract [B] each time he said this and did not answer him.
There have been interruptions to the children’s regular face-to-face contact with each of their parents in recent times. The father was in prison between December 2009 and December 2012. The children have spent no time with the mother since October 2012. Nevertheless, it seems that there exists good potential to rebuild these relationships and that this process is well under way in the case of the father and the children.
The mother, the father and the paternal grandmother, levelled mutual accusations of abuse and neglect of the children at the mother and various people said to be involved with her. These allegations extended to complaints of verbal and physical abuse of the children by former boyfriends of the mother and her current partner, Mr U. There have been numerous notifications to FACS and reports to police, most or all of which were based on statements allegedly made by the children. Similarly, the mother and the maternal grandfather levelled accusations of abuse of the children against the paternal grandmother and her family. Some of the mother’s allegations were based on statements allegedly made by the child M as to ill-treatment of P and B by various people.
The mother alleged, inter alia:
·    P was punished for fighting with his brothers by being forced to stand under a cold shower
·    the children were punished for swearing by having hot mustard placed in their mouths
·    Ms D Pannier whipped P with a jug cord
·    P was kicked on the buttocks
·    the paternal aunts allowed the children to watch frightening movies
·    the paternal grandmother has been intoxicated on occasions while the children were in her care.
All of these allegations were denied or explained convincingly by the paternal grandmother. For example she said that she once gave P a tepid shower when he was suffering from a fever before she sought medical attention for him.
The Magellan Report dated 6 December 2011 noted:
In the last six months, reports of physical abuse and psychological maltreatment by the children’s paternal grandmother have also been received.
A FACS caseworker interviewed the boys at school on 5 December 2011 and noted that “they looked clean and tidy”. The Magellan Report stated that neither child made any complaint of physical or psychological maltreatment by the paternal grandmother. The caseworker interviewed the paternal grandmother on the same day and assessed that “she presented as a protective adult who cares and loves her grandchildren”.
The mother alleged further that the children are in need of protection from violence on the part of the father. She relied on alleged events which date back as far as 2002. There can be no doubt that the father did engage in acts of family violence in the past, for example, the incident in 2008 when he struck the mother while she was holding M.
There is no doubt that the father in the past directed verbal threats and physical violence at the paternal grandmother. I have referred above to a relevant COPS entry. The father either admitted to this conduct or said that his memory was unreliable because he was drug affected at the relevant time. There was no evidence of any act of violence on the part of the father, however, since his release from prison and abstinence from illicit drugs.
The paternal grandmother, the father and the paternal aunts alleged, inter alia:
· the children had been verbally abused and subjected to physical maltreatment by various of the mother’s boyfriends, including Mr Z
· the mother may still use illicit drugs and thus be unable to properly care for the children.
There was no independent evidence to corroborate these allegations of verbal and physical abuse of the children by Mr Z or any of the mother’s previous partners or friends. These allegations depended entirely upon statements allegedly made by the children and were denied in substance by the mother.
The paternal grandmother alleged that P expressed fear of a former boyfriend of the mother named “[AB]”. The mother claimed that she was not in a relationship with “[AB]”, who was an associate of the father. She denied that he swore at or hit the children.
The mother denied the paternal grandmother’s statement that any male friend of hers took the children into the city to beg for money or that she left them at a McDonalds Restaurant with a man. She denied that Mr U swears at or hits the children. Obviously, he would not have had the opportunity to do so since 29 October 2012.
The paternal grandmother and the father appeared to be highly receptive to these allegations, as was the case with the mother and apparently the maternal grandfather in relation to the children’s complaints about the paternal family. The Family Consultant observed:
69. There were indications in the assessment that the children need to be loyal to their mother and [B] seemed particularly anxious that his mother knew what he had said to the writer and it appeared that there was an expectation that he would say certain things to the writer. Later in interview it appeared that [the mother] was checking with the Family Consultant when she enquired whether the boys had told the writer about the abuse they had experienced by the paternal grandmother. This latter is of concern, as it will be very difficult for both [B] and [P] as they grow up, to determine the truth or otherwise of the situation between their mother and paternal grandmother, if this hostility between the important adults continues. For both B and P, ongoing conflict will have a serious impact on their emotional and psychological development. This is particularly so if they continue to be placed in the situation of having to choose and decide which narrative is true and how to behave with each side of the family. In addition, the presence of ongoing conflict makes it even more difficult for others outside the family to determine the truth or otherwise of allegations, which potentially places the boys at greater risk in the future.
There is no doubt that both parents in the past have used illicit drugs. As noted, regular drug testing is one of the father’s parole conditions and his head sentence expires on 15 December 2015. The father is currently on a methadone program and gave evidence that he and his general practitioner will decide when this treatment is no longer necessary.
It is most regrettable that the mother failed to comply with the orders of 24 February 2012, which required her to submit six chain-of-custody urinalysis tests to the ICL. She tendered in evidence a urinalysis certificate, dated 18 November 2013, which showed a positive result only for a tricyclic antidepressant and oxycodone. This certificate was accompanied by a note apparently signed by Dr BB of the CC Medical Practice (exhibit 2). The medical certificate stated that the mother has been prescribed a slow-release opiate for pain relief and a tricyclic antidepressant, which accounted for the presence of these substances in her sample. Although this evidence was not in proper form, I elected to receive these documents.
The mother also tendered, as part of exhibit 15, a letter dated 25 November 2013 apparently signed by Dr C of the CC Medical Practice. The mother referred to Dr C as her general practitioner in the course of her oral evidence. Dr C stated, inter alia, “[The mother] ceased on the methadone program in November 2011 having last used heroin in 2002”.

Obviously, Dr C must rely on information provided to her by the mother in relation to her drug use. Her statement that the mother last used heroin in 2002 conflicts with hospital records of the time of M’s birth. As quoted above, Dr J considered that there was good reason to suspect that the mother was using heroin as well as taking methadone prior to M’s birth. That statement also conflicts with information which the mother gave to Ms L, in the context of her application for restoration of M. I have noted my scepticism as to her explanation for making these statements about heroin use during her pregnancy.
Mr F deposed that he and his partner, Ms E Pannier, returned the children to the mother at Suburb Q on 26 November 2010. He claimed that he saw a smoking bong in the mother’s hand when she opened the door. He alleged that her eyes were “glassy” and that she was “slurring her words”. He said that he reported this incident to FACS and Suburb Q police. Ms E Pannier referred to the same incident in her affidavit and alleged that the mother “looked spaced out and her eyes were reddish and her words slurred”.
In cross-examination Mr F said that 26 September 2010 was the only occasion when he saw the mother “consume illicit drugs”. He said that he reported the incident to FACS on the following day and to police approximately two weeks later, after the Department indicated that they proposed to take no action. In cross-examination Ms E Pannier said that she “had seen [the mother] spaced out on a fair few occasions”. I found Ms E Pannier and Mr F to be impressive witnesses and I am inclined to accept their evidence over the mother’s denials that this incident took place.
Regrettably, there must remain some doubt as to whether the mother is currently using illicit drugs. I am inclined to view that she probably is abstinent at this stage but she could have laid to rest any doubt about this issue by compliance with the orders of 24 February 2012.
It is perhaps reasonable to infer that the mother is currently drug-free in the absence of any intervention of FACS officers in the life of M, given the mother’s history with the Department. She seems to have the support of Dr C in her pursuit of a drug-free life. It is to her credit that she attends counselling.
Overall, I am satisfied that there is no present need to protect the children from abuse, neglect or exposure to family violence. Notably, the ICL proposed orders which would see the children spending gradually increased unsupervised periods in the care of the mother, subject to her providing three favourable chain-of-custody urinalysis certificates.

Section 60CC(3) Considerations

P and B were aged almost 9 and 7 years when the Family Consultant interviewed them in March 2012. In relation to P, she offered these opinions and observations:
44.It was noted, especially in the second interview, that [P] appears to feel responsible to ensure that everyone is happy. He appeared to have some confusion as to how he could achieve this, coming up with several different solutions about how he and [B] could either live with their grandmother or their mother and spend time with the other. Some of these included staying with his “Nan” until the end of the year, going to his mother in August this year or maybe next year and visiting his mother this year.
The Family Consultant reported as follows in relation to B’s stated views:
53.[B] said that he loves everybody and especially misses his brother, [M], and his two “[fathers]”, (great grandfather [Mr EE] and grandfather [Mr FF]). He said that he would like to live with his mother because he wants to be with [M]. He wants to see his paternal aunts and grandmother every weekend. [B] said that his mother and “Nan”([the paternal grandmother]) fight and that he does not know why. He said that he could not remember when he lived with his mother. [B] also said that his mother does not have a good memory and that she sometimes forgets that they are not supposed to talk with “[father]”([the maternal grandfather]) [according to orders].
I am inclined to agree with the submission of counsel for the ICL that little weight should be attached to the children’s stated views. I accept the suggestion that what they said to the Family Consultant is highly likely to be a product of their knowledge of the proceedings and exposure to chronic conflict between significant adults in their lives. As noted, the Family Consultant reported that B looked to the mother for approval after his interview and said “I told [Ms Y] everything Mum”.
I have referred above to the evidence as to the current status of the children’s relationships with each of their parents. The paternal grandmother has provided consistency and stability to the children for more than three years and the Family Consultant expressed the clear view that both boys require “a stable, secure home base”. I cannot be sure that the mother is able to provide the same level of security and consistency.
The Family Consultant considered that the boys have different needs, which she attributed to P’s longer experience of living with the mother “when she was likely involved with drug use and the consequent impact from this unstable lifestyle”. As noted, B told the Family Consultant that he did not remember living with his mother.
A negative consequence of the boys continuing to live with the paternal grandmother is ongoing separation from their half-brother M. The Family Consultant observed “a lovely sibling bond” between the three children and she was concerned about their separation. She opined: “the benefit of a strong sibling relationship is that it can provide a buffer from difficult family experiences and provide support by the sharing of common experiences and history”. The Family Consultant noted that both the paternal grandmother and the mother acknowledged the strong bonds between the children. The paternal grandmother said: “[M] is always welcome in my home”. He visited his half-brothers on 23 December 2012, accompanied by his maternal grandmother and her husband, at the home of the paternal grandmother. Regrettably, no similar visit has occurred since that time.
A change in primary residence would place the children in a situation which involves several unknown factors. The mother proposes to marry Mr U in 2015, hence he would be a permanent member of the children’s household from that time. There was no independent evidence as to the nature of the children’s relationship with him. Unsurprisingly, the mother asserted that they relate well to him and the paternal grandmother and the father claimed that the children have told them that he swears at and hits them. The Family Reporter did not assess the relationship between Mr U and the children. It may well be that he was not in a relationship with the mother at the time of the Family Report interviews.
Mr U certainly has a chequered history. His criminal record (exhibit 6) dates back to 1983 when, at the age of 16 years, he was convicted of break enter and steal. Over the next 27 years he was convicted of drug offences, matters of dishonesty, breach of apprehended violence orders, failure to comply with conditions of good behaviour bonds and armed robbery. He has served a number of terms of imprisonment, the most recent sentence being for five years on charges of armed robbery commencing in 2006.
It could be that Mr U has rehabilitated himself, as the mother claimed, but the evidence fell well short of justifying any such finding. As noted, there was no evidence at all from Mr U and he was not interviewed by the Family Consultant. On the other hand, the mother claimed that he has been closely involved in M’s life for approximately two years and there was no evidence that they have come to the attention of police or FACS in that time.
A significant issue in the proceedings was the willingness and ability of the paternal grandmother to facilitate a relationship between the children and the mother. It was readily apparent that she, the father and the paternal aunt Ms E Pannier have a very poor opinion of the mother as a person and parent. In cross-examination by counsel for the ICL the paternal grandmother said: “There are no attributes of [the mother] that make her a good parent. She wants [the position of being a mum without being a mum]. She palmed her kids off onto me. She wanted the money that went with the children but not the children.”
Ms E Pannier said in response to questions from the mother: “No I do not like you. I do not think you are a good mother. No I do not have any faith in you”. In response to questions from counsel for the ICL the father referred to the mother, in a sneering tone, as “that one sitting beside you”. He agreed to a suggestion from me that he had difficulty in speaking of the mother in respectful terms. At a later stage in his evidence, however, the father said “yes I do support an ongoing relationship between the mother and the children” and “I do not want to stop her seeing the children”.
Interestingly, text messages between the mother and the father after his release from prison contained some exchanges which might be construed as mutual concern for their children and discussion as to how they have found themselves in the present situation. Some of these text messages, on their face, suggested that the father brought the children with him when he and the mother met in a park. He denied that he did so in his oral evidence. It is impossible for me to make any finding as to whether or not he took steps to facilitate the children seeing their mother, without the knowledge of the paternal grandmother.
The maternal grandmother gave evidence that she has experienced difficulty in contacting the children by telephone. As noted, she and the paternal grandmother negotiated for her to visit the children in December 2012 to give them their Christmas presents. This visit took place in the home of the paternal grandmother and was of approximately one and a half hours duration. The maternal grandmother was accompanied by her husband and she brought M on this visit, with the consent of the paternal grandmother.
The Family Consultant harboured concerns as to the paternal grandmother’s willingness and ability to facilitate a relationship between the children and the mother. She opined:
63.The is some question as to [the paternal grandmother’s] commitment to positively facilitate the boys spending time with their mother and it would be beneficial to the boys if [the paternal grandmother] is able to overcome her understandable mistrust and increase her tolerance of [the mother’s] somewhat unregulated lifestyle. From recent follow up phone calls to [the paternal grandmother] and [the mother], it appears that the children have now settled into the routine of weekly time with their mother and that [P’s] initial testing behaviour is reduced and manageable. This is positive for the children and indicates that the boys may be able to manage spending time with [the mother] within a planned arrangement and an established consistent routine. [B] and [P] do have an important and significant relationship with their mother (albeit in [P’s] case, that his feelings towards appear to be somewhat reticent and conflictual) and in any consideration of how time spent should occur, it is critical to ensure containment of the boys’ exposure to the conflict and anger of the parties. [B] and [P] have had considerable instability and upheaval in their young lives and optimally, they now require a stable, secure home base.
Regrettably, arrangements for the children to spend time with the mother broke down after the Family Consultant wrote her report. I am inclined to the view that the maternal grandfather was an extremely counterproductive influence on the mother and probably contributed to her separation from the children. Obviously, her failure to abide by the orders for drug-testing made on 24 February 2012 also played a significant role in the suspension of the children’s time with the mother on 29 October 2012.
As noted, however, the mother took proactive steps to distance herself and the children from the maternal grandfather. In her oral evidence she said:
I sent my father a letter and told him that he had to step away, that what he was doing was wrong. I found his manner, language was inappropriate in court proceedings. He handled it in a very uneducated way.
In my view, the mother deserves credit for her recognition of the maternal grandfather’s destructive influence on her position.

The Presumption of Equal Shared Parental Responsibility

I have found that the children have not been exposed to abuse by either parent or a person who lives with a parent. Clearly, the father has engaged in family violence in the past but there was no evidence that he has done so since his release from prison in December 2012. Accordingly, the presumption applies unless I am satisfied that it is rebutted by evidence that equal shared parental responsibility is not in the best interests of the children.
I am satisfied, and I find, that the presumption is rebutted by evidence that equal shared parental responsibility would not in the children’s best interests. The father sought no orders but will be a member of the household of one of the contenders for primary care of the children. The parents have a conflictual relationship and demonstrated little respect for each other during the trial. I cannot see how they could cooperate with each other so as to reach mutual decisions about the long-term care, welfare and development of the children. Additionally, in my view, it would be an unworkable situation if the mother and father were to have equal shared parental responsibility and the paternal grandmother primary care of the children.
Consequently, I am not required to consider whether the children’s best interests will be met by orders which result in their continuing to live with the paternal grandmother and spend regular time with the mother. In my view, they have a strong need for stability and I have real doubts that the mother can provide that essential in light of her history. As noted, there are several significant unknown factors inherent in her proposal that she have primary residence of the children.
The paternal grandmother and the father, however, must recognise that the children have a right to and a need for a proper relationship with the mother and their half-brother M. In all of the circumstances, it seems to me that their best interests will be met by a more truncated version of the proposal of the ICL for time with the mother.
I appreciate that the mother found participation in chain-of-custody urinalysis testing embarrassing and intrusive when she attempted the procedure pursuant to the orders of 24 February 2012. In my view, she is likely to be drug-free at the present time but I consider that she should undergo urinalysis testing under the supervision of her general practitioner. Otherwise, I will make orders in accordance with the scheme proposed by the ICL.

I certify that the preceding eighty nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 1 April 2014.

Associate:

Date: 1 April 2014

[2014] FamCA 202

Key Legal Topics

Areas of Law

Family Law

Evidence