Patrick and Riley

[2017] FamCA 849

FAMILY COURT OF AUSTRALIA

PATRICK & RILEY [2017] FamCA 849

FAMILY LAW – CHILDREN – With whom the child lives – Where the child has a more meaningful relationship with the father than with the mother – Where the child presently lives with the father and spends time with the mother, though not substantial amounts of time – Where the father’s concern is the child’s safety in the mother’s care should she relapse into drug and alcohol abuse – Where the mother genuinely wishes to remain abstinent from drug and alcohol abuse – Where the mother shall undertake drug and alcohol testing as a condition of the child spending time with her – Where the mother’s partner agrees to undertake drug and alcohol testing, even though not a party to the proceedings – Where the father understands the importance of the child’s relationships with the maternal family – Concluded the child live with the father and the parties have equal shared parental responsibility for her

Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65D, 65DA, 65DAA, 65DAC

Family Law Rules 2004 (Cth) rr 15.14, 15.41, 15.51, 15.52

Jacks & Samson (2008) FLC 93-387

Marriage of L & T (1999) 25 Fam LR 590

APPLICANT: Mr Patrick

RESPONDENT: Ms Riley

INDEPENDENT CHILDREN’S LAWYER: Rowley & Associates

FILE NUMBER: SYC 1106 of 2015

DATE DELIVERED: 26 October 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Sydney

JUDGMENT OF: Austin J

HEARING DATE: 10, 11 & 12 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr S. O'Ryan QC

SOLICITOR FOR THE APPLICANT: Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr N Jackson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Rowley & Associates

Orders

1. All former orders relating to the child B, born .. 2011 (“the child”) are discharged.

2. The parties shall have equal shared parental responsibility for the child.

3. The child shall live with the father.

4. Subject to the mother’s compliance with Orders 7 and 8 hereof, the parties shall take all reasonable steps to ensure the child spends time with the mother as follows:

   (a)Until the commencement of the first school term in 2018:

   (i)During the current school term:

   (A)Each Tuesday and Thursday from the conclusion of school until 7.30 pm; and

   (B)Each alternate weekend, from 9.00 am Saturday until 6.00 pm Sunday, commencing on the second Saturday after the child last spent time with the mother on Saturday under pre-existing interim orders.

   (ii)During the Summer school holidays:

   (A)On Tuesday 19 December 2017, from 4.00 pm until 7.30 pm;

   (B)On Thursday 21 December 2017, from 4.00 pm until 7.30 pm;

   (C)From 3.00 pm Christmas Eve until 3.00 pm Christmas Day;

   (D)From 9.00 am on 29 December 2017 until 9.00 am on 2 January 2018;

   (E)From 9.00 am on 12 January 2018 until 9.00 am on 16 January 2018; and

   (F)From 9.00 am on 25 January 2018 until 9.00 am on 28 January 2018.

   (b)       From the commencement of the first school term in 2018:

   (i)During school terms:

   (A)Each Thursday from the conclusion of school until 7.30 pm; and

   (B)Each alternate weekend from the conclusion of school on Friday until 6.00 pm Sunday, commencing on the first Friday of each term.

   (ii)For the first five consecutive days of the Autumn school holidays, commencing at the conclusion of school on the last day of term.

   (iii)For the first five consecutive days of the Winter school holidays, commencing at the conclusion of school on the last day of term.

   (c)       From the commencement of the third school term in 2018:

   (i)During school terms:

   (A)Each Thursday from the conclusion of school until 7.30 pm; and

   (B)Each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday (or Tuesday if Monday is a public holiday), commencing on the first Friday of each term.

   (ii)For the first half of the Spring school holidays.

   (iii)During the Summer school holidays, on an alternating week-about basis commencing in the first week of the holidays.

   (d)From the commencement of the first school term in 2019 and thereafter:

   (i)During school terms, each alternate weekend from the conclusion of school on Thursday until the commencement of school on Monday (or Tuesday if Monday is a public holiday), commencing on the first Thursday of each term.

   (ii)For the first half of the Autumn, Winter, and Spring school holidays.

   (iii)During the Summer school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an odd numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an even numbered year.

5. For the purposes of implementation of Orders 4(b), 4(c), and 4(d) hereof, the school holidays are deemed to commence at the conclusion of school on the last day of school term, the holidays are deemed to end at the commencement of school on the first day of the new term, and the mid-point is noon on the day halfway between those first and last days.

6. Orders 3, 4(c), and 4(d) hereof are suspended during the following periods:

   (a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day and with the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years.

   (b)Between 10.00 am and 6.00 pm on each Mother’s Day and Father’s Day, during which periods the child shall spend time with the mother on Mother’s Day and with the father on Father’s Day.

7. Subject to the conditions set out in Order 8 hereof, the mother shall provide to the father the following test results for both herself and Mr C:

   (a)Urinalysis tests for opiates, benzodiazepines, cannabis, cocaine, amphetamines, methamphetamines, and Ritalin; and

   (b)Carbohydrate Deficient Transferrin (CDT) tests.

8. For the purpose of implementing Order 7 hereof:

   (a)The father’s requests for the testing of the mother and Mr C may be made randomly, for two years from the date of these orders, but not more frequently than intervals of four weeks;

   (b)The urinalysis test procedure must be undertaken within 48 hours of the father’s written requests;

   (c)The urinalysis testing shall be conducted by way of chain-of-custody urine drug screens meeting Australian/New Zealand Standard 4308/2008;

   (d)The CDT test procedure must be undertaken within 24 hours of the father’s written requests;

   (e)The mother shall notify the father of the pathology service where the tests are conducted;

   (f)The costs of the tests shall be borne by the mother and father equally for 12 months from the date of these orders and solely by the father thereafter; and

   (g)The mother shall provide to the father copies of the test results forthwith upon provision of those results to her.

9. In the event of either:

   (a)The mother’s default in compliance with Orders 7 and 8;

   (b)The urinalysis tests of either the mother or Mr C revealing a positive result for any of the nominated drugs in the Mass Spectrometry Test; or

   (c)The CDT tests of either the mother or Mr C revealing results of 1.4 per cent or higher;

   Orders 4 and 6 hereof are suspended and the child shall instead spend time with the mother pursuant to Order 10 hereof until she has thereafter fulfilled the pre-conditions to the operation of Orders 4 and 6 for three consecutive months.

10. In the event Order 9 hereof applies, the parties shall take all reasonable steps to ensure the child spends time with the mother:

    (a)Each Tuesday and Thursday during school terms, from the conclusion of school until 7.30 pm; and

    (b)Each alternate weekend (during both school terms and school holidays) on both Saturday and Sunday, from 10.00 am until 4.00 pm, commencing on the second Saturday after the event that invokes operation of Order 9.

11. For the purposes of implementing Orders 3, 4, 6, and 10 hereof, the parties shall respectively ensure the child’s:

    (a)Collection from school, whenever the child’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;

    (b)Return to school, whenever the child’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and otherwise

    (c)Collection from and return to the McDonald’s Restaurant at Suburb D, NSW.

12. The parties shall take all reasonable steps to ensure the child communicates privately by telephone with:

    (a)The mother each Sunday at 6.00 pm when the child is living with the father and for that purpose the mother shall telephone the child on the telephone number provided to her by the father and the father shall ensure the child is able to receive the mother’s calls on that number at that time.

    (b)The father each Wednesday at 6.00 pm when the child is spending time with the mother and for that purpose the father shall telephone the child on the telephone number provided to him by the mother and the mother shall ensure the child is able to receive the father’s calls on that number at that time.

    (c)The parent with whom the child is not then staying, on the child’s birthdays at 6.00 pm, and for that purpose the parent with whom the child is not staying shall telephone the child on the telephone number provided by the other parent for that purpose and the parent with whom the child is staying shall ensure the child is able to receive the other parent’s calls on that number at that time.

13. The mother is restrained from consuming alcohol whilst ever the child is spending time with her and for the immediately preceding period of 12 hours.

14. The parties are restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

15. The parties, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the child is to participate.

16. The parties shall ensure the child’s attendance at all educational, sporting, cultural, and extra-curricular events in which the child is enrolled or in which the child is due to participate.

17. The parties shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

18. The parties shall forthwith enrol themselves to commence and thereafter participate in and complete a post-separation parenting program, subject to the approval of that program by the Independent Children’s Lawyer.

19. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

20. Subject to granting approval pursuant to Order 18 hereof, the Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

21. Costs are reserved for 28 days.

22. Any and all outstanding applications are dismissed. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1106 of 2015

Mr Patrick

Applicant

And

Ms Riley

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Background

1. These proceedings concern suitable parenting orders for the only child of the applicant father and respondent mother pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. The parties began their relationship in about December 2007 and ended it in April 2013. They did not marry. The child was born in 2011 and is therefore now nearly six years of age.

3. Following separation, the father remained in the family home while the mother and child moved to live in rental accommodation. At least initially, the parties maintained cordial relations. They saw each other frequently and the child regularly spent time with the father – sometimes daily. When the mother later formed a relationship with her current partner (Mr C) the quality of the parties’ relationship deteriorated to some extent, though the child still continued to spend large amounts of time in the father’s care.

4. In November 2014, the mother was admitted to a clinic for treatment in relation to her drug addiction for about three weeks. At that point, the child moved to live with the father and she has lived with him ever since.

5. The father was worried by the mother’s continued drug use after her discharge from the residential rehabilitation program at the clinic and he believed the child’s residence with him needed to be formalised. He therefore commenced these proceedings in February 2015. Interim orders were made shortly after with the parties’ consent for the child to live with the father and to spend time with the mother for two nights each week in the company of the maternal grandmother.

6. The interim orders were revised in March 2015, again with the parties’ consent. The fresh orders provided for the child to spend time with the mother on four separate occasions each week, supervised by any one of the numerous persons nominated in the orders. The mother was also ordered to undertake regular tests for drug and alcohol consumption, positive evidence of which would cause at least the temporary suspension of the child’s visits with her.

7. The interim orders were again revised in July 2015 and April 2016, but the minor changes were inconsequential for present purposes. However, in April 2016, as supervisors, the maternal grandparents gave undertakings not to allow the child to be or remain in the company of Mr C while she spent time with the mother under their supervision.

8. The mother ceased taking urinalysis tests in April 2017 because the father was satisfied she had by then demonstrated her abstinence for some 18 months and so the parties began negotiating the terms under which the child could spend more time with her, the requirement for her supervision could be relaxed, and whether or not there should be any restriction upon the child’s interaction with Mr C. They were unable to reach agreement and so the trial in October 2017 could not be averted.

Proposals

1. The father abandoned the proposal set out within his Initiating Application filed on 20 February 2015 and instead pressed for the orders set out in the minute of orders he eventually tendered.[1] The father wanted sole parental responsibility for the child and he wanted the child to spend time with the mother under a gradually escalating regime, culminating nearly two years hence in four nights each fortnight during school term, half of all school holiday periods, and on other special occasions. He agreed the requirement for the child’s supervision when with the mother could be abandoned immediately, but he proposed that the time spent by the child with the mother be conditional upon the continuing provision of negative drug and alcohol screens by both the mother and Mr C.

   [1] Exhibit F3

2. The mother similarly abandoned the proposal set out within her Amended Response filed on 14 July 2015 and instead pressed for the orders set out within the Case Outline she filed on 6 October 2017, subject to some minor oral amendment. She wanted the parties to have equal shared parental responsibility for the child. She conceded the child should continue to live with the father, though she proposed that, by graduation over the next six to twelve months, the child should ultimately live with the parties for equal time. She opposed the imposition of any injunction precluding the child’s interaction with Mr C, with whom she cohabits, but was willing to provide continuing drug and alcohol screens undertaken by both her and Mr C.

3. The Independent Children’s Lawyer disavowed having even a formative idea about the suite of orders that would promote the child’s best interests at the commencement of the trial. She did not announce her position until closure of the evidence, at which point she tendered two minutes of proposed orders.[2] She proposed that the parties have equal shared parental responsibility for the child. Her proposal for the future interaction between the child and mother was both graduated and subject to the mother’s continuing provision of negative drug and alcohol screens. However, her proposal differed from the father’s in that the proposed graduation period was shorter (about one year) and culminated in a more restrictive regime (three nights and several other shorter visits each fortnight during school term, blocks of only five consecutive nights in school holiday periods, and on other special occasions). The Independent Children’s Lawyer also proposed the permanent restriction upon the child being in the presence of Mr C within the mother’s home, without the father’s written consent otherwise.

   [2] Exhibits ICL4, ICL5

Evidence

1. The father relied upon:

   (a)His affidavit filed on 7 September 2017; and

   (b)His more recent statement about events at two changeovers in late September 2016 and early October 2017, the content of which he adopted on oath and was tendered in evidence.[3]

   [3] Exhibit F1

2. The mother relied upon:

   (a)Her two affidavits filed on 13 and 29 September 2017;

   (b)The affidavit of her partner, Mr C, filed on 12 September 2017;

   (c)The affidavit of the maternal grandmother, Ms E, filed on 11 September 2017;

   (d)The affidavit of the maternal grandfather, Mr F, filed on 11 September 2017;

   (e)The two affidavits of a toxicologist, Dr G, filed on 11 September 2017 (incorrectly referred to as Dr H on the cover sheet of the affidavits); and

   (f)The affidavit of her treating psychiatrist, Dr H, filed on 26 September 2017.

3. Drs G and H were not engaged by the parties and Independent Children’s Lawyer as single experts. Rather, they were engaged unilaterally by the mother to offer their evidence as adversarial experts without the Court’s leave, albeit Dr H is her treating psychiatrist. Neither the father nor the Independent Children’s Lawyer objected to the mother’s reliance upon the adversarial expert evidence of Dr G because he was available for and submitted to cross-examination.

4. However, the father and Independent Children’s Lawyer both objected to the mother’s reliance upon the adversarial expert evidence of Dr H. It was conceded Dr H’s evidence fell within that permitted from a treating doctor under the Family Law Rules 2004 (Cth) (r 15.41), thereby avoiding the mother’s need to seek the Court’s leave to adduce it (rr 15.51, 15.52), since it was confined to her diagnosis, treatment, and prognosis. Nonetheless, the objection was maintained because the father gave timely notice of his requirement for Dr H’s availability for cross-examination (r 15.14) and he was not made available by the mother for that purpose. The parties and Independent Children’s Lawyer agreed the decision about admissibility of the affidavit could be reserved and reasons subsequently provided because it made no difference to the course of the trial.

1. Regardless of Dr H’s unavailability, his affidavit should be admitted into evidence as the Rules permit (r 15.14(3)(b)) because no prejudice is thereby sustained by either the father or Independent Children’s Lawyer. Dr H simply confirms the date he first consulted the mother, the number of their subsequent consultations, the various conditions with which the mother is diagnosed, the nature of her treatment, and his opinion about her response to such treatment. None of that evidence was seriously in dispute, if at all. Dr H expressly (and wisely) refused to comment upon the single expert’s report. To the extent Dr H commented about the mother’s drug screen results, he expressly deferred to the opinion of the toxicologist, Dr G, so Dr H’s evidence in that particular respect carries no weight. In any event, some of Dr H’s evidence was corroborated by some unchallenged evidence given by the mother. She deposed she consulted him from May 2015[4] and said in cross-examination she now consulted him about once every four months on average. The father complained he was denied the opportunity to cross-examine Dr H about other issues beyond the narrow scope of his affidavit, but that is inconsequential when considering the probity of the mother’s intended reliance upon only his uncontroversial evidence-in-chief.

   [4] Mother’s second affidavit, para 9

2. The parties and Independent Children’s Lawyer also relied upon:

   (a)The report of the single expert psychiatrist, Dr J, dated 1 September 2015; and

   (b)The Memorandum prepared by the Family Consultant, dated 13 August 2015.

3. The single expert was cross-examined, but the Family Consultant was not.

Legal principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

4. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Child’s best interests – primary considerations

Section 60CC(2)(a)

1. The single expert observed the child related “warmly and securely” with the father, which he believed resulted from the child recognising the father as a stable and reliable figure in her life.[5] The single expert ultimately concluded the child had a “stable and quite secure attachment” to the father.[6] The mother did not dispute the child enjoys a meaningful relationship with the father, from which she derives great benefit.

   [5] Single expert report, page 24

   [6] Single expert report, page 30

2. The single expert reported the child was eager to see the mother and, upon their introduction, he observed her rush to the mother and hug her. She greeted the maternal grandparents with similar effusion.[7] At the conclusion of the child’s observation session with the mother she protested and became distressed. Her distress escalated to a tantrum and the mother could not calm her effectively.[8] The single expert opined the child’s behaviour was:[9]

   …a clear indication that [the child] is significantly unsettled by conflict between her parents and particularly it raises the possibility of a rather anxious, ambivalent and disorganised attachment to her mother.

   [7] Single expert report, page 20

   [8] Single expert report, page 20

   [9] Single expert report, page 24

3. The single expert later elaborated that particular opinion thus:[10]

   …it is my view that [the child] has an anxious, disorganised attachment to her mother which is longstanding, probably since infancy, and particularly from at least last [sic] 2013 when she started a relationship with [Mr C].

   [10] Single expert report, page 30

4. That opinion flowed from his observations that the mother did not seem as “tuned in” to the child as the father, the child could not sustain the same level of interaction with her as she did with the father, and the mother was unable to quell the child’s tantrum upon their separation. The single expert explained that an anxious, ambivalent or disorganised attachment between a child and parent may be the product of the parent only being “intermittently emotionally responsive to the child over a long period”.[11] In this case, the mother’s drug addiction certainly rendered her unresponsive to the child’s emotional needs at particular times, often for prolonged periods. For a while, she prioritised her addiction and social life above the child’s needs.[12] The mother now realises that to be true because she admitted to the Family Consultant she was aware she may have “done damage” to the child without realising it at the time.[13] The Family Consultant also concluded, independently of the single expert, that the child may have been exposed to the mother’s “lack of availability” in both a physical and emotional sense.[14]

   [11] Single expert report, page 25

   [12] Single expert report, page 26

   [13] Memorandum, para 7

   [14] Memorandum, para 16

5. Of course, those professional opinions were expressed two years ago in late 2015 and, in retrospect at the trial, the mother admitted in cross-examination the child’s attachment with her was probably disturbed. The time the child has since spent with the mother would not likely have entirely repaired the damaged psychological attachment between them, but it was accepted the child enjoys spending time with her, so there has most probably been some overall consolidation of their relationship. There is little doubt the relationship between the child and mother is meaningful for the child but, by reason of the anxious, ambivalent or disorganised psychological attachment between them during the child’s infancy, she probably does not derive the degree of emotional succour from the relationship she desirably should. The relationship is likely somewhat less important to her than her filial relationship with the father.

6. In quantitative terms, those findings militate against the “equal time” regime posited by the mother, but do not foreclose the child frequently spending significant amounts of time with the mother. Neither the father nor Independent Children’s Lawyer contended otherwise. In fact, they advocated for such an outcome.

Section 60CC(2)(b)

1. No evidence was adduced to demonstrate the child requires any protection from harm by reason of her subjection or exposure to abuse or family violence.

2. The father maintained, inferentially if not expressly, the child was liable to suffer harm due to her neglect by the mother. It was contended that, if she relapsed into either drug use or misuse of alcohol, she would not be able to attend satisfactorily to the child’s physical and emotional needs. That may be so, but the submission was linked to the issue of the durability of the mother’s rehabilitation from addiction and is best discussed in the context of the mother’s parenting capacity under s 60CC(3) of the Act.

Child’s best interests – additional considerations

1. Not all of the additional considerations prescribed by s 60CC(3) of the Act were influential in the resolution of the residual contentious issues about the allocation of parental responsibility for the child, how much time she should spend with the mother, and the conditions under which it should occur. The influential features of the evidence included the importance of the child’s relationship with her half-sister and the maternal grandmother (s 60CC(3)(b)), the mother’s capacity to adequately provide for the child’s needs in all respects (s 60CC(3)(f)), the mother’s attitude to the child and the responsibilities of parenthood (s 60CC(3)(i)), the desirability of avoiding further litigation over the child (s 60CC(3)(l)), and the alleged risk of harm posed to the child by Mr C (s 60CC(3)(m)).

2. The mother’s parenting capacity was the pivotal issue in the proceedings. It was common ground that her misuse of prescription drugs, use of illicit drugs, and alcohol misuse severely compromised her parenting capacity, particularly during 2014 and 2015. Her intoxication rendered her unable to meet the child’s emotional and physical needs and deprived her of the insight to realise it but, given her acknowledged abstinence over the past two years, the real question was the permanence of her rehabilitation. The mother contended her prolonged abstinence demonstrated her rehabilitation was now permanent, but the father and Independent Children’s Lawyer both submitted it was still too early to tell and the risk of her relapse remained unacceptably high.

3. Not unreasonably, the father and Independent Children’s Lawyer pointed to the mother’s long history of drug and alcohol misuse, which started some 20 years ago in her teenage years. The undisputed history was extensively recounted by the single expert and need not be repeated.[15] At that time, the single expert concluded the mother suffered from “poly-substance abuse disorder”.[16] Against that history of poly-substance abuse, the father and Independent Children’s Lawyer contended that her abstinence for only the last two years was insufficiently convincing, particularly since she was previously abstinent for a few years in her 20’s, before relapsing in about 2009. Her addiction or dependency then continued until 2015.

   [15] Single expert report, pages 9-17, 27

   [16] Single expert report, page 28

4. While the father and Independent Children’s Lawyer cannot be blamed for caution, ultimately, their submissions were premised on conjecture and doubt whereas the evidence tended to vindicate the mother’s evidence of enduring recovery. She said tearfully in cross-examination she could “100 per cent guarantee” she would not relapse and would never again do anything to risk the health and safety of her two children. Of course, there can never be any such guarantee, but overall the evidence was sufficiently persuasive to expose the apprehension entertained by both the father and Independent Children’s Lawyer as unduly florid. The risk of her relapse cannot be entirely discounted, but it is not unacceptably high.

5. Perhaps understandably, the mother did not smoothly traverse the road to recovery. She attended a rehabilitation clinic in November 2014 and completed the recovery program over three weeks. However, upon her discharge in December 2014, she did not diligently participate in the recommended follow-up program, did not sustain her attendances at AA and NA meetings, and did not persist with the private counselling she arranged.[17] Nonetheless, she attended all four days of the prescribed family program with the father following her discharge and she continued to consult with the professor to whom she was referred for several months afterwards, to whom she candidly conceded her difficulty in sustaining abstinence,[18] which difficulty persisted into 2015.

   [17] Single expert report, page 12; Father’s affidavit, para 39

   [18] Single expert report, page 16; Father’s affidavit, para 27

6. The mother asserted she last misused drugs or alcohol in June or July 2015[19] and she was corroborated by the results of the urine and blood tests she took.[20] The father conceded the mother had demonstrated 18 months of abstinence by April 2017.[21] Self-evidently, recovery from addiction can often be assisted by counselling and other support services, but such external support is not an obligatory element of recovery. The litmus test of recovery is abstinence, which the mother has achieved. Most probably her recovery has been assisted by Dr H, whom she first consulted as a treating psychiatrist in June 2015. She has since seen him on some 18 occasions since[22] and continues to visit him periodically. He prescribes the mother Ritalin to treat her condition of ADD and there was no evidence at all of her misuse of that prescriptive medication. Her testing regime was expanded by interim orders in April 2016 to detect any misuse of that medication.[23] Dr H reported the mother has been compliant with his management, she has not had any depressive episodes, and her anxiety is under control.[24] In addition, she has been undertaking therapy with another therapist for the past 12 months.[25]

   [19] Single expert report, pages 11-12

   [20] Single expert report, pages 16-17; Affidavit of Dr G

   [21] Father’s affidavit, para 74

   [22] Mother’s first affidavit, para 22; Affidavit of Dr H

   [23] Order 5 made on 21 April 2016

   [24] Affidavit of Dr H

   [25] Mother’s first affidavit, paras 21, 113, 115

7. Evidence about the mother’s recovery was not confined to objective proof of her abstinence and her compliance with treatment strategy. There has also been tangible improvement in her emotional condition and attitude. She told the Family Consultant in August 2015 she took responsibility for her drug use and her past displays of anger towards the father. She admitted she had created the “entire situation”.[26] She deposed that her life has now “entirely turned around”. She now recognised her life had previously been chaotic, for which she unfairly blamed others and formerly did not accept responsibility. She admitted she did not manage her emotion, acted impulsively, and was abusive to the father in their communication, for which she was remorseful.[27] In cross-examination she agreed her life was “spiralling” in 2014, she admitted her past abusive email communication with the father, she admitted she had been “secretive” and “manipulative”, and she conceded her past addictions adversely affected her parenting capacity and employment. Her evidence in cross-examination only served to demonstrate the genuineness of her contrition.

   [26] Memorandum, para 15

   [27] Mother’s first affidavit, paras 11-12, 99-101

8. The mother was implicitly challenged in cross-examination about how the risk of her relapse was compounded by her fragile psychological condition. The single expert did, two years ago, diagnose the mother as suffering from “anxiety” and “dependent personality disorder”,[28] but she is currently under the medical supervision of Dr H and is being counselled by another therapist and the evidence revealed her behaviour over the past two years has been quite unexceptional. In any event, the father has not been entirely untroubled himself. In 2013, it was recommended he be counselled and perhaps medicated for “depression” and, in his subsequent therapy sessions, he was advised he was “so emotional that he was not exercising appropriate boundaries” with the mother.[29] Both parties have experienced some degree of emotional upheaval over recent years, but neither deserves censure or opprobrium for it.

   [28] Single expert report, page 28

   [29] Single expert report, page 4

9. The mother poignantly asked the single expert in cross-examination what more she could have done to verify her rehabilitation above and beyond the two continuous years of proven abstinence. He did not answer the question responsively, even though “nothing” was the only logical answer to give. Instead, the single expert obfuscated by discussing her complicated history, his lack of knowledge of Mr C’s circumstances, and the need to take account of the possibility of some problem again arising in the future. Leaving to one side the scepticism of the father and Independent Children’s Lawyer, so far as the evidence goes, the mother could have done no more than she already has to demonstrate her reformation. The risk of her future relapse can be satisfactorily contained by ensuring the time spent by the child with her is conditional upon her periodic production of negative drug and alcohol tests for an arbitrary but finite period into the future, to which measure the mother was always willing to submit throughout the trial. Whilst ever the mother remains abstinent, her parenting capacity is generally comparable to the father’s in all respects. She can equivalently cater to the child’s physical, emotional, and intellectual needs.

10. The father and Independent Children’s Lawyer were also both troubled that Mr C posed a risk of harm to the child, though the nature of the alleged risk and the alleged harm was never clearly articulated until final submissions. Eventually, the Independent Children’s Lawyer clarified the concern to be Mr C’s alleged tendency to act in an aggressive way when intoxicated and so, if intoxicated in the child’s presence, there was a risk he would misbehave and model undesirable behaviour to her. To be clear, it was never contended the child would be exposed or subjected to “abuse” or “family violence” committed by Mr C. As in respect of the mother, the fastidious fixation upon Mr C’s past misdemeanours proved to be unnecessary, particularly since he too was prepared to submit to ongoing drug and alcohol tests, even though not a party to the proceedings.

11. As with the mother, drug use and alcohol misuse has been an intermittent part of Mr C’s life for a long time. He was prosecuted for the possession of cannabis in 1996 and 1997 and, although not prosecuted again until 2013, he had numerous minor skirmishes over the years that attracted police attention. In early January 2013 he was convicted for his refusal to comply with a “move on” direction whilst intoxicated. In late 2013, Mr C was referred to a mental health service for assessment. He presented with symptoms of “social anxiety with secondary depression…complicated by alcohol misuse” and, although he reported experiencing panic over several preceding years, he was not assessed to meet the criteria for panic disorder. He conceded his past cannabis use and current excessive alcohol consumption, the latter of which disqualified him from treatment at the clinic.[30] He continued to experience anxiety into 2014 and began using cocaine periodically. When reviewed at the clinic in October 2014, he elected to accept prescribed medication for his anxiety condition rather than submit to Cognitive Behavioural Therapy.[31] In May 2015, he again failed to comply with a lawful direction and resisted police officers in the execution of their duty, his prosecution for which was finalised in November 2015 pursuant to the provisions of the Mental Health (Forensic Provisions) Act1990 (NSW). He was discharged, subject to his compliance with medical advice provided by the psychologist he was then consulting.[32]

    [30] Exhibits ICL3, ICL1

    [31] Exhibit ICL3

    [32] Father’s affidavit, para 155; Exhibit ICL1

1. Mr C acknowledged his past behaviour was unacceptable when he consumed alcohol, particularly when also medicated for his anxiety.[33] However, he alleged he no longer consumes drugs and has moderated his alcohol consumption, as a result of which he feels happy and healthy.[34] His evidence was verified by widely-spaced drug and alcohol test results in 2016 and 2017. The tests confirm he is abstinent from all drugs and his alcohol consumption has now returned to normal limits from his prior excessive consumption up to 2016.[35] Mr C also voluntarily submitted to anxiety therapy, though he ceased that treatment in 2016.[36] He also admitted in cross-examination that he ceased taking prescribed medication in 2016, contrary to the medical advice he received at the time. While that was imprudent, he does not seem to have suffered any setbacks. He presented as intelligent, alert, and sober during his evidence. He said “I feel fine”, which is how he looked. He said in cross-examination he would not regress because he did not want to jeopardise the stability of his family unit with the mother and their new child.

   [33] Mr C’s affidavit, para 28

   [34] Mr C’s affidavit, paras 29-30

   [35] Mr C’s affidavit, paras 31-33; Affidavit of Dr G

   [36] Mr C’s affidavit, para 35

2. In the absence of the updated information just summarised, the father was guarded about Mr C,[37] but he now knows how Mr C has addressed his former drug and alcohol problems (as verified by his test results), he has seen Mr C’s mental health records produced on subpoena, and he has seen the reports tendered to the Local Court of NSW when Mr C’s most recent charges were finalised under the Mental Health (Forensic Provisions) Act1990 (NSW). The father’s confidence about Mr C has now been elevated to the point that he sees no need to restrain the child’s interaction with him and is content for them to interact normally, so long as Mr C continues to provide negative drug and alcohol tests results like the mother. Mr C deposed to his willingness to do so, albeit at the father’s cost,[38] which evidence he confirmed in cross-examination. Given the reasonable concession by the father, the Independent Children’s Lawyer’s insistence upon the imposition of an injunction conditionally restraining the child’s future interaction with Mr C was puzzling. It is certainly unnecessary, given the safeguard of continuing drug and alcohol tests.

   [37] Father’s affidavit, para 361

   [38] Mr C’s affidavit, para 37

3. The child enjoys loving relationships with the maternal grandparents[39] and is also in the process of developing a strong bond with her half-sister,[40] born to the relationship of the mother and Mr C in 2016. The father understands the importance of the child’s relationships with the members of the maternal family, including with Mr C, because he agreed to relax the embargo on the interaction between the child and Mr C so they could both attend the half-sister’s birthday.[41] That conciliatory attitude was relatively typical of the father. The single expert found him “genuinely vexed” about the mother’s predicament in 2015[42] and genuinely supportive of the child’s relationship with her.[43] During quite trying times he offered to pay for her rehabilitation program at the clinic,[44] he paid professional supervisors to ensure the child could spend time with her,[45] and he paid for her drug and alcohol tests.[46] In cross-examination, the mother was moved to admit how generous and supportive he had been.

   [39] Father’s affidavit, para 177

   [40] Mr C’s affidavit, para 45; Affidavit of maternal grandmother, para 21

   [41] Father’s affidavit, para 45

   [42] Single expert report, page 8

   [43] Single expert report, page 26

   [44] Single expert report, page 16

   [45] Father’s affidavit, paras 68, 216, 367

   [46] Father’s affidavit, paras 215, 367

4. The father has borne most of the cost of maintaining the child with little financial assistance from the mother.[47] Her current child support assessment is little more than $40 per month, but that is reflective of her tight financial circumstances. It was not contended her relatively insignificant financial contribution to the child’s maintenance should affect the orders in any way.

   [47] Father’s affidavit, paras 206-214

Conclusions and orders

1. The presumption of equal shared parental responsibility applies (s 61DA(1)), as the mother and Independent Children’s Lawyer both contended. The father failed to persuade that the evidence rebutted the presumption (s 61DA(4)).

2. The father subjectively believed the mother was content to let him unilaterally make important decisions for the child,[48] but in reality she objected and felt excluded, such as when the father decided the school at which the child would be enrolled without recourse to the mother.

   [48] Father’s affidavit, para 363

3. When the father commenced the proceedings in February 2015, he proposed an order for equal shared parental responsibility. His position remained unchanged until just before trial in October 2017. In cross-examination, he explained his change of mind occurred when the mother called him an “intellectual wanker” when they disagreed over the child’s participation in an ethics course at school in February 2017. The father may have found it galling, but as parental conflict goes, that level of disagreement was objectively quite mild.

4. The mother said in cross-examination she understood the father’s lack of trust in her and, since any lack of trust between parents is liable to undermine their capacity to negotiate with one another in good faith, it implied the successful exercise of shared parental responsibility might be beyond them (s 65DAC). But that was not the only influential consideration.

5. During his cross-examination, the father agreed it may be better that he did not impose his will upon the mother in respect of issues affecting the child, he agreed it was important for the child to realise that both of her parents had an equal say about events in her life, and he conceded they had already negotiated solutions to numerous disagreements, including the child’s extra-curricular activities and her collection times around those activities. The parties agreed they do not presently speak by telephone, but they can certainly communicate effectively in writing via text messages and emails. In fact, the father deposed he sent many documents about the child to the mother and expected her to engage him in discussion about the content of those documents.[49] The mother said the parties’ written communication has improved considerably since 2015, when she was occasionally disrespectful towards him.

   [49] Father’s affidavit, para 353

6. The father’s long-held belief that the allocation of equal shared parental responsibility was appropriate, his concession in cross-examination about the desirability of an order in those terms, the parties’ proven ability to negotiate the solutions to numerous disagreements over the child, and the parties’ acknowledgment of their capacity to communicate successfully in writing were all factors which collectively recommended an order for equal shared parental responsibility.

7. With an order made for equal shared parental responsibility, it is obligatory to consider the child living with the parties for “equal time”, or alternatively, the child living primarily with one party and spending “substantial and significant time” with the other (s 65DAA). The single expert considered the former “dysfunctional” relationship between the child and mother precluded an “equal time” arrangement, because it would not be in the child’s best interests.[50] The child should live primarily with the father because the child perceives him as the stable and reliable figure in her life,[51] the single expert assessed him to be intelligent and emotionally stable,[52] and there was no rational basis to disturb the child’s settled primary residence with him.

   [50] Single expert report, page 31

   [51] Single expert report, page 24

   [52] Single expert report, page 8

8. The question therefore devolved to the regime under which the child should spend time with the mother, about which there were three distinct components: how quickly the regime should expand from its current form; the nature of the regime at its zenith (assuming the mother does not relapse); and how the regime’s operation should be contingent upon continuing negative drug and alcohol tests undertaken by the mother and Mr C.

9. Even though the father contended his proposal was intended to reflect the advice of the single expert, the regime he proposed graduated over a period of nearly 21 months when the single expert said in cross-examination the regime could be phased-in over the next 15 months and be in place by Christmas 2018. The father was unable to logically explain the disparity and so the orders reflect the single expert’s evidence. Over that period, the time the child will spend with the mother expands in four stages, culminating in January 2019 with four nights per fortnight in school terms, half of school holidays, and on other special occasions.

10. Significantly, the father conceded to the single expert the child could spend “substantial and significant time” with the mother if her safety was not compromised,[53] perhaps even week-about.[54] The single expert envisioned an expanding program of interaction between the child and mother,[55] but said in his report he could not envisage the child spending “substantial and significant time” with her.[56] But that was two years ago, before she had demonstrated her capacity for rehabilitation. In cross-examination, the single expert said he would now not recommend “above five to six nights” per fortnight, which implied he would be comfortable with a regime up to about that limit. When pressed to be more prescriptive, he suggested a regime of alternate weekends of three nights and one night in intervening weeks (being four non-consecutive nights per fortnight) in school terms, together with half of school holidays.

    [53] Single expert report, page 2

    [54] Single expert report, page 6

    [55] Single expert report, page 31

    [56] Single expert report, page 30

11. The orders now made are similar, but not identical, to the single expert’s recommendation. That is because the single expert also went on to recommend it would be best to consolidate the child’s visits with the mother as much as possible and to reduce the number of changeovers, which should occur at the child’s school whenever possible. The orders therefore provide for the child to eventually spend time with the mother for four consecutive nights each fortnight in school terms, with the changeovers to occur at her school. When changeovers cannot occur at the child’s school, in school holidays and on special occasions, they are ordered to occur at a public venue near to the parties’ homes. The venue is arbitrarily chosen because there was no evidence adduced, no submission made, and no order proposed about it.

12. The father proposed orders that included express provision for the child to be returned to him fed and bathed by the mother, because he alleged she failed to attend to that in the past.[57] The orders do not contain such a requirement because it is too vague to enforce, since they might hold different views about what adequate feeding and bathing might entail, and orders are futile unless they are prescriptive and enforceable. In any event, orders of that ilk are unlikely to be suitable as the child matures.

    [57] Father’s affidavit, para 199

13. The single expert recommended in September 2015 that the mother’s drug testing continue for four to five years so as to ensure against her relapse.[58] With the consent of the mother and Independent Children’s Lawyer, the orders ensure the child’s expenditure of time with the mother is contingent upon her continuing to provide the father with negative drug and alcohol test results for both her and Mr C for another two years. In final submissions, the father conceded mandatory injunctions could not bind Mr C personally and so the orders he proposed to that effect needed to be revised in order to oblige the mother to furnish the test results to him for both her and Mr C. If the relationship between the mother and Mr C unexpectedly ends and she can no longer compel him to submit to drug and alcohol tests then, unless the father relinquishes strict reliance upon the orders, further litigation will ensue. The point was raised and conceded during final submissions.

    [58] Single expert report, page 29

14. There was a dispute over the duration of the testing and who should bear the cost of it. The mother has already submitted to testing for more than two years and the orders now require another two years of testing. The extra three years proposed by the father was excessive, even though consistent with the upper limit of the single expert’s arbitrary estimate. As to the cost, the financial circumstances of the mother and Mr C are much more modest than those of the father. The mother deposed his taxable income last financial year exceeded $600,000,[59] the accuracy of which evidence was not challenged, though he contended in final submissions his income has since reduced. The father has borne many expenses in respect of both the child and mother to date, so the parties should share the cost of testing equally over the next year. Thereafter, the father should bear the cost because by then the mother will likely have proven well over three years of abstinence. If the father wants more insurance than that, he can pay for it.

    [59] Mother’s second affidavit, para 33

15. The alcohol tests taken by the mother and Mr C will only operate to suspend the child’s visits with the mother if they show results above a “normal range”, as established by the evidence of Dr G. The order will not preclude them from consuming alcohol at all, but the mother did say she was willing to submit to an injunction restraining her consumption of any alcohol during the child’s visits with her and for the preceding 12 hours, so an injunction is made in those terms. No such injunction could restrain Mr C because he was not a party to the proceedings.

16. Any suspension of the child’s visits with the mother due to her failure to supply negative drug and alcohol screens for both her and Mr C will only be temporary, not permanent as the father proposed.[60] The established regime will resume upon the mother restoring her compliance with the conditional orders. That will minimise the prospect of further litigation between the parties.

    [60] Exhibit F3, Order 31

17. The father also proposed orders that required the mother and Mr C to undertake therapy,[61] but the proposed orders are not made for several reasons. First, the mother and Mr C have already demonstrated their prolonged abstinence with the help of some past therapy. Second, if they are now resistant to more therapy and are forced to submit to it regardless, they are unlikely to derive any tangible benefit. Third, there is probably no power to make such stand-alone orders (see Marriage of L & T (1999) 25 Fam LR 590 at 603-606; Jacks & Samson (2008) FLC 93-387 at [200]-[226]). Fourth, in the case of Mr C, he was not a party and could not be bound by any such mandatory injunction.

    [61] Exhibit F3, Orders 33, 34, 34A

18. The father deposed to the desirability of the child’s telephone communication with the mother,[62] which he confirmed in cross-examination. The parties and Independent Children’s Lawyer uniformly proposed orders for telephone communication, but in slightly different terms. The disparity was not explored in the evidence and was not the subject of any submission, in which case the disparity must not be particularly important. The orders therefore make provision for the child to communicate with the mother by telephone once each week while living with the father and with the father once each week when she spends time with the mother in school holidays. The child will also be able to speak by telephone with the parent she is not with on her birthdays.

    [62] Father’s affidavit, para 365

19. The parties both consented to the order proposed by the Independent Children’s Lawyer about their participation in post-separation parenting courses.[63]

    [63] Exhibit ICL5

20. The remaining orders are self-explanatory and could not be the subject of reasonable objection.

21. The orders set out at the commencement of these reasons reflect the child’s best interests.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 26 October 2017.

Associate: 

Date:  26 October 2017