Paulson & Welch
[2023] FedCFamC2F 167
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Paulson & Welch [2023] FedCFamC2F 167
File number(s): NCC 49 of 2020 Judgment of: JUDGE BETTS Date of judgment: 6 February 2023 Catchwords: FAMILY LAW – Parenting – one child aged six years – where the parents live a little over two hours apart – where the child has been living with each parent on a week-about, equal time basis – where the child is set to commence school this year – where the Court must then make orders for the child to live with either the mother or father to enable the child to attend school – where the Court must consider the risks in each parties household and determine which parent the child should live with – best interests of the child. Legislation: Family Law Act1975 (Cth), Pt VII Cases cited: Amador & Amador [2009] FamCAFC 196 Division: Division 2 Family Law Number of paragraphs: 207 Date of last submission/s: 25 January 2023 Date of hearing: 23, 24 and 25 January 2023 Place: Newcastle Counsel for the Applicant: Mr Wilkinson Solicitors for the Applicant: Winder Lawyers Counsel for the Respondent: Mr Flanigan Solicitors for the Respondent: Grant & Co Counsel for the Independent Children’s Lawyer: Ms Hamilton Solicitors for the Independent Children’s Lawyer: Jennifer Blundell and Associates ORDERS
NCC 49 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PAULSON
Applicant
AND: MR WELCH
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE BETTS
DATE OF ORDER:
6 FEBRUARY 2023
THE COURT ORDERS THAT:
1.That all previous parenting orders concerning X born in 2016 (“the child”) are disregarded.
2.The child live with the Father.
3.Subject to the immediately following order, the Father shall have sole parental responsibility for the child.
4.In relation to the Father exercising sole parental responsibility for the child, the following shall apply:
(a)Where the Father is required to make a non-urgent long-term decision for the child, the Father shall provide the Mother with twenty-one (21) days’ notice of the relevant issue, his proposed decision concerning the issue and invite the Mother to have any input with respect to the decision that the Father has to make;
(b)If the Mother wants her views to be considered, she is to respond to the Father within seven (7) days;
(c)The Father shall ultimately make the decision concerning the long-term issue and he shall promptly advise the Mother of the decision once made; however
(d)Where the Father makes an urgent long-term decision for the child, the Father shall advise the Mother of the decision made as soon as practical after he has made the decision.
5.The child spend time with the Mother as agreed between the parties but failing agreement as follows:
(a)During school terms:
(i)Each alternate weekend from 5.00pm on Friday until 5.00pm Sunday or 5.00pm Monday should Monday be a public holiday.
(b)For one half of each of the school holiday periods falling at the end of Terms 1, 2 and 3 being the first half of the school holidays commencing at 9.00am on the first Saturday following the conclusion of school and concluding at 9.00am the immediately following Saturday in even numbered years and the second half of the school holidays commencing at 9.00am on the second Saturday and concluding at 9.00am on the last Saturday prior to the new school term in odd numbered years;
(c)For the Term 4 Christmas school holidays in 2023 and in 2024, week about commencing from 9.00am on the first Saturday of the NSW gazetted school holidays and including at 4.00pm the immediately following Saturday and thereafter each alternate week;
(d)Thereafter from the Christmas school holidays in 2025 onwards, for the first half of each holiday in odd numbered years and the second half in even numbered years.
(e)Notwithstanding any other Order, the child will be in the care of the Mother:
(i)On the Mother’s Day weekend, from 5.00pm on Friday until 4.00pm on Sunday.
6.The child have phone/zoom/skype communication with the Mother each Tuesday and Thursday that the child is in the Father’s care from between 5.00pm to 5.30pm.
7.Notwithstanding any other Order, the child will be in the care of the Father:
(a)On the Father’s Day weekend and the Mother’s weekend time is suspended should the child be ordinarily spending time with the Mother.
8.Unless otherwise provided for in these orders, to facilitate the child living with or spending time with each parent, each parent shall, deliver the child to the other parent’s residence at the conclusion of their period with the child.
9.Each parent be and hereby is restrained from:
(a)Denigrating the other parent, or any member of the other parent’s household or extended family in the presence or hearing of the child, or allowing the child to remain the in presence of any other person engaging in such denigration;
(b)Physically disciplining the child or enabling any other person to do so;
(c)Showing the child any Court documents;
(d)Willingly or knowingly exposing the child to “family violence” as defined in section 4AB of the Family Law Act1975, a copy of which section is attached to this order;
(e)In the case of the Mother, allowing the child to remain in the presence of Mr B except where the Mother is present;
(f)In the case of the Father, allowing the child to remain in the presence of Ms C except where the Father is present.
10.That each parent is to telephone the other as soon as practicable in the event of the child:
(a)Becoming seriously ill;
(b)Becoming hospitalised;
(c)Being the subject of a medical emergency or an accident requiring attendance at a hospital.
11.The parents must keep each other informed of their current residential address, home telephone number, mobile telephone number and email address and shall provide to the other not less than twenty-four (24) hours’ notice of any change of address or telephone number.
12.Each party is to urgently notify the other in the event of an Apprehended Domestic Violence Order (ADVO) being taken out against that party, and to provide the other party with details of who is the Applicant and what the terms of the order are.
13.A copy of these reasons be taken out in writing.
14.Unless the Mother, the Father or the Independent Children’s Lawyer files an Application in a Proceeding seeking costs against one or other party (supported by an Affidavit or written submission as the case may be) the Court will order the proceedings be removed from the list of active pending cases in 28 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Paulson & Welch has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
These reasons for judgment were delivered orally. They have been corrected from the transcript in order to make them easier to read.
BACKGROUND
These proceedings concern the future parenting of a young child, X, born in 2016. X has recently turned six (6) and is due to commence primary school this year. The key issue in these proceedings is whether X should live with the applicant mother Ms Paulson (“the mother”), or with the respondent father Mr Welch (“the father”).
The mother is 27 years old. She lives with the maternal grandmother in public housing in Suburb D. She is engaged in home duties on a full-time basis, although has some previous work experience working at a farm.
The father is shortly turning 27. He lives in a rental home at Suburb E in Sydney where he works as a transport worker. He usually works from 5 am to 3 pm Monday to Friday, but he has some flexibility in his employment as his older brother is his boss and, on his evidence, his older brother will work shifts for him if necessary. That is, his older brother will cover for him if the father is unavailable to care for X due to his work commitments.
The parties live approximately 165 kilometres apart or a little over two (2) hours’ drive. Since 12 May 2021, X has been living between their homes on a week-about, equal time basis. Sadly for X, those arrangements cannot continue once he commences school. It is necessary that X either live primarily with his mother or primarily with his father.
The parties are also in dispute as to the allocation of parental responsibility. Each parent seeks sole parental responsibility - although, to be fair to him, the father suggested in evidence that he was open to an order for equal shared parental responsibility.
By way of further background, each of the parties has another child.
The father has a son, F, born in 2021. He is the child of the father’s subsequent relationship with one Ms C in Sydney, a relationship which seems to have subsisted from around August 2020 to around January of 2021. F lives with Ms C and the father spends alternate weekend time with him, including overnights.
The mother has a daughter G, born in 2022 to her subsequent relationship with one Mr B. At one point, the mother and Mr B were engaged, although they do not appear to have ever lived together. In any event, they are now separated and G lives with the mother but spends alternate weekends with Mr B, including overnight time.
I should add that there are difficulties in relation to each of the parents’ subsequent partners, resulting in mutual “no contact” injunctions preventing each parent from allowing those new partners to come into contact with X. In the case of Ms C, the risks relate to her abuse of cannabis which has been a long-standing issue in her life. In the case of Mr B, the risks relate to his mental health history and his abuse of drugs, as well as criminal behaviour.
SHORT CHRONOLOGY
By way of brief historical summary, the parties started their relationship when they were both very young; each was only 15 or 16 years of age and still at high school. They lived together from around 2011 / 2012 through to June of 2019.
Their relationship appears to have been somewhat volatile, which is perhaps unsurprising given that they were both very young. It seems that both parties used illicit drugs. The father accepts and admits that he became addicted to methamphetamine for a period of about one (1) year leading up to X’s birth. I accept his evidence is that it was the mother’s sister’s boyfriend who introduced him to methamphetamine.
The mother accuses the father of perpetrating family violence during the relationship and of abusing alcohol. He broadly denies these allegations and says that he never raised a hand to the mother. For his part, the father accuses the mother of having mental health issues, of being addicted to prescription medication as well as behaving violently towards him.
I will address these issues a little later in these reasons.
It suffices for the purposes of this short chronology to observe that when the parties separated, the father was “blindsided” in that the mother told him she was going shopping when, in truth, she had decided to move out with X. After living with a friend for a short period, she then moved in with the maternal grandmother where she has stayed ever since. The father was initially spending some limited time with X which was essentially controlled by the mother and required to occur in a public place. He seems to have been rather resentful of this and in August 2019 he left the Suburb D/City H region to return to Sydney where he had much more family support and where he has been able to obtain work as a transport worker.
Thereafter, the father was spending time with X on alternate weekends. This occurred until Christmas 2019 when the father retained X in Sydney, citing concerns about X possibly being excessively physically disciplined in the mother’s home. This issue was not explored in the trial and it is a matter about which I can make no real finding.
The mother commenced these proceedings on 18 January 2020 and was successful in obtaining a recovery order on 21 January 2020 pursuant to which X was returned to her care and the father was to spend time with him each alternate Friday to Tuesday.
In September 2020 the Court made further interim orders whereby the father’s time with X was increased to 9 am Monday to 5 pm Tuesday in alternate weeks. By this stage, the father had re-partnered with Ms C and it is alleged that there was some conflict and even some threats from Ms C towards the mother, including at changeovers.
In any event, on 12 May 2021 the parties entered into a consent order whereby the existing week-about arrangements were put in place. By this stage, the father had separated from Ms C.
THE HEARING BEFORE ME
At the hearing, Mr Wilkinson of counsel appeared on behalf of the mother, Mr Flanigan of counsel appeared on behalf of the father and Ms Hamilton of counsel appeared on behalf of the Independent Children’s Lawyer (“ICL”).
The matter was originally listed to proceed before me by way of interim hearing on the papers on 14 December 2022. However, in the course of the interim hearing it became apparent that the competing “live with” applications were simply too difficult to determine on an interim basis given the risk allegations made by each party. In circumstances where the Court was able to list the matter for an urgent final hearing at the very commencement of this year, I decided that this would be the better course.
As the parties had tendered numerous exhibits and made various submissions to me on 14 December, those documents remained in evidence before me as exhibits for the final hearing. The interim hearing on 14 December was deemed to be the first day of the final hearing.
The hearing resumed before me on 23 January 2023, being the first day upon which I sat for the year. The listing was urgent because obviously X needed to be placed into a school. The hearing ran for three (3) days, with judgment being reserved on 25 January.
On behalf of the mother, Mr Wilkinson read and relied upon the Case Outline filed 12 December 2022, the mother’s affidavit filed 21 December 2022 and the affidavit of the maternal grandmother filed 21 December 2022. (By agreement, the maternal grandmother was not required for cross-examination.)
On behalf of the father, Mr Flanigan read and relied upon the Case Outline filed 11 December 2022, the father’s affidavit of 1 December 2022, his further supplementary/response affidavit filed 15 January 2023 (which specifically responded to some family violence allegations made in relation to Ms C) and the affidavit of the paternal grandmother filed 5 January 2023. (By agreement, the paternal grandmother was also not required for cross-examination.)
The ICL relied upon a Case Outline filed 12 December 2022, an affidavit of the ICL filed 21 April 2022 (which annexed a paediatrician’s report), and a further affidavit of the ICL filed 5 July 2022 (which annexed an expert report from Dr J, a forensic toxicologist.) The ICL also relied upon the Family Report of Ms K, Regulation 7 Family Consultant (as she was then known), which report was dated 29 March 2021 and became exhibit 1 in these proceedings.
Numerous exhibits were tendered in the course of the hearing. I will refer to these exhibits to the extent that they are relevant.
THE LAW
These are parenting proceedings conducted pursuant to the provisions of Part VII of the Family Law Act 1975 (“the Act”).
The Court is obliged to make parenting orders which are in the “best interests” of the child X: s 60CA. In determining what is in X’s best interests, the Court is obliged to have regard to the mandatory “best interests considerations” set out in s 60CC(2) and s 60CC(3) of the Act. Section 60CC(2) sets out the two “primary” considerations. Section 60CC(3) sets out fourteen “additional” considerations.
Section 60CC – How a court determines what is in a child’s best interests
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Section 61B of the Act provides a definition of “parental responsibility” in relation to a child. Parental responsibility is defined therein as:
“...all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
Section 61C of the Act provides that each parent has “parental responsibility” - subject to Court orders.
Section 61DA(1) provides that, when making a parenting order, the Court should presume that it would be in a child’s best interests to order that the parents have equal shared parental responsibility. But that presumption does not apply if there are reasonable grounds to believe that a parent has engaged in “abuse” of the child or “family violence”: s 61DA(2). Moreover, where the presumption applies, it can nonetheless be rebutted by evidence which satisfies the Court that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.
If the Court makes an order for equal shared parental responsibility, the Court is obliged to follow the statutory pathway set out in section 65DAA of the Act, which requires a consideration of:
·as the first option – that the child spend equal time with both parents;
·as the second option – that the child live primarily with one parent but spend “substantial and significant time” with the other parent; and
·if neither of those options are in the “best interests” of the child, or if neither of those options is “reasonably practicable”, then the Court must consider making some other form of parenting order.
Section 68B of the Act provides that, in Part VII proceedings, the Court may make injunctions which are appropriate for the welfare of a child including, amongst other things, injunctions for the personal protection of a child or injunctions for the personal protection of a parent.
Section 60CG of the Act also requires the Court to consider the risk of family violence in considering what order to make. The Court is directed by that section to ensure that any order it makes does not expose a person to an unacceptable risk of family violence.
BEST INTERESTS FINDINGS
There are a great many factual disputes in this case and quite a significant amount of history that needs to be traversed. I propose to address these matters as part of a consideration of the relevant s 60CC mandatory considerations.
Section 60CC(2)(a): benefit of meaningful relationships
Clearly the mother was the primary carer of X up until the orders of 12 May 2021. He has a meaningful relationship with her. Equally, the father has played a significant role in X’s life throughout his life and X has a meaningful relationship with him.
I am satisfied that each parent will continue to have a meaningful relationship with X whatever orders I make.
Section 60CC(2)(b): risks of harm
Having regard to the way in which the case was run, this mandatory consideration perhaps had the most “heat and controversy” about it.
Risks posed by the mother
I begin with the mother and the risks that she is said to pose.
The mother has a background history of anxiety, depression and panic attacks. She also has various health conditions relating to pain. In particular, she suffers from significant tooth pain and has required tooth extractions. Indeed, she requires ongoing tooth extractions into the future. I accept her evidence that part of the issue with her teeth relates to the enamel being stripped as a result of her suffering reflux due to morning sickness. There is also evidence in the medical material that the mother has cysts on her ovaries. In short, I accept that the mother is a person who has suffered from pain throughout her life and that her teeth, in particular, give her ongoing pain.
This leads me to the major concern that is raised about the mother in this case and which was the focus of much of the evidence and submissions, particularly from the ICL. That is to say, the evidence establishes that the mother has had an unhealthy dependence upon prescription painkillers - namely and predominantly Codeine, but perhaps Endone as well.
The mother sets out in paragraphs 55 – 64 of her affidavit that she has required various teeth to be removed, she has required various painkillers and she has been prescribed Panadeine Forte (Codeine). She has also been assaulted, as set out in her material, resulting in further prescription pain medication being provided to her by doctors.
The mother accepts that by July 2020 she had become dependent upon Codeine and at that stage she was referred to Region L Pain Services from where she was referred to M Outreach Centre, otherwise known as M Centre. The mother consulted an alcohol and drug counsellor there, Ms N, seeing her for some ten (10) visits between about July and November of 2020. I have before me a report from Ms N which tells the Court that:
·the program in which the mother was then engaged was a voluntary service to patients who are able to identify specific goals related to substance dependence;
·that the patients had to be ready to address change in order to maintain eligibility to participate in the program and they had to agree to attend regular meetings.
According to Ms N’s report, which is annexure “C” to the mother’s affidavit, the mother, as at 24 November 2020:
...remains abstinent from AOD [alcohol and other drugs]. Our times are spent addressing past AOD issues that have negatively impacted [Ms Paulson]’s life. Discussions and education relate to relapse prevention, identifying high-risk situations and people and how to appropriately deal with them and setting goals. [Ms Paulson] has been open in discussing her issues during our counselling sessions and has gained insight into the impact her addiction has had on the family unit. [Ms Paulson] is making an effort to make changes and work towards her son remaining in her care. Due to [Ms Paulson]’s progress, I feel I am unable to offer her further support or assistance in the AOD area and have made the decision to close her file.
Ms N’s report is consistent with paragraph 61 of the mother’s affidavit wherein she deposes that Ms N was happy with the progress the mother had made, that Ms N did not need to see the mother anymore, but that she was only a telephone call away if needed.
If only for the mother’s case that was the end of the story. Alas it is not.
There have been hair strand tests undertaken by the mother throughout these proceedings at the request of the ICL in the period between February 2020 and July 2022. All but one have been positive for Codeine. The mother admits this. I will turn to some of these test results now. [1]
On 10 February 2020 the mother returned a test result that showed 9.22ng/10mg of Codeine (Panadeine Forte), and Oxycodone (Endone) of 6.14ng/10mg Endone.
I note from medical evidence that the mother was prescribed Panadeine Forte on 20 February 2020 (20 tablets in total), some ten (10) days after this hair strand test was performed. On 3 March 2020 the mother obtained a prescription for another 20 tablets.
On 17 April 2020 the mother returned a result of 27.9ng/10mg (Codeine) and 3.89ng/10mg (Hydrocodone) which is a metabolite of Codeine. This was a significant increase from the previous hair strand test results.
Medical records reveal that on 27 May 2020 the mother was prescribed another 20 tablets of Panadeine Forte. On 4 June 2020 she obtained another prescription for 20 tablets of Panadeine Forte.
By July 2020 the mother seems to have come to something of a crisis point. She went to see her dentist complaining about her tooth pain, which I accept was entirely legitimate, but she was specifically asking him for a prescription for Panadeine Forte.
The dentist effectively sent her away empty-handed, presumably out of concerns for her potentially “doctor shopping.” I say that because, according to the dentist’s own letter, it was quite open to the dentist to prescribe Panadeine Forte to her, but clearly the dentist was unhappy or unable or otherwise unwilling to do so. [2]
Notably, the maternal grandmother telephoned the dentist later that day to apparently tell him that the mother’s request for Panadeine Forte had been “theoretical” only - that is to say, the mother was merely asking hypothetically whether he could prescribe Panadeine Forte. In all likelihood, the mother asked the grandmother to contact the dentist. It seems to me that no other reasonable finding is open. The maternal grandmother would have only known about the mother’s request for Panadeine Forte because the mother told her. And it seems likely that the purpose of the call was to try to perhaps improve the mother’s case or otherwise prevent the dentist or dissuade the dentist from writing an adverse report. That seems to be the only logical interpretation, particularly given the weight of all the other evidence to which I will turn shortly.
In any event, I accept that on 8 July 2020 the mother had four (4) teeth extracted and that it was at this stage that she herself acknowledged that she had a substance dependence issue.
This is when she was then referred to M Outreach or M Centre (Ms N), as referred to earlier. On 9 July 2020 the mother undertook a survey form with M Outreach which effectively asked her a series of questions. [3] In answering those questions, she ticked the box that indicated she had taken opioids every day for the last 28 days. In the witness box the mother suggested that she had filled the form out wrongly and that this was not her intended answer. I reject her evidence and am satisfied that she was being honest.
That same day, the mother also admitted to Ms N that she had been using the maternal grandmother’s Panadeine Forte kept in the home. [4]
Some five (5) days later, on 14 July 2020, the mother told Ms N that she was now only taking Panadol for pain. [5]
Nine (9) days later, on 23 July 2020, the mother admitted having taken Codeine for five (5) years and to being dependent upon it. She also admitted that she could no longer buy Codeine over the counter, which is clearly an admission that the authorities were aware of her potentially abusing such medication or, to put it another way, “doctor shopping.” [6]
Interestingly, on 11 August 2020, the ICL requested another hair strand test from the mother. The mother did not respond to that request in time, as she claimed she was not aware of it.
On 18 August 2020, the mother told Ms N that the maternal grandmother was addicted to Panadeine Forte. In the witness box, the mother suggested that this is not what she had said at all and that she had been misquoted. The mother said that she was apparently expressing a fear that she did not want her mother to become a Panadeine Forte addict. I reject the mother’s evidence about this. The counsellor’s note specifically reads as follows:
“V6. [Ms Paulson] said she has only had a couple of Panadol for pain. We discussed triggers and strategies now she is abstinent. We looked at [Ms Paulson]’s support and how to live with her mum, who is addict (stated by [Ms Paulson]) to Panadeine Forte. [Ms Paulson] said she doesn’t want to see her mum taking this medication.” [7]
In my view, the mother was telling the counsellor exactly as the notes indicate - namely that, at least from her perspective, the maternal grandmother was addicted to Panadeine Forte and that this obviously made it more difficult for the mother in that:
(a)the mother had potential access to such drugs from the maternal grandmother, even if by way of taking them without her knowing; and
(b)watching her mother take Panadeine Forte was a “trigger” for her, which is quite a reasonable matter for the mother to raise as a trigger in circumstances such as this.
By 2 September 2020, it is quite apparent that the mother was concerned about what the results of the hair strand test might be, as requested by the ICL on 11 August. She had not yet undertaken the test on 2 September 2020, but it is clear that on this day she had some sort of a verbal altercation during a teleconsult with her then GP, Dr O, as recorded in Dr O’s notes. According to Dr O – and this is reading from the notes: [8]
Physical examination is unable to be carried out
patient needs a letter to court state in the past she has been treated with domestic violence and depression, panic attack
advise in the past we did not really go into detail about eh deomestic violence. however, we do have Nov 2018 records stating that she has an punch assault.
advise her we can write a letter stating the issues but it would be best she can have a psychologist report for the court – which will be most effect
She said she is doing that at moment – just lack of money
She needs the letter for some excuse as she missed the Court‑ordered deadline for provide drug‑free test
she also wants to increase the duromine dose although she did not feel any worsening of her depression symptoms…
patient become agitated and unhappy – complain that I am not listen to her, wasting her on Medicare payment, stress that she will lose the daughter in the court battle with her ex who kidnapped her daughter
advise her that she is too demanding and not trust me as a professional trying to help her, and there is many other patient is waiting who is delayed being seen
advise her that will be the last appointment for us, otherwise I could be stressed out due to her demanding and blaming
[I am quoting from the GP’s notes, so any typographical errors are as the notes read.]
It is quite clear from this note that the mother was pursuing a report from Dr O to explain the lateness of her compliance with the ICL’s request for hair strand testing (of which she must, by then, have been aware). She was clearly argumentative with Dr O or, at the very least, they certainly did not part on good company.
In any event, the mother then went to see a different GP, a Dr P at Suburb Q Family Medical Centre. To be fair to the mother, she says that Suburb Q Family Medical Centre was, in fact, a more convenient doctor to go to than Dr O’s surgery was, which may or may not be so. On 7 September 2020 Dr P wrote a letter which reads as follows: [9]
To whom it may concern,
This letter is to mention that [Ms Paulson] attended the medical centre stating, following the hair follicle test in which the codeine was positive, she decided to see me as her regular GP. She told me about her addiction to codeine and sought help for that problem, and I’m working different pain management, including NSAIDs medications.
[I understand the latter to be a reference to non‑steroidal anti‑inflammatories.]
Dr P’s letter goes on, and this is the critical part of the letter from my perspective:
She has also been on Duromine tablet, 30 to 40 milligrams, since few months ago. That may cause a positive test for amphetamine and MDMA.
Now to be clear, the hair strand test requested on 11 August 2020 had not yet been carried out. Yet the mother was clearly at pains to obtain medical evidence, first from Dr O and then from Dr P, to:
(a)explain the delay in compliance; and
(b)notably in relation to Dr P, the letter goes on to effectively give her an “excuse” if you like, for a positive amphetamine or MDMA result based on her use of Duromine tablets.
The latter assumes significance on questions of credibility, because on 9 September 2020 the mother did undertake the hair strand test, producing:
·a Codeine reading of 39.14ng/10mg (a very high number);
·a Hydrocodone reading of 4.82ng/10mg (which is also a high number); and
·MDMA of 6.53ng/10mg. This is the very drug whose detection was apparently predicted by Dr P in the letter of two days earlier.
Dr P’s letter, which suggests that Duromine medication can effectively produce a false positive for MDMA, is plainly wrong as was immediately apparent to me upon reading the letter. Dr J, toxicologist, confirms that it is not possible for Duromine to produce an MDMA reading. Dr P’s letter in that respect was a nonsense.
The mother, in my view, cannot be responsible for the content of Dr P’s letter. But how did the letter come about? Only the mother and Dr P would know the full details, but it would seem highly likely, if not inevitable, that the mother must have been asking Dr P about the possibility of returning a positive MDMA reading and suggesting to Dr P that it may be a result of the Duromine. I find it impossible to believe that Dr P would have come up with the last sentence of that letter entirely unprompted by the mother in any way.
On the basis of that letter from Dr P, the mother’s Case Outline (drawn by her counsel) legitimately argued the Duromine “defence” in relation to the MDMA result. At paragraph 15 of the Case Outline of the mother, it was recorded:
15On one occasion, the test was positive for amphetamines. But the mother brings a letter from her GP which indicates that the mother had then been prescribed Duromine, which, according to the doctor, can be responsible for a positive reading of amphetamine.
MDMA is otherwise known as “ecstasy.” It is an illegal drug. It is known to be an illegal drug. The mother was clearly suggesting – indeed stating to the Court, that Duromine was the “culprit” here.
This was absolutely and utterly false. In the witness box, and under some pressure given the evidence before the Court, she admitted she had taken ecstasy at the time. She said that it had been offered to her by a friend at a party or in some sort of social environment.
The reason for the mother’s delay in responding to the ICL’s request for a hair strand test, and her subsequent urgent attendances upon Dr O and Dr P suddenly made perfect sense. But worse, the mother positively obfuscated and sought to conceal what had really happened (namely, her use of MDMA). To her credit, she made admissions in the witness box (as to taking MDMA), but they were belated admissions when she was effectively “cornered.”
I should note that the mother was undertaking counselling with Ms N at the relevant time. This MDMA result does the mother no credit whatsoever.
On 22 November 2020, the mother undertook another hair strand test, producing another positive result for Codeine of 8.85ng/10mg.
On 20 January 2021, she produced a clear test result, but by April 2021 she had self‑referred again to M Centre, where she once again saw Ms N.
By letter of 23 June 2021, Ms N wrote that the mother had made nine (9) visits to her and, amongst other things, Ms N said: [10]
[Ms Paulson] says she has remained abstinent from pills for many months. We worked on relapse prevention and learning to deal with pain before it becomes a problem. Due to her remaining abstinent and appearing confident with her parenting, I feel I am unable to offer her any further support or assistance in the AOD area and have made the decision to close her file.
On 17 August, the mother did not comply with a request for a further hair strand test. She claims she was unaware that the request had been made. I do not accept her evidence about that.
The mother was physically assaulted on 31 August 2021. I will come back to the details of that later, as they reflect other risk factors concerning the mother. It suffices for now to observe that on 2 September 2021 Dr P prescribed Panadeine Forte for the mother. [11]
On 28 September 2021, following an alleged sex assault on the mother – which was quite properly not explored at trial given its intimate nature (and it is quite unrelated to the proceedings) – the mother was prescribed Endone. On 1 October she was again prescribed Endone and Panadeine Forte; on 7 October Endone and Panadeine Forte; on 13 October, Endone and Panadeine Forte; and on 22 October, Panadeine Forte. On 26 October she was again prescribed Panadeine Forte, at which point a plan was apparently made to “wean her off” those medications. [12]
The mother had a miscarriage in 2021. She was again prescribed Panadeine Forte. Notably, when she had a teleconsult with a Dr R later in November, Dr R refused to prescribe her Panadeine Forte. The mother ended up hanging up on Dr R and threatening to go and buy Panadeine Forte “off the street.” [13]
On 15 December 2021, the mother’s hair strand test turned up a positive Codeine result of 4.92ng/10 milligrams.
The medical evidence reveals that she was further prescribed Panadeine Forte on 13 January 2022 and 17 March 2022 (including Endone on that last occasion).
On 4 April 2022, the mother produced another positive hair strand test result for Codeine of 30.5 ng/10mg and 3.91ng/10mg (Oxycodone). These numbers were high in spite of the mother complying late with the ICL’s request. It is likely that she delayed undertaking the test as long as she reasonably could.
On 22 July 2022, the mother turned up another positive Codeine result of 8.75ng/10mg. On 12 August 2022, she was again prescribed Panadeine Forte; she was again prescribed 20 tablets on 4 October 2022; another 20 tablets were prescribed three (3) days later; another ten (10) Endone tablets were prescribed five days later; and another twenty (20) Endone tablets were prescribed eight (8) days later.
In December 2022, the ICL requested further hair strand testing of the mother. This time, the mother did not comply, citing a lack of money. Given that it was Christmas, in my view this is probably a reasonable excuse on her part - but the picture of her drug dependence is overwhelming.
Dr J specifically considered the mother’s drug test results and does not dispute that the readings may be consistent with the prescriptions that she has been taking. He considers that she is likely dependent on the medication, given her long‑term use of it and noting its highly addictive qualities. I would simply repeat paragraphs 6.1 to 6.5 of his report, in which he sets out the effect of such drugs and particularly raises concerns that:
A parent of a five year old child may be required to make well‑considered decisions, attend to children if in distress or ill, drive to a hospital, and/or awake when required.
And that:
Any drug that compromises the ability of a parent to perform these functions effectively and safely would detrimentally impact a person’s ability to provide adequate care for teenage children.
It is a little unclear why Dr J refers to “teenage” children, given the young age of X, but perhaps the point to make here is that it would be a risk even for teenage children, such that the risk for a young child like X is much greater again.
I should add here that the Family Report writer also had obvious concerns about the mother’s dependence on prescription medication. These are set out in paragraph 107 of the Family Report, in which she says:
It does appear that the mother’s use of prescription pain medication remains problematic. Codeine‑based medications are highly addictive and are aimed to reduce an individual’s responsiveness. It stands to reason that excessive use of such drugs will impair a parent’s capacity to provide emotional, if not also physical care. [X] is a young child who is still highly dependent on his caregivers.
In oral evidence, the Family Report writer added to those observations by noting that a parent who is addicted to a drug like Codeine can provide inconsistency in parenting to a child. That is, a child has to adapt to a parent who might be feeling “good” because they have just taken the drug, but equally they then have to deal with that same parent who is “coming down” later on and might be feeling stressed or agitated. That is to say, the child in question has to adapt to the different moods and actions of a caregiver when they are impacted by a drug addiction such as this.
The mother accepts that she has had dependency issues in the past, but she denies presently being addicted to any painkilling medication. She accepts that she was prescribed Endone in 2022, following the birth of G.
I see the mother’s use of prescription medication as a very significant risk to X in this case, and I accept the evidence of the Family Report writer and Dr J in this respect.
The next issue relating to the mother turns upon her alleged violence and what is said to be anti-social behaviour on her part.
I begin by observing that, during their relationship, both the father and the mother appear to have had fractious physical confrontations with various neighbours in the Suburb D/City H area, particularly so towards the end of the relationship. The father’s evidence is that it was a “bad area”, which has the ring of truth about it given some of the things that I read about in subpoenaed material.
It seems that the mother and the father, but most especially the mother, were involved in a number of physical altercations with their neighbours. In October 2018, in relation to an altercation of a physical nature with the neighbours, both the father and the mother were charged with an offence of affray, the mother also being additionally charged with an offence of assault. Both parties were convicted in the Local Court, though convictions not formally recorded. The fact that the mother was charged with assault over and above the affray offence indicates that she was much more physically involved in the fracas than the father was. [14]
I also note that on 11 November 2018 there was another neighbourhood fracas. On this occasion it seems that the main agitants were the mother and an apparently young man who lived nearby. They found themselves in a physical altercation. [15] The father gave evidence in the hearing that he had seen the mother get caught up in a number of physical altercations with the neighbours, and that evidence again has rather the ring of truth about it.
More recently, post‑separation, the mother behaved in an intimidating and aggressive manner towards another young woman on 26 March 2021. This effectively occurred in a public place. According to Police records, the mother confronted this young lady, who at the time was pushing a pram with a young baby in it, and, on her evidence, had another young child with her. The mother apparently instigated an argument with her and was behaving in a way that she found threatening, such that the young woman ended up going into Store S, basically to hide from the mother. [16]
The mother gives a somewhat different account of this event. She says that she had not “ambushed” (as it were) the woman in question, and that to some extent the encounter was by chance. She does however admit that the other lady had a child in the pram, who may have been frightened at the time, and the mother accepted and admitted that she was ashamed of her own behaviour. Police spoke to the mother about the matter. Her behaviour was just inappropriate.
Worse was to follow when, on 28 August 2021, the mother made threats over Facebook to another female victim. By way of background, it is clear that there was some gossip going on about romantic liaisons between various people. According to the Police records, which appear as exhibit 13, this is what occurred:
On Monday, 23 August 2021, about 8.30 pm, the accused –
[the mother]
posted a video on a social media platform, Snapchat. In the video, the accused made multiple comments claiming the victim’s partner –
[being a young man who was in a relationship with the victim]
wants to be with the accused.
[which I take to be in a romantic way]
As a result of this, the victim’s mother messaged the accused via the social media platform Facebook with multiple derogatory comments made by the accused and by somebody else. The accused then said, “If you don’t back your fucking trap up right now, I’ll come to that slut’s house and fucking ragdoll her down her own stairs. Test me, cunt.” On 28 August 2021, about 1.30 am, the victim received a message from the accused via Facebook, telling her, “Answer your phone before I pull up. I mean it.” The accused attempted to call the victim multiple times at this time. However, the victim was asleep and did not answer the calls. The accused then sent another message that said, “I’m gonna smash you because of your lil mate, so answer your phone.” Once the victim woke up, she called the accused after receiving the messages. During the phone call, the accused said words to the effect of, “If your friend keeps going, I’m gonna pull up to your house” before the call was terminated. The threats sent by the accused caused the victim to fear for her safety. She attended [Town T] Police Station to report the incident. She provided them with a written statement…
The mother was charged with, and pleaded guilty to, an offence of stalk & intimidation. Police also took an AVO out against the mother to protect the victim. That AVO remains in force.
The mother’s behaviour on this occasion was disgraceful and criminal in nature. Indeed it was a grossly excessive response to whatever “provocation” the mother may have felt she had endured. It showed an inability on the mother’s part to manage her emotions.
I indicated that worse was to come and, indeed, the nadir of this rather sad sequence of events is that on 31 August 2021 the mother was herself physically assaulted, it would seem in direct consequence of having made these threats to this other victim. [17]
On this particular day, the mother of the previous victim’s partner attended the home of the mother in the company of two (2) other females. The mother walked out to the front of her house, saw this lady standing there and recognised her. It seems that this other lady yelled out at the mother, who told her, “Give me 10 minutes until my mum gets home. There’s a kid here.” This was a reference to young X.
Soon after however, this particular female punched the mother in the head several times, grabbed her by the hair, dragged her over the front stair balustrade where she was standing, and dragged her out onto the front lawn while another lady (or it might be the same lady) apparently continued to punch the mother in the head. The mother fell to the ground, and this other woman then kicked her in the back of the head. The mother tried to block the kicks.
It was an ugly fracas which reflects poorly on everyone concerned, including the mother, whose folly in sending ridiculous threats about “ragdolling” someone three (3) days earlier was a direct causative link to her then being effectively “ragdolled” herself. Police were called after an unknown member of the public saw the melee. The mother told them that the assault seemed to be related to the earlier matter of which she was the accused on 28 August.
Now, the mother gives me her version of events as to this particular assault, as set out in paragraphs 86 - 89 of her affidavit. The mother’s version is entirely sanitised. She suggests that the attack came “with no warning” when this person and her associates arrived at the home and she was violently assaulted:
86.In August 2021 I was visited by a woman called [Ms U]. She was accompanied by two other women whom I had not seen before.
87.I knew [Ms U] to be the mother of [Mr V] who had been a friend and close associate of [Mr Welch] at a time when he was addicted to ICE. The pair eventually fell out and [Mr V]’s father became very belligerent towards [Mr Welch], accusing him of luring [Mr V] into the use of ICE. Through [Mr Welch] I, too, knew the family.
88.Sometime between 2018 and 2020 I began to receive communication from [Ms U] accusing me of breaking up [Mr V]’s relationship with his wife by having an affair with him. I did not reply to these accusations.
89.As noted above, with no warning [Ms U] and her associates arrived at my home on 31 August 2021 and violently assaulted me. I suffered numerous injuries. Police were called and [Ms U] was charged.
The mother’s affidavit speaks for itself; her version was wholly unsatisfactory and told me only a small fraction of the story.
Having made those observations, I accept unequivocally that the mother is the victim in this event and that her assailant appears to have been charged.
Unfortunately, X witnessed all of these things. On Friday 3 September 2021, the kindergarten had a rather confronting experience when the mother attended there with facial bruising. X told his educators that people had come to his house and “broke things and hit his mum.” He said they were yelling. (X was not himself physically harmed.) As a result of what X had said, the kindergarten staff member made a mandatory report to the NSW Department of Communities and Justice.
In response to this, the ICL specifically asked the mother a series of questions, trying to get to the truth of what had happened. Those questions relevantly were:
(a)Was X present or in hearing vicinity when his mother was assaulted;
(b)Were the women who assaulted the mother known to the mother;
(c)If X was not present/not at home when the assault occurred, then where was he.
There were other questions, but they are not presently relevant.
The mother’s response was:
(a)No, X was not present when the assault occurred;
(b)X was at Suburb Q Skate Park at the time with the mother’s sister, Ms W and her niece, Ms Y, and another relative’s child;
(c)Yes, one of the women are known to both me and Mr Welch. [18]
The mother lied to the ICL. X was present when she as assaulted. She knew X was present. The ICL, whose role it was to make proper inquiries to ensure the best interests of the child - including such basic things as child safety - was positively and deliberately misled by her.
The mother admitted in the witness box that she had instructed her solicitor to say that X was not present because she did “not want to look like a bad mother.”
As I have indicated earlier, the mother was prescribed Endone and Panadeine Forte as a result of her injuries, which in one sense only highlights and underscores the unfortunate nature of this event. It also highlights another concern about the mother - her willingness to obfuscate, to evade, and frankly to be dishonest on occasions when issues of child safety are raised. It is a troubling piece of evidence, indeed, that she chose to positively lie to the ICL.
Another issue raised about the mother concerns her partner, Mr B.
It is common ground that Mr B has mental health conditions that are recorded in the Family Report. He apparently has complex post‑traumatic stress disorder as a result of a difficult and challenging childhood which involved child protection authorities.
In 2017, he presented at the Emergency Department at City H Hospital with:
…command hallucinations to kill himself and others. He was advised to attend Headspace regarding concerns for self‑harm, seeing dead people, including his mother and his brother, who had recently suicided. He was assessed as moderate risk and has previously acted on command hallucinations.
In July 2019, he presented to the Emergency Department of Region Z Local Health District with a foot injury, reporting he had consumed MDMA the previous day. [19]
As indicated, the mother formed a relationship with Mr B in 2019. On her evidence, their relationship seems to have been largely physical at that stage rather than a serious relationship.
It is somewhat alarming that he had previously attended hospital having consumed MDMA, given that the mother herself consumed MDMA in the lead‑up to the 9 September 2020 drug test result.
The Court has concerns about Mr B. On 4 April 2021, Police apprehended the mother driving her motor vehicle in the early hours of the morning with Mr B in the front passenger seat. [20] The Police records are troubling, to say the least. According to them, they pulled the mother over and when they did so, upon speaking with the mother and Mr B, they detected “a pungent odour consistent with cannabis.” They searched the vehicle and found two (2) plastic resealable bags containing a quantity of green vegetable matter. Mr B admitted ownership and said, “There are a couple of ounces there.” He told Police:
I was going to smoke it. I can’t sleep. I’ve got no Serries (Seroquel).
Police looked in Mr B’s wallet and found $3,000 cash. The mother claimed ownership of the cash, saying she had won it at Suburb Q Club, but:
…put it in his wallet, as I didn’t want to spend it.
Mr B was arrested and charged with supplying cannabis. Police searched his mobile telephone and found numerous drug dealing references, one of which reads:
Customer: Hey bro, have you got a stick?
Accused: Yeah, bro.
Accused: Come to [Ms Paulson]’s car.
Superficially, all of this evidence points to Mr B clearly being involved in the trafficking or supply for commercial reasons, of cannabis, and of the mother being in the periphery, if not actually engaged in such behaviour. After all, whichever customer it was that he was texting was clearly aware of who Ms Paulson was and what her car was.
However, to be fair to the mother, her evidence is that she does not know about the particular occasion the subject of those texts and that she had no involvement in drug dealing at all. She was able to produce some photographs at the hearing showing winnings of just over $3,000 cash on the poker machines that evening. Moreover, she was able to satisfy Police that the money was hers, and ultimately the Police refunded or paid the moneys to her.
I cannot find, on balance, that the mother was involved in any of the drug dealing of Mr B, but I have significant suspicions in relation to the mother’s evidence generally in relation to this issue. I say that because the Police could smell a pungent odour of cannabis upon pulling the vehicle over, and yet the mother adamantly told me in the witness box that she couldn’t smell anything. I did not believe her in that respect, but I am not able to make any findings above and beyond the fact that, in my view, she knew at the very least that Mr B had smoked cannabis.
In any event, the mother has since separated from Mr B, and it seems that they have an amicable relationship where he spends time with his daughter on alternate weekends.
The overall picture of risk around the mother is a serious one indeed. In my view, there are significant concerns about the mother’s parenting, her parenting capacity, her capacity to provide a safe and emotionally responsive home to X, and her ability to provide consistent and quality parenting by reason of her longstanding drug addictions. These are aggravated by her propensity to behave in violent manners towards people, on occasions, as she has clearly done, and by her willingness to behave deceptively in terms of covering up, if you like, issues of concern or issues of child welfare and protection concerning X.
I have real concerns about the long‑term chronic risks posed by the mother as a primary carer of X in this case. I should add that the ICL very much shares those concerns and would describe them as “significant.” I agree.
Risks posed by the father
I turn then to the allegations of risk raised against the father.
The primary, indeed, vastly pre-eminent concern I have about the father is the potential risk of family violence that he poses.
The mother gives fairly significant evidence of the father’s violence in her affidavit. She says that throughout the relationship he was violent to her on a regular basis, assaulting her, and that she became afraid of him and avoided confronting him. She says that she cannot recall every incident of violence, but she gives various examples.
One was in August 2018, when she says that the father dragged her by her hair back to the house, about two (2) streets away, because he thought she was interested in someone else. She says that he threatened to leave her and take X away - and that she would never see X again. She says that on this occasion she stood behind the car to prevent him leaving, that he threatened to reverse over her, and that when she did not move he then put his foot on the accelerator, and the car in fact knocked her over. She says that he told her to get up or he would run her over, but that she said she could not get up because she was under the car, so she says he backed a little further out, at first, and then eventually drove forward so she could get up. She says once she was out that he drove off with X in the car. She said she was not injured badly, so she did not go to Police or seek any medical attention.
She says that by early 2019, perhaps January or February, she considered that it was necessary to end the relationship because of his ongoing violence.
She says that when she tried to leave the house during an argument, he kicked her legs such that they came out from under her. She was stuck on the ground for ages, in pain, and unable to get up due to the pain in one of her legs.
She says that in around June 2019, just before separation, when X was at the maternal grandmother’s house and she had a friend over, that the father threw her to the ground and hurt her in front of her friend, saying, “I’ll fucking murder you, cunt.”
She says that around this time she tried to leave again and that the father threw her back from the door twice. She said she tried to get out the back door, but that he pushed her into a room, turned off the light, and held the door shut, knowing she was scared of being in that particular room. She says he continued to hold the door shut until after she gave up trying to open it, about an hour later. She says from there she went to bed with the blanket over her head and that he had locked the doors, so she could not get out. She says he had done that before.
She says that on other occasions when she has tried to leave the father, or had left him, that he would threaten to hurt her, or that he would threaten to commit suicide, or that he would not let her see X or take X with her.
One particular event referred to at exhibit 29 is the mother’s attendance at a doctor (GP) on 20 November 2018, where she had complained of being punched in the right jaw a number of times. She also said she had been punched in the left chest. She had some evident bruising. It was suggested to the father that he was the one who had assaulted her, but he denied it and said that it might have related to a fight with the neighbours.
Given the recent physical fights the mother, and to some extent the father, had had with the neighbours, my initial scepticism about the father’s answer dissolved. The father’s evidence overall was that he never once physically laid a hand on the mother. He denies ever having been physical to her in any way whatsoever.
The mother gives evidence that just after separation, that the father sent her texts saying that, “I’m gonna fuck myself up” and “I’m killing myself now” and suggesting that it was “on you, not me.” He apparently told her to check Snapchat, where there was a message of him with a knife. Amongst other messages, he also allegedly sent her a text saying words to the effect of, “You take off with my kid, I’ll kill you.”
The father did accept that, around this time, he was very distressed and that he had sent messages to the mother alluding to suicide, which he put down to not being able to see X at that time as he would have liked.
In my view, the father’s threats of suicide around separation are made out and in my view would constitute “family violence” as that term is defined within section 4AB of the Act.
The mother also accuses the father of having people follow her after separation to find out where she lived, and that he had sent texts threatening her that if there was another person there he would come around with a .22 and smack them in the face.
She also alleges that, just after moving to Sydney, the father had dropped in one day and, effectively, sexually assaulted her. She says that she was in the shower when he arrived and:
He let himself into my house. When I got out of the shower, he put his hand on my vagina, inside the towel that I had wrapped around me. I moved his hand away and told him “no”, went into my room and closed the door to get changed. [Mr Welch] followed me. I asked him to leave and he said, “Why? I’ve seen you naked before.” I responded that I didn’t care and told him I wouldn’t sleep with him. [Mr Welch] argued with me. Eventually, he realised that he was due at work and left.
The fundamental problem with that particular allegation is that the mother also sent a text to the father, which is annexed to earlier affidavit material, in which she admits that they did, in fact, have sex on that occasion. She had sent the father a text message, potentially of an intimate or friendly nature, and when the father had objected that her boyfriend may not like her doing so, she responded to the effect that, “My new boyfriend wouldn’t like it if he knew we fucked a few weeks ago, either.”
It is true that the father also held X over at Christmas 2019, which might be seen as an attempt to exert coercive control on his part, but, as indicated, he raised issues of concerns about X being potentially excessively physically disciplined, and those matters were not explored at trial. Certainly, I accept that he acted in a high‑handed way.
There was also a verbal recording played in Court which merely demonstrated some argument between the parents but, in my view, was not really probative of anything.
The father denied ever physically perpetrating family violence against the mother. She gives evidence of various specific events where she says that he was violent towards her. It is a matter of weighing up each party’s evidence in terms of what the Court can find on the balance of probabilities. In this respect, I should record that the father did admit in the Family Report interviews that he had deployed verbal abuse against the mother, wherein he had called her such things as a “mole”, a “slut” and a “dog”, which he knew would cause her stress. In my view, such comments made by the father to the mother during the relationship could constitute “repeated derogatory taunts” and therefore “family violence” within s 4AB of the Act.
However, the father also told the Family Report writer that the mother had slapped and hit him on a number of occasions, including throwing things at him, which also seems to be rather likely having regard to the history in this matter and to my other findings.
In terms of family violence, perhaps the lynchpin of the case from the mother’s perspective was the evidence or alleged disclosures by the father’s subsequent partner Ms C.
By way of background, Ms C has two (2) older children: AB, born in 2017 and AC born in 2020. It seems that the father and Ms C separated in January 2021, largely because, according to Ms C, she was not sure that the father was the biological father of F, who was yet to be born. The father said that he was adamant and convinced that he was the father, but in any event it is clear that she and the father separated and that issues of paternity of F were clearly raised.
Ms C has an unfortunate longstanding cannabis abuse dependence. The evidence about that is overwhelming. The father admitted that Ms C smoked cannabis every day in some sort of outside room area, and that she used to blow the smoke out of the windows – in other words, away from her two children.
Ms C clearly had significant dependence difficulties and was, in fact, unwilling to give up cannabis despite being pregnant with F. Perhaps more accurately, it might be said that she was unable to give up. F was in fact born at a low birth weight, and the Department of Communities and Justice noted that cannabis had been detected in the baby’s meconium, so clearly there were issues in that respect.
The relevant evidence of family violence from the father towards Ms C appears at exhibit 19, wherein in fairly generic fashion the Departmental notes record the risk of harm issues. Specifically, they record that on 10 January 2021 there is a report that domestic violence had been perpetrated by the father towards Ms C:
…including pushing, throwing the mother to the ground, punching, slapping, kicking, choking and pulling hair, while the children were present.
This expression is important, because the mother, at paragraph 19 of her affidavit, uses the exact same terms, juxtaposed in the exact same order, when she says:
The violence included occasions when he pushed me, threw me to the ground, punched me, slapped me, kicked me, choked me and pulled my hair.
Ordinarily, having another parent’s intimate partner repeat allegations of family violence tends to be corroborative. In this case however, the fact that Ms C used the exact same expressions in the exact same order as the mother did, in fact taints rather than corroborates Ms C’s evidence. The mother admitted that Ms C had made contact with her around the time of separation from the father.
I do not suggest, nor does the evidence permit, a finding that the mother’s evidence of violence as she may have portrayed to Ms C constituted any form of leading or coaxing or coaching Ms C or anything of that nature. However, the fact that Ms C has used the exact same expressions in the exact same order, to me, is far more indicative of Ms C having made a note of something the mother had told her and having decided to repeat it in that same order. Ms C’s evidence is unpersuasive to me.
I should add that the DCJ records also contain two (2) separate notifications of risk of harm in relation to X in particular. The first reads:
[X] has detailed an incident which occurred in his father’s care which indicates that his father, [Mr Welch], may be the perpetrator of domestic violence towards his partner, [Ms C]. During this incident, [Mr Welch] was reported to have sworn and yelled at [Ms C], blaming her for “fucking up” [X]. [X] also stated that his father slammed [Ms C]’s hand in the door. History indicates domestic violence perpetrated by [Mr Welch] towards the mother of [X]. [21]
Superficially, an enormous concern arises that X may have witnessed the father screaming at Ms C and physically assaulting her - particularly against the backdrop of the mother’s allegations about the father.
However, the provenance of the disclosure is unknown. It seems, perhaps, to have come from Ms C, but that isn’t clear. It is unclear who X said this to. It is unclear what X in fact said. It is unclear at all how reliable any such disclosure might be. There is absolutely no context for it. There is no evidence of any further investigations. There is no evidence of any emotional harm to X or any further exploration of any of that.
Most significantly the Family Report writer, Ms K, considered that the language used in the above report was not the language one would expect from X at that time. It was simply not the language of a child.
The evidence is potentially harrowing in its nature, but its evidential foundation is remarkably flimsy.
The father also says that Ms C had a motive at that time to make false complaints about the father to DCJ, because he was making complaints about her to welfare authorities. There is some substance in that, having regard to the evidence before me.
Put shortly, I accept Mr Flanigan’s submission about X’s disclosure in the DCJ records that the evidence is sparse or inadequate. It is difficult, if not impossible, to understand the context. There is no evidence of any ongoing investigations or charges. No one knows the reliability of the reporter, whoever it is, and the Family Report writer says that it is not the evidence of a child.
In my view, I have to be extremely cautious placing any weight on such evidence. Indeed, the ICL contends that I simply should not accept the evidence at all.
The other issue raised about X in the DCJ records is more an allegation of neglect. Concerns are raised with DCJ that X and AB - this being the child of Ms C - had been left swimming in a pool together without complete adult supervision and that there was a risk of drowning. Moreover, it was reported to DCJ that AB sometimes assaulted X by punching him and that their interactions were simply not being supervised properly.
There is also a complaint that the father had apparently driven X at a fast speed in a car without a seatbelt on.
The father denied all of these things. He said that he never left X alone with Ms C when they were in a relationship, and that they were only in a relationship at a time prior to when the father had week‑about time - so that he had less opportunity to leave X with Ms C. He said that he always dropped his son back to the paternal grandmother’s house in any event, rather than leaving him with Ms C.
The evidence as to what the father allegedly did is relatively “thin” in the sense of being difficult to prove.
The mother admits she never went to Police to complain about violence. Nor did the father for that matter. The mother never went to a doctor, in spite of there being injury that she sustained on occasions. It is difficult to understand where the 20 November 2018 doctor’s consultation fits into the picture in this respect because the mother did not assert that she had ever been to a doctor as a result of any assault from the father and it seems the medical note of that attendance seems to have been a somewhat fortuitous entry that Mr Wilkinson then cross-examined him about.
But, as I have indicated earlier, the mother had literally been in physical fights with the neighbours twice in the last several weeks in the lead-up to that event. I cannot place weight on that particular medical record.
This is an unusual case where the ICL strongly contends that I simply should not accept the mother’s evidence of family violence. Mr Flanigan submits that the violence allegations are extremely doubtful.
There is certainly some evidence of family violence on the father’s part, in terms of his derogatory taunts of the mother and his threats of suicide around separation. It is a troubling allegation that the mother makes that the father behaved towards her in this matter. But, equally, the difficulty is that the mother has been shown in this case to be an unreliable witness in many respects.
The father used ice (methamphetamine) for a year or so up to X’s birth. That troubles me. A person using ice may be more likely to behave in a violent manner. The Family Report writer thought the mother’s evidence of family violence was apparently “compelling” at interview.
The mother is not, of course, obliged to make a complaint to Police or to any other authority in relation to family violence in order for her evidence to be believed: Amador & Amador [2009] FamCAFC 196. Indeed she gives sensible reasons as to why she says she never did make a complaint. She says that she loved the father and hoped he would stop hurting her. She also feared that if she made a complaint the Police might take out an AVO which would prevent him seeing X. She feared that if the child welfare authority (DOCS, now DCJ) became aware of the violence then X may be removed. Finally, she says she could not afford to support X without the father’s income. All of these are legitimate reasons for her not to make a complaint.
In the end, I consider that the father did perpetrate some family violence in the form of suicide threats and repeated derogatory taunts. I cannot make a positive finding on balance as to the other allegations made by the mother for the reasons I have given - and most particularly, my concerns about the mother’s credit.
Nonetheless, there is a risk of exposure of the child to family violence in the father’s care.
I am not satisfied as to the allegations family violence perpetrated by the father against Ms C – although again, there must inevitably be a risk of family violence in the father’s care.
I turn then to the father’s alleged drug and alcohol abuse. The father admits that he consumed cannabis prior to the birth of X. He also admits that he took ice for twelve (12) months before X was born.
To the father’s immense credit, he quit both drugs “cold turkey” prior to X being born. He seemingly did so without going to counsellors and, frankly, it was rather an achievement for him. The father has produced four (4) clear drug screens in this case. He has never once turned up a positive result for cannabis or ice or any other drug. I do not regard the father’s drug use as an ongoing risk, certainly not an unacceptable risk.
In terms of the father’s alcohol consumption, the mother accuses him of drinking fairly heavily during the relationship. It is true that in 2019 he lost his licence when he returned a .02 per cent blood alcohol reading on a Provisional licence which required him to have a zero blood alcohol level. This strictly constituted an offence of driving under the influence of alcohol, given the wording of the relevant statute.
In 2021 the father was given a move-on notice by Police after drinking at a nightclub or pub and becoming argumentative with the security staff, who he felt had been treating a friend of his somewhat harshly. He clearly was drunk on this occasion. He admitted that he got into an argument with security. [22]
The father told the Family Report writer during interviews that he would drink four (4) stubbies of beer after work and one (1) or two (2) six packs on the weekend, which is a somewhat high alcohol consumption.
Weighing up the competing risks
When I weigh up issues of risk in this case, there are clearly risks in both households. But overall I am of the view that the risks of harm in the mother’s care are far greater for X than the risks of harm in the father’s care. This is not to say that there is no risk in the father’s care but that the risks in the mother’s care are vastly greater.
Risk is a matter which I pay significant regard to in circumstances where I am asked to make a residence decision about a young boy. I also add in this respect that the father has a supportive family network available to him in Sydney, particularly the paternal grandmother and also a brother and a sister about whom no issues of risk are raised. In the mother’s case I accept the father’s evidence that her sister’s partner introduced him to ice, which is troubling. And I also have made earlier observations about the mother giving evidence that the maternal grandmother was herself dependent on Panadeine Forte.
Additional considerations in s 60CC(3)
I turn then to the section 60CC(3) considerations.
X is too young to express a view.
X has a close relationship with the mother and with the father, as well as with other family members. The mother has baby G living with her, which is an important sibling relationship for X.
In terms of the parents’ participation in decisions, each parent has actively involved themselves in decision-making for X.
In this case, no issue is raised concerning maintenance of the child.
X’s circumstances are inevitably going to have to change. If he stays living with the mother full-time then he will be seeing a lot less of his father and vice versa.
Change is the one thing that is unavoidable in this case. I pause here to observe, as I said to the parties at the outset, how unfortunate it is that they are not able to maintain close physical proximity to each other because their week-about arrangement could have continued potentially into the future. But neither of them were in a position to do anything but run their respective residence case by reference to where they currently live, each citing family support. And, in the father’s case, his employment. I cannot criticise them for the positions they take. I told them that one of them would be deeply disappointed by the outcome of this case and I am sure that will be so.
In terms of capacity and attitudes of the parents, both parents have a basic capacity to parent the child. It is fair to say that the child met his developmental milestones in the mother’s care, as set out in the paediatric report annexed to the affidavit of Ms Blundell. This is despite the mother being clearly dependant on addictive prescription medication.
I am concerned that the mother’s attitude towards her drug dependence does not reflect any serious, or in my view adequate, engagement with the need to get off prescription drugs so that she can be the best possible parent to her son. And, indeed, I would add, to her daughter as well. She has been, in my view, unable and unwilling to address these issues to an adequate standard.
No issues of Aboriginality arise in this case.
The issue of family violence has been addressed by me at some length. Ironically, although the mother portrays family violence as the biggest risk in the father’s care, she is the only parent of the two of them who has a family violence order against her as I understand it. And it results directly from her own violent threats towards another person.
I accept that the father perpetrated some family violence, as I have indicated earlier. I accept that the mother has perpetrated some violence towards him of a physical nature.
The Court needs to make orders which will limit the risk of further proceedings in this case and that is a matter that I am mindful of.
CONCLUSION & ORDERS
In conclusion, starting with the issue of parental responsibility, each parent seeks that X live primarily with them. It seems to me that the parent who has the primary care of the child should have sole parental responsibility with a requirement to consult the other parent. While the parties have clearly got a better capacity to communicate now than they did earlier, their communication remains fraught and what is most important is for X to have a stable, solid, predictable home environment.
In terms of the “live with” arrangements, I have weighed the matter carefully and come to the view, like the Family Report writer, and indeed, like the ICL, that in this case the safest option is to place X with his father on a primary care basis.
I consider that the overall preponderance of risk is much greater in the mother’s care than in the father’s care. I consider that the father has more reliable family support with less risk factors. I am mindful of the issue concerning G, and particularly the limits to the time that X will be able to spend with her going forward. But, equally, he will be able to spend quality time with F.
In what is a difficult weighing-up case, I am of the view that the child ought to live with the father and that this ought to occur as soon as possible so that he can commence his schooling.
For these reasons, I make the orders set out at the commencement herein.
I will order that a copy of these reasons be taken out. I will order that unless the mother, the father or the ICL files an Application in a Proceeding seeking costs against one or other party (supported by an affidavit or written submissions, as the case may be) the Court will order the proceedings be removed from the list of active pending cases.
I certify that the preceding two hundred and seven (207) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 6 February 2023
[1] Exhibit 2
[2] See exhibit 6
[3] Exhibit 9
[4] Exhibit 5
[5] Exhibit 5
[6] Exhibit 5
[7] Exhibit 5
[8] Exhibit 3
[9] Exhibit 8
[10] Exhibit 24
[11] Exhibit 26
[12] These prescriptions are all set out in exhibit 26
[13] Exhibit 22
[14] See exhibit 27
[15] See exhibit 28
[16] Exhibit 12
[17] See exhibit 15
[18] Exhibit 21
[19] See paragraphs 56 & 57 of the Family Report (exhibit 1)
[20] Exhibit 11
[21] Though spelt “Ms C” this is one and the same person as Ms C
[22] Exhibit 18
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