PAVONE & MCNEILL
[2018] FCCA 2849
•12 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PAVONE & MCNEILL | [2018] FCCA 2849 |
| Catchwords: FAMILY LAW – Interim parenting – risk assessment – s.91B order made – transfer to the Family Court of Australia. |
| Legislation: Crimes (Sentencing Procedure) Act 1999 (NSW), s.10(1)(b) Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 91B |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MR PAVONE |
| Respondent: | MS MCNEILL |
| File Number: | WOC 478 of 2014 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 7 September 2018 |
| Date of Last Submission: | 7 September 2018 |
| Delivered at: | Wollongong |
| Delivered on: | 12 October 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Hansons Lawyers |
| Solicitors for the Respondent: | John Dawson & Associates |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW Wollongong Family Law |
ORDERS, PENDING FURTHER ORDER:
That all previous parenting Orders be discharged.
That the children [X] (born 2008) and [Y] (born 2010) (‘the children’) live with the Father.
That the children spend time with the Mother as follows:
(a)Pending the availability of supervised contact at CatholicCare Town A, for a period of up to 3 hours each week, supervised by (omitted) Supervised Contact Services and at such times as nominated by (omitted); and
(b)Upon CatholicCare Town A becoming available, for a period of up to 3 hours each week, supervised by CatholicCare Town A and at such times as nominated by CatholicCare Town A.
Any fees associated with supervised contact in Order 3 above be shared equally between the parents.
That the Father is restrained by injunction from relying on the Mother for child care on days that the children are in his care.
That the Father and the Mother will undergo random urinalysis screening with such testing to be undertaken in accordance with the Australian / New Zealand Standard 4308:2008: Procedure for the collection, detection and quantitation of drugs of abuse in urine.
That, in order to facilitate Order 6 above:
(a)The Independent Children’s Lawyer will send a request by no later than 12:00pm by email to the Father’s solicitor and the Mother’s solicitor (or, in the event the Father and/or the Mother are self-represented, by text message and email to the Father and/or the Mother);
(b)Such requests will be sent no more frequently than once per calendar month;
(c)Each parent is responsible for the cost of their respective testing;
(d)Each parent will provide the necessary samples no later than 6pm on the business day following the request;
(e)Once the results are released to the Father and to the Mother, they will each ensure that a copy is forwarded to their respective solicitors (or, if they are self-represented, to the Independent Children’s Lawyer and the other parent or their solicitor) no later than the next business day;
(f)The Father’s solicitor and the Mother’s solicitor are to forthwith forward a copy of the results to the Independent Children’s Lawyer and the other parent’s solicitor.
That, without admissions, each parent is restrained by injunction from:
(a)Taking, consuming and/or being affected by any illicit substance, alcohol to excess and/or any prescribed substance in excess of the recommended dosage by the parent’s treating medical practitioner while the children are in their care;
(b)Exposing the children to any person who has taken, consumed and/or is affected by any illicit substance or alcohol to excess;
(c)Speaking or permitting any other person to speak to or about the other parent or members of their family in a negative, offensive, threatening or unpleasant fashion in the presence or hearing of the children;
(d)Discussing any legal proceedings between or involving the parents in the presence or hearing of the children;
(e)Discussing the parental relationship or the parents’ respective proposals as to the children’s living arrangements in the presence or hearing of the children;
(f)Questioning the children about their time with the other parent (beyond simple pleasantries when the children return to their respective care);
(g)Using physical discipline on the children or allowing any other person to do so;
(h)Verbally abusing the children;
(i)Calling the children unpleasant names; and/or
(j)Using the children to pass messages to the other parent.
That, without admissions, the Mother is restrained by injunction from taking the children to:
(a)a General Practitioner, medical practitioner and/or medical specialist not nominated by the Father (except in the event of an emergency), noting that the children ordinarily attend the (Medical Clinic) in Town B;
(b)any psychologist, counsellor, social worker or any other person for the purposes of therapy unless she first obtains written consent from the Father.
That, for the purposes of Order 9 above, the Father is to keep the Mother advised of any General Practitioner, medical practitioner and/or or medical specialist that the children attend upon.
That each parent must provide to the Independent Children’s Lawyer full contact details of any medical specialist, psychologist, counsellor, social worker or any other person for the purposes of therapy that the children attend upon within 14 days of such attendance.
That each parent will ensure that the other parent is kept informed of:
(a)any serious medical problems or illnesses suffered by the children, with the other parent to be notified as soon as possible;
(b)any medical emergencies involving the children, with the other parent to be notified immediately;
(c)any medication that has been prescribed for the children that needs to be taken during the time the children are with the other parent;
(d)any change to the parents’ mobile telephone number or residential address, with any such changes to be advised within 48 hours;
(e)any other matter relevant to the children’s welfare, with the other parent to be notified as soon as is reasonably practicable.
That, for the purposes of parental communication, unless as otherwise agreed to between the parents in writing:
(a)telephone communication will be used for emergencies only;
(b)for all other parenting issues, the parents will use SMS or email.
That:
(a)the Father and the Mother are to reach an agreement in writing as to the extra-curricular activities that the children are involved in or, failing agreement, the Father and the Mother are restrained by injunction from enrolling the children into any activity that runs in the children’s time with the other parent, without the written consent of the other parent; and
(b)the Father and the Mother are each to ensure that the children attend and participate in their extra-curricular activities during periods that the children are in their respective care.
That the Mother will continue to engage with her treating General Practitioners and the medical practitioners at the Pain Management Clinic at Town C Hospital and follow all directions and treatment plans provided to her by those medical practitioners.
FURTHER ORDERS:
Within 7 days, each party do all things necessary and sign all documents required to register with (omitted) Supervised Contact Services.
Within 7 days, each party must:
(a)contact CatholicCare Town A and arrange an appointment for assessment for suitability for supervision of the time the children spend with the Mother;
(b)attend the assessment;
(c)comply with any appointments made by the Contact Centre for supervised time;
(d)comply with all reasonable rules of the Contact Centre; and
(e)comply with all reasonable requests or directions of the staff of the Contact Centre including to participate in a program or programs.
That within 14 days the Mother is to provide written authority to the Independent Children’s Lawyer to speak to and obtain any information from her treating General Practitioners ((Medical Centre), Town B) and the Pain Management Clinic at Town C Hospital in relation to medication prescribed to the Mother and her pain management.
That the Father and the Mother will engage with the Region 1 Family Referral Service until such time as that service is no longer able to offer assistance to the family or determines that the family no longer require their service.
That, for the purposes of Order 19 above:
(a)within 14 days of the date of these Orders, the Father and the Mother are to contact Region 1 Family Referral Service and thereafter do all acts and things as are necessary to arrange for an initial intake appointment;
(b)thereafter, the Father and the Mother are to attend any appointments at any reasonable location and time as nominated by staff from Region 1 Family Referral Service, complete all necessary assessments and comply with all reasonable requests made by staff from Region 1 Family Referral Service;
(c)the Father and the Mother are to facilitate the children’s attendance at and participation in any appointment at any reasonable location and time as nominated by staff from Region 1 Family Referral Service;
(d)the Father and the Mother are to accept all reasonable referrals made by staff from Region 1 Family Referral Service (including but not limited to individual and/or family counselling) and fully engage with (and facilitate the children’s engagement with) any other service that Region 1 Family Referral Service nominates.
That this Order operates as the authority of the Father and the Mother to enable the Independent Children’s Lawyer to speak to the relevant staff from the Region 1 Family Referral Service to discuss the Father’s, the Mother’s and the children’s progress and obtain any other relevant information.
That leave is granted to the parties to file Consent Orders in Chambers for the appointment of a Single Expert (to prepare an Expert Report) and a Single Issues Expert (to prepare a substance misuse assessment report in relation to the Mother).
Pursuant to section 91B of the Family Law Act 1975, the Secretary of the Department of Family and Community Services is requested to intervene in these proceedings in relation to the children [X] (born 2008) and [Y] (born 2010).
The Solicitor for the Father and the Solicitor for the Mother are to forward to the Solicitor for the Secretary of the Department of Family and Community Services at its Head Office in (omitted), not later than 4.00 pm on 26 October 2018 copies of the documents filed by each of the parties to date.
Upon request from the nominee of the Secretary the Registry Manager permit inspection of the Court file to enable consideration of the request to intervene in the proceedings.
The proceedings are transferred to the Family Court of Australia at Sydney to be listed for directions before Justice McLelland on a date to be fixed.
NOTATIONS
(A)For the purposes of this notification, the subject children presently live with the Father, MR PAVONE.
IT IS NOTED that publication of this judgment under the pseudonym Pavone & McNeill is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 478 of 2014
| MR PAVONE |
Applicant
And
| MS MCNEILL |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about two children, [X], born 2008, who is 10 years old, and her brother, [Y], born 2010, 8 years old. These Reasons for Judgment explain why the Court has ordered the children to live with their father, and spend supervised time with their Mother pending a Final Hearing. These Reasons also explain why the Court has transferred this matter to the Family Court of Australia, and requested the Department of Family and Community Services to intervene in this matter.
Background
This is a very high‑conflict case. The parents make very serious allegations against each other, but deny the allegations made against them personally. The major function of the Court has been to attempt to assess the risk that these children are exposed to in each of their parents’ households, and to seek to manage those risks. Whilst the Court must make a decision that is in the best interests of the children, in reality the exercise has been to try to establish where there is the least risk to them.
Both parents presented to the Court, through their Affidavits, and the more independent material presented to the Court, as being highly vulnerable and struggling with multiple life adversities. [X] and [Y] present in precisely the same fashion. The precise parenting arrangements in place for the children are not certain. The parents present diametrically different accounts of where the children are living, and what time they are spending with the other parent. This decision is being made within a totally unsatisfactory factual vacuum.
The Independent Children’s Lawyer prepared a very useful chronology, and this is reproduced in full in the First Schedule to these Reasons. By way of summary of the less contentious matters contained in the chronology, the Court is able to make the following observations about this family with reasonable confidence.
The Father is 38 years old, the Mother 36 years old. The Father describes himself as a (occupation omitted), the Mother as being unemployed. Their relationship commenced in 2006 and ended in about 2013 (though nothing turns on this date). Whether one has regard to the account of the relationship found in the Mother’s evidence, or the Father’s evidence, what is clear is that it was an often tumultuous relationship. They both assert that the other used drugs. The Father was arrested, charged and convicted of drug‑related matters, supply and cultivation. He was imprisoned. After release from prison he returned to the family home to live with the Mother and the children.
Almost immediately after separation, issues commenced between them about parenting matters. When the Mother moved from the family home, she took the children with her. Initially, it seems that the Father was not spending time with the children, but eventually an arrangement was entered into. The level of conflict between the parents greatly increased, it seemed, primarily due to their inability to agree about parenting matters. In the background there continued to be allegations about alcohol abuse, drug abuse, and drug dealing.
The first set of proceedings were commenced in this Court in 2014. The Mother had suffered serious family violence at the hands of her subsequent partner, and this led to the children being placed in the Father’s care. As will be seen in more detail from the procedural history below, the first Consent Orders the parents entered into in 2016 resulted in a shared care arrangement. In 2016, however, evidence seemed to emerge of the Mother’s abuse of prescription medication, particularly opioids. This may well have precipitated a second ground of proceedings in 2017, which again culminated in parenting Orders.
During the course of proceedings, of course, multiple subpoena were issued, and this crystallised the complexity of this case, and the great difficulties confronting these children. A very sad picture emerged of the Father seemingly struggling with parenting, the Mother’s prescription drug abuse, the children obviously not coping with the parental conflict and the inconsistent care provided to them by their parents resulting in their acting out at school, combined with ongoing serious allegations about drug and alcohol abuse, violence, and even allegations of sexual abuse.
The parents create the strong impression, at all relevant times, of being seemingly unaware of the impact on their own children of their behaviour towards each other and their behaviour towards the children. The profound impression that is created from studying the chronology prepared by the Independent Children’s Lawyer, cross‑referenced to the parties’ material and the voluminous documents produced on subpoena, is that these children are highly vulnerable and are at risk in the care of both their mother and father. As foreshadowed, the question for the Court on an interim basis is: where is the least risk for them?
Procedural history
For present purposes, this procedural history will commence on 11 May 2016, when the Court made Orders by consent that there be equal shared parental responsibility and that the children live with each of their parents for 7 days and nights on a 4:3/3:4 basis. By 3 February 2017, however, the matter returned to the Court on an urgent ex parte basis and the Orders made 11 May 2016 were stayed. In addition, the children were ordered to live with their father, and a Recovery Order made to implement this.
On 10 February 2017 an Independent Children’s Lawyer was appointed, and an Order made for the Mother to spend supervised time with the children, 3 hours each week, using a professional supervision service. On 20 March 2017 this Order was varied by consent with the children continuing to live with their father, but spending time with their Mother without supervision.
On 10 May 2017, the matter was listed for Interim Hearing. Instead, the parents presented final Consent Orders which the Court declined to make. The notation to those Orders recite that the Consent Orders were opposed by the Independent Children’s Lawyer and the Court declined to make the Orders, given the concerns raised regarding the Mother’s prescription medication dependency. Nonetheless, the matter came back before the Court on 21 August 2017 and Final Orders were made discharging the earlier Orders; providing for equal shared parental responsibility, for the children to live with their father and spend time with the Mother at the Father’s discretion.
The Consent Orders provided that the Father was at liberty to suspend the Mother’s time with the children or require the time to be supervised in the event that the Father had concerns about the Mother’s mental health or her level of prescription medication usage. A recital to the Orders notes that the Independent Children’s Lawyer had some reservations about the parenting arrangements, but neither opposed nor consented to the making of these Orders. The Orders also reflected that the parents had a separate parenting plan for the children to spend time with the Mother on a structured basis.
The matter was back before the Court on 20 June 2018, when Her Honour Judge Tonkin made Orders the effect of which are that the children live in a shared care arrangement. The matter came back before the Court on 25 July 2018 for Mention, at which point the Court urgently reappointed an Independent Children’s Lawyer for the children, and listed the matter for Interim Hearing on 7 September 2018.
The Interim Hearing
The Interim Hearing was held on 7 September 2018. Ms Mitchell, Solicitor, appeared for the Father, Ms Smith, Solicitor, appeared for the Mother, and Ms Temelkovska, Solicitor Advocate, for the Independent Children’s Lawyer.
The Father’s proposal was twofold. His primary application was that the Orders made after 21 August 2017 be dismissed, on the basis of the principle in Rice & Asplund (1979) FLC 90-725 (‘Rice & Asplund’). In the alternative, however, he proposed that he have sole parental responsibility for the children, that they live with him, and spend supervised time with their mother at a supervised contact facility, with the costs to be borne equally between the parents. After six supervised contact visits, he proposed that the parents consult with a view to extending the Mother’s time with the children.
The Court makes the following observations about the Father’s proposals. The Rice & Asplund issue may be dealt with succinctly. The Rice & Asplund issue cannot be determined at an Interim Hearing. One of the central assertions of fact made in the Mother’s case is that, notwithstanding any previous parenting order or arrangement, the children have been living primarily in her care. If that is established, that would constitute sufficient changed circumstances. The Father strongly denies the Mother’s assertion. The Court cannot adjudicate on this issue without testing the evidence. This is a matter for a trial Judge.
In any event, the Court openly expresses concern about that part of the Father’s alternate proposal that suggests that, somehow, these parents have the capacity to consult with each other with a view to extending the Mother’s time with the children after a fixed period of supervision. What is palpably obvious from the material that is before the Court, is that these parents lack the capacity to agree to anything about the children. In any event, if the Court were to accept the Father’s contentions about the risk of harm considerations in the Mother’s household, it is hard to understand how he would countenance unsupervised time in the immediate future, particularly without the intervention of an Expert.
The Mother’s proposal at the Interim Hearing was that the Orders made 21 August 2017 be discharged, and that the children live with her, and spend supervised time with their father at a professional supervised contact service.
The Court observes that this proposal is, at the very least, consistent with the Mother’s stated concerns about the Father, and his capacity to care for the children.
The Independent Children’s Lawyer found it difficult to articulate a clear proposal to the Court because of the enormous factual conflicts between the parties, the seriousness of the allegations they each make against the other, and, implicitly, the formidable challenges these children face, whether in the Father’s care, or the Mother’s care. The Independent Children’s Lawyer did, however, very helpfully provide a Minute of Order that would regulate a number of important aspects of any interim parenting arrangement.
The Minute of Order proposed by the Independent Children’s Lawyer in this regard is reproduced in the Second Schedule to these Reasons. It covers many important matters, including how changeover is to occur, drug testing, the provision of and sharing of information, engagement with Region 1 Family Referral Service, and machinery provisions relating to the appointment of a Single Joint Expert. There are a number of very important orders that the Independent Children’s Lawyer also proposed.
One order is that the Father be restrained by injunction from relying on the Mother for child care on days that the children are in his care. Indeed, the overall impression presented to the Court, as a result of studying the significant quantity of material presented before it, is that these children have spent more time in their mother’s care than the Father is prepared to acknowledge, though not nearly necessarily as much as she contends. This ad hoc arrangement, whatever it is precisely, is certainly not assisting the children in having a stable and predictable routine. If the children remain in his care, he must be the consistent, primary caretaker of them.
The Orders also provide for various injunctions in relation to drugs, alcohol, denigration, use of physical discipline and verbal abuse of the children.
Whilst not all of the Orders proposed by the Independent Children’s Lawyer were consented to by the parents, the reality is that very little was said on behalf of either parent in submissions against the Independent Children’s Lawyer’s proposal. Indeed, on the face of them, these children need the type of prescriptive order that is proposed by the Independent Children’s Lawyer. It is plainly obvious that these Orders are in the best interests of the children. These Orders will be made.
The evidence before the Court
In the Father’s case, he relied on the following documents:
a)Initiating Application filed 19 June 2018;
b)Affidavit of Mr Pavone filed 3 September 2018;
c)Affidavit of Mr Pavone filed 19 June 2018; and
d)Notice of Risk filed 19 June 2018.
In the Mother’s case, she relied on the following documents:
a)Response to Initiating Application filed 24 July 2018;
b)Affidavit of Ms McNeill filed 24 July 2018;
c)Affidavit of Ms A filed 30 August 2018; and
d)Notice of Risk filed 24 July 2018.
There was a large volume of tendered material that was placed before the Court at the Interim Hearing which consisted of:
a)Family Report prepared by Ms L dated 18 June 2015;
b)Drug test results for the Applicant Father and Respondent Mother;
c)Bundles of text messages between several parties;
d)File Note dated 14 December 2017;
e)Documents produced is answer to subpoena on New South Wales Police;
f)Documents produced is answer to subpoena on Medicare;
g)Documents produced is answer to subpoena on (Medical Centre);
h)Documents produced is answer to subpoena on (Medical Centre); and
i)Documents produced is answer to subpoena on School 1 Public School.
Ms Mitchell, the Solicitor for the Father, prepared a very helpful schedule summarising the documents produced on subpoena. This document is reproduced in the Third Schedule to these Reasons. It will assist any Judge taking over this matter in understanding the volume of material before the Court, and why the present decision has been made. The documents in question were, in fact, reviewed by the Court after reserving Judgment. The summary prepared, which of course is no more than an aide-memoire, seems to be a diligent attempt to summarise voluminous material.
The applicable law
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The case law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Discussion of the evidence
When one reads the Affidavits filed in this case, it is very difficult to understand why, if each parent genuinely believe their own stated concerns about the other parent, they have allowed the children to spend time in the other’s care. The Court is left with a profound impression that there is much more to this case than is presented in the Affidavits of both parents. Indeed, the reality may well be that each has a great incentive to distract attention away from their lives, and their own households.
The subpoenaed documents create a dismal, disconcerting impression about life for [X] and [Y], and indeed for their mother and father.
The documents produced by the children’s school is replete with reports of very worrying misbehaviour, and seeming acting out at school. [Y] seems defiant and oppositional and potentially violent at times. There is reason to believe that both children have seen and heard things that they really should have been protected from, probably in the home of both parents. There are disconcerting reports about violence in the Father’s household directed towards the children, but the veracity of these reports are questionable.
The Mother creates the impression of using the school as a means of recording her concern about the children’s welfare whilst in the Father’s care. The school seemed very much aware of the legal proceedings between the parents, and, regrettably, the children also seem to be attuned to this reality for them. Both children seem to be struggling, [Y] more so than [X]. Other school records suggest that the Father has often struggled to get the children to school on time.
Documents produced by New South Wales Police for the period 2015 – 2018 present a picture of frequent involvement with the Police. As recently as 4 April 2018 the Mother was before the Court charged and convicted of cultivating a prohibited plant, and possessing a prohibited drug. A section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) bond was imposed, for a period of 12 months. In May 2018 the Mother appears to have sought an Apprehended Violence Order against the Father, but nonetheless informed the Police that she had no fears for her safety, a view shared by the Police.
A note in the COPS entry records the impression of the writer that the Mother was reporting to the Police in the context of the family law proceedings. Indeed, the record states: “police believed the victim may be reporting to assist her with family law matters”. The Court notes that a similar impression is capable of being formed in relation to the school records. The COPS record for 20 February 2018 relates to the drug charges referred to above. The Mother apparently stated that her intention was to smoke the cannabis on maturity, and that this was for pain relief.
The issue of the Mother’s prescription drug usage will be discussed below. In June 2018, the Police records record the Mother’s report that the Father had sexually assaulted the children. The children appear to have been interviewed. [X] did not mention the incidents which her Mother reported. [X] did say, however, that she was afraid of her father. [Y] was observed to be much more talkative and using both vocabulary and grammar far beyond his years. He was observed to be: “extremely articulate for a seven year old boy.” The COPS entry records the following observation by the writer of this document: “The mother appears to be attempting to get police to authorise her breaching a family law court order to return the children to the permanent care of the father.”
In May 2018, there appears to have been reference to another AVO initiated by the Mother. This entry records that there were no threats or violence, the children were sighted and appeared fine, and that the Father appeared to have been acting in accordance with Court Orders. There are earlier COPS entries for 2016 and 2015 that do not assist the Court in the present context, but merely confirm the pattern of allegation and denial.
What may be summarised about the Police involvement in this family in recent history is that the Mother in particular, who seems to have initiated most of the complaints to the Police, was found to have acted opportunistically, and perhaps with a motive to secure evidence to support her in the present family law proceedings. If either party had any insight about the potential impact on the children of involving the Police, they do not appear to have demonstrated that insight.
From the Court’s perspective, the most worrying evidence before the Court related to the Mother’s use of prescription pain killers. The records before the Court included documents produced by Medicare, (Medical Centres). The very strong impression that is created is that the Mother abuses prescription opioid medication, purportedly for pain relief purposes. Thus, for example, the Medicare records suggest that in the period between 24 August 2017 and June 2018, the Mother was prescribed over 4,800 tablets, being either morphine, oxycodone or diazepam. The (Medical Centre) medical records give the impression of the Mother seemingly having some insight into her addiction, but recognising that reduction of intake led to withdrawal symptoms. She was specifically warned, for example, on 3 April 2018, of the risk of overdose.
Within these medical records, on 1 February 2016, there is what is described as a “patient summary report” produced by the Australian Government Department of Human Services. It articulates a concern about the Mother’s prescription shopping, in that she had received prescriptions from seven different prescribers, in respect of four different items, such that the pharmaceutical benefits branch wrote to her doctor suggesting that she had obtained more PBS medicine than medically needed in the period 1 April 2016 to 30 June 2016. Indeed, there is subsequent correspondence to her doctor, dated 21 December 2017, declining the doctor’s application to prescribe morphine/oxycodone for the Mother because of her medication history.
On 24 January 2018, there is a document entitled ‘Application For Authority To Prescribe a Schedule 8 Drug Pain Management’. This appears to have been completed by her doctor and in answer to a question: “Do you consider this patient to be drug‑dependent?” he responds, “Yes.” Indeed, he states that he is concerned about the Mother’s drug misuse. One of the most recent records is dated 20 July 2018, in which one of her doctors, in a letter to another doctor, refers to the risks of dose escalation for the Mother being very high, particularly in view of her prior history.
Assessment of risks for these children
The totality of the material before the Court enables it, even on an interim level, to safely conclude that these children are exposed to multiple risks, and in each household. They have clearly inappropriately been exposed to the high level of parental conflict. Despite parenting Orders in place, their living arrangements have been unstable, and indeed ad hoc at times. The Mother probably abuses prescription medication. This may, or may not, suggest mental health issues.
The Father appears to struggle in his care of the children, which is manifested, for example, in getting them to school on time. It is possible that the Father’s discipline of the children is inappropriate, and physical. The possibility of the Mother using the Police and the school for tactical purposes in these proceedings cannot be discounted. There are unresolved drug and alcohol issues on both sides. The children, particularly [Y], are experiencing significant behavioural problems that need to be addressed. Neither of the parents seem capable of doing this.
Where is the least risk for these children? From this Court’s perspective, the greatest risk to these children at the moment is their Mother’s abuse of prescription medication. The risk here is that she will be unable to provide the level of availability and consistency of care for these children that they clearly need. There are clear concerns about the Father’s capacity to care for the children, but this Court’s impression, admittedly on the basis of the untested evidence, is that there is marginally less risk to them in his care.
The Father must stop using the Mother, however, as a stop-gap whenever he is not coping as a parent. This is where Departmental intervention is necessary in this case. There are risks in both households, but even in the Father’s household there seems to be a lack of understanding of his own responsibility in protecting these children from risks, both in his care, and the Mother’s care.
This must mean that the children continue to live in the Father’s care, and that he be restrained from allowing the children to go into their mother’s care outside the parameters of any Orders for her to spend time with the children. He himself proposed an order that the Mother spend supervised time with the children for a period of up to 3 hours each week, initially with the private supervision service called (omitted), and on the basis that each party be equally responsible for the costs of supervision. That is an appropriate short‑term arrangement. However, the parents should forthwith do the intake for supervised contact at CatholicCare, so that the cost burden on them is reduced.
An Expert’s Report is necessary in this case. The Independent Children’s Lawyer seems to appreciate this, and is working on obtaining the necessary grants of aid.
The matter needs to be transferred to the Family Court of Australia at Sydney, initially into the docket of Justice McClelland, who might be able to hear the case in a timely fashion once appropriate expert evidence has been obtained, perhaps even in Town A. The litigation history, let alone the matters set out above, manifest the complexity of this case. The evidence will need to be meticulously tested, and this Court cannot see how that can be undertaken in 4 days or less, particularly having regard to listing practices in the Wollongong Registry of this Court.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 12 October 2018
Schedule One
Chronology prepared by the Independent Children’s Lawyer
| Date | Event | Source |
| 1980 | The father is born. The father is currently 38 years old. | |
| 1982 | The mother is born. The mother is currently 36 years old. | |
| 2006 | The parties commence living together. | |
| After 2006 | During the parties’ relationship, the father uses prohibited drugs. His use is largely recreational. His use never interferes with his capacity to hold down a full time job or to continue to be mainly responsible for running the home. | F9 P13 |
| 2008 | The child [X] is born. [X] is currently aged 9 years and 11 months. | |
| 2010 | The child [Y] is born. [Y] is currently aged 8 years old. | |
| Mid 2012 | The father has a conversation with the mother’s doctor, Dr D. Dr D expresses his concerns about the mother’s abuse of prescription medications. The father believes that Dr D makes a notification about the mother’s behaviour to the Pharmaceutical Benefits Scheme. | F9 P11 |
| 2012 | The mother finds out what has happened with Dr D. The mother says to the father, “Thanks for that. Now I can’t get my stuff.” | F9 P11 |
| Sept 2012 | The mother and father separate. The mother still returns to the home on a regular basis to care for the children during the day. The children sleep in their own beds in the evening. | F9 P6 |
| 2012 | The father stops using drugs. | F9 P14 |
| Sept 2012 | The father is arrested and charged with supplying marijuana after a significant quantity of marijuana is found by the police in the garage of his home. At this time, the mother and father have been separated for a number of weeks and the father is still living in the home. The father maintains that the mother was aware of the marijuana in the father’s garage. The father also maintains that even though the marijuana did not belong to him, that he pleaded guilty to the charges. | F9 P6 F9 P7 |
| 5 Dec 2012 | Father attends Town A LC for drug related matters. Possess prohibited drug (2 counts) and possess / attempt to, anabolic or androgenic steroidal agent. Matters are referred to DC. Supply prohibited drug, supply cannabis (indictable and less than commercial quantity – T1) and knowingly deal with proceeds of crime- SI are committed for sentence. | S68 NSW Police CR Father ICL 2 |
| 18 Sept 2012 | The father is sentenced to 21 months imprisonment in the District Court at Town A. His sentence is due to expire on 17 June 2013. | F9 P7 |
| 3 May 2013 | Father is sentenced at Town A LC. For possess prohibited drug (2 counts) he receives a s10A, for possess/attempt to anabolic or androgenic steroidal agent he receives a s10A, for Supply prohibited drug, Supply cannabis (less than commercial quantity) and knowingly deal with proceeds of crime, father receives 1 year gaol and 9 months to commence on 18/9/12 and conclude on 17/6/14 with non-parole period 9 months release on conditions supervised. | S68 NSW Police CR Father ICL 2 |
| Sept 2012 to June 2013 | The father is in custody for possession of illegal drugs worth $265,000. The father denies that he went to prison for possession. | M7 P42 F9 P68 |
| 2013 | The father is released from prison. He is subject to Probation and Parole supervision for a period of 12 months. The father returns to live in his home at Town D with the mother and the children. The father is subject to random drug tests while on probation. All his tests are clear. | F9 P8 F9 P14 |
| Sept 2013 | The mother makes a complaint to the police about the father that results in an application being made by the police for an ADVO. | F9 P33 |
| 21 Nov 2013 | ADVO proceedings are listed at Town D Local Court. The father defends the matter. The matter is dismissed and no ADVO is made. According to the father, the Magistrate found that the father had not engaged in the behaviour as alleged by the mother and there was no basis for the mother to hold any expressed fears concerning the father’s conduct. | F9 P33 |
| Nov 2013 | The mother moves out of the father’s home. | F9 P8 |
| After Nov 2013 | The mother refuses to let the father see the children. The father however manages to negotiate an arrangement where the children live with him from Sunday to Tuesday in week one and from Saturday to Tuesday in week two. | F9 P9 |
| 2014 | The mother stops consuming alcohol. | M7 P38 |
| Late April 2014 | The father has a conversation with [X] on the phone. [X] is extraordinarily upset and she is crying. The father asks what is wrong. [X] says to him, “Mummy thought I said a rude word. She put my head under water. I thought I was going to die.” The father reports the mother to FaCS. The mother denies this. The father further adds that in relation to this incident, he received a phone call from [X] on the mother’s phone. [X] was distressed and she told the father that the mother had pushed her head underwater. The father reported this incident to the police. | F9 P15 M7 P39 F9 P67 |
| After April 2014 | The mother stops the father from seeing the children. The father asks her why and the mother says to him, “The Police came around and told me that you had taken the children to a drug dealer, so you can’t see them anymore.” The father denies this. | F9 P16 |
| 4 June 2014 | The father commences proceedings in the Federal Circuit Court. A Family Report is prepared. | F9 P17 & Annexure ‘A’ |
| 26 Jan 2016 | The mother’s partner attacks the mother and attempts to sexually assault her. The mother’s partner breaks the mother’s legs in two places and he pins her against the garage with her car and he rips her clothes off. The father has serious concerns about the mother’s parenting capacity and ability to prioritise the children and he seeks to have the children primarily live with him. | F9 P18 |
| 2016 | The children live primarily with the father after the father makes an urgent application for a Recovery Order. | F6 P4 |
| 11 May 2016 | The mother and father settle their court matter by consent. They agree for the children to live with the father each Friday until Tuesday in one week and from Monday until Thursday in the alternate week. | F9 P19 |
| 2016 | The mother begins to act erratically. On one occasion the police attend the father’s home while the children are with him and they let the father know that the mother was found in her car parked against a power pole in Town E. Her doors were open and she was unconscious and she had a black eye. The police apparently attended the father’s home to do a welfare check on the children because they were concerned that the mother had the children in her care. | F9 P20 |
| 1 July 2016 | COPS event of mother being located in her car under the influence. | S69 NSW COPS for mother p5 ICL 4 |
| 2016 | The father has a serious work incident and he has to be in a wheelchair for two months. During this time, the maternal grandmother Ms A promises to help with the children and to keep an eye on the mother. | F9 P20 |
| Sept 2016 | The father allows the mother to live with him and the children because the mother tells him she has nowhere to live and no money. The mother remains until January 2017. The father maintains that allowing the mother to stay was a poor decision. | F9 P21 |
| Dec 2016? | The father finds out that the mother is on a suboxone program which he understands is for an addiction to opioids. | F9 P22 |
| Jan 2017 | The mother is prescribed Valium. The mother only takes this in accordance with the recommended dosage. | M7 P33 |
| Jan 2017 | The father asks the mother to leave. The mother leaves and she takes the children with her. The father tries to message the mother to make sure that the children are okay but he can’t get a hold of the mother. | F9 P23 |
| 30 Jan 2017 | The children are due to commence school. The father contacts School 1 Primary School. He is advised that the children are not there and that they are no longer enrolled. The father speaks to the maternal grandmother to ask if she knows the mother’s and children’s whereabouts. | F9 P24 |
| 1 Feb 2017 | The father reinstitutes proceedings. | F9 P25 |
| Feb 2017 | The mother moves into her current accommodation. | M7 P32 |
| Early 2017 | The mother and father have a conversation. The father says, “I want to get out of court. It’s costing me too much money. Your solicitor said she can draw up a parenting plan.” The mother says, “I’ll speak to my solicitor and get one.” The father agrees that he and the mother had a conversation. However, he did not agree with the mother’s proposal as to overnights. The father maintains that the mother collected the children from school so that she and the children could have a few hours together and that the mother dropped the children off home each afternoon. | M7 P12 F9 P50 |
| 22 April 2017 | The mother and father sign a Parenting Plan out the front of Centrelink. The mother takes this Parenting Plan to Centrelink and she give them a copy. | M7 P13 & Annexure ‘B’ |
| After 22 April 2017 | The mother spends a lot more time with the children than what is stated in the Parenting Plan. The father maintains that the mother collected the children from school and then dropped them off to the father’s home so that the mother and children could have a few hours together. | M7 P13 F9 P50 |
| June 2017 | The mother’s calendar records indicate that the children stayed with the father overnight on 7 June, [X] stayed overnight on 8 June and the children may have stayed overnight on 30 June. During this time, the mother takes the children to and from school. The father maintains that the mother collected the children from school and then dropped them off to the father’s home so that the mother and children could have a few hours together. | M7 P13 F9 P50 |
| 2017 | The father says to the mother, “If you just sign the final orders, I will never stop you from seeing the children.” The mother understood that the usual arrangements would continue despite there being final orders in place. The father maintains that this is untrue. | M7 P15 F9 P51 |
| 2017 | During the court proceedings, the mother is tired of being made out to be a bad mother and she just wants the court proceedings to end. The mother was having supervised visits and she did not agree that she was a risk to the children. The father eventually agreed for the mother to have the children most weekdays. The father denies that he ever agreed to the mother having the children most weekdays. The father facilitated some weekday time but the children lived with the father for the majority of the week. | M7 P11 F9 P49 |
| 21 Aug 2017 | The parties enter into Final Orders. The orders provide for the children to live with the father and to spend time with the mother at the father’s discretion. The mother maintains that the final orders did not reflect the actual arrangements for the children. The father maintains that this is untrue. | F6 P3 & Annexure ‘A’ M7 P15 F9 P51 |
| After 21 Aug 2017 | The mother asserts that after Final Orders are made, that she has the majority of care of the children. She alleges the children are at risk in the father’s care due to family violence and drug and alcohol use. The father disputes that the mother has the majority of care of the children. The father asserts that the parties largely followed the parenting plan. The father would usually drop the children to school so that they could have more sleep and the mother would collect them from school and take them to their after school activities. The mother would then drop the children to the father’s house before dinner. The father also denies the mother’s allegations that the children were at risk in the father’s care due to family violence and drug and alcohol use | M7 P3 F9 P42 |
| Aug 2017 | The mother’s calendar records show that the father did not have the children overnight at all. The father says this is untrue. He maintains that the children have been in his care in accordance with the parenting plan. | M7 P15 F9 P51 |
| Sept 2017 | The children spend 2 overnights with the father during this month. The father disagrees with this and he maintains that he largely had the children as per the parenting plan except for when they spent extra time with the maternal grandmother and grandfather or when he agreed that the mother could have an additional day with the children. The father rarely allowed the mother to have additional overnight time. | M7 P16(a) M9 P52 |
| Oct 2017 | The children spend 1 overnight with the father during this month. The father disagrees with this and he maintains that he largely had the children as per the parenting plan except for when they spent extra time with the maternal grandmother and grandfather or when he agreed that the mother could have an additional day with the children. The father rarely allowed the mother to have additional overnight time. In October the father took the children to Town F for 5 nights. | M7 P16(b) F9 P52 |
| 27 Oct 2017 | The mother attends upon her GP. Reason for contact is noted as ‘drug dependence’. Clinical notes state under history: ‘Needs to ring Drug and Alcohol Dependence, Advised I cannot continue to prescribe.’ Endone and MS Contin prescribed. | S70 CHM ICL 17 |
| Nov 2017 | The children spend 1 overnight with the father during this month. The father disagrees with this and he maintains that he largely had the children as per the parenting plan except for when they spent extra time with the maternal grandmother and grandfather or when he agreed that the mother could have an additional day with the children. The father rarely allowed the mother to have additional overnight time. | M7 P16(c) F9 P52 |
| Nov 2017 | The father smashes [X]’s ipad in a fit of rage. The father agrees that he did break [X]’s ipad when he dropped it. He did not intentionally smash it. The father purchased a new Samsung tablet for [X] soon after. | M7 P47(a) F9 P72 |
| 2017 | School Counsellor Assessment Report completed for [Y] by Ms T. [Y] assessed on 12 September 2017, 9 October 2017 and 20 October 2017. | S66 School 1 PS ICL 23 |
| 2017 | The mother says to the father, “Can you call Child Support and can you let Centrelink know that I have the children.” The father says, “No I’m not doing it.” The mother says, “At least give me 50% on the assessment.” The father says, “No. If you don’t call child support and say I paid you money, I won’t let you see the kids.” The father denies that these conversations ever took place. The father was under the impression that the mother was working. | M7 P4 F9 P43 |
| 2017 | The mother is scared that the father will withhold the children so she calls Child Support and tells them that the father is paying her money even though this is not true. The father asserts that this is not true. The father facilitated additional time between the mother and the children. Despite the discretion provided to the father under the orders, the father has always done what he could to facilitate time. The mother’s assertions that the father would pay child support to the mother in cash and that the mother called the CSA are both a lie. | M7 P5 F9 P44 |
| Dec 2017 | The children spend 4 overnights with the father during this month. The father disagrees with this and he maintains that he largely had the children as per the parenting plan except for when they spent extra time with the maternal grandmother and grandfather or when he agreed that the mother could have an additional day with the children. The father rarely allowed the mother to have additional overnight time. | M7 P16(d) F9 P52 |
| Dec 2017 | The mother advises Child Support that arrangements for the children have changed. The father maintains that he was not aware of this. | M7 P6 F9 P45 |
| Dec 2017 | The mother uses cocaine with the father. The father denies the mother’s allegations. He does not use drugs and he is happy to submit to drug urinalysis. | M7 P37 F9 P66 |
| 2017 | [Y] experiences numerous negative incidents at school. | S66 School 1 PS ICL 24 |
| 2017 | The father gives the mother cannabis plants. She plants them at her house. The police subsequently attend the mother’s home in relation to a break in and they find the plants. The matter goes to court and the mother is convicted and fined. The father denies the mother’s allegations. | M7 P37 F9 P66 |
| Dec 2017 | In the lead up to Christmas, the father attends the mother’s home. The mother asked him to go Christmas shopping because there was no way she could afford to buy presents for the children. The father asks the mother to keep the children in the lounge room. The father takes a plate into the mother’s room. After he comes out of the mother’s room, they go shopping with the children. When they return home, the mother walks into her bedroom. The plate is still there with lines of cocaine. The mother says to the father, “What are you going to do with that?” The father says, “I’ll just finish that off now.” The father finishes the lines and leaves the house. The father denies this event took place. | M7 P43(b) F9 P69 |
| Jan 2018 | The Child Support Agency does not change the child support assessment for the children. The father maintains that he was not aware of this. | M7 P7 F9 P45 |
| Jan 2018 | The children spend 4 overnights with the father during this month. The father disagrees with this and he maintains that he largely had the children as per the parenting plan except for when they spent extra time with the maternal grandmother and grandfather or when he agreed that the mother could have an additional day with the children. The father rarely allowed the mother to have additional overnight time. | M7 P16(e) F9 P52 |
| Feb 2018 | The father may not have had any overnights in February. He may have had [X] in his care on 15 February 2018. The father disagrees with this and he maintains that he largely had the children as per the parenting plan except for when they spent extra time with the maternal grandmother and grandfather or when he agreed that the mother could have an additional day with the children. The father rarely allowed the mother to have additional overnight time. | M7 P16(f) F9 P52 |
| Early 2018 | The father comes up behind the mother and he grabs her breasts and he thrusts his pelvis into her backside. The father says to her, “I paid for them so they’re mine.” The children are present. The father maintains that this is untrue. | M7 P43(b) F9 P73 |
| Early 2018 | The father attends the mother’s home. He says to her, “I am that off my head I haven’t been off my head like this in ages. This coke is good.” The mother observes he has dilated pupils and she does not let him inside the house. The father denies this event took place. | M7 P43(d) F9 P69 |
| 13 Feb 2018 | The mother requests a meeting with the school counsellor and she reports a number of things about the children and the father. | S66 School 1 PS ICL 22 |
| 13 Feb 2018 | COPS event of mother’s premises being broken into. | S69 NSW COPS for mother p4 ICL 5 |
| 20 Feb 2018 | COPS event relating to mother’s yard being searched and 3 cannabis plants being found. | S69 NSW COPS for mother p3-4 ICL 6 |
| 20 Feb 2018 | The mother is charged with cultivate prohibited plant and possess prohibited drug. | S68 NSW Police CR for mother ICL 3 |
| 23 Feb 2018 | The father arrives at the mother’s house before the children’s (sports) carnival. He says to the mother, “This is gonna be a stressful one. I’m just going to take the plate into your room. Keep the kids out here.” The mother sees the father go into her room and snort lines of cocaine. The father denies this event took place. | M7 P43(a) F9 P69 |
| Feb 2018 | School Counsellor Ms J prepares a report about [Y]. [Y] was assessed on 12 February 2018 and 23 February 2018. | S66 School 1 PS ICL 21 |
| 25 Feb 2018 | The mother sends the father a text stating, “Do not come to my house.” Approximately 10 minutes later the father arrives and is abusive. [X] hides in the laundry. The father continues to swear and bang the window. The father maintains that this is untrue. | M7 P47(c) F9 P73 |
| March 2018 | The mother stops using marijuana. The father was selling it to her. The father denies the mother’s allegations. | M7 P37 F9 P66 |
| March 2018 | While the mother is withdrawing from opioids, she becomes really sick. She is not thinking clearly. She is advised by the poisons hotline to have a bath in methylated spirits. She calls the father to bring methylated spirits. She also intends for the father to have the children so that she can have a break. The father attends. They have a conversation in the mother’s bedroom. The mother says, “I’m really sick. I’m hot and cold. I’m withdrawing from this shit. I need to get into a bath with metho.” The father says, “Maybe you need to take some if this.” The father then shows the mother a white powder in a bag that he takes from his wallet. The mother knows this to be cocaine. The mother says, “that’s the last thing I fucking need. I called you because I fucking need help. Just drop me off to the doctors.” The father drops the mother off to the doctors and he takes the kids. The father denies this event took place. | M7 P43(c) F9 P69 |
| After 4 March 2018 | In the days after 4 March 2018, the children say to the mother, “Daddy was taking flour up his nose with a straw.” The father denies taking drugs at all and he has never done so in front of the children | M7 P44 F9 P70 |
| March 2018 | The children are in the father’s care on 5 March, possibly 15 March, 24 March and 26-28 March 2018. The father disagrees with this and he maintains that he largely had the children as per the parenting plan except for when they spent extra time with the maternal grandmother and grandfather or when he agreed that the mother could have an additional day with the children. The father rarely allowed the mother to have additional overnight time. | M7 P16(g) F9 P52 |
| 29 March 2018 | The mother refers [X] to the school counsellor because of concerns about her behaviour. [X] has a session with the school counsellor. | S66 School 1 PS ICL 18 |
| March or April 2018 | The mother attends the father’s house. The house is dirty and unhygienic. The mother offers to clean the father’s house. The mother is unable to remove all of the filth. The father asserts that these statements are untrue. | M7 P46 F9 P71 |
| March or April 2018 | [X] says to the mother, “Dad yelled at me. He said I was emotionally fucked and good for nothing. He ripped up my choir note and big foot adventure note.” The father maintains that he did not swear at [X] on this occasion. He recalls that [X] was in trouble and he did rip up her excursion note to demonstrate how much trouble she was in. The father has a printer and he was aware that he could reprint the note. The father maintains that he never said to [X] that she was emotionally fucked and good for nothing. | M7 P47(e) F9 P74 |
| 3 April 2018 | The mother attends the children’s school and she provides information to the counsellor about the children and the father while the children wait in the foyer. After the morning break, [X] reports a number of things to the school counsellor. | S66 School 1 PS ICL 19 |
| 3 April 2018 | The mother keeps [Y] home from school. He is crying hysterically. [Y] says to the mother, “Dad threw work boots at me. Dad told me I was stupid and a fucking retard. He also dragged me off the bed by my ears.” The father maintains that this is untrue. | M7 P47(d) F9 P73 |
| 3 April 2018 | The mother attends upon her GP at 10.05am. She attends to obtain ms contin and Valium. The doctor notes the mother takes 60mgs am and 1 in the night – also add 10mgs when needed, also on Valium 5 mgms up to 4 a day for withdrawal symptoms. She takes morphine for her injuries, broken legs due to accident, seeing pain clinic Dr M today at 11am. | S70 CHM ICL 13 |
| 3 April 2018 | The mother attends a pain management clinic at Town C Hospital with Dr M. She attends for an appointment concerning her withdrawing from opioids. | M7 P35 |
| 4 April 2018 | The mother receives s10 Bond for 12 months at Town C Local Court for cultivate prohibited plant and possession of prohibited drug. | S68 NSW Police CR for mother ICL 3 |
| 5 April 2018 | COPS event of the mother’s premises being broken into. | S69 NSW COPS for mother p3 ICL 7 |
| April 2018 | The mother lodges an application for review of the decision of the Child Support Registrar. The father maintains that he was not aware of this. | M7 P7 F9 P45 |
| 7 April 2018 | The mother takes [Y] to (sports) in Town D and the father turns up. The maternal grandparents take the children after (sports). The father maintains that this was his weekend and this is why he attended the game. It was common for the children to stay with the maternal grandparents on Friday nights and to have a ‘nan & pop’ day on Saturday. The father has had this arrangement in place for some time as the maternal grandparents wouldn’t otherwise see the children. | M7 P18 F9 P54 |
| 9 April 2018 | Dr M prepares a letter in relation to the mother. | M7 P35 & Annexure ‘E’ |
| 9 April 2018 | The father collects the children and then returns to the mother’s. He sends [X] to the door. [X] says to the mother, “Daddy said if you don’t give him the school clothes, I’m going to get it. I’m scared mummy.” The father maintains that these assertions are untrue. | M7 P47(g) F9 P75 |
| 11 April 2018 | [X] says to the mother, “Dad makes me sleep in his bed. He licks my face and it makes me feel like he’s being sexual.” [X] also says to the mother, “He holds my arms so I can’t move my face when he’s licking my face.” The father asserts that this is entirely false and he cannot understand why [X] would say this. [X] sleeps in her own bed with a night light. The father maintains that he would never do anything to his daughter. He does not even know how to comprehend these allegations. | M7 P48 F9 P76 |
| April 2018 | [Y] says to the mother, “Dad threw PlayStation discs at my head and I thought they were going to cut me so I tried to hide under my bed. He told me I was a fucking idiot and fucking retard. Dad said I’d fucked the PlayStation.” The father says that these assertions are untrue. | M7 P47(h) F9 P75 |
| April 2018 | The children are in the father’s care on 7, 8, 10 & 11 April 2018. The 30 April 2018 was a pupil free day. The children are with the mother all day until 7.30pm. The father disagrees with this and he maintains that he largely had the children as per the parenting plan except for when they spent extra time with the maternal grandmother and grandfather or when he agreed that the mother could have an additional day with the children. The father rarely allowed the mother to have additional overnight time. | M7 P16(h) F9 P52 |
| April or May 2018 | [X] returns from a visit with the father. She says to the mother, “Dad farted in the lift. As we went to get out I said dad you stink. Dad bent my fingers back and said I’ll break your fucking fingers and that’s how you’ll learn. Dad slapped me on the leg.” The mother observes that there is a mark on [X]’s leg. The father maintains that these assertions are untrue. | M7 P47(k) F9 P75 |
| May 2018 | The mother stops using all opioids. | M7 P35 |
| 4 May 2018 | The father starts to experience difficulties with the mother not returning the children to the father. The father asks for the children to be returned and the mother refuses. | F9 P35 |
| 6 May 2018 | The father sends the mother a text asking her to return the children. Text messages are exchanged. | F9 P35 & Annexure ‘B’ |
| 7 May 2018 | The mother purchases Diazepam from Pharmacy, quantity 50. | S65 Medicare ICL 1 |
| 7 May 2018 | The mother returns the children to the father. The father says to the mother, “If you keep doing this I’m going to put a contravention Application in.” | F9 P36 |
| 1 to 8 May 2018 | The children are with the father on the 1 & 8 May 2018. The father disagrees with this and he maintains that he largely had the children as per the parenting plan except for when they spent extra time with the maternal grandmother and grandfather or when he agreed that the mother could have an additional day with the children. The father rarely allowed the mother to have additional overnight time. | M7 P16(i) F9 P52 |
| 8 May 2018 | [X] has a session with the school counsellor. | S66 School 1 PS ICL 20 |
| 8 to 9 May 2018 | The father receives numerous text messages from the mother. The messages are reasonably amicable. | F9 P37 & Annexure ‘C’ |
| May 2018 | The mother says to the father, “I’m sick of having the children every day and not getting recognition. I’m sick of not getting child support.” The father says to the mother, “I’ll just get a recovery orders if I say you don’t give the kids back.” The father denies this is true. | M7 P20 F9 P55-56 |
| 9 May 2019 | COPS entry for report made by the mother to police regarding the father. | S69 NSW COPS for [Y] p3 ICL 10 |
| 9 May 2018 | The police apply for an AVO on the mother’s behalf. | M7 P20 |
| After 9 May 2018 | After the police apply for an AVO to protect the mother, the father starts asking to spend more nights at his house. The father denies this is true. | M7 P20 F9 P55-56 |
| 9 to 10 May 2018 | The children are with the father on 9 & 10 May 2018. The father disagrees with this and he maintains that he largely had the children as per the parenting plan except for when they spent extra time with the maternal grandmother and grandfather or when he agreed that the mother could have an additional day with the children. The father rarely allowed the mother to have additional overnight time. | M7 P16(i) |
| 10 May 2018 | COPS entry regarding police contacting the father and speaking to him over the phone. | S69 NSW COPS for [Y] p4 ICL 9 |
| 10 May 2018 | A provisional AVO is applied for to protect the mother. | F6 P8 & Annexure ‘C’ |
| 11 May 2018 | The father receives a voicemail message from the mother. It states, “hey just wondering what you guys are up to this afternoon” | F9 P38 |
| 11 May 2018 | The father decides to use his discretion under the orders to not send the children to the mother. He calls the maternal grandmother about what he is doing. She says to him, “I will look after [Y].” The father agrees. The father arrives at the maternal grandmother’s home. He hears something coming from her phone. He says to her, “Is your phone on loudspeaker?” The mother comes in the front door and she snatches the children from the father. The father walks out of the house to leave because of the pending AVO. As the father goes to leave, he sees that the mother has parked him in so he cannot move his car. The father locks his car and he walks away and a friend picks him up on the main street. The father calls the police and they do not return his call. | F9 P39 |
| 11 May 2018 | The father takes the children to and from school. He then takes the children to the maternal grandmother’s home. The police attend the mother’s home and the children remain with the mother. The father disagrees with this and he maintains that he largely had the children as per the parenting plan except for when they spent extra time with the maternal grandmother and grandfather or when he agreed that the mother could have an additional day with the children. The father rarely allowed the mother to have additional overnight time. | M7 P16(i) F9 P52 |
| 12 May 2018 | The father attends the police station. They apologise for not responding. | F9 P39 |
| 12 May 2018 | COPS entry made of father attending to make a report of an incident in relation to the mother. | S69 NSW COPS for [Y] p2 ICL 11 |
| May 2018 | The father receives a letter advising him that the mother appealed to the Tribunal in relation to child support. The mother alleges the father wants more overnights with the children after this so as to avoid paying the correct amount of child support to the mother. The father maintains that he never received this letter. Child support should have his correct address so the father is concerned as to why he didn’t receive anything. The mother lives approximately 700 metres away from the father’s home and he is concerned that the mother may have taken his mail. He has always had legal representation, so he would have sought legal representation for these proceedings. | M7 P21 F9 P57 |
| 14 May 2018 | The mother purchases Morphine from Pharmacy, quantity 28 times two. She also purchases Diazepam, quantity 50. | S65 Medicare ICL 1 |
| 14 to 22 May 2018 | The children are with the father on 14, 19, 20, 21 & 22 May 2018. The father disagrees with this and he maintains that he largely had the children as per the parenting plan except for when they spent extra time with the maternal grandmother and grandfather or when he agreed that the mother could have an additional day with the children. The father rarely allowed the mother to have additional overnight time. | M7 P16(i) F9 P52 |
| 22 May 2018 | The mother speaks to the father at 3.30pm. She tells him that she will return the children to him about 5.30pm or 6pm that evening. The mother attends the father’s home at 5.40pm. The father does not answer his door. Both cars are in the father’s driveway. The mother stays at the father’s house for 20 minutes, maybe a bit longer. The mother goes back to her house with the children. The father attends the mother’s house at 6.25pm. He tries to enter the mother’s front door. The father says to the mother, “What the fuck is this letter?” The mother says, “I don’t know.” The father says, “Well whatever it is, you need to call them and fucking work it out.” The mother unlocks the door but she doesn’t open it all the way as she had a dog that might get out. The father hands the mother the Child Support Administrative Appeals Tribunal letter dated 2 May 2018 addressed to the father. The father denies that this conversation took place. The father was not aware of this letter whatsoever. | M7 P8 F9 P46 |
| 24 May 2018 | COPS event of the mother making a further report to the police about the father. | S69 NSW COPS for mother p2 ICL 8 |
| 28 May 2018 | The mother purchases Morphine from Pharmacy, quantity 28 times two. She also purchases Diazepam. | S65 Medicare ICL 1 |
| 23 to 29 May 2018 | The children are with the father on 23, 24 & 29 May 2018. The father disagrees with this and he maintains that he largely had the children as per the parenting plan except for when they spent extra time with the maternal grandmother and grandfather or when he agreed that the mother could have an additional day with the children. The father rarely allowed the mother to have additional overnight time. | M7 P16(i) F9 P52 |
| May 2018 | The father takes the mother to Coles with the children to buy them groceries for the week that he will be away on a fishing trip from 5 June. | F9 P58 |
| April / June 2018 | The mother attempts to withhold the children from the father. The mother only returns them after numerous texts from the father and through police assistance. | F6 P5 |
| 1 June 2018 | The father files an Initiating Application. The father seeks a variation to Final Orders made on 21 August 2017, namely that in the event that the mother withholds the children or refuses to return the children to the father at any time upon the father’s request or in exercise of his discretion then a Recovery Order should issue. The father also seeks a Recovery Order on an interim basis. The father also files a Notice of Risk. He makes allegations in relation to child abuse and other risks and he also files an Affidavit- Non-Filing of Family Dispute Resolution Certificate. | |
| 4 June 2018 | The father goes on a fishing trip. He leaves the children in the mother’s care. | F6 P7 |
| 6 June 2018 | The mother purchases Diazepam from Pharmacy, quantity 50. | S65 Medicare ICL 1 |
| 7 June 2018 | The mother attends a hearing with the AAT. The father does not attend. The father maintains that he did not know about the AAT hearing and that’s why he didn’t attend. | M7 P9 F9 P47 |
| Early June 2018 | [X] says to the mother, “I could hear rustling like a plastic bag in the kitchen. I peeped around the corner and saw dad and his friend Mr S, sniffing powder.” The father asserts that these statements are untrue. | M7 P45 F9 P71 |
| 2018 | [X] says to the mother, “I’m scared of [Y] getting bashed. Every time he makes a mistake he gets hit or slapped in the head or bashed.” The father says that these assertions are untrue. | M7 P47(i) F9 P75 |
| June 2018 | [X] says to the mother, “When I shower dad demands the door is not locked. Dad opens the shower screen and stares at my vagina. I told dad to get out but he won’t. He will come up with excuses to talk to me about things.” The mother says to her, “What type of things?” [X] says, “He will ask me what I want for dinner.” The father maintains that he has told [X] to close the door to give herself privacy. He denies ever coming into the bathroom and staring at [X]’s vagina. The father states that he is very hurt by these allegations. The mother has, since the last occasion (which is not specified), made the children report these kinds of allegations to the police. The father asserts that he has been interviewed by two separate child abuse squad detectives. There were no further investigations following the initial interviews. The father was not charged with anything and he was not contacted by FaCS. When the father was interviewed, the officers indicated to the father that they did not think he had done anything and they advised him that the children’s vocabulary was too mature, too adult and that they believed that the children had been coached. The father is concerned that the mother is making these allegations to get an upper hand in these proceedings | M7 P50 F9 P77 |
| 11 June 2018 | The mother purchases Morphine from Pharmacy, quantity 28 times two. She also purchases Diazepam, quantity, 50. | S65 Medicare ICL 1 |
| 12 June 2018 | [X] says to the mother, “Dad will put his arms around me while we are in bed and I can’t move. He rubs his penis on my backside.” The father asserts that this is entirely false and he cannot understand why [X] would say this. [X] sleeps in her own bed with a night light. The father maintains that he would never do anything to his daughter. He does not even know how to comprehend these allegations. | M7 P49 F9 P76 |
| 12 June 2018 | The father returns from his fishing trip. | F6 P7 |
| 16 June 2018 | The children spend time with the mother. The mother is due to return the children to the father the same day. The father sends the mother a text advising her that he will be collecting the children. The mother replies with, “I won’t be handing the children over based on legal advice I have received.” The father sends numerous text messages thereafter informing the mother that he will be speaking the police. The mother requests that the father stop texting her, and he does. | F6 P6 7 Annexure ‘B’ |
| 18 June 2018 | The mother’s child support application is decided by the AAT. The Tribunal finds, “that from 14 August 2017 there was a common expectation that [Y] and [X] would be in the care of Mr Pavone for 52 nights a year and in the care of Ms McNeill 312 nights per year.” | M7 P9 & Annexure ‘A’ |
| 19 June 2018 | The mother purchases Diazepam from Pharmacy, quantity 50. | S65 Medicare ICL 1 |
| 1 to 20 June 2018 | The father does not spend any overnights with the children. The father maintains that other than the fishing trip he went on from 5 until 12 June 2018, that he had the children up until the day before he went away because he wasn’t going to see them for a week. | M7 P22 F9 P58 |
| 20 June 2018 | The AVO matter is listed in court. An interim AVO is made. The matter is adjourned for final hearing. | M7 P47(j) |
| 2017/2018 | When the children have been in the father’s care overnight, the mother maintains that she would usually drop the children to the father’s house between 7.30pm and 8pm and the father would then deliver the children to the mother’s house the next day at 6am. If it was a school day, the mother usually collected the children from school and she did the afternoon school routine including sports, dinners, baths and homework before dropping the children to the father’s home. The father agrees that the mother has collected the children from school and that she has taken them to sports. However once these activities have been over, he maintains that the children have been returned to his home between 5.30pm and 6pm. On some occasions, the children have stayed with the mother for dinner and baths if the father hasn’t been able to make it. | M7 P17 F9 P53 |
| 2017/2018 | The father only wants the children overnight so that he doesn’t have to pay more child support. The father said to the mother, “Child support is based on the amount of nights that I have.” The father maintains that this is untrue. He has spent more money on legal fees for these proceedings that what he would have had to pay in child support. | M7 P19 F9 P55 |
| 2017/2018 | The mother has paid all the fees for the children’s activities. She has also paid for all costumes and equipment. The mother asked the father for money. She has said to him, “Can I have money for fuel to take the kids to and from school and sport?” The father has typically responded with aggression, saying, “Get fucked. I’m not giving you shit. If you can’t afford it, don’t enrol them.” The father says that this is untrue and he has not said anything to this effect to the mother. The father provides the mother with money for the nights she has the children and he assists with their fees for different activities that the mother has unilaterally involved the children in. | M7 P26 F9 P62 |
| 2017/2018 | The mother maintains that [X] is struggling emotionally. The mother has said to the father, “Can I take [X] to a counsellor?” The father has not agreed. The father has said that counsellors create more problems. The father says that this is untrue. He did not give his consent for [X] to go to counselling because he felt that the mother has been having too many adult conversations with [X] and this has been causing [X] stress. The father wants [X] to have a normal childhood without adult problems. | M7 P31 F9 P64 |
| 2017/2018 | The father has said to the mother that she is “worthless”, “fucked up” and he has said, “You should neck yourself.” He has also said, “I will break into your house.” The mother alleges that her house has been broken into 5 times in 2018. The father maintains that these assertions are untrue. | M7 P47(f) F9 P75 |
| ? | The mother maintains that she is scared of the father. When she and the father were together, the father was violent towards her. The father physically assaulted her. Since separation, the mother has continued to be scared of the father and she ends up doing what he says because she is always worried about the father’s reaction. When the father raises his voice, the mother tries to redirect the conversation to calm the father down. The father maintains that the mother is not scared of him. The mother regularly communicates with him via text and she has no hesitation in being aggressive towards the father. | M7 P54 F9 P81 & Annexure ‘E’ |
| 20 June 2018 | The matter is listed in the Federal Circuit Court at Wollongong before Judge Tonkin. The father appears in person and the Ms Vardanega appears for the mother. Orders are made requiring the mother to send the children to school on 20 June 2018 and for the father to collect the children after school on 20 June. Further orders are made for the children to spend time with the mother and father upon specified times until 25 July 2018. The proceedings are adjourned to this date and the mother is directed to file a Response within 14 days. The court notes that a Recovery Order shall lie in office and may issue if there is no compliance with the first two orders. Judge Tonkin further notes that the father appeared for himself and that he indicated there had been significant problems prior to the mother’s failure to return the children on 16 June 2018; notwithstanding the consent orders made on 21 August 2017. The father has not set out details of these problems in his affidavit. The only advice the father has received regarding the mother’s concerns is that she has received legal advice not to return the children. She also notes that notwithstanding the severity of the consent orders made on 21 August 2017, that the father has facilitated a relationship with the mother and the current orders reflect a current parenting plan. Finally, she noted that neither party produced a copy of the parenting plan varying the orders of 21 August 2017. | |
| After 20 June 2018 | Immediately after orders are made by Judge Tonkin in the Federal Circuit court, the father receives a call from the children’s Principal, Ms D. She tells the father that the children have not been at school all week. She also tells the father that the mother has been getting the children to see the school counsellor recently and that the children have been making serious allegations about the father which she has had to report. The mother has also been asking for reports from the school counsellor. The Principal also tells the father that the mother attended the school the previous week to ask if the children had been at school. This is during the time the children were in the mother’s care, according to the father. | F9 P27 |
| 20 June to 22 June 2018 | The children are due to be in the father’s care from after school Wednesday 20 June until before school Friday 22 June in accordance with orders made on 20 June 2018. | |
| 20 June 2018 | The father drops the children to Town G McDonalds at 4pm. The mother takes the children to sport. She then drops the children to the father at Town G McDonalds at about 6-6.30pm. | M7 P22(a) |
| After 20 June 2018 | [Y] no longer attends (sport) and [X] does not attend (hobby). [X] attends only one (sport) game but no training. On this occasion, the mother attends and speaks to [X]. [X] tells her she did not have breakfast and that she felt sick. [Y] attends training on the 5 July but he does not attend any games. The father maintains that [X] has still been going to (hobb) and [Y] has been going to (sport). As for (sport) lessons, the mother told the father that she had enrolled [Y] in (sport) lessons. When the father attended to watch [Y] at this first lesson, he was not participating in a lesson. The father was shocked and frustrated by this event because he had been giving the mother money to pay for (sport) lessons which [Y] was not participating in. | M7 P23 F9 P59 |
| After 20 June 2018 | [X] comes back from contact with the father. She says to the mother, “I slept in the lounge room with [Y]. I want to be as far away from dad as possible. I am afraid of him.” The mother says to her, “What are you afraid of?” [X] says, “Him lashing out.” The father maintains that this is untrue. The only times that [X] and [Y] sleep in the lounge room is when they have a movie night and he sets up a blow up mattress in the living room. It is common for the children to fall asleep there. He leaves the children and he goes to bed. | M7 P51 F9 P78 |
| 22 June to 25 June 2018 | The children are due to be in the mother’s care from after school Friday 22 June until before school Monday 25 June in accordance with orders made on 20 June 2018. | |
| 25 June to 27 June 2018 | The children are due to be in the father’s care from after school Monday 25 June until before school 27 June in accordance with orders made on 20 June 2018. | |
| 25 June 2018 | The mother purchases Diazepam from Pharmacy, quantity 50. | S65 Medicare ICL 1 |
| 25 June 2018 | The mother contacts the police regarding the children going to the maternal grandmother’s home rather than after school care. | S69 NSW COPS for [X] p1 ICL 12 |
| 25 June 2018 | The father is contacted by an employee from the children’s after school care. He is told that the children have not arrived and that they will drive past the maternal grandmother’s home to see if the children had walked there. The father is contacted by the Principal. The Principal tells the father that they drove past the grandmother’s home and they saw the mother arrive and they saw the children in the backyard. The father collects the children from the maternal grandmother’s home at 5pm. The father then receives a call from the police and the father is advised that the police have concerns about him because of allegations about him. The father asks if the allegations are sexual allegations because he has had these before. According to the father, the police officer says to him, “At first I thought you were a scumbag but then once I spoke to the children after about 20 seconds I realised their vocabulary was better than some of the officers at our station.” | F9 P28 |
| 26 June 2018 | The police arrive at the father’s house at approximately 10pm. Both of the children are in bed asleep. The police tell him they have attended to do a welfare check as a result of a complaint made by the mother. The police also advise the father they wish to search the father’s home. When the father asks why, he is advised that the mother has alleged that he has firearms hidden in the ceiling of his home. The father allows the police to carry out a search and nothing is found. | F9 P40 |
| 27 June to 29 June 2018 | The children are due to be in the mother’s care from after school Wednesday 27 June until before school Friday 29 June in accordance with orders made on 20 June 2018. | |
| 27 June 2018 | The mother makes a unilateral decision and she takes [Y] to see a paediatrician. | F9 P30 |
| 27 June 2018 | The father texts the mother. The text states, “Don’t forget 3.30pm Dr C tomorrow arvo.” | M7 P30 |
| 28 June 2018 | The mother purchases Diazepam from Pharmacy, quantity 50. | S65 Medicare ICL 1 |
| 28 June 2018 | The mother takes [Y] to see Dr C. | M7 P30 & Annexure ‘D’ |
| 28 June 2018 | The father receives a call at work from a counsellor from safer pathways. The counsellor calls to see how the father is coping. The father understands that NSW police arranged this to assist him. | F9 P41 |
| 2018 | The mother says to the father, “[Y] doesn’t need to be on his 11.00am tablet anymore.” The father says to her, “Why would you change it when he’s doing so well”. The mother says, “He doesn’t need it.” The father tries to contact the Paediatrician but he does not respond. | F9 P30 |
| June 2018 | The mother is prescribed Valium. | S70 CHM ICL 14 |
| 29 June to 6 July 2018 | The children are due to be in the father’s care from after school Friday 29 June until before school Friday 6 July 2018 in accordance with orders made on 20 June 2018. | |
| 29 June 2018 | [Y] does not go to school because he is sick. He is in the mother’s care all day. Both children go into the father’s care after school. | M7 P22(b) |
| 5 July 2018 | The mother attends her last appointment at the pain management clinic. Her doctor recommends a small daily dose of opioids. The mother has stopped taking opioids because she does not want the father to use this against her in the family law proceedings. | M7 P35 |
| 5 July 2018 | The mother attends the children’s (sports) practice. The children are about 15 minutes late. The father sends the mother a text stating that he believes the mother should not be there. [X] sits in the car with the father. [Y] completes his training. The father does not bring [Y] a drink bottle so the mother gives him one out of her car. [Y] does not have his (sports) socks. | M7 P22(c) |
| 6 July to 13 July 2018 | The children are due to be in the mother’s care from after school Friday 6 July until 5pm on Friday 13 July in accordance with orders made on 20 June 2018; with the mother to deliver the children to Town C McDonalds and the father to collect them from here. | |
| 13 July to 23 July 2018 | The children are due to be in the father’s care from 5pm Friday 13 July until before school Monday 23 July in accordance with orders made on 20 June 2018. | |
| 24 July 2018 | The mother files a Response. She seeks a discharge of the Final Order made on 21 August 2017 and instead, she seeks final orders for sole parental responsibility and for the children to live with her. She proposes that the children spend time with the father each alternate Sunday from 9am until 4pm and on special occasions. In relation to interim orders, the mother seeks orders for the children to live with her and for the children’s time with their father to be supervised by CatholicCare Town A. The mother also seeks an order for the father to undertake random drug urine testing. | |
| 25 July | The matter is listed in the Federal Circuit Court at Wollongong before Judge Altobelli. Judge Altobelli extends the orders made by Judge Tonkin until the date of the next interim hearing. The matter is adjourned for interim hearing on 7 September 2018. An ICL is requested to be appointed urgently. The court notes that an experienced in house ICL is requested and when the matter is next listed, the court will consider transferring the matter to the Family Court in Sydney. | |
| 25 July 2018 | The father learns that the mother has obtained a new child support assessment at court after being give a copy of the mother’s affidavit. | F9 P45 |
| July 2018 | The mother is prescribed Valium and Endone. | S70 CHM ICL 15 |
| Aug 2018 | The father is contacted by [X]’s (hobby) teacher. She tells the father the mother has been threatening and defaming her via the (hobby) school’s Facebook. | F9 P29 |
| 2018 | The father asks the mother if she will take [X] on her new days for (hobby). The mother sends the father a text stating, “You worry about your days and I’ll worry about mine.” | F9 P31 |
| 2018 | The father sees [Y]’s class room teacher. She tells the father that [Y] needs his 11.00am tablet. The father says he will speak with the doctor. | F9 P30 |
| Aug 2018 | The father calls [Y]’s doctor and the doctor’s voicemail says the doctor is away until 25 September 2018. The father decides he will leave some tablets at [Y]’s school so that the teachers can still dispense them. | F9 P30 |
| Aug 2018 | The mother is prescribed Valium and Endone. | S70 CHM ICL 16 |
| 7 Sept 2018 | The matter is listed for interim hearing. | |
| 4 Dec 2018 | ADVO hearing against the father is listed. | F9 P85 |
| NSW POLICE – s 67 -68 - issued by HANSONS | |||
| Records relate to: [PERSON 1] [PERSON 2] | |||
| Date inspected: | |||
| Tab | Document Type | Date | Contents |
| A15 | Incident Register – Ms McNeill | 24 May 2018 | Victim Ms McNeill POI Mr Pavone No fears held by Police no fears held by the victim …. At this time there are current family law Court Orders in place stipulating the PN has full custody of the children and victim has the children as per the parenting Orders. On Friday 11 May 2018 the PM was served with an AVO made by police on 9 May 2018 for the victim’s protection. At about 10:15am Wednesday 24 May 2018 the victim attending Police Station in relation to reporting an incident involving the PM. The victim had shown the police an SMS conversation thread between herself and the PM. It appeared that both parties contributed to the conversation. There were no threats made in any parts of the conversation however the victim had taken an exception to the person named not agreeing to pay to medications and the like. The victim told police that she has nil fears for her safety and police were of the same opinion. It would appear that the victim is reporting to the police that she is currently attempting to change family law Court Orders that list the person named as primary carer of the children. The victim did not wish for police to speak with the person named in relation to this matter as she feared it would escalate bad feelings between the two. Police believed the victim may be reporting to assist her with family law matters. |
| A15 | Incident Register – Ms McNeill | 24 May 2018 | “The vic told Police that she has nil fears for her safety and Police are of the same opinion. It would appear that the vic is reporting to Police as she currently attempting to change Family Law Court orders that list the PM as the primary carer of the children. About 10.15a.m. Wednesday 24 May 2018 the victim attended Police Station in relation to reporting an incident involving the PM. The vic has shown the Police an SMS conversation thread between herself and the PM. It appeared that both parties contributed to the conversation. …. The vic last made a Police report on 11 May 2018 with a similar no offence incident. Police believe that the vic maybe reporting to assist with her Family Law matters. |
| A16 | Incident Register – Ms McNeill | 20.02.18 | “At 8.10a.m. on Tuesday 20 February 2018 as a result of information received Police attended the residence of ….. inspection was then conducted over the carport gates at the western side of the premises and Police clearly observed a number of cannabis plants in the garden just over the fence. Police knocked at the door and spoke to the adult resident of the premises, the accused in this matter Ms McNeill. Advised the accused of the reason for their attendance before she was cautioned. The plants were photographed in situ before being removed. In total there were 3 plants. Two of the plants were approximately 1.2 metres tall and the third was about 60 centimetres. The plants had been secured down by hooks to grow sideways rather than up in order to minimize the chance of them being observed by passers by or neighbours. The accused then participated in a note book interview in which she admitted planting seeds to grow the cannabis plants and to tending to them as described above. She stated her intention was to smoke the cannabis on maturity and that this was for pain relief due to a serious injury sustained in 2016. The accused was advised she would be dealt with by way of future Court Attendance Notice to appear for the matters now before the Court. She was sentenced to a Section 10 Bond for 12 months. |
| A17 | Incident Register – [Y] | 25.06.18 | “Children have gone to informant’s mother’s house aa instead of getting picked up from school by father. Children [X] and [Y] 7 and 9 years old. Informant states there is a Court Order for the children to be with their father and now she is concerned she is in breach of the order. The children were booked into after school care by their father but failed to show up and informant found them there. … Informant alleges children avoiding father due to sexual assault. Children’s father Mr Pavone has just contacted Police stating [X] and [Y] are currently at their grandmother’s house. …. The mother was well aware of the arrangements and apparently well aware that the children had attended her mother’s home as she attended there before calling Police regarding her children being missing from after school care. Mother contacted Police seeking advice on what she should do claiming the children were frightened to be alone with their father and that she was required to hand the children over to him. She stated there was a Family Law Court order and required to hand the children over to him. …. The mother mentioned prior sexual related offences between the father and daughter from 2015. Event E … relates in which the father has been eliminated from investigation. CAR1 had been subjected to invasions of her privacy and demands from her father which could amount to sexual misconduct. Stating the child was not permitted to change her clothes or bathe without her father’s supervision and he insisted that she sleep in his bed at night. In speaking with CAR’s the Female CAR1 did not mention the incidents which her mother was concerned about stating only that she was afraid of her father. The male CAR2 was far more talkative using both vocabulary and grammar far beyond his years. He stated “during the incident at Easter this year, my father became very angry because I spilled a drink, he took hold of me by part of my body, I can’t recall where, he grabbed me by the throat and threw me across the room then came into my room and smashed all of my Easter gifts” Extremely articulate for a 7 year old boy. The mother claimed that these incidents had been reported but no reports can be located within COPS. The mother appears to be attempting to get Police to authorize her breaching a Family Law Court order to return the children to the permanent care of the father. Both parties were advised to comply with the Family Law Court orders as they were advised by their solicitors. …. |
| A18 | Incident Register – Mr Pavone | 12.05.18 | “On Friday 11 May 2018 the PN [Father] was served with an AVO made by Police on 9/5/18 for the victim’s protection. The PN has attended the children’s school and picked them up prior to school ending. PN went to victim’s mum’s house in Town G and the victim also attended. PN stated he was not allowing the victim to have the children and the victim threatened to call Police. The PN left the location and the children remained with the victim and grandmother. There are final consent orders in place that state the father can stop the visitation with the victim if he believes the victim is mentally ill or affected by drugs, he is the primary carer. The [Mother] wanted Police to prevent the PN taking the children which Police do not have the power to. This was explained to the [Mother] and advised that Police will continue on with AVO from a previous matter but this matter would only be a record. There was no threats or violence towards the victim or children. Children sighted and appeared fine. The victim was upset the PN tried to keep the children. |
| A19 | Incident Register – Mr Pavone | 09.05.18 | “At this time there are current Family Law Court orders in place stipulating when the victim has the children and when the accused has the children. At 6.10a.m. on Wednesday 9 May 2018 the accused has attended the victim’s address which was organised the night before to drop off the family dog so it could get a bath. While doing this the accused has also dropped off the victim’s children as he had to quickly do something without the children being with him. The victim unhappy with this has told the accused he had 5 minutes as she was getting ready for work. The victim has then got her children inside and put warm clothes on them as they were only dressed in shorts and a shirt and were freezing cold. About 6.50am the accused returned to the victim’s address and the victim has walked out the front and confronted him with how the children were dressed inappropriately for the early morning cold weather. The victim said “Where are the children’s singlets, where are the children’s pants and where are the children’s jumpers and jackets the children aren’t properly dressed for the weather they’re freezing cold, they’re chattering.” The accused said “Right the dog isn’t getting washed now where’s the dog, give me my dog.” The victim said “You left him on the front step. I don’t know where the dog is.” The accused said “If I don’t get my fucking dog back I’ll hit you over the back of the head with a shovel and I’ll be the one breaking into your house.” The victim said “That’s great you’re on CCTV cameras ….” About 8.15a.m. as the victim was leaving for work when she had noticed the accused had sent her a text message about the dog. The victim replied to the accused telling him she has contacted the Police and to not come back to her house. As the victim has walked out the front door of her house she has found the family dog in the front yard. The victim has immediately put the dog in the rear yard and went to work. The victim stated in relation to the threat made by the accused she is extremely scared and the accused has been violent towards her in the past. The victim feels she needs Police assistance in feeling safe from accused, hence her report of this to the Police. At this time the accused is to be contacted and spoken to about this allegation with a view to offer him an interview. An urgent ADVO has been applied for. Police are looking at charging the accused with DV intimidation. “…. “The victim is fearful that the accused will carry out his threat due to him being violent towards her in the past. ….. Accused to be contacted and spoken to, to be offered an interview with a view to charging him with DV intimidation”. |
| Incident Register – Mr Pavone | 10.05.18 | “The POI stated he was currently at home with his two children and was unable to attend the Police Station. Police spoke with the POI about the incident and the allegation made by the victim. The POI told Police that there had been a verbal argument with the victim and that it did relate to his dog. However, the POI denied 100% that he verbally threatened the victim at any stage and he also stated that this is something the victim has done/reported in the past. As a result of this Police have attended the POI’s address and served the Provisional ADVO on him so that victim protection is in place. Police also organised with the POI to attend Police Station at a later date so an electronically recorded interview can be conducted. As a result of this POI status in this investigation has been changed from ‘suspect’ to ‘not known at this stage’ pending the outcome of the electronically recorded interview | |
| A20 | Incident Register – Ms McNeill | 03.03.16 | “The caller has the children 8 days a fortnight, 6 days a fortnight with the father. The children returned today and are due to go with their father this coming Friday. The caller has concerns about neglect when in the father’s care. Currently going through a FLC for custody the current order is an interim order. The caller has taken photos of bruises on [Y]. They are dated. The caller didn’t have dates on hand for all the instances of concern. The injuries have been appearing consistently on [Y]’s body from July 2014, the bruises have appeared on varying parts of [Y]’s body. The caller stated that there have been grab marks on his arms, bruising on his buttocks, long bruise/graze/burn type marks on his stomach one from where his father kicked [Y] into the coffee table. A similar injury was sighted on 29 December 2015 however the caller doesn’t know how it happened. …. On 4 May 2015 [X] had blood oozing from the back of her ear. [X] disclosed that the father dragged her backwards by the ear. Confirm that the same happened to him. [X] came home with scratch marks on his back 2 January 2016. Caller told the FLC that she has photos of the injuries. The FLC told the caller to stop taking naked photos of the children. Since then the father has stopped hitting [X] to the body, he is now hitting him to the head. ….. This referral has been rejected as it does not meet the following JIRT criteria for physical abuse. |
| A21 | Incident Register – Ms McNeill | 13.02.15 | “Caller approached [X] about why she could come to school over the last few days and she stated “I couldn’t come to school cause someone was touching my rude parts.” Caller did not probe at all. Caller is aware the mother has a new job so hasn’t been home but knows that mother has a new partner. Caller made the assumption that the new boyfriend has been looking after [X] for the past few days. Caller does not know any details about the boyfriend. Caller stated that the Principal of the school also has suspicions that something is happening with [X]. Caller has not yet spoken to the Principal however her boss has. Caller stated that when it was time to go her mood dropped suddenly as soon as her mother walked in. [X] is not booked in this afternoon but will be in after school care from Monday – Thursday next week. Caller stated that the mother continues to forget to pick her up and caller also stated that she heard the mother is schizophrenic and when [X] first started in care mother would make strange calls to the service and caller wondered if the mother was under the influence of anything. ….. This referral has been rejected as it does not meet the following JIRT criteria for sexual abuse. The CP history of past UTI and allegations of [X] being indecently touched raise suspicion as to what is occurring for [X] at both her home and school life. Recommend CFC address this matter in consultation with education due to reported disclosure by [X] being touched on her vagina and bottom. …. |
| A21 | Incident Register – Ms McNeill | 26.12.15 | “About 9.45a.m. on Saturday 26 December 2015 Police attended in regards to a domestic incident. On arrival Police spoke with the victim who stated about 3.45pm on Sunday 25 December 2015 the POI attended her address to pick up the children whilst at the location the victim and POI have become involved in a verbal argument over the children and them not wanting to go stay with their father the POI. The victim and POI then began to argue over family payments and as the victim has turned to walk back into her premises it is alleged the POI using a closed fist has punched the victim to the back of her head. This has caused immediate pain to the victim to the point she states she was seeing stars. Victim states she fears for her life from the POI as he has links to gangs and the POI has been verbally and physically abusive towards her in the past. Victim supplied Police with a 4 page signed statement in office Police notebook outlining the incident. … On Thursday 8 January Police spoke with the POI, the POI was cautioned and the allegations put to him . The POI denied the allegations and stated, “I was involved in a verbal argument with my ex however she was at the side of my car yelling and screaming and the children were getting upset so I left.” The POI’s version appears to be more consistent with the events recorded on the victim’s mobile phone. The recording on the victim’s phone shows the victim verbally abusing the POI yelling and screaming at the POI with nil visible injury present in conflicting statements Police will not be laying any charges as they are unable to prove that the POI did assault the victim. |
| (Medical Centre) – s 70 – issued by APPLICANT/RESPONDENT/ICL | |||
| Records relate to: [PERSON 1] [PERSON 2] | |||
| Date inspected: | |||
| Tab | Document Type | Date | Contents |
| A3 | Complete record for Ms McNeill | Current medication – she was last prescribed Oxycodone on 21 August 2018. The last time she was prescribed Morphine was 11 June 2018 The last time she was prescribed Diazepam was 21 August 2018. | |
| A4 | Complete record for Ms McNeill | 21.08.18 – “in pain, not happy back pain obvious following house cleaning windows and walls after renovation”. Prescribed Endone and Valium | |
| A6 | Patient Summary Report produced by the Australian Govt Dept of Human Services addressed to Dr K | 01.02.16 | “Number of prescribers 7 Number of target items 10 Total number of items 12 Number of different items 4 “Prescription shopping information service. Please find attached a patient summary report containing your patient’s PBS information that was requested by you via the prescription shopping information service. We recommend that you advise your patient at the next visit that you have obtained this information from us. |
| A8 | Letter from the Pharmaceutical Benefits Branch addressed to Dr B at Town H Family Medical Practice | 15.09.2016 – one sent to all of her GPs | “We are writing in regard to Ms McNeill who has consulted with you and has potentially obtained more PBS medicine than they medically need during the period 1 April 2016 to 30 June 2016. This patient was identified under the prescription shopping program. We have enclosed a Patient Summary Report of the PBS medicines received by this patient for the specified period. “It appears that she was prescribed 230 tablets of Oxycodone, 205 tablets of Diazepam, 31 tablets of Temazepam, 180 tablets of Quetiapine, 56 tablets of Escitalopram |
| A9 | Letter from Dr N | 23.11.2017 | “Ms McNeill has attended her appointment in the pain clinic at Town C Hospital today 20 November 2017. I have not seen her since 2015. … The medications she is on are MS contin she takes 90mgs twice a day for the last year and a half. She also takes Endone up to 8 tablets a day together with Ibuprofen . Previously she tried fentanyl patches…. I did refer her to the pain management program when I saw her in 2015 but she did not attend because she was attending (Private Clinic) for alcoholism problem. … I would like to refer her to the Opioid Reduction Clinic run by Dr M because of the dose of narcotics that she takes. … |
| A10 | Letter from PBS to Dr A | 21.12.17 | “Application to prescribe morphine oxycodone for Ms McNeill … You are advised your application has not been approved for the following reasons: 1. Recent opioid treatment program history – Ms McNeill has previously been prescribed methadone on the NSW drug treatment program for the treatment of opioid dependence and was exited from the program on 2 April 2017. You were advised to refer the patient to the local Drug & Alcohol service by contacting (Medical Centre) via telephone number … |
| A11 | Letter from Dr M to Dr A | 13.12.17 | “Thank you for referring this 35 year old lady to opioid tapering clinic. … Widespread musco skeletal pain as a result of the motor vehicle accident 3 ½ years ago. Her pain is experience in the neck, left arm and lower back. She has other stresses amplifying her pain including working up to 12 hours a day as a (occupation omitted), managing the care of her 2 younger children as a single parent as she has been divorced in 2013. She is seeing Dr B recently I note that he has referred her to a group pain management program which I think will give her some of the skills required to address her pain and related issues. He referred her for hydro therapy as physical treatment. … She has difficulty tolerating a number of strong analgesics. These include codeine, targan, OxyContin, xxxxxx and opioids that rely on adhesives such as norspan and fentanyl which cause her to have an allergic skin reaction. Currently she is taking MS contin 90mgs in the morning and 60mgs at night. In addition she takes Endone 5 mgs 2 tablets5 times daily together she takes opioid equivalent dose of 230mgs morphine daily. In general doses beyond about 80mgs daily of morphine are strongly associated with adverse side effects and mortality. In addition she may have an opioid induced hyperalgesia causing increased sensitivity to stimuli which would otherwise not be noxious. Clearly Ms McNeill does need to taper her dose down and ideally she should stop opioids altogether and look for non opioid means to manage her pain ….. Ms McNeill’s preferred pain management is to slowly taper her MS contin and once this has stopped to then slowly taper the endone. … She has tried reducing her MS contin by 30mgs but is experiencing expected withdrawal symptoms. I think it would be better to reduce in smaller increments. I suggested she reduce her MS contin by 10mgs every fortnight. With this slow rate of tapering she may experience minor withdrawal symptoms for up to a week. Once she gets to below 100mg it may be preferable to reduce the dose by 5mgs each fortnight . … |
| A12 | Application for Authority to prescribe a Schedule 8 drug pain management | 24.01.18 | Prescriber name – Dr A |
| Application for Authority to prescribe a Schedule 8 drug | 28.02.18 | Which asks to prescribe morphine Do you consider this patient to be drug dependent? - Yes Do you have any of the following concerns? drug misuse. In the past, presently responding well. | |
| A13 | Letter from Dr M to Dr A | “She has managed to reduce her MS contin from a daily morphine equivalent of about 280mgs a day down to 70mgs a day over the last few months. She has experienced some withdrawal symptoms during this time. My preference would have been to swap her over to Norspan for a more gentle withdrawal and tapering of the dose but she preferred to stick with her self-managed withdrawal. Given her success so far I think it is reasonable to allow her to continue. | |
| A14 | Authority to issue Ms McNeill with no more that 130mg of morphine which was valid between 21-5-2018 and 21-6-2018 | Authority to issue Ms McNeill with no more that 130mg of morphine which was valid between 21-5-2018 and 21-6-2018 | |
| A15 | Letter from Dr M to Dr A | 20.07.2018 | “ I saw your patient for review today. She is not currently taking any MS contin. When I last saw her in April she was taking 70mgs daily. She sought my endorsement for prescribing Endone 2 tablets on an activity contingent basis. For example taking 2 tablets before she takes her children to activities such as (hobbies). On the face of it this does not seem unreasonable. However I think the risks of dose escalation are very high, particularly in view of Ms McNeill’s prior history. I was not however able to convince Ms McNeill. I put to her that she could take Polexia as an alternative strong analgesic. This has very low mu opioid activity and it therefore does not have the risk of escalation and addictive potential of the pure opioids. Again I was not able to convince Ms McNeill who thought that taking medication such as this is “poison”. I also suggested to her that she could have a therapeutic trial of an epidural at L4/L5 level. This could potentially give medium term relief and the procedure could be repeated if it was successful. She declined this option. |
| A16 | Letter from Dr S to Town C House Drug Rehabilitation | 22.02.2013 | “Alcohol abuse – wants to stop drinking”. At that time she had only been prescribed Maxilum” |
| A17 | Medication summary | 10.02.2017 | “Record number Doctor Shopper” |
| (MEDICAL CLINIC)– s 72- issued by APPLICANT/RESPONDENT/ICL | |||
| Records relate to: Ms McNeill | |||
| Date inspected: | |||
| Tab | Document Type | Date | Contents |
| A19 | Medical History | 15.12.2016 | “Her 7 year old son has been diagnosed as having ADHD. Issues - Her previous partner died in prison 2013. Says he is a bad person and drug dealer. She had another relationship which ended up due to physical abuse once he attempted to run her over and ended up causing a leg fracture January 2016. Single mum with 2 children 7 and 5 years from another relationship has had bad experiences exploitations in the past so she cannot trust anybody as there are lot of manipulative people. She can only her mum. Alcohol addict clean since February 2014. Ex drug addict. Has been involved in court cases for the last few years childhood not good but alcoholic dad used to bash him whilst mum watching it. Parents and sister live locally but not on good terms with her mother. Admission to Mental Health Unit in 2016. |
| A20 | Entry | 04.08.2016 | “[Mother] flying out of country to (country omitted) to attend her Aunty’s funeral tomorrow. Frozen low back pain appears to be in pain wants to try medical marijuana. Advised to contact Town C pain clinic. … has stopped xxxxxxx/Lexapro. Says I hate taking medication and I want to have a clear mind without medication. Told re doctor shopping in the last 3/12 advised against it. Told I may not be able to help her in the future when she is really in need of pain killers” |
| 02.06.2016 – motor vehicle accident | “Says 2 car accidents, first accident did not go to hospital second accident another car hit her from behind 28.05.2016 she went to hospital. There’s pain everywhere … Did not tell me that she saw Dr L. I told what Dr L told me. She said she did not get the scripts dispensed. She says she does not know where the scripts are. I told I do not believe her. She requested Tamas and pain killers. Declined. Offered Brufen. Patient declined. Strongly advised against doctor shopping. | ||
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Procedural Fairness
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