PERCY & DENZEL

[2010] FamCA 175

FAMILY COURT OF AUSTRALIA

PERCY & DENZEL [2010] FamCA 175

FAMILY LAW – CHILDREN – Interim judgment – Best interests of the child –
Mother sought adjournment on day of final hearing to have an opportunity to obtain legal advice – Expert evidence that the mother is opiate dependent and this may impact upon her ability to parent – HELD – Adjournment granted – In the interim, in the best interests of the child that the mother have facilitated supervised time with the child

Family Law Act 1975 (Cth) ss 60CA, 60CC(1), 60CC(2), 60CC(3)

APPLICANT: Mr Percy

RESPONDENT: Ms Denzel

INDEPENDENT CHILDREN’S LAWYER: Jeanine Lloyd & Associates

FILE NUMBER: CAF 183 of 2006

DATE DELIVERED: 8 February 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 8 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms J. Godtschalk

SOLICITOR FOR THE APPLICANT: Gordon Garling Moffitt Lawyers

COUNSEL FOR THE RESPONDENT: Litigant in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms J. Lloyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Jeanine Lloyd & Associates

Orders

1. I confirm the existing order that K, born on … November 2003, will live with his father.

2. Orders relating to the time that the child spends with his mother will be suspended other than in accordance with the orders that follow.

   aProvided the mother gives not less than four day’s notice either in writing or by telephone or by e-mail the child will spend time with his mother at the Inter-relate Family Centre in E, one Saturday or Sunday per month to be nominated by the parents after they have consulted with the Inter-relate Family Centre and ascertained the availability of time for the child to spend that time with his mother.  I reserve liberty to apply if the times are unable to be satisfactorily agreed and the Saturday and Sunday in the month is unable to be agreed.  In default of there being agreement I would otherwise specify that the time that the child spends with his mother should be on the last weekend of each month but I leave it open to the parties to make an alternative arrangement if they wish to do so.

   bIn relation to the time that the child spends with his mother at the Inter-relate Centre she will be responsible for the fees charged by that organisation for the purposes of the supervision of the time that is spent there.  The father will be responsible for the costs of insuring that the child attends the session and returns from it to his home.

3. When the mother is able to either obtain legal representation or decides she wishes to proceed without it and has filed an affidavit in compliance with the directions previously given about the information required for the Court she may make application to a Registrar of this Court who will direct the matter to my attention to ensure that the finalisation of the hearing can occur as soon as possible after such notification.

4. The undertaking given by the father not to go to E until further order of this Court or in similar terms is discharged.

5. a.      In facilitation of the time that the child spends with his mother at the Inter-relate Centre each of the parents will attend upon that Centre as required by the Centre for the purposes of their in-take procedures. 

   b.The mother will attend upon the Centre as soon as practicable after the completion of the proceedings today and the father as soon as possible thereafter. 

6. The costs of today’s proceedings be reserved. 

7. The matter is adjourned to me in Chambers for review on Monday 15 March 2010, the parties need not attend.

IT IS NOTED that publication of this judgment under the pseudonym Percy & Denzel is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER:   CAF 183 of 2006

MR PERCY

Applicant

and

MS DENZEL

Respondent

REASONS FOR JUDGMENT

Introduction

1. In this matter, the proceedings before the Court were listed for finalisation of a Less Adversarial Trial between the mother and father of the child, K. 

2. The existing orders involved arrangements where the child lives principally with his father, and spends time with his mother on the basis of once a fortnight for the weekend, and for half the school holidays. 

3. The matter was scheduled to proceed this day, but was unable to do so because of the mother’s application for an adjournment.  The mother’s application for an adjournment is based upon her inability, as she relates it, to present the evidence she was directed to present in the course of the preparations for this finalisation during 2009.

4. The mother relates that she had an unfortunate experience with the Australian Capital Territory (ACT) Legal Aid Commission, and has been unable, so far, to obtain legal assistance through other sources, such as the pro bono schemes offered in the ACT and in New South Wales (NSW).  The mother sought an adjournment this day to enable her to obtain that assistance, and then to present the (necessary) evidence to the Court. 

5. At the same time, prior to the evidence prepared and filed pursuant to my directions on behalf of the child’s father, involved an affidavit from a specialist in the field of addictive drugs and related matters, Professor S.  Professor S is a consultant physician in internal medicine, addiction medicine and public health medicine based in Sydney.  He is also a Doctor of Medicine from Cambridge University and a Fellow of several Medical Colleges. 

The evidence of Professor S

1. Professor S’s evidence (which was quite short because of his limited availability that day), was based exclusively on material that had been obtained by subpoena from the mother’s treating medical practitioners from time to time.  It was that the mother suffered from opioid dependence.  This created a double risk so far as the child was concerned if he were with his mother.  The first of these was that her dependence and the driving force behind it meant that her use of drugs may become a central concern.  This may mean that she engages in the pursuit of that concern to the detriment of other activities – including her responsibilities as a parent.

2. The second risk associated with the opioid dependency was that there could be a lack of security for the drugs that the mother was taking, which meant that the child could be at some physical risk if he were to take the drugs either by mistake or otherwise.  I am assured by the Independent Children’s Lawyer that the latter event is unlikely to occur because of the fact that the drugs are secured in an “Esky” on top of the fridge in the mother’s house.  However, that falls short of a locked medicine cabinet, which was the strong recommendation of Professor S. 

Relevant Law & Discussion

1. If I am to grant the mother’s application for an adjournment, whatever orders I should make about the arrangements for K should be in his best interests,[1] and what is in his best interests is dictated in large measure by s 60CC(2) and s 60CC(3) of the Family Law Act 1975 (Cth). I am obliged[2] to take account of two primary considerations which are that K has the benefit of a meaningful relationship with each of his parents[3]  and that K be physically safe from any risk that may be occasioned to him by any of the arrangements that are proposed.[4]

   [1] Family Law Act 1975 (Cth) s 60CA refers.

   [2] Family Law Act 1975 (Cth) s 60CC(1) refers.

   [3] Family Law Act 1975 (Cth) s 60CC(2)(a).

   [4] Family Law Act 1975 (Cth) s 60CC(2)(b).

2. The first of these matters is really what these proceedings are about this day and the child’s father maintains that the child should have a relationship with his mother, but only in circumstances where he can be safe in doing so.  During the course of the application for adjournment, Ms Godtschalk on behalf of the father sought to amend his application to suspend the time that the child would spend with his mother, except for supervised time, until matters of concern, as related by Professor S, could be adequately addressed by the mother. 

3. The additional considerations I am to take account of under the Family Law Act 1975 (Cth) include what the child wants, his views,[5] the attitude of each of the parents to their responsibilities as parents[6] and the practical difficulties associated with the arrangements that might be put before the Court.[7]  There are other matters which, of course, are relevant as well and will be dealt with in more detail during the course of the final hearing before me.

   [5] Family Law Act 1975 (Cth) s 60CC(3)(a).

   [6] Family Law Act 1975 (Cth) s 60CC(3)(i).

   [7] Family Law Act 1975 (Cth) s 60CC(3)(e).

4. It is important that, above all, K’s safety should be preserved.  There is no doubt that the mother would argue, and does so vehemently, that no one has suggested in the past that she is unable properly to look after the child as a mother.  Indeed, the father’s application involved her spending weekends and holidays time with the child.

5. The evidence of Professor S was unequivocal that, as a result of the information he had received, which was a substantial body of information from the mother’s own medical practitioners (and presumably what she has told them from time to time) left him with no doubt that she was a person who had an opiate dependence.  That dependence is not something he suggested that could be overcome immediately, even if there were to be a total cessation of any use of the drugs immediately.  It would take, he felt, something in the order of three to four years if the mother undertook an appropriate course of treatment, as he outlined in the course of his report, in an eight-step program.[8]

   [8] My emphasis.

6. A further matter I am to take account of is the nature of the relationship the child with each of his parents.[9]  Unfortunately, because of the mother’s failure, at this point, to provide the material that I sought quite specifically some time ago, I have very little information or evidence about the nature of the mother’s relationship with the child.  I do note that there is evidence both from her and also from the father about what happens to the child when he is with the other parent.  Those allegations involved some suggestion on each side that there was some “flogging”, K’s word not mine, of him by each of the parents – and in one case by the father’s mother. Those allegations have never been adequately explored in these proceedings and will require some attention, no doubt in due course.

   [9] Family Law Act 1975 (Cth) s 60CC(3)(b)(i).

7. I am satisfied that the parents have a significant degree of antipathy to each other and this inhibits their ability and their willingness to encourage a close and continuing relationship between the child and the other parent.[10]  However, the application for an adjournment in this matter is contrary to the wishes of the father.  He has done what he could in the circumstances to continue to facilitate the relationship between K and his mother.

   [10] Family Law Act 1975 (Cth) s 60CC(3)(c).

8. The mother at this point, notwithstanding my invitation, has still not responded to whether she would be prepared to participate in arrangements which would enable her to continue some sort of relationship, unsatisfactory though it may be both to her and to her son, into the future.

9. There is also the fact that the change in the arrangements for K,[11] even on an interim basis, may cause some distress for the child.  There is no doubt, (as his father concedes,) that the child has affection and love for his mother.  However, that is a matter which is, in the circumstances, unavoidable because of the factors that I have previously outlined. 

   [11] Family Law Act 1975 (Cth) s 60CC(3)(d)(i) refers.

10. There are difficulties and expense associated with the child spending time with his mother.[12]  These have been brought about in part by the mother’s unilateral removal of herself from the area in which the child was then living.  This was principally a decision she made without consulting with the father to move from the area in which he was living, to E, NSW.  The effect of that was that it made it much more difficult and expensive for the parties to spend time with the child and, in particular, it made it impossible for there to ever be the shared parenting that the mother believed was appropriate.

    [12] Family Law Act 1975 (Cth) s 60CC(3)(e) refers.

11. The capacity of each of the parents to provide for the needs of the child[13] is a matter seriously in dispute before me.  I am unable to come to any satisfactory conclusion about those, particularly from the mother’s perspective, because of the lack of evidence before me about that.  I concede and acknowledge that the mother’s application for an adjournment is based upon her desire to ensure that that information is put before the Court.  The mother will have an opportunity to do so and I have indicated to her that when she is ready to proceed, this Court will deal with the matter as expeditiously as it possibly can. 

    [13] Family Law Act 1975 (Cth) s 60CC(3)(f)(i) refers.

12. However, at the moment the evidence I have, particularly the evidence of Professor S, is to suggest that there is at least a risk, and to some extent an “unacceptable risk”,[14] that if the child is with his mother, then she would not be able to provide for his needs in a way that would be appropriate for him or within the proper measure of his safety. 

    [14] On “unacceptable risk”, see the decision of the High Court of Australia M & M (1988) 166 CLR 69 & B & B [1988] HCA 66.

13. The attitude of each of the parents to K and to the responsibilities of parenthood[15] is also difficult for me to assess in circumstances where the evidence is so one-sided.  No doubt in due course, when the mother has, in colloquial terms, “got her act together” and presented the appropriate material to the Court, I will be in a better position to assess the comparative skills and abilities of each of the parents to maintain the responsibilities which are so important. 

    [15] Family Law Act 1975 (Cth) s 60CC(3)(i).

14. There are issues relating to family violence,[16] but they are issues which, at this stage, are largely inchoate and have been, to some extent, sublimated by the activities of both parents over the last year or so.  The allegations of the mother, however, remain a simmering potential for future concerns. I note that in these proceedings, (and I put it on the record because the mother has asked that I do,) that she says that she was not given information today or any of the information today which was presented to Professor S to enable him to compile his report and to give the opinions that he did.  I am informed, and again I am operating at this stage on the basis of what I am informed by either side in these proceedings that, in fact, that information, other than the most recent information from the mother’s treating doctor, has been given to the mother some time before today.  Precisely when and how is a matter of dispute and will unquestionably be canvassed again in further proceedings.

    [16] Family Law Act 1975 (Cth) s 60CC(3)(j).

15. I am not satisfied that the mother did not have the information in time to enable her to form an opinion about the sorts of questions she should ask, and I note that – although the mother claims that her cross-examination of Professor S was cut short – the question that she says that she wanted to ask which was to be of great significance, in fact, would not have assisted me in any way in coming to the conclusion that she would want me to come to.  She says that she wanted to ask if, in his opinion, any person who had been prescribed opiate or derivative drugs for an illness would therefore be incapable of properly looking after a child. 

16. That was not his evidence, nor was it a question that would have caused him, in my opinion, to change the evidence he gave, based on the diagnosis that he undertook and the conclusions he reached of the whole of the history of the whole of the matter.  Professor S was very careful to point out that his opinion was not derived from any particular part of the evidence, but from the whole of it, and the course of conduct over a longer period.

Conclusion

1. On that basis, it seems to me that I am obliged in granting the mother’s application for an adjournment, to make an order which, on a short term and on an interim basis, best safeguards the interests of K as I am now able to ascertain them based on the evidence I have before me this day. 

2. It is unfortunate that that means that there will be a reduction in the time that the child spends with his mother but that is the inevitable consequence of the evidence as it was presented today. I regret that the evidence that Professor S gave was perhaps unable to be explored as fully by the mother as she wished, but I am satisfied that the questions asked of him ultimately by me, by the mother, and by the Independent Children’s Lawyer, were such to provide the evidence that was required for the proceedings this day.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Legal Associate: 

Date:  5 March 2010