Purcell & Downing
[2023] FedCFamC1F 263
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Purcell & Downing [2023] FedCFamC1F 263
File number(s): BRC13537 of 2018 Judgment of: HOWARD J Date of judgment: 30 January 2023 Catchwords: FAMILY LAW – PARENTING – Undefended hearing – Where the mother failed to attend the final hearing – Best interests. Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Rice & Asplund (1979) FLC 90-725 Division: Division 1 First Instance Number of paragraphs: 45 Date of hearing: 30 January 2023 Place: Brisbane Applicant: No appearance Counsel for the Respondent: Mr Duplock Solicitor for the Respondent: A P Hodgson & Associates Counsel for the Independent Children’s Lawyer: Mr Cooper Solicitor for the Independent Children’s Lawyer: Life Law Solutions ORDERS
BRC13537 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PURCELL
Applicant
AND: MR DOWNING
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HOWARD J
DATE OF ORDER:
30 JANUARY 2023
IT IS NOTED:
A.That the maternal grandmother, Ms B, is not discharged from the undertaking provided by her on 15 September 2021.
THE COURT ORDERS ON A FINAL BASIS:
1.That the Application filed 22 November 2018 proceed as an undefended hearing.
2.That all previous parenting orders be discharged.
3.That the mother provide a copy of these orders to the maternal grandmother, Ms B, forthwith.
4.That the mother provide to the Independent Children’s Lawyer, by no later than 27 April 2023, the mother’s contact details and the contact details of the maternal grandmother – including both the current residential addresses and the current email addresses of the mother and the maternal grandmother.
5.That the child X born 2015 (“the child”) live with the father.
6.That the father have sole parental responsibility for the child.
7.That in the exercise of parental responsibility, before making a decision concerning the long-term welfare of the child, the father shall:
(a)communicate to, and advise, the mother by text message or written communication of the decision to be made;
(b)invite the mother’s input/contribution into the decision to be made;
(c)in the event that a written response is not received within seven (7) days, the father shall make such decision as may be required;
(d)in the event that the mother provides a response, the father shall consider the contribution and input being made by the mother, then make the decision; and
(e)upon making the decision regarding the child’s welfare, the father shall communicate the decision, in writing, to the mother demonstrating that he has taken into account the contribution, if any, made by the mother.
8.That the father shall communicate with the mother concerning but not limited to:
(a)which school the child should attend, including the type of schooling and school to be attended;
(b)surgery, hospitalisation and medical treatment for any serious injury, illness, condition or disability including attendance of the child for whatever reason upon a child psychologist, counsellor, family therapist or psychiatrist;
(c)decisions about religion and religious education and observance by the child;
(d)decisions about the child playing or being involved in sporting, cultural, artistic or community activity including competition, training or meetings; and,
(e)living arrangements, in terms of any changes thereto that would make it significantly more difficult for the child to spend time with the other parent.
9.That notwithstanding the provisions of these orders:
(a)the party having care of the child shall each be responsible for the day-to-day care, welfare and development of the child at all times when the child is living with them; and,
(b)in the event of an emergency the party who has care of the child shall be solely responsible for the child’s emergency care and treatment.
10.That the parties each have sole responsibility for the day-to-day care, welfare and development of the child while the child is in their respective care.
Time for the child with the mother
11.That the child shall spend time with the mother every second Sunday from 9.00am to 5.00pm and such time shall be supervised by the maternal grandmother, Ms B. During school holidays, in each alternate week, the child shall spend one full day with the mother from 9.00am to 5.00pm – and such time shall be supervised by the maternal grandmother, Ms B. In the event that Ms B is not available, time shall not occur on that occasion.
Progression to unsupervised time
12.That the mother shall take all reasonable steps to ensure that she:
(a)is engaging with a psychologist for support in relation to illicit substance use, responsible prescription drug use and emotional regulation;
(b)is not consuming illicit substances at any time;
(c)does not misuse prescription medication or other medication or substance;
(d)has stable accommodation;
(e)does not miss any visits without reasonable excuse;
(f)does not withhold the child beyond the time set out in these orders; and
(g)is not involved in or exposed to a domestically violent relationship.
13.That before 13 December 2023, the mother shall:
(a)engage meaningfully in a comprehensive mental health assessment and treatment;
(b)undertake counselling as to the effect of illicit substance use, prescription medication use and abuse and mental health issues;
(c)undertake such counselling for such period as directed by the treating professional;
(d)attend each session as required by the treating professional at the time required by the treating professional;
(e)engage in all reasonable requirements as indicated by the treating professional;
(f)undertake, at the mother’s cost, two (2) hair follicle tests three (3) months apart - for the purposes of illicit drug testing and prescription medication usage pursuant to the processes outlined at Orders 16 to 20 hereof with the results to demonstrate a negative result for the substances tested for; and
(g)file an affidavit attaching evidence of her compliance with this Order (Order 13) and Order 12.
14.That in the event that both of the mother's hair follicle tests are negative and, on the basis that the mother provides the affidavit as required by Order 13(g) – then the mother shall be permitted to make an application to the court to seek a variation of the mother's spend time arrangements with the child, and in those circumstances the mother will not be required to comply with the rule in Rice & Asplund (1979) FLC 90-725. The mother shall not file such an application until on or after 30 April 2024.
15.That for the purposes of complying with Orders 12 and 13, the mother shall forthwith engage with her General Practitioner to obtain the necessary referral to a psychologist for the purposes of counselling and treatment in relation to Order 13(b) and provide to both her General Practitioner and the treating professional(s), pursuant to s 121 of the Family Law Act 1975 (Cth) (“the Act”), a copy of the following reports (“the reports”):
(a)the Family Report prepared by Ms C;
(b)the two (2) Family Reports of Ms D dated 12 March 2021 (affidavit filed 16 March 2021) and 15 December 2022 (affidavit filed 21 December 2022);
(c)the Psychiatric Assessment of the mother by Dr E dated 7 July 2020 (affidavit filed 7 July 2020);
(d)a copy of this Order dated 30 January 2023; and
(e)a copy of the Reasons for Judgment dated 30 January 2023.
16.That for the purposes of Order 13(f) hereof as to hair follicle testing:
(a)The mother undertake hair follicle testing and for this purpose:
(i)she shall not dye her head hair on any and all regions/parts of her body;
(ii)she shall not cut her head hair on any and all regions/parts of her body; and
(iii)shall ensure that her head hair is at least 4cm in length at all times;
(b)The mother must provide a copy of this Order to Australian Workplace Drug Testing Services (“AWDTS”) when she attends for the purposes of hair follicle testing and for this purpose s 121 of the Act shall apply;
(c)The mother is to attend at AWDTS and submit to the supervised collection of a hair sample by the dates set out in Order 13(f) of these orders and provide the collector with photographic identification to be recorded before each hair collection and authority;
(d)The mother is to provide to the father and the Independent Children’s Lawyer a copy of the Custody and Control Form for each hair follicle test undertaken within three days of signing the Custody and Control Form;
(e)this Order authorises AWDTS to provide the results of each test directly to the father and to the Independent Children’s Lawyer via the following email addresses:
(i)for the father: ...@...;
(ii)for the mother: ...@...; and
(iii)for the Independent Children’s Lawyer: ...@...
17.That the hair follicle test is to be completed as a FO1/501 test to screen for methamphetamine, amphetamine, cocaine opioids, PCP and marijuana and such other illicit substance as regularly tested for and prescription medication consumption.
18.That AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body.
19.That AWDTS selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with international Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available.
20.That the mother shall be deemed to have failed the hair follicle test if the following occurs:
(a)She fails to attend for the testing procedure; and/or
(b)She cuts her head hair or dyes her head hair shorter than four (4) centimetres; and/or
(c)the result indicates that the mother is positive for illicit substance/the substance tested for; and/or
(d)the mother is charged with a drug related offence of whatsoever nature or kind; and/or,
(e)is admitted to hospital for polysubstance abuse or overdose.
Non-attendance for counselling and/or hair follicle testing/mother withholds child
21.That if the mother fails to:
(a)engage with her General Practitioner and psychologist pursuant to Orders 12(a) and 13 hereof; and/or,
(b)fails to complete the hair follicle tests pursuant to Orders 13(f) and 16 hereof and/or the results are positive for the substances tested
then time shall commence at a contact centre from the first visit after 31 July 2024.
22.That for this purpose, the parents shall do all acts and things necessary to register with Relationships Australia Suburb F Contact Centre or such other contact centre as agreed between the parents in writing, and the following shall occur:
(a)The mother shall provide a copy of these orders to the centre;
(b)The mother shall pay the costs of and incidental to supervised time;
(c)The mother and the father shall each pay the intake costs for the centre;
(d)The mother and the father shall follow all reasonable directives of the centre; and
(e)Time shall occur for not more than 2 hours per fortnight.
23.That time at the contact centre shall continue for not more than two (2) years subject to the contact centre provided that the mother:
(a)Follows all reasonable directions of the centre staff;
(b)Does not miss visits unless the centre considers the explanation to be reasonable; and
(c)The contact centre considers the mother has been compliant with the terms of these orders and all reasonable directions.
24.That time at the contact centre shall cease in the event the following occurs:
(a)the visits are not consecutive or consistent and for whatever reason (not accepted as reasonable by the centre) are broken or irregular;
(b)the mother fails to pay the fees the centre charges for time to occur;
(c)the mother fails to follow the reasonable direction of the contact centre staff;
(d)the contact centre ceases to facilitate time;
(e)the contact centre cancels further supervision of the child in the child’s best interests and give reasons to each of the mother and the father, in writing, as to why that has occurred; or
(f)the mother attends time at the contact centre in an intoxicated, inebriated or otherwise affected condition, slurs her words or is otherwise seemingly affected by alcohol, illicit substance or excess prescription medication;
25.That the mother be at liberty to send to the child letters, cards and gifts at all reasonable times and for special occasions.
26.That the father shall provide such letters, cards and gifts to the child promptly after receipt.
Handover – in the event time is to occur
27.That changeover take place at G Centre or such other location as is agreed in writing using a communication application, with changeover to be facilitated by the maternal grandmother.
28.That the mother shall not attend changeover.
Communication between child and parent/parent and parent
29.That provided that the mother has undertaken two (2) hair follicle tests with a negative result and has engaged with psychological support pursuant to Order 13 hereof, telephone time may occur on two (2) occasions in each week with the mother to telephone the child at times as agreed with the father in writing.
30.That the child be at liberty to contact the mother at all reasonable times and the father shall facilitate this provided the mother has undertaken all requirements pursuant to Orders 12 and 13 hereof.
31.That for the purposes of communication between the parents, the father and mother shall use mobile telephone communication application Our Family Wizard with the costs, if any, to be paid by the mother.
32.That the father shall keep the mother informed each two (2) weeks of the child’s progress over the preceding two (2) weeks by sending the mother a message via Our Family Wizard advising her of the child’s progress.
Counselling
33.That the father and mother engage with all counsellors appointed for the child, as reasonably directed by the child’s counsellor, and take the child to such sessions as may be required, for the child to engage in counselling with a psychologist or other counsellor as advised by the child’s General Practitioner (“treating professional”) for the purposes of obtaining an assessment, treatment and intervention as to any behavioural and emotional needs and to support the child in managing their situation.
34.That each parent be at liberty to be involved in the counselling to be provided to the child at such times and in such manner as directed by the treating professional and the parents shall follow all reasonable directions and recommendations of the treating professional.
35.That pursuant to s 121 of the Act the father is authorised to provide to the treating professional a copy of the reports as defined by Order 15 hereof.
36.That the parents shall forthwith take all reasonable steps to enrol and to undertake the Positive Parenting Program and, upon completion of the program shall provide to the other parent a copy of the certificate of completion.
Extra-curricular activities
37.That the father shall confer with the mother pursuant to the terms of Order 8 hereof, as to any extracurricular activity which may impact upon the child’s time with the mother and shall not enrol the child without making all necessary arrangements to support time pursuant to these orders whilst also accommodating the child’s attendance at extracurricular activities.
38.That for this purpose, the mother shall be kept informed by the father of the extracurricular activity scheduling and shall do all acts and things necessary to negotiate with the father as to a change of time arrangements to support the child’s attendance at the extracurricular activity.
Injunctions and Undertakings
39.That the parents are restrained from doing any of the following:
(a)discussing these proceedings in the presence or hearing range of the child or with the child;
(b)exposing the child to any aspect of these proceedings;
(c)asking questions of the child about his care in the household of the other parent, provisions made for the child, behaviour of the other parent or anything related to the household of the other parent;
(d)engaging in the use of illegal drugs and/or overuse of prescription medication, and/or consuming alcohol beyond 0.05% BAC in the forty-eight (48) hours prior to the child being in their care and during the time that the child is in their care;
(e)denigrating or speaking ill of the other parent or exposing the child to same and in the event that same does occur, to immediately remove the child from such circumstances;
(f)allowing any other person to speak ill of the other parent in the presence or hearing range of the child and in the event that same does occur, to immediately remove the child from such circumstances; and
(g)employing corporal punishment with or in front of the child.
40.That the parents shall take all reasonable steps to:
(a)remove the child from any environment where these proceedings are being discussed; and
(b)stop a third person from discussing these proceedings in the presence or hearing range of the child and in the event that same does occur, to immediately remove the child from such circumstances.
41.That the mother is restrained and an injunction is hereby granted from bringing the child into contact with the mother’s former partner Mr H, Mr J the former partner of Ms K ((former) partner of the father) or any other person against whom or with whom the mother has had a Domestic Violence and/or Family Protection Order.
Authorities
42.That this Order shall be an authority directed to the school to provide to the father and the mother, at their request and at the cost (if any) of the requesting parent, a copy of the child’s school reports, newsletters and other communications from the school concerning the child.
43.That the father be noted by the school the child attends as the person to be notified, when necessary, of all school and emergency matters and the father as the person to solely make all decisions regarding the child’s educational future.
44.That this Order shall be an authority directed to child’s medical practitioners to provide to the father and the mother, at their request and at the cost (if any) of the requesting parent, a copy of any medical or health information or records of the child that they are able to provide pursuant to the law and for the purposes of such, the mother is to provide to the father the details of the child’s doctor or doctors and other medical, counselling, psychological, allied health and dental practitioners, information as to the child’s health and wellbeing. The records are to be noted to include the father has sole parental responsibility for the making of all decisions regarding the health care of the child and noted as the person to be notified when necessary and involved in all decisions concerning the child.
45.That pursuant to s 121 of the Act, a copy of these orders be provided to the child’s school/extracurricular providers.
46.That pursuant to s 121 of the Act, a copy of the reports as defined in Order 15 be provided to the child’s medical/ health practitioners so that they may accurately refer the child.
Information Exchange
47.That each parent shall keep the other parent informed as soon as is practicable as to any significant medical or health-related issue concerning the child in writing by message through the communication application unless in an emergency, at which time telephone voice calls are permitted.
48.That the mother and the father keep each other informed as to any changes in their email address and contact telephone numbers, and advise the other in writing within forty-eight (48) hours of any such change.
Behaviour
49.That during the times the child is with any party that party shall respect the privacy of the other parties and the child and not question the child about the personal life of the other parties or the household in which the child spends time.
50.That without admission, no party is to abuse, insult, criticise or denigrate any other party, their respective partners, their family or their friends or any other person, nor expose the child to the conflict between the parents/parties, in the presence of, or hearing of, the child, and shall use their best endeavours to ensure that no one else does so, and shall remove the child from any environment where such behaviour is occurring.
Dispute Resolution
51.That the parties shall use the following process for resolving disputes about the terms or operation of these Orders:
(a)they shall consult with a Family Dispute Resolution Practitioner (“FDRP”) to assist in resolving any dispute or reaching agreement about changes to be made;
(b)they shall share the cost of the FDRP equally;
(c)in the event they cannot agree on an FDRP, the mother shall nominate three practitioners and advise the father in writing of their names, fees, and availability and where possible their experience;
(d)the father shall choose one of the listed practitioner’s and communicate his choice to the mother in writing within seven (7) days of the receipt of the list; and
(e)in the event the father fails to choose a practitioner and/or to communicate his choice then the mother is to choose the practitioner and communicate such choice to the father in writing.
Independent Children’s Lawyer
52.That the Independent Children’s Lawyer is directed to write to the maternal grandmother Ms B, at the address provided by the mother, advising:
(a)the role of the maternal grandmother as a supervisor to the mother’s time with the child;
(b)the requirement for the maternal grandmother to be present at all times and to stop time if she is genuinely concerned about the child’s best interests; and
(c)the provision of the brochure “Deciding Whether You Should Help With Supervision”.
53.That the Independent Children’s Lawyer shall be discharged as and from 30 April 2024.
Liberty to apply in relation to the interpretation of these Orders
54.That the parties have liberty to apply in relation to the interpretation of these Orders.
IT IS NOTED
B.It is noted that these Orders were made in the absence of the mother. The Court draws the attention of the parties to Rule 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Purcell & Downing has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J
A. These reasons were delivered ex tempore on 30 January 2023 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.
The matter before the Court is a parenting dispute involving one child, X, born 2015. X lives with his father, Mr Downing. There are interim orders for X to spend time with mother. His mother is Ms Purcell. Ms Purcell is the applicant in the proceedings. There is also an Independent Children’s Lawyer. The operative interim orders are those made by her Honour Judge Cassidy on 15 September 2021, whereby the child was ordered to live with the father and a further order was made that the mother's time with the child take place in the presence of the maternal grandmother.
The mother was also by those orders required to engage a psychologist, and she was also by those orders restrained from using or consuming illicit drugs. There was, in fact, a further order that said, even if the mother did not engage a psychologist, and even if there was no confirmation that she had stopped using illicit drugs, she was still permitted to see the child on alternate Sundays from 9.00am to 5.00pm. That time was always to be in the presence of the maternal grandmother.
The matter has been in the court system for quite some time. It seems that the first application in respect of these particular proceedings was filed on 22 November 2018. The first return date was in the Federal Circuit Court of Australia on 19 December 2018. As I noted earlier, the current operative orders are interim orders made by Judge Cassidy on 15 September 2021. The matter has been before me on more than one occasion. Certainly, on 11 March 2022, the Court after hearing from the parties, issued trial directions.
Lack of appearance by the mother
The matter was set down to commence on 31 January 2023. That date was subsequently changed to today, 30 January 2023. The change to the trial was made effective by an order of the Court in chambers on 13 December 2022. In that order of 13 December 2022, the parties and their legal representatives, if any, were required to personally attend Court today on 30 January 2023.The Court emphasised by way of Order 4 of the Order of 13 December 2022 that all other trial directions from the order of 11 March 2022 remained operative.
By those trial directions from 11 March 2022, the parties were required to file and serve one consolidated affidavit of evidence-in-chief and one affidavit of each witness intended to be relied upon, and those affidavits were required to be filed by no later than 4.00pm on 10 January 2023. The mother did not file a trial affidavit. The mother did not comply with Order 10 of those directions by filing a Case Outline document.
When the matter came to the Court on 20 October 2022, the Court made an order pursuant to s 102NA of the Family Law Act1975 (Cth) (“the Act”) that prevented the mother and the father from personally cross-examining the other parent at the hearing.
The mother, however, remained unrepresented, even though she would have been entitled, because of the s 102NA order, to legal representation under the Commonwealth scheme established some years ago. The mother failed to take up the opportunity to obtain, free of charge to herself, a solicitor and barrister for the hearing. I should add by way of clarification that, at some stage, the mother must have engaged a lawyer. At one stage, the mother had M Lawyers acting on her behalf, but they withdrew in late 2022. It then seems the mother engaged a firm called N Lawyers, but they withdrew late 2022. The inference that is available and which I draw, is that the mother failed to properly comply with reasonable requests made by the lawyers who were appearing on her behalf, or she failed to take their advice, leaving them in an untenable position. Whatever happened, the mother ended up unrepresented. The mother failed to file a trial affidavit or any affidavit updating the Court in relation to her current circumstances and the mother failed to file a Case Outline. On that basis alone, the Court would be proceeding today on an undefended basis. I note Order 5 of the order made on 11 March 2022 that said:
“5.That in the event a party or a party’s lawyer has failed to comply with an obligation imposed by these Orders (or any part of these Orders) then at the final hearing commencing on 31 January 2023 the Court shall consider:
(a) making a costs order against a non-complying party; and/or
(b) proceeding with the matter as an undefended hearing.”
In that order, it is noted that if a party fails to comply with an obligation imposed by those orders, then, at the final hearing in January 2023, the Court would consider making a costs order, and the Court would consider proceeding with the matter on an undefended basis. That is what has occurred, and it seems to me, given the failure by the mother to comply with the orders, that the matter should proceed on an undefended basis. There is, of course, the further glaringly obvious point to make, that the mother has failed to appear today. She is self-represented, but she has failed to appear and failed to attend Court.
The mother sent to the Court an email on 27 January 2023 at 1.28pm. The mother did not copy into that email the lawyers for the father, nor did the mother copy the ICL. I have only just had a read of that letter this afternoon here in Court. The mother had another letter sent at 9.33am today from an email address by the name of ‘Mr J’. No copy was provided to the ICL or the father. Copies of these pieces of correspondence have now been given to the parties. There is no mention in those two pieces of correspondence about the mother apparently contracting COVID-19, although the Court notes that a further email was sent by the mother at 12.11pm. Copies of that have also now been given to the ICL and the father. The mother failed to do that.
The mother, is seems, had telephoned the Court this morning. My understanding is, when people try to call the Court, they get the national inquiry line, and the mother has informed the Court certainly by this email that she has had a positive “rap test” for COVID, and she asks for a short adjournment. She also wants a recommendation for X to be tested despite the “father’s disbelief in the epidemic”. I am going to include the full text of this email that was sent at 12.22pm:
“Good. Morning Associated Justice Howard,
As per this mornings phone call, I have since had a positive rap test for Covid. I ask please for a short adjournment, aswell as recommendation for our son [X] to be tested despite his father's disbelief in the epidemic, as it seems to have been passed around between [X] to [L], to mum and myself.
I apologise for the late email. I spoke with as did my mother when I Called her . I'm. Very weird. But I do need this matter before Honourable Justice Howard as a matter of urgency due to the extreme bias nature, contempt of court, contraventions made by [Mr Downing] in both our matter and [Ms K] & [Mr J].
My sincere apologies, I have waited for this day for the truth to be revealed and that it will be.
Kind regards,
[Ms Purcell].”
(As per the original)
The email from the mother is concerning in that it indicates an inability to express herself clearly. I note from the third paragraph:
“I apologise for the late email. I spoke with as did my mother when I called her. I’m. Very weird. But I do need this matter before Honourable Justice Howard as a matter of urgency due to the extreme bias nature, contempt of court, contraventions made by [Mr Downing] in both our matter and [Ms K] v [Mr J].”
The manner of expression used by the mother indicates some lack of coherent thought and some lack of coherent thought processes. In some respects, it is a stream of ramblings. That particular email will be marked Exhibit 1. The mother is essentially seeking an adjournment, then, because she has COVID. There are several things to say about that. Firstly, there is no evidence that the mother has COVID. Evidence, of course, requires sworn testimony. There is no affidavit. There is no other form of sworn testimony to confirm that the mother has contracted the COVID virus. For instance, there is no medical certificate. There is not even a copy of perhaps a photograph indicating a positive test for COVID, though that would not be sufficient anyway. What would be required is some sworn testimony to confirm who took the test. To the extent that it amounts to an application for an adjournment, it is dismissed. Granting an adjournment involves the Court exercising discretion. The Court can only exercise discretion if there are grounds upon which the discretion can be exercised. That is to say, there needs to be some evidence upon which the Court could reasonably exercise a discretion to grant an adjournment. There is no such evidence.
In light of the fact that the mother failed to file an affidavit, failed to file a Case Outline, and furthermore, the mother has failed to appear as ordered at the hearing, it seems to me in the circumstances there is an inevitability to the outcome in terms of the matter proceeding as an undefended hearing. Both Counsel for the father and the ICL, Mr Duplock and Mr Cooper respectively, have made submissions along those lines.
The procedure to be adopted is well documented in a number of cases decided by the Court. My intention is to read the material relied upon by the parties. I will then hear submissions from those parties who are in attendance at the Court. I will then give my decision in relation to the parenting orders for the child.
Parenting Orders
The matter before the Court relates to parenting orders in respect of the child X. X was born 2015. The mother is the applicant. Her name is Ms Purcell. The father is the respondent. His name is Mr Downing. The parents had only a very short relationship measured in weeks rather than months or years. The child has, for some significant time, been living primarily with the father. The matter came on for final hearing today. I have provided some reasons earlier as to why the matter would be proceeding on an undefended basis. Primarily, this relates to the mother’s failure to comply with the trial directions, and it also relates to the mother’s failure to appear at Court today.
I have heard at some length from Mr Cooper of Counsel on behalf of the ICL, and I have heard from Mr Duplock of Counsel on behalf of the father. At the Court’s request, the father gave some brief evidence by way of update. It is apparent from what he has had to say that X is continuing to go to spend time with the mother. That time is in the presence of the maternal grandmother. That relates to an order that was made on 15 September 2021 by her Honour Judge Cassidy. By that order, the maternal grandmother, Ms B, was to be present when the child spent time with the mother. Now, I note that the order is in the presence of the maternal grandmother in Order 5(b) of the September 2021 order. It is not an order for supervision in the strict sense.
In this particular case, the Court has heard submissions from those parties in attendance. I have conducted the hearing in the accepted manner which applies in an undefended hearing. The Court is required by s 60CA of the Act to regard the best interests of the child as the paramount consideration in making a particular parenting order. Under s 60CC within Part 7 of the Act, the legislature has then set out how it is that a Court is to determine what is in the child’s best interests. I have had regard to the primary considerations in s 60CC(2) and, in particular, s 60CC(2)(a). I am aware of the benefits to young X of having a meaningful relationship with both parents. Section 60CC(2)(a) and s 60CC(2A) loom large in this case, because they are primary considerations relating to protecting the child from physical or psychological harm.
There are risk factors in this case which need to be outlined in some detail. For a reasonably significant period of time, the mother has been subject to orders of the Court in relation to drug testing. The father also has been subject to orders relating to drug testing. The evidence does disclose, though, that the child has lived primarily with the father for a significant period, and the evidence discloses, and I am satisfied having heard from the father, that he does not pose a risk to this child in relation to his parenting of the child.
The ICL has provided in the Case Outline a summary table concerning the requests for drug tests and the results. I note that this starts at page 52 of the Case Outline. Insofar as this particular table regarding hair follicle and other drug testing is concerned, I note that there is also evidence confirming all of this in the various affidavits of Ms O, the ICL, which have been relied upon.
In each year that the litigation has been ongoing, there has been present in the mother’s system certain illicit drugs, including most recently in November 2022. There is no further explanation from the mother as to the reason for that. The mother has, in the past, been addicted to an illicit substance. Because of this reasonably lengthy history of illicit drug taking by the mother, and, it seems more recently, her history of abuse of prescription drugs, the Court is understandably wary in relation to what parenting orders can be made in the best interests of X.
Of most concern to the Court is the fact that a request was made on 17 October 2022 by the ICL. The mother complied with the request on 16 November 2022 and an illicit substance was revealed in the chromatography. Under the hair follicle test, there was illicit substances. A request was also made early 2023, but the mother did not comply with that test. Neither did the father for that matter, but the father has appeared in Court and sworn documents, and the father has given evidence, and there is no evidence to suggest that he is not in a position to parent the child.
There are very, very grave questions about the mother’s ability to parent the child and to spend time with the child unsupervised. The presence of an illicit substance in the mother’s system in November 2022 required some detailed explanation from the mother. No such explanation has been forthcoming, because she has not filed a trial affidavit. The drug issues are risk issues so far as the child is concerned. There is the lack of insight displayed by the mother in failing to accept responsibility for her conduct and her actions. There is a history of a domestic violence order with the mother being the respondent and the father the aggrieved. Not a lot hangs in the balance so far as the domestic violence order is concerned in the context of this case. The more concerning issue relates to the mother’s use of illicit drugs and her inappropriate use of prescription medication.
Other risk issues include the mother’s mental health. There is a report from some years ago from Dr E. I have had regard to that report. I note a lot of the report is couched in careful terms relating to what might or might not be the case depending upon whether the Court makes certain findings concerning the mother. But, of course, the mother has not shown up for the hearing so I am not in a position to make findings of fact beyond drawing inferences from the mother’s conduct, the mother’s actions, and the mother’s failure to comply with orders.
There is evidence, for instance, to show that the Queensland Ambulance Service has been required to assist the mother in the past because of her illicit drug history. There is evidence from the father of the mother’s suicidal ideation. I gather from what Dr E has to say, the mother downplayed those issues. The maternal grandmother may also not be completely cognisant of precisely what occurred or did not occur although she, it seems in the past at least, has had to contact the ambulance service for her daughter.
The risk issues are well noted and I will address those in terms of what orders can be made to reduce the level of risk to the child. Because of the mother’s non-attendance and because of the recent drug test result from late last year and the mother’s failure to explain it as well as the mother’s failure to comply with the more recent request, it seems to me that there is no way around the fact that there needs to be supervision of this child’s time with the mother. The initial position of the ICL today was that the Court ought to make an order for supervised time from the outset, but it seems to me that to turn an unacceptable risk into an acceptable risk in the circumstances of this case, what will be required is a supervision order. It will not be sufficient to make an order that time occur in the presence of the maternal grandmother. Supervision is required.
I am inclined to make an order that the grandmother, Ms B, be the supervisor, but there will be certain other orders that the mother will have to comply with. It seems to me that the time should be supervised by the maternal grandmother every second Sunday from 9.00am till 5.00pm. The mother will then be required to provide two clear drug tests. These will need to be hair follicle tests. They are to be conducted through the company known as Australian Workplace Drug Testing Services (AWDTS). The two tests need to be provided within a nine-month period, but they need to be three months apart. They both need to be clear and there will be an order that AWDTS provide the result to the ICL directly.
I will also require the mother to file and serve an affidavit showing that she has obtained a mental health plan from her general practitioner and proving that she is consistently attending upon a psychologist to receive counselling in accordance with a mental health plan. This plan should address the mother’s history of illicit drug use and any mental health issues suffered by the mother, or at very least, address the mother’s ability to parent the child.
If the mother complies with the orders, she will be permitted to make an application back to the Court to vary the orders with a particular view to, if it is in the best interests of the child, remove the need for supervision by the maternal grandmother. If the mother fails to provide the two clear drug tests within the timeframe, or if the mother fails within the timeframe to provide the affidavit relating to the mental health plan – if she fails on any of those counts, time will have to then be supervised at a contact centre. If this occurs, time with the child will stay at the contact centre for two more years. After the additional two years at the contact centre, the mother will have to apply to remove the supervision requirement, but the mother will need to be aware of these reasons which state very clearly that she would likely only be successful in such an application if she could produce evidence that she was consistently free of drugs and that she was consistently receiving support by way of counselling in respect of her mental health.
I do note that reference was made earlier to alcohol being a risk factor here, too, from the mother’s perspective and that should form part of the orders relating to the drug testing and the mental health plan.
As I said earlier, there is no evidence to confirm that the mother has COVID. The mere fact that somebody says, “I have COVID” is not sufficient, in my view, to prove to the Court that they do, in fact, have COVID. This is especially so in circumstances where the individual has failed to comply with other Court orders, and the presence of the COVID explanation from the mother - or more aptly, the excuse from the mother - arrives only on the morning of the final hearing.
I am not prepared to accept, as I said earlier, an email from a parent saying that they have COVID in circumstances where there has been a continual failure by that parent – in this case the mother – to comply with Court orders. The mother failed to file and serve a trial affidavit, failed to file a Case Outline, failed to comply with drug test requests in early 2023. The mother has, over time, been given significant chances by the Court, including from Judge Cassidy’s Order of September 2021. The mother was required to do certain things, but she did not do them. So in the circumstances, it seems to me that the Court really has no alternative but to proceed on an undefended basis. Now, ordinarily the procedure that I adopt is to give each person a chance to be heard.
Because I do not accept that the mother actually has a legitimate excuse for not being here - I do not accept that she could not have come along and made a submission in relation to the orders, even though she had not filed a trial affidavit or a Case Outline. I do not consider it necessary to provide this mother with some further opportunity to be heard. She has had every opportunity to be heard. She has had every opportunity to file material. She has failed to do so. She has not proven to the Court’s satisfaction, as required by the Evidence Act 1995 (Cth), that she has any disease or illness that would prevent her attendance here today.
The further point I would make is this. The evidence is overwhelming. The evidence to support the making of these orders is overwhelming. There seems to me very little anyone else could add, even from the mother’s position, based on the material before me. It is not as though the mother would be able to point to some recent affidavit of her own to show that she is now getting the proper counselling and that she is now drug-free. She has no such evidence, so I think there is a certain inevitability to the situation, which has convinced me that the Court does not need to take any further step to provide this mother with some even further opportunity to be heard in relation to the appropriate orders.
I note from the most recent report of Ms D that she has made recommendations in paragraph 11. Obviously, the child will have to live with the father, and I agree with the proposed orders that the father have sole parental responsibility and noting that the way they were framed by the ICL is appropriate, that he consult with the mother, but if there is no agreement, he has the final say. There does not seem to me to be any other way that this is going to work given the issues I have raised with risk so far as the mother concerned – the illicit drug taking and the failure so far to attend upon a psychiatrist. Paragraph 11.5 of Ms D’s most recent report makes the point that the mother should be providing to the Court feedback from her psychiatrist, psychologist and general practitioner.
Of course, that has not happened. That has not been done by the mother. I would have thought the mother should have looked at all of these things in the lead-up to the trial and complied with everything, but she really has neglected all of this. There was a recommendation there from the report writer for every second Saturday or Sunday from 9.00am until 5.00pm, supervised by the grandmother, and that will be the order. It will also be supervised, not merely occur in the presence of the grandmother. Supervision is required, and the ICL will need to write to the grandmother, making it very clear what is expected. The other time in the school holidays as per paragraph 11.3, supervised by the maternal grandmother, is also appropriate.
With the telephone calls, because there is an ongoing supervision order, I am concerned about the mother speaking to the child without any supervisor, which is essentially what would happen if the mother was ringing the boy. I apprehend from the submissions made by Mr Duplock that the telephone time has been problematic. The mother needs to comply with the orders detailed previously in regard to clean drug tests and complying with a mental health plan. If she does comply with these orders, then telephone calls twice a week at an agreed time may proceed, but that is only if the mother gets the clear drug tests and provides the affidavit on complying with a mental health plan.
I do not consider it necessary to go into any further issues. I do think that it is also probably a good idea for the father to provide the mother a brief fortnightly update in relation to the child, including health issues, school reports, sporting events or other relevant matters. I have had regard to all of the family reports, although I am not going to refer to each of them individually. I have had regard to Dr E’s report. I have had regard to the Case Outlines, the affidavit material that is being relied upon by the father and the ICL. I am aware that in the past the mother has filed material. It is very difficult, though, to rely upon or even refer to any of it. One affidavit here is going on two years old. There is nothing by way of update. A lot of what the mother did when she did swear material related to criticisms of the father, complaints. There does appear to have been a distinct lack of accepting of responsibility by the mother.
I have had particular regard to, and I accept, the evidence of Ms D who did interview the maternal grandmother recently, and Ms D was obviously impressed enough by Ms B to come to the conclusion that she should be the supervisor, and I am willing to accept her recommendation. This report is very recent, having been filed in December 2022. I do note there have been a couple of occasions recently where the mother failed to return the child or the grandmother failed to return the child after time. Now, as part of the ICL’s explanation to the grandmother, I want the ICL to make it very clear that the child has to be returned on time.
I have also had regard to the other provisions of s 60CC, that is, all the subsections in s 60CC(3). I have noted young X’s wishes. Of course, they are the wishes of an eight year old, and there is a lot of risk factors that he has been shielded from, it seems to me, mainly shielded by his father but also shielded – I infer from the evidence – by the maternal grandmother. I have had regard to all of the other subsections of s 60CC(3), and I have touched upon many of those subsections without referring to them specifically. For instance, I have touched upon the capacity of the parents to provide for the needs of the children and the mother’s capacity to provide for the needs of the child have been compromised by her conduct and her various drug taking. The mother has – for instance, by reference to s 60CC(3)(ca) – failed to fulfil her obligations to maintain the child.
I have no reason to doubt that the mother loves the child. The mother just needs to address certain issues to the satisfaction of the Court in compliance with the orders the Court is going to make that will enable her to continue to parent the child and spend time with the child. There is no way this matter could proceed to unsupervised time with the mother at this stage. There is certainly no evidence to support anything like that, and there is no evidence to support a shared care arrangement or anything remotely approaching that. I have had regard to the family violence evidence. I have tried to frame orders that take into account s 60CC(3)(l) to put in place orders that would be least likely to lead to the institution of further proceedings.
There is no need for the Court to say anything further about s 60CC(h). It will be apparent that I take the view that the mother has not accepted the responsibilities of parenthood. Section 60CC(3)(i) relates to that issue.
The presumption of equal shared parental responsibility is rebutted (s 61DA). The risk issues identified by the Court and the need for supervision are sufficient to satisfy the Court that it is not in the best interests of the child for there to be an equal shared parental responsibility order, and as I have already said, the order will be for sole parental responsibility. There being no order for equal shared parental responsibility, the Court is not required to go through s 65DAA, although as I have already said, there is no evidence to support the making of any of the orders contemplated by s 65DAA of the Act. I will give the ICL a week to send in some draft orders that reflect the reasons.
The orders contemplated by the Court will give the mother an opportunity – and it really will be a final opportunity – to comply with the Court orders. That is to say, if the mother provides two clear drug tests in the time period ordered – those drug tests must be three months apart – and if the mother provides the affidavit ordered, then the mother within an 18 month period of today is permitted to apply back to the Court, without the need to satisfy Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”), and ask the Court to make different orders. If the mother, however, does not, comply with the orders, then the mother’s time with the child will move to a supervised contact centre.
If time moves to a contact centre, it will be at the mother’s expense. It will stay at a contact centre until the end of January 2025. In that time, the mother will be able to apply to the Court, of course, but it seems to me that she will need to overcome the threshold expounded in Rice & Asplund. After the two year period at the contact centre, time will have to end, because it is not in this child’s best interests to have an indefinite period of supervised time at a contact centre.
Indeed, even after two years, if she can show a significant change in circumstances, then a Court may let her back in if she complies with Rice & Asplund. There is a certain never-ending nature to parenting proceedings, provided people can show a significant change in circumstances. But I agree with the submissions on behalf of the ICL – there does need to be some conclusion to the supervision. It is not in the best interests of X to have supervised time at a contact centre indefinitely. This mother will have every opportunity to comply with orders that, frankly, are not terribly onerous, but this really will be her last chance, and she needs to step up to the plate. I am satisfied it is in the best interests of the child to stop supervision at a contact centre after two years have elapsed, and the ball is very much in the mother’s court.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 30 January 2023
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