Radic and Rogers

[2018] FCCA 1336

FEDERAL CIRCUIT COURT OF AUSTRALIA

RADIC & ROGERS [2018] FCCA 1336

Catchwords:
FAMILY LAW – Parenting – 2 children – mother has long standing drug and alcohol abuse, mental health issues – family violence in mother’s house – repeated failure of mother to comply with orders – no evidence of mother having addressed her issues – long term supervision contact contraindicated – no time for mother.

Legislation:

Family Law Act 1975 (Cth), pt.VII

Federal Circuit Court Rules 2001 (Cth), rr.13.03A, 13.03B(2)(d)

Cases cited:
Betros & Betros [2017] FamCAFC 90

Applicant: MR RADIC

Respondent: MS ROGERS

File Number: NCC 627 of 2016

Judgment of: Judge Middleton

Hearing date: 1 May 2018

Date of Last Submission: 1 May 2018

Delivered at: Newcastle

Delivered on: 1 May 2018

REPRESENTATION

Counsel for the Applicant: N/A

Solicitors for the Applicant: N/A

Counsel for the Respondent: N/A

Solicitors for the Respondent: N/A

Counsel for the independent children's lawyer: N/A

Solicitors for the independent children's lawyer: Krstina Wooi

ORDERS

1. All previous orders be discharged.

2. The children [X] born 2013 and [Y] born 2008 (“the children”) live with the Father.

3. The Father have sole parental responsibility for the children.

4. The children spend no time with the Mother unless agreed to in writing by the Father.

NOTATION:

A.In the event the Mother is able to prove that there has been a material change in circumstances there should be no bar to commencing fresh proceedings.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 627 of 2016

MR RADIC

Applicant

And

MS ROGERS

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Background

1. This matter was listed before me today, in circumstances where the mother had failed to attend on the last occasion. The mother is present today. However, I have decided to finalise the matter, pursuant to rule 13.03B(2)(d) of the Federal Circuit Court Rules 2001 (Cth), as the mother has been in default, pursuant to rule 13.03A, on many occasions.

2. An interim hearing was conducted on 16 December 2016. 

3. On 21 December 2016, I delivered my reasons for decision and judgment. 

4. This matter involves two children:  [Y], born 2008, and [X], born 2013.  They have lived with their father since I made the orders, on 21 December 2016.

5. On that occasion, I made orders for the children to see their mother one day each week, for five hours.

6. I made an order for the mother to obtain a mental health assessment and for her to provide evidence of the assessment and diagnosis and treatment to the father or his solicitor. 

7. I also made an order for the mother to comply with any treatment regime prescribed by her doctor or psychologist. 

8. Since those orders were made, the mother has never complied with the order relating to a mental health issue. 

9. The issues, at that time, were the mother’s longstanding mental health issue, the mother’s longstanding drug and alcohol abuse, family violence in both the father and mother’s home, and the children’s psychological wellbeing. 

10. The issue relating to family violence in the father’s home has now been resolved. 

11. All of the issues surrounding the mother and her lifestyle remain on foot, and the mother has failed to provide any evidence to persuade me that she has addressed the issues.

12. On 21 December 2016, I ordered the parties to attend upon a family consultant, for the purpose of preparing a family report, pursuant to section 62G(2) of the Family Law Act 1975 (Cth). The mother failed to attend, and is in default, in relation to that order.

13. On 3 October 2017, I made a further order for the children to spend time with their mother, supervised, by the (omitted contact centre).  This followed an admission by the mother, to Hospital A, where she was seen by the mental health team, including a psychiatrist. 

14. On 23 March 2018, I suspended the orders for the children to spend time with their mother, after the mother failed to appear at Court.  Again, the mother was in default on that occasion.

15. On 6 April 2016, I made orders, by consent that the parties submit to hair follicle testing and submit to ongoing urinalysis.  The mother complied with the order for hair follicle testing and tested positive to cocaine use.  The mother has failed to comply with requests for urinalysis.  The latest three requests, since 3 October 2017, are evidenced by exhibit 2 in today’s proceedings.  The mother is in default, with respect to that order.

16. The proceedings were commenced on 11 March 2016 and, accordingly, they have been on foot for two years and two months. 

17. There was an attempt to hear the matter, by way of a final hearing, on 3 October 2017.  However, due to the mother’s admission at the Hospital A, in June of that year, and her admission to using cocaine, and her desire to address that issue, the trial was adjourned to allow the mother the opportunity to address the issues. 

18. The mother has been given over two years to address the issues first raised in March 2016, and she has failed to provide any evidence to satisfy me that she has addressed the issues.

19. I have grave concerns as to the impact that these proceedings have had and will continue to have on the children. 

20. Exhibit 2, 3 and 11, tendered during the interim hearing, satisfied me that [Y] was in need of psychological counselling, and I continue to be so satisfied. 

21. These children need respite from ongoing litigation, so as to protect them from being further exposed to psychological distress. 

22. I am satisfied that the mother has been given every opportunity to satisfy me that she has addressed the issues in her life.  I am satisfied that the mother has not addressed the issues in her life.

23. As the mother has been in default, on a number of occasions, I cannot be satisfied that the mother will comply with any orders I make, moving forward. 

24. It is in those circumstances that I propose to finalise the matter.

25. During this hearing, the mother tendered the notes from the (omitted contact centre)[1].  There were two visits that went well.  The children enjoyed their time with their mother.  It is evident, from the reading of those notes, that the children miss their mother and that they love their mother.  Notwithstanding those matters, the mother has not provided me with evidence that she is no longer a risk to the children.

    [1] Exhibit 1.

26. The mother submitted to the Court that she did not know how to get the relevant evidence to the Court that could satisfy me that she has addressed her mental health issues. 

27. Exhibit 3 is a letter to the mother, from the independent children’s lawyer, wherein the independent children’s lawyer requests relevant information so that she could, I anticipate, subpoena relevant doctors, hospitals, any rehabilitation centre and the like, that the mother has attended.  The mother simply did not respond.

28. Exhibit 4 are the notes from Hospital A, relating to the mother’s admission on 17 June 2017 until 20 June 2017. 

29. Those notes provide evidence of the mother’s diagnosis of an anxiety disorder and bipolar affective disorder, as at that time; the mother’s serious suicidal ideation, panic attacks and increased alcohol consumption; the mother’s binge drinking, increased cocaine use, her knowledge of alcohol dependence and increased drug use; her admission of engaging in escort work so as to support her alcohol and drug use; and her admitted violent relationship with her most recent partner. 

30. The notes provide proof that, upon discharge, despite numerous attempts by the mental health team to engage with the mother, she failed to engage at all. 

31. The notes provide evidence that the mental health team, subsequently, contacted the police, listing her as a missing person.  The police located the mother approximately one month after her discharge.

32. The family report, dated 25 May 2017, recommended that the father have sole parental responsibility and that the children live with him. Furthermore, until the mother could provide evidence that she is abstinent illicit drugs and her mental health is managed, then the children’s time should be supervised. 

33. It was further recommended that if the mother failed to attend on two separate occasions that time should cease.  It was subsequent to that report that the mother had the admission to Hospital A.

34. There is nothing in my reasons or my decision today that should be read as anything other than my interpretation of the evidence as it subsequently is, and the mother’s illness. 

35. I am not satisfied that the mother is deliberately failing to engage in this process or with her children.  I am satisfied that the mother has an illness that needs to be treated.

Proposals

1. The father filed an Amended Application on 29 March 2018.  He seeks final orders for the children to live with him, sole parental responsibility and that the children spend no time with their mother.

2. The independent children’s lawyer supports the father’s application. 

3. The mother seeks an order for ongoing supervision.

The Law

1. Although sometimes warranted, the Courts have long recognised that permanent supervision between a child and a parent is undesirable.  In Betros & Betros [2017] FamCAFC 90, the Full Court confirmed:

   ‘Conditions should usually be given to whether orders can be created to avoid the permanence of supervision or, if that is not practicable, some other order allowing the proposed supervised party to bring fresh proceedings to vary orders upon proof of changed circumstances, in the manner envisaged by Rice & Asplund (1970) FLC 90-725.’

2. In the circumstances of this case, as set out previously, I am not satisfied that a permanent supervision order is in the best interests of the children. 

3. As I cannot be satisfied, having regard to the years that have passed since commencement of the proceedings, that the mother will be able to address her issues so as to satisfy a Court that supervision is no longer warranted. 

4. This case really turns on the friction between the two primary considerations contained within section 60CC(2)(a) and (b) of the Family Law Act 1975 (“the Act”) and, of course, section 60CC(2A) of the Act must be applied.

5. The evidence supports a finding that the mother, at this stage, cannot provide a stable relationship with her children, despite her repeated desire to do so. 

6. This is a tragic case.  Should she continue to be allowed to spend time with her children, supervised, where there is every likelihood, based upon the evidence of her very long history of mental health issues, alcohol and drug dependence and risky lifestyle choices, that she will again relapse, and cause the children further disappointment and instability? 

7. Again, tragically, I am afraid that I must answer that question in the negative.

8. The risk to these children in spending unsupervised time with the mother are significant. 

9. There is the risk that they will be neglected.  [Y] has told the family consultant that she was required to put [X] to bed and to attend to him if he became unsettled at night.  She said she was “getting really exhausted and cranky, putting [X] to bed every night.”  [Y] was angry at her mum for making her responsible for [X]. 

10. Since the children have lived with the father, [Y] has expressed a view to the family consultant that she believed her mother blamed her for the change in residence, and that the mother was angry at her.

11. There is a risk of abuse.  The mother admitted to engaging in escort work to support her drug and alcohol use.  She admitted to dating men most nights so that they supplied her with drugs and alcohol.  There is a risk that this behaviour will lead to unknown men being in the mother’s home, whilst the children are present. 

12. The mother admits to increased suicidal ideation.  There is a risk to the children, in those circumstances, of either being harmed, physically, or exposed to psychological harm, should the mother follow through with those thoughts whilst the children are in her care.

13. There is the risk of exposure to family violence in the mother’s home, as the evidence supports a finding that there was family violence during the mother’s relationship with this father, that there was family violence during her relationship with Mr H, her subsequent partner, and that there was family violence between her and her mother when she lived with her mother.  [Y] reported being exposed to all of that violence, telling the family consultant that, on one occasion, she hugged her brother “very tightly while they hid”.

14. As I said, the risks are significant.  What little benefit the children would gain from supervised time with their mother, noting the risks involved with that time, as previously outlined, is greatly outweighed by the risks of harm to these children.

Section 60CC(3) matters that are relevant

60CC(3)(f) – the capacity of the parents to provide for the needs of the child

1. I am satisfied the father has the capacity to meet the needs of the children. 

2. I am not satisfied that the mother has the capacity to meet the needs of the children at this time.  I am hopeful that she will address her issues and that, ultimately, she will be in a position to do so.

60CC(3)(g) - the maturity, sex, lifestyle and background of the child and of either of the child's parents 

1. The mother’s lifestyle choices of alcohol and drug use, escort work at times, and significant dating of different men, admitted by her, is a risk to the children.

60CC(3)(i) - the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. The mother has demonstrated significantly poor insight as to the impact her lifestyle and untreated mental health issues will have on the children. 

2. In those circumstances, she has demonstrated, unfortunately, a very poor attitude towards her responsibilities as a parent. 

3. Conversely, the father has done everything within his power to provide a safe, stable and secure environment for the children.  He has demonstrated an excellent attitude towards his responsibilities as a parent.

Section 61DA – Parental Responsibility

1. As I said, there was family violence during the relationship that has been admitted to by both parents. 

2. In those circumstances, the presumption does not apply. 

3. In circumstances where the children will live with their father, and the mother has, as I have said, a longstanding mental health history, drug and alcohol issues and abuse, it is, in my view, in the best interests of the children for the father to have sole parental responsibility.

What of the Future

1. I am convinced that these children deserve to have both their mother and father participating in their lives. 

2. I am convinced that there is a benefit to the children if that were to occur. 

3. There is only one way that can occur, and that is if the mother uses this opportunity as a springboard to engage fully, in order to treat her outstanding issues. 

4. Should the mother address her issues and provide proof that she has done so, there should be no bar to her commencing further proceedings. 

5. It is, of course, for another Court on another day in the future to be satisfied, or not, as to whether the mother can prove that there has been a material change of circumstances, but I am of the view that, should she file evidence of such change, fresh proceedings should be allowed.

6. For those reasons, I am satisfied that it is in the best interests of the children that the following order be made.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Middleton

Date: 17 May 2018