Roche & Donato (No 2)

[2023] FedCFamC2F 1225

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Roche & Donato (No 2) [2023] FedCFamC2F 1225

File number(s):

ADC 3736 of 2021

Judgment of:

JUDGE DICKSON

Date of judgment:

25 September 2023

Catchwords:

FAMILY LAW – PARENTING – final hearing – ten year old child – consideration of best interests of the child – parental responsibility – where both parties have a history of illicit substance abuse – where the mother was the primary caregiver up until 2018 – where the father is now the primary caregiver – where the child has allegedly been exposed to drug usage and potentially dangerous circumstances and dangerous individuals in the mother’s care – where the mother has been late to or failed to submit to requests for drug testing – orders made for the child to live with the father and spend supervised time with the mother moving to unsupervised time upon the mother returning a series of negative drug tests

Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC and 61DA.

Cases cited:

Betros & Betros [2017] FamCAFC 90

Goode & Goode (2006) FLC 93–286

Division:

Division 2 Family Law

Number of paragraphs:

178

Date of last submission/s:

14 August 2023

Date of hearing:

16, 17, 18 and 24 May 2023, and 14 August 2023

Place:

Adelaide

Counsel for the Applicant:

Mr Boehm

Solicitor for the Applicant:

Brite Legal

Respondent:

Self-Represented

Counsel for the Independent Children's Lawyer:

Ms Fuda

Solicitor for the Independent Children's Lawyer:

Ms Atchison

ORDERS

ADC 3736 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR ROCHE

Applicant

AND:

MS DONATO

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE DICKSON
DATE OF ORDER:	25 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.All previous parenting orders are hereby discharged.

2.The father have sole parental responsibility for the child X born in 2012 ('the child') subject to paragraph 3 herein.

3.Before the father makes any long-term decision concerning the care, welfare and development of the child, he shall notify the mother by email of his proposal and give to her at least seven (7) days to respond, and shall consider the mother's views in relation to any decision that he may make for the child.

4.The child live with the father.

5.The child spend supervised time with the mother as follows:

(a)From 10:00am to 4:00pm commencing Saturday, 30 September 2023 and each alternate Saturday thereafter;

(b)From the conclusion of school (or 3:30pm if a non-school day) to 7:00pm Tuesday commencing Tuesday, 3 October 2023 and each intervening Tuesday thereafter;

(c)From 10:00am to 4:00pm on 25 December 2023 (Christmas Day); and

(d)At such other times as agreed in writing between the mother and the father.

6.All time spending as set out in paragraph 5 herein shall be supervised by Ms B, or such other supervisor as agreed between the mother and the father in writing or in default of agreement at the C Contact Service in City D (‘the Contact Service’).

7.The Independent Children’s Lawyer do forthwith facilitate the filing and service of an affidavit from the said Ms B which shall:

(a)Annex a copy of the Legal Services Commission of South Australia Brochure entitled ‘Should I supervise Contact?’; and

(b)Confirms that the said Ms B has read the brochure, understands her role and obligations as a supervisor and is prepared to undertake such a role.

8.On or before 20 December 2023 (but no earlier than 4 December 2023) being three months from the date of these Orders, the mother undergo drug testing pursuant to the hair follicle analysis process for the purpose of detecting any illegal drugs and/or substances and for the purpose of such testing the provision of the sample is to be personally supervised and observed by a qualified medical practitioner or an authorised delegate of Mobile Drug and DNA, in accordance with the chain of custody protocol specified in AS/NZ 4308:2001 with the mother to provide to the father the written results of such testing forthwith upon receipt of same with the costs of such testing to be the responsibility of both parties equally with the father to pay his half share to the testing agency and confirm same in writing to the mother.

9.ON CONDITION THAT the hair analysis testing pursuant to paragraph 8 herein is negative for illicit substances, then as and from the production of such test results to the father, the child spend supervised time with the mother:

(a)From 10:00am Saturday to 10:00am Sunday and each alternate weekend thereafter;

(b)From the conclusion of school (or 3:30pm if a non-school day) to 7:00pm Tuesday, and each intervening Tuesday thereafter;

(c)On Mother’s Day in the event that it does not coincide with a period of weekend time as provided for herein, from 10:00am to 5:00pm; and

(d)At such other times as agreed in writing between the mother and the father.

10.All time spending as set out in paragraph 9 herein shall be supervised by Ms B, or such other supervisor as agreed between the mother and the father in writing or in default of agreement at the Contact Service.

11.That the parties are at liberty to vary the dates and times of the supervised time spending as set out in paragraphs 5 and 9 herein to suit the availability of the supervisor Ms B or such other supervisor as the parties may agree in writing.

12.On or before 15 May 2024 (but no earlier than 1 May 2024) being five months since paragraph 8 herein, the mother undergo drug testing pursuant to the hair follicle analysis process for the purpose of detecting any illegal drugs and/or substances and for the purpose of such testing the provision of the sample is to be personally supervised and observed by a qualified medical practitioner or an authorised delegate of Mobile Drug and DNA, in accordance with the chain of custody protocol specified in AS/NZ 4308:2001 with the mother to provide to the father the written results of such testing forthwith upon receipt of same with the costs of such testing to be the responsibility of both parties equally with the father to pay his half share to the testing agency and confirm same in writing to the mother.

13.ON CONDITION THAT the hair analysis testing pursuant to paragraph 12 herein is negative for illicit substances, then as and from the production of such test results to the father, the child spend unsupervised time with the mother:

(a)From the conclusion of school (or 3:30pm if a non-school day) Friday to 6:00pm Sunday and each alternate weekend thereafter;

(b)From the conclusion of school (or 3:30pm if a non-school day) to 7:00pm on Tuesday and each intervening Tuesday thereafter;

(c)In the short school holidays, the time on Tuesdays be extended to commence at 10:00am and to conclude at 6:00pm;

(d)On the child’s birthday from 10:00am to 3:00pm; and

(e)At such other times as agreed between the parties in writing.

14.On or before 15 October 2024 (but no earlier than 1 October 2024) being five months from paragraph 12 herein, the mother undergo drug testing pursuant to the hair follicle analysis process for the purpose of detecting any illegal drugs and/or substances and for the purpose of such testing the provision of the sample is to be personally supervised and observed by a qualified medical practitioner or an authorised delegate of Mobile Drug and DNA, in accordance with the chain of custody protocol specified in AS/NZ 4308:2001 with the mother to provide to the father the written results of such testing forthwith upon receipt of same with the costs of such testing to be the responsibility of both parties equally with the father to pay his half share to the testing agency and confirm same in writing to the mother.

15.ON CONDITION THAT the hair analysis testing pursuant to paragraph 14 herein is negative for illicit substances, then as and from the production of such test results to the father, the child spend unsupervised time with the mother:

(a)During school terms from the conclusion of school Friday (or 3:30pm if a non‑school day) to the commencement of school Monday (or the commencement of school on a Tuesday in the event of a public holiday Monday), and each alternate weekend thereafter;

(b)During school terms from the conclusion of school (or 3:30pm if a non-school day) to 7:00pm on Wednesday and each alternate Wednesday thereafter;

(c)During the short school holidays, from the conclusion of school Friday (or 10:00am if a non-school day) to 5:00pm the following Wednesday in accordance with the usual rotation of time spending referred to in paragraph 15 (a) herein;

(d)During the Christmas school holidays from the conclusion of school Friday (or 10.00am if a non-school day) to 5:00pm the following Wednesday and each alternate week thereafter following the usual rotation of time spending referred to in paragraph 15(a) herein;

(e)For Christmas 2024, and each even year thereafter, from 2:00pm on 25 December 2024 to 2:00pm on 26 December 2024;

(f)For Christmas 2025, and each odd year thereafter, from 2:00pm on 24 December 2025 to 2:00pm on 25 December 2025;

(g)From the conclusion of school (or 3:30pm if a non-school day) on Maundy Thursday 2025, and each odd year thereafter, for five (5) consecutive nights thereafter and concluding at the commencement of school the following Tuesday (or 10:00am if a non-school day);

(h)On the child’s birthday, if not already in the mother’s care:

(i)If on a school day, from the conclusion of school to 7:00pm;

(ii)If on a weekend or non-school day, from 10:00am to 2:00pm; and

(i)At such other times as agreed between the parties in writing.

16.Notwithstanding any other order made herein, the child shall spend time with the father as follows:

(a)In 2024, and each even year thereafter, from 2:00pm on 24 December 2024 to 2:00pm on 25 December 2024;

(b)In 2025, and each odd year thereafter, from 2:00pm on 25 December 2025 to 2:00pm on 26 December 2025;

(c)From the conclusion of school (or 3:30pm if a non-school day) on Maundy Thursday 2024, and each even year thereafter, for five (5) consecutive nights thereafter and concluding at the commencement of school the following Tuesday (or 10:00am if a non-school day);

(d)On the child’s birthday, if not already in the father’s care:

(i)If on a school day, from the conclusion of school to 7:00pm;

(ii)If on a weekend or non-school day, from 10:00am to 2:00pm; and

(e)At such other times as agreed between the parties in writing.

17.In the event that the mother returns a hair follicle test as provided for herein positive for illicit substances, then all such time spending shall revert to the time set out in paragraph 5 herein and thereafter the progression of time and supervision (including the dispensing of the requirement for supervision) shall recommence in accordance with the timeframes as set out in paragraphs 8, 12 and 14 herein.

18.For the purpose of all hair follicle testing as provided for herein, the mother is restrained from shaving, bleaching or colouring her hair from the date of this order until the last such hair follicle test has been completed pursuant to paragraph 14 herein.

19.For the purpose of all hair follicle testing as provided for herein, the mother is required to maintain her head hair at a length of not less than five (5) centimetres from the date of this order until the last such hair follicle test has been completed pursuant to paragraph 14 herein.

20.Within ninety (90) days of the date hereof each of the parties do all necessary acts and sign all necessary documents to cause an Australian passport to issue for the child with such passport to be at the father's sole expense and to be held by the father.

21.In the event that the mother fails or refuses to execute any document necessary to obtain an Australian passport for the child, then the requirement for the mother's consent shall be dispensed with.

22.In the event it should prove necessary to do so and upon an affidavit of such refusal or neglect to execute any document necessary to obtain an Australian passport for the said child and pursuant to section 106A of the Family Law Act 1975 (Cth), a Judicial Registrar of this Honourable Court is hereby authorised to sign all such documents as shall be required.

23.The father shall provide the mother with no less than sixty (60) days advanced notice of any intended international travel for the child including provision of an itinerary and contact details, and that the father shall provide the mother with make-up time for such period foregone during any period of international travel within sixty (60) days upon his return to the Commonwealth of Australia on dates and times to be agreed between the parties in writing or in default of agreement as nominated by the mother.

24.The child do communicate with the mother by FaceTime as follows:

(a)On Monday and Thursday of each week at 6.00pm for a maximum of thirty (30) minutes for each such call; and

(b)To facilitate such FaceTime communication the mother shall telephone the child on the father’s mobile telephone and the father shall make the child available to receive each such call.   

25.The father do complete the 'Kids Are First' program with E Centre and do provide proof of completion to the mother within fourteen (14) days of such completion.

26.The father do complete the 'Men's Behaviour Change' program (or such other like program if this is unavailable) with C Contact Service and do provide proof of completion to the mother within fourteen (14) days of such completion.

27.The father be restrained by way of injunction from consuming alcohol to excess during any period when the said child is in his care.

28.That the appointment of the Independent Children's Lawyer is hereby discharged upon the completion of paragraph 7 herein.

THE COURT FURTHER ORDERS BY CONSENT THAT:

29.Subject to any other Order herein, all handovers that do not occur at the child's school shall take place by the father delivering the child to and collecting the child from the mother's residence.

30.Each party inform the other and keep the other informed of their contact telephone number, residential address and any changes thereto within forty-eight (48) hours of any change.

31.Except as otherwise provided in these Orders, the parents shall communicate on all issues regarding the care, welfare, development, health, education, sporting activities, extra curricula activities and time spending arrangements via the co-parenting app, AppClose or such other co-parenting app as may be agreed between them from time to time.

32.Both parents are hereby authorized to obtain such information from the child's school as is usually provided to caregivers including but not limited to school reports, school newsletters and school photographs and to attend such events/functions to which caregivers are usually invited to attend including but not limited to school assemblies, school concerts, Sports Days and Parent/Teacher interviews.

33.Both parents are hereby authorized to provide information to, obtain information from and attend appointments with any GP, medical specialist, dental practitioner, allied health professional, psychologist, counsellor and/or therapist with whom the child may consult from time to time.

34.Both parents shall follow any recommendations of the child's s treating GP regarding accessing any mental health support including obtaining a GP Mental Health Care Plan.

35.The parties be restrained, and injunctions are hereby granted restraining each of them from:

(a)Abusing, denigrating, insulting, or rebuking the other, the other's partner or family members in the presence of or within the hearing of the child or allowing any other person to do so;

(b)Discussing these proceedings or any allegations in these proceedings in the presence of or within the hearing of the child or allowing any other person to do so;

(c)Posting any information on any social media platform regarding these proceedings, any allegations made in these proceedings, the other party, the other party's partner or allowing any other person to do so;

(d)Consuming illicit substances whilst the child are in his or her care or facilitating the child having contact with any person doing so;

(e)Knowingly bringing the child into contact with or leaving her in the care of any person who is under the influence of illicit substances or allowing any other person to do so;

(f)Having drug paraphernalia in their possession or home whilst the child are in his or her care or facilitating the child having contact with any person who is in possession of such items; and

(g)Allowing the child to travel in a vehicle with an unlicensed/disqualified driver.

36.The Mother be restrained and an injunction be granted restraining her from permitting the child to come into direct or indirect contact with Mr F.

37.That all extant applications are hereby dismissed as finalised.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE DICKSON:

INTRODUCTION

1. These are the Court’s Reasons for Judgment following a Trial between the Applicant Father, Mr Roche (‘the father’), and the Respondent Mother, Ms Donato (‘the mother’), in relation to their child X born in 2012 (‘X’).

2. At the time of Trial, X was 10 years old and attended G School.

   DOCUMENTS RELIED UPON AT TRIAL

3. The father filed an Outline of Case Document on 12 May 2023 which sets out that he relies upon the following documents:

   (1)Amended Initiating Application filed 27 March 2023;

   (2)Trial Affidavit filed 27 March 2023; and

   (3)Trial Affidavit of Ms H filed 10 May 2023.

4. The mother relies upon the following documents:

   (1)Response to Application for Final Orders filed 8 May 2023;

   (2)Trial Affidavit filed 13 May 2023; and

   (3)Notice of Risk filed 8 May 2023.

5. The Independent Children’s Lawyer filed an Outline of Case Document on 13 May 2023, and relies upon the following documents:

   (1)Family Assessment Report dated 9 June 2022 prepared by Ms J; and

   (2)Affidavit of the Independent Children’s Lawyer filed 25 April 2023.

   EXHIBITS TENDERED AT TRIAL

6. The father has tendered Exhibits F1 to F4 inclusive.

7. The Independent Children’s Lawyer has tendered Exhibits I1 to I5 inclusive.

   ORDERS SOUGHT AT TRIAL

8. The father had initially sought the time remain supervised at the C Contact Service in City D (‘the Contact Service’) indefinitely. ‘Exhibit F1’ set out the father’s amended position by way of final orders at Trial.

1. The mother sought orders as set out in her Response to Final Orders filed 8 May 2023.

2. The Independent Children’s Lawyer sought orders as set out at pages 1 to 3 inclusive of her Outline of Case Document.

3. A Minute of Order setting out the final orders which could be made by consent is ‘Exhibit I5’.

   CENTRAL ISSUES TO BE DETERMINED AT TRIAL

4. The issues to be determined at Trial are summarised as follows:

   (1)Parental Responsibility;

   (2)The living arrangements for X with each parent and any issues of risk that may arise which would impact on her care; and

   (3)Whether or not there should be any conditions attached to X’s living arrangements consequent upon the Court making findings of risk. Specifically, should X’s time with her mother be supervised and limited until the mother has provided negative hair follicle tests for illicit substances.

   BACKGROUND AND RELEVANT CHRONOLOGICAL EVENTS

5. The father is aged 36 years and works as a factory worker.  The mother is aged 34 years and is unemployed. The parties reside in the community of City D in South Australia. 

6. The father and his domestic partner, Ms H, have one child, K, born in 2022.

7. The parties commenced cohabitation in or about 2005.

8. There is a factual dispute between the parties as to the date of separation. The mother alleged that the parties separated prior to the birth of X in 2012 whilst the father alleged that the parties separated in or about 2013. The actual date of separation is not important to the current dispute given the agreed position that following X’s birth, the mother was her primary carer and that the father had little, if any, time with her.

9. There is also no dispute that during their relationship, both parents were users of illicit drugs. The father concedes that, as a consequence of a “full-blown” drug addiction, he lost his home and ended up before the Courts ultimately convicted of a multitude of offences arising from his chaotic and drug addicted lifestyle.[1] The father admits to several periods of incarceration, and with the longest sentence period being six months.[2]

   [1] The father’s criminal antecedent history is ‘Annexure -1’ to his Trial Affidavit filed 27 March 2023.

   [2] See the Affidavit of Mr Roche filed 27 March 2023 at paragraph 10.

10. The father’s criminal charges proceeded in the Treatment Intervention Court where he was subjected to intense supervision, drug counselling and drug testing. It is the father’s evidence that as a consequence of this assistance, he has remained abstinent from illicit substances and is committed to new life with his partner and child.

11. In 2018, and now free drug free, the father reconnected with X by agreement with the mother. Those arrangements proceeded well with X spending increasing time with the father including overnight periods. The mother concedes that X spent more time with the father in this period so that she could care for and spend time with her own mother who was terminally ill. [3]

    [3] See the Affidavit of Ms Donato filed 13 May 2023 at paragraph 14.

12. In 2019, the maternal grandmother died. The maternal grandmother had a close relationship with the mother and X, and had been their primary support. The father alleges that he observed “a clear escalation” in the mother’s use of drugs after the death of the maternal grandmother. The father alleges that the mother lost her accommodation, her appearance became “gaunt” and care of X became “inconsistent”[4] The mother denied the allegations of drug use but concedes that she personally struggled following the death of her mother.

    [4] See the Affidavit of Mr Roche filed 27 March 2023 at paragraph 18.

13. In early 2019, the father alleged that the mother commenced living in motels or “couch surfing”, including times when the child was in her care. The mother agrees that she was asked to leave her home by her step-father after the death of her mother. The mother moved into a hotel for six months and acknowledged asking the father to care for X while she secured “more stable accommodation”.[5]

    [5] See the Affidavit of Ms Donato filed 13 May 2023 at paragraph 19.

14. At Trial, the father conceded that he “turned a blind eye” to these concerns across 2019 and 2020. His blasé attitude to such matters changed when the mother commenced attending handovers in the company of persons whom the father recognised from his past life as drug users. In addition, the father alleged that due to her chaotic lifestyle, the mother would fail to collect X from school or would not return X to him until very late at night, even on a school night.

15. Due to his concerns, the father attempted to formalise a co-parenting arrangement with the mother. In response, the mother withheld X during the period 17 July 2021 to 5 August 2021.

16. On 6 August 2021, the father commenced parenting proceedings for X.

17. On 27 August 2021, orders were made by the Court following argument for the child to live with the father and spend time with the mother for five nights per fortnight. In addition, the Court made orders for the mother to undergo a hair follicle test on or before September 2021, and urine testing, at the request of the father’s solicitor. An Independent Children’s Lawyer was appointed for X.

18. The mother did not comply with the requirement to undergo a hair follicle test alleging that she could not afford the costs of the test.

19. The mother provided urine tests negative for illicit substances in August 2021 and September 2021.

20. On 16 November 2021, the interim orders were confirmed by consent, and the Court ordered a Family Assessment Report be prepared. The Court also ordered that the mother continue to undergo urine drug testing at the father’s expense.

21. In early 2022, the mother commenced a relationship with Mr F. The criminal antecedent history of Mr F produced by way of subpoena is ‘Annexure 8’ to the father’s Trial Affidavit. At Trial, the mother conceded that Mr F had been a bad influence on her life.

22. Over the weekend of 12 and 13 March 2022, the mother travelled to Melbourne with X. The purpose of this trip was the subject of significant cross-examination at Trial. The father alleged that the mother was participating in a “drug run” using a hired motor vehicle. The mother denied the allegation asserting that the trip had been to assist a friend who had been a victim of domestic violence.

23. On 15 March 2022, the father requested the mother undertake a urine drug test and/or a hair follicle test. The test result was not provided to the father until April 2022. The test recorded as negative, [6] however low levels of “illicit type substance” below the cut off of 300ug/L were detected.[7] The mother alleged that the traces of illicit drugs was due to “environmental exposure.”

    [6] See the Family Assessment Report dated 9 June 2022 at paragraph 72.

    [7] See the Affidavit of Mr Roche filed 27 March 2023 at ‘Annexure 6’.

24. In this period, the father also offered, on three occasions, to pay for the mother to undertake a hair follicle test. He alleged that the mother failed to reply. The father filed a Contravention Application which he later withdrew.

25. In early 2022, officers from the South Australia Police attended on the mother’s residence looking for Mr F.

26. After observing the mother’s presentation at a handover and on 18 April 2022, the father requested in writing that the mother undergo a supervised urinalysis drug screen test in accordance with the Court orders. The mother did not provide a sample at the pathologist until 21 April 2022. The test result was negative for illicit substances.

27. On 9 June 2022, a Family Assessment Report (‘the Family Report’) was published by Family Consultant, Ms J. At interview, the father was proposing a shared care arrangement and the mother proposed that the child primarily live with her and spend substantial time with the father.

28. On 1 July 2022, the father filed an interim application seeking to reduce the mother’s school term time care of the child because of his concerns about the mother’s lifestyle and the matters raised in the Family Report. Paradoxically, the father proposed that X spend half school holidays with each parent, including the long Christmas school holidays. Further orders were sought in relation to drug testing and injunction to prevent any contact between X and Mr F. The mother opposed any reduction in her time spending. The interim applications were heard and determined on 24 October 2022.

29. In late 2022, the father observed officers from the South Australian Police present at the mother’s home as he drove to G School.

30. On 30 September 2022, the father issued a subpoena directed to South Australia Police.

31. On 24 October 2022, interim parenting orders were made following argument. The father had not sought that the argument be deferred until production of the material from the police was made available.

32. The father alleges that in late 2022, a male person attended at the mother’s residence with a firearm demanding drugs.[8] The father learnt of this incident from mutual friends of the parties in December 2022. The mother did not deny that this incident occurred.

    [8] See the Affidavit of Mr Roche filed 27 March 2023 at paragraph 86.

33. In December 2022, the father inspected materials provided pursuant to the subpoena referred to in paragraph 38 herein. A Summary Occurrence Report recorded items seized by the police from the mother’s home including “cannabis, illicit drugs, drug paraphernalia and mobile phones.”[9]

    [9] See the Affidavit of Mr Roche filed 27 March 2023 at ‘Annexure 13’.

34. The father withdrew time spending. The parties were unable to resolve time spending at a Family Dispute Resolution Conference on 14 December 2022. The father enrolled at the Contact Service.

35. On 16 December 2022, the mother attended at X’s school and collected her pursuant to the orders.

36. On 20 December 2022, the father filed a further interim application seeking that all time between the mother and X be suspended and for the mother to spend supervised time at the Contact Service.

37. On 21 December 2021, time spending orders were suspended during the period of the adjournment and orders made for supervised time pending the mother filing answering documents.

38. On 25 December 2022, the father alleged that the mother failed to spend time with X at the home of his mother for Christmas Day.

39. On 18 January 2023, the interim applications were determined. Orders were made for X to spend supervised time with the mother at the Contact Service pending Trial as proposed by the father and the Trial date was confirmed.

40. The mother failed to register with the Contact Service until March 2023. On 18 March 2023, X finally commenced spending time with her mother. The mother conceded in her evidence that she had been “hesitant” to enrol at the Contact Service because in her opinion “I didn’t think it was the best thing.”

41. A report from the Contact Service dated 23 April 2023 sets out the family’s contact with the said Service from 25 January to 22 April 2023 inclusive.[10]

    EVIDENCE

    [10] See the Affidavit of Ms Nicola Atchison, Independent Children’s Lawyer filed 25 April 2023 at ‘Annexure A’.

    The Father

42. The father gave frank and open evidence about his past drug addiction, exposure to the criminal justice system and his concerns for X. Whilst the father could recall content, his memory as to specific dates was less reliable with the father acknowledging during his evidence that he was “having trouble with dates”.

43. It is the father’s evidence that when he was addicted to illicit drugs he was not a good parent, his judgement was clouded and that he associated with “bad people”. He stated that he had not used illicit drugs for approximately five years. I accept his evidence that under the influence of drugs, he was not a good parent because he was not aware that his judgement would be clouded which, in turn, put X at risk.

44. The father is in a unique position to comment on his present concerns about the mother’s alleged drug use because they used drugs together as a couple and lived a lifestyle immersed in the drug world. He described in his oral evidence having been very familiar with the mother’s partner, Mr F when he (the father) “used illicit drugs”.

45. I accept the father’s evidence that he had raised with the mother his concern about X’s poor attendance at school. The father’s evidence was that the mother would make up excuses such as X being unwell, that she had “car troubles” or that there would simply be no response at all. The father described the mother becoming increasingly “unreliable” in late 2021 and early 2022 and sometimes turning up to handovers at 11:00pm on a weeknight. He stated that X smelt as if she was “unwashed” at times with her personal hygiene not being attended to in the mother’s care.

46. The father was open and accepting of his past behaviour having been unacceptable both in his oral evidence and at interview with the Family Consultant. Whilst having told the Family Consultant that he had “…. no issues with anger since becoming sober”[11] recent events suggest otherwise. The father acknowledged that in early 2023, he had engaged in an “immature” incident with Ms H’s (now deceased) father at a family event. He described the incident as mutual “yelling and shoving” after he had consumed seven cans of alcohol. Ms H senior had taken exception to the father calling his daughter, Ms H, “a bitch”. The father conceded that X was present during the incident and would have heard him use the derogatory language to Ms H.

    [11] See the Family Assessment Report dated 9 June 2022 at paragraph 40.

47. Under cross-examination by the mother, the father stated that there had been no other incidents at his home and no involvement by the police. He agreed that X would have heard him “yelling” at the mother on one occasion. The father’s evidence was given frankly and with no attempt to gloss over his poor behaviour.

48. The father described his current communication with the mother as “not great” and that any conversations between he and the mother “flared up pretty quick.” He has been assisted by Ms H in this regard and with the parties recently commencing use of the ‘AppClose’ application.

49. At Trial, the father admitted in the past having shown X text messages between the parties in order to prove to X that what the mother had told her was “a lie.”

50. The father confirmed his view that the mother, when not using or under the influence of illicit substances is a “good mother” to X. He conceded that when the mother is “clean” that he had no concerns that X would come to harm. Conversely, it is his strong opinion that when the mother “is on drugs” then X is at risk. He conceded having told X that her mother is “on drugs” when supervised time commenced at the Contact Service. When challenged by counsel for the Independent Children’s Lawyer about the need to do this, he explained that he thought X needed to know that her mother was making “poor decisions due to the drugs and not because she didn’t love her.”

51. The father in his oral evidence stated that X “…is very protective of her mother.” The father in fact goes further by alleging at Trial that since 2019, the mother had treated X as a “friend and counsellor” rather than acting in a parental role. Further, that the mother has been emotionally manipulative by telling X, for example, that the father “had made her cry.”  

52. The fact that the father was yet to complete a parenting course nor the Men’s Behavioural Change programme as ordered by the Court at the time of Trial, did not reflect well on him. It is especially ironic given that the father complains of the mother not complying with Court orders as to drug testing. The father agreed under cross-examination that if he had done the behaviour course as ordered, it might have prevented the incident at Town M earlier this year with Mr H senior. The father remained open in his evidence to completing what he should have by now undertaken and accordingly the Court proposes to confirm those orders at Trial.     

    Ms H

53. Ms H is the father’s domestic partner and mother of their child, K, now aged one year. Ms H is a trained carer.

54. Ms H stated in her oral evidence that in the past she and the mother “could be civil with each other” and had communicated about X if required. This is despite X having informed Ms H that her mother was denigrating her. Regrettably, Ms H no longer communicates with the mother because it causes her anxiety and has left all direct communication to the father.

55. Ms H stated that it was X who had told her about the mother “holding up signs” during FaceTime calls and that she had not observed this for herself. X had called them “secret notes.” Ms H recalled X telling her that the mother had arrived at the school fence on a school day and spoke with her, saying “This is all Dad’s fault why I can’t see you.” Further, that X had been frightened to tell her father of the school visit because she did not want her father to “tell the Court.”

56. In relation to X receiving personal counselling for support, Ms H described the mother initially being “angry” about X seeing a counsellor because the mother did not want to “look bad” to the Court. The mother’s attitude was said to have changed once she learnt that the counselling sessions are confidential.

57. Under cross-examination by the mother, Ms H said that the incident between the father and her own father in March 2023 was a “one off” and that she “would not tolerate” any poor behaviour by the father. She agreed that X had been scared when exposed to the yelling and shoving between her father and Mr H. Ms H had quickly removed herself and the children from the situation. She agreed that the father had discouraged X from telling her mother about the incident by saying words to the effect of “Maybe don’t tell your mother because she will think it is a big deal.”

58. The Court accepts Ms H’s evidence and finds that she was an impressive witness.

    The Mother

59. The mother presented as a labile and softly spoken woman. At times her evidence was difficult to follow. She became distressed when giving evidence about her separation from X. The Court accepts that the mother genuinely loves X and wishes to be involved in her life as much as possible.

60. The mother conceded that she had relied on X for emotional support and had exposed her to “adult issues and feelings.”[12]

    [12] See the Family Assessment Report dated 9 June 2022 at paragraph 65.

61. The mother stated at interview with the Family Consultant that she would prefer to change the child back to her previous school,[13] and that she remained ‘anti-vaccination’ indicating that that the parties would need support around decision making.[14]

    [13] Ibid at paragraph 63.

    [14] Ibid at paragraph 68.

62. The mother appeared to concede to the Family Consultant that “…she had not supported consistent school attendance, and that this had likely impacted on [X’s] learning.”[15]

    [15] Ibid at paragraph 64.

63. Under cross-examination by the father’s counsel, the mother agreed that “at times” she had problems with what she called “time management” and blamed the lack of a current driver’s license as the reason for her delays. The mother conceded losing her driver’s license for three years in 2021 due to “speeding and drug use.” She hoped to have her driver’s license back in 2024 but was not sure of the exact date.

64. The Court observes that even during the Trial, the mother had arrived late for Court at the start of the day and after luncheon breaks. Apologies for her tardiness appeared reluctantly given and only after Court intervention. This behaviour did not help the mother’s case because it served to highlight X’s chronic late arrival or non-attendance at school across 2021 and 2022 when in the mother’s care. The Court does not accept the mother’s lack of a driver’s license as the reason why X was late or did not attend school noting that the mother lives only a short distance from the school front gate.

65. The mother was unable to name X’s home group teacher for 2023 and agreed that she not had attended any parent teacher interviews in 2023. Two weeks before Trial, the mother had requested by email copies of her school reports. She explained that she had been labouring under an incorrect assumption that there was an order restraining her from attending at the school.

1. The mother agreed in her oral evidence that she had met X at the school fence when she (the mother) just happened to be “walking past” the school with a friend and X had called her over. She denied telling X that their inability to see each other was “the father’s fault” accusing Ms H of lying in her oral evidence, an assertion which I reject.

   The Mother’s Substance Abuse

2. The mother agreed in her oral evidence that she would withdraw to her bedroom to smoke but denied that this was “for hours at a time” as alleged by X to the Family Consultant. She agreed that there were times when X had asked her to leave the bedroom and join her in the loungeroom.

3. At interview with the Family Consultant, the mother conceded a past history of illicit drugs use but suggested that she had ceased using illicit drugs in early 2021 going “cold turkey, with no support.”[16] The mother was unable to explain how she had tested positive to drug driving in 2021 nor the entry in the Child Inclusive Conference Memorandum dated 2 November 2021 when she was recorded as stating that the last time she had consumed illicit drugs was in mid‑2021. The mother denied that the father had offered to pay for hair follicle testing despite the evidence before the Court which clearly refuted this assertion.

   [16] Ibid at paragraph 71.

4. When asked by the father’s counsel if she had received the email requests from the Independent Children’s Lawyer on 17 April 2023 and 11 May 2023 respectively asking her to undertake urine drug screen tests, the mother agreed she had. She agreed to not complying with those requests. The mother stated that if she had complied with the tests, they would have been negative for all illicit substances. Her excuse was said to be because of the need to file her Trial affidavit and having “huge amounts of things to do.” The mother conceded that producing a negative drug test would have helped her case when this was put to her by the father’s counsel.

5. The mother agreed that she had undertaken a urine drug test in March 2022 as requested by the father and that it was not until April 2022 that she produced the results.[17] The late test result showed “low levels” of illicit drug traces with the mother explaining that this could have been caused by “something I touched…maybe money…”

   [17] See the Affidavit of Mr Roche filed 27 March 2023 at ‘Annexure 6’.

6. The Court rejects the mother’s suggestion that her testing positive to illicit drugs could be put down to “environmental exposure” [18] There is no evidence to support the mother’s assertion at all.

   [18] See the Family Assessment Report dated 9 June 2022 at paragraph 72.

   Melbourne Trip

7. The mother agreed that she had undertaken a “sudden” trip to Melbourne by road in early 2022 with X. The mother’s oral evidence about this trip was entirely unsatisfactory and difficult to believe. To the Family Consultant the mother alleged that the trip was to “help a friend move furniture” and to meet the friend with her baby “for a play.”[19]

   [19] Ibid at paragraph 60.

8. When asked ‘why’ under cross-examination, the mother explained that she had “24 hours’ notice of the trip.” The purpose of the trip was said to be in order to help her friend ‘Ms N’ move furniture because she was leaving a domestically violent relationship “and to allow their respective children to “have a play date.” Arrangements for the trip were communicated by social media and not by SMS text. A rental car was arranged (paid for by cash or EFTPOS) and another friend (Ms O) offered to drive as the mother does not hold a current driver’s license. After departing City D on the Saturday, the group arrived in Melbourne at night. After collecting Ms O’s belongings, the van was turned around and the mother arrived back in City D early on Sunday.

9. When challenged by the father’s counsel the mother denied that the trip had been for a “drug deal” and denied lying to the Court.

10. Whilst the evidence is not sufficient to enable a finding that the trip was a “drug run”, the fact that the mother was prepared to drive to Melbourne with X in the above circumstances reflects poorly on her parenting choices.

    The Mother’s Ex Partner, Mr F

11. Regarding Mr F, the mother stated that she had known him for “six to 12 months” before having a romantic relationship with him in 2022. The mother denied knowing that he was a drug user until late 2022. She ended the relationship because he “was not the person I thought him to be” and because he was “treating me not nicely.”

12. The mother acknowledged that an argument had occurred at a local shopping centre when X was in her care. The mother described being abused by Mr P (the brother of Mr F) whom she called “a drug user as well.” The mother acknowledged that X would have been fearful of this incident (and others) and on this occasion she had warned X not to leave her motor vehicle. The mother denied asking X to film the exchange with Mr P despite X telling the Family Consultant the opposite.[20]

    [20] Ibid at paragraph 88.

13. The mother’s evidence about the police attendance at her home searching for Mr F was not impressive. The mother agreed that she had failed to cooperate with police and in effect told them to leave and obtain a search warrant. The mother confessed to having a “mistrustful relationship” with police. At interview, and in paragraph 75 of the Family Report, she agreed being aware of Mr F’s use of drugs (cannabis and illicit drugs) but was described as being “ambivalent” as to whether or not he continued to use drugs at her home or otherwise. The mother denied when it was put to her by the father’s counsel that she had been “selling drugs” in City D and further denied any knowledge of Mr F using or dealing drugs from her home. She was unable to explain how that allegation made its way into a SAPOL Shield Intelligence Report blaming Mr F or another “drug user”, for making false allegations to police.

14. The mother agreed that she had been home when police officers arrived at her home in early 2022 and that she had initially denied them entry. When asked why she had not cooperated with police, the mother alleged “prior harassment” from the police towards her in the past. The mother agreed in evidence that on at least one occasion, she had lied to police and denied knowing Mr F’s whereabouts when he was in fact hiding in her own home. She denied having a “safe” at home stating that she had a “locker” in her bedroom. The mother denied any knowledge at all of the items seized by the police from the locker in her bedroom including illicit substances, drug smoking implements, and multiple mobile phones arguing that the items had belonged to Mr F.

15. Following separation, the mother agreed that Mr F had turned up at her home “around 10 times” uninvited and on at least one occasion Mr F has simply let himself in when the front door was unlocked. Given his previous behaviour, the mother conceded that Mr F “could have hurt me” but denied that he would have hurt X stating that “it hadn’t crossed [her] mind” that he would do so. The mother agreed that on none of the 10 occasions had she called the police. The mother described in her oral evidence having been physically assaulted by Mr F and that she had suffered bruising from his assaults. The mother conceded in her evidence that X had witnessed at least one argument between herself and Mr F and that she had told her daughter that Mr F “had hurt me.” Despite all of this, the mother naively denied that Mr F had been a risk to X stating “I will always protect her.” Following separation, the mother understood that Mr F had been extradited from Victoria after removing his “ankle bracelet” and is currently incarcerated.

16. The mother agreed that an incident had occurred late 2022 at her home as described by the father.[21] On the day in question, the mother had a number of friends over for a BBQ. X was not present. The mother conceded in her oral evidence that a man unknown to her called ‘Mr Q’ had banged on her front door for 15 minutes wanting her to open it. The mother agreed that despite being scared by the behaviour of an apparent stranger at her home, she did not call the police. Having been denied entry, ‘Mr Q’ left but returned shortly thereafter. The mother disclosed in her evidence that her friend Mr R had ran into her home alerting the occupants that Mr Q had returned with “a gun.” The mother described that “everyone became frantic” and another person present had called the police.

    [21] See the Affidavit of Mr Roche filed 27 March 2023 at paragraph 86.

17. The mother agreed when asked by counsel for the Independent Children’s Lawyer that one of the visitors to her home was a friend called ‘Mr T’. The mother considered that Mr T got on well with X and that Mr T had brought X gifts. The mother agreed that Mr T “has been a drug user” and this is how the father knew him as well.

18. In response to a question from the father’s counsel, the mother acknowledged why the father would be worried about X’s safety in light of the above history. She countered with observing that Mr F was no longer in her life and that “I always protect [X] as much as I can” and that “it’s a mother’s job” (to be protective).

19. The mother expressed, in her oral evidence, regret about past decisions and certain people that she allowed into her life. She acknowledged not having done things that she should have. She stated that she can “improve as a person” and wanted to be “the best parent for [X].” 

    Ms B

20. Ms B was called by the Court at the end of the mother’s evidence. There was no opposition to Ms B giving evidence in the absence of a Trial affidavit. Ms B is a person well known to each of the parties and their extended families having been a long term friend with X’s maternal grandmother before she died.

21. At Trial, Ms B was aged 59 years. She is a mother of three children and a grandmother to five. Whilst having some age related health complaints, Ms B continues to work as a labourer on Monday, Wednesday and Friday from 3:30pm to 6:00pm and on a Thursday from 3:30pm to 5:30pm. She has no criminal record.  She holds a current driver’s license and owns a motor vehicle.

22. Most importantly, Ms B is trusted and highly regarded by both parents and has had exposure to drugs in her own family, describing how one of her own children has become addicted to illicit substances.

23. Ms B was cross-examined by Counsel for the father and the Independent Children’s Lawyer.

24. I am satisfied having heard her evidence that Ms B is a person who would prioritise X’s best interests and safety above all else. She stated that if concerns arose she would contact the father or Ms H or attend at a police station. There was no challenge to her evidence that she has a close relationship with X, no doubt influenced by the fact that the mother and X lived with her for a period of time.

25. Ms B stated in her evidence that she could supervise for longer periods of time and also on a Tuesday as she does not work that day.  

    Family Consultant Ms J

26. The Family Consultant, Ms J (‘the Family Consultant’) had prepared the Family Report dated 9 June 2022 and was cross-examined at Trial.

27. The Family Report was helpful to the Court to the extent that involved interviews with each of the parties and X and an observation interaction. Information was also obtained from the child’s then U Centre counsellor.

28. At the date of interview, the father proposed a shared care arrangement or a maintenance of the existing orders with regular reviews with a view to equal time. For her part, the mother proposed a flexible shared care arrangement.

29. At set out above, at the date of Trial each of the parties’ positions had substantially changed and a number of significant events had occurred after publication of the Family Report as set out above.

30. I make no finding as to the mother’s observed presentation at interview as identified by the Family Consultant,[22] noting that she conceded having been advised by the mother’s solicitor of a recent family bereavement and with the mother asserting at Trial that she was not advised by her then solicitor that the appointment could have been rescheduled.

    [22] Ibid at paragraph 54.

31. The interview of X was insightful. X confirmed to the Family Consultant that she was concerned how each of her parents would react on reading of her interview. She made comment which clearly showed that each of her parents had involved her in adult issues and that she was aware of the current litigation.

32. X recalled when in her mother’s care getting to school late or not all, describing one occasion when her mother was sleeping for the day whilst X remained “sitting around all day.” Having previously co-slept with her mother, this had ceased upon the mother’s relationship with Mr F and at interview, the child described no longer being allowed to go into her mother’s room. Given the items seized from the mother’s bedroom as set out in paragraph 87 herein, the Court observes that this was a marginal attempt to protect the child from the drug activities which were occurring in and around the mother’s home and in her bedroom at the time. The child’s interview with the Family Consultant paints a picture of a snapshot in time at the mother’s household where the adults would retreat to the mother’s bedroom “smoking, talking …for hours..” whilst X was left in the loungeroom with other children present, described as being “two or three years old.” [23]

    [23] Ibid at paragraph 84.

33. At her mother’s home, X described being able to stay up until “nearly 12:00am…or 3:00am” whilst at her father’s home she had a bedtime of 9:00pm.[24] In 2021, her school report indicated absences of 34 days which noted that such absences had affected her both socially and academically. In 2022, X had been absent 12 days.[25]

    [24] Ibid at paragraph 87.

    [25] Ibid at paragraphs 95 and 96.

34. At Trial, the Family Consultant opined that children do not have the emotional capacity to integrate adult issues. She observed that at times X’s relationship with the mother was not a ‘parent/child relationship’ with X feeling responsible for her mother and preoccupied with thoughts whilst at school. The Family Consultant considered that X “may have parentified her relationship with her mother.”

35. The father was described as “child focussed and having insight.” No concerns were held by the Family Consultant following interview with the father and Ms H. The father was said to be supportive of time spending and not obstructive to the mother/daughter relationship subject always to the child being safe. In contrast, the Family Consultant described having difficulty following the mother in her interview which was at times “vague” and “incoherent.” The Family Consultant had been made aware of a death in the maternal family the day before the mother’s interview from the mother’s then solicitor and acknowledged that this could have impacted on the mother’s presentation. However, the Family Consultant noted in her oral evidence that the mother was not visibly distressed and an offer to the mother’s then solicitor to reschedule the mother’s appointment had not been accepted.

36. The Family Consultant opined that the incidents referred to in the Family Report were provided from X’s own direct experiences. X gave “spontaneous narratives and contextual detail which was unprompted.” According to the Family Consultant, X was “a reliable narrator” and “internally consistent.”

37. X was described by the Family Consultant as being a “vulnerable” due to the disruption to her schooling, exposure to adult incidents in the mothers home and with her counsellor referring to X showing negative feelings in her sessions due to her knowledge about the dispute.

38. The Family Consultant confirmed that she was aware of developments since preparing her report having read the Court orders and the parties Trial documents. The delay in the mother registering for time spending at the Contact Service was said to raise concerns about the mother’s focus and need to prioritise her time with X. The same could be said about the failure by the mother to put evidence before the Court of substance abuse counselling.

39. The Family Consultant considered that the father’s proposal at Trial, if findings were made adverse to the mother, was an appropriate way forward. She recommended that the mother should have drug counselling but conceded this would be difficult given the mother’s denials of any ongoing drug problem. She supported six monthly hair follicle tests to enable the mother to show “sustained sobriety over a longer period” of time. If the mother was able to demonstrate a history of abstinence from drugs the Family Consultant supported the orders promoted by the father at Trial. Supervised electronic communication was supported if the Court made findings accepting the evidence of the father and Ms H.

40. The Family Consultant agreed, when it was put to her by the mother, that she was aware the mother’s relationship with Mr F had ended approximately 12 months ago. Further, she agreed with the mother’s question that a child being told about matters in Court between her parents would be a burden for her.

41. The Family Consultant acknowledged that supervised time can be intrusive and unnatural. She added that it was a question of balancing those matters against a risk to the child.  If X was thought to need ongoing personal counselling (other than what was offered through the school), then she considered that the sessions should be confidential. 

    WHAT ARE THE RISK ISSUES?

42. The risk issues are Trial are summarised as follows:

    (a)The allegations concerning the mother’s use of illicit substances and the impact on her parenting of X including but not limited to issues of neglect and harm;

    (b)If the Court accepts that the mother continues to use illicit substances and/or is not satisfied with the evidence regarding the mother’s compliance with Court orders for drug testing and drug abstinence, should the mother’s time with X be supervised and if so, by whom; and

    (c)The allegations regarding the father’s failure to comply with orders for behavioural management and parenting courses in the face of an acknowledged incident of family violence in the father’s household when he was inebriated and X was present.

    LEGAL PRINCIPLES AND LEGISLATIVE PATHWAY

43. The best interests of children are met by:

    (a)Ensuring children have the benefit of both 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 and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence; and

    (c)Ensuring children received 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.[26]

    [26] Family Law Act 1975 (Cth) s 60B(1).

44. Section 60CA of the Act requires that the Court has the best interests of the child as the paramount consideration. The best interests are to be considered by the application of the objects of section 60B(1) of the Act and the underlying principles in section 60B(2) of the Act.

45. I am cognisant of the primary and additional considerations in respect of the matters as set out in sections 60CC(2) and (3) of the Act.

46. I propose to adopt the following approach:

    (1)Give consideration to the proposals put forward by the parties;

    (2)Have regard to the objects expressed in section 60B(1) of the Act and the underlying principles in section 60B(2) of the Act;

    (3)Have regard to the provisions of section 60CC of the Act in order to determine in each case what is in the children’s best interests;

    (4)Have regard to the primary considerations under section 60CC(2) of the Act namely, the benefit to the children of having a meaningful relationship with both the children’s parents and the need to protect the children from physical or psychological harm;

    (5)Have regard to the additional considerations under section 60CC(3) of the Act; and

    (6)The evidence adduced by each of the parties in respect of particular considerations pursuant to sections 60CC(2) and (3) of the Act are to be considered and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation and comment.[27]

    [27] Goode & Goode (2006) FLC 93–286.

    Parental Responsibility

1. Section 61DA (1) of the Act provides that 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 parents to have equal shared parental responsibility for the child.

2. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for such an order to be made.[28]

   [28] Family Law Act 1975 (Cth) s 61DA(4).

3. By reference to the section 60CC factors, I consider that the presumption in respect of equal shared parental responsibility should not apply in this case. The parties currently have a poor and mistrustful co-parenting relationship. The mother is yet to demonstrate to the satisfaction of the Court or the father that she is abstinent from illicit substances. The Court is keen to avoid further conflict between the parties given the history of the litigation to date.

4. The father should exercise parental responsibility but with an obligation on him to consult with the mother on longer terms issues. In the absence of agreement or a response from the mother, then the father should have the ultimate decision.

5. Based on the father’s evidence, the Court accepts that the father will consult with the mother about these longer terms issues when or if the mother is no longer using illicit substances. The father acknowledged that the mother is a good parent when free from the influence of illicit substances.

   Section 60CC Factors

6. Section 60CC of the Act sets out two classes of considerations which apply to the Court’s determination as to how a child’s interests will best be served. They are described as ‘primary considerations’ and ‘additional considerations’.

7. The two primary considerations in section 60CC(2) are as follows:

   (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 and neglect or family violence.[29] 

   [29] Ibid s 60CC(2).

8. Section 60CC(2A) of the Act directs the Court that in applying the primary considerations, to give greater weight to section 60CC(2)(b) which is the primary consideration directing the Court to protect children from physical or psychological harm, or from being subjected to or exposed to neglect, abuse or family violence.

9. In this case, there is no dispute that X should have a meaningful relationship with each of her parents. The issue is how that can be achieved in a manner that protects X from harmful behaviour and in particular, drug use, the antisocial behaviour of those persons using drugs and the impact of drug use on parenting capacity. Hence, section 60CC(2A) has particular importance in this case as the Court is required to prioritise the protection of X from neglect, abuse or family violence over the benefit of having a relationship with both parents.

   Section 60CC(3) – Additional considerations

10. In considering the additional considerations, pursuant to section 60CC(3) of the Act, I bring to account the following:

    (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

11. At interview with the Family Consultant, X expressed a wish to live primarily with her mother (four days) and spend time with her father (three days). These statements are not surprising given that the mother was X’s primary carer for many years and they continue to have a close bond.

12. However, on the facts of this case the Court is unable to place any weight on X’s wishes for several reasons.

13. The first is because of the risk factors involved in the mother’s household combined with the mother having not provided any persuasive evidence that she is now free from illicit substances. The issue of the mother’s drug usage has been one of the major issues in this case since proceedings commenced in 2021. The mother has had many opportunities to prove to the Court and the father that she no longer uses illicit substances and has failed to do so.

14. The second is because the Court accepts that the mother has made comments to X which have burdened her and resulted in her taking on an “adultified” role in managing her mother’s emotions as opined in paragraph 101 of the Family Report. The Court accepts the evidence of the Family Consultant that this role would be beyond X’s cognitive and emotional resources and likely causing her stress and to be preoccupied at school.[30]

    [30] See the Family Assessment Report dated 9 June 2022 at paragraph 101.

15. The Family Consultant was not challenged about her recorded comments made by X in paragraph 90 of the Family Report. At the time of interview, X was nine years old. To be told by her mother that she (her mother) may “probably kill herself” if X was not around, placed an enormous burden on her. X acknowledged at interview that she felt “some responsibility” to ensure her mother’s emotional wellbeing.[31]

    [31] Ibid at paragraph 90.

16. The Court will take into account the child’s wishes when making orders for time spending in favour of the mother. The orders to be made are greater than that promoted by the father and the Independent Children’s Lawyer. The orders bring to account the child’s stated wish to spend as much time with her mother as possible provided, of course, that X is safe.

    (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);

17. X has a loving relationship with each of her parents and with the father’s partner, Ms H and her half sibling, K. The evidence supports a finding that X’s relationship with her mother has been influenced by the mother’s chaotic lifestyle. X has at times been required to take on a more adult-like role with her mother. At times, the mother has relied on X for emotional support.

    (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

18. The mother was the undisputed primary caregiver to X following her birth until 2018. Thereafter, the parents were able to cooperate in X being cared for by each of her parents.

19. Since X has come into his primary care, the father has made major decisions in relation to X including changing her school. Regrettably, the mother appears to have not engaged at the school being under the false belief that she was prevented from doing so. It will be a matter for the mother moving forward if she wishes to be involved in X’s education.

20. Fortunately for X, there are no health issues which have required either party to make decisions.

21. The mother regrettably delayed registering for time at the Contact Service in early 2023. This was not a child centric decision and one which likely caused X distress and confusion.

    (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

22. In the post-separation period, the mother was X’s undisputed primary carer. The father concedes that he had very little contact with his daughter because he was dealing with chronic drug abuse. I accept the father’s evidence that it was coming into contact with the criminal justice system that saved him from further drug use or worse.

23. In this sense, the tables have now turned.

24. The mother aspires to resume a role where she will maintain X. The onus is on her to now take the steps set out in these orders as a priority to enable her to do so.

25. The mother did not dispute in her oral evidence that, as at Trial, she pays no child support for X and that the father is fully responsible for her financial needs.

    (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)

26. The orders proposed by the Court will likely have no or little effect on these criteria. Subject to the mother complying with the orders, X will spend increasing time with her mother who has been a significant parent for much of her life. If the mother does not comply with the orders, then X will continue to maintain a relationship with her mother but in a manner which prioritises her safety and wellbeing. 

    (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

27. Not applicable.

    (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

28. Each party has the capacity to provide for X’s needs when drug free.

    (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

29. Not applicable.

    (h) if the child is an Aboriginal child or a Torres Strait Islander child

30. Not applicable.

    (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

31. When drug free, each of the parents are good enough parents to X.

32. Notably the evidence supports a finding that all of the parties have accused each other of lying to X when she questioned what she had been told by the adult figures in her life. Both the father and the mother have attempted to prove or disprove what each has said to the other by involving X in adult topics and showing her messages sent between them. This behaviour must not continue and will be regulated by Court order.

    (j) any family violence involving the child or a member of the child’s family

33. There are historical allegations of family violence alleged by the parties during their relationship but which were not explored in the evidence and of which neither party nor the Independent Children’s Lawyer sought findings at Trial.

    (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;

34. Not applicable.

    (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

35. Unfortunately in this case, the Court cannot rule out the possibility that further proceedings will be instituted given the history of the litigation to Trial and the issues involved with this family.

36. The Court has endeavoured to make final orders providing for ongoing time and a pathway in the event that the mother provides positive drug test results without the need to return to Court. Prior to the implementation of fully unsupervised time spending, if a positive drug test result is produced, the mother’s time spending will revert to supervised time on alternate Saturdays and for a mid-week meal and the regime of drug testing recommences again. The orders provide a timetable for further drug testing and increases in time thereafter.

    (m) any other fact or circumstance that the court thinks is relevant

37. Not relevant.

    ASSESSMENT OF RISK

38. The father seeks supervised time indefinitely, or at least until such time that the mother demonstrates through hair follicle testing sustained abstinence from illicit drug use.

39. I accept that the child is at risk if the mother was to use illicit substances and have unsupervised time with X. The Court finds that since 2019, the mother has continued to use illicit substances whilst X is in her care. This has resulted in the child being exposed to the mother’s chaotic and, at times, dangerous lifestyle as evidenced at Trial. In addition, the mother has shown an inability to attend to the most basic of parenting responsibilities such as ensuring X arrives at school on time (or at all).

40. The Court will not condone children being exposed to drug usage from a parent or exposure to drugs by other adults associated with that parent. The mother’s immersion into the drug culture has exposed X to the presence of potentially dangerous individuals and on one occasion, a third party who arrived at the mother’s home with a firearm.

41. Therefore, all time spending will remain supervised until the mother complies with the production of hair follicle drug screen tests that are negative for illicit substances. It will be a matter for the mother if she can demonstrate and provide the evidence to enable her relationship with X to progress. Given the mother’s stated position that she has not used illicit substances since sometime in early to mid-2021, it is a conundrum for her that she has not complied with all requests to submit to drug testing made by the father and the Independent Children’s Lawyer late or not at all during the currency of those proceedings.

42. I reject the mother’s assertions that she failed to comply with requests for drug tests because, amongst other excuses, she was busy preparing for Trial and had a lot to do. Abstinence from drugs was one of the critical issues to be determined at Trial. The Court is entitled to infer in those circumstances that her failure to do so was because she knew that the results would not assist her own case. Nor do I accept the mother’s explanation that her positive test result to low level illicit drugs was caused by ‘environmental issues’ such as “touching money”.

43. I do not consider that my proposed orders fall within the sorts of cases dealing with indefinite and permanent supervision. That is because the orders provide a pathway towards the lifting of supervision upon the fulfilment of certain conditions. I consider that the within orders will avoid the permanence of supervision provided that the mother undertakes the steps as set out in the orders made.[32] Given that the mother stated in her evidence that she no longer uses illicit substances, the within orders should not prove difficult for her to achieve.

    [32] Betros & Betros [2017] FamCAFC 90 (Thackray, Murphy and Austin JJ).

44. If at any time during the hair follicle testing period the mother returns a drug test positive for illicit substances, then time shall return to the orders set out in order 5(b) and the cycle will recommence again.

    CONCLUSION

45. The Court is satisfied that the within orders are in X’s best interests.

46. The orders provide for the father, who will remain the primary carer to have sole responsibility but with a condition that he consult with the mother before reaching a decision in the manner prescribed in the orders.

47. There was no dispute at Trial that X remain in the primary care of the father.

48. The time spending orders provide a build up to meaningful extended overnight time subject to the mother complying with orders that she is abstinent from illicit substances. Until she does so or should she relapse, then time shall be supervised in the manner prescribed. The mother shall be restrained from shaving, bleaching or dying her hair from the date of these orders until the completion of the final hair follicle test becoming available. I consider it unreasonable that the mother be restrained for a period in excess of 12 months from cutting her hair. Accordingly, the Court has exercised its discretion to vary the order to enable the mother to obtain a haircut but to retain a sufficient length of hair for the testing to still take place. The costs of all hair follicle testing is to be shared by the parties.

49. The Court is not satisfied that it is in X’s best interests to continue time at the Contact Service when there is a perfectly acceptable independent supervisor available namely, Ms B. This will enable X to spend quality time with her mother in a more natural environment. Ms B is supported as a supervisor by the parties and the Independent Children’s Lawyer. The weekday teatime whilst under supervision will take place on a Tuesday when Ms B is not at work. Once (or if) supervision is lifted, the midweek teatime shall revert back to a Wednesday as the parties previously proposed. The time under supervision is extended to include an overnight one weekend night per fortnight. Provided Ms B is present to supervise the overnight time, it can occur at a location agreed by the mother and Ms B. If Ms B is unable to comply with any dates or times, then the parties are at liberty to vary the within orders to accommodate her availability.

50. All face-to-face time will remain supervised until the mother complies with the orders for drug testing and provides results clear of illicit substances. The Court is not satisfied that it is appropriate to provide for protracted and onerous six monthly intervals between hair follicle testing. The Court considers that the time frames as set out in these orders strikes the appropriate balance. The mother, under cross-examination, agreed that the testing agency nominated by the father was acceptable to her (if ordered) and agreed that there was no equivalent testing agency in either City D or City V. The mother also consented in her evidence that she would not dye or bleach her hair if ordered, conceding that to do so would compromise the test results.

51. It is highly regrettable that the mother has not taken active steps to satisfy the father and the Court of her alleged abstinence over the course of this litigation. Her failure to do so is even more curious in the face of her asserted abstinence from drugs since mid-2021. In this sense, the responsibility lies heavily with the mother to now do what should have been done during the currency of these proceedings.

52. It is a matter for the mother if she elects to attend drug counselling or grief counselling (the latter being something she offered during final submissions). The Family Consultant gave evidence that the drug counselling would equip a person with tools to prevent relapse, and provide a person with insight of the impact of their substance abuse on others. The difficulty with drug counselling is that the mother has not to date acknowledged that she has an addiction to drugs at all.

53. If and when the mother moves to unsupervised time, the Court is not satisfied that term time arrangements should conclude on a Sunday nor that there be truncated school holidays as proposed by the father.

54. Once time moves to unsupervised, the father’s evidence is that his primary concern related to the mother getting X to school on time. The father’s concerns are well founded given the evidence before the Court by way of school records as set out in these Reasons. In addition, the Court observes that the mother was repeatedly late to Court during the Trial and late (or did not attend) sessions at the Contact Service on 8 and 16 February, 25 March, 8 and 22 April 2023.

55. In balancing the need for X to maintain a meaningful relationship with both of her parents, the Court is satisfied that it is in her best interests to make orders extending the alternate weekend time to the commencement of school on a Monday (or the start of school on a Tuesday if a public holiday) as an endpoint. Such an order will provide for a full weekend and limit X’s exposure to missing or being late to school on a weekday. It will enable the mother another opportunity to be involved at X’s school and reduce the number of face-to-face handovers. The Court proposes to make orders for school holidays extending to five consecutive nights in a block given that the father has himself promoted such an order for Easter.

1. It is open to the parties to extend the term time and school holidays if time spending is going well and the father is satisfied to do so. He has done so in the past. The father was frank in his interview with the Family Consultant that he would “appreciate an equal time arrangement if (the mother’s) personal functioning was stable as this would allow him and Ms H some space to focus on their new baby, house and employment without the stress of worrying about X’s welfare with her mother.”[33] The Court has no evidence to suggest that the father’s attitude had changed in supporting extra time should the father consider that it was safe to do so.

   [33] See the Family Assessment Report dated 9 June 2022 at paragraph 38.

2. The Court proposes to order FaceTime calls twice per week without the need for supervision. The father incorrectly thought that the interim Court orders required FaceTime visits to be supervised when they did not. I see no reason to impose supervision now. The calls will be facilitated via the parents’ mobile telephones. There will be no requirement that the calls either be supervised nor that the father afford X privacy. By default, the calls will take place when the father is present to facilitate the calls being made. The mother is on notice that any attempt to communicate with X by holding up signs or encouraging X to meet her at the school perimeter will not be condoned by the Court.

3. The father’s evidence in relation to the incident at a family event in early 2023 at Town M has resulted in the Court considering that it is in X’s best interests for the father to be restrained from consuming alcohol to excess whilst she is in his care. The father should also complete the parenting and behaviour courses previously ordered by the Court which had not been completed by the time of Trial. The mother completed the W Parenting Course in March 2023 as evidenced by her Trial Affidavit.[34]

   [34] See the Affidavit of Ms Donato filed 13 May 2023 at ‘Exhibit 10’.

4. For all of those reasons, the Court makes the orders as set out at the commencement of these Reasons for Judgment.

I certify that the preceding one hundred and seventy-eight (178) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson.

Associate:

Dated:       25 September 2023