Rushby and Bilsberry

[2014] FamCA 286

FAMILY COURT OF AUSTRALIA

RUSHBY & BILSBERRY [2014] FamCA 286

FAMILY LAW – CHILDREN – Best interests – with whom the children shall live, spend time and communicate – paternal grandmother a party to proceedings – father has history of illicit drug use – parties agree the children will live with the mother – children to spend time with the father seven times per year – father’s time with the children to be supervised by the paternal grandmother – children to have telephone communication with the father once per week – pursuant to s 64D the parenting orders may only be varied by order of the Court – father restrained from attending upon the mother’s home or the children’s schools

FAMILY LAW – CHILDREN – Parental responsibility – presumption of equal shared parental responsibility rebutted by evidence of family violence committed by the father – no constructive communication between the parents – mother to have sole parental responsibility for the children

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 64D, 65D, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 68B

Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)

Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461

APPLICANT: Ms Rushby

FIRST RESPONDENT: Mr Bilsberry

SECOND RESPONDENT: Ms Bilsberry

INDEPENDENT CHILDREN’S LAWYER: Denise Clark Solicitor & Advocate

FILE NUMBER: NCC 276 of 2012

DATE DELIVERED: 1 May 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 2 & 3 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr B. Kelly

SOLICITOR FOR THE APPLICANT: Hunter Family Law Centre

COUNSEL FOR THE 1^ST RESPONDENT: N/A

SOLICITOR FOR THE 1^ST RESPONDENT: N/A

COUNSEL FOR THE 2^ND RESPONDENT: N/A

SOLICITOR FOR THE 2^ND RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr C. Boyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Denise Clark Solicitor & Advocate

Orders

1. All former orders relating to the following children (“the children”) are discharged:

   (a)B, born … 2003;

   (b)C, born …; and

   (c)D, born … 2010.

2. The mother shall have sole parental responsibility for the children.

3. The children shall live with the mother.

4. The parties shall take all reasonable steps to ensure the children spend time with the father, supervised by the paternal grandmother, as follows:

   (a)On the first Saturday of February, April, June, August, October, and December each year, commencing at 9.00 am and concluding at 5.00 pm; and

   (b)From 9.00 am until 5.00 pm each Father’s Day. 

5. For the purpose of implementing Order 4 hereof:

   (a)The paternal grandmother and the mother (or her nominee) will exchange the children at the commencement and conclusion of the visits outside the IGA supermarket in E Town, NSW;

   (b)The father is restrained from attending at, or within 250 metres of the IGA supermarket in E Town, NSW at times proximate to such exchanges of the children; and

   (c)The father and paternal grandmother are each restrained from causing or permitting the children to be taken to a place more than 50 kilometres radius from the IGA supermarket in E Town, NSW.

6. Pursuant to s 68B of the Family Law Act the father is restrained from entering upon or approaching within 250 metres of:

   (a)The mother’s residence; and

   (b)Any pre-school or school attended by either child.

7. Leave is granted to the mother to provide a sealed copy of these orders to the principal of any pre-school or school attended by the children.

8. The parties shall take all reasonable steps to ensure that the children communicate by telephone with the father and/or paternal grandmother each Wednesday and on each of the children’s birthdays at 6.00 pm, and for that purpose the father and/or paternal grandmother shall telephone the children on the telephone number provided to them by the mother, and the mother shall ensure that the children are able to receive the calls on that number at that time.

9. Each of the parties shall take all reasonable steps to ensure that the children are able to communicate in writing with the father and/or paternal grandmother in the following manner:

   (a)By the father and paternal grandmother being able to send letters, cards, and/or gifts to the children; and

   (b)By the mother sending to the father or paternal grandmother any letters, cards, photographs, or other written communication that the children, or any of them, wish to be conveyed to the father or paternal grandmother.

10. Each party is restrained from denigrating the others in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating any other.

11. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective postal address and current mobile telephone number.

12. Within seven days hereof the mother shall cause the children to be delivered to the Independent Children’s Lawyer to have explained to them the effect of these orders, and if deemed appropriate by the Independent Children’s Lawyer, the reasons for such orders.

13. Pursuant to s 64D(2) of the Family Law Act, these orders may only be varied by subsequent order of the Court and not by a parenting plan.

14. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

15. The Independent Children’s Lawyer is discharged upon compliance with Order 12 hereof or the expiration of any applicable appeal period, whichever is the later.

16. Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 276 of 2012

Ms Rushby

Applicant

And

Mr Bilsberry

First Respondent

And

Ms Bilsberry

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. Three children, aged between ten and three years, are the subject of dispute between the applicant mother, first respondent father, and second respondent paternal grandmother.

2. Despite the antipathy of their dispute, it was relatively contained in scope.

3. It was agreed the children will continue to live permanently with the mother. The debate revolved around whether the children would spend time with either the father or paternal grandmother, and if so, the circumstances under which that would occur.

4. The father also contested the allocation of parental responsibility for the children. He wanted to share in it, but the mother wanted exclusive parental responsibility for the children.

5. The principal factual disputes that bore upon the resolution of those issues were the father’s alleged addiction to illicit drugs and his alleged past commission of family violence upon the mother.

History

1. The mother and father began their romantic association in 2002, when the mother was only 16 years of age and the father was 25 years of age.

2. Their three children were born in 2003, 2008, and 2010.

3. The youngest child was born after the mother and father ended their relationship in 2009.

4. During the subsistence of their tempestuous relationship between 2002 and 2009, the mother and father separated several times.

5. Following their final separation, the two oldest children lived with the mother. So did the youngest child after he was born in 2010.

6. The children spent time with the father, but the arrangements for that to occur were disorganised and impromptu rather than settled and regular.

7. As a result of an altercation between the mother and father in January 2011 the children spent no time with the father or members of the paternal family until their interaction resumed in about September or October 2011. Thereafter, until December 2011, the children spent time with the father on weekends at the home of the paternal grandparents.[1]

   [1] Mother’s affidavit, para 80; Father’s affidavit, para 29

8. Arrangements were made for the children to spend time with the father and paternal family over the Christmas period of 2011. Following their visit, the father delayed returning the children to the mother. He eventually only returned the eldest and youngest children to the mother and he retained the middle child.

9. The mother encountered difficulty obtaining advice about what she should do because of the Christmas closure period. She eventually filed an Application to commence these proceedings about a month later in early February 2012 in the Federal Magistrates Court (as the Federal Circuit Court then was).

10. Interim orders were made on 22 February 2012, with the consent of the mother and father, providing for the children to live with the mother and for them to spend varying amounts of time with the father each weekend. The middle child returned to the mother’s care after those orders were made.[2]

    [2] Family Report, para 14

11. The paternal grandmother was also joined to the proceedings as a party by those orders.[3]

    [3] Order 5 made on 22 February 2012

12. In or about March 2012 the mother and children moved into public housing accommodation in the F Region, where they remain. The father and paternal grandmother both still live on the G Region.

13. Apparently as a consequence of her concern about the father’s propensity to use illicit drugs, the mother sought a review of the interim orders. Fresh interim parenting orders were made with the consent of the mother, father, and paternal grandmother on 1 June 2012, essentially providing for the children to live with the mother, the mother to have sole parental responsibility for them, and for the children to spend only supervised time with the father and paternal grandmother at a contact centre.

14. Those orders were not implemented until September 2012 because of the waiting list at the contact centre.[4] Regrettably, the contact centre withdrew its services to the family in April 2013.[5]

    [4] Mother’s affidavit, paras 129-130

    [5] Mother’s affidavit, paras 138-139

15. Some 18 months after commencement in the Federal Magistrates Court, in July 2013, the proceedings were transferred to this Court, apparently because the litigation was regarded as a “complex matter” that would take “4 or more days to be heard”.[6] As it transpired, the matter was neither complex nor lengthy. The final hearing was contained to two days.

    [6] Notation 2 made on 31 July 2013

16. The proceedings were transferred to this Court with a recently filed and unresolved interim application of the paternal grandmother. That Application was expeditiously listed for hearing and determined on 30 August 2013. Fresh interim orders were made for the children to live with the mother, for the mother to have sole parental responsibility for the children, and for the children to spend only supervised time with the father and paternal grandmother (separately) at a contact centre on one occasion each fortnight.

17. Those orders were implemented by the contact centre from September 2013,[7] but it was not revealed until the very conclusion of the final hearing that the contact centre again withdrew its services to the family in about December 2013. The children have not spent time with the father or paternal grandmother since late November 2013.

    [7] Mother’s affidavit, paras 139-140

18. The proceedings were fixed for final hearing in December 2013, but were not reached and were adjourned to and completed in April 2014.

Proposal of mother

1. During final submissions the mother abandoned the orders set out within her Further Amended Initiating Application filed on 2 September 2013 and instead tendered a minute of the orders she proposed.[8]

   [8] Exhibit M7

2. As already noted, there was no dispute about her proposal for the children to live with her.

3. She wanted sole parental responsibility for the children. She also wanted declarations that the children should spend no time with either the father or paternal grandmother and injunctions preventing them from doing so.

4. The mother desired that the only contact between the children and members of the paternal family would be by way of written correspondence.

Proposal of father

1. The father’s proposal remained somewhat opaque. He began the case by seeking the orders set out within his Amended Response filed on 16 September 2013, but concluded it by acknowledging he would accept orders requiring his future interaction with the children to be subject to supervision by the paternal grandmother.

2. Preferentially, he wanted to spend substantial amounts of unsupervised time with the children and to communicate with them freely. He maintained his application to share in the exercise of parental responsibility for the children.

Proposal of paternal grandmother

1. The paternal grandmother pressed for the orders set out within her Amended Response filed on 16 September 2013.

2. She wanted the children to spend large slabs of their time with her – as much and as frequently as two days each week, the whole of every weekend, substantial proportions of every school holiday period, and other special occasions.

Proposal of independent children’s lawyer

1. At the commencement of final submissions the Independent Children’s Lawyer tendered a minute of the orders she proposed.[9]

   [9] Exhibit ICL1

2. She proposed the mother have sole parental responsibility for the children.

3. In relation to the father, she proposed the children spend no time at all with him, but that they be able to communicate in writing.

4. In relation to the paternal grandmother, she proposed the children spend five days per annum with her in the locality of the mother’s residence, with such visits spaced across the year.

The evidence

1. The mother relied upon her affidavit filed on 6 December 2013

2. The father relied upon his affidavit filed on 31 January 2014.

3. The paternal grandmother relied upon her affidavit filed on 31 January 2014.

4. The paternal grandmother was also granted leave, over the objection of the mother, to adduce oral evidence from a paternal uncle, Mr H Bilsberry, about a discrete episode of alleged family violence between the parents in 2005 which the mother alleged the paternal uncle witnessed.

5. The parties and Independent Children’s Lawyer also relied upon the Family Report dated 25 April 2013. The Family Consultant was cross-examined. Her evidence was resolute and generally persuasive.

Applicable legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.

6. In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of children – primary considerations

Section 60CC(2)(a)

1. There was no dispute about the importance of the children’s relationships with the mother. The parties’ acknowledgement that the children must continue to live with the mother manifested their belief in the children’s derivation of benefit from that arrangement.

2. There was, however, a contest about the meaningfulness of the children’s individual relationships with the father.

3. The eldest child did not seem particularly enamoured of the father. She told the Family Consultant she was scared of him when he became angry and she did not trust him not to do “something stupid”.[10] She told the Family Consultant she had not missed the father, though she was ambivalent when asked how she would feel if she never saw the father again.[11] She did not engage with the father during the observation session conducted by the Family Consultant but did accept a kiss and hug from the father at its conclusion.[12] The eldest child has also told the mother she does not want to spend time with the father,[13] but it is difficult to know whether comments like that are truthful. They may be, but they may also be explained by the child’s desire to inform the mother of her loyalty to her.

   [10] Family Report, paras 71-72

   [11] Family Report, para 75

   [12] Family Report, para 78

   [13] Mother’s affidavit, paras 142-144

4. The middle child has a much more positive attitude about the father. He told the Family Consultant he enjoyed his time with the father and missed seeing him. He was pleased to see the father under the Family Consultant’s observation and was affectionate towards him.[14]

   [14] Family Report, paras 82-84

5. The youngest child was too young to express any views and the Family Consultant offered no evidence about her independent observations of the youngest child in the company of the father. The mother and father had separated by the time the youngest child was born and so, while he probably understands his filial relationship with the father, the mother is plainly his primary attachment figure. The mother conceded the youngest child seems to enjoy his visits with the father as much as the middle child.[15]

   [15] Mother’s affidavit, para 145

6. The children all have more meaningful relationships with the mother than with the father, but the evidence does not support findings that the children do not have meaningful relationships with the father. The mother must appreciate that to be so. The only reasons she was not fully supportive of the children’s ongoing relationships with the father were her quite reasonable concerns about his continuing illicit drug use and his propensity to be violent towards her.

Section 60CC(2)(b)

1. There was an irreconcilable factual conflict about whether the father perpetrated family violence upon the mother.

2. Since these proceedings were commenced in February 2012 the amendments to the Act, and in particular to the provisions concerning the definition of “family violence” and the considerations relevant to findings about the children’s best interests, occasioned by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) do not apply.

3. Relevantly for the purpose of these proceedings, “family violence” entails only actual or threatened conduct by one family member towards another that causes the victim or any other family member to reasonably fear for or be apprehensive about the victim’s personal well-being or safety.

4. The mother alleged a protracted history of potent family violence, encompassing physical assaults, verbal altercations, and intimidation. She was and is fearful of the father.

5. While there was no dispute about the frequent occurrence of heated arguments, there was a difference of opinion about who was principally at fault for them and the father refuted any actual or threatened violence.

6. The mother gave evidence of her physical assaults by the father from as early as 2003, continuing up to and beyond their separation in 2009. She alleged he punched her, threw objects at her, pulled her hair, pushed her, strangled her, bit her, and threatened her with a knife. She alleged many of those incidents occurred in the presence of one or more of the children. She alleged she occasionally sustained injuries and she was motivated on two occasions, in 2005 and 2009, to leave the father and seek sanctuary in women’s refuges.[16]

   [16] Mother’s affidavit, paras 9-25, 35-47; Family Report, paras 28, 50

7. The mother was not challenged about any of that evidence, but that is likely explicable by the father’s lack of legal representation and his unfamiliarity with forensic process. I accept the mother’s evidence about her victimisation by the father’s violence conduct, but not merely because of the father’s failure to contradict her in cross-examination. Rather, the mother’s evidence is preferable for other reasons: she was corroborated by the children’s reports, documents produced on subpoena record past allegations of family violence made against the father by his former partner, and the father made partial admissions to the Family Consultant about his aggressive behaviour.

8. The two eldest children confirmed to the Family Consultant they had witnessed the father physically assault the mother, including by punching her in the face and causing her injuries. Their individual accounts were graphic.[17] The father was dismissive of such corroboration. He simply asserted the children were only young and were probably influenced by the mother to make such claims,[18] but the Family Consultant said in cross-examination she found the children to be genuine and doubted they had been “coached”.

   [17] Family Report, paras 7, 29, 50, 70, 81

   [18] Family Report, paras 29, 50

9. The father was charged on several past occasions for his assault of the mother.[19] Ominously, police records contain allegations of serious violence committed by the father against his former partner too.[20] None of the multiple charges against the father for his violent treatment of either the mother or his former partner ever resulted in his conviction, but the father and paternal grandmother seem to mistakenly consider that the absence of his conviction on any of the charges amounts to his exoneration.[21] It does not. The dismissal of the charges certainly leaves the father’s presumption of innocence undisturbed, but application of the civil rather than criminal standard of proof to the evidence in these proceedings enables the allegations of violent conduct to be established on the balance of probabilities. While there is no evidence to substantiate the father’s assault of his former partner, that evidence tends to corroborate other evidence that does permit proof of his assault of the mother on the balance of probabilities.

   [19] Family Report, paras 7, 31

   [20] Family Report, para 31

   [21] Family Report, paras 50, 64

10. Although the father flatly denied any physical violence, he formerly admitted to the Family Consultant he “gets aggressive when he can’t get any [opiates]” and that he and the mother “push[ed] and shov[ed]” one another.[22] In the face of such admissions, it was plainly misleading for the father to say in evidence “I have never been violent to her at all”. The father admitted the mother had fled him to live in refuges because of their “arguments”, but asserted he could not remember the circumstances of the arguments. Logic suggests they must have been serious and frightening if they motivated the mother to seek sanctuary in refuges. The father’s evidence had a distinct air of disingenuousness, or at least minimisation. It was difficult to repose much weight in the father’s evidence because his honesty was found so wanting in respect of the extent of his illicit drug use, which is yet to be addressed.

    [22] Family Report, paras 47, 50

11. Even if it be assumed the father’s evidence about family violence was honest it was deprived of weight because he conceded his heavy illicit drug use could well have affected his memory of past events. 

12. Although the father was at least partially corroborated by the paternal grandmother and paternal uncle about the absence of any physical assaults, they could only possibly speak to the absence of any physical violence on the occasions when they were in the company of both the mother and father. They could not say what occurred when they were not present.

13. The mother alleged the paternal grandmother witnessed some of the father’s violent behaviour towards her, and furthermore, that she castigated her for infuriating the father.[23] The paternal grandmother denied it, but her denials were tentative and unconvincing. She did admit to the Family Consultant witnessing at least one violent incident in which the father grabbed the mother by the shirt, although she contended he did so in self-defence.[24]

    [23] Mother’s affidavit, para 164; Family Report, paras 28, 37

    [24] Family Report, para 64

14. The paternal uncle denied he witnessed and intervened in an attack by the father upon the mother on an occasion in 2005, as she alleged.[25] Even if the incident did not occur as the mother alleged, the father admitted an altercation between he and the mother at about that time caused her to move away to a refuge for a while.

    [25] Mother’s affidavit, para 18

15. The father was nearly ten years older than the mother. She was still a teenaged minor when their relationship began and the eldest child was born. She was still only 23 years of age when the relationship ended. For part of their relationship the parents, and the children who were then born, lived with the paternal grandparents. There was an imbalance of power in the parents’ relationship, which was difficult for the mother to redress because she felt trapped within the paternal family. Her ultimate escape was made via a women’s refuge into public housing accommodation.

16. I am satisfied by the evidence, on the balance of probabilities, that the father did assault and threaten the mother, which reasonably caused both the mother to fear for her safety and, on the occasions they witnessed such incidents, the children to reasonably fear for the safety and well-being of the mother. It follows that the father committed “family violence”.

17. Given the rejection of the father’s denial of his commission of any family violence at all, it is much easier to accept the mother’s evidence about the seriousness of the father’s violent behaviour. The violence was frequent and serious, not moderate and sporadic.

18. Section 60CC(2)(b) requires advertence to the need to protect the children from any harm caused by their future exposure to family violence. Clearly, past events are liable to guide predictions about future events, but it is important to take account of the manner in which the parties have interacted since the mother mustered the courage to separate from the father in 2009.

19. Not long after separation, the mother moved with the eldest two children to Queensland. She admitted she made arrangements for the father to follow her and spend time with the children. The parties temporarily resumed their relationship and they conceived the youngest child.[26] While pregnant with the youngest child the mother returned to the G Region of NSW with the other children and lived in a house across the road from the father and paternal grandparents.[27]

    [26] Mother’s affidavit, paras 28-30

    [27] Mother’s affidavit, paras 33-34

20. The father assaulted the mother again in December 2010 and the mother and children moved away to another part of the G Region. After another argument between them in January 2011 over the children, the parties did not see each other again until September 2011.[28] The parents’ relationship settled and the mother allowed the children to resume seeing the father and paternal grandparents in October 2011.[29]

    [28] Mother’s affidavit, paras 35-47

    [29] Mother’s affidavit, para 66

21. There was another disagreement between the parents at Christmas 2011 over the father’s failure to return the middle child to the mother, but that disagreement did not involve any violence or threats. The mother commenced these proceedings in February 2012 and the interim orders imposed by the Court have prevailed, at least to the extent permitted by the contact centre.

22. Therefore, save for the brief resumption of hostilities in December 2010 and January 2011, the father has not perpetrated family violence upon the mother since their separation in 2009. Significantly, the father knew the mother moved with the children to the F Region in March 2012 and he has not since stalked or harassed her. Although he foolishly threatened the security of her new house in a telephone conversation at or about the time of her relocation,[30] nothing happened. The evidence suggests there has been a complete absence of contact between them, other than in accordance with the interim orders.

    [30] Mother’s affidavit, para 120

23. So, while the father’s violent conduct towards the mother during the course of their relationship was serious, his behaviour over the past few years has moderated substantially and the risk of further family violence continues to diminish with the passage of time. Of course, the risk remains, but it is no longer so high that it requires severance of the children’s relationships with the father.

24. The risk of the children suffering psychological harm through exposure to the father’s violent treatment of the mother can be satisfactorily contained by orders that prevent the father and mother from both being present at changeovers.

25. During cross-examination the Family Consultant expressed some concern that the father’s poor impulse control might mean he could physically abuse the children if angered, but I reject that evidence as a concern of any significance. There was no hint in the evidence the father had ever physically mistreated the children in any way. It would be a histrionic reaction to fashion orders to guard against that slight possibility.

26. The Family Consultant also said in cross-examination that, if the father re-partners, he might perpetrate family violence on his new partner and the children may be harmfully exposed to that violence. That is a more pronounced risk, but it will be attenuated, if not entirely averted, by orders that restrict the manner in which the children spend time with the father. The need for orders of that type is explained by the evidence relevant to s 60CC(3) of the Act.

Best interests of children – additional considerations

1. The father’s illicit drug use and the attitudes of both him and the paternal grandmother to that drug use were the pre-eminent issues for consideration under s 60CC(3) of the Act.

2. Although the father confessed early in his cross-examination that he had “a bad memory and a learning disability”, his numerous inconsistent reports about his illicit drug use are most probably explained by dishonesty rather than a faulty memory. He gave conflicting historical accounts of his drug use to a series of medical providers over recent years, to the Family Consultant in April 2013, in his affidavit filed in January 2014, and during his cross-examination at the final hearing in April 2014.

3. In March 2009, the father sought assistance at a G Region health unit for his illicit drug use. The history he then reported included intravenous use of heroin for the preceding two months, intravenous use of a prescriptive drug bought on the street in preceding months, daily use of large amounts of cannabis, and occasional use of amphetamines.[31]

   [31] Exhibit M6

4. In April 2009, the father approached a drug and alcohol service requesting counselling to support his abstinence. On that occasion he reported daily use of cannabis for 15 years, intravenous use of heroin fortnightly for the past 11 years, occasional use of prescriptive medication, and monthly use of amphetamines.[32]

   [32] Exhibit M3

5. In March 2011, the father attended the J Hospital emergency department seeking drug and alcohol rehabilitation for opiate use. He informed staff he had been addicted to heroin and amphetamines since the age of 16 years. He was then using methadone daily that he purchased illegally on the street. He regarded himself as opiate dependent.[33]

   [33] Exhibit M5

6. In February 2012, the father presented at the hospital emergency department requesting enrolment in a clinic-conducted methadone program. He reported daily use of methadone, heroin, opiates, and cannabis. He was discharged after being given the contact details for the methadone clinic.[34]

   [34] Exhibit M4

7. Interim orders were made in these proceedings in both April 2012 and June 2012 for the father to submit to drug urinalysis. The Court noted in September 2012 that the father had produced only one urinalysis report, despite four requests by the Independent Children’s Lawyer, and the single result was positive for cannabis, methamphetamine, and amphetamine.[35] That test was taken in May 2012.[36] The Court again noted almost a year later in August 2013 that the father had not supplied any further urinalysis reports to the Independent Children’s Lawyer.[37]

   [35] Notation 4 made on 21 September 2012

   [36] Family Report, para 5

   [37] Notation D made on 26 August 2013

8. The father conferred with the Family Consultant in April 2013. He reported to the Family Consultant he began use of cannabis as a teenager and had used it for some 20 years on a daily basis. He confirmed daily intravenous use of heroin and both oral and intravenous use of amphetamines.[38] He admitted he was still then using “street bought opiates and amphetamines”.[39] The father alleged he last used cannabis in February 2012, but he could not account for why his urinalysis test in May 2012 would therefore be positive for cannabis.[40] The father disputed the accuracy of some of the facts reported by the Family Consultant, but the Family Consultant was able to confirm the accuracy of the contents of the Family Report by reference to her contemporaneous notes of the interview. I accept the accuracy of the Family Report.

   [38] Family Report, para 46

   [39] Family Report, paras 5, 45

   [40] Family Report, para 45

9. Despite that history, the father would not agree he was addicted to illicit drugs and asserted his drug use did not adversely affect the children.[41]

   [41] Family Report, para 47

10. The father expressed his concern to the Family Consultant that the mother might expose the children to some of her family or friends who use drugs.[42] Astonishingly, in the face of his own drug use, the father did not seem to appreciate the hypocrisy of such concern.

    [42] Family Report, para 52

11. The father filed his affidavit in January 2014. He acknowledged “battling with [his] drug addiction for some time”,[43] but advised he had been on a methadone program since June 2013.[44] He annexed to his affidavit confirmatory documents from the methadone clinic, together with three urinalysis tests completed in July 2013, August 2013, and September 2013 that were positive for only methadone and a prescriptive medication.[45] Consistently with what he wrongly told the Family Consultant, he also deposed he last smoked cannabis in February 2012.[46]

    [43] Father’s affidavit, para 2

    [44] Father’s affidavit, para 4

    [45] Father’s affidavit, Annexure A

    [46] Father’s affidavit, para 16

12. The evidence adduced at the final hearing proved the father’s evidence was false in several respects.

13. In cross-examination the father said he last smoked cannabis “two years ago easy”, consistently with the deposition in his affidavit about last smoking cannabis in February 2012. That evidence was plainly false, which the father was forced to concede, because he tested positive for cannabis in both November 2013 and February 2014.[47] The father’s initial lame attempts to explain the positive readings by his passive inhalation of other’s cannabis smoke only served to compound his dishonesty. He eventually admitted smoking cannabis on his birthday in October 2013, but even that could not account for the positive results in November 2013 and February 2014, particularly since the latter result revealed heavier intoxication than the former. He conceded his evidence “doesn’t add up”.

    [47] Exhibit M1

14. The father’s positive tests for cannabis in November 2013 and February 2014 were clearly unknown to the methadone clinic, the staff of which reported in January 2014 that his random drug screen samples have all been negative.[48] The father conceded he did not divulge his positive test results in these proceedings to the methadone clinic staff. The father admitted it was a condition of his participation in the methadone program that he not use any illicit drugs whilst being administered methadone. He was therefore in breach of the program protocol.

    [48] Father’s affidavit, Annexure A

15. The father also said in cross-examination he last used amphetamines two to three years ago, but that was inconsistent with the information he provided to the Family Consultant. Either he gave false information to the Family Consultant or he gave false evidence. It must have been one or the other. Most likely his evidence was false, since there was no advantage in admitting recent amphetamine use to the Family Consultant, but considerable advantage giving evidence about abstinence for a prolonged period.

16. The father said in cross-examination he last used heroin “five years ago easy”. That too contradicted what he told the Family Consultant. For the same reason, his evidence was probably false.

17. The state of the evidence does not permit any findings about the extent of the father’s current drug use, but the evidence falls far short of proving on the balance of probabilities that the father has overcome his addiction to illicit drugs. His false evidence about recent drug use probably reflects his belated understanding that his addiction is inimical to responsible parenting and that continued illicit drug use compromises his chances of having fulfilling relationships with the children.

18. The father’s attempt to beat his drug addiction is commendable. Participation in the methadone program for the last nine months has taken sustained commitment, but the evidence demonstrates he has not yet succeeded with his struggle against addiction. It is likely to be a long and arduous process for him. I accept, as the Family Consultant said, it is unlikely the father will successfully rehabilitate from illicit drug use without intensive inpatient treatment.

19. The Family Consultant explained the risks of harm posed to children by their exposure to drug-addled parents. Obviously, a stupefied parent does not have the cognitive capacity to properly care for and supervise young children. The children ultimately become aware of the parent’s drug use, which models illegal, immoral, and destructive behaviour to the children. The Family Consultant explained that children exposed to such conditions have a statistically higher chance of becoming illicit drug users themselves.

1. That evidence has particular application for present purposes because at least the eldest child is aware of the father’s past drug use. She told the mother in 2012 she was aware the father was smoking “stinky stuff” that was not cigarettes, about which the mother confronted the father,[49] and she told the Family Consultant in 2013 she has seen the father smoke from a bong.[50]

   [49] Mother’s affidavit, paras 59-61

   [50] Family Report, para 73

2. The father’s proposals for the children changed in his discussions with the Family Consultant, just as they did during the hearing. The most likely explanation for his changed view was his realisation that the orders he initially proposed were rendered inappropriate by his continuing drug use.

3. The father initially told the Family Consultant he wanted the children to live with him, but when challenged about his drug use, he relented and instead wanted them to remain living with the mother and spend large amounts of unsupervised time with him.[51] He finally acknowledged the children should only spend time with him under the supervision of the paternal grandmother.[52]

   [51] Family Report, para 20

   [52] Family Report, para 56

4. When he commenced the final hearing, the father pressed for orders that allowed the children to spend large amounts of unsupervised time in his care. However, after the evidence closed and during final submissions, the father meekly acknowledged the best for which he could hope was for the children to spend some time with him under the supervision of the paternal grandmother.

5. That realisation also appeared to finally dawn upon the paternal grandmother. She previously regaled the Family Consultant with her ideas about the father’s fitness to provide a physically and emotionally safe environment for the children,[53] but she found her opinions crushed under the weight of the evidence.

   [53] Family Report, paras 21, 59-63, 68

6. The mother contended the father’s ongoing drug use necessitated his elimination from the children’s lives, which contention had the support of the Independent Children’s Lawyer. However, I reject the idea as an unsatisfactorily superficial analysis of the evidence.

7. The mother was content to continue her relationship with the father and have the children live with them in a common household between 2002 and 2009, despite the father’s drug addiction, presumably because she was satisfied she could supervise the children and shelter them from the effects of the father’s addiction. The mother told the Family Consultant she would allow the children to spend “substantial and significant time” with the father in the future if he was drug-free.[54] There is no reason why the children cannot still now be sheltered successfully from the deleterious effects of the father’s drug use. The adequacy of their shelter simply depends upon the frequency of their interaction with him and the imposition of a competent supervisor.

   [54] Family Report, para 90

8. The father presented at Court on two successive days to conduct the hearing without legal representation. He was under a great deal of pressure in an unfamiliar environment. He did not exhibit the faintest symptom of intoxication during that period. He is therefore clearly capable of presenting normally to the children and so he should be able to constructively participate in infrequent visits with the children.

9. It was posited by the Family Consultant, and accepted by at least the mother, that the paternal grandmother would not be a competent supervisor of the children with the father. That was because she minimised the seriousness of the father’s drug addiction and failed to appreciate the harmful effects of his addiction upon the children. That argument was plausible, because the paternal grandmother’s evidence failed to properly acknowledge the significance of the father’s problem and the repercussions for the children.

10. Nonetheless, there is no doubting the paternal grandmother’s love for the children. There was an absence of evidence to found any conclusion she would not act to protect them from harm, even if the harm was threatened or caused by the father. If the occasions upon which she was required to supervise visits between the children and father were few, I have little doubt she would take her responsibility seriously. It is quite improbable she would deliberately expose the children to the father on occasional visits if he was visibly intoxicated. She called him a “dickhead” for using cannabis and recording a positive urinalysis result in February 2014, so her feelings on the matter are strong.

11. Aside from the father’s present unsuitability to care for the children without supervision, two other features of the evidence militated in favour of restricting the amount of time spent by the children with the father. The first was the adverse attitudes of the father and paternal grandmother about the mother and the second was the express reluctance of the eldest child to see the father.

12. The father was roundly critical of the mother and the paternal grandmother said she believed the mother was not a good parent to the children. Although the paternal grandmother said she and the father would not denigrate the mother to the children, their verbal and non-verbal cues would inevitably imply their dislike of the mother to them. The paternal family should have restricted opportunities to let their feelings about the mother leak to the children.

13. The eldest child told the Family Consultant she did not miss either the father or the paternal grandmother, but did miss the paternal grandfather and paternal cousins. She was content to visit members of the paternal family, but not if the father was present.[55] She made those comments in April 2013 and later visited the father at a contact centre between September and December 2013, apparently without any behavioural disturbance. The eldest child is still only nine years of age so she does not have the maturity necessary for her views to carry overwhelming weight. Nonetheless, the fact she expressed her reluctance about seeing the father to both the Family Consultant and the mother suggests the future regime of her interaction with the father should be fairly contained. On the other hand, the middle child is keen to see more of the father and little is known about the youngest child’s feelings towards the father.

    [55] Family Report, paras 75-76

14. It would be a mistake to make differential individual arrangements for the children to visit with the father. That would risk imparting to the children the implication that some of them are favoured over others by the father and paternal family. The orders must therefore strike a balance between visits to the father not being too frequent for the eldest child, but frequent enough for the middle child.

15. To her credit, the mother admitted the paternal grandparents, and particularly the paternal grandfather, were important figures in the children’s lives before their relocation to F Region. She was perfectly willing to accommodate the paternal grandparents’ occasional visits to see the children, provided the visits were confined to the district in which she lived and the father was excluded. For reasons already explained, there is no good reason to exclude the father from the visits, provided he is kept away from the mother and he is not intoxicated when in the presence of the children.

Conclusions and orders

1. The finding about the father’s commission of family violence necessarily means the presumption of equal shared parental responsibility does not apply (s 61DA(2)).

2. Since it is uncontroversial the children must live with the mother, she should have sole parental responsibility for them. The evidence does not suggest the parents should have equal shared parental responsibility for the children even though the presumption does not apply. They are unable to communicate with one another constructively.[56] That conclusion accords with the Family Consultant’s recommendation.[57]

   [56] Mother’s affidavit, para 158

   [57] Family Report, paras 95, 97

3. Since the mother has parental responsibility for the children exclusively, the consideration of certain residential outcomes does not confine the exercise of discretion (s 65DAA).

4. The salient questions are whether the children should spend any time with the father or paternal grandmother, and if so in either case, the manner in which it should occur.

5. The children should spend some time with the father. Their long-term psychological stability warrants the maintenance of their relationships with him, provided the risks he poses to them can be ameliorated.

6. The risk of his exposure of them to his commission of violent conduct towards the mother will be excluded, or at least minimised, by precluding his attendance at changeovers when the mother will be present and the prohibition upon his attendance at the mother’s home.  

7. The risks of harm to the children caused by the father’s use of illicit drugs will be attenuated by ensuring they only spend time with him infrequently, during daylight hours, in the region of the mother’s home, under the supervision of the paternal grandmother.

8. I reject the proposals of the mother and Independent Children’s Lawyer for an order restraining the children from spending any time at all with the father. Such a result would indeed be “draconian”, as the Independent Children’s Lawyer described it. Even though such proposals had the support of the Family Consultant,[58] that was inferentially in the context of the children spending time with the father, including overnight stays, on the G Region in his home or the home of the paternal grandmother.

   [58] Family Report, paras 96, 98

9. There is no need to make orders separately providing for the children to spend time with the paternal grandmother, as the Family Consultant envisaged.[59] She will necessarily be in the company of the children when they spend time with the father because of the supervisory role she will play. Since the mother and father’s separation, other than when at the contact centre, the children have generally always spent time with the father in the company of the paternal grandparents in any event.[60] The imposition of supervision is therefore not unduly onerous to the paternal family.

   [59] Family Report, para 99

   [60] Mother’s affidavit, para 63

10. Taking into account the features of the evidence already discussed, the children should spend time with the father in the company of the paternal grandmother for one day once every two months. That will total six visits each year. A seventh visit is allowed on Father’s Day.

11. The mother lives in a township in the F Region, situated about one and a half hour’s driving time from the homes of the father and paternal grandmother on the G Region. She has no car and no driver’s licence. To travel outside of the township in which she lives she is totally reliant on either the train or a bus.[61] The mother has a public housing lease for several more years with an option to renew it, so she expects to remain living in that location for the foreseeable future.

    [61] Mother’s affidavit, paras 186-187; Family Report, para 11

12. The children’s visits with the father and paternal grandmother should be confined to an area reasonably proximate to the mother’s home. A radial distance of 50 kilometres is arbitrary, but still gives the paternal family plenty of scope for indoor and outdoor outings with the children. There was no need to confine the visits to the township of the mother’s residence, as the Independent Children’s Lawyer proposed. That would be unnecessarily restrictive.

13. The orders provide for the paternal grandmother to exchange the children with the mother, or the mother’s nominee, at the IGA supermarket in the township of the mother’s residence. That is apparently the most public venue in the township. The father is restrained from attending the changeovers. Despite the mother’s pessimism about her relationship with the paternal grandmother,[62] the paternal grandmother said she could successfully exchange the children with the mother. Other than the father, who should not participate in exchanges of the children, the paternal grandmother is the only other party who can be bound by orders in these proceedings to do it.

    [62] Mother’s affidavit, paras 159, 168

14. The Independent Children’s Lawyer was concerned the mother may be overborne by the paternal grandmother at exchanges of the children to allow the children more time in the company of the paternal family. It would be difficult for the mother to resist such pressure or importunity because she is isolated, has no family support, and has been the subject of the father’s past family violence. That concern is addressed by an order made under s 64D(2) of the Act, preventing the orders from being varied other than by way of a subsequent order. I am satisfied of the need for such an order because the evidence invokes the considerations stipulated by s 64D(3) of the Act.

15. The mother was content to allow weekly telephone calls from the father and paternal grandparents to the children. In fact, the mother impliedly criticised at least the paternal grandmother for not having done so.[63] The mother was also content to allow written communication between the children and the father. The Family Consultant saw no problem with that. The orders therefore make provision for some communication by telephone and in writing.

    [63] Mother’s affidavit, para 170

16. An order is made permitting the father to obtain copies of the children’s school reports and school photographs. The mother agreed to him doing so. The father was critical of the mother for not providing him with details of the eldest child’s scholastic progress,[64] but he did nothing to get the information himself. He said he was unaware he was permitted to contact the school. The orders rectify that anomaly. An order restrains his attendance at the school so as to prevent him circumventing the orders about how and when the children spend time and communicate with him.

    [64] Father’s affidavit, para 33

17. The orders require the Independent Children’s Lawyer to explain the orders to the children in the manner she deems age-appropriate. That will avoid the prospect of the children receiving distorted explanations from either the mother or paternal family.

18. The remaining orders are self-explanatory and could not be reasonably opposed.

I certify that the preceding one hundred and thirty two (132) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 1 May 2014.

Associate:  Sarah Hesling

Date:  1 May 2014