SANTINI & SARDINA

[2014] FCCA 790

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANTINI & SARDINA [2014] FCCA 790

Catchwords:
FAMILY LAW – Parenting – where father has had long standing drug addiction and related issues.

Legislation:  

Family Law Act 1975 (Cth) ss.60CA, 60B, 61DA, 65DAA, 60CC and Part VII

MRR v GR [2010] HCA 4

Applicant: MR SANTINI

Respondent: MS SARDINA

File Number: WOC 441 of 2012

Judgment of: Judge Altobelli

Hearing dates: 3 & 4 April 2014

Date of Last Submission: 4 April 2014

Delivered at: Sydney

Delivered on: 14 May 2014

REPRESENTATION

Solicitors for the Applicant: Mr Santini in person

Counsel for the Respondent: Ms Humphreys

Solicitors for the Respondent: Rossi Simicic Lawyers

Counsel for the Independent Children’s Lawyer: Ms Eldershaw

Solicitors for the Independent Children’s Lawyer: Verekers Lawyers

ORDERS

1. That all prior parenting orders concerning [X] born [in] 2004 (“[X]”) be discharged.

2. That the mother shall have sole parental responsibility for [X].

3. That [X] shall live with the mother.

4. That [X] shall spend no time with the father.

5. That the father shall have no communication with [X] other than in accordance with Order 6.

6. That the father may send [X] letters, cards and gifts and the mother shall provide such communications to [X] unopened AND for the purpose of giving effect to this order, other than if the mother chooses to provide the father with a postal address for herself, such correspondence may be directed to [X] care of the father’s grandparents’ ([first names omitted]) address.

7. The mother shall authorise any school attended by [X] to provide the father copies of [X]’s school reports, newsletters, circulars and school photographs of [X] and forms for applying for such photographs, and the father may arrange with any school attended by [X] to receive copies of such documents at his expense.

8. That the mother be permitted to cause the child [X] born [in] 2004 to travel overseas at any time without the written consent of the father,

   
   

   Mr Santini.

9. That the mother, Ms Sardina born [in] 1976 be authorised to apply for and receive an Australian Passport for the child [X] born [in] 2004 without the written consent of the father, Mr Santini.

10. In the event any Passport issued to the child [X] born [in] 2004 expires then the mother is authorised to apply for and receive a new Australian Passport for the child [X] born [in] 2004 without first obtaining the written consent of the father, Mr Santini.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

WOC 441 of 2012

MR SANTINI

Applicant

And

MS SARDINA

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about [X], born [in] 2004.  [X] will be almost 10 years old by the time these reasons for judgment are delivered. I was asked to decide whether [X] should spend time with his father, and if so under what conditions.  His father is the applicant.  He is 42 years old, is a [occupation omitted] by trade, but currently is in receipt of a disability pension.  The respondent is [X]’s mother.  She is 38 years old and describes herself as undertaking home duties.  [X]’s parents married in 1998 and separated in 2005 when [X] was about one year old.  It is common ground that for most of the father’s adult life he has struggled with an addiction to drugs.  His case is that he is no longer addicted to drugs and that this should be no impediment to him having a relationship with his son.  Both the mother, and the Independent Children’s Lawyer, argue that there are such ongoing concerns relating to the father, principally but not exclusively due to drug use, that [X] should not spend time with his father.

Background

1. It is common ground that when the parents married in 1998 the father was a drug addict, struggled with alcohol, as well as with gambling. On the mother’s case, this continued throughout the marriage. On the father’s case he managed to control these activities during the marriage. The evidence indicates that the father was certainly functional and capable enough to hold down a job, indeed, a responsible job. They purchased a home together in 2003. The marriage appears to have become unhappy from 2003 onwards with the mother reporting the father’s increased consumption of alcohol and gambling as well as drug use, including intravenous drug use at home.  The mother reported, but the father denied, that from 2003 onwards the marriage became increasingly violent. 

2. The parties separated in 2005. For a period the father spent supervised time with [X], in the presence of his parents, the paternal grandparents.  It seems that the last time that the father spent time with [X], in any constructive and structured way, was on Father’s Day 2006 when there was an incident that precipitated the end of this contact. On 16 May 2007 the parties entered into final orders by consent which provided for the father to spend supervised time with [X] at Centre Care Wollongong, a supervised contact centre.  It is common ground that this did not take place and, indeed, the father’s evidence at the hearing was that he did not consider that supervision was necessary at this time, or at any time subsequently.

3. In 2008 the father was sentenced to 12 months imprisonment for supplying heroin. Once he left jail he became a client of the [B] Opioid Treatment Unit, and he has remained a client since then.  There was evidence at the hearing which suggested that the father had, in fact, seen [X] and spent time with [X] on a small number of isolated occasions since 2006. The present proceedings were commenced in May 2012.  

4. At the final hearing the father chose to represent himself but was assisted by his mother, the paternal grandmother, as a McKenzie friend.  His proposal was difficult to understand and only became apparent during the cross-examination of the father, by counsel for the Independent Children’s Lawyer.  Doing the best the Court can, it seems the father’s proposal was that there be a final order that he spend time with [X] on the following basis:

   a)There would be one, or at most two, supervised visits. 

   b)Thereafter and for the first 12 months, [X] would spend time with him each alternate weekend from Friday evening to Sunday evening, with a changeover to take place at a police station. 

   c)After 12 months it would proceed to an alternating fortnightly shared care arrangement.

5. The mother’s proposal, largely supported by the Independent Children’s Lawyer, was that she have sole parental responsibility, that [X] live with her and spend no time with the father.  In addition the mother sought some specific orders in relation to overseas travel and passports.  The mother’s minute of order is reproduced in the first schedule to these reasons.  The Independent Children’s Lawyer’s proposal is reproduced in the second schedule.  The only meaningful difference between the proposals related to the father being able to send [X] letters, cards and gifts, as well as the mother authorising the school to provide the father with information pertaining to [X].  By the end of the hearing, the mother communicated through her counsel that she did not object to these additional orders.

The Evidence

1. The father relied on his affidavits of 15 May 2012 and 11 October 2013.  In addition, given that the father was representing himself, evidence-in-chief was led from the father by the Independent Children’s Lawyer. The mother’s evidence consisted of her affidavits of 30 September 2013 and 14 March 2014. The evidence in the Independent Children’s Lawyer’s case primarily consisted of the Family Report prepared by Family Consultant Starling dated 22 July 2013 as well as Child Inclusive Conference memoranda dated 9 October 2012 and 18 February 2013.  The father, the mother, and the Family Consultant were all cross-examined at length.  In addition the Court had the benefit of a substantial quantity of documents produced on subpoena, that became exhibits.

The Applicable Law

1. In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)    The objects of this Part are to ensure that the best interests of children are met by:

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

   (c)     ensuring that children receive 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.

   (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)     parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)    parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)    to maintain a connection with that culture; and

   (b)    to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)    to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)    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 child’s parents to have equal shared parental responsibility for the child.

   (2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)    family violence.

   (3)    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, I am required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)    If:

   (a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)    the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends or holidays; and

   (b)    the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)    how far apart the parents live from each other; and

   (b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)    the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.

   Determining child's best interests
     (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
   Primary considerations
   (2)  The primary considerations are:
   (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, neglect or family violence.
   Note:          Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
   Additional considerations
   (3)  Additional considerations are:
   (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;
   (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);
    (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;
    (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;
    (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;
    (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;
    (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;
    (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;
    (h)  if the child is an Aboriginal child or a Torres Strait Islander child:
    (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
    (ii)  the likely impact any proposed parenting order under this Part will have on that right;
    (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
    (j)  any family violence involving the child or a member of the child's family;
    (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;
    (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;
    (m)  any other fact or circumstance that the court thinks is relevant.
   Consent orders
    (5)  If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
   Right to enjoy Aboriginal or Torres Strait Islanderculture
    (6)  For the purposes of paragraph (3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
    (a)  to maintain a connection with that culture; and
    (b)  to have the support, opportunity and encouragement necessary:
    (i)  to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

   (ii)  to develop a positive appreciation of that culture.

6. In MRR v GR [2010] HCA 4 the High Court said

   8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

   "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

   (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents."  (emphasis added)

   Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

   "(c)   consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."

   Sub-section (3) explains what is meant by the phrase "substantial and significant time".

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

1. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

Evidence of the Family Consultant

1. The Family Report follows a familiar pattern.  The Family Consultant interviewed both parents, and made relevant observations, on 8 July 2013.  Relevantly, in relation to the father the Family Consultant recorded at paragraph 13:

   Mr Santini appears to see Ms Sardina as responsible for the issues before the Court. He alleges that she has “brainwashed [X]” against him, that she has “stolen” from him (he alleges that she “syphoned” money from him prior to their separation), and that she has “virtually destroyed me” by no allowing [X] to spend time with him and from taking his money. He adds that he “can’t forgive her” due to her alleged behaviour. He does not consider that he has played a part in the issues before the Court.

   
   

   Mr Santini has not spoken to Ms Sardina since 2006. He said that he is unaware of decisions that have been made about [X] including what school he attends or where [X] is living. He does not believe that parental communication will improve in the future.

2. The father did not challenge this evidence.  Indeed, the evidence that he gave himself in court over two days is consistent with the Family Consultant’s record of the father at paragraph 13. Indeed, but that he continued to be firmly of the belief that the mother had “brainwashed [X]” and that she had destroyed his life by not allowing [X] to spend time with him.  The view recorded that he “does not consider that he has played a part in the issues before” continued to be what was almost a mantra in the father’s case.

3. At paragraph 14 the Family Consultant deals with the mother’s allegations about the father’s family violence:

   Mr Santini denies the allegations made by Ms Sardina about his alleged violent and aggressive behaviour towards her.  He said that he has “yelled, shouted and broke furniture” around

   
   

   Ms Sardina but denies that he has physically abused her or threatened to physically assault or kill Ms Sardina. He said that he is not a violent person.  He said that Ms Sardina would not have been, nor is she now, frightened of him.

4. Again, this evidence was not challenged in cross-examination and the father merely confirmed that he remained of the view that is represented at paragraph 14 of the Report.

5. Turning to the father’s drug use, at paragraph 15 the Family Consultant records:

   Mr Santini said that he has experienced a history of drug abuse.  He said that this included, prior to his marriage, injecting “speed”, “on occasion” drinking alcohol excessively during his marriage to Ms Sardina (from 1988 to 2005) and injecting “speed”, heroin and “ice” after the parental separation.  He described the period of time after his marriage ended as his worst, including his feeling depressed and “self destructing”.  He said that his drug abuse continued until he was incarcerated for supplying prohibited drugs (understood to be heroin) in October 2008.  Although Mr Santini said that he has not used illicit substances since release from goal (in 2009), he also indicated that his heroin use worsened after his medical issues regarding his legs arose (which appears to have occurred the year after his release from gaol).  He said that he has had no further contact with law enforcement since his release from goal.  Mr Santini said that he continues his involvement with the [B] Opioid Treatment Unit in Wollongong where he started counselling and monitoring of his methadone program since “before I met (Ms Sardina)”.  His current methadone dose is 130mg daily and he has been on methadone for 2 years.  He attributed his ability to remain drug free to his improved perspective on life and to his support from his psychologist, Ms W at the [B] Opioid Treatment Unit.

   
   

   Mr Santini said that his current alcohol use includes occasional and social use and he said that his alcohol use does not constitute ongoing alcohol abuse.

6. The issue of the father’s drug use was the subject of much careful cross-examination of the father by both counsel for the mother and the Independent Children’s Lawyer.  It would be fair to say that the Family Consultant detected an inconsistency in the father’s report about his drug use and when it was alleged to have ceased.  This inconsistency was glaringly magnified during cross-examination.  This will be discussed in further detail below. 

7. Turning to the father’s proposals, the Family Consultant recorded at paragraph 16:

   Mr Santini said that he would accept any time that he could spend with [X].  He said that [X] would have no issues with spending time with him and that any previously expressed reluctance from [X] (for instance as those expressed to this author at the Child Inclusive Conference in October 2012) was wholly a result of the mother’s alleged “brainwashing” of [X] and therefore should not be considered.  Mr Santini said that he would consider supervised time through Catholicare only if it were for a “few occasions” to then move towards time at his home (the paternal grandparents’ home).  He believes that [X] could begin to see him immediately.  He would support [X]’s time with him beginning with limited amounts of time to gradually moving to greater amounts of time, including overnight time.  He said that he would eventually like [X] to spend “more or less equal” with his father and his mother.

8. These views were largely consistent with the proposals articulated by him during the hearing.

9. The mother was also interviewed. She presented to the Family Consultant

   as open and concerned about [X] and the impact that him seeing his father might have on him. 

   Her greatest concerns seemed to be about [X]’s behaviour, particularly at school.  This is reported at paragraph 18 of the Report: 

   Ms Sardina said that [X]’s behaviour at school has improved this year.  She said that he has settled in his ability to socialise, is maintaining friendships and progressing with his schoolwork and she said that she is less worried about him.  Last year, Ms Sardina had been concerned about [X]’s reported aggressive behaviour, declining academic performance and his friendships.  She had organised for him to attend counselling with Psychologist Ms D (which she said began in February 2013) and had organised for him to see Paediatrician, Dr G (she said that [X]’s appointment is in August 2013).  She again raised concerns about the possible impact on [X] of his father becoming involved in his life, believing that his awareness that his father is asking to spend time with him has resulted in deteriorations in [X]’s behaviour in the past.  She said that [X] had been anxious about the assessment on this day and she noticed that his behaviour worsened after his previous Child Inclusive Conference appointment in October 2012.

10. The Family Consultant reported at paragraph 19 that the mother seemed to be encouraging [X]’s relationship with the paternal great grandparents and paternal cousins.  The Family Consultant records:

    She said that the paternal great grandparents speak about

    
    

    Mr Santini in a negative manner in the presence of [X] describing Mr Santini as a “bad” person who takes drugs and steals from [X].  She said that, although what the paternal great grandparents have discussed with [X] is accurate it is not appropriate for [X] to be included in such negative discussions about his father.

11. The mother described the father’s relationship with [X] at paragraph 20, in these terms:

    Ms Sardina said that [X] does not know his father.  She said that he was spending time with his father as arranged  and supervised by the paternal grandparents (described as inconsistent and limited to no more than four hours at a time) from the time of separation (November 2005) until [X] was aged two years four months (September 2006).  She said that, in September 2006,

    
    

    Mr Santini brought [X] back to her with a bruised cheek stating that he cannot watch him all the time and that he does not want to care for [X] again.  She said that [X] has not spent time with his father since this time despite there being consent orders made in 2007 providing for such time to occur.  Ms Sardina said that [X] is anxious and fearful of his father and that [X] believes that his father stole from him when he was a child, uses drugs, is “bad” and is going to “steal” him.  She said that she does not talk about Mr Santini to [X] and that [X] only ever mentions his father to her when a Court appointment is approaching.

12. The mother’s main concern, as reported to the Family Consultant, was that the father continued to have serious drug and alcohol abuse issues.  She was concerned that the father would be untruthful in his evidence about these issues and, moreover, that the paternal grandparents refuse to acknowledge the nature and extent of their son’s drug and alcohol issues.  Because of this, having supervision provided by them would be problematic. 

13. The paternal grandparents were interviewed.  The Family Consultant records at paragraph 24 that they expressed a negative opinion of the mother and blamed her for the end of [X]’s relationship with them, and the father “for no good reason.”  They told the Family Consultant, at paragraph 25, that they believed the father has not used drugs since his release from gaol in 2009.  They are recorded as telling the Family Consultant that they “believe that they would know if he were using drugs again.”  The paternal grandparents certainly offered themselves, to the Family Consultant, as providing an ongoing indefinite supervision for [X] to spend time with his father.

14. [X] was interviewed.  At the time of the interview he was nine years old.  The Family Consultant records in this regard, at paragraph 29-32 inclusive:

    [X] (aged nine years three months) appeared anxious and preoccupied with the possibility of seeing his father.  He was ambivalent about this, appearing curious as well as anxious about the possibility.  He expressed this ambivalence with comments like “I have to see my father”, “I want to see my father”, “what does he look like”, “I am scared and don’t want to see him”, “I want to go to talk to my Mum” (about whether he wanted to see his father).

    [X] spoke about a positive, close and dependable relationship with his mother.  He said that his mother understands his feelings and that he believes he can talk to her “about anything”.  He used his mother when he was deliberating about whether to meet with his father on the day of this assessment, going to her to discuss his feelings and asking her to help him decide.

    [X] described his father as “bad” stating that his paternal great grandparents told him that his father had stolen from him as a baby (his nappies and milk) and that his father takes drugs.  He does not remember spending time with his father and his internal representation of his father does not appear to be based on his own experiences of his father, but on pieces of information gleaned from external sources, coupled with his own fantasies about his father.

    [X] was confused about what he wanted to do about the prospect of spending time with his father past this assessment.  He swung from stating that he does not want to see him to then say that he would like to see him at Catholic Care Contact enter.  He again moved his ideas after he spent time with his father and said that he would like to see his father more often, especially if he is “good now”.

15. [X] was observed in the presence of both his mother and father.  The observations with his mother were positive, and unremarkable.  The observation with his father is recorded at paragraph 34 in the following terms:

    [X] was observed with his father.  This was the first time in at least three years when [X] had spent any time with his father and it was understandably an intense experience for [X].  [X] was significantly nervous and he benefitted from reassurance about having control over when the time could end and that this author would not leave him alone with his father.  Mr Santini was given boundaries about being child focussed and following [X]’s pace (not initiating hugging or touching).  [X] used the time to ask many questions, some of which he answered himself (“I know that you didn’t see me for all those years because you were bad, and I waited for you to call to see me, but now you’re good, aren’t you Dad? Are you good Dad?”).  He told his father that he missed having a “Dad” in his life and that he hoped that this could change.  Mr Santini initiated a hug to [X] (which this author had previously warned against), however [X] appeared to accept this positively.  Mr Santini repeatedly reassured [X] that he (Mr Santini) is always there for him and that he is “good”.  Mr Santini appeared to lose sight of [X] and [X]’s needs when he mentioned that it was Ms Sardina who has stopped him and [X] having a relationship over the previous years (blaming the mother) and that he wants to move towards an equal time type parenting arrangement (considered inappropriate to mention on their first meeting).  Mr Santini accepted this author placing boundaries on his conversation and accepted this author offering [X] some balance to his father’s comments. 

16. The Family Consultant’s evaluation commences at paragraph 39, concluding at paragraph 45.  It is important to set this evaluation out because all of the evidence before  the Court supports the accuracy and validity of the evaluation:

    This assessment identifies that Mr Santini’s drug issues, unfortunately, continue to be an issue.  The mother’s ongoing concerns appear to be confirmed by the subpoenaed material, especially where Mr Santini reports his ongoing poly-substance and alcohol abuse issues as late as October 2012.  Clearly,
    Mr Santini has long standing poly-substance abuse issues that would require lengthy (if not lifelong) treatment and support, something he is not considered to have accessed with success at this point in time.  For consideration to be given to whether [X] should spend time with his father, there would need to be reassurance that Mr Santini had maintained long term improvements in the management of his drug and alcohol abuse, especially were this time to be unsupervised.  Such reassurance was not obtained through this assessment.

    
    

    The parents do not speak to each other and they are considered to have no ability to communicate about issues regarding [X].
    Ms Sardina’s reports that she continues to be frightened of
    Mr Santini are considered to be her genuine feelings.  The problems in the parental relationship, coupled with concerns raised about Mr Santini’s drug issues, lend support to the continuation of the mother having sole parental responsibility for [X].

    
    
    

    Mr Santini alleges that Ms Sardina has “brainwashed” [X] against him.  This assessment was unable to find evidence that
    Ms Sardina has turned [X] against his father.  She is considered to have a negative opinion about the father’s capacity to parent [X] and, if the mother’s concerns are valid, then her lack of support for [X] to spend time with his father is assessed as protective and appropriate.  There are considered to be flaws in Mr Santini’s blame of Ms Sardina for his lack of relationship with his son.   It is highly likely that continued drug and alcohol abuse issues are going to result in negative outcomes in Mr Santini’s relationships in general and especially his relationship with his son.   Mr Santini’s blame of Ms Sardina highlights that Mr Santini has not taken responsibility for his actions and their consequences.  Developing insight and responsibility might be an important factor in Mr Santini’s journey of rehabilitation.

    
    

    [X]’s relationship with his father is limited.  Although he has an idea about who his father is, this appeared to be largely derived from what other people have told him rather than a sense of his own experience of his father.  Were Mr Santini to be involved in [X]’s life, it would be critical for him to be consistent, available and for him to show sensitivity in relation to [X]’s situation.  At the time of this assessment, unfortunately, there are considerable reservations about the fathers’ ability to provide this for [X].  This assessment did not identify any reassurance that [X] could spend time with his father unsupervised.

    There remains a question about whether [X] would benefit from spending, what appears likely to be, indefinite supervised time with his father.  The positives about such a proposal are that [X], who was clearly curious about his father, would be able to experience who his father is and be able to develop his own link to his father.  The negatives are that he could be exposed to his fathers’ significant personal problems and that [X] might feel a sense of rejection by his father and confusion were his father to continue to be unable to overcome these problems.  There are practical concerns about indefinite supervised time including that services are usually unable to offer indefinite supervised time and there are possibly concerns about who would cover the cost of the supervised time.  It was concerning that Mr Santini appeared to have unrealistic expectations about his relationship with [X] and the relationship’s progress, especially given the issues raised within this assessment. 

    An important consideration is that [X] presents as vulnerable.  He has experienced longer term school problems (both friendships and academic progress issues) and his presentation with this author has been confusing and intense.  He has already undergone changes in his schooling including now being in his third school.  His reported more settled behaviour in the year 2013, if accurate, is likely to have been assisted by his schooling remaining unchanged into 2013 and [X]’s attendance at counselling.  There would be concerns about [X] undergoing further change, especially if such changes might be transient in nature.  [X], were he not to spend time with his father, would likely feel some disappointment if he is not able to fulfil his (albeit ambivalent) wish to develop his relationship with his father.  He would likely need the ongoing support of counselling to assist him to deal with any negative emotions arising from the disappointment of not seeing his father.  Were [X] to begin to spend more regular time with his father then he would likely require a continuation of his counselling to assist him to adjust to this change, especially given the concerns raised within this report about the father.

    The paternal grandparents have a limited relationship with [X].  It is unclear how [X] would be able to develop a relationship with his paternal grandparents without his paternal grandparents and mother being able to maintain some level of communication.  The paternal grandparents’ distrust of Ms Sardina and their sense of blame towards her is considered a significant barrier to [X] being able to develop a relationship with them, especially if it is considered impossible for [X] to develop his relationship with his father.

17. As it turns out it is possible to conclude, based on all the evidence before the Court, that there can be no reassurance that the father has maintained long term improvements in the management of his drug and alcohol use.  There is no evidence to suggest that the mother has brainwashed [X] against his father.  There is no evidence to suggest that the father has accepted responsibility for his actions, and their consequences, on his relationship with [X].  There is no evidence to suggest that the father has developed insight, as part of his journey of rehabilitation. 

1. There is no evidence to suggest that the father would be able to provide for [X]’s emotional needs.  Indeed, the “unrealistic expectations” that the Family Consultant referred to at paragraph 43 of her Report, continued to be the case right throughout the evidence.  There is no evidence to suggest that the father would be able to change his behaviour to more adequately accommodate the vulnerabilities in [X], so clearly described in the Report.

2. The Family Consultant recommended that the mother have sole parental responsibility, that [X] live with his mother and spend no time with his father but that he be able to send cards and/or gifts.

3. The Family Consultant was extensively cross-examined by counsel for the Independent Children’s Lawyer, by counsel for the mother, and by the father himself.  The Family Consultant’s evidence was impressive by its clarity, and balance.  Despite her recommendation for no contact, for example, she was very clear that the reintroduction of contact between the father and [X] was possible, provided certain conditions were met.  The reintroduction would need to be sensitive, because it is

   about establishing a relationship, not re-establishing a relationship. 

   She urged that if this were to occur, it must not be “a roller coaster”. 

4. By this she meant that the father must be drug free, he must be mindful of his son, and available to him at all times.  It would have to start off being at least weekly, or certainly fortnightly for a few hours, initially supervised by someone independent.  The father would need to be focused on [X]’s needs, which the Family Consultant considered to be quite a challenge as the father had not demonstrated to her that he had a capacity to see things from [X]’s perspective.  Whilst the Family Consultant was, therefore, open to the idea of a sensitive introduction of [X] to his father, she was deeply sceptical as to the father’s ability to meet the conditions that she had described.

5. Another clear theme of her evidence was of [X]’s vulnerability.  She described him as a needy boy who was struggling with aspects of his behaviour, and progress at school.  The risk was that if his father was re-introduced to him inappropriately, it might amplify his vulnerability and regressive behaviours.  She pointed to the mother’s reports of [X]’s changed behaviours after the Child Inclusive Conference, and the Family Report interviews.

6. The Family Consultant categorically rejected any suggestion that the mother was alienating [X] from his father.  She emphasised that the mother presented a balanced view of the father, and that her anxiety relating to him was primarily because of his drug and alcohol use, matters that seem to have been corroborated on the material before her.  The other important factor contraindicating alienation was [X]’s obvious ambivalence about the father, that is, feeling torn about the issue, rather than having a black and white view.

7. When challenged about her pessimism in relation to the father, and his capacity to become a consistent feature in [X]’s life, she explained that this was based on her assessment of the father as, for example, holding the view that he had no issues in relation to drugs and alcohol and not being able to see that his personal issues were relevant to his relationship with [X], and not being able to understand why the starting point for the resumption of the relationship had to be so conservative.  She clearly was of the view that based on the material before her, and the father’s presentation to her, the father had not overcome his problems with drugs and alcohol.

8. The Family Consultant openly accepted that the absence of a relationship with his father would be a real loss to [X] and that, in all likelihood, one day [X] would search out his father.  To offset this, however, she believed the mother was a parent who was at least mindful of the father and genuinely wants him to be involved in [X]’s life provided it is safe.

9. The Family Consultant also gave evidence about the further risks to [X] of making an order for contact.  There was the risk that she had previously averted to of the father not being able to manage [X]’s vulnerability.  There was the issue of the father not being attuned to [X]’s emotional needs.  She also referred to the risk that if the father could not maintain appropriate boundaries and, for example, accuse the mother of brainwashing and sabotage (words the father himself used in evidence) this might put [X] in a situation where he had to choose between the two very different scenarios that he was being presented with by his parents, with the risk that he might simply reject one relationship in favour of the other.

10. The Family Consultant assessed the father as having minimal insight in relation to how his behaviours amounted to family violence, and might have been experienced by the mother.  She suggested that he really struggled to empathise with other people’s experience.  If a no contact order were made, the Family Consultant predicted that [X] would be somewhat disappointed, but also relieved because a decision had been made.

11. When cross-examined about supervised contact she explained that it is highly unlikely that a supervised contact centre would accept a permanent, ongoing order for supervision.  Moreover, the paternal grandparents were not suitable because of their blaming of the mother, as well as lack of insight into their son’s behaviour, needs, and impact of this on others.  The Family Consultant was, however, supportive of the concept of the father maintaining contact with [X] via the provision of gifts and cards though this would need to be facilitated in a neutral manner.

12. The Family Consultant was also cross-examined about certain statements alleged to have been made by the father to third parties, as recorded in various business records that were subsequently tendered before the Court.  As it turns out, and for reasons that will be articulated below, the Court accepts that the business records are correct records of what the father stated.  Thus, for example, the father represented to one of the staff at [B], the methadone clinic that he attends, on 6 January this year that he drank 350 mls of scotch most days. 

13. The Family Consultant, who this Court accepts has extensive experience in drug and alcohol issues, explained that this was about half a bottle and represented 10-15 standard drinks in a situation where the relevant guidelines suggested having no more than three or four standard drinks and abstaining three or four days per week.  It was also put to the Family Consultant that one of the business records dated 24 October 2013 from [B] includes observation of visible evidence of IV drug use, perhaps, 6-8 weeks old.  The Family Consultant described this as a matter “of great concern” as it suggested intravenous drug use as recently as October last year, in a context where he, that is the father, maintained that he was not using drugs.  The Family Consultant’s response to the record of the father indicating to a staff member at [B] on 6 January 2014 that he was “not ready yet” for rehabilitation, was again of “real concern”.

14. The father, of course, cross-examined the Family Consultant.  He was able to put to the Family Consultant his alternative hypothesis that [X]’s vulnerability and regression was, in fact, attributable to not having contact with him.  The Family Consultant rejected that.  She also rejected the suggestion that the changes to [X]’s household, and his life, that had been attributable to the mother’s lifestyle, was the cause of [X]’s behaviour.

15. The Family Consultant patiently and persistently explained to the father that if there were not such concerns about substance abuse, and if he could remain focused on prioritising his son’s needs over his own, then an ongoing relationship was possible.  She explained, almost with regret, that he had not provided the necessary assurances in this regard.

16. This Court accepts the Family Consultant’s evidence, and her recommendations.  As will be seen from the reasons to be articulated below, all of the Family Consultant’s concerns about the father were entirely validated by the evidence.  Indeed, it is quite possible that the Family Consultant was not fully appraised of the real extent of the father’s drug and alcohol issues on an ongoing basis, and of the highly problematic attitudinal issues that would prevent him prioritising his son’s needs over his own.

The Mother’s Evidence

1. By way of overview the mother’s evidence was that she has been, at all relevant times, [X]’s primary carer.  Throughout the marriage the father suffered from alcohol, drug and gambling issues which became progressively worse until the separation in 2005.  The relationship was also a violent one, with the father’s violence directed not just to the mother, but even to his own parents. There were prior separations, before the final separation in 2005. In her affidavits she gives detailed evidence about the father’s drug problem, including finding syringes in the house. She also describes, in detail, the problems the father experienced with alcohol, gambling, and the violence perpetrated on her.

2. The mother deposes that on separation she left behind all of [X]’s belongings and his necessities including nappies, bottles, dummies, etcetera. Neither the father, nor the paternal grandparents would make these available to her. She explains that after separation she tried to encourage the father spending time with [X], through supervisors, but the father would not consistently attend. The last occasion that [X] spent time with his father, supervised by his parents, resulted in [X] injuring himself as a result of the fall, but the father did not take him to the doctor. Even after consent orders were entered into on 16 May 2007, the father did not take up the opportunity given to him in those orders for supervised time to take place. Thus, whereas she completed the intake at the supervised contact centre in Wollongong, he did not.

3. [X] was two years old when the father last spent time with him, apart from what she described as three occasions when she and [X]

   have bumped into him in public places.

4. On the mother’s case, [X] has not spent time with his father since he was two years old.  She describes the anxiety that [X] experienced, and the general deterioration in his behaviour, particularly at school, following the Child Inclusive Conference and the Family Report interviews.  [X] has been attending on a psychologist, Ms D, and has expressed concerns to the mother about spending time with the father.

5. The mother also gives evidence in support of her application for permission to travel overseas and to obtain a passport for [X].  In particular she explains that she has travelled to [country omitted] three times since separation, in each case returning.  She regards Australia as her home.

6. In her oral evidence the mother gave evidence about an incident that took place at the home of the paternal great grandmother on the weekend immediately before the hearing.  She was visiting with [X] the paternal great grandmother, with whom she maintains a good relationship.  While she was there, sitting and talking with her, the paternal grandparents arrived.  The mother gave evidence that she could see them through the screen door, and hear everything that was said.  The great grandmother got up, went to the door, asked the grandparents what they were doing there, and asked them to leave. 

7. Both [X] and the mother could hear what then transpired.  The mother gave evidence that she heard the paternal grandmother say words to the effect: 

   She knows she’s going to lose her son in court…we will take him away…he’s probably not even our own son… 

   The mother’s evidence was that both she and [X] were scared and, that night, [X] wanted to sleep in her bed.

8. In cross-examination by the father an alternate version of the events that took place outside the screen door of the paternal great grandmother’s home was put to the mother.  She did not accept this alternate version, and maintained the evidence that she had given.  The father also challenged the mother about the evidence that she gave about family violence, and further put to her that she is actively undermining [X]’s relationship with the father.  The mother clearly maintained her evidence about family violence, and clearly rejected the father’s assertion about her undermining any relationship.

9. The Court heard no evidence which would cause it to reconsider the veracity, or accuracy, of the mother’s evidence whether contained in her affidavit, or in her oral evidence.  She gave evidence in a clear, calm matter, despite being cross-examined by the father who was, at times, quite aggressive in his manner.  For reasons that will become clearer below, the Court accepts the mother’s evidence in its totality and, indeed, prefers the mother’s evidence over the father’s where it conflicts, as it does in many places.

The Father’s Evidence

1. The father’s evidence was highly problematic, from many different perspectives. At a very basic level, his affidavit evidence was minimalist and, as will be seen below, in cross-examination was demonstrated to be quite deficient. Moreover, the manner in which he gave evidence did not enhance its credibility.  He was frequently unresponsive, often evasive, and routinely aggressive and argumentative. At one point, in the witness box, he pointed his finger menacingly at the mother. He raised his voice at times.  At other times he was more contained and even demonstrated the occasional, indeed rare, moment of insight. 

2. His evidence resonated with a number of themes.  The first theme was that the mother had brainwashed [X] against him.  The second theme related to his drug addiction and was to the effect “what I’ve done in the past I’ve done to myself and have harmed no-one else.  I am a changed person now.”  The third theme in the father’s evidence related to his views about the mother.  Highlights in this regard include

   I won’t give her a cent…she’s not responsible.  She would spend it on herself…she has destroyed me…it’s all the mother’s fault…she is a saboteur and a brainwasher…it is because of her that [X] has never lived with me…if it had anything to do with my parents, it’s all provoked by my wife…she’s just making that up…she left because she had money from me…she knew I was a drug addict before she married me …

3. There are a number of important issues in respect of which the father’s evidence is quite different from records of representations he made to third persons, as contained in business records.  The Court prefers the business records, over the father’s evidence.  This is partly for the reasons set out above, relating to the father’s credibility generally.  It is also clear that the father genuinely struggled with recollection at times, something that is perhaps unsurprising given the evidence about the nature and extent of his addiction to drugs and alcohol in the past.  Moreover it is inherently unlikely that the business records, prepared by a disinterested, independent, and sometimes expert person would be incorrect, or slanted against the father.

4. The father’s evidence, for example, is that he is not addicted to alcohol.  Notwithstanding that, there is a clear and unequivocal business record dated 6 January 2014 in which the father is recorded as having said to a registered nurse at [B], his methadone clinic, that he was consuming “average 350 mil scotch most days”.  In response to this, in cross-examination, he maintained that that was his consumption in the past (something that is clearly correct, and borne out by other business records), but not in the present.  He went on to explain that 350 mls of scotch, for him, is about four drinks, and that he consumed this possibly three times per week in January 2014. 

5. He demonstrated a cavalier attitude to his alcohol consumption, even that which he admitted to.  Thus, for example, when it was put to him that the Family Consultant was of the view, based on her experience, that 350 mls of scotch was at least 10 standard drinks his response was to the effect: “to some people it might be”.  The Court does not accept the father’s explanation.  It is more likely than not that the record made 6 January 2014, less than three months before the day on which the father gave evidence, is probably correct.  It is a fact consistent with the father’s own description of himself as “an alcoholic” at the time the mother married him, and his own descriptions of his problematic alcohol abuse which feature throughout the documents produced on subpoena by [B], New South Wales Police, and the local area health service.

6. The father gave evidence that he was not a violent person.  He agreed, however, that he had admitted that he had

   yelled, shouted and broke furniture

   around the mother, whilst denying that he physically abused her, or threatened her.  When challenged about the yelling, shouting and breaking furniture he described his actions as “somewhat inconsiderate”, which is in itself a somewhat bizarre self-reflection.  When pressed, somewhat later in cross-examination, he agreed that he has

   got a temper…and tend to scream a lot. 

7. The father was then confronted with the police records dating back to August 2002 relating to a verbal and physical altercation between the father, and his own father, the paternal grandfather.  The police record was put to him and that he said:

   I don’t fucking care, I’ll be back and hit them on the fucking head, I’ll kill them. 

   There are comments attributed to him, and made in the presence of other family members.  The COPS entry then recites:

   at this time the defendant in front of the four police officers present has walked briskly up to a sensor light fixture in the front yard to the home and punched with his right fist the sensor light, damaging this fixture and leaving the wires exposed. 

8. He was charged and convicted of destroying or damaging property and an AVO was taken out against him.  On 22 April 2003 he was charged and convicted of contravening the said AVO.  When it was put to him that this evidence was quite inconsistent with his assertion that he was not a violent person he sought to externalise responsibility for the incident saying that it was “all provoked by my wife”.

9. The father was cross-examined about a more recent example of violence, namely the conviction for common assault in March 2011 in respect of which he was given a bond of good behaviour for two years.  The father explained that he recalled that.  He explained that

   I was with a girl who was an ice head. 

   The context of this comment indicated that the woman in question was addicted to the drug, ice.  He referred to a fight between them which resulted in him being pushed into a glass door as a result of which he was convicted for assault, but she was not. 

10. He explained that the relationship with the “ice head” ended in February 2013.  He was then cross-examined about a number of other violent incidents involving the relationship with the woman, called Ms L, which are well documented in the cops entries.  Whilst the father denied the version of the violence incidents recorded in the COPS entries, that were put to him, the Court once again prefers the versions contained within the business records of the New South Wales Police, as opposed to the father’s version which seems to have been reconstructed for the purposes of the hearing.  Clearly the father was involved in a violent relationship with Ms L, a relationship which only ended in February 2013.

11. The father’s assertion that he is not violent is plainly at odds with the objective evidence.  He was violent towards his own father, and other members of his family.  He was violent towards his girlfriend, Ms L, in a relationship that ended early last year.  It is far more likely than not that the mother’s allegations about the father’s violence throughout the relationship are true, and the father’s denials are disingenuous.  The incident involving Ms L in March 2011 in which the father was injured will be revisited in the reasons below.

1. The father’s drug addiction was also the subject of much cross-examination, and documentary evidence.  The father’s evidence about his drug addiction will be set out first.  His affidavit of 15 May 2012 was prepared with the assistance of a solicitor.  At paragraph 19 of the said affidavit he deposes:-

   I previously used illegal drugs, but have not done so since prior to my imprisonment in 2007.  I am currently on methadone and my dosage has been declining for some time.  I expect to be off it entirely in the near future.  I have no objection to undertaking any tests.

2. In his oral evidence he said a number of things about his drug addiction.  For example, in the context of the need for supervised contact he said that this was

   not at all necessary” because “I’m headstrong now – I know where I’m going. 

   At another point in cross-examination about his drug addiction he said

   I am a recovering addict, and will be the rest of my life. 

   When challenged about the inaccuracy of paragraph 19 of his affidavit (a matter that will be considered in further detail below), he said

   that’s years ago…look at where we are at now. 

   He later said:

   I have the disease of addiction…every day I have to convince myself not to use…I do not use now… 

3. When challenged about the business record of 6 January 2014 he said that

   I am off drugs…alcohol is not a problem for me…I do not need rehab. 

   In his re-examination he said words to the effect: “She knew I was a gambler, drug addict and alcoholic long before we got married.  I stopped all of that.  When she left I did go on a destructive path but I only hurt myself.”

4. It was the case of both the mother and the Independent Children’s Lawyer that the father was minimising the nature and extent of his past and present drug problem.  Perhaps the strongest evidence they adduce in relation to the most recent drug use is a business record produced by [B] dated 24 October 2013, and prepared by Dr A who the father agreed had treated him.  The father agreed that he probably told Dr A something that would cause Dr A to record that the father had had no heroin for three plus months. 

5. The father agreed that Dr A performed a routine physical examination including an inspection of his arms.  Dr A’s record notes that there was visible evidence of recent IV use being old marks, “six to eight weeks”.  The father’s case is that Dr A got it wrong because he had not been injecting drugs intravenously and that, in fact, the marks that Dr A observed on his arm were marks created by the weekly blood tests that the father provided as part of his treatment for deep vein thrombosis.  The evidence does, indeed, confirm that the father suffers from deep vein thrombosis. 

6. Even if the father had been providing weekly blood tests, something that he says has been going on for several years, the Court accepts the submissions made on behalf of both the mother and Independent Children’s Lawyer that it is inherently unlikely that Dr A, a medical officer at a methadone clinic, would not be able to identify the difference between a track mark from IV drug use, from the mark caused by providing a blood sample.  Moreover, the other problem with the father’s explanation is that it is inconsistent with the observations made of his arms in all the preceding meetings with doctors from [B]. 

7. The Court does not accept the father’s explanation.  As will be seen from the discussion of the evidence to follow in these reasons the father’s continued, at least occasional use of heroin is consistent with earlier representations he made at his methadone clinic, which are recorded in their business records.  Indeed, when the record of 24 October 2013 is considered in the context of earlier records the most likely scenario is that the father had injected drugs intravenously in the months leading up to 24 October 2013.  The father’s explanation was entirely disingenuous.

8. The father again saw Dr A at [B] on 11 October 2012.  He told Dr A on that date that he had last used heroin “yesterday”, that is, 10 October 2012 and that he took $300 worth of heroin intravenously.  The doctor’s physical examination of his arms is recorded to demonstrate visible evidence of recent IV use.  The father denied telling Dr A that he used $300 worth of heroin intravenously the day before seeing him.  He said that the record is mistaken and that, if anything, he was telling him something that happened in the past.  He accepted, however, that he had marks on his arms. 

9. Indeed, the father said he had “plenty of them”.  Curiously, on this occasion he did not seek to justify these marks by reference to the blood tests even though, according to the father’s own evidence, he would have been giving his weekly blood tests at that time.  Again, it is much more likely than not that the business record is correct.  In his evidence the father explained that he was given a few days’ notice of when he had to attend at [B] for a review.  One can only assume, based on the father’s own evidence, that even though he had a few days’ notice of his appointment to see Dr A on 11 October he nonetheless injected himself with heroin the day before either fully conscious of the consequences, or totally indifferent to them.

10. The father saw Dr A on 5 July 2012. The record indicates that the father told Dr A that he was using heroin, half a gram, once a month.  The father’s evidence about this particular record was conflicting. On the one hand he agreed that maybe he did tell Dr A that he used heroin once or twice, but then he said the record was mistaken. Again, Dr A records observing visible evidence of recent IV use being a single needle track in the left upper arm. Again, it is far more likely than not that the business record is an accurate record of what the father told

    
    

    Dr A.

11. The father saw Dr A on 5 April 2012.  The record indicates that he told Dr A that he was using a $150 shot of heroin intravenously every second – third day.  Dr A recorded visible evidence of recent IV use in the father’s left calf.  The father didn’t cavil with this record of 5 April 2012.  By his own admission, therefore, as at April 2012 he was using heroin intravenously every second or third day.

12. The father saw Dr A on 25 March 2011.  The only intravenous use disclosed to Dr A, according to the record, is IV amphetamine use “couple of days ago”.  Visible evidence of recent IV use was present including needle tracks and scarring.  The father also disclosed to Dr A that he had suffered a deep laceration to his forearm.  As it turns out, this is the laceration that the father suffered in the violent incident with his girlfriend at the time, the ice head known as Ms L.  The father was admitted to hospital as a result of this incident and his admission record dated 17 February 2011 records the father admitting that he took cocaine. 

13. Indeed, the clinical notes record in this regard:

    [Mr Santini] admitted to using cocaine yesterday. 20-30 lines. 

    What becomes apparent by cross-referencing the [B] records with the New South Wales Police records, and the hospital records is that the father’s cocaine usage may well have played some role in the violent incident involving Ms L which seems to have resulted primarily in a very serious injury to the father requiring urgent surgery and a lengthy hospitalisation.  A link between drugs and violence is established.

14. The [B] records also contain a number of drug analysis reports.  In June 2012 methyl amphetamine was detected.  So, too, in February 2012. 

15. The totality of the evidence before the Court about the father’s drug use leads to a number of findings.  Firstly, the father clearly lied at paragraph 19 of his affidavit sworn 15 May 2012.  His use of illegal drugs continued well after 2007 and, indeed, this Court finds that it is more likely than not that he continued to use heroin in about October 2013.  The father also clearly lied about a declining methadone dosage.  His self-prognosis contained in paragraph 19 of expecting “to be off it entirely in the near future” had no reasonable basis then, and has no reasonable basis now.  It is more likely than not that the father will continue to be dependent on methadone. 

16. It is more likely than not that the father’s use of intravenous drugs continues, though the frequency may well be less than it has been historically.  The father’s insight about the nature and extent of his ongoing drug problem is limited.  Occasionally in evidence he manifested a flash of insight acknowledging, for example, that he suffered a “disease of addiction”.  His understanding of the impact of this on his life was frighteningly clear at times:

    …every day I have to convince myself not to use…

17. What was equally frighteningly obvious, however, was his lack of understanding as to how that might impact on the matters before the Court and his relationship with [X], and the risks to [X].  At best, the father was seeking to compartmentalise his drug abuse into one tiny part of his life that would, somehow in his mind, not get in the way of his physical and emotional availability for his son.  From [X]’s perspective, however, the risk issues arising from the father’s past and probably continued drug use, with all the consequential fallout in other aspects of his life needs to be examined more broadly.

Meaningful Relationship

1. Section 60CC(2)(a) requires the Court to consider the benefit to [X] of having a meaningful relationship with both of his parents. The effect of the orders sought by the mother and Independent Children’s Lawyer would be that [X] does not have a meaningful relationship with his father. This consideration must, of course, be taken into account with all other considerations, both primary and additional.

2. The reality of this case is that [X] does not presently enjoy a meaningful relationship with his father. The Family Consultant was quite clear in her evidence when she said, in the context of exploring the possibility of making orders for contact with the father, that “it was about establishing a relationship with the father, not re-establishing” that relationship. The evidence indicates that there has been no meaningful contact between the father and [X] since 2006. Moreover, the evidence indicates that the father was primarily responsible for this in the sense that he did not take advantage of the 2007 final orders in relation to [X]. The Court simply does not accept the father’s case, implicit or explicit, that the mother was somehow responsible for the loss of his meaningful relationship with [X].

3. The benefit of a future meaningful relationship between [X] and his father was carefully considered by the Family Consultant.  The Family Consultant was of the view, and accepts, that [X] is both curious about his father and anxious about the prospect of seeing him.  The Court accepts the Family Consultant’s view that there is an inherent benefit in [X] having a relationship with both his parents and, indeed, that it is likely that [X] will seek his father out in the future, if no time is facilitated. 

4. Nonetheless, the Court also accepts the Family Consultant’s view that when the benefit of the relationship is balanced against the possible negative impacts, particularly on such an already vulnerable child, the balance falls against making an order for [X] to spend time with his father.  The Family Consultant clearly, and sensitively, articulated the pre-conditions for a sensitive reintroduction of [X] into his father’s life.  His father would have to be drug free, mindful of his son, available to him and consistent.  The father would need to be focused on his son’s needs, and be able to understand things from his son’s perspective. 

5. The totality of the evidence before confirms that the father would not be able to meet these pre-conditions.  There remains significant issues about whether the father is drug free.  His consumption of alcohol is problematic, particularly in tandem with drug use, and this would impair his ability to be consistent, mindful and available.  The father had many opportunities in his evidence to demonstrate even a flash of insight into how [X] would experience the reintroduction of his father into his life, but failed to do so. 

6. His intransigence about supervised contact is further evidence that that father simply does not have what it takes to be able to support [X] in a sensitive reintroduction into his father’s life.  On balance the evidence confirms that the benefits of [X] establishing a relationship with his father are heavily outweighed by the risks to him.  Thus, whilst in an ideal sense there is benefit to [X] of having a meaningful relationship with his father, the fact is that it doesn’t presently exist at the moment and there is no reasonable scope for optimism that it will ever occur in a fashion that minimises the adverse impacts on [X].

Protecting the Child from Harm

1. Section 60CC(2)(b) focuses on the need to protect [X] from harm. The evidence of the risk of harm to [X], from his father, is overwhelming. There is no suggestion that the father would deliberately harm his son – by no means. The risk is that the father would inadvertently harm his son by what he says, does, or fails to do. His unresolved drug and alcohol issues are the primary source of this risk. The totality of the evidence leads the Court to conclude that the father continues to struggle with drug use, and continues to consume high levels of alcohol, and simply lacks the insight to understand how these are matters that go to the risk to [X].

2. The father’s evidence about his drug and alcohol consumption is plainly unreliable, and the more objective and independent sources of evidence are to be preferred.  The father is unable to control his addiction to drugs and what appears to be his heavy consumption of alcohol, perhaps as frequently as on a daily basis.  It may well be that the father has reduced his intake of drugs as compared to previous years.  However, for the Court to be satisfied that there is no risk of harm to [X] the father would have to demonstrate more, and in particular, that he had gained an insight into the nature and extent of his drug and alcohol problem and was actively taking steps to address it.  That insight is plainly absent. 

3. It is more likely than not that as recently as late last year he was taking drugs intravenously.  It is quite possible that the father will read these reasons for judgment and still not understand what the Court is talking about.  For the sake of the father, therefore, the Court will express its concerns in greater detail, and by reference to an event that the father should be quite familiar with.  The father will no doubt recall the incident that occurred on 16 February 2011 involving his then girlfriend, Ms L, who he referred to as the ice head. 

4. When all the sources of information about that incident are examined together, and taking into account the father’s own evidence, what becomes clear is that there was a violent incident between the father and his girlfriend at a time when he was both under the influence of cocaine, and heavily intoxicated.  She suffered harm.  He suffered very serious harm resulting in hospitalisation for an extended period.  Despite this incident, even the father concedes that the relationship then subsisted for another two years. 

5. Thus, there was a violent incident in the course of the relationship with someone who the father, no doubt, had quite some affection for.  Harm was suffered by both him and her which coincided with him being under the influence of alcohol and cocaine.  This all occurs in the context of a case where the father’s sworn evidence (15 May 2012) is that he has not used illegal drugs

   since prior to my imprisonment in 2007. 

6. One would have thought that the risk to [X] would be obvious, in these circumstances.  If the father could do so much harm to himself, and to his partner, in a situation where he was so heavily under the influence of drugs and alcohol, why couldn’t he do the same to his own son? 

7. Again, the risk is not that he would deliberately do this, but rather, as a result of being under the influence, he would inadvertently harm his son.  It is no answer for the father to say that he would not harm a family member, or someone who he no doubt loves as much as he loves his son.  There is ample evidence before the Court of the father’s ability to harm those who are close to him including his partner, [X]’s mother, and his own parents. 

8. The totality of the evidence indicates that there is an overwhelming need to protect [X] from the physical or psychological harm that he would be subjected to, or exposed to, as a result of his father’s abuse, neglect or violence.  [X] cannot be protected from this by use of supervised contact, because the father flatly rejects that as anything but a temporary measure, on the basis that he doesn’t consider that it is necessary.

9. Any benefit to [X] of having a meaningful relationship with his father would, in any event, be offset by the risks to him of having contact with his father.

[X]’s Views

1. [X]’s views are a highly relevant consideration in this case.  The best source of the evidence of his views is the Family Consultant’s evidence, and Report.  He is ambivalent about spending time and communicating with his father.  At one level he would like to have a relationship with his father, but at another level understands the issues surrounding this.  He is both curious and eager about the prospect of a relationship with his father, but worried about it.

2. [X]’s views need to be considered in the context of his vulnerability as is described by the Family Consultant in the Report, particularly at paragraphs 37 and 38.  [X] was experiencing behavioural and academic problems at school.  He appeared anxious, confused and preoccupied.  His behaviour was reported to deteriorate after coming into contact with his father at the Child Inclusive Conference, and Family Report interviews.  The school records suggest that he was struggling with poor concentration, poor receptive language skills, and struggling in relationships with friends.  He is presently being supported by a psychologist.  Thus, [X]’s vulnerability provides a more than ample understanding as to why [X] would be both worried, but curious and eager, in relation to spending time with his father.

3. At the highest, [X]’s views about the issue before the Court would be regarded as ambivalent.  It is not possible to interpret the totality of the evidence on this consideration but to amount to a clear indication that [X] wants to spend time with his father.  The more likely scenario is that identified by the Family Consultant, that is, that at some time in the future, [X] will seek his father out.  One can only hope that, when this happens, the father will have the sensitivity to manage this.

The Nature of Relationships

1. Section 60CC(3)(b) requires the Court to consider the nature of [X]’s relationships with his parents and other relevant persons. All of the evidence suggests that he has a close relationship with his mother that is stable and dependable. For all practical purposes she has been the main parent figure in his life. Despite the father’s criticism of the mother, the evidence results in a conclusion that she has been able to prioritise [X]’s needs over her own.

2. It would seem that [X] has a good relationship with the paternal great grandparents, something in respect of which the father was most critical for reasons that seem to have more to do with the breakdown of his relationship with this part of his family, rather than anything to do with [X].

3. By contrast to [X]’s relationship with his mother, [X]’s relationship with his father is for all practical purposes non-existent other than in the sense that he has a clear picture in his mind of who his father is.  The evidence suggests that the mother has managed to contain any misgivings and reservations she has about the father, even though the evidence indicates they are more than soundly based.

Participation in Decision Making, Spending Time and Communicating with the Child

1. The clear evidence is that the father did not take advantage of the final orders dated 16 May 2007 which, at the very minimum, would have provided for supervised contact at what was then known as Centre Care, in Wollongong.  He chose not to take advantage of these orders.  His evidence was both at that time, and continuing today, he didn’t believe that supervised contact was necessary.  An objective look at his drug taking history since then certainly suggests to the contrary.  The father says that the mother basically “disappeared” but he did nothing to seek to enforce the orders in all that period.  Again, this is unsurprising given the more objective history of events since then that so clearly indicates he continued to struggle with drug and alcohol issues.

2. In a theoretical sense the mother might be criticised for making unilateral decisions about [X], in the context where the 2007 orders provide for equal shared parental responsibility.  The father complains that she moved house frequently, spent extended periods of time overseas, and disrupted [X]’s life by, for example, changing his schools.  Given the history that the Court now knows, the reality is that in practical terms the mother was the only parent available to [X] and was best placed to make the decisions that she did. 

The Parent’s Obligation to Maintain the Child

1. The father pays minimal child support which is deducted from his Centrelink benefits. The amount goes nowhere near meeting [X]’s reasonable needs, by any objective standard.  When it was put to the father in cross-examination that he could do more he made his view robustly known, the effect of which was that the mother could not be trusted with the money.  The evidence before  indicates that even if the father’s only income is Centrelink benefits he somehow manages to fund purchases of what must be significant amounts of alcohol, and occasional drugs, out of that income.  It is bitterness, lack of perspective and insight that leads the father not to make further contributions to his son’s financial needs, rather than any lack of capacity.

Likely Effect of Change

1. Section 60CC(3)(d) requires the Court to consider the likely effect of changes in the child’s circumstances. The orders proposed by the Independent Children’s Lawyer, and the mother, indeed, are the orders that create the least change for [X]. The father’s proposal would amount to seismic change for [X] and, as discussed above, the evidence clearly states that the disadvantages of this change far outweighs the benefits.

Issues of Practical Difficulty and Expense

1. On any of the proposals before the Court, this consideration is not enlivened.

Parental Capacity

1. The mother’s capacity to meet [X]’s needs is not in issue.  She has done an admirable job of meeting the totality of [X]’s needs for most of his life.  Specifically, this includes his emotional needs.  The father’s contention that she has brainwashed [X] against him is quite unsupported by the evidence.  By comparison with the mother, the father’s capacity to provide for [X]’s needs is highly questionable.  Even if one were to put aside the substantial concerns the Court has about the father’s drug and alcohol consumption, he plainly lacks the insight to even understand what his son’s emotional needs are, let alone to be able to meet them.

Attitudes to the Child and to the Responsibilities of Parenthood

1. There can be no criticism of the mother in this regard.  In difficult circumstances, she has done all that could be reasonably expected of a mother.  Was it irresponsible of her to marry, and subsequently have a child with, a person who she knew was a drug addict, alcoholic and gambler?  No reasonable criticism can be extended in this regard.  Even on the father’s own case the marriage did turn him around for a period, but the father’s actions are attributable to himself, and not to anything the mother did.  Again, by contrast, the father’s continued struggle with drugs and alcohol indicates irresponsible parenthood and a very poor attitude to his son.

Family Violence

1. There is more than ample evidence that leads the Court to conclude that the father was violent towards the mother, towards his own parents, and towards a subsequent partner, Ms L.  It would seem that most, but not necessarily all, of the family violence was fuelled by drugs and alcohol.  The father’s extensive criminal record also indicates his propensity to use violence in situations.

Making an Order Least Likely to Lead to the Institution of Further Proceedings

1. The Court concludes that an order in terms of that proposed by the mother and Independent Children’s Lawyer is, in fact, the one that is least likely to lead to the institution of further proceedings.  Even if an order were made, for example, for an introduction of [X] into his father’s life that commenced, initially, with a period of supervised contact, there is no reason to be optimistic or confident that the father would comply.  His lack of insight into the issues before the Court amply demonstrate the risk that the matter would be brought back before the Court. 

Parental Responsibility

1. Both the mother and Independent Children’s Lawyer propose an order for sole parental responsibility. On the evidence before the Court the statutory presumption contained in Section 61DA does not apply because of the father’s abusive behaviour and family violence. In any event the presumption would be rebutted as an order for equal shared parental responsibility could not possibly be, on the evidence before the Court, in [X]’s best interests. The risk issues, and the lack of insight on the father’s part, are overwhelming contra-indicators of shared parental responsibility.

Equal Time or Substantial and Significant Time

1. Whilst  is not required to consider either equal time or substantial and significant time,  records that, based on the evidence before it, neither would be in the best interests of [X], or reasonably practicable.

Conclusion About Best Interests

1. This is in many respects a very sad case.  The father has had since 2007 to address the issues that he confronted at that time, namely drug and alcohol abuse.  He has not been able to do so.  Concerns about drugs and alcohol continue to date.  The father’s lack of insight about these issues, and the clearly negative view that he holds about the mother, adds another layer of complexity to this case.  Supervised contact is ruled out as an alternative, partly because of the matters just discussed, but also because the father rejects supervision as an option.  In any event an ongoing order for supervised contact at a centre could not be justified by reference to the broader public interest. 

2. Any other form of contact between [X] and his father is strongly contra-indicated by the evidence, particularly having regard to his vulnerability.  In all the circumstances the only conclusion about what is in the best interests of [X], albeit one reached with some sadness, is that there be no contact between [X] and his father. 

3. The Independent Children’s Lawyer proposed, and the mother eventually agreed, that the father may send [X] letters, cards and gifts care of the paternal great grandparents.  The father was opposed to this because, it would seem, his relationship with the paternal great grandparents has broken down.  The order will nonetheless be made given that the only role of the paternal great grandparents will be to act as a drop box for letters, cards and gifts. 

4. The Independent Children’s Lawyer proposed an order that would have the result of the school providing to [X]’s father information in relation to his progress as well as giving him access to school photographs.  The Court could not discern any opposition to this.

5. The mother sought orders in relation to overseas travel and passports.  This was opposed by the father.  There is no logical basis for his opposition.  There is no evidence of flight risk, on the evidence before the Court.  Even though the mother will have the benefit of an order for sole parental responsibility, the further specific orders that she sought about travel and passports will be made, to avoid difficulties when she deals with the relevant government authorities who, sometimes, appear not to understand the concept of sole parental responsibility.

6. In all the circumstances the Court considers the orders that it makes to be in the best interests of [X].  The orders are in accordance with the Independent Children’s Lawyer’s proposal together with 5, 6 and 7 of the mother’s minute.

I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Judge Altobelli.

Associate: 

Date:  14 May 2014

First Schedule – Mother’s Proposed Minute of Orders

1. That all previous parenting Orders be discharged.

2. That the mother have sole parental responsibility for the child, namely [X] born [in] 2004.

3. That the child live with the mother.

4. That the child spend no time with the father.

5. That the mother be permitted to cause the child [X] born [in] 2004 to travel overseas at any time without the written consent of the father,

   
   

   Mr Santini.

6. That the mother, Ms Sardina born [in] 1976 be authorised to apply for and receive an Australian Passport for the child [X] born [in] 2004 without the written consent of the father, Mr Santini.

7. In the event any Passport issued to the child [X] born [in] 2004 expires then the mother is authorised to apply for and receive a new Australian Passport for the child [X] born [in] 2004 without first obtaining the written consent of the father, Mr Santini.

Second Schedule – Independent Children’s Lawyer’s Proposed Minute of Orders.

1. That all prior parenting orders concerning [X] born [in] 2004 (“[X]”) be discharged.

2. That the mother shall have sole parental responsibility for [X].

3. That [X] shall live with the mother.

4. That [X] shall spend no time with the father.

5. That the father shall have no communication with [X] other than in accordance with Order 6.

6. That the father may send [X] letters, cards and gifts and the mother shall provide such communications to [X] unopened AND for the purpose of giving effect to this order, other than if the mother chooses to provide the father with a postal address for herself, such correspondence may be directed to [X] care of the father’s grandparents’ ([first names omitted]) address.

7. The mother shall authorise any school attended by [X] to provide the father copies of [X]’s school reports, newsletters, circulars and school photographs of [X] and forms for applying for such photographs, and the father may arrange with any school attended by [X] to receive copies of such documents at his expense.