Sapsford and Barden - [2016] FCCA 1675

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAPSFORD & BARDEN

[2016] FCCA 1675

Catchwords:
FAMILY LAW – Parenting – where father long-term drug user – whether risk of harm to child – recognition contact.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187
MRR v GR [2010] HCA 4
Watson v Foxman (1995) 49 NSWLR 351

Applicant:

MR SAPSFORD

Respondent:

MS BARDEN

File Number:

WOC 255 of 2013

Judgment of:

Judge Altobelli

Hearing dates:

9 and 10 May 2016

Date of Last Submission:

15 June 2016

Delivered at:

Wollongong

Delivered on:

29 July 2016

REPRESENTATION

Counsel for the Applicant:

Mr Moutasallem

Solicitors for the Applicant:

Stacks Heard McEwan

Counsel for the Respondent:

Mr Fowler

Solicitors for the Respondent:

Bailey Mullard Lawyers

Counsel for the Independent Children's Lawyer:

Mr Grew

Solicitors for the Independent Children's Lawyer:

Verekers Lawyers

ORDERS

That the Mother have sole parental responsibility of the child, X born (omitted) 2008 (‘the child’).
That the child live with the Mother.
That the child spend time with the father as agreed in writing, or otherwise, failing agreement, on four occasions each year, at such times and days as agreed to between the parties or otherwise, failing agreement, the Saturday immediately following the child’s birthday, Easter, Father’s Day and Christmas, for a period of not less than 2 hours, and on each occasion, such time shall be supervised by (omitted) Contact Services, or CatholicCare Supervised Contact and Changeover Centre, (omitted), or Care (omitted), (omitted).
For the purposes of the time the child spends with the father pursuant to Order 3, that the Father be responsible for meeting the costs of supervision.
For the purposes of Order 3, the Mother shall email the Father, at least thirty (30) days prior to any visit and nominate the day, time and a location for the visit and the Father is required to confirm in writing, within fourteen (14) days thereafter, that he will attend those visits.
That any time the child spends with the father shall take place in a public place.
These Orders operate as the authority of the Mother, for the Father to obtain information he may seek from any medical practitioner as to prognosis, diagnosis and treatment rendered or educational service provider, copies of school reports and general information about the child’s progress, in relation to the child.
That the mother notify the father, of any decisions she makes in the exercise of her parental responsibility within 30 days of such decision occurring, by email.
That, for the purpose of the parents communicating in respect of the time the child spends with the father, such communication is to occur by email, unless otherwise agreed.
That each parent keep the other informed of their email address, and of any change to such email address, within 14 days of any change occurring.
That each parent be restrained from denigrating the other parent or any member of that parent’s household or family in the presence or hearing of the child, and shall immediately remove the child from the presence of any other person who does so.
That the Father be restrained from contacting or approaching the Mother and the child by any means whatsoever except for the purpose of implementing these Orders or as otherwise agreed by the mother in writing (including via email or SMS in an emergency).
That the father be restrained from attending any school the child attends EXCEPT with the express consent of the mother, in writing.
That the father be restrained from photographing or videoing the child by any means PROVIDED THAT, this Order shall not prevent any person supervising the time the child spends with the father taking a photograph of the child and/or the father, for the father to retain such photograph.
Nothing in these Orders shall prevent the father from:
(a)Providing a gift to the child; or
(b)Bringing not more than two other paternal family members to attend;
when spending time with the child PROVIDED that the father has first obtained the mother’s consent.
That the mother be at liberty to apply for the issue and/ or renewal of an Australian Passport for the child, without the signature or consent of the father.

Orders 1 to 16 above are Interim Orders only until the date being 3 calendar months after the making of these Orders. From that time these Orders become Final Orders.
The parents have leave to relist this matter before the Court at any time before the date being 3 calendar months from the date of the present orders for the purposes of making further submissions, or to lead further evidence, as contemplated by paragraph 111 of these reasons for judgment.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 255 of 2013

MR SAPSFORD

Applicant

And

MS BARDEN

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment explain the orders that the Court has made in relation to a child, X, who is 8 years old. X’s father, who is 38 years old, sought orders that would enable him to spend time and communicate with X. X’s mother, who is 41 years old, opposed the making of those orders.

Background

Both parents reside in the (omitted) area. X lives with his mother and her three other children from a previous relationship, A, B and C.
The parents commenced cohabitation some time in 2006 or 2007 – nothing turns on this. They separated in April 2012, over four years ago.
The Father admits that he has a long criminal history, both in Queensland and in New South Wales as a result of his addiction to heroin. He is now on the methadone program and expects to be for the rest of his life. He has been in and out of jail as a result of the criminal activity he engaged in when he was a drug addict. He was last released from jail in September 2009 and commenced the methadone program with (omitted) House in (omitted) at that time.
The first interim consent orders in this case were made in August 2013 and provided for the Father to spend supervised time with X at Catholic Care. An Independent Children’s Lawyer was appointed for X. Two Child Dispute Conferences were ordered, but the Father only attended the second one. A Family Report was ordered, and is evidence before the Court. The Father’s supervised time with X continued until December 2015, when the Mother ceased the same.
There are some uncontentious issues in this case. X appears to have enjoyed the time that he has spent under supervision with his father. The parents cannot communicate effectively. They have no trust for each other. The Mother feels that the Father presents a risk of harm to X. The Father feels that the Mother is seeking to undermine his relationship with their son. The Mother alleges that the Father has greatly minimised his drug abuse issues and that he perpetrated serious family violence not just towards her but to her children as well. The Father denies those allegations and alleges that the Mother has fabricated the family violence allegations, including coaching the children in that regard.

The competing proposals

By the time of closing written submissions, the Mother proposed that she have sole parental responsibility, that X live with her and otherwise have no contact or communication with his father except via legal representatives. She proposed that she provide the Father with information relating to his progress twice yearly but that the Father otherwise be restrained from approaching any school where X lives.
The Father’s proposal was that there be equal shared parental responsibility, that X live with his mother but spend time with him as follows; for a period of 12 weeks it would be each alternate Saturday between 10 am and 4 pm, and, thereafter, each alternate weekend from 10 am Saturday until 4 pm Sunday. He also proposed contact on special days. Changeover would be at (omitted) McDonalds. He agreed to an injunction restraining him from consuming any illicit substances within 48 hours prior to spending time with X. He proposed some detailed orders about exchanging information in relation to X.
X was represented by an Independent Children’s Lawyer, Ms M. She proposed that the Mother have sole parental responsibility and X live with her. Consistent with the Mother’s proposal, she proposed that the Father not spend time with, or communicate with, or attempt to communicate with, X or his mother. Also consistent with the Mother’s proposal, the Independent Children’s Lawyer suggested that every six months the Mother notify the Father about the child’s progress in terms of health, welfare and education, as well as provide photographs.

The evidence and the hearing

The hearing took place over two days, 9 and 10 May 2016. The Father was represented by his counsel, Mr Moutasallem, the Mother by her counsel, Mr Fowler, and the Independent Children’s Lawyer by Mr Grew. The evidence was completed in two days, but, particularly because of the volume of the documents tendered in evidence, an opportunity was given for all counsel to provide written submissions.
Those written submissions were comprehensive in their scope, particularly in terms of systematically identifying the relevant evidence in the subpoenaed documents that were tendered, and making appropriate submissions about the significance of this evidence.
In the Father’s case, he relied on his affidavit of 22 April 2016. The Father was extensively cross-examined.
In the Mother’s case, she relied on her affidavit at 22 April 2016. She was also cross-examined.
In the Independent Children’s Lawyer’s case, a Family Report and two Child Dispute Conference memoranda had been prepared by Family Consultant, Ms S, who was also cross-examined.
The documents tendered in evidence consisted of:

Date	Exhibit No.	Tendered by (eg. A/W, R/H)	Description of Exhibit/MFI
9.5.16	R1	R/M	Photo of A/F holding knife
A1	A/F	Ltr from (omitted) Centre dated 27/4/16
A2	A/F	Extract from (omitted) Centre clinical notes
10.5.16	R2	R/M	CDC Memos x 2 – 18/12/13 and 12/3/14
R3	R/M	Nsw Police
R4	R/M	QLD Police
R5	R/M	(omitted) House
R6	R/M	Corrective services
R7	R/M	FaCS
R8	R/M	Centre Health
ICL1	ICL	Family Report
17.5.16 (sent by email)	A3	A/M	CatholicCare bundle
A4	A/M	FaCs bundle
17.5.16 (sent by email)	ICL2	ICL	CatholicCare1
ICL3	ICL	CatholicCare2
ICL4	ICL	(omitted) public school

This is a case where the credibility of the parents was a very important consideration. This was particularly important in the Father’s case. He quite frankly conceded the difficulties that he experienced in the past with both criminal behaviour and his drug addiction. He conceded in cross-examination, for example, that he was well aware that his drug use would be an important issue in the case and that the Court would want to be reassured that, whatever past problems he had, there was no present risk, so far as X was concerned. He seemed to appreciate the importance of candour in giving his evidence. It is important, however, to make findings of the creditworthiness of each of the parents.
After setting out what the Court considers to be the applicable law, the Court will make findings in general terms about credit issues but leave the specifics to a subsequent discussion about discrete issues in respect of which the Court was asked to make findings. The Family Consultant’s evidence will then be set out and discussed. The Family Consultant was the only witness in this case who was both independent and expert, hence the discrete treatment of her evidence. The remaining evidence will then be discussed by reference to the relevant considerations under the Family Law Act1975 (‘the Act’).

Applicable law

In determining parenting matters under Part VII of the Act, the Court must regard the best interests of the child as the paramount consideration: s.60CA.
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.
At the very core of Part VII of the Act 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.
If the presumption applies, the Court is 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.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court 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.

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

Credit issues?

The main credit findings in this case are based on inconsistencies between the evidence of a deponent/witness and other documents that are considered to be more reliable. However, the demeanour of the witnesses is also relevant. The Court is conscious of the limitations of demeanour evidence.
This is a case where credit findings are important. That means the court needs to decide whether to accept the evidence of a witness, or witnesses, in whole or in part. Credit findings may be based on independent evidence eg. a business record, public record, or the evidence of an independent person. Independent evidence may lead to a finding that the evidence of a witness should not be accepted. Often witnesses give competing versions of events. Each version of the event must be considered carefully and compared to other evidence including independent evidence. In some cases a party needs to rely on evidence of spoken words as the foundation of a cause of action, or to establish an essential fact in issue. In Watson v Foxman (1995) 49 NSWLR 351 at 319 McLelland CJ in Equity said:
Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court “must feel an actual persuasion of its occurrence or existence”. Such satisfaction is “not…attained or established independently of the nature and consequence of the fact or facts to be proved” including the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”: Helton v Allen (1940) 63 CLR 691 at 712.
Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a causes of action based on s.52 of the Trade Practices Act 1974 (Cth) (or s.42 of the Fair Trading Act), in the absence of some reliable contemporaneous record or other satisfactory corroboration. That is the position in the present case. There is no contemporaneous document in evidence which supports the making of any such promise or representation as is relied on and no other satisfactory corroboration.
Thus a court must always be conscious of the fallibility of memory and the distorting impact of self-interest. How a witness gives evidence is an important consideration. Thus a witness who “gives evidence in a forthright way, unperturbed under cross-examination, the court may well be disposed to believe the evidence than would be the case with a halting and prevaricating witness”: Cross on Evidence at [1285]. Nonetheless the court must be very careful if making findings based solely on demeanour and must provide adequate reasons for making such findings: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187. Ipp JA on that case, with whom Mason J and Tobias JA agreed said at [29]:
Often important issues of credibility involve sub-issues. Often, objective facts, or facts that are probable, are capable of having significant bearing on the sub-issues. In cases of this kind, it is incumbent upon trial judges to resolve the sub-issues and to explain, by reference to the relevant facts, the conclusions to which they have come. This having been done, they should then turn to the ultimate facts in issue and explain how their decisions on the sub-issues have assisted them in forming a conclusion on the ultimate issue. It is only when adequate reasons of this kind are given that an unsuccessful party will be able to understand why the judge has believed his or her successful opponent.
The Father was not an impressive witness. Quite apart from the inconsistencies that will be discussed below, he struggled to answer questions responsively. He seemed to find it hard to understand the question that was asked, even though the question was quite simple, and questions had to be repeated many times over. It was as if he needed time to think about and understand the question before answering.
This sluggishness could easily be confused for unresponsiveness in other situations. In this case, sluggishness becomes unresponsiveness when coupled with inconsistencies in the Father’s evidence, both internal and external, as well as examples of his attempts to shrewdly manipulate his answers to suit his purpose. If the Court had formed the impression by the close of the Father’s cross-examination that his evidence must be viewed suspiciously, that suspicion was more than confirmed when his evidence was contrasted to business records of his previous representations to other people. The Father was, regrettably, a plainly unreliable historian in relation to matters he put before the Court.
The Mother was only a marginally better witness. Mr Moutasallem’s cross-examination of her certainly exposed the weaknesses in her allegations about family violence. And, were it not for the Family Consultant’s expert evidence in this regard, the Court would not have accepted her allegations. She did herself disservice by only thinly disguising her disregard of the Father and externalising all responsibility for decisions that ultimately she must bear the responsibility for, especially in regards to the cessation of supervised time. These might more properly be described as attitudinal issues as a parent rather than credit issues.
On balance, the Court the finds that where the evidence of the Mother and the Father is inconsistent, when one has regard to the more objective material before the Court, the Mother’s evidence is to be preferred.

The evidence of the family consultant

Ms S conducted the first Child Dispute Conference in this matter on 18 December 2013. The Father did not attend. The Family Consultant records the Mother’s allegations about the Father’s “significant and repeated incidences of family violence” commencing when she was pregnant with X. The Child Dispute Conference records the Mother’s allegations of the Father’s criminal past, including violence. She also referred to the Father’s “long and significant history of poly-substance abuse”, with the consequence that the Father was “frequently incapable of caring for the children due to being “on the nod” and that she would “find used needles in his clothes which were on the floor.” Significantly, the Family Consultant also records the Mother’s allegation that the Father “was verbally abusive towards her older children”. She also raised concerns about his anger management issues and ongoing poly-substance abuse issues. She raised concerns about the Father’s inconsistency in communicating and spending time with X.
A further Child Dispute Conference was held on 12 March 2014. The Father attended. By this time he had commenced spending supervised time with X through CatholicCare. The Family Consultant records that the Father’s proposal at the time was that X spend three nights a fortnight with him. At the Child Dispute Conference the Father indicated that he would be supportive of having X one night a fortnight with him. The Mother’s position had hardened somewhat – her position was that as the Father had not made any genuine progress with his drug and alcohol problems, or his anger management problems, X should not be spending time with his father at all.
The Mother reiterated her allegation that the Father had perpetrated family violence against her and her children and specifically that he had been physically abusive towards her son, C. The Father strenuously denied these allegations. He agreed he had been physically violent to other people in the past, for which he had been incarcerated. He denied that he has anger management problems. He accepted that he was on the methadone program and that due to stomach complaints and a lack of appetite he smokes marijuana. The Father conceded that the Mother was a “good” enough parent.
The Family Consultant’s Family Report is dated 23 July 2015 and is based on interviews conducted 18 June 2015. The Family Consultant also had regard to subpoenaed documents that were available at that time. At the time of the interviews the Father’s proposal was equal shared parental responsibility, that X live with his mother, and spend one night a fortnight with him. The Mother proposed sole parental responsibility and that X live with her. She was unclear about whether she proposed any time with the Father and if so what time and whether or not it required supervision.
It is important to reproduce what the Family Report records as the Father having said, because of issues of inconsistency. In relation to his drug use history, the Father is reported to have said as follows:
Mr Sapsford said that he began using heroin when he was aged 16 years, intravenously at age 17 years and last used in late 2006. He said that he is currently on the methadone program and, at the time of this assessment, said he is prescribed 130 mg of methadone. He said that he has previously attempted to lower his dose from 130mg which has, each time, resulted in him “busting” and using heroin again. He estimates that he has relapsed four times since he ceased his use in 2007. Mr Sapsford denies that he abuses his prescription methadone as the mother alleges and said that he takes his does as prescribed and orally. Mr Sapsford said that he smokes cannabis, estimating this to be a half to one “joint” each day (costing $5 to $10) at night. He said that the cannabis helps him to sleep and he believes it helps him remain free from using heroin. Mr Sapsford said that he completed one drug test (he was unsure of the date) which returned a positive result for cannabis. He said that he has not completed subsequent requests for drug testing, because he cannot afford them.Mr Sapsford said that he is able to abstain from using cannabis at those times he is caring for X and he denies that he would be experiencing withdrawals that would in any way impact on his capacity to care for X. Mr Sapsford said that he is not involved in counselling of any form and does not appear to have participated in counselling for issues arising for his past drug addiction.
The Father denied that he had any issues controlling his anger, or that he had ever physically hurt the Mother or her children and he alleged that, in fact, the Mother was making false allegations about these issues in order to ensure that X does not have an ongoing relationship with him. Indeed, his concern was that during the relationship with the Mother he had observed her actively denigrating the three older children’s father in their presence.
The Father maintained that X enjoys his time with him and that the Mother cares for him well enough. He complains that they do not communicate and thus he was unaware of progress in X’s life. The Father was concerned that the Mother’s aim was to extinguish him from the child’s life.
The Family Consultant formed the impression that the Mother appeared to be genuinely unsure about what parenting arrangement would best balance X wanting to have a relationship with his father, and the safety concerns that she has about the Father’s drug and anger problems. Another concern was that, historically, X’s relationship with his father had been sporadic and included lengthy periods of time of no contact which X had experienced as broken promises from his father.
The Mother’s concerns about the Father are summarised at paragraph 21 of the report:
Ms Barden said that Mr Sapsford has a long history of poly substance abuse problems. She said that she became aware, three years into her relationship with him, that he was an injecting heroin user and that he had started using heroin from 16 years of age. She alleges that he smoked marijuana heavily when they were together. She said that, when he was released from gaol in September 2009, he was released on the methadone program. She alleges that, soon after his release, he would, instead of orally taking his methadone as prescribed, inject it into his neck (as she said that he told her that the veins within his arms had collapsed). Ms Barden said that, around the time when X was aged three, she found used needles in the house within easy reach for X. She suspects that Mr Sapsford was buying additional prescription and illicit substances at this time. Ms Barden said that “there is no way” that Mr Sapsford could contain himself to having one half to one joint a night and that, if he is smoking cannabis, she highly suspects, based on her past experience of him, that he is smoking significantly more than that. She is suspicious that Mr Sapsford has significantly under reported his drug use because he has not provided has not completed drug testing (she believes that he completed one test which returned a positive result), has not completed drug rehabilitation and/or counselling and that he has not accepted the seriousness of his drug history including the impact of his drug use on his past behaviour and parenting.
The Mother was concerned about what she regarded as the Father’s verbal abuse of the children and physical abuse of C and A.
The Family Consultant records her observations of her interview with X as follows:
X (aged 7 years 3 months) was a talkative boy who understood that he was at this appointment to discuss his family and he thought that it was an opportunity to say that he wants to go to his father’s home to spend time with his father. He explained that his father has “lots of presents” there for him and he was eager to receive these presents and play with them.
X described a close and positive relationship with his mother. He said that she is someone who he identifies as helping him when he feels upset or sad and who understands how he feels. He said that he mainly feels happy and safe while with his mother. X said that he feels a “bit scared” when he is in trouble from his mother as he does not like receiving consequences for misbehaviour (having something taken from him or being “grounded”). He described an ambivalent relationship with Mr P, at times saying that he does not like him and at other times saying that he loves Mr P and calls him “Dad”. He said that he had, the night prior to this assessment, gotten into trouble from Mr P as he and A, who share a bedroom, were misbehaving instead of going to sleep. He said that Mr P, after repeatedly asking him and A to stop throwing things, became cross and yelled at them both, grounding A.
X repeatedly and clearly said that he wants to spend more time with his father. He expressed curiosity about where his father lives and what his father’s place looks like. He said that he wants to play with the presents that he believes are at his father’s home for him. X said that, were his father to not have presents waiting for him, he would still want to spend more time with him. X said that he “always” feels safe with his father, enjoys his time with his father and looks forward to going to spend time with him. He believes that his mother wants him to spend time with his father. He thought that he was not allowed to spend time with his father at his father’s home because “Court has to say I can go (to his father’s home)”.
The observations about C assume significance:
C (aged 15 years 11 months) presented as articulate, genuine and considered in his responses. C said that, although he was anxious about being present on the day of these interviews and seeing Mr Sapsford, he thought that it was important that he speak about his experiences (and that they be written about) in the hope that his account could provide X some protection from experiencing similar treatment in the future.
C described his mother as “compassionate”, “accepting” and balanced in her parenting. He believes that she is a solid support for him and said that he is always able to depend on her. C described a positive relationship with Mr P.
C said that he does not have a relationship with his father. He described his father as being “unfit” to parent him. He said that Mr Sapsford was “like a father” when he and his mother were in a relationship. C said that he does not want to have an ongoing relationship with Mr Sapsford.
C remembers that his mother and Mr Sapsford, during the early stages of their relationship, had a “good” relationship and that they appeared to love and respect each other. C described his relationship with Mr Sapsford as, initially, positive. He described Mr Sapsford “unravelling” from 2009 including becoming increasingly reactive, angry, explosive and abusive towards his mother, him and his siblings. He said that Mr Sapsford behaved at his worst between the years 2009 to 2012.
C said that he was physically and emotionally abused by Mr Sapsford. He said that Mr Sapsford would overreact to smaller incidences (like accidentally being woken up) and scream abuse, threaten him and his siblings and often use excessive and extreme discipline. C alleges that Mr Sapsford has stomped on his back; kicked him in the ribs; and, with his hands around C’s throat, pinned him against a wall, lifting him off his feet. He alleges that the majority of these incidences occurred when Mr Sapsford was caring for him and his siblings while his mother was working.
C said that he witnessed Mr Sapsford physically hurt his mother including an occasion where Mr Sapsford allegedly grabbed his mother by the hair and was “trying to hit her head against a bowl”. He described other incidents during which, he said, Mr Sapsford “struck” his mother and was “psychologically” and “physically” abusive towards her.

In relation to A the Family Consultant records:
A (aged 13 years 2 months) presented as a teenager who wanted this author to see him as tough and independent. It also was apparent, through his discussion of his love and interest in animals and his concerns for X, that he has a great capacity to care and love. He is in Year 7 at (omitted) High School, and attends a behavioural class (called (omitted)). A said that he has “many” friends and that he is enjoying high school “heaps more” than primary school. A appeared to have difficulty remembering past events in general. He said to this author that his memory is generally “bad”, though this author was unclear if he preferred to not speak about past events or if this was related to his cognitive capacity to remember.
A said that he does not see his father and that, if possible, it would be good for X to be afforded the opportunity to have a relationship with his father. He said that there were times that, when Mr Sapsford was at “his best”, he liked Mr Sapsford and thought positively about him, but that he also had “bad” memories of Mr Sapsford at those times when Mr Sapsford was “being an idiot”. He said that Mr Sapsford was “not really safe” to be around. A said that this is his main concern should X spend time with Mr Sapsford without anyone else being present.
A spoke about close and positive relationships with his mother and Mr P. He described “Mr P” (Mr P) as “like a dad”.
In relation to B, the Family Consultant records at paragraphs 39-40.
B (aged 11 years 8 months) presented as a mature and thoughtful girl. She is in Year 6 at (omitted) Primary School and said she enjoys all aspects of school.
B said that she remembers when Mr Sapsford used to live with them. She said that her mother used to “always” work while Mr Sapsford would care for her and her siblings. She said that Mr Sapsford used to physically discipline her and her brothers and gave examples that appeared to indicate Mr Sapsford using excessive force. She described him as explosive in character, reacting to situations in a way that left her feeling frightened and worried about what would occur. She said that he yelled abuse at her mother, her and her brothers.
The observations of X with both his parents were positive. X sought physical proximity to his father and consistently spoke with him.
The Family Consultant was requested to have regard to the documents produced on subpoena, as part of the preparation of her report. She summarises the information that she reviewed at paragraphs 43-47 inclusive:
NSW Police Records and QLD Police Records regarding Mr Sapsford include an extensive history of criminal charges and events (beginning in February 1995 and the last noted record 19 September 2008) with the majority of charges appearing to pertain to theft and drug related offences with the exception of his conviction for reckless wounding on 19 September 2008.
Corrective Services Records include Mr Sapsford’s records of his incarceration from September 2008 to September 2009 for reckless wounding. He was considered to be a compliant inmate who identified that his offending was strongly related to his alcohol abuse. Records include Mr Sapsford’s history of poly-substance abuse (heroin, methamphetamine, cannabis and benzodiazepines) from when he was aged 17 years and his attendance at drug rehabilitation centres (including (omitted) Rehab, (omitted) Rehab, The Bridge Program and (omitted) Rehab). A Pre-sentencing Report by Mr M, completed 18 June 2008, noted that Mr Sapsford was attending (omitted), (omitted), where he was prescribed Subutex and was drug tested (as part of heroin addiction treatment) from the beginning of 2007 to the time of that report. Mr Sapsford satisfactorily completed his Parole on 18 September 2010.
NSW Health Records report Mr Sapsford, in September 2009 being released from custody with a probation order that included a requirement that he continue his methadone program at (omitted) House in (omitted). Mr Sapsford, on 8 January 2010, is noted to have verbally abused (omitted) House staff over a dispute about him wanting his methadone to be available at a local chemist rather than at (omitted) House. He began using takeaway prescription methadone in May 2010. He failed to complete his urine analysis from October 2012 to March 2013. He otherwise is noted to be a compliant and cooperative client. He tested positive for oxazepam (a benzodiazepine) on 3 August 2010. Mr Sapsford, on 5 July 2010, reported to be having up to one gram of cannabis each day.
Family and Community Services Records include a notification, made 25 October 2012, in which C had disclosed to the notifier that Mr Sapsford had kicked him in the chest, thrown him (reportedly more than 15 times) against a wall, pulled his hair and called him derogatory names including “hippie” and “druggo”. The notification includes that C said that Mr Sapsford had slapped his mother and that C had witnessed Mr Sapsford’s use of needles and observed him smoking cannabis.
Catholic Care Records of X’s supervised time with his father include that the mother and father were assessed for intake on 10 January 2014 and 7 February 2014 respectively. Supervised time began on 21 March 2014 and has consistently occurred since that point. X’s time with his father is noted to have progressed positively at all times. X is noted to appear confident, happy and as enjoying his time with his father and Mr Sapsford is considered to have been appropriate and child focussed at all times. There are issues raised about Mr Sapsford’s ability to pay for the service and Ms Barden’s expressed limitations in attending each fortnight with the competing demands of her other children.
The Family Consultant’s evaluation commences from paragraph 48 of her report. She noted that no concerns were raised about the Mother’s parenting capacity. It was noted that the Mother had complied with requests for numerous drug tests, all of which had been clean and that she had incurred considerable financial burden in complying with these tests.
The Family Consultant believed that X’s relationship with his father was such that he would probably adjust without issue to spending more time with his father. All of the records of supervised contact suggested that X enjoys his time with his father and no issues were raised in that regard.
At paragraph 50 the Family Consultant raises her concerns about the risk of abuse to X, in the following terms:
There are, however, concerns raised about X spending additional time with his father including concerns about X being at potential risk of child abuse while in the care of his father. C, A and B gave accounts of Mr Sapsford being frightening, having an explosive temper and being an angry man. Their account of Mr Sapsford was supported by Ms Barden’s concerns about Mr Sapsford’s ability to appropriately contain his anger and her concerns that Mr Sapsford, at least in the past, did not provide the children with safe and nurturing experiences. C described what can only be labelled as abusive and damaging experiences while he was in the care of Mr Sapsford and, if these disclosures are considered genuine, it is of the utmost importance that X not be subjected to such experiences in the future. This is especially concerning given that X, at his age, lacks the ability to protect himself from parental abuse.
It is significant to note that the Family Consultant specifically considered the possibility that C’s disclosures were not genuine. At paragraph 51 she continues her consideration of the risk issue:
It is noted that Mr Sapsford denies that he has hurt or abused C, A and B and he counter alleges that Ms Barden has coached the children to fabricate such allegations. This author considers it unlikely that the mother has coached C, A and B into fabricating accounts of Mr Sapsford, given that the children each, in their own way, presented what appeared to be genuine accounts of their views and experiences. It is noted that X has a positive relationship with his father and that this would be considered unlikely were Ms Barden coaching the older children to fabricate stories about Mr Sapsford. Given that Mr Sapsford denies that he has experienced problems with his anger and says that, therefore, he has not sought treatment, there are considerable concerns that, if the allegations about him are true, without acknowledgement and or treatment, there is a greater chance that his past behaviour will reoccur in the future. This assessment is unable to provide sufficient reassurance to allay any concerns about potential child abuse risk and the Court will need further investigations about such concerns to ascertain whether ongoing risk exists for X. Obviously, X requires a parenting arrangement that offers him, first and foremost, protection and safety.
Again, whilst raising concerns about risk of harm to the children, the Family Consultant emphasises the need for the Court to further investigate these concerns, and risk issues.
At paragraph 52, she deals with the Father’s drug abuse history:
Mr Sapsford has, by his own account, experienced significant and serious drug abuse problems for half of his life. It is impressive that he has, for what appears to be eight years, maintained, if his own report is accurate, significant improvements in his illicit substance use. He reports ongoing cannabis use and this is not ideal, but is considered to be his genuine attempt, at this point in time, to manage his addiction problems as best he can (within a harm minimisation framework). If Mr Sapsford is smoking no more than half to one joint a night, and were he able to commit to not smoking when or before he has X in his care, such use would not necessarily preclude him from being able to care for X.
The Family Consultant was conscious of the fact that the Father claimed to be rehabilitated from his drug abuse, with the exception of marijuana. The issues raised, however, are discussed at paragraph 53 of her report as follows:
Mr Sapsford said that he has “busted” using heroin within the last eight years at those times when he has reduced his methadone dose. It is likely that Mr Sapsford is facing lifelong rehabilitation regarding his drug abuse problems. Although it is hoped that Mr Sapsford does not experience future heroin relapse, it is likely foolish not to include contingencies for X’s parenting arrangement should that occur. Of concern is that Mr Sapsford appears to have limited supports in place to assist him with relapse prevention. Although he appears to have, some decades ago, completed counselling and started drug rehabilitation programs, he does not appear to have, at the time of this assessment or the recent past, consistently engaged in counselling or treatment programs for drug dependency. (omitted) House have noted difficulties in consistently contacting Mr Sapsford. It is concerning that Mr Sapsford has not completed regular random drug testing especially considering that his alleged ongoing drug use is a central issue in this matter. Reassurances through completed drug testing and consistent involvement in treatment and support networks might improve the prospects of X spending safe time with his father.
The Family Consultant concludes that she is not reassured in relation to the risks that X would face if his time were unsupervised. She expected that X would, indeed, be disappointed by this, given the strength of his relationship with the Father. Having regard to her recommendations that X’s time would have to be supervised, the Family Consultant then addresses the practical issues of this at paragraph 56:
There are several contraindications in relation to long term or indefinite supervised time being ordered. Firstly, it is impractical and unlikely that a supervised contact centre could provide supervised contact indefinitely. Secondly, at best, supervised time for two hours a fortnight could provide X with a link to his father, but is considered insufficient time to allow a significant relationship to develop or continue. Thirdly, the environment is an artificial one witch has limitations on X being able to develop a normal sense of his father. However, this assessment identifies that X is likely to feel disappointed and upset were he to not see his father at all. An external person could, theoretically, provide supervision, provided that they could reassure the Court about their ability to prioritise X, have an understanding of the concerns raised about Mr Sapsford and of their role as a supervisor, reassure the court that they would adhere to the supervision requirements and accept responsibility for providing X with safety and supervision. Note that this assessment has not, however, identified a possible supervisor and therefore has, unfortunately, very limited recommendation options.
The Family Consultant concludes her evaluation by noting that equal shared parental responsibility was contraindicated by the poor communication skills that each reports and thus that the Mother should have sole parental responsibility.
The Family Consultant’s final recommendation is found at paragraph 59 as follows:
Provided that other evidentiary material does not suggest otherwise, it is recommended that:
a.Ms Barden have parental responsibility for X and that she provide the father with information twice yearly about X’s progress and well-being by way of a letter and or email;
b.X live with his mother;
c.This assessment is unable to recommend that X spend time with his father.
In cross-examination Ms S summarised her evaluation and recommendations by saying that she could not recommend unsupervised time with the Father and as there were difficulties with indefinite supervised time with the Father, the options were quite limited. For her recommendation to change, the Father would have to undertake an anger management course, in the context of an acceptance that he had a problem. He would have to accept the children’s concerns about family violence. Indeed, if he undertook an anger management course without acknowledging there was an issue, she described it as being akin to “ticking a box”, which was plainly insufficient. She was quite firm in rejecting the contention that the Mother was undermining X’s relationship with his father. Given that, at least until immediately before the Mother stopped supervised time, X’s relationship with his father was very positive, this must reflect what the Mother was either doing or not doing. She suggested X could not have a positive perception of his father unless the Mother supported this.
Clearly, the Family Consultant was somewhat surprised that the Mother had unilaterally stopped supervised time in December 2015. She urged caution about placing too much weight on any views that X is said to have expressed about not seeing his father. Indeed, she said that some ambivalence on X’s part was to be expected.
Counsel for the Father sought to have the Family Consultant reconsider her concerns about family violence by suggesting that the chronology of relevant events were perfectly consistent with the Mother not only having fabricated the allegations of family violence but coaching the children appropriately. The Family Consultant explained that hers was not a forensic role, that was the Court’s. She was unsurprised by the delayed disclosures by the children, explaining that was by no means unusual. Whilst she did not discount the possibility that the Mother was fabricating her allegations, all that she could be certain of was that, based on her experience, the children’s disclosures to her during the family report interviews appeared genuine, and compelling. Thus, she based her assessment on those disclosures and not on a forensic examination of the evidence.
The Family Consultant was cross-examined about paragraph 11 of the report, where she records that the Father estimated to her that he had relapsed four times since he ceased heroin use in 2007. She seemed to accept that it was possible that in fact the Father said his last use was in 2007, and that the lapses predated that.
The Family Consultant again emphasised that there is a very positive and strong connection between X and his father. Indeed, she thought it quite remarkable that this existed, in the circumstances of the case but the corollary of that was that this positive relationship could not exist without the Mother’s support. The Family Consultant agreed that if there was no contact between X and his father he would be quite sad, would experience a sense of loss, may well suffer a form of adversity in the future but she said all of these issues needed to be superseded by safety considerations.
She confirmed the professional view she expressed at paragraph 52 of her report that minimal use of cannabis does not necessarily affect parenting capacity.
When cross-examined by Counsel for the Mother, the Family Consultant placed further context on her evidence about the Father’s marijuana use. She explained that the “bigger picture” was that the Father was going to be in rehab and on the methadone program or equivalent, for the rest of his life. This meant that, by the Father’s own evidence, he would continue to use marijuana to manage what he considered to be the side effects of the methadone. She conceded that she was unaware that the Father had previously represented to (omitted) House that in fact his marijuana consumption was 1 gram, or 12 cones per day, seven days per week. She said, if this was true, not only was the Father minimising his cannabis use but that level of usage significantly affected her risk assessment in that it would be very difficult for the father to withdraw from usage before and during X’s time with him and it would, in any event, affect his capacity to parent. There will be a greater risk of harm. His attitude in minimising the issue and in suggesting that cannabis use had no impact on parenting, was problematic. Her concern about risk issues would be exacerbated if the evidence suggested that he had not complied with drug test requests.
She was taken to the Father’s evidence that if he felt he was under the influence of cannabis, or affected by the side effects of methadone usage, he would not take up his time with X. Her immediate response to this, however, was that the very nature of the relationship between the Mother and Father did not involve the level of trust and communication that would enable any arrangements about X to be flexible.
The Court accepts the Family Consultant’s evidence. There is nothing in her cross-examination which detracts from her evaluation of the case, or her recommendations. Indeed, the evidence about risk issues that will be discussed below corroborate her concerns.

Meaningful relationship

It is interesting to note that even the Mother’s case does not seek to suggest the Father does not have a meaningful relationship with X. Indeed, it is clear that up until December 2015 that was unquestionably the case and it is significant to note that this meaningful relationship has subsisted notwithstanding the context of supervised time. Ultimately, however, having regard to the statutory scheme set out in s.60CC of the Act, whether that meaningful relationship can be maintained will largely be determined by reference to risk issues.

Risk of harm to X?

The Mother’s first concern about the risk of harm that the Father presented was in relation to his poly-substance abuse issues. She stated that concern in the very first Child Dispute Conference on 18 December 2013. She plainly raised her concern that the Father was not capable of caring for X on an unsupervised base because of his drug use. The Mother’s concern was repeated at the Child Dispute Conference on 12 March 2014. The Mother’s concern about the Father’s drug use is raised in her affidavits.
The focus turns to the Father’s evidence in this regard. In his affidavit of 22 April 2016 he deals with what he describes as “drug and criminal issues”, at paragraphs 9-16 of his affidavit. The relevant paragraphs are paragraphs 15 and 16 which are reproduced below because of the significance that they assume in assessing whether there is a risk to X:
15.Immediately after my early release from prison, I entered the Methadone program run by the (omitted) Opioid Treatment Unit in (omitted). I have sought treatment there ever since. Due to my compliance and positive participation with the program, I am now able to collect my Methadone from my local chemist. Part of my compliance includes regular drug tests to ensure I am not using other illicit drugs. The responsible and prescribed use of Methadone has no doubt assisted my in improving my lifestyle. It assists me greatly in removing any temptation that I may develop to acquire and use Heroin again. It also allows me to go about my day-to-day life in a stable and consistent manner. Annexed hereto and marked “A” are two (2) letters from (omitted) Opioid Treatment Unit.
16.I also consume marijuana two or three times per week. Methadone use has several side effects such as nausea, vomiting, headaches, fatigue, difficulty sleeping, and hot and cold flushes. I take Methadone daily and I find that small amounts of Marijuana assist in reducing those side effects. I understand the effects that marijuana can have on my parenting ability and would never consume Marijuana in X’s presence, or within 48 hours prior to seeing X.

This evidence is significant in presenting the Father’s perspective on the Mother’s concerns. His view is that he was compliant and participated positively in the Methadone Program. His use of Methadone has assisted improving his lifestyle. It gives him a stable and consistent day-to-day life. However he uses Marijuana two or three times a week to reduce the side effects of Methadone. He says that he understands the effect that Marijuana would have on his parenting ability and would “never consume marijuana in X’s presence, or within 48 hours prior to seeing X.”
The Father was, of course, cross-examined about his drug abuse history. He knew that it was alleged by the Mother that his drug use constituted a risk of harm to X. Knowing that it was an issue, he agreed that he was keen to present to the Court as someone who no longer had a drug issue. He agreed it was important to undertake drug tests if required. When it was put to him that there were “many, many times” when he failed to complete a drug test, he denied the same. The question was clarified to put beyond any doubt that Counsel for the Mother’s proposition to him was that he had failed to do drug tests both during the course of these proceedings and whilst on the Methadone Program at (omitted) House. Again, he denied that that was the case. What is plainly evident, indeed what the Father himself eventually acknowledged, was that there were no less than eight requests for drug tests by the Independent Children’s Lawyer, pursuant to an order of this Court that the Father ignored. Even though, he accepted, these tests were important and would have assisted his case, he said he couldn’t afford to do them. The Father’s first denial, therefore, was plainly disingenuous.
The Father maintained, however, that if he failed to do drug tests at (omitted) House it was because he had not received a request to do so. He explained that during the time he was on the Methadone Program, he had either moved house and/or changed his telephone number several times. The (omitted) House records, voluminous as they were, were tendered in evidence. They present a completely different picture. Without going in to the detail (which is exhaustively covered in Counsel for the Mother’s written submissions) the Father declined to produce drug tests many, many times whilst at (omitted) House even when receiving a call from them to do so at which he acknowledged that he would do so (duly documented) or even at times when he was instructed in person to provide a test but declined to do so. The Father’s second denial was plainly disingenuous.
A number of matters need to be acknowledged at this point. Firstly, the Independent Children’s Lawyer requests for drug testing were chain of custody, ie, supervised drug testing. The (omitted) House drug testing was not chain of custody and thus not supervised. Moreover, Counsel for the Father’s rather valiant attempts to highlight from the voluminous evidence all the many times that, over several years, the Father did provide drug tests when requested does not detract at all from the fundamental issue before the Court, ie, that there are many, many examples of when he failed to do so and in any event he positively asserted to the Court that the assertion was incorrect.
This Court is entitled to drawn the inference that, more likely than not, the reason why the Father did not provide a drug test either to (omitted) House, or to the Court pursuant to the orders made, is because he would have failed that test. The Father plainly knew that this was an issue in the case but he seems to have blithely ignored it, to his detriment as it turns out. The excuse that he could not afford the tests cannot possibly explain the failure to provide eight tests. It is sobering to note that the Mother, who was solely responsibility for the care of four children, unassisted by the Father, who worked as a casual disability support worker, presumably supported by Centrelink benefits, nonetheless managed to provide eight drug tests herself, all of which were clean. The Father agreed in cross-examination that he received $300 net per fortnight, of which he spent $100 on medication and phone bills. He agreed that a single test cost $130. As will be seen, he clearly had enough disposable income to fund a cannabis habit, a matter which he denies but which the Court finds against him. The rhetorical question may well be asked: if the Mother with four dependent children and without any financial support from the Father could somehow manage to fund her drug tests, why could not the Father?
The focus then turns to the Father’s admitted cannabis use. In his affidavit he deposes to using two or three times weekly. In cross-examination he agreed it was every second or third day. Counsel asked him where was his source of supply but he declined to answer. It was put to him that he purchased the cannabis but the Father said, “No, it costs [him] nothing”. Apart from the fact that this is an extraordinarily unlikely proposition, the context of the cross-examination must be understood. In the preceding questions the Father had been cross-examined about why he did not provide drug tests and his explanation was that he could not afford it. The Father knew very well that if he had answered that he had purchased marijuana, it would be obvious to the Court that he had disposable funds to purchase cannabis but not to pay for a drug test. Hence, what the Father no doubt perceives to be a cunning answer to Counsel’s question in suggesting that his marijuana costs nothing. The Court does not accept the Father’s evidence that the marijuana he uses costs him nothing.
The Father was cross-examined about his assertion that he only uses two or three times per week as deposed to in paragraph 16 of his affidavit. It was put to him that, in truth, he used much more. The Father denied this. He was then asked over what period of time his usage was two to three times per week. His answer was, “Only in the last eight months before that it was daily”. The Father gave evidence on 9 May 2016, thus meaning that he somehow transitioned from daily marijuana use, to only two to three times weekly, in September 2015. He does not disclose that important information anywhere in his trial affidavit, notwithstanding the significance of the issue in the case. Nonetheless, he conceded in cross-examination that before September 2015, his usage was daily.
He was reminded that he told the Family Consultant on the 18^th of June 2015 that he smoked between half and one joint daily. The frequency was, at the very least, consistent with his earlier answer. It was then put to him that his usage was, in fact, much greater. He denied this, but then agreed that, in fact, his daily usage was one gram of cannabis. It was put to him that the (omitted) House records contained admissions by him on 24 December 2014 of daily use of one gram consisting of 12 cones daily, and in March 2015, of daily cannabis use. He acknowledged all this to be correct. It was put to him that, in reality, he continued to use on a daily basis. He denied that. It was put to him that he was seeking to actively minimise the nature and extent of his drug use before the Court. He denied that. The Court does not accept his denials. Whilst the Court does not deny that in theory it is possible to transition from 12 cones per day, to half-one joint per day, or even two or three times weekly, it is unlikely and in any event the onus was very much on the Father to explain the nature, extent and history of his drug usage to the Court. The onus was on him. It was not for Counsel for the Mother to laboriously study and dissect the voluminous evidence before the Court in order to show what was reality.
The context of the Father declining to provide drug tests must not be overlooked. The other important context is the Father’s own acknowledgement of his dependence on marijuana to manage the side effects of methadone use. His methadone use is daily so, presumably, the side effects are daily but, somehow, according to the Father he only needs cannabis two or three times per week? That is inherently unlikely.
In any event, from the Father’s perspective it was very much a case of: “what is all the fuss about?” He was cross-examined about paragraph 16, and the effect of cannabis use on parenting. He was very clear that he did not “believe it will have any effect on parenting…everyone else makes a big deal about marijuana…it would be better if I didn’t use…others say it affects parenting but I don’t agree.” He was, unsurprisingly, challenged about his assertion. He prevaricated. He agreed that he would totally abstain when around children because he is asked to but that is the only reason why he would do that.
In the last sentence of paragraph 16 of the Father’s affidavit, it states: “I understand the effect that marijuana can have on my parenting ability and would never consume marijuana in X’s presence, or within 48 hours prior to seeing X.” The first part of that sentence is plainly disingenuous because the Father could not demonstrate in cross-examination any understanding about the effect that marijuana would have on parenting and he plainly believes that it has no such effect.
Moreover, when the second part of the Father’s sentence is tested by reference to the evidence, the result is quite disconcerting. When the (omitted) House records (of the Father’s admissions to systematic use of cannabis) are compared to the CatholicCare supervised contact centre records (of the Father’s supervised time with X), what becomes apparent is that, on the Father’s own representations to (omitted) House, he was consuming cannabis certainly immediately before and after supervised time but in all likelihood on the same day. For example, on 24 December 2014, he told the worker at (omitted) House that he smokes THC daily, about one gram or 12 cones per day. The context of the record is of the preceding month. The Father had supervised time both on 13 December 2014 and 29 November 2014. On 19 March 2015, the Father told the worker at (omitted) House that he used cannabis every day at the rate of nine cones per day in the preceding 28 day period. The supervised contact records indicate that he spent time with X on 21 February 2014, 7 March 2015 and 21 March 2015. This evidence is alarming at several different levels. If the Father’s cannabis use is as high as he himself suggests (and he is not minimising the same), the Father was clearly a long-term, systematic user of marijuana at the relevant times when he was spending time with his son. Nonetheless, this fact appears to have escaped the observation of a professional, independent supervised contact centre. It is no wonder that the Family Consultant was alarmed at the possibility that the Father’s marijuana use was much greater than he asserts and that he demonstrated such a cavalier and indifferent attitude about his marijuana use.
The Court finds that the Father’s evidence about the nature and extent of his drug use is highly selective and incomplete. The Court cannot rule out the possibility that the Mother’s concerns are entirely founded. The Court finds that, on the balance of probabilities, the Father has minimised his current cannabis use, possibly to a substantial degree. The Court cannot rule out the possibility that, in the past and possibly in the future, the Father’s drug use is not limited to methadone and cannabis.
The risk of harm to X is real. The Mother’s concerns about the Father’s parenting capacity because of these issues is substantiated. It is well understood and accepted, as is reflected in the Family Consultant’s evidence, that even a parent using cannabis to the frequency and extent that the Father is probably using today, results in a parent being unavailable for their children, both in terms of physical presence and emotional responsiveness. In all likelihood, that level of consumption has an impact on the Father’s lifestyle which, it should be noted, is already that of a methadone dependent adult. In all likelihood, the Father is spending a considerable cost and energy ensuring that he has a regular supply of cannabis and possibly other drugs. The intoxicating effect of the substance on him and the consequent withdrawal symptoms must have an impact on his life. All of these matters are quite inconsistent with good parenting. It is no wonder that the Family Consultant was unable to consider anything but supervised time between X and his father and thus had to, frankly, consider the long-term lack of viability of this.
The analysis of the risk of harm to X in this case could probably end here, but on the evidence it goes further. The Mother’s allegations of family violence against the Father need to be considered, especially in light of his trenchant denials of the same and his cross-allegation about the Mother’s fabrication of these allegations. Obviously, the first problem the Father faces is that if his evidence about the nature and extent of his drug use cannot be accepted, in the face of plainly false evidence, why should his denials of the family violence be accepted?
The Mother’s case about family violence is based on her own evidence, what the children told her and what the children told the Family Consultant. The Family Consultant expressed her view that the children’s accounts appeared to be genuine, and based on their experiences. She explained why, in her opinion, it was unlikely that the Mother had coached her three older children into fabricating these accounts.
The attack on the Mother’s case was a rigorous and systematic one. Counsel for the Father submitted and the Court accepts, that there were some inconsistencies in the Mother’s evidence. The issue is what is to be made with these inconsistencies? The absence of reference to evidence about physical violence allegations in the Mother’s affidavit of 17 April 2013 is notable. If the situation were as serious as the Mother asserts, then surely (the Father asserts) she would have deposed to this. The Family Consultant made the direct observation that she was unsurprised by children not making disclosures about events such as family violence when they first had the opportunity to do so. It is the Court’s experience that that often applies to the victims of family violence, including adult victims. The timing of the disclosures by the children as recorded in the Department of Family and Community Services record could just as easily be interpreted as C’s genuine concern about X’s welfare, as it could be interpreted as the Mother, in effect, setting up C’s disclosure.
C makes quite serious allegations about the nature of the Father’s physical abuse on him. The Father’s case is that it is unlikely that such serious family violence would not have been brought to the Mother’s attention sooner than it was, but the Family Consultant’s evidence provides a complete explanation in that regard – and that is consistent with the Court’s own experience, i.e. a delayed and often incomplete disclosure of violence often occurs and is not necessarily inconsistent with the veracity of the disclosure. Counsel for the Father also points to the inconsistencies between the three children’s allegations about violence. He submits that the inconsistencies merely confirm fabrication but an equally sustainable hypothesis is that the inconsistencies reflect the experience of children recounting past events to which they have been exposed to different degrees.
The Father’s Counsel’s approach to the evidence about family violence appeared at times to be very much a criminal law robustly evidence based approach to the issue. In the criminal law, often issues are black and white, whereas in family law, they are more often shades of grey. That is perhaps why the burden of proof is on the balance of probabilities in family law, where the focus is not so much on accountability for actions but on the potential implications of children in a context where there is factual uncertainty and the focus is on the risk of harm in the future, not just from physical acts but the broader psychological implication on children.
In his written submissions, Mr Moutasallem submitted that:
The Court is not in a position to make those findings (ie family violence) not merely because of an assessment on the balance of probabilities, but because the evidence of family violence is so inconsistent and outrageous that it should be rejected.
With hindsight, that may well be regarded as a rather bold submission to make on the behalf of the Father, whose credit has been so thoroughly undermined by the Court’s findings against him about drug abuse. The broader context of the Court’s concerns cannot be ignored. Quite apart from adverse credit findings, the Father’s criminal history amply demonstrates his capacity for violence in the past. He may well say that that was when he was drug affected but, of course, that in itself is a concern for the Court.
It also ignores some of the Father’s own evidence which are corroborative of the Mother’s concerns. For example, an entry in the (omitted) House records reflects a representation that he made to them on 19 April 2012, that he had been, “kicked out” by the Mother as “she didn’t like the way he disciplined the children”. This is the Father’s own statement, almost contemporaneous with separation. One year later, in his affidavit filed 21 March 2013, he had changed his tune.
At paragraph 24 of that affidavit he explains that the relationship came to an end because of the Mother’s infidelity and because of how she was treating him. In his trial affidavit of 22 April 2016, at paragraph 28, he explains that the relationship ended because the Mother had been cheating on him and had disregard for their relationship and for the family that they had built. The contemporaneous representation is more likely to be correct.
One must not overlook the fact that the Father was ordered to undertake an anger management course on 19 August 2013 but he did not. He must have been reminded of the importance of this in the Family Report dated 23 July 2015, but even this did not lead him to do an anger management course. The explanations that he gave in cross-examination for failing to do so are unconvincing and are rejected by the Court. By failing to undertake the anger management course the Father signals to the Court, in the clearest possible terms, that he believes he does not have a problem with anger management. With great respect to him and even putting aside the Mother’s allegations against him, his past criminal record indicates to the contrary.
The Court concludes that it is more likely than not that there is substance to the allegations made by the Mother, and her older children, about the violence perpetrated by the Father against both her, and the children, especially C. Given the Father’s attitude of indifference about anger management issues, there is a risk of harm to X, which is certainly manifested in an attitude about family violence that is plainly unacceptable. The Court doubts whether the Father would present a risk of physical harm to X, but the equally insidious risk is that his attitude may well be contagious and his role modelling would be plainly inadequate.
The Court’s findings above lead, inexorably, to a conclusion that there is a risk of harm to X if he were to spend unsupervised time with his father. The dilemma presented to the Court, of course, is as to the long-term viability of supervised contact?

X’s views

There is no doubt from the evidence, a matter that the Family Consultant acknowledged, that X wants to spend time with his father and, indeed, would prefer to spend more time with his father. This is an important consideration but as the Family Consultant acknowledged safety considerations must prevail. The Mother and Independent Children’s Lawyer’s proposals are plainly inconsistent with X’s views. The Father’s proposal is inconsistent with the Court’s findings about risk of harm.

One way of giving effect to X’s views but addressing the risk of harm considerations, would be to order supervised contact but on a greatly reduced frequency so that the Father has a greater chance of making the relevant arrangements for supervised time, albeit on a reduced frequency. A recognition contact order that gives him the opportunity to spend supervised time with X four times per year, may well be enough to keep the relationship alive from X’s perspective, whilst protecting him from the negative impacts of the relationship with his father.
The difficulty with this proposal, of course, is that it is an option that does not appear to have been contemplated by any of the parties to this litigation, and is only being considered by the Court as a possible order during the course of the detailed analysis of the evidence, and consideration of the same, that takes place whilst reasons for judgment are being written. Any unfairness in this regard, however, might be addressed by granting the parties, or any of them, leave to relist on 7 days notice, at any time within three months from the making of orders and the publication of these reasons, to hear argument about the appropriateness of the order.
Whilst it is desirable, of course, for litigation to be brought to an end, it is even more desirable for orders to be made in the best interests of X, and to give his parents the right to be heard in circumstances where an option that the Court might prefer is not one that they had advanced.
It must be borne in mind that the Family Consultant did clearly give evidence to the Court about the potential adverse implications for X if his father is not in his life. A recognition contact order is one way of potentially mitigating that impact.
In passing, the Court does acknowledge that there is evidence through the Mother that X has more recently indicated that he does not want to spend time with his father. The Court regards this evidence with suspicion, and accords minimal weight to it. In any event, the Family Consultant said in her evidence,:
It would be unsurprising if there were not some ambivalence in X’s views about his father:.

The nature of X’s relationship with his parents and significant others

All of the evidence indicates that X has a very good relationship with his mother and his step-siblings. He also has what the Family Consultant has considered to be a remarkably good relationship with his father, given the constraints of supervised contact. This consideration is another reason why recognition contact needs to be considered as an option by the Court.

The likely effect of change in X’s circumstances

The evidence suggests that X enjoyed the fairly regular time that he was spending with his father albeit within the artificial constraints of a supervised contact centre. That has ceased since December last year. Certainly the Mother’s evidence is that X is none the worse as a result of it but her evidence in this regard must be treated with caution. At one level an order for no contact as proposed by the Mother and Independent Children’s Lawyer, means no change for X, at least from the perspective of recent history.
At another level, however, even at his age one would expect him to remember, probably with fondness, the fun times he spent with his father at a supervised contact centre. The reintroduction of recognition contact would not be change that is unmanageable for him. Nonetheless, and as the Family Consultant explained in cross-examination, if safety considerations prevail, X will probably cope with no contact with his father. The same must be true, the Court notes, if recognition contact is ordered but it either cannot be arranged or the Father does not take advantage of it.

Issues of practical difficulty and expense

There are no such issues, of course, if no contact is ordered. If recognition contact is ordered, the Court would consider it appropriate that the Father bear the cost of this, and it would be his responsibility to make the arrangements. It is possible that if he can arrange four contact visits a year through a supervised contact centre, that the cost may be manageable, even for him, especially if he prioritises this expenditure. Ultimately, if the Court decides to opt for recognition contact, the choice will be his.

Parental capacity

There is no question about the Mother’s parenting capacity. The evidence before the Court, much of it discussed above, does raise very serious issues about the Father’s capacity to parent X in an unsupervised context. One would have to be concerned, on the evidence, not just about his capacity to provide for X’s physical needs but certainly his emotional needs as well.

Family violence

These matters have been discussed above.

Parental responsibility

The Court’s findings about risk of harm issues and the inevitable conclusion that his time with X will be no more than recognition contact, if at all, must necessarily mean that the presumption of equal shared parental responsibility does not apply. The Mother is entitled to an order for sole parental responsibility. It reflects X’s lived reality since the date of separation anyway.

What order is in the best interests of X?

Having regard to the evidence, the only options that appear available to the Court are to make an order that provides, in effect, for no contact or to provide an order that provides for recognition contact on a supervised basis, four times each year. Putting aside issues of fairness to the parties, which order does the Court consider to be in the best interests of X? The Court believes that, on balance, the order for recognition contact is more closely attuned to X’s best interests. He clearly has a good relationship with his father, albeit in the artificial construct of a supervised contact centre.
He clearly wants to spend time with his father, and indeed wants to spend more time. Equally clear, however, the risk issues that so permeate this case mean that any contact between X and his father must be supervised into the indefinite future. That being the case, and as the Family Consultant so realistically appraised, the options are not plentiful. An indefinite, ongoing, regular supervised contact visit is simply impractical. As a matter of policy, recognised in many Full Court decisions, it is neither in X’s best interests, nor in the public interest, that a precious public resource of a supervised contact facility should be tied up indefinitely, for one family. It is clear that the Father does not have the financial resources to fund contact on an ongoing basis. At no stage in the Father’s case did he give the impression that he had any family support, let alone support to the extent that would enable him to advance a particular person as supervisor. And yet, in order to maintain the relationship between X and his father, albeit in a safe environment, limited frequency supervised time, perhaps using a public facility, may be an option. Indeed, in this Court’s estimation, it is the best option for X.
As foreshadowed earlier in these reasons, this was an option that was not raised by, or with the parties. The Court will make this order but on the basis that the order is interim until the expiration of three months from the date of these orders, or when the matter is relisted for further submissions, and/or evidence as the case may be. If the matter is not relisted within three months, the orders made today will be final.

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 29 July 2016