Sheffield and Tomlin (No.4)
[2018] FCCA 2196
•14 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHEFFIELD & TOMLIN (No.4) | [2018] FCCA 2196 |
| Catchwords: FAMILY LAW – Final parenting hearing – undefended – serious concerns about mother’s drug use and mental health. |
| Legislation: Family Law Act 1975, ss.60B, 60B(1), 6B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4) 64, 65D, 65DAA(1), 65DAA(2),65DAA(3), 67Z |
| Cases cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 275 Mazorski & Albright (2007) 37 Fam LR 518 Sheffield & Tomlin [2017] FCCA 182 Sheffield & Tomlin (No.3) [2018] FCCA 614 |
| Applicant: | MR SHEFFIELD |
| Respondent: | MS TOMLIN |
| File Number: | MLC 2400 of 2015 |
| Judgment of: | Judge Harland |
| Hearing dates: | 16 & 17 July 2018 |
| Date of Last Submission: | 17 July 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 14 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Devries |
| Solicitors for the Applicant: | Peter Szabo Family Law |
| The Respondent: | No appearance | |
Counsel for the Respondent: | Ms Treyvaud | |
| Solicitors for the Respondent: | McKean Park Lawyers |
ORDERS
The Father have sole parental responsibility for the children [X] born 2004, [Y] born 2007 and [Z] born 2012 (“the children”) and the Father notify the Mother and keep her notified, in writing, of decisions made in the exercise of parental responsibility with respect to major issues concerning the children’s care, welfare and development.
The children live with the Father.
The children spend time and communicate with the Mother as follows:
a) Each alternate weekend, during school terms, from 1:00pm Saturday to 4:00pm Sunday;
b) On such weekdays as are agreed between the Father and the Maternal Grandparents during school terms, from 5:00pm until 7:00pm;
c) During school holidays as agreed between the Father and the Maternal Grandparents;
d) From 4:00pm Christmas Eve to 4:00pm Christmas Day in even numbered years;
e) From 4:00pm Christmas Day to 4:00pm Boxing Day in odd numbered years;
f) Each Mother’s Day from noon until 4:00pm;
g) By Facetime, Skype, Whatsapp, or similar means of video communication at 6:00pm each Tuesday evening; and
h) As otherwise agreed between the parents in writing and in advance.
For the purposes of time with pursuant to sub-paragraphs 3(a) to 3(f) (inclusive):
a) All such time shall take place with the substantial attendance of either or both Maternal Grandparents;
b) All overnight time shall occur at the residence of the Maternal Grandparents;
c) The Mother shall ensure the children attend all extracurricular activities that fall during any such times;
d) The Mother shall not remove any of the children from the care of the Maternal Grandparents during all such times;
e) All changeovers shall take place at McDonald's Suburb A or at such other locations as may be agreed between the Father and the Maternal Grandparents; and
f) The child, [X], shall attend in accordance with his wishes.
For the purposes of the communication provided by sub-paragraph 3(g):
a) All such communication shall be initiated by the Mother placing the call to the Father’s mobile telephone; and
b) The Father shall ensure that his mobile telephone is switched on and fully charged and that the children are available to speak with the Mother at the prescribed time.
The children’s time-with the Mother is suspended:
a) On each Father’s Day weekend from 5:00pm Saturday;
b) From 5:00pm Christmas Day until 5:00pm Boxing Day in even numbered years; and
c) From 5:00pm Christmas Eve until 5:00pm Christmas Day in odd numbered years.
The Father shall notify, and keep notified, the Mother of any major medical issue affecting any of the children and provide her with details, including date, time and place of any appointments in respect to or arising out of such issues.
The Father shall authorise all medical practitioners upon whom the children attend for treatment to provide the Mother, upon her request, with all details of the children’s attendance, prognoses and treatment at the cost of the Mother.
The Father shall do all acts and things necessary to enable the Mother to:
a) Attend, in the company of one or both maternal grandparents, all school activities, such as parent-teacher interviews, special assemblies, sports carnivals and concerts to which parents are normally invited provided the Mother notifies the Father by Email or SMS text of her intention to attend any such school activities;
b) Communicate with any of the children’s schools or education providers to obtain progress reports in respect to the children;
c) Obtain any information, school photographs, circulars, newsletters of the like from any of the children’s schools or education providers normally provided to parents at the sole cost of the Mother;
and a copy of these Orders may be produced as evidence of such authority.
In the event any child suffers any emergency or serious illness or injury when in the care of a parent such parent shall immediately notify the other parent by telephone of such occurrence and the full details of the medical professional treating such child in such event.
Both parents are restrained by injunction from:
a) Denigrating or criticising the other parents or any member of the other parent’s family, in the presence or hearing of any of the children, or permitting any other person to do so; and
b) Discussing these proceedings, or disclosing the contents of any Court document in these proceedings, to or in the presence or hearing of any of the children, or permitting any other person to do so.
The Mother forthwith deliver to the Father’s Solicitors [X]’s Passport and Birth Certificate.
The Father is at liberty to apply for a Passport and/or a renewal of a Passport for each child pursuant to s.11 of the Australian Passports Act 2005 (Cth) without having to first obtain the consent of the Mother.
In the event the Mother breaches any of these Orders all time and communication provided by these Orders shall be immediately suspended.
Pursuant to r.21.15 of the Federal Circuit Court Rules 2001 the Court certifies that it was reasonable for the parties to employ an advocate to appear in the proceedings.
The appointment of the Independent Children’s Lawyer is discharged.
All extant applications in this matter are otherwise dismissed.
THE COURT NOTES:
If the Mother:
a)Provides evidence of the successful completion of an Anger Management Course;
b)Provides evidence of the successful completion of a Post Separation Parenting Course nominated by Lifeworks;
c)Provides evidence of the successful completion of a drug and alcohol counselling program approved by Lifeworks; and
d)Provides not less than three consecutive clean supervised drug urine screen randomly requested by the Father’s lawyers or the father if he is no longer represented, or provides a hair follicle test as follows:
i.The Mother undertake a hair follicle drug test for illicit substances, at her expense, at an approved testing agency with such test to cover the at least three month’s length of her hair, and to provide the results of same to the father’s solicitors, or the father if he is no longer represented.
the continuation of substantial attendance during time with the Mother and the increase of such time with shall be reviewed.
IT IS NOTED that publication of this judgment under the pseudonym Sheffield & Tomlin (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2400 of 2015
| MR SHEFFIELD |
Applicant
And
| MS TOMLIN |
Respondent
REASONS FOR JUDGMENT
This case concerns the best interests of three children, [X] born 2004, aged 14, [Y] born 2007, aged 10 and [Z] born 2012, aged 5 (“the children”).
The children’s mother, Ms Tomlin, was born on 1982 and is aged 36.
The father, Mr Sheffield, was born on 1980 and is aged 38.
The father re-partnered in 2015 and married his partner Ms L on 2017.
The father is not the biological father of [X]. [X] did not know about this until these proceedings started. [X]’s biological father has never been involved in his life and has not participated in these proceedings.
I have given three sets of extemporaneous reasons in these proceedings. Whilst I will not repeat all that I have said in those reasons, I will address these and set out the history of this matter.
Mother’s adjournment application and undefended hearing
The final hearing was due to commence on Monday, 16 July 2018, having been listed for four days. The mother was well aware of this and the need for her to prepare documents prior to hearing. She did not bring an application for an adjournment prior to the hearing.
The mother did not file a trial affidavit and sought an adjournment on the morning of the hearing. She said she had been able to save money for legal representation but that that lawyer would need time to prepare and wasn’t available that day. The father and the Independent Children’s Lawyer (“the ICL”) opposed the adjournment. The ICL submitted that the hearing had been set down in February 2018 and the mother had said in an email in reply to the compliance check last week that she would file an affidavit by Wednesday.
The mother said she needed more time, she had seen a lawyer as she been able to save money, and that her lawyer told her to ask for an adjournment. She had been unwell and stressed and had not seen her son for three months. The mother said she had complied with the ICL’s request for a drug screen on 5 July 2018 but does not have the results yet. She said given the issue of her allegedly providing false test results that the ICL could get the result from her doctor.
The mother's adjournment application needs to be seen in the context of the history of this matter. I refused the mother’s application for an adjournment as it is not in the best interests of these children for these proceedings to remain on foot. It is not merely an issue with the mother not filing an affidavit but also there are many issues with her not being compliant with Court orders. A concern I expressed to her was that even if an adjournment was granted that her position would be no different when the adjourned date came around.
I am also mindful of the case management principles the High Court referred to in Aon Risk Services Australia Limited v Australian National University [2009] HCA 275. When considering whether or not to grant an application for adjournment, it is necessary to firstly consider the requirement of justice in the individual case and factors such as whether or not the prejudice of delay to the party opposing the adjournment can be compensated with a costs order. It is also necessary to consider the court’s case management principles. Adjourning one case on the morning of the hearing, or shortly before it, impacts on other cases waiting to be heard.
The mother was distressed. I explained the trial process and indicated to her that I would allow her to rely on previous affidavits and also grant her leave to give some oral evidence in chief. I also indicated to her that she may wish to call her mother, who has also previously filed affidavits, as a witness. I also expressed the view that the mother should give her evidence in chief and be cross examined first so that the other parties would know her case. The other advantage to this would be that the mother would experience the cross examination process before undertaking cross examination of the father and his wife. This course was not objected to by the father nor the ICL.
I arranged for the mother to be given copies of the two family reports and the affidavits of the father and his wife. As the mother was clearly very distressed I stood the matter down until 2:00pm.
The ICL received an email from the mother at 1:55pm. In that email the mother sought an adjournment to the following morning due to her distress. She indicated that that would give her an opportunity to prepare and that she would be ready the next morning. The mother was not at court at 2:00pm. I granted her request and instructed my associate to email the mother, copying in the ICL and the father’s solicitor, indicating that the matter was adjourned until 10:00am on 17 July 2018 and that if the parties did not appear, orders may be made in their absence.
The mother was not at court at 10:00am the next day. The mother had again contacted the ICL and advised that she thought court started at 10:30am and she would be there by 10:20am. After giving the mother this further indulgence, I commenced the proceeding shortly after 10:20am. The mother was called and did not appear. The father’s counsel had tended a minute the previous day that was agreed between the father and the ICL. The mother had been given a copy of this minute. I marked the minute as Exhibit A.
The father’s counsel indicated that the father had spoken with the mother’s parents and he had agreed to a change to the proposed minute based on their availability as they have been supervising the mother’s time and it is the proposal of the father and the ICL that they will continue to be in substantial attendance.
The father gave brief oral evidence about the issue of the maternal grandparents being involved in the mother’s time and the issue of drug testing. Both the ICL and the father had filed case outlines outlining their positions and I did not require further oral submissions from them. I reserved my decision and was in the process of rising from court when the mother appeared at about 10:50am. She denied receiving an email from Chambers and receiving emails from the other lawyers indicating that she needed to be there by 10:00am. Counsel for the ICL made the submission that the ICL and father’s cases had closed, I had already reserved my decision, and that there are other mechanisms available to the mother to have the matter revisited.
Pursuant to r.16.05 of the Federal Circuit Court Rules2001 the mother may apply to have the orders set aside as being made in her absence. The father and the ICL had included notations in the proposed orders setting out things the mother needs to address including attending drug counselling, anger management, and providing clear drug screens. Any application the mother brings will need to address these issues. The notation also included that upon the mother providing evidence that she has addressed the issues of concern then the requirement of her parents being in substantial attendance and the amount of her time with the children would be reviewed. For the reasons I will explain I am satisfied that the orders sought are in the children’s best interests.
I must observe, as has been referred to in the case outlines filed in these proceedings, that the mother has a history of attending court late, not attending at all and not complying with court orders. She also blames others for the situation she finds herself in.
History of proceedings
The father commenced proceedings in the Family Court on 25 March 2015 seeking parenting orders. The parties and the children participated in two Children and Parents Issues Assessments with memorandums released on 16 June 2015 and 18 November 2015. Financial issues were also added to those proceedings.
Final property orders were made on 18 November 2015. On 19 November 2015, Senior Registrar Fitzgibbon made further interim parenting orders, appointed the ICL and transferred the proceedings to this court.
The matter first came before me on 22 February 2016. The father was granted leave to withdraw contravention application he had filed and further interim parenting orders were made by consent. In summary, those orders provided for:
a)the parties to have equal shared parental responsibility;
b)the children to live with the mother; and
c)the children spend time with the father on alternate weekends from after school on Friday until before school on Monday, from Wednesdays after school until before school is on Thursdays as well as half school holidays and special days.
In addition the consent orders provided for the parties to undertake supervised urine testing for illicit substances within 48 hours of any request from the ICL and the parties were to attend family counselling at a service nominated by the ICL.
The matter next came before me during the duty list on 27 July 2016 where I made directions for the parties and the children to attend a Child Inclusive Conference and for further hearing on 29 July 2016. Further interim parenting orders were also made. In addition, I ordered a family report and set the matter down for trial for two days commencing 22 June 2017.
The first interim hearing
On 17 January 2017, the father filed an application in a case seeking an abridgment and orders for the children to live with him and spend time with the mother supervised by the maternal grandmother. I heard the interim application on 31 January 2017. The mother appeared in person. The mother did not file any material in response. I note the matter was listed at short notice due to the serious risk issues that were raised.
I refer to my reasons for judgment given that day which set out the risk issues. At that interim hearing I had the benefit of significant subpoenaed material from Victoria Police which was tendered and the s.67Z report from the Department of Health and Human Services. [3] of my reasons given that day read as follows:
The children and parents have been involved in several interventions with the Court and the Department of Health and Human Services (“the Department”). The proceedings were commenced in the Family Court of Australia, and Ms M prepared two Children and Parents Issues Assessments in that Court dated 15 June 2015 and 18 November 2015. The parties and children participated in a Child Inclusive Conference pursuant to section 11F of the Family Law Act 1975 (Cth) report on 29 July 2016, and the children have also recently been interviewed by the Department as recorded in their updated section 67Z report dated 30 January 2017. The parties are due to attend for a full family report in March 2017. The matter is listed for final hearing in June 2017.
As I stated in my reasons given on 31 January 2017[1], when the parties saw Ms M, the family consultant for a parents and child’s issue assessment, she asked what they thought the issues in dispute were. Her report indicates the issues were as follows:
a)whether or not the children should spend additional overnight time with their father each week;
b)the ongoing acrimony between the parents;
c)the impact of the acrimony on the children's wellbeing; and
d)the father's ability to demonstrate an inclusive approach to his relationship with [X].
[1] Sheffield & Tomlin [2017] FCCA 182
The acrimony between the parents and its impact on the children remains a live issue. The concerns with respect to the father not being inclusive and the emotional harm [X] suffered after being told by his mother that he was not the father’s biological son is no longer an issue before the court. The evidence is that the father’s relationship with [X] has greatly improved. What is of concern is the fact that [X]’s relationship with his mother has declined.
It was also apparent that both parties had involved the children in the dispute as they were acutely aware of the conflict between the parents. I recorded the level of conflict as being a risk of long term emotional harm to the children but that was not the concern of that interim hearing.
The issues at the interim hearing on 31 January 2017 were whether or not the children were at an unacceptable risk in their mother’s care due to her relationship with Mr L, the alleged drug use of the mother, and violence towards the mother. The mother inspected the subpoenaed material and made submissions. She submitted that the children were not at risk in her care or if they were, they were also at risk with the father as Mr L was angry with him
As I indicated in the reasons I gave on 31 January 2017, I was assisted by the ICL’s extensive submission with respect to the subpoena material with respect to Mr L which was tended and marked as Exhibit B, and the police subpoena material which was tended and marked as Exhibit C.
As I referred to in those reasons, there were inconsistencies in the mother’s previous affidavit and the subpoenaed material about whether or not the mother continued to be in a relationship with Mr L. I concluded that whether they remained in a relationship or not, Mr L remained a risk to the mother and the children.
I referred to Mr L’s concerning police record. The police say he is well known to them for family violence and drug and weapon offences:
17. The police indicate in their records that Mr L is well known to them, and is well known to them for family violence issues and drug use. It is apparent from the record of pending charges that Mr L has come to the frequent attention of the police for offences including breaches of intervention orders, driving offences, stealing offences, weapons offences and drug offences. It is also apparent from the records that Mr L has come to the police's attention at the mother's home before and after the orders made on 29 July 2016.
18. The records indicate the police were called out to the mother's home with respect to Mr L on 20 November 2015, 2 January 2016, 22 February 2016, and 8 July 2016, prior to the matter being back in Court before me. Those are indicative of the mother being in a relationship with Mr L, at least up until July 2016, and there is some evidence to support a concern that she continued to be in relationship with him. The fact that she was in a relationship, would not be of concern if it were not for the very concerning incidences of family violence that has been reported and breaches of intervention orders.
I addressed other issues of risk with regard to the mother and Mr L. The police records demonstrated that he was violent towards the mother on several occasions, including when the children were present. The records all show that there was an escalating pattern of violence in the past six months.
This was particularly concerning as after the July 2016 interim orders, the ICL asked the mother to provide an undertaking not to bring the children in contact with Mr L. Through her then lawyers the mother indicated she was willing to do so. [27] to [30] of my reasons for judgment on 31 January 2018 are as follows:
27. It is also clear from the police records that there have been at least two incidents between the parents where police have been called on 26 October 2016, and also in December 2016. The parents have different versions as to what occurred on those occasions, and they will also be a matter for testing of evidence at the final hearing.
28. There is also a dispute between the parents as to what happened on 9 December 2016 which led to [Y] going to a dance with her stepmother when she was at the mother's home.
29. What is apparent from the police records and not in dispute is that there was a heated exchange between the parents on 14 December 2016. The police attended and the mother was arrested, and the mother damaged the door to the property. The parties give very different versions as to what occurred on that day, and the mother says that she was reacting to the father assaulting her.
30. What is also of great concern to the Court is what is recorded in the police records on 18 December 2016, which is another incident between the mother and Mr L. That concerns a report by the mother and a friend of hers as to another breach by Mr L of the intervention order in an incident where he physically assaulted the mother. The police record taking photos of the bruising to the mother, and also record that the mother told the police that Mr L made threats to kill her and burn down the house. The mother also reported on that occasion an earlier breach by Mr L of the intervention orders in September. The police records do not indicate that the children were present on that occasion.
The allegations with respect to Mr L were not new. The father had raised them previously and the mother addressed them in the affidavit she filed in July 2016.
The other major issue of risk raised at the interim hearing on 31 January 2017 was the mother’s drug use. Both parties have used drugs historically. The father has complied with the ICL’s requests for drug screens. All his tests were negative. The mother has not complied with all the drug screen tests, with some being late, incomplete or not provided at all. I refer to paragraphs [38] to [40] of my 31 January 2017 reasons:
38. There is some reference in the police material to them believing that the mother and Mr L were under the influence of drugs, and there is a reference to that in 8 July 2016. The Independent Children’s Lawyer requested the parties undergo a drug test that day. The father provided a drug test, and the mother provided a drug test which was clear on 11 July 2016. Given that that drug test took place several days later, it is not indicative one way or the other as to whether or not she was under the influence of drugs on the day the police made that observation.
39. There are further references in the police material to concerns about the mother and Mr L being under the influence of drugs. The Independent Children’s Lawyer made further requests of the parties to undergo drug tests on 16 December 2016. The father provided a clear test. It was undertaken that day. The mother provided a test, and it is exhibit A, which indicates that the test was undertaken that day. However, the test is incomplete. It is quite odd that it does not refer to any of the usual indicators, such as creatinine levels, and it does not indicate as to whether or not the test was a supervised drug test.
40. A further request was made by the Independent Children’s Lawyer for the parties to undergo drug tests on 17 January 2017. The father provided a clear drug test on 18 January 2017. The mother has not provided a drug test, so the issue of drug use remains an issue of concern with respect to the mother.
For the reasons I gave, I was satisfied that the children would be at an unacceptable risk due to family violence and drug use if they remained in the mother’s care. The mother was present in court when I gave the reasons. She was in court when I referred to making orders for her to see the children at her parents’ home, despite not having material from them, as it was agreed by all that the children have a positive relationship with their maternal grandparents.
The mother became extremely distressed and left the courtroom before I pronounced the orders. The orders I made provided for the children to live with the father pending further order and with the children to spend time with the mother, subject to the maternal grandparents providing their consent to the ICL, spending time with the children at the maternal grandparents’ home on alternate Fridays from after school until Mondays before school and each Tuesday after school until before school on Wednesday. I also made orders restraining the mother from allowing the children to attend her home and an order for the father to bring the children to court the next day so that the ICL could meet with them and explain the orders.
I also gave the ICL liberty to apply at short notice. Unfortunately she had to exercise this the next day as the mother had not made the children available to the father the previous evening and they were not brought court for the meeting with the ICL that morning. The ICL had contacted the mother and her parents and the mother had sent her a lengthy email indicating that she did not believe the orders were in the children’s best interests and would not be complying with them. The mother’s parents also indicated that they were not willing to facilitate the mother spending time with the children at their home. Given the circumstances I suspended the orders I made the day before for the mother to spend time with the children, issued a recovery order and listed the matter to return to court on 17 February 2017.
The mother was legally represented on 17 February 2017. I made orders for the parties and the children to attend for a family report assessment the following week on 24 February 2017.
The first family report
The first family report was released on 16 March 2017.
Referring to her interview with the father, the family consultant recalls that the father told her that marijuana and speed had been a problem for him in the past but not since mid-2014 when his relationship with the mother ended. He said that he left the relationship because of the mother’s drug use, which included speed, marijuana, and prescription drugs. He said that the mother needed to accept she had a problem and get help and provide clear screens.
The father expressed concerns about [Z] being left alone in the mother’s care and referred to an incident, which he also referred to in his affidavit, where [Z] was found the road outside by a neighbour. He also expressed concerns about the mother’s relationship with Mr L as Mr L had major drug issues and also had been violent towards mother, including in front of the children.
The father also told the family consultant that he no longer had confidence in the maternal grandparents and did not think that they would be able to control the mother. He said that they were blaming him for the current problems.
He described the mother as being able to be a good mother but that she was addicted to ice.
He wanted the children to live with him and wanted to change their schools given the distance between the two homes. He acknowledged to the family report writer that he anticipated that two older children would be upset about changing schools initially. He also said that his relationship with [X] had improved since [X] had come to live with him.
The father described his relationship with his then fiancée as a positive and supportive one that did not include alcohol and drugs. The family consultant referred to interviewing them together and said the father’s new partner was fully supportive of the father and confirmed their focus on the children’s wellbeing. The report did not make any further reference to the interview with the father’s fiancée (now wife).
The family consultant observed the father and his wife with the children. The children responded positively to her. The family consultant noted that the father modelled good behaviour and that managing the three children required thoughtful and considered management due to the difference in their ages. She noted that [Y] in particular was challenging at times.
The family consultant then described her interview with the mother. The mother told her that she was living alone and was currently unemployed. She said she was not in a relationship with Mr L, and she minimised his violence towards her prior to his assault on her in December 2016. She said until then they had remained friends but from that time he had been hostile. She said that Mr L has been in jail since early 2017 because of the father and had spent 46 days in jail in 2016 due to breaches of intervention orders. She said Mr L did have problems with anger management which were possibly related to drugs and particularly ice.
With respect to her own use of drugs and alcohol, the mother said that she had problems with ice and marijuana about seven or eight years before and had attended the two-week rehabilitation program at Suburb B Hospital in 2010. She said that she has had no problems since then. She blamed all of the current problems on the father saying that he had removed the children from her to spite her.
She said she had a close relationship with her parents and a good relationship with her younger sister.
She said that [X] had told her that he wanted to come home to her. She said “It’s not necessary to pull them out of school, they need to come home to their mum”.
The mother described her relationship with the father as initially good but that then the father had alcohol problems and that the father’s mother had also had been an alcoholic. She said that when they broke up the father told her he would keep her in the courts until she was broke.
She expressed concern that the father is not fair to the children, treating [X] differently, and that for the past couple of years he had made no effort with him and had told [X] “I’m not responsible for you”.
The mother said “he punishes me through the children… I’m never allowed to see the kids… I would never not let him see them”.
The family consultant observed the mother and children together and all three children were happy to see her and spontaneously went to her for a hug. The mother was affectionate and warm with them.
The family consultant conducted a joint interview with the parents. The parents supported the idea of the children having ongoing counselling and the mother agreed to attend a parenting after separation course. She then recorded the following at [37] to [39]:
37. They were informed that while the children had demonstrated their love and affection for each of them, the issue before the court related to whether there was a risk to their living with their mother, both from drugs and from family violence as a result of her relationship with Mr L. It was further explained that in those circumstances and at least until those risks were fully assessed, the court might consider that the children needed to be with their father and their spend time with their mother being supervised until it was established that those risks were no longer present. Further discussion centred around the mother's possible spend time being supervised by the maternal grandparents who might be required to agree to undertakings that were appropriately protective of the children from any risk of drugs and/or family violence.
38. Ms Tomlin immediately responded by adamantly insisting that none of those risks was present. She strongly denied any drug use, saying that she had already presented five clear drug screens and she was resolute that she was no longer in a relationship with Mr L. She became loud, angry and distressed, totally denying all the claims against her and blamed Mr Sheffield for all the problems. At that point she also claimed that the Suburb A police had colluded with the father in relation to the risks associated with her.
39. The father remained calm and somewhat resigned during this prolonged outburst and repeated that he needed appropriate assurances about any risks to the children, i.e. drug screens and evidence of a completed rehabilitation program before he was prepared for the children to spend unsupervised time with the mother.
The family consultant also interviewed the maternal grandparents who described their closeness and love for the children. They do not believe that there were any risks associated with the mother to the children. They believed that the father hated the mother and wanted the mother out of the children’s lives. They did acknowledge that the father loves the children but expressed concerns about both parents’ inability to focus on the children’s welfare. They also said they were disappointed that the father had not taken more interest in [X] before and were concerned about removing [X] from his friends in the area and his (sports).
The family consultant interviewed the children. [X] wanted to stay with his mother and stay at his school. He expressed reluctance about going to Suburb A High School as he would have to make new friends and play sports with a different teams. He described his close relationship with his maternal grandparents. His relationship with his father had improved.
At [45] the family consultant said:
When asked about the mother's friend, Mr L, [X] said he liked him, that they do things together, play (sports), with motor bikes. He said his father "lies about Mr L being there (and that) I've never seen fights between mum and Mr L”. It should be noted that while there is reference in the affidavit material to [X] having called the police while she was being attacked by Mr L, he was not challenged about this during his interview.
[Y] told the family consultant that she would like to live in a week about arrangement with her parents. She missed her mother and maternal grandparents. At [49] and [50]:
49. In relation to Mr L, [Y] said, "Mr L is nice but he yells at mum a lot, not at the kids ... [X] and [Z] have seen Mr L and mum fighting. I've been frightened when Mr L yells ... he is very loud and scary". There was also evidence in the affidavit material as well as the DHHS file that reported [Y] stating that she felt unsafe at her mother's home.
50. [Y] was positive about Ms L, "She's nice, she organises everything" and about her "Nan and Pop (maternal grandparents) (they) ... they love us a lot and miss us". When asked about how she thought her sister, [Z] was coping with things, [Y] said that, "[Z] has been ok with dad, she misses mum but she's been ok".
[Z] presented as a happy child. She preferred her new kinder. She missed her mother.
Both [X] and [Y] said they found counselling helpful and wanted to continue.
In the evaluation section of the report the family consultant referred to the family’s involvement with Victoria Police and DHHS. Although in the past both parents had contributed to the family’s problems, the report noted that the father presented well and was in a happy, safe and positive relationship. The family consultant observed that the father “did not present as being motivated by a punitive or retaliative need towards the mother.”
The family consultant made the following observations at [56] to [60]:
56. The current dispute relates to where the children should live, any risk to the children in their mother's care and what times and under what circumstances, should they spend with the other parent.
57. The father presented well and was assessed as being principally focussed on protecting the children from possible risks associated with the mother's home, including her alleged drug use and her alleged relationship with a man who has been physically and emotionally violent towards her, at times, in the presence of the children.
58. While there were indications that in the past, both he and the mother contributed to their family's problems, the father is now in a happy, safe and stable relationship. Moreover he did not present as being motivated by a punitive or retaliative need towards the mother. He considered that he, together with his new partner, were able to provide a more secure, reliable and consistent home for the children. He had thought through the issues facing the children in relation to the changes in their home and school environments and was prepared to provide them with additional support with counselling, if it was required.
59. The mother did demonstrate an affectionate relationship with her children and they were similarly responsive to her. However, in other respects, the mother did not present well. She totally denied any current problems with drugs and greatly minimised the family violence issues that had occurred. She acted as though there had simply been a mistake about the children being removed from her and that they should just be returned to her. There was little insight shown or accepted responsibility on her part as to how the situation had developed and she instead, blamed the father for all the family's problems. It was difficult to assess whether the mother could or would ensure a safe environment for the children, one that was drug and family violence free, given her total denial of any responsibility for the current problems. It is therefore not possible to recommend that the children live with her or spend unsupervised time with her.
60. It is nevertheless considered important to provide the children with a safe way to spend time with their mother until such time as the court is satisfied about her ability to provide them with a safe place with her. The recommended approach would be at the maternal grandparents' home, provided there were appropriate undertakings by them in relation to their supervision. Otherwise, a contact centre may need to be considered.
The family consultant noted the children’s views and said there were indications that the children felt conflicted loyalties. She referred to [X]’s comment that he had never seen Mr L be violent despite evidence that he had been directly involved on at least one occasion. None of the children expressed negative feelings about the father and his partner.
The family consultant recommended that the children live with the father and spend time with the mother supervised by the maternal grandparents on alternate weekends from Fridays to Mondays and each Tuesday overnight. She further recommended that a contact centre should be considered if the maternal grandparents are not available.
Applications and court events from March 2017
The father filed another application in case on 3 March 2017 seeking that the mother’s time with children be supervised on such terms as determined by the ICL and that the father be entitled to enrol the children at schools and kinder in Suburb A.
The mother secured legal representation and filed an affidavit on 9 March 2017. In that affidavit she addressed the allegations with respect to her relationship with Mr L as outlined in the father’s affidavit of 12 January 2017.
She also addressed the issues of allegations of drug use and said that she had complied with the drug screen requests and other parenting issues. It is significant that the mother does not address the first family report in her affidavit apart from saying that she has not been able to communicate with the children except from one telephone call on speaker phone since the family report. (Presumably she means the interviews for the family report which took place on 24 February 2017). She expresses concerns about the father’s unilateral actions in changing the children’s schools and seeks that the children be immediately returned to her care.
The father filed a further affidavit on 11 May 2017. In that affidavit he alleged that the drug test records produced under subpoena showed that the mother had forged drug screen results and had not complied with the most recent request of the ICL. The father said he been unsuccessful in attempting to facilitate the mother having time with the children supervised by her parents. He said the children have settled in to their new schools and he addressed other issues raised by the mother.
The maternal grandmother filed an affidavit on 12 May 2017. She referred to the family report recommendation that she and her husband supervise the mother’s time and indicated that she consented to that and would undertake to ensure that either she or her husband were present at all times during this time with the children for as long as the court required. She also explained her understanding of the obligations of supervisor. She also addressed concerns the father had raised about her ability to supervise. She denied the father’s allegation that her husband head-butted the father on 9 April 2017 at [X]’s (sports) game.
At the hearing on 15 May 2017 the mother was represented by counsel but was not in court and was not able to get instructions. I vacated the scheduled hearing on 22 June 2017, made orders permitting the father to change the children’s school and kindergarten arrangements to Suburb A and made orders granting the ICL liberty to seek supervised drug screen testing randomly once a month. I made a notation that the mother was not present in court when the orders were made and her lawyer was unable to get instructions.
When the matter next came before me on 9 October 2017, the mother was again self-represented. At that time the contact centre had indicated that they were close to the top of the waiting list. The mother said she had difficulties with telephone calls and also complained that the ICL had not returned her calls.
On 9 October 2018, I made orders listing matter for an interim hearing on 22 February 2018 to address the issue of the mother having unsupervised time with the children. I ordered that the mother file and serve an affidavit addressing why her time should be unsupervised on or before 15 January 2018 with the father to file and serve any reply by 29 January 2018. The mother did not comply with these filing directions. The mother appeared on 22 February 2018 and the matter was adjourned at her request to enable her to file documents. The mother submitted that the risk factor had been eliminated and that she did not need to be supervised. I also made orders for an updated family report and listed the matter for a four-day final hearing commencing 16 July 2018. Despite the mother’s objection, I requested that the updated report be completed by the same report writer if possible as this is the usual course. Pending the further interim hearing on 2 March 2018, I made orders that the mother spend time with children that upcoming Sunday afternoon between 1:00pm and 4:00pm supervised by one or both of her parents and that such visit was conditional upon the ICL first speaking to her parents, explaining the role of supervisor to them, and each of the maternal grandparents signing an undertaking prepared by the ICL.
On 2 March 2018 the mother did not attend court. She emailed my associate and the ICL at 8:44am indicating that she was having car trouble and was running late. The mother later contacted the ICL and said she had a panic attack, but was leaving the hospital and would be at court within 40 to 50 minutes. The ICL tried calling the mother without success and after waiting until 11.50am, I made further interim orders and gave reasons for doing so[2]. In those reasons I again referred to the risk issues which the mother had still failed to address despite having numerous opportunities to do so. Whilst the mother failed to take up two opportunities to agitate for interim unsupervised time, the father filed a further affidavit outlining concerns he had about whether or not the maternal grandparents were actually supervising the mother’s time.
[2] Sheffield & Tomlin (No.3) [2018] FCCA 614
The father and the ICL agreed to orders which increased the mother’s time with the children but maintained the requirement that her time be supervised to by one or both of her parents.
I made the following observations at [10] to [12] of those reasons:
10. I am satisfied that this is in the children’s best interests. One could understand why the father would still be concerned about the maternal grandparents. They have filed undertakings that are annexed to the ICL’s affidavit. They need to be aware that if they breach these orders by failing to comply with those undertakings, then the mother’s time will have to be suspended. It does not help the mother or the children for the maternal grandparents not to understand the important role, regardless of whether they think it is necessary for the mother’s time to be supervised or not.
11. The mother’s presentation continues to be concerning. Whilst I accept that it is distressing for her dealing with these proceedings, and she does not have the benefit of a lawyer, it is not the first time that she has not attended Court on time. It is not the first time she has not complied with orders. It was clear, when the matter was last in Court, that she blames other people for the position that she is in. I have ordered a further family report and also listed the matter for a trial, as this matter must come to an end for the children’s sake, regardless of whether or not the mother is able to address the issues of concern.
12. The mother should understand that the ideal position would be for her to be able to have a relationship with the children on an ongoing basis, including unsupervised time, but that can only be done if it is safe for the children and by safe, I mean not just physically safe, but emotionally as well, and the mother is going to have to provide evidence to the Court that addresses the concerns that are not limited to the issues of family violence, but also concern drug use as well, which to date she has failed to address.
As I have made clear in my previous reasons, the risk issues concerning the mother are not limited to her relationship with Mr L. There is also a real concern about her drug use and her mental health. The mother has had numerous opportunities to address these issues and place evidence before the Court so that her time can be progressed.
I confirmed the final hearing date and made orders as set out below:
UNTIL FUTHER ORDER, AND SUBJECT TO THE UNDERTAKINGS MADE BY THE MATERNAL GRANDPARENTS ON 23 FEBRUARY 2018:
2. The mother spend time with the children [X] born 2004, [Y] born 2007 and [Z] born 2012 as follows:
a) Until 1 April 2018, each alternate Sunday from 1:00pm until 7:00pm;
b) From 14 April 2018, each alternate weekend from 1:00pm Saturday until 7:00pm Sunday;
c) From the date of these Orders, each Wednesday from 5:00pm until 7:00pm excluding 4 April 2018.
3. For the purposes of contact pursuant to these Orders:
a) All time is supervised by either or both of the maternal grandparents;
b) The mother ensure the children attend their extra-curricular activities that fall during her contact periods;
c) Changeovers take place at McDonald's Suburb A;
d) The child [X] attend in accordance with his wishes.
4. In the event that either the mother of the maternal grandparents breach these Orders or the terms of the Undertakings made by the maternal grandparents on 23 February 2018, all time pursuant to these Orders is suspended.
The second family report
The second family report was released on 6 June 2018.
The updated family report was released on 13 June 2018. The family consultant recorded that the mother was seeing the children in accordance with the interim orders made on 2 March 2018.
At the interviews for the second report on 11 May 2018, the father expressed his concerns for the children’s safety when they were with their mother and thought that her time should be professionally supervised. The mother proposed that the children should be in a week about arrangement with each of their parents.
The family consultant spoke to the ICL who told her that she has made eight requests for drug screens from the mother. She only received two screens which both had queries about their validity. The mother denied that she was using drugs and claimed she had answered all requests and had provided clear screens.
The father expressed concern that the mother is involved with people where family violence is involved and expressed concern that her parents are not able to adequately supervise the mother. The mother said that the father’s allegations were untrue and vindictive.
The father also expressed concern that the mother’s behaviour was unstable and unpredictable and that she could not be relied on to ensure the children’s safety. The mother denied these allegations.
The family consultant recorded that the parents’ relationship remains conflictual and that further evidence of the mother’s drug status was needed.
The father said that he wants the children to be safe and was concerned that due to his belief that the relationship between the mother and her parents was often volatile and abusive that her parents are unable to control the mother’s behaviour and supervise her. He went on to tell the report writer that the grandparents are great for the children.
The mother’s relationship with [X] has deteriorated. He does not want to see her and says the mother lies to them. The father was concerned that the mother was continuing to tell the children that he is lying to them and that it is his fault that she cannot see the children.
The father said that the mother calls the children at inconsistent times, often when the children were having dinner or doing other things, that the mother is abusive to his wife on the telephone and that the mother cannot talk to the father and his wife without swearing at them and will do this in front of the children.
The father said that he was concerned that the mother was using drugs as he has received messages from people the mother associates with who have told him that she is using drugs. The children tell him that the mother spends a lot of time on the phone and has little energy during her time with them. He said he knew the children wanted to see they mother and had offered the mother extra time during the school holidays if she provided a clean drug screen but she did not respond. Often the children were disappointed when they returned home from seeing their mother as their time with the mother is haphazard and the mother makes promises to them which does not keep. They also tell the father that the mother is abusive to her parents. He was also concerned that her parents have not told him about this and that he felt the mother needs to prove herself at a contact centre.
The father’s wife also expressed concern about how the children are when the return from visits with their mother and that their mother asks them too many questions.
The mother told the family consultant she was not seeing [X] as their relationship had broken down. She became very distressed when saying [X] will not communicate with her. She blamed the father believing that he has influenced [X] but also thought that [X] felt that she had let him down.
The mother complained that the father deliberately makes it difficult for her and that he and his wife do not let her talk to or see the children. She said her communication with them was poor because he puts her down and does this in front of the children.
The mother accepted that [X] was happy at his new school and that his relationship with his father has improved which has turned out well for him. She claimed that the girls have told her they want to return to their old schools.
The mother said she has a good relationship with her parents.
In answer to the family consultant’s queries about her drug screens the mother said she had complied with all the ICL’s requests and all her results were clean. She said she had had been seeing her psychologist for 12 months who reported she was drug free. The mother told the family consultant that she stopped using drugs six months ago. The mother’s statement to the family consultant with respect to her drug screens are inaccurate.
She then complained about the court system and said that the police and the judge were making decisions contrary to the children’s best interests and that the system and the people working in it are corrupt. She found the proceedings had made her extremely upset and at one point she was suicidal.
The family consultant also interviewed the mother’s parents who expressed a willingness to continue supervising the mother’s time but expressed the view that they thought her time should be moving to unsupervised time. They expressed concern about the father’s motives and thought he was unreasonable. The maternal grandparents supported the view that the children are thriving in the father’s and his wife’s care, but that they wanted the mother to see them too.
She referred to her brief joint interview with the parents at [31] and [32]:
31. After a brief discussion about the problems with the current orders for telephone contact between the mother and the children, the parents agreed to change the days to Monday and Wednesday at 7pm.
32. However following that, their discussion became chaotic with allegation and counter allegation between them. Within a few minutes, the mother became extremely upset, blaming the father for all the problems and the father indicating his total lack of trust in the mother. The situation became untenable when the mother launched into an uncontained screaming rage and the family consultant had to physically intervene between the parents, directing the father to immediately leave the room, which he did.
The family consultant observed that whilst the father’s proposal for the mother to spend supervised time at a contact centre would mean that the children would be seeing their mother in an emotionally safe place, it was unlikely that the mother would attend consistently which would result the children not seeing the mother.
The family report indicated that concerns with respect to the mother are her alleged drug use, the likely exposure of the children to family violence if in her unsupervised care, and the alleged emotional abuse of the children by continuing to involve them in the dispute such as telling them is the father’s fault that she does not spend time with them. The mother did not address these allegations, apart from denying them generally and blaming others.
The family consultant also observed that conflict management between the parents is “extremely problematic” and that their communication is negative and there are no signs of improvement.
[X] told the family consultant that whilst it was difficult changing schools at first, he is settled and happy there and has good friends. He plays (sports) on Sundays. He said he liked the current parenting arrangements and whilst he would like an additional overnight with his mother, he was not comfortable about staying at the mother’s home and wanted to continue to see her at the maternal grandparents’ home. [X] was unhappy about not getting his birthday presents from some two months before and described problems he experiences when he does not want to see his mother such as that his mother would ask a lot of questions and would not listen to him when he tried to explain to her.
[Y] also said she was initially unhappy changing schools but is now happy at that school and has made good friends. She goes to (hobby) class twice a week and plays netball on Sunday mornings. She said that sometimes the spend time with arrangements are annoying because the maternal grandmother has to be there the whole time and she doesn’t always want to go out to the shops for example. She misses her mother would like to see her more.
[Z] spoke about subjects she likes at school and her friends. She liked the current spend time with arrangements and liked seeing her mother at the maternal grandparents home. She told the family consultant that she needed to be safe and referred to an incident when she was in the car with the mother and she “drove too fast and the police were there when mum ran away.” Presumably she is referring to the incident when the police had to execute the recovery order 1 February 2017.
The family report writer commented on the observations between the children and their father. She noted that they were comfortable and relaxed although [X] was initially reserved.
When the children were observed with their mother they appeared happy to see her, although [X] avoided interacting with her and gave her minimal responses. The atmosphere was somewhat strained between the mother and children and the children’s responses to the mother’s questions were “a little awkward”. She noted that “while mother seemed pleased to see the children, her general demeanour was strained rather than relaxed.”
I do not place significant weight on this as I have no doubt that the mother was extremely stressed at the second family report interview, knowing that the first report was not positive for her. What is of real concern is the mother’s uncontained behaviour at the second family report interview which has also been present in the courtroom. The concern being that despite knowing that she is under scrutiny mother has not been able to contain herself. I certainly acknowledge that the situation is highly stressful and distressing for her and that she is somewhat disadvantaged by not having consistent legal representation to assist her through the process. The family consultant said the following in the evaluation section of her report at [55] to [60]:
55. The father and his wife were assessed as acting in the interests of the children's welfare and they were seen to be doing an excellent job of looking after the children in difficult circumstances, given the extremely conflictual relationship with their mother. They continued to express their concerns about the mother's drug status and her friendships with other drug users. They were also concerned about the impact on the children of their mother's alleged uncontained, aggressive behaviours in front of them despite the maternal grandparents' presence during the supervised 'spend times'. While the father said he would welcome the children having a positive relationship with their mother, he indicated a complete lack of trust in her and viewed whatever she said or did in a very negative light. His views seemed to be based on his past experience of her behaviour as well as what he regarded as a lack of evidence to indicate any positive changes. When seen with the mother, the father was somewhat provocative towards her, which, together with her combative feelings towards him, continued to make cooperative communication between them, very difficult.
56. The mother was assessed as a woman who can present well, especially when seen alone, who loves her children, misses them greatly and wants more and unsupervised time with them. However her circumstances remain unclear, for example, in relation to drug use and as to whether she would be able to ensure they are in a physically and emotionally safe place, particularly from family violence issues in her relationships, including her relationship with the maternal grandparents. She laid full blame for her predicament on others, particularly on the father but also on other factors such as the family courts and various authorities and seemed unable to accept any responsibility for her situation. Her uncontrolled and aggressive verbal attack on the father when seen together with him, was taken as being indicative of her emotional volatility and lack of restraint when upset. In those circumstances it was difficult to conclude whether the children would be safe in her care, supervised or otherwise.
57. The maternal grandparents clearly love the children, want to spend time with them and are mostly focussed on their welfare. However they also feel a sense of loyalty to their daughter, Ms Tomlin and it was clear that at times, those loyalties were tested. Although on occasion their judgement was less than perfect, for example, when minimising the impact of verbal conflict on the children, it was assessed that they could be relied upon to act in the children's best interests most of the time.
58. The children have been placed in a difficult situation in that they love their mother and want to see her but their experience has been severely hampered by some of her behaviours, the extremely conflictual relationship between their parents as well as their exposure to the problematic relationship between their mother and their grandparents. The oldest child, [X], aged fourteen years, has mostly declined to attend the visits while the two younger children, [Y] aged almost ten years and [Z], aged five years said they missed seeing their mother and would like to see more of her. It would seem appropriate to attempt to meet those needs while ensuring their safety as much as possible. It was considered appropriate that at his age, [X] should have the choice of attending for 'spend time visits' according to his wishes.
59. Both [X] and [Z] alluded to problems at the mother's home and wanted the grandparents to be present while they spent time with their mother. They were not interrogated about those problems during these interviews in an effort to keep them out of those conflictual areas, thereby not adding to their conflict of loyalty between their parents.
60. The grandparents were assessed as being able to provide the basic necessary care for the children's welfare. The father expressed concern that the grandparents were unable to supervise as closely as was agreed by them in their Undertaking however, it was considered that undertaking may have been overly ambitious, particularly in the long term. While it was less than ideal for the children to be exposed to the conflicts between their mother and grandparents it was considered preferable to having severely restricted time with her if they were to see her in a contact centre situation. Ultimately their future relationship with their mother will be determined by the efforts she makes in the future.
The family consultant recommended that the mother’s drug status be “more fully determined” and if acceptable to the court, the mother continue to spend time with the children at her parents’ home with the grandparents being in substantial attendance. She further recommended that [X] attended accordance with his wishes.
Evidence at the trial
The father relied on his trial affidavit sworn and filed on 2 July 2018. The father says that it is in the best interests of the children to remain living with him and that he wants the children have a positive relationship with the mother but that he is concerned that the mother’s behaviour has been worsening and that she has no understanding of the impact this is having on the children.
The father says the children are happy in his and his wife’s care and that they miss their mother. After the children were removed from their mother’s care they saw a child psychologist.
The father gives examples of the mother being verbally abusive to him and his wife during telephone calls since February 2018 and said that some of this occurs within the children’s hearing.
He also says that the mother continues to be derogatory of him and his wife to the children and says that on 25 March 2018 the children told him that the mother had said to them that “Ms L and dad lie to you and you don’t have to believe what they tell you” and “you can see me whenever you like but dad won’t let me.” The children also told him that the mother had told them that they needed to tell the court counsellor that they want to live with her. That [X] told them that the mother was pressuring him to go back and live with her and told him that the father is a “fucking dog why do you want to live with him and not me”.
The father says that [X] has settled into his school well and is having great success with his (sports). [X] is hesitant about seeing his mother but is close to his maternal grandparents and the father says he’s been trying to organise for [X] to have some regular one-on-one time with them.
[Y] is performing very well at school in both academic subjects and also extracurricular activities, including (hobby).
[Z] is enjoying prep and loves going to school and learning new things. She also loves playing with her friends.
The father says the mother is inconsistent with respect to weekly calls to the children, either not calling, calling late or calling on different numbers.
The father gave evidence that the mother does not call the children twice a week in accordance with the orders. She usually calls once a week and often not on time. She also calls from different numbers.
The father believes the mother is in a relationship and he annexes texts he received from a friend of his in January which say that the mother is sleeping with the friend’s brother-in-law, who is on ice, and who has been violent towards his friend’s sister in law.
The father also says in his affidavit that the mother has a poor relationship with her parents and that the children have given examples to him of where the mother has sworn at her parents and called her mother names. The mother was six hours late for one visit.
The father’s wife also filed a brief affidavit supporting the father’s application that the children to remain in his full-time care and spend supervised time with the mother.
The father also relied on the two family reports.
The father gave brief oral evidence at the hearing and was cross-examined by counsel for the ICL. Exhibit A is a minute of order sought by the father which the ICL supports. The only concern the ICL raised was with respect to an order for the mother to spend time with the children on Wednesdays as the maternal grandparents told the father that they could not currently facilitate the mother having time with the children during the week as they both work full-time.
The minute of order proposed by the father seeks that the children spend time with the mother on alternate weekends during school terms from 1:00pm Saturday to 4:00pm Sunday, other times as agreed between the father and the maternal grandparents, and time at Christmas and Mother’s Day. The father gave evidence that the change in time from the interim orders which provide for the mother spend time with children from 1:00pm Saturday to 7:00pm Sunday has been made as a result of his conversations with the maternal grandparents who have had input into that proposal. He says the grandparents requested that time finish at 4:00pm on Sundays.
The father said recently [X] has not wanted to spend time with his mother. He said he takes [X] with him to the change overs so that he can say hello and goodbye the mother and grandparents.
[X] spent a week with his grandparents in the most recent school holidays as maternal grandmother asked the father if [X] would like to spend a week in Town A with her and [X]’s cousin.
The father said that his relationship with the maternal grandparents has improved. He said that the Town A trip came about as a result of the maternal grandmother first asking the father and then [X]. This is a positive sign of cooperation occurring between the father and grandparents. The father said his intention is for the maternal grandparents to see the children whether or not the mother attends. He also said that he was now content for the maternal grandparents to be in substantial attendance rather than fully supervising the mother’s time and understood that that would mean that the mother would be able to take the children out for short periods on her own. He said he now had faith in the maternal grandparents. This is an important and positive development as it is not in dispute that the maternal grandparents have a close and loving relationship with the grandchildren and that this is very positive for the children.
Exhibit B is a letter from the mother’s then lawyers Resolve Conflict Lawyers to the father’s solicitor dated 29 March 2017. In that letter they attach a drug screen test result which they say is in compliance with the ICL’s request on 7 March 2017. That test result shows that no opiates, amphetamine -type substances, benzodiazepines, cannabinoids, cocaine or methadone were detected. The sample was collected on 7 March 2017.
Exhibit C is a drug screen report from Dorevitch pathology on the same date produced pursuant to the subpoena the ICL issued to Dorevitch Pathology.
Exhibit C is on the letterhead of Dorevitch Pathology. Exhibit B is not on any letterhead but contains the same lab reference number and doctor’s details. It also refers to the sample being collected at 10:30am on 7 March 2017 and the report being issued on 10 March 2017. What is significant is that exhibit C shows that amphetamine type substances and cannabinoids were detected.
Exhibit D is a drug screen result from Dorevitch Pathology showing the sample being collected on 6 July 2018 and the report being issued on 10 July 2018 showing no illicit substances being detected. It is in the same format as exhibit C extracted from the subpoenaed material.
Exhibit B and C were tendered to support the allegation raised in both the father’s and the ICL’s case outline that the mother has forged drug screen results. Such a finding on the balance of probabilities is irresistible. It is also very troubling. The mother is aware of this allegation as she referred to it when she appeared in Court on 16 July 2018. The mother has not provided an explanation.
Legal Principles and their application to the facts in this case.
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). S.65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
In the circumstances of this case, I must place a greater weight on the need to protect the children from abuse, neglect and family violence. Of particular concern is the mother’s drug use. She has failed to return consistently negative drug screens. Her presentation at times in court and the family report interviews is also concerning, even after making allowances for the stressful nature of those interactions. The mother’s inability to contain herself when she knows she is under scrutiny is concerning as it raises issues of risk if the children were to spend significant unsupervised time in her care.
There are 13 additional considerations which are set out in s.60CC(3) which I will refer to later in these reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.
Family violence has been an issue between the parents with each making allegations against the other. These allegations have been unable to be tested at the final hearing. There have also been concerns about the mother being in subsequent violent relationships.
S.61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)).
As both parties make allegations of family violence against the other, the ICL submits that the presumption does not apply based on this factor.
The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
The allegations of family violence made by both parties have been unable to be tested due to the mother’s lack of effective participation in the proceedings. The ICL further submits that even if the court is not satisfied that the presumption does not apply, it is rebutted and it is not in the children’s best interests for their parents to exercise equal shared parental responsibility.
I am satisfied that it is not in the children’s best interests for the parents to exercise equal shared parental responsibility. They have no way of communicating effectively. The mother’s volatility and concerns about her drug use are factors against it. The mother blames the father for her predicament.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
In MRR v GR [2010] HCA 4, the High Court found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an Order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an Order for equal time. At paragraph [13] of 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 (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words in which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each court has the power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
The mother seeks an order for equal time in a week about arrangement. Such an arrangement would not be in the children’s best interests at the current time. Apart from the lack of communication between the parties, the mother’s drug status and mental health status remains unknown.
The mother’s time with the children since the orders made on 31 January 2018 have been limited. They have required supervision by the mother’s parents. The orders I will make for the mother to spend time with the children are still limited. They do not enable the mother to have significant involvement with the children’s school routine. They are not as restrictive as one option explored in the second family report, which was for the mother to spend time with the children at a contact centre. I have made this order previously and such time did not eventuate. Whilst it would provide an emotionally safe space for the children to spend time with their mother, it is unlikely the mother would engage and could result in the children not seeing their mother at all.
It is clear from the family consultant’s interviews for the second report that the children have settled into their father’s primary care. They have a good relationship with his wife and have settled into their schools.
It is concerning that [X]’s relationship with his mother has deteriorated. [X] has had many difficult issues to deal with since the parties separated. He found out that the father was not his biological father. At that time, his relationship with his father was not strong whereas his relationship with the mother was. Now his relationship with his father has strengthened and the relationship with his mother has weakened.
The message [X] gave to the family consultant, for both parents to hear but particularly the mother, was that he did not want to be involved in the dispute. He does not want mother to ask him a lot of questions. He does not want to be position where he feels conflicted loyalties between the parents. Currently the easiest path for him is to simply not spend time with his mother. Hopefully the mother can make overtures to him by showing him that she has listened to him and that she wants to repair their relationship. That would be of enormous benefit to [X] in the long term. Given [X]’s age, maturity and his clear views it would be counter-productive to make specific orders requiring him to spend time with his mother at fixed times. He has different needs to his younger sisters. [X] is very close to the maternal grandparents and they may also be able to assist the mother to repair her relationship with [X].
[Y] misses the mother and wants to spend more time with her.
[Z] likes the time she spends with her mother at the maternal grandmother’s home. From her comment to the family report writer she clearly remembers the incident where the mother sped while driving her in the car to avoid police seeking to execute the recovery order. That would have been traumatic for her.
The maternal grandparents provide the children with a source of stability and a safe way of seeing their mother. It is important that the children are able to maintain their close relationship with the maternal grandparents regardless of whether or not the mother exercises time with them in accordance with these orders.
I am satisfied that the father will facilitate this. He indicated as much when he was cross-examined and indicated that their relationship has improved. [X] spent a week of the school holidays with his maternal grandmother.
With respect to the parents taking opportunities to participate in decision making about long term issues, spending time with children and communicating children, this has been a fraught issue for the mother since it was necessary to change the children’s living arrangements.
It is obvious that the mother deeply loves her children. She misses them and wants to spend more time with them. What is concerning is that the mother shows no insight into the issues of concern. She blames everyone for the situation she is in, including the father, his wife, the father’s lawyer, the ICL, the family reporter writer and the Court. It is also clear that it is difficult for her to only be able to see the children under the supervision of her parents. What is really unfortunate about this is that the mother has failed to address the concerns, despite having these concerns clearly identified and having many opportunities to address them. The father’s evidence is that the mother communicates with the children by telephone somewhat inconsistently. Currently it is impossible for the parents to make joint decisions for the children.
I do not have any evidence as to whether or not the mother pays child support.
All three children have experienced enormous upheaval and change as the result of needing to change their living arrangements urgently given the safety concerns and the subsequent need for the children to change schools and live in a different suburb. The evidence is that the children have now settled into their current arrangements which have been in place since 1 February 2017. It would not be in their best interests to significantly change the current arrangements which enable them to see their mother in safe conditions and to see their grandparents regularly.
The mother’s capacity to provide for the children’s physical, emotional and intellectual needs has been the subject of much concern and, based on the evidence, she is unable to meet those needs adequately.
The father is by no means a perfect parent but he has shown that he has the ability to step up and provide for the children’s physical, emotional and intellectual needs and has demonstrated that he understands the responsibilities of parenthood.
The orders I propose to make provide for the mother to be able to maintain her relationship with the children whilst keeping safeguards in place. It would be unrealistic to maintain the requirements for the maternal grandparents to supervise the mother’s time, which includes overnights at their home. It is however necessary to maintain the requirement that they be substantially present and that the mother’s time occur at the grandparents’ home. It is clear that the children feel safe and comfortable spending time with their mother there. The orders require all time the children spend overnight with their mother to occur at their maternal grandparents’ house, but the orders also enable the mother to take the children out for activities without the maternal grandparents being constantly present.
I am satisfied that these orders are in children’s best interests, balancing the need to protect them from harm whilst enabling them to maintain a relationship with their mother. The notations give the mother a roadmap of what she needs to do in order to seek an increase in time with the children and the removal of the requirement for one or both of her parents to be in substantial attendance. The notations refer to the mother successfully completing an anger management course, completing a post separation parenting course, a drug and alcohol counselling program and providing three random supervised drug urine screens randomly requested by the father’s lawyers or the father as he may not continue to have representation. These notations were proposed by the father and the ICL. As an alternative to the urine drug screens, the mother may provide a hair follicle test provided it is carried out in accordance with the required Australian and/or international standards and covers a period of at least three months. The costs of such tests have substantially decreased in recent times. Given the concern about forged drug screen results they may provide better evidence which will provide some comfort to the father but also assist the mother in establishing that she has been able to become free of drugs. The notations anticipate that there may be further proceedings if the mother is able to address these issues and parents are not able to reach agreement. It would certainly be to the children’s great benefit if the mother is able to turn things around.
I certify that the preceding one hundred and sixty-nine (169) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 14 August 2018
Key Legal Topics
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Family Law
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Civil Procedure
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Injunction
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Remedies
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Procedural Fairness
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Jurisdiction
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