Siddall & Munroe
[2022] FedCFamC1F 833
Federal Circuit and Family Court of Australia
(DIVISION 1)
Siddall & Munroe [2022] FedCFamC1F 833
File number(s): SYC 2141 of 2018 Judgment of: BRASCH J Date of judgment: 28 October 2022 Catchwords: FAMILY LAW – CHILDREN – Whether the children spend time with the father - Where the father had a history of florid mental ill-health and drug abuse – Where the father had committed acts of family violence and abuse - Where the father committed acts of anti-social behaviour - Where the mother saw or learned of the father’s violence, abuse and anti-social behaviour - Where supervised time ordered by the Court - Where the mother stopped supervised time - Where the children have not seen the father for three years - Whether the father's functioning now presented an unacceptable risk to the children - Where the Single Expert assessed risk as minimal on the father's proposal for time - Where the ICL proposed supervised time – Where the ICL set out a pathway to unsupervised time if in the children's best interests - Where the mother sought no time - Whether the father be included in a child's birth certificate - Whether the children should have changes to their last names Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Part VII, ss 4(1), 4AB, 60B, 60CA, 60CC, 60CC(2), 60CC(2)(a)-(b), 60CC(2A), 60CC(3), 60CG, 61DA, 65D(1) 65DAB, 68B
Crimes (Sentence and Procedure) Act 1999 (NSW) s 10
Mental Health (Forensic Provisions) Act 1990 (NSW)
s 32(3)(a)Cases cited: Blinko & Blinko [2015] FamCAFC 146
Chapman & Palmer (1978) 4 Fam LR 462; [1978] FamCA 86
Cotton & Cotton (1983) FLC 91-330
Flanagan & Handcock (2001) FLC 93-074; [2000] FamCA 150
G & C [2006] FamCA 994
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Hudson & Hopgood [2018] FamCA 693
Isles & Nelissen [2022] FedCFamC1A 97
Jurchenko & Foster (2014) FLC 93-598; [2014] FamCAFC 127
Loddington & Derringford (No 2) [2008] FamCA 925
M & B [2001] FamCA 894
M v M (1988) 166 CLR 69; [1988] HCA 68
Marriage of Mahony & McKenzie (1993) 16 Fam LR 803; [1993] FamCA 78
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Reynolds & Sherman (2015) FLC 93-659; [2015] FamCAFC 128
Rice & Asplund (1979) FLC 90-72
Russell & Close [1993] FamCA 62
Smith & Smith [2020] FamCA 34
Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Whisprun Pty Ltd v Dixon [2003] 234 CLR 492; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 180 Date of hearing: 1 - 4 August 2022 and 9 September 2022 Place: Sydney Counsel for the Applicant: Mr Flanigan Solicitor for the Applicant: Grant & Co Counsel for the Respondent: Ms Ryan Solicitor for the Respondent: Meares Law Counsel for the Independent Children's Lawyer: Ms Rebehy Solicitor for the Independent Children's Lawyer: Legal Aid Nsw Parramatta Family Law ORDERS
SYC 2141 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SIDDALL
Applicant
AND: MS MUNROE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BRASCH J
DATE OF ORDER:
28 October 2022
BY CONSENT THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The children’s names be changed to X Siddall-Munroe and Y Siddall-Munroe and the parties will complete all forms, and do all things necessary within seven (7) days from the date if this order to:
(a)Amend the children’s names on their birth registration with the Registry of Births Deaths and Marriages; and
(b)Amend Y’s birth certificate so that Mr Siddall is named as her father.
3.The mother have sole parental responsibility for the children X Siddall-Munroe (“X”) born … 2014, and Y Siddall-Munroe (“Y”) born … 2016 (“the children”).
4.The children live with the mother.
THE COURT FURTHER ORDERS THAT:
5.The mother, when exercising sole parental responsibility, will notify the father in writing of any major long-term decisions made with respect to the children within seven (7) days of such decision/s being made.
Supervised time with the father
6.The father spend time with the children as follows:
(a)For a period of 12 months from the date of these Orders for three (3) hours each calendar month such time to be arranged with and supervised by a professional supervised contact service pursuant to these Orders;
(b)After 12 months for up to five (5) hours each calendar month, with such time to be arranged with and supervised by a professional supervised contact service pursuant to these Orders;
(c)By FaceTime or other video call between 5.00 pm – 5.30 pm on the following occasions each year (with the call to be initiated by the mother or her nominee):
(i)Christmas Day
(ii)Each of the children’s birthdays
(iii)Father’s Day
(d)At such other times and under such conditions as are agreed by the parties in writing; and
(e)On all occasions, the parents by this Order authorise members of the paternal family, including but not limited to the paternal grandmother, Ms J, and the children Ms C and D are at liberty to attend all or any supervised visits, whether the father is able to attend, or not.
7.For the purpose of the children’s time with the father:
(a)The time will supervised by “[H Contact Service]” or such other Supervision Service as agreed between the parties in writing (“the Supervision Service”);
(b)In the event that the Supervision Service is unable to accommodate the parties or becomes unable to accommodate the parties, time will be supervised by an alternate Supervision Service and for this purpose the mother will nominate three (3) alternate services within 14 days of being advised of the original Supervision Services inability to accommodate the parties, and the father will select one (1) within a further seven (7) days;
(c)The parties will each contact the Supervision Service within seven (7) days of these Orders and will provide any information requested and participate in any intake session and pre contact meetings required by the Supervision Service and each party will pay their own intake fee;
(d)Following the intake, the father will be responsible for payment for all supervised time, including those where he or his family cancel time or fail to attend and will pay the cost of the supervised time within the time specified by the Supervision Service;
(e)Following the intake, the mother will be responsible for payment for all supervised time that are cancelled at her request, or failure to attend and will pay the cost of the supervised time within the time specified by the Supervision Service;
(f)The parties will comply with the Supervision Service’s policies and requirements (if any) for confirming attendances, for determining the location for the supervised time and for payment;
(g)In the event that there is a dispute about the location, date or time for supervised time, or the location cannot be accommodated, the parents, by this Order, authorise the Supervision Service to nominate the location, date and time for the supervised time;
(h)The parties will each follow the directions of the Supervision Service with regard to the supervised time;
(i)The father shall be entitled to provide the children with gifts and cards and take photos with the children during the supervised time, at the discretion of the Supervision Service; and
(j)Subject to the policies of the Supervision Service (if any), if either the father or mother require a report of supervised time, they may request this from the Supervision Service at their own expense.
Path to Unsupervised time
8.No less than two (2) years after the making of these Orders, and upon the father providing to the mother:
(a)A hair strand drug test report, accompanied by an explanation of the results from a pathologist including whether any drugs detected are consistent with use of prescribed medications, that is negative for illicit drug use; and
(b)A contemporaneous report from his treating psychiatrist or psychologist that includes details of his compliance with current treatment and relapse safety plan; then
the children will spend time with the father as agreed between the parties or failing agreement on the first Saturday of each month from 10.00 am to 3.00 pm in the presence of the paternal grandmother for a period of 12 months and the FaceTime Orders in Order 6(c) shall continue.
9.During that 12 month period where time is in the presence of the paternal grandmother, the father will provide the mother with three (3) hair strand drug test reports, accompanied by an explanation of the results from a pathologist including whether any drugs detected are consistent with use of prescribed medications, at the fourth, eighth and twelfth month mark of this period of time.
10.In the event that the father fails to provide a test result or provides a result that is positive for illicit substances, time will revert to time under these Orders supervised by the Supervision Service in accordance with Order 6(b).
11.If after 12 months of time in the presence of the paternal grandmother, the father has provided three (3) hair strand tests in accordance with these Orders that are negative for illicit drugs the children will spend unsupervised time with the father as agreed between the parties or failing agreement between 10.00 am and 3.00 pm on the first Saturday of each month and the FaceTime Orders in Order 6(c) shall continue.
12.For the purpose of these Orders:
(a)The hair strand tests are to be performed by an approved laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005);
(b)The purpose is to report on the detection (or not) of illicit drugs/ drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites, methadone metabolite, benzodiazapines, barbituates and buprenorphine;
(c)The terms “illicit drugs” and “drugs of abuse” mean drugs not prescribed by a qualified medical practitioner; and
(d)For clarity, the father will not be considered to fail a drug test if the pathologist reports the presence of a drug is consistent with medication prescribed by a medical practitioner for the father.
Information provision and sharing
13.The parents by this Order authorise any school attended by the children to provide the father with copies with the children’s school reports, newsletters and school photos and any other information that is normally provided to parents, at the father’s cost (if any).
14.The mother will inform the father as soon as practicable in the event that either of the children suffer a medical emergency and/or require hospitalisation, and the parties by these Orders, authorise the children’s treating medical practitioners to provide to the father any information that would normally be provided to parents.
15.Within seven (7) days of these Orders, the mother shall set up an email account for the purpose of communication with the father and will advise the father of the email address, and any changes to the nominated email address seven (7) days prior to the change.
16.The mother is permitted to authorise her partner Mr K (or another nominee) to facilitate communication with the father by email on her behalf.
17.The father shall notify the mother, via the nominated email account, within 48 hours of any of the following events occurring:
(a)Any change to the father’s email or FaceTime contact details;
(b)The father being charged with or convicted of any criminal offences;
(c)The father being the defendant in any provisional or final Apprehended Domestic Violence Order or Apprehended Violence Order; and
(d)The father being admitted as an inpatient at any hospital or mental health facility (with the time under these Orders being suspended for any period of the father’s admission).
Presents and cards (in addition to Order 7(i))
18.The father is at liberty to send presents and cards for each child to a post office box address to be nominated by the mother on three (3) occasions per year, being:
(a)The children's birthdays;
(b)Christmas; and
(c)Easter.
19.The mother shall do all acts and things to ensure that the children receive such letters and gifts from their father, provided that the letters contain no denigration of the mother or other members of her family.
20.Within seven (7) days of the date of this Order, the mother, through her legal representatives is to provide the father with a post office box address for the purposes of facilitating the previous Orders.
Restraints
21.The father is restrained by injunction from consuming alcohol or illicit drugs within 24 hours of any time with the children under these Orders, and the Supervision Service is authorised to suspend time if it appears that the father is under the influence of alcohol or illicit drugs.
22.The father is not to approach the mother or the children or attend the children’s schools otherwise than in accordance with these Orders or as agreed between the parties in writing.
23.The parties shall not denigrate the other parent or their family in the presence or hearing of the children and will take all reasonable steps to remove the children from any third parties who does so.
24.The parties shall not show the children any documents related to these court proceedings or any other court proceedings where either or both parties are parties, including but not limited to Apprehended Domestic Violence Order proceedings or workers compensation claim/s.
Provision of Orders and supports
25.The parties are permitted to provide a copy of these Orders to:
(a)The Supervision Service (and any alternative Supervision Service) referred to in these Orders;
(b)The children’s current school and any school attended by them in the future; and
(c)The drug testing service referred to herein and any pathologist reporting on the results.
26.The father is to remain engaged with treating practitioners as recommended by them, including a general practitioner, and such other medical specialists, psychiatrists and psychologists he is referred to for the management of his mental health conditions, including his Post Traumatic Stress Disorder diagnosis, and the father may provide any of his treating practitioners with:
(a)A copy of these Orders;
(b)The Single Expert Report of Dr B dated 7 April 2021; and
(c)The Family Report of Ms M dated 4 October 2019.
27.The mother may provide to any treating medical practitioners and/or allied health professionals consulted by her or the children:
(a)A copy of these Orders;
(b)The Single Expert Report of Dr B dated 7 April 2021; and
(c)The Family Report of Ms M dated 4 October 2019.
28.The Independent Children’s Lawyer be discharged.
29.Pursuant to s 62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
30.Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Fact Sheet, attached hereto and these particulars are included in these Orders.
The court notes that:
A.The children have an established and meaningful relationship with their paternal siblings Ms C and D and it is in their interests to maintain this relationship. These Orders are intended to facilitate and support this relationship with the paternal siblings as well as the father.
B.The paternal grandmother gave evidence that she understands the mother has concerns about her consuming alcohol in and around the children, and to allay those concerns, indicated to the Court that she would not do so when spending time with the children.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Siddall & Munroe has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BRASCH J:
INTRODUCTION
These are parenting proceedings concerning the children X, born in 2014 (“X”) and Y, born in 2016 (“Y”) (“the children”). It will be immediately observed that the children have different last names. The reasons for that were in dispute at trial, but it is not in dispute between the parties that the father in this matter is Y’s father. During the course of the trial, the parents agreed the children would have the last name of “Siddall-Munroe”.
The children have not seen their father since either December 2019 or January 2020. I do not need to find which date; on either account it has been some considerable time. At the end of January 2020, the mother stopped the children’s court ordered supervised time with the father after he produced a drug test that was “…positive for [prohibited substance] in the hair follicle drug test on 30 January 2020 … and positive for benzodiazepines and cocaethylene” (Mother’s affidavit filed 15 October 2021, paragraph 34). The reading of the report and how that affected the existing time orders were also matters of dispute for these parents. Again, I do not need to make a finding about the specifics of the dispute other than the common ground that the children have not seen their father since late 2019 or early 2020, and the parties’ reading of drug tests is a source of conflict.
The children’s father, Mr Siddall, born in 1975 (“the father”), initiated the proceedings on 6 April 2018 by filing an Initiating Application for Final Orders in the Federal Circuit Court (as it was then). Ms Munroe, born in 1984 (“the mother”) filed her Response on 1 June 2018.
On 18 September 2020, the proceedings were transferred to the Family Court of Australia (as it was known then).
By the time of submissions, all parties agreed that the mother should have sole parental responsibility for the children. The only matter that remained in dispute in relation to this was whether the mother should notify the father of any major long terms decisions, within seven days of the decision being made. This was an order sought by the Independent Children’s Lawyer (“ICL”) and supported by the father.
By the time of his submissions, the father sought final orders that: the children spend supervised time with the father for six months, for three hours each month at a contact centre; then, for six months for three hours each month in the presence of the paternal grandmother, Ms J; then, unsupervised for five hours to take place monthly.
By the time of her submissions, the mother sought three different options for orders:
(a)Option A was for the children to spend no time and not communicate with the father. Section 68B restraints were sought. The mother also sought orders to secure passports for the children and that she be permitted to the remove the children from the Commonwealth of Australia for the purpose of holidays;
(b)Option B was for supervised time four times a year on the provision of a hair follicle test. One order proposed three hours of time (9.1), but another proposed two hours (10.1) of time. Proposed Order 6 seemed to indicate that the mother could request the father undergo further hair follicle tests and the results would be sent to her nominated agent. The mother proposed the paternal family shall be entitled to attend supervised time, and various process orders with respect to intakes and costs. The mother sought the s 68B, passport and holiday orders previously outlined. She also proposed email communication with the father authorising her partner to communicate with the father on her behalf. She sought various orders which I will summarise as the provision of information; and
(c)Option C concerned unsupervised time on the provision of hair follicle testing a number of times between now and 8 November 2026. No actual time was proposed under this option. Proposed Order 6 was in the same terms as Option B. The proposal also provided for monthly urinalysis at the request of the mother. If the father produced a positive result or failed to comply with a request, then time would be supervised, with the parents having liberty to urgently re-list the matter. I pause to observe I am making final orders. The mother sought the s 68B, passport, holiday orders and email communication orders previously outlined. She sought various orders which I again will summarise as the provision of information.
The ICL proposed the children spend three hours supervised time with the father on eight occasions over 12 months, then after that for up to five hours on eight supervised occasions each year. Provision was made for FaceTime calls on special days. Various injunctions were proposed restraining the father from approaching the mother or children’s schools other than in accordance with any parenting orders, and from consuming alcohol or illicit substances within 24 hours of any time with the children.
The ICL also proposed a notation (but added in submissions that I could make it as an order instead) that provided a pathway to unsupervised time should I determine that to be in the children’s best interest. That pathway essentially involved that in no less than two years’ time, if the father provided a hair strand test report negative for illicit drugs and a report from his treating psychiatrist or psychologist covering his compliance with treatment and relapse safety plan, then, the father’s time would be for five hours each month in the presence of the paternal grandmother. In that 12 month period, the father was to provide three further hair strand tests. If he failed to provide tests or illicit drugs were detected, then time would revert to the Supervision Service. However, if after 12 months in the presence of the paternal grandmother and the tests were negative for illicit drugs, then the children would spend five hours of unsupervised time with the father each month. The ICL defined illicit drugs to mean those not prescribed by a qualified medical practitioner. The mother had a similar definition.
BAckground
The parties met through their employment with the New South Wales public service in 2010 and commenced cohabitation in 2011.
The father described his positon to the Single Expert Dr B as follows:
Until 2009, [the father] reported to have been [a health professional]. From then, until his retirement, [the father] served [in the NSW public service] apparently. As such, [the father] stated that much of his work entailed involvement in [complex and high risk settings].
(Single Expert Report of Dr B dated 26 March 2021, paragraph 30).
The mother described her position as “[a part-time health professional] in the [Q Region]” (Family Report of Ms M dated 4 October 2019, paragraph 7). She continues in that occupation but currently working between 60 to 72 hours per fortnight (Mother’s affidavit filed 15 October 2021, paragraph 11).
The parties initially separated in early January 2016, attempted a reconciliation, and separated on a final basis in March 2016. Y was born in late 2016 and thus has absolutely no experiences of her parents being together. The mother contended that prior to the commencement of proceedings the father had spent no more than one and a half hours with Y. X was not even two years old on separation, and would unlikely have any memories of his parents together.
The father has two children from a previous relationship with Ms Siddall (born in 1977) (“Ms Siddall”); Ms C, born in 2004 (“Ms C”) and D, born in 2007 (“D”). Ms C and D live with their mother, Ms Siddall in the Q Region. These children spend regular, unsupervised time with the father, although Ms C is now of an age where she largely runs her own race. To the great credit of the mother in this matter and Ms Siddall, X and Y have remained in contact with Ms C and D.
The mother re-partnered with Mr K (“Mr K”). Mr K has been living with the mother and the children since January 2018.
In early 2022, X was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”). Following diagnosis, X commenced attending Multisensory Structure Language (“MSL”) on a weekly basis.
The father’s mental ill-health and family violence
The father was diagnosed with Post Traumatic Stress Disorder (“PTSD”), Major Depressive Disorder and Substance Abuse Disorder in or around 2014. He did not help himself by self-medicating with illicit substances. He also took prescription medications that were prescribed for friends (for example, Mother’s Exhibit 1 p. 3 and 7). None of that did him any credit and did not assist the mother to trust him with the care of the children.
The father was medically retired as a health professional in or about 2014. The experiences of the father in his professional role were described by Dr B "as [traumatic]" (Transcript 4 August 2022, p.27 line 22). She was of the view that his experiences were such that it would be unreasonable to expect his mental health would ever stabilise to a degree of normality (as in for people who had not seen what he had) given all of the things to which he had been exposed. She nevertheless was of the view both in her report and during vigorous cross-examination that the father and his proposal for time constituted minimal risk to the children (Single Expert Report of Dr B dated 26 March 2021, p.37).
There is absolutely no doubt that from perhaps 2013 the father exhibited severe dysregulated anger and aggression, which the mother either witnessed or came to learn about. For example:
(a)In 2013 the parties were holidaying in Country DD and the father was arrested after he caused excessive damage to the hotel room. In cross-examination the father accepted that he had a “complete meltdown” and “blanked out” which resulted in the father smashing a television and causing other damage to the room. The father spent the night in custody;
(b)In 2015, the mother witnessed the father assault a man at a taxi rank, as that man had apparently disrespected the mother. The father admitted to doing so in a text message: “…so I smashed his head into the inside of the cab and would have fought his two mates” (Annexure G to mother’s affidavit filed 15 October 2021, p.87);
(c)In late 2015, the father left the home and drove to the mother’s workplace and caused property damage. The father then drove from the scene. Police attended the former matrimonial home but he was not there. The mother’s employer were quoted $11,557.77 for the cost of repairs, in addition to a callout fee. This lead to the father being charged with property related offences in early 2016. The father was ultimately discharged into the care of his doctor under s 32(3)(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“Mental Health Act”) (ICL Exhibit 3, p.4). To Dr B, the father suggested that his “mental health was being poorly treated at the time and the relationship with [the mother] had ended and within this context, he was experiencing intense anger at the [NSW public service] for what [the father] perceived was inadequate support” (Single Expert Report of Dr B dated 26 March 2021, paragraph 48);
(d)In the days following this incident, the father twice returned to the matrimonial home. On the first time, the father let himself in “to sleep off his NYE bender” (Mother’s affidavit filed 15 October 2021, paragraph 89). The mother left the home with X and stayed with a friend for a few nights. The mother asked the father’s friend to get the father out of the house; he left. The father returned unannounced two days later, resulting in the mother again leaving the home with X (Mother’s affidavit filed 15 October 2021, paragraph 89). On the second occasion, the father sent the wife messages which she felt were threatening messages, demanding to know where she was (Mother’s affidavit filed 15 October 2021, paragraph 89);
(e)That same night, the father attempted to commit suicide in the mother’s bathroom. The medical records said this:
He had some [prohibited substance] on New years eve and has been drinking a lot ever since. Yesterday his girlfriend decided to leave him and he became upset. So he self inflicted some superficial cuts around the right elbow with a chainsaw after having taken a pill OD of clonazepam so as to make It less painful. He then called his friend [Mr EE] who then brought him to ED.
(As per original)
(Mother’s Exhibit 1, p.21)
The father was admitted as an involuntary patient and discharged the next day; “He was settled, there were no features of major depression/psychosis/mania. He was not suicidal/homicidal and he regretted the incident” (Mother’s Exhibit 1, p.21). In a different record, a consultant physician in psychiatry said in a letter for the father’s workers’ compensation claim that:
He [the father] talked about drawing a hot bath and having a chainsaw and he said he fired the chainsaw up to attack his arms and he said he just could not cut deeply. He said he took a handful of Rivotril but he said he just could not bleed and the chainsaw was too blunt.
(Mother’s Exhibit 1, p.28)
When asked about this at trial, the father said, “I was told a child never gets over the loss of a parent by suicide, so I immediately stopped”;
(f)On 25 May 2016 the father texted the mother at 12.15 am stating that he was “drunk and kitted out to destroy [property in Suburb P]” (Annexure H to mother’s affidavit filed 15 October 2021, p.98). The mother perceived this to be a threat to bomb the Suburb P property. The father said in cross-examination that he could not remember this as he would have been drinking that night. He texted the mother again, saying he would not “do it” because she was the “enemy” “and would dob me in” (Annexure H to mother’s affidavit filed 15 October 2021, p.98);
(g)On 2 September 2016, the father arrived unannounced at the mother’s home and entered the home when the maternal grandmother answered the door. The mother said, and I accept, that the father grabbed X and whilst holding X said "You kept my son from me, nothing will stop me seeing my son. Nothing is more important than him seeing me. [Ms Siddall] lets me come to the house because she knows it's important for the children". The mother then asked the father to leave. The father put X down and yelled “nothing will stop me from seeing my kids, you won't stop me, I'll come whenever I want unless you get an AVO. Go get an AVO and be a houso loser" (Mother’s affidavit filed 15 October 2021, paragraph 106). The mother was pregnant with Y. This incident prompted the mother to go to the police station and a provisional Apprehended Domestic Violence Order (“ADVO”) was made. An interim ADVO was issued by the District Court in September 2016. In January 2017 a final ADVO was made for a period of two years with the mandatory conditions, additionally restraining the father from attendance within 50 metres of X’s pre-school, any place the mother lived or worked (including but not limited to the Suburb R, O Town and Suburb S work branches). The Order was extended for a further 12 months (until August 2020);
(h)In June 2017, the father punched a mental health care worker in the face during an episode of a “suspected amphetamine intoxication psychosis”. The paternal grandmother had contacted the N Health Service for assistance. The father was arrested, charged with assault and taken to T Hospital. He remained an involuntary patient until mid-July 2017. The father deposed at paragraph 41 of his affidavit filed 22 July 2022, that he did not recall assaulting the crisis worker nor being taken to T Hospital. The father was released into the care of his psychiatrist under a s 32(3)(a) of the Mental Health Act (ICL Exhibit 3, p.4, 13 and 31). Since his second involuntary admission, the father embarked upon an intensive therapeutic process, especially with his General Practitioner, a private psychologist and with Dr F (“Dr F”), a psychiatrist with U Hospital;
(i)In September 2019, the father and a friend were denied entry to the V Venue. In cross-examination the father said this was possible. The police were at the V Venue for an unrelated purpose. The father and his friend asked the police for a lift home. They were described as upset when the police declined. The father and his friend then decided to hit the rear vision mirror of the police car and the friend took a bottle to the bonnet. They were both required to move on due to intoxication. The father was charged with property related offences and sentenced to a fine on all grounds. The father appealed. It seems the order was quashed (ICL Exhibit 3, p.5 and 15). To Dr B, the father said he did not damage the car on purpose (Single Expert Report of Dr B dated 26 March 2021, paragraph 49) and in cross-examination said he “had two operations on my leg and as I was trying to avoid a woman on the footpath I fell into the gutter and damaged the mirror”; and
(j)In July 2020 the father and a friend were at the W Venue and “were well affected by intoxicating liquor”. The two had a fist fight. In cross-examination the father said there was a physical altercation and it “went a bit far”. The father was charged with assault, but that charge was withdrawn. A charge of affray was dismissed (ICL Exhibit 3 p.5 and 18-20). To Dr B and in cross-examination, the father said he was the victim (Single Expert Report of Dr B dated 26 March 2021, paragraph 49).
The father’s criminal record revealed other historical difficulties such as failing to leave a club in August 2021; he was described as moderately affected by alcohol. In October 2000, he was asked to leave a nightclub due to his intoxication. When escorted outside he kicked a glass door. It is not clear whether any action was taken about this (ICL Exhibit 3, p.9).
Since the ADVO was made the father breached the conditions of that ADVO at least in January 2017 when the father attended upon the mother’s residence and began revving his motorbike (Mother’s affidavit filed 15 October 2021, paragraph 128 – 132; see also ICL Exhibit 3, p.4, 12, and 14). He was sentenced to a Bond pursuant to s 10 of the Crime (Sentencing and Procedure) Act 1999 (NSW) for six months.
The father did not deny any of the specific examples at paragraph 19, although put his own gloss on the 2019 and 2020 incidents. I find he conducted himself as set out in paragraph 19; there are ample independent records that refer to his conduct. With respect to the 2019 and 2020 incidents, even though the charges were not made out on the criminal standard, I am satisfied the father was involved in incidents of violence and intoxication; he said as much in cross-examination. I also find the father breached the ADVO; he admitted to doing so and the records demonstrate it too. Accordingly, I am satisfied according to the civil standard of proof and with due regard to s 140 of the Evidence Act 1995 (Cth) (“Evidence Act”), that the father committed acts of violence and abuse to many who came within in his orbit, including but not limited to the mother. Even if she did not see all of the various acts (as per the father’s cross-examination of the mother), she still came to learn about them. The father was also, in the full terror of his illness, plainly an unacceptable risk of harm to those around him and to himself. The key question though in this matter is whether he poses such a risk now and looking into the future.
Notwithstanding the father’s appalling conduct, the mother allowed the children to spend time with the father in 2016 and 2017, prior to these proceedings and without the rigors of formal supervision. I say more about this later.
A report was produced by Dr F, the father’s treating psychiatrist, on 12 June 2018. It was written at the request of the father’s then family law solicitors. The report detailed the extent of the father’s mental health concerns and confirmed the diagnosis of PTSD, Major Depressive Disorder and Polysubstance Abuse.
Court ordered time
Orders were made by consent on 21 August 2018 for supervised contact to occur between the children and the father at the G Contact Centre and for the appointment of the ICL.
Between August 2018 and December 2019 the children spent time with the father at the contact centre fortnightly on Fridays from 4.00 pm to 6.00 pm.
Judge Kemp ordered a Family Report on 29 November 2018. The report was prepared by Family Consultant Ms M and released on 4 October 2019. The report recommended that the mother have sole parental responsibility, the children live with her and the supervised contact already in place continue. The Report Writer further recommended that the father undertake a psychiatric evaluation and only if the evaluation concluded the father’s mental health was well managed should the father spend time with the children one weekend day every three weeks from 10.00 am to 4.00 pm.
Unfortunately, the Report was of limited use in this trial. That is in no way critical of the Report Writer, rather, as she explained, her report – now some three years old – was written with a view to informing interim parenting arrangements that could then be assessed.
Interim orders were made by consent on 12 December 2019 graduating time from the supervised contact centre to the children spending daytime time with the father in the presence of the paternal grandmother. Despite consenting to this, the mother now takes issue with the paternal grandmother.
Those interim orders broke down a month later upon the father returning a positive hair follicle drug test for prohibited substance. Thus, the mother did not bring the children to the contact centre for the time scheduled at the end of January 2020. Accordingly, the children have not seen their father since December 2019 or early January 2020. They have however continued to see his older children from the earlier relationship with Ms Siddall, being Ms C and D. That has been some kind of link or reminder of the father; for example, X has asked why D gets to go in the father’s car and he does not.
Dr B prepared a Single Expert Report concerning:
•A current assessment of the father’s mental health, including an evaluation of any drug and alcohol use/misuse on the part of the father;
•The nature, intensity and impact of any identified mental health issues and, in particular, the impact (if any) upon the father’s parenting capacity;
•Any risks associated with the court making orders for the father to spend time with the children in accordance with the father’s proposal;
•What treatment or services are recommended to address any identified issues;
•The willingness of the father to address any identified issues.
(Single Expert Report of Dr B dated 26 March 2021, paragraph 5)
In her written report, Dr B opined that whilst the father’s:
…mental health has improved considerably in recent years, he continues to suffer with symptoms of ill mental health at times and these are variously severe and debilitating. Further to this, whilst [Mr Siddall] denied abusing alcohol and drugs on a regular or significant basis anymore, he does still continue to drink alcohol regularly, in addition to using cannabis on occasion to assist in achieving sleep.
(Single Expert Report of Dr B dated 26 March 2021, paragraph 130)
Dr B also noted that the father:
…minimises any impact on his children [the older two] of his mental health by avoiding spending time with them if he is not feeling well. It is my view that the impact on the degree of parenting that [Mr Siddall] wishes to be involved in from his current mental health and substance use is minimal.
(Single Expert Report of Dr B dated 26 March 2021, paragraph 130)
In her report, Dr B assessed the risk to the children if the court made the kind of orders proposed by the father as “a Low-Moderate risk in terms of his parenting but I would suggest that the risks evident in this case are reasonably well moderated at the present time” (Single Expert Report of Dr B dated 26 March 2021, paragraph 129). Dr B added in her report, “It is my opinion that the risks to the children of his proposal are minimal.” (Single Expert Report of Dr B dated 26 March 2021, p.36). At the time of the report, the father was seeking more time with the children than he ultimately sought at the conclusion of the trial.
I consider Dr B’s oral evidence later in these reasons.
Documents relied upon
The applicant father relied upon the following documents:
·Updating Affidavit of Mr Siddall filed 22 July 2022;
·Affidavit of Ms Siddall filed 15 August 2021;
·Affidavit of Ms J filed 1 June 2018; and
·A revised time with schedule.
The respondent mother relied upon the following documents:
·Amended Response to Initiating Application filed 27 July 2022;
·Affidavit of Ms Munroe filed 15 October 2021;
·Updating Affidavit of Ms Munroe filed 20 July 2022;
·Affidavit of Mr K filed 15 October 2021;
·Affidavit of Ms E filed 15 October 2021; and
·Mother’s Exhibits 1 to 3. With respect to the mother’s tender bundle (Exhibit 1), I said a number of times that I required counsel to take me through the pages she actually wanted me to consider. Instead, I was given an updated index (Exhibit 2) which referred to exactly the same documents, but with a bare summary of the documents in the index. That really did not help; for example, document 30 is about gambling. No submissions were made about that. As another example, I do not know what I am to make of the father’s 2015 discharge medication summary on page 15 of the Mother’s Exhibit 1. I have done my best to work through the documents and make of them what I can.
The ICL relied upon the following documents:
·Family Report of Ms M dated 4 October 2019 (“the Report Writer”) (Courts Exhibit 1);
·Single Expert Dr B Report dated 7 April 2021 (“the Single Expert”) (Courts Exhibit 2); and
·ICL’s Exhibit 1 to 5.
Both parents were cross-examined, as was the paternal grandmother, Ms J, and the father’s former partner, Ms Siddall (the mother of D and Ms C). The mother’s de-facto partner, Mr K, was cross-examined but the maternal grandmother, Ms E, was not required for cross-examination.
The Single Expert, Dr B was also cross-examined, as was the Report Writer, Ms M.
Due to the Report Writer’s leave commitments, the matter went part heard in August 2022 and resumed on 9 September 20222 to allow the Report Writer, Ms M, to give evidence. The parties then made their submissions. In the intervening period, the transcript of Dr B’s evidence was provided to Ms M.
The standard of proof is the balance of probabilities. Section 140 of the Evidence Act provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged.
It is well settled that it is not necessary for a trial judge, in reaching a decision, to refer to every piece of evidence or argument presented during the trial. In Whisprun Pty Ltd v Dixon [2003] 234 CLR 492, Gleeson CJ, McHugh and Gummow JJ said this:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case [62].
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
Parenting proceedings – Legal principles.
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children.
Section 65D(1) of the Act provides that this court may make such parenting orders as it thinks proper, subject to the provisions under ss 61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans, which is not relevant here). Section 60B of the Act sets out the objects and principles of Pt VII as follows:
(1) The objects 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.
In Masson v Parsons (2019) 266 CLR 554, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “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” [8].
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
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 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 family violence.
Further, if the presumption does apply, then it 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.
Whilst the father commenced the trial seeking equal shared parental responsibility, he concluded it by agreeing with the mother and ICL that the mother have sole parental responsibility. That change of positon by the father was insightful and spoke of a person who had actively listened to the cross-examination and reflected on his own positon. I will make an order for sole parental responsibility in favour of the mother for these reasons. First, the parties are at one that the order ought be made. Second, the children will primarily live with the mother so it is practical and realistic. Third, I infer from the father amending his proposal from equal shared parental responsibility to sole parental responsibility, he recognised it would be a triumph of hope to expect the mother to consult and engage with the father after all she has endured, seen or learned about. Fourth, as the father accepted in cross-examination, the parents do not communicate. Fifth, there seem to be very few major long terms decisions actually required for the children (save perhaps school choices or X's ADHD in so far as treatment might be a major long term decision), rendering the title of sole parental responsibility more illusory than reality based and required. In making an order for sole parental responsibility,
ss 65DAA(1) and (2) are not engaged.
I will however make the order proposed by the ICL and supported by the father that the mother inform the father within seven days of her making any major long term decisions. In circumstances where the mother proposed communications about the children with the father by email, and where very few major long terms decisions seem to be actually required (when that concept is properly understood), I do not consider it too onerous for the mother to let the father know what she has decided. I also consider it important for the father to have knowledge of the major long term decisions made for the children.
Best interests of the child
Section 60CA of the Act provides that “[i]n deciding whether to make a particular parenting order in relation to the children, a court must regard the best interests of the children as the paramount consideration”.
The best interests of a child are to be determined by an examination of the considerations set out in s 60CC of the Act. In Tibb & Sheean (2018) 58 Fam LR 351 (“Tibb”) at [74]–[78], the Full Court made clear that while the court must “consider” each of the primary and additional considerations in s 60CC, express discussion is not necessary. The relevant considerations are determined by the way in which the parties present their cases.
I then turn to the best interests of these children.
Section 60CC of the Act sets out the list of matters that the court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the court to give greater weight to s 60CC(2)(b).
This balancing act is one that looms large in this case, with the father stressing the meaningful relationship and that he does not pose an unacceptable risk to the children. Whilst he was once in a very poor state of mental ill health, his case was that he no longer is and highlighted the two in-house PTSD treatment courses, two 10 week courses of treatment for depression and “seven years of the best therapy [...]in the country”.
The mother’s no contact case (her Option A) came from the opposite direction: the father is an unacceptable risk. That said, the mother agreed in cross-examination that in formulating her no contact case, she had not taken into account: (a) that at the time of the Family Report, both children appeared to have established a “positive, playful and affectionate relationship with [the father] over the past 11 months” (Family Report of Ms M dated 4 October 2019, paragraph 89); or (b) the risk of psychological harm to children of not seeing (or knowing) the father. The ICL added in submissions that a “problem” on the mother’s case for no time was that when the father’s ill health was florid, the mother had allowed the children time with the father in 2016 and 2017, albeit in her presence or the paternal grandmother.
Section 60(CC)(2)(a) A meaningful relationship
In considering a meaningful relationship per s 60CC(2)(a), in McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at page 83,476, the Full Court said:
…No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests. [122]
In McCall and Clark at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a ‘prospective’ one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents will be of advantage to a child”. In other words, the focus is upon whether the children having a meaningful relationship with a particular parent will be of advantage to the children in the future.
In Jurchenko & Foster (2014) FLC 93-598 at 79,420, the Full Court noted that:
… having a ‘meaningful relationship’ with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests [123].
In Loddington & Derringford (No 2) [2008] FamCA 925 (“Loddington”) Cronin J held:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child [169].
In Loddington Cronin J further added that an assessment of the benefit to the child must be made according to “the peculiar facts of what the parents are offering” [173].
In Cotton & Cotton (1983) FLC 91-330, Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
…that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
Neither party disputed that the children have always lived with the mother and their primary residence is the mother’s home. Y has never lived with the father and X would have limited, if any memory, of the parents being together. The Report Writer said it was evident the mother is “their primary attachment figure” (Family Report of Ms M dated 4 October 2019, paragraph 89).
In the meantime, the children have not spent any time with the father since either December 2019 or January 2020. Either way, it has been a considerable period.
Prior to the mother stopping the children’s court ordered supervised time with the father, there was evidence of a developing relationship between the father and the children referred to in the Family Report. The Report Writer further noted in her 2019 report that the children appeared to have established a “positive, playful and affectionate relationship with [Mr Siddall] over the past 11 months” (Family Report of Ms M dated 4 October 2019, paragraph 89).
In cross-examination the mother accepted the children’s supervised visits were "successful" from the children's perspective. She also agreed there were no untoward incidents at the contact centre involving the father and children.
For these children, the possibility of a meaningful relationship with their father exists. If I were to order time with the father, I would not be doing so just for the sake of it. Rather, subject to ss 60CC(2), 60CC(2A) and the s 60CC(3) additional considerations, there will be a positive benefit to the children knowing their father and thus knowing an important part of their identity. As to their identity, the Report Writer said this in cross-examination, which I accept:
A potential risk is I suppose impacting their sense of identity, their sense of self. [X] and [Y] are made up of their two parents – that’s who their parents with always be. It’s unclear to me at this stage what their understanding of what dad is as there because I understand there has been no time in quite a considerable period and they were quite young when that time ceased. So I suppose the level of impact to them is hard for me to say because I can’t clarify what their current understanding of dad is, their connection to dad and why dad isn’t involved in their life. But those questions will come up throughout their life, particularly throughout school. I know when I saw [X] he was quite curious about dad and where dad lived and why he couldn’t go to dad and that will come up. It may impact them negatively if they have a sense that dad was there and perhaps dad could be there in some capacity but we don’t have a relationship and I don’t fully understand why. Really how that’s managed will come down to the supports they have and their family and how it’s explained. But there could be ongoing long-term emotional difficulties that could affect other areas of their development.
Section 60(CC)(2)(b) Protection from harm
The second primary consideration in determining a child’s best interests, as set out in
s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. It is the factor of greatest significance in this matter.At least on the mother’s first option of no time, the mother contended (I infer) that the need to protect the children from physical and psychological harm outweighed the benefit of the children having any kind of meaningful relationship with the father. I have already set out and made findings about the father’s history of violent and dysregulated conduct resulting in hospitalisations and police involvement in relation to offences or incidents against both persons and property.
Notwithstanding, the mother allowed the children to spend time with the father in 2016 to 2017, and in her presence or the paternal grandmother. The mother said in cross-examination that she was doubting herself when allowing the children to go. I do not agree. The mother is an intelligent professional, well skilled in understanding matters of health and ill-health. I cannot accept the mother would allow the children to spend time with the father if she assessed him as an unacceptable risk.
Proceedings started in April 2018. Supervised time occurred between the children and their father from 2018 until the mother ceased time in January 2020.
Once proceedings began the ICL was empowered to request urinalysis tests. The father also undertook some other tests. It is useful to summarise these (ICL Exhibit 1):
Date of request Date of test Type of test Outcome 12 Dec 2020 Order 30 Jan 2020 Head hair Positive [prohibited substance] screen, Marijuana unable to complete.
Negative for all other drugs tested.
This is when the mother stopped timeNot requested by ICL 25 Feb 2020 Urinalysis Five of six drugs tested for not detected. Benzodiazepines: Mass Spectrometry confirms the benzodiazepine finding and indicates “a pattern consistent with the ingestion of clonazepam. [the father was prescribed this]. Findings are consistent with the donor's medication history as provided”. 22 April 2020
To be done within 48 hours23 April 2020 Urinalysis As above 29 June 2020
To be done within 48 hours30 June 2020 Urinalysis Four of six drugs tested for not detected
As above for Benzodiazepines
Cannabis: confirmed by Mass Spectrometry11 Sept 2020
To be done within 48 hours28 Aug 2020
(it seems this was done before the request)Urinalysis Five of six drugs tested for not detected
As above for Benzodiazepines16 Feb 2021
To be done within 48 hours- - 25 Jan 2022
To be done within 48 hours- - Father emails, “I am working all week, pay rent, bills and have dinner with my big kids ever Thursday and time with my son [D] every weekend.
This process has gone on so long my Dr has passed away and im not playing these games anymore.
Thank you however for representing my kids”14 March 2022
To be done within 48 hours- - Father emails, “Thank you again for representing [X] and [Y].
It is noted that only in Family Court am i presumed guilty and have to, at significant cost and interruption to my job have to prove my innocence.
As i have said previously. [X] in particular now has a fixed belief that i dont love him because he knows i see his brother and sister. [X] told me this during supervised visits.
The system has failed our children dismally and its disgusting”.7 June 2022
To be done within 48 hours7 June 2022 Urinalysis Five of six drugs (including Benzodiazepines) not detected
Cannabis: confirmed by Mass Spectrometry
It is the father’s case he had been weaning himself of the Benzodiazepines, but was taking prescribed Cannabis Oil21 July 2022
To be done within 48 hours21 July 2022 Urinalysis As for 7 June 2022
At trial, much was made of the idea that for the better part of two years, the father refused all drug testing requests. Looking at the above table, there were only three requests he failed to comply with. As self-defeating as was the father’s failure to comply and his unhelpful emails, three failures to comply is a more realistic way to consider this. I have no evidence before me to contradict the pathology reading that the benzodiazepine finding indicates “a pattern consistent with the ingestion of clonazepam. Findings are consistent with the donor's medication history as provided”. I accordingly find this to be do. I also have no evidence before me to understand how the father’s prescribed cannabis oil fits with (or not) the Cannabis detection. I cannot therefore make a finding of cannabis abuse adverse to the father on the strength of these tests.
There was also a request made when the trial went part heard. I say more about that later.
Knowing all she knew of the father, and having formed the views of him upon separation that she did, the mother then told the Report Writer that she was "adamant that the time the children spend with [the father] should remain as is and supervised by an external agency” (Family Report of Ms M dated 4 October 2019, paragraph 46). Her primary position now is that the children spend no time and have no communication with him. Apart from perhaps some failed drug tests (either by not undertaking or a positive result when no time was occurring), it is difficult to see what of substance changed since her adamant position in August 2019.
That said, I have absolutely no difficulty in accepting it must have been traumatic for the mother to live with the father as his mental health deteriorated. The aftermath of separation would have been equally distressing.
It remains though, that knowing all she did, she had proposed the children's time with their father be supervised. I infer that was the means by which she sought to advance their relationship with him, but in a manner which ameliorated the risks she perceived, and her own anxiety. Similarly, the mother facilitated X seeing his father 12 times between August 2016 and August 2017. She would also take Y to the park to see the paternal grandmother with the father sometimes being there.
The mother also consented to orders on 6 June 2018, 21 August 2018 and 29 November 2018 which provided for supervised time.
I have already made findings on the balance of probabilities and in taking account s 140 of the Evidence Act that the father committed acts of violence and abuse, especially in the 2013-2017 period. I have also accepted the father breached the ADVO because he deposed to doing so. These findings fit within the first step as recently, and helpfully, summarised by the Appeal Division of this Court in Isles & Nelissen [2022] FedCFamC1A 97 (“Isles”) at [2].
However, it is important to keep in mind that the findings of the violence and abuse in this matter do not, in and of themselves alone, control the outcome. As the High Court said in M v M (1988) 166 CLR 69 at 76 with respect to sexual abuse allegations, but just as relevant to other forms of abuse:
…the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the [C]ourt’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
I then turn to the separate, second question which pertains to the prospective exercise of determining risk into the future. As the Isles Court said at [82]-[83]:
Correctly, the primary judge said this to distinguish positive findings of sexual abuse [as that matter concerned] from findings of unacceptable risk of harm:
60.…. The notion of ‘an unacceptable risk,’ is, however, a predictive or prospective exercise for the Court in determining whether there is a ‘risk’ into the future; the magnitude of the that risk; and whether there are tools or circumstances to adequately mitigate that risk.
…
65.The evidentiary fact-finding exercise is conducted to the standard of on the balance of probabilities pursuant to s 140 of the Evidence Act whereas the predictive consideration of unacceptable risk, not being limited to findings of past fact, looks more to “possibilities” …
(Emphasis added)
Though both are evidence-based, the primary judge correctly approached the two separate questions without conflation: on the one hand, whether or not allegations of abuse are proven on the balance of probabilities; and on the other, whether or not an unacceptable risk of harm is demonstrated, regardless of the finding made in respect of the frank allegations of abuse.
Section 60CG of the Act presses courts to avoid making orders which expose any person to an “unacceptable risk of family violence” and, when determining how children’s best interests will be advanced, s 60CC(2)(b) of the Act obliges courts to have regard to any need to protect children from physical or psychological harm through their subjection or exposure to “abuse”, “neglect” or “family violence” – terms widely defined in ss 4(1) and 4AB of the Act.
If I identify the existence of an unacceptable risk, it is then necessary to assess whether that risk “is able to be sufficiently managed or ameliorated”: see Blinko & Blinko [2015] FamCAFC 146 at [83] referring to Russell & Close [1993] FamCA 62.
There is no doubt and no one seriously contended that the significant risks that the father posed five or six or so years ago remained at the same level now.
Yet, whilst the father's poor impulse control and dysregulation may not be as severe as it once was, it was evident that it continues. For example, in September 2019 the father was involved in an incident at the V Venue whereby he attacked a police car – albeit telling Dr B he did not do it on purpose. On or about 17 January 2019, the father created a Facebook page titled “[…]” and accompanied the page with a picture of himself and the children (Annexure E to mother’s affidavit filed 15 October 2021, p.71). The father was also involved in a physical fracas in a pub in July 2020. In October 2020, the father produced Facebook posts relating to the proceedings labelling Judge Kemp an “old bastard” and “repetitive useless microphone”. The father also accepted in cross-examination that during this time he referred to one of the solicitor’s as the “whore lawyer” (Annexure F to mother’s affidavit filed 15 October 2021, p.80). When cross-examined on who he was referring to, the father responded, “whoever was standing in between me and my children”, but “not the ICL” (Annexure F to mother’s affidavit filed 15 October 2021, p.81 and 84). Similarly, on 6 May 2022 he made unwarranted and unfounded allegations to the mother’s solicitor asking for her “reasons for the continued delay /parental alienation/ child abuse that only you seemto [sic] profit from” (Annexure D to mother’s affidavit filed 20 July 2022, p.16). Such conduct does him no credit. Indeed, it is self-defeating – wanting the mother to see he is safe on one hand, but then doing things that will be red flags to her on the other.
Further, in her updating affidavit filed by the mother on 20 July 2022, she annexed some Facebook posts from the father. Several were about celebrities dated 2 June, but I do not know which year. Whilst the posts may be innocuous enough to many, it is understandable that the mother took them to be concerning. He also re-posted something about cannabis use on a date I cannot make out. I accept the father has been prescribed cannabis oil by one of his medical practitioners. But again, it is understandable that the mother would see red flags.
If the 2019 and 2020 anti-social events at the V Venue and W Venue were out of character isolated events they could be understood as just that, but they were not. For the mother, those anti-social impulsive actions of the father must be understood against the backdrop of her lived experience of the father’s traumatic decompensation from at least 2013. In short, those more recent events understandably fuelled the mother’s lack of trust in the father and her concern for the children if with him.
Similarly, this year, in January and March, the father refused drug tests requested by the ICL (ICL Exhibit 1) because he was frustrated. He accepted in cross-examination that was an example of poor impulse control. Refusing to do the drug tests was self-defeating, and an example of the father not engaging with the need to rehabilitate himself in the eyes of the mother.
When the trial was part heard, the ICL requested that the father undergo further hair strand drug testing to assist the court. I pause to note that Order 9 of the orders dated 12 December 2019 permitted the ICL to request urine drug analysis (not hair strand drug testing). The father, through his solicitor, was resistant to the request given there was no such order allowing such a request. Of course, the father could have done the tests in any event. On 30 August 2022 the ICL then requested the father submit to a urine drug analysis test within 48 hours. The Pathology Report indicated the father did that just over an hour after the request. Whilst submissions were made criticising the father for not doing the hair strand test, I do not share that criticism. He did what the orders required of him and very quickly (ICL Exhibit 4).
Of the six drugs tested for on 30 August 2022 (ICL Exhibit 4), five came back “Not Detected”. I have no evidence before me to interpret the results for Cannabis Metabolites “Require Further Testing” nor the Mass Spectrometry data. Nor do I have any evidence to assist me to understand how these results would fit with (or not) the father’s prescribed cannabis oil. I thus cannot make a finding of drug abuse adverse to the father.
I do not discount the mother’s concerns about relapse, but have been considerably assisted by Dr B's evidence about the strength of the risk and its manifestation. The Single Expert's opinion was that given the minimal time the father proposed to have with the children, her risk assessment of him and his parenting capacity was one of a low to moderate risk.
Understandably, Counsel for the mother spent considerable time focusing Dr B on the father’s rapid decline in his mental health in 2017, suggesting that could occur again. Dr B said this:
My understanding was that, in 2017, that occurred after ..... period of illicit substance abuse and – which precipitated a significant decline of his mental health and, in particular, psychotic symptoms. So, I guess, in answer to your question, your Honour, there are two things that are relevant: one is that’s five years ago and, in the absence of any other evidence of such behaviour since then, I think it would be unwise to make any 25 assumptions about there being a similar sudden and significant decline in mental health. But the second point I – that I think is relevant for your Honour is that my understanding, again, was that that occurred after a significant ingestion of illicit drugs and if that behaviour isn’t present now, again, it would be unwise to make an assumption that there would be such an associated significant decline in mental 30 health and the onset of psychotic symptoms.
…
Well, I think the evidence in recent years is that he can already monitor himself to be – to not be an unacceptable risk to the children. My understanding is that he regulates the time with his older children when he feels unwell or unable to cope. I think the suggestion is that he currently manages that.
(Transcript 4 August 2022, p.18 lines 20-30 and 43-45)
Albeit acknowledging the age and relationship differences between X and Y on one hand, and, Ms C and D on the other, the Report Writer considered the father’s ability to regulate his time with the older children to be “really positive”.
It was Dr B's opinion that there was not a significant risk to the children spending time with their father so long as the time was “structured and not long”. She was also of the view that the father's risk level was such that he did not need professional supervision as she did not hold the opinion that the risk to the children was so significant that they required a professional person to be involved.
Dr B gave context to the risk posed by the father:
…the risk that we’re talking about to the children now of dad maybe being a little bit irritable, a little snappy, you know, maybe saying things he shouldn't or something like that. That's the kind of risk we are talking about really if it was to manifest. Assuming obviously that he doesn’t attend substance affected or – or what have you. So I’m – what I’m saying is, I don’t believe professional supervision is required.
(Transcript 4 August 2022, p.29 lines 21-26)
Dr B rejected the idea that X's ADHD could trigger a mental health decline:
…they certainly pose parenting challenges, but in terms of your word “trigger”, the trigger in relation to [the father’s] ill mental health is triggers associated with the trauma of being [a health professional]. I don’t think dealing with a challenging child who has ADHD is related to that
(Transcript 4 August 2022, p.23 lines 18-21).
She also gave evidence of how the manifestation of a triggering event may come across from the father to the children, assuming he remained without the influence of illicit substances:
…he might experience elevated heart rate, he might feel stressed, he might feel a desire to leave the environment, he might be a bit shaky and a bit tense. Certainly, that would impact the children in so far as they might notice dad looking distressed and upset and that might be hard for them. Whether it translates to a risk in parenting I certainly don't have any convincing evidence that that would be the case. Other than that he might take them out of the environment they’re in and say, “Guys, we need to go home,” or, you know, whatever the case might be, or he might be a bit snappy with them in that context.
(Transcript 4 August 2022, p.29 lines 37-42)
The Single Expert, despite vigorous cross-examination from all parties, remained of the view "to be honest I actually don't see significant risks for the children in this case in terms of his parenting" (Transcript 4 August 2022, p.30 lines 24-25). That is in the context of the children spending short periods of time with their father.
Dr B did however stress that “scaffolding” around the father would be important, with the ideal being: (1) engagement with a psychologist (Transcript 4 August 2022, p.3 line 45); and, (2) establishing that he will not be under the influence of drugs in the lead up to and spending time with the children (Transcript 4 August 2022, p.4 line 44) – “if we had that scaffolding it would then take us to the future confidence as opposed to current confidence as well, if that makes sense” (Transcript 4 August 2022, p.26 lines 35-39). Dr B added:
I would also recommend that he submits urinalysis testing before he spends time with the children, and I would also be suggesting that he has an order to – to engage with a psychologist…
(Transcript 4 August 2022, p.31 lines 15-17)
In cross-examination, the Report Writer supported both the father’s submission to urinalysis testing and engagement with a psychologist.
If my task was simply to consider the father's risk profile going forward and taking a prospective approach to parenting orders, then I would have no hesitation in ordering the kind of regime proposed by the father. However, my task is to look broader than the risk profile of the father. As was recognised by Dr B, I must consider the impact of the children having time with their father upon their unchallenged residential parent – their mother.
Dr B said, and I accept having seen the mother give evidence, that the mother "has a high level of anxiety about the children spending time with their father which, again, I completely understand based on the history in this particular case" (Transcript 4 August 2022, p.30 lines 27-29). Dr B added:
So I think if she can feel reassured that the children are safe, they enjoy the time with their father, it will help her feel better about what's understandably a very difficult situation for her as a parent. That's not a bad thing. I think it gives some data that dad is doing well and that he's coping with the children, which alleviates some of mum's concerns about maybe the challenges in parenting and how he might cope with that.
(Transcript 4 August 2022, p.30 lines 29-34)
In cross-examination, the Report Writer shared this view of the mother around her worries and anxieties.
Dr B added that on the assumption the father is not using illicit substances and that he continues to manage his mental health actively:
I don't see that there are any significant risk to the children that require that (supervision) proposal in place. But I can see why it's sensible for all parties, particularly the mother in this case to help her have some confidence that her children are safe.
(Transcript 4 August 2022, p.30 lines 38-41)
Ultimately, I accept the evidence of Dr B and find that whilst the father is not now an unacceptable risk to the children per se, the mother needs to be supported going forward in developing confidence that the children are safe with their father. I also accept Dr B’s evidence that “scaffolding” orders are ideal. Even if I am wrong on that finding about risk, then the kinds of risks the father poses are the potential sequela of drug abuse and not engaging with his health supports I am not troubled by the prospects of the father being “a bit snappy” or the like. That happens in life. As Dr B accepted, these are matters that can be the subject of orders. In other words, even if the father posed an unacceptable risk to the children, I can ameliorate that through the making of restraints and injunctive orders as was supported by both Experts.
section 60CC(3) - ADDITIONAL CONSIDERATIONS
The court must have regard to each of the “additional considerations” under s 60CC(3) of the Act, separately, to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child's best interests. These are as are set out below.
(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;
At the start of the trial, I asked the parties' legal representatives whether I ought consider a specific issues report with respect to the children's wishes. The ICL submitted that the children's wishes, in the context of this matter, would have little moment irrespective of what they might say given the critical issues in this matter concerned the parents - whether the father posed an unacceptable risk. I accept that to be so. I also accept that given the children have not seen their father since December 2019 or January 2020, little would be gained from securing such a report.
In terms of the children’s views, the Report Writer said this in cross-examination:
Given the children’s presentation when I saw them, albeit over three years ago at this stage, they both presented as happy to see their father at that point in time, and [X] in particular had a lot of curiosities about his father. I am also mindful that they have a relationship with their older siblings. And they will become more aware that their older siblings have a relationship with their father.
Consistent with this, there is evidence before me of X asking why D is allowed in the father’s truck and he is not. He is plainly aware that D has a relationship with their father.
The father also expressed the insightful concern that if there was no time between he and the children, “the children will feel I don’t love them”.
I repeat what I found earlier: the possibility of the children having a meaningful relationship with their father exists.
(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);
The children’s relationship with their mother is secure and safe. She has been their only carer, in reality, since birth. On all parties’ proposals, she will remain the unchallenged primary carer for the children.
The children’s relationship with their father is much more fraught. They went from having supervised time with him in 2018 and 2019, which on all accounts was positive, to nothing. Under the heading of s 60CC(2)(a) (meaningful relationships), I have referred to the evidence that touches on this consideration.
Ms Siddall, the father’s ex-wife, was an impressive witness with a keen sense of child focus and insight. Ms Siddall had a good awareness of the father's difficulties and nevertheless felt comfortable leaving their children, Ms C and D, with their father notwithstanding D's ADHD diagnosis and the extra care this required.
The mother’s partner was also an impressive witness with a keen sense of child focus. It was his opinion that the children ought know their father and that the children would likely seek out the father at some time anyway. I have absolute confidence that he will support the mother with the outcome of these proceedings. I say that because he said so, and I accept his evidence.
The mother opposed the paternal grandmother supervising time between the children and father as she asserted she (the paternal grandmother) has an alcohol problem and could not exercise responsibility. For example, the mother referred to reports by the father where, (for example in Mother’s Exhibit 1 p.11), the father described his mother to a doctor on 28 January 2015 “as an alcoholic". Similarly, in a report of 3 February 2016 he described his mother as having a “significant alcohol dependency” (Mother’s Exhibit 1, p.23). The father told the Report Writer “that this must have been misinterpreted as he meant his ‘nan’ was an alcoholic”. I have had the benefit of seeing the paternal grandmother and was impressed by her as a witness. I am satisfied she will not drink alcohol prior to or when seeing the children. I accept she would not put the children in harm’s way and that she has acted protectively in the past, for example, when she called acute care to deal with her son in 2017. She also told her son, the father herein, not to "send stupid messages"; a reference to his self-defeating Facebook posts.
The Report Writer deposed that “it is recommended that, if [the paternal grandmother] is to see the children, she not consume alcohol 12 hours before, or during, such time” (Family Report of Ms M dated 4 October 2019, paragraph 105). The paternal grandmother was amenable to this recommendation. I accept her evidence that she would not drink alcohol if she was in the presence of the children because she knew this was an issue for the respondent mother. That showed insight.
In short, the children’s relationship with the mother is solid and positive. The children’s relationship with the father has prospects. I do not have concerns about the children and the paternal grandmother.
(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;
(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;
The mother has been the almost sole carer of the children since their respective births, and has made all decisions and undertaken the parental tasks for the children since this date.
X has complex needs with his ADHD diagnosis and the mother is funding the fee of $1,000 for education therapy by working overtime.
The father’s mental health issues and drug abuse has seen him not involved in decision-making and not spending time with the children. The father has been in arrears of child support (Annexure D to mother’s affidavit filed 15 October 2021, p.136 and 137). That does him no credit.
(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; (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
On the orders I will make, the children will only be separated from their mother for short periods of time, which will be supervised for a considerable stretch. I have already referred to previous such visits being positive.
The mother however proposed that the children have no time or communication with their father, but agreed to them being known as Siddall-Munroe and the father being on Y’s birth certificate. This would only increase their curiosity about their father, particularly in circumstances when they know of him through D and Ms C. I do not consider that to be in the children’s best interests.
(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;
An order for the children to continue to reside with the mother does not pose any practical difficulty of implementation. The implementation of orders for the father to spend some supervised time with the children does not impose a practical difficulty on the mother or children given the father has moved to the Q Region area, where the mother and children reside.
In making an order that the paternal family may attend the visits with the children, even in circumstances where the father may not be able to attend, assists in alleviating the mother’s frustration in previous visits being cancelled at the last minute as a result of the fathers’ non-attendance. The paternal link will remain. On one of the mother’s options, she proposed the paternal family attend supervised time.
(f) the capacity of: (i) each of the child's parents, to provide for the needs of the child, including emotional and intellectual needs; (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;
On the strength of the Family Report, I have no doubt and accept the mother has the capacity to provide for the needs of the children, including emotional and intellectual needs. The father must accept that too, given he proposed the children live with the mother.
The father has not had any real opportunity to provide for the needs of these children including their emotional and intellectual needs. However, I am satisfied that he has the capacity to do so given his relationship with Ms C and D, including taking time out from spending time with them when not well. The orders I will make will allow the children the benefit of experiential time with their father but in a safe and structured environment for several years.
I have formed the view that whilst the father has the capacity to provide for the children in such an environment, his blind spot is his views of the mother – the unchallenged residential parent. This is yet another reason supporting sole parental responsibility to her and for taking a cautious approach to time to support the mother. For example, the father was asked in cross-examination about the comfort he could actually give the mother that her fears were no longer necessary. The question was clearly focused on the mother. He answered about courses he had done. However, it then transpired that the father, in an October 2021 affidavit said this of the mother:
Having read the affidavit, I am very concerned about the mental health of the respondent and how this is impacting on her ability to parent my children. I am also surprised that she is not receiving treatment for her mental illness, as recommended by the family dispute resolution practitioner.
Instead of focusing on what is in the best interest of our children, the respondent has instead, chosen to focus on material that is false, has no or little relevance to these proceedings , or is of such a historical nature, which even if accepted as true or relevant, could not be used as a justification by her to continue to perpetrate acts of child abuse and family violence against my children.
(Father’s affidavit filed 27 October 2021, paragraphs 7 and 8)
He went on to say:
I will be alleging that the respondent misled me into signing the interim orders and that she had no intention to comply with them. This is supported by the evidence that I filed in the contravention applications. I complied with the orders. For the purpose of the proceedings, I will rely on the same evidence that I filed in the contravention proceedings.
(Father’s affidavit filed 27 October 2021, paragraph 11)
The failure of the respondent to engage a child psychologist to help them deal with the trauma of being forcibly separated by their father, reflects her inability to parent in their best interest. It is clear that the respondent is living a "double life". On the one hand presenting herself as a respectable [professional] to the public, whilst at the same time perpetrating serious acts of child abuse and family violence, which have to date escaped the attention of child protection agencies and AHPRA and the family courts.
(Father’s affidavit filed 27 October 2021, paragraph 13)
This is all in circumstances where the father proposed the children live primarily with the mother.
The father was unable to reconcile how, on his own case, the children would spend 13 nights a fortnight with the woman he also described as a child abuser.
It also took several questions for him to finally accept that those viewing a Facebook post from him stating, "First they made him dangerous, then they made him mad […] 2016”, might not be taken as a joke or movie reference by readers. Certainly his workers’ compensation case manager was concerned enough to email the father’s then psychologist (Mother’s Exhibit 1, p.47).
His use of alcohol was also a subject where he lacked insight and responsibility. Given the many instances where he came into contact with the police and was described as intoxicated, or where he sent text messages when drinking (see for example, the messages at Annexure H to the mother’s affidavit filed 15 October 2021), it gives me little comfort that he has managed a long term problematic use of alcohol by managing it himself.
I will make the alcohol constraints proposed by the ICL.
(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;
Not applicable.
(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;
Not applicable.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each child's parents;
The mother is plainly a responsible parent. I say that because I accept the unchallenged opinions of the Report Writer, and having had the benefit of hearing the mother give evidence. The father must accept that to be so too, given he proposed the children live with her.
That said, I was troubled by her evidence that the children “have two dads”. They do not. They have one and that is Mr Siddall. But, at the end of the day, the mother agreed to the father being named on Y’s birth certificate and the children being known as “Siddall-Munroe”. I infer she took on board the opinions of the Report Writer that the children ought know their paternal identities, in addition to her own.
The father’s attitude to parenting, indeed his attitude of the norms of social behaviour, have been seriously marred by his mental ill-health.
(j) any family violence involving the child or a member of the child's family; and
(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;
I have considered these factors and made findings of family violence and abuse under the primary consideration s 60CC(2)(b).
(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;
It will be always open to the either parent to make a further application to the court if they can establish a material change of circumstance (Rice & Asplund (1979) FLC 90-72).
In the meantime, I am satisfied the orders I will make are least likely to lead to further proceedings. My orders provide for the children to have a meaningful relationship with the father that is safe, if he can meet the conditions imposed, and, if he cannot.
As the parties have been engaged in proceedings since 2018, it is important that finality is reached for all parties involved but most importantly, the children. It was the opinion of the Report Writer that whilst interim orders would give the father an opportunity to demonstrate his capacity to parent, and furthermore provide reassurance to the mother, a period of nearly three years has occurred since the children have had any time with the father and finality is needed.
(m) any other fact or circumstance that the court thinks is relevant.
Nothing arises under this sub-section.
Parenting arrangements
I have largely accepted the ICL’s proposal for time and the pathway towards unsupervised time. I have already acknowledged the hurdles the father must overcome and my reasons for them.
I am persuaded to adopt the two lots of 12 months of professionally supervised time proposed by the ICL because it is structured, offers safety to the mother, and is consistent with her previous position on supervised time. Further, it also takes account the evidence of the Report Writer who spoke of bedding down time between the children and father, given it has been a considerable period of time since they have seen him and even prior to that, they had limited time with him. The Report Writer also spoke of the children having a “considerable period” of day time visits with their father with a view to achieving a “solid relationship”. She also spoke of the supervision at a contact centre lasting for at least 12 months. I accept her evidence but for the reasons just stated but I will extend this to two periods of 12 months as recommended by the ICL. Time then has the potential to move to time in the presence of the paternal grandmother, then unsupervised time.
At first blush it seemed the Report Writer (in cross-examination) favoured visits four times a year, but on a proper analysis of her evidence it was much more than that: “t
hat identity time could look like four times per year plus time on special occasions, occasions of significance, particular occasions that could involve [D] and [Ms C], as well” (emphasis added). In
cross-examination she accepted that her opinion potentially provided for more time than the ICL’s proposal.
The Report Writer spoke of this kind of “identity time” perhaps lasting until the children were 14 years of age. I did not understand this to be a recommendation that I make orders for supervision until they turn 14 years, but rather, a practical observation that in their teen years, the children are likely to be individuating from both parents and directing more how and when they want to spend time with each parent. Instead, I have already said I will adopt the ICL’s pathway to unsupervised time with all the hurdles the father must meet. That is also consistent with the Report Writer’s evidence in cross-examination that “it depends on how the father is over the next number of years. If it was similar to how Dr B presented it, that there has been a stabilisation, and there has been a management to a certain degree of mental health and substance misuse, you would hope that [time] would continue”.
However, I will not adopt the ICLs proposal that there be time once a month on eight specific months per year for two years. Both experts in this matter spoke of the need for the children to have stable, secure and certain times. This may be particularly so for X who has been diagnosed with ADHD. Rather than having the parties checking the orders to see if there is time in a particular month or not, I will make orders that provide for consistency – it will be more consistent for all to know the children see their father once per month.
I am not prepared to adopt the father’s time frames as they are too quick a pace for these children. I am also not prepared to make orders for overnight time. There are just too many unknowns and variables in this matter. The Report Writer was most hesitant about making any recommendations of this kind for those reasons.
I do not accede to the mother’s primary position of no time and no communications. I accept, as submitted by her counsel, that the mother is hyper vigilant and the father is largely untested. That is part of why I will order supervised time, for at least two years along with the relevant drug testing and mental health care conditions that will be imposed. It was also submitted by the mother that we “don’t know if he socialises at the pub”. I will not take that into account whatever it might mean. I have confidence that professional supervisors will not allow a person under the influence of any substance to have time.
It was also said by the mother that Dr B’s opinion that the father’s mental health was controlled and monitored was flawed because “she did not have a complete picture”. The mother’s counsel vigorously cross-examined Dr B, who did not change her views. The mother put considerable emphasis on a letter from a Dr Z, Consultant Psychiatrist to the father’s General Practitioner dated 17 January 2022. The father was seeking advice about coming off Benzodiazepines. Dr Z said this:
I am not an expert in Benzodiazepine dependence and it appears that he has been on these medication for few years and had gotten to a point of dependence. He will need a Psychiatrist who is more specialized in substance dependence to help. Moreover he does not have a private insurance that will cover for a detox admission at this stage.
(ICL Exhibit 2, p.21)
It was the mother’s case that this proved the father’s mental health was not being managed. I do not agree. The highest this letter goes is that (a) the father appropriately sought assistance; (b) he is engaged with his General Practitioner; (c) Dr Z lacked expertise; and, (d) the father does not have private health insurance to cover a detox admission. In the meantime, the father has a treating team around him: his General Practitioner Dr L (with records back to March 2013 and again from 2021; Mother’s Exhibit 1, p.3 and 4) and a sleep practitioner Dr BB. He also had a longstanding therapeutic relationship with a psychiatrist Dr F; that relationship ended on the doctor’s death. He also had several sessions with Ms CC, psychologist, from 11 February 2022 to 29 April 2022 (ICL Exhibit 3, p.23-27). He was involved with the same clinic from 2014 (Mother’s Exhibit 1, p.39-62). In any event, I will be making orders, as proposed by the ICL, for the father to continue engagement with his treating team and a psychologist with reports to be provided before time may become unsupervised. The father agreed with the ICL’s proposed Order 17 which requires him to remain engaged with treating practitioners.
It was also submitted by the mother that I would not make an order for supervised time as that would require the father to be compliant with supervising staff. There is no evidence before me of anything but happy visits before the mother cancelled time and no evidence of non-compliance with the directions of supervising staff.
Finally, on the mother’s no contact case, I have already made findings about the primary
s 60CC considerations and the additional considerations, as relevant. Further, neither expert in this matter, nor the ICL, supported no time. I accept the ICL’s submission that no time is a “most serious outcome” with “very little evidence to support no time”.As for the mother’s Option B (supervised time) I am not prepared to make orders where the mother is the arbiter of drug tests. This has been a source of conflict in the past. The time proposed is inconsistent with all expert evidence. The Report Writer spoke of four times a year plus special occasions.
The mother’s Option C (unsupervised time) has the same drug testing problem. The proposal offers no actual time.
Other orders sought
Birth certificate: the father asked to be named on Y’s birth certificate; the ICL supported this. During the trial, the mother agreed to this. I will make that order because the parties agree and because it is important for the children’s sense of identity that both parent’s names be included on this document. I accept the Report Writers evidence: “It is extremely important for X and Y, as they continue to get older and they try to understand themselves and their identity, that they know who their father is” (Family Report of Ms M dated 4 October 2019, paragraph 95.
The last names: Any decision about the name by which a child should be known is dictated by the child’s best interests (see Reynolds & Sherman (2015) FLC 93-659 at [54]-[55]). There is no onus of proof. It is for the court to balance in its discretion the factors for and against the change (see Chapman & Palmer (1978) 4 Fam LR 462). That decision will be informed by such factors as the degree of identification of the child with the existing surname, and any difficulties or embarrassment for the child in using the same or a different surname. The list of factors is not exhaustive, and there are many other conceivable considerations (see Flanagan & Handcock (2001) FLC 93-074 at [19]-[38]; M & B [2001] FamCA 894 at [35]-[37]; Marriage of Mahony & McKenzie (1993) 16 Fam LR 803).
It was the father’s case that the mother stopped the children’s time with him because the father would not agree to change X’s last name to Munroe (the mother’s name). They mother gave evidence that she already calls X, “[X Munroe]” to be “the same as us”; see also Mother’s affidavit filed 15 October 2021, p.40. The mother denied she stopped time because of the last name issue as alleged by the father.
I do not need to resolve the Siddall and Munroe dispute, because during the trial, the parties agreed both children would be known as “[Siddall-Munroe]”. I will make that order for the same reasons I gave for the birth certificate.
Drug testing: The reading of drug tests has been problematic for these parents. Where the father would explain a positive test through, for example, prescribed cannabis oil or prescribed Clonazapam, the mother saw concerns. I see no point making orders for drug testing alone and then leave the parties to interpret them, because they will do so through their respective lenses. Instead professional supervisors will not, as recognised by Dr B, allow time to occur with the children should the father be acting in a manner incompatible (for whatever reason) with father-children time.
The Report Writer did not support allowing the mother to monitor any further testing, because, “I think that it would increase opportunities for conflict. I wouldn’t feel it would be appropriate for that to occur, no”. Instead, the father will be required to have a pathology report on the testing including whether any detected drugs are consistent with prescribed medication he is taking. Such pathology reports have already been provided with respect to Clonazepam as I summarised in the earlier table. I also accept the ICL’s suggested definition of “drugs of misuse” and “illicit substances” but will add an order to make it clear that if a positive drug test result is consistent with prescribed medication (as reported by the pathologist), then that is not a failure. It is in no one’s interests for the father to cease prescribed medication for fear of failing a drug test. To the contrary, it is in the parties and children’s interest that he follow medical advice, including medications.
I accept that these are considerable hurdles for the father to meet, but I have formed the view that it is appropriate for two reasons. First, the mother needs to have confidence that the children will be safe, Second, I accept what Dr B said about the father’s commitment to the children:
…in order for the mother to have confidence if the father takes his time with the children seriously, he will comply with those requests. If he isn’t complying, then we have a question, don’t 40 we, about how serious that he takes his responsibilities to the children and his obligations as a father.
(Transcript 4 August 2022, p.31 lines 38-42)
In the ICL’s proposed 12 month period of time in the presence of the paternal grandmother, specific months (April, August and October) were identified for drug testing. As I do not know how that regime of specific months will fit within the timing of the orders in practice, I have not specified the actual months, but simply order for the tests to be produced in the fourth, eighth and twelfth month of this period of time.
FaceTime: the ICL proposed FaceTime occur on certain days at 5.00 pm. That stipulation of 5.00 pm concerns me because it could lead to further disputes if 5.00 pm on the dot was not adhered to, or did not suit the children’s schedules. A range is more realistic, and I will order the FaceTime to be initiated between 5.00 pm - 5.30 pm.
Supervision conditions: The ICL proposed orders that the father confirm his attendances and payment with the Supervision Service. I have no evidence that these proposals fit with (or are at odds with) with the Supervision Service’s policies. I will not impose arrangements on the parties, and derivatively the Service, that may not meet with their policies. Instead, I will require the parties to comply with the Service’s requirements.
In terms of payment, the ICL proposed an order that the father pay the costs of supervision (if any) if he (or his family) failed to attend. I will make that order but make it mutually so that if the mother does not facilitate the children attending, then she will pay the costs for supervised time (if any) referrable to that missed time.
Unsupervised time: There is nothing in the Act that prohibits me making a long-term supervision order. That has been discussed in recent cases such as Hudson & Hopgood [2018] FamCA 693 and Smith & Smith [2020] FamCA 34. However, as the children mature common sense indicates that being supervised may not be the most enjoyable experience for them up to 18 years of age. I have already referred to the Report Writer’s opinions about this.
I also must take into account the additional considerations in s 60CC which include the children's relationship with the father and their views and wishes. I have no doubt that the children, especially X, enjoyed their time with the father when it was supervised. The mother accepted that to be so in cross-examination as well. Thus, an important consideration for me is to balance the children having some form of meaningful relationship with their father so long as it is safe, but one that allows the mother to gain some confidence in the children's safety.
I am not prepared to have a long-term supervision order without some mechanism for review down the track.
To that end the ICL made a very sensible suggestion that should the father effectively jump through a range of hurdles, the time could move to unsupervised.
I say this is sensible because on the two years of professionally supervised time as proposed by the ICL, the father ought have built, as far as is possible, confidence in the mother that the children enjoy time with him and that they are safe. The kinds of things that the ICL proposed were negative hair follicle tests for illicit drug use and a contemporaneous report from his treating psychiatrist or psychologist that includes details of compliance with a treatment plan and a relapse safety plan.
This is entirely consistent with the "scaffolding" to which Dr B referred.
Accordingly, in balancing the primary considerations I have formed the view that a period of supervised time between the children and their father will be put in place primarily, to renew the children’s relationship with their father in a safe and structured way, and to give the mother some trust and confidence. Going forward though if the father meets the conditions imposed, then the children's meaningful relationship is one that should then flourish and develop without the gaze of supervisors.
I do not understand there to be any magic in the two years proposed by the ICL other than it is a period of time that is not too short a demonstration of safety by the father, but equally not so long as to be akin to a permanent supervision order.
If the father is unable to demonstrate the things he needs to do in that two year period of time then the children's time with him will remain supervised.
CONCLUSION
In making the orders I will, I am satisfied that I have struck the right balance between the two primary considerations and the relevant additional considerations, to ultimately culminate in orders that are in the best interests of these children.
I certify that the preceding one hundred and eighty (180) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 28 October 2022
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