Sites and Paxton
[2014] FCCA 1924
•27 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SITES & PAXTON | [2014] FCCA 1924 |
| Catchwords: FAMILY LAW – Children –time the father should spend with the children in light of the father’s ongoing drug dependency. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA, 64B, 65D, 65DAA, 65DAB, 65L, pt. VII. |
| KML & RAE [2006] FMCAfam 528 |
| Applicant: | MS SITES |
| Respondent: | MR PAXTON |
| File Number: | BRC 7352 of 2012 |
| Judgment of: | Judge Cassidy |
| Hearing dates: | 10 & 11 June 2014 |
| Date of Last Submission: | 11 June 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 27 August 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Baston |
| Solicitors for the Applicant: | Lynn & Rowland Lawyers |
| Counsel for the Respondent: | Mr Galloway |
| Solicitors for the Respondent: | Beaudesert Legal |
ORDERS
That until the child [X] born [omitted] 2001 (“the child”) reaches 16 years of age, the following orders shall apply.
That the parties have equal shared parental responsibility for the major long-term issues in respect of the child, including but not limited to:
(a)The child’s future education and schools;
(b)The child’s health; and
(c)Changes to the child’s living arrangements which might make it significantly more difficult for the child to spend time with either parent.
That the child live with the mother.
That the father is restrained and an injunction issue hereby restraining the father from exposing the child to any contact whatsoever with
Ms S.
That the child spend time and communicate with the father such time to be in the presence of the paternal grandparents or either of them:
(a)Each alternate weekend, from after school or 4.00pm on Friday until before school or 9.00am on Monday;
(b)On Christmas Day:
(i)From 3.30pm Christmas Eve until 12.30pm Christmas Day in odd numbered years; and
(ii)From 12.30pm Christmas Day until 5.00pm Boxing Day in even numbered years.
(c)On the birthdays of the child [X] and the child [Y] born [omitted] 1998:
(i)If a school day, for three hours; and
(ii)If a non-school day, from 11.00am until 2.00pm.
(d)On Father’s Day (if not a time spent period) from 9.00am until 5.00pm;
(e)On Mother’s Day, the child shall spend time with the mother (if he is not in her care) from 9.00am until 5.00pm;
(f)On the birthday of either parent, the child will spend time with the parent who is having the birthday (if the child is not in the care of the birthday parent), from 5.00pm the day before the parent’s birthday to 10.00am on the day following that parent’s birthday;
(g)On New Years Eve in even numbered years, from 5.00pm New Years Eve until 5.00pm 1 January.
That in respect of all changeovers:
(a)The father’s agent collect the child at the commencement of the father’s time and return the child at the conclusion of the father’s time; and
(b)Changeovers take place at the child’s school and in the event that it is not a school day, that changeovers take place at the [omitted] Shop at [omitted];
That the child will communicate with the father by telephone on any day but not before 8.00am or after 8.00pm. The father is at liberty to initiate the calls to the child on the child’s mobile phone.
That the mother and the father:
(a)Keep the other informed at all times of their residential address and landline contact telephone number;
(b)Keep the other informed of the names and addresses of any treating medical or other health practitioners that treat the child and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the child; and
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This order authorises any treating medical practitioner to release the child’s medical information to the other parent.
That the parents authorise, by this Order, the schools attended by the child to give both parties information about the child’s educational progress and other school-related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at the cost of the requesting parent).
During the time the child is with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
That the father is at liberty to provide a copy of the following documents to any treating psychologist or psychiatrist in relation to his drug addiction:
(a)This Judgment;
(b)The family report dated 10 December 2012; and
(c)The family report dated 22 March 2014.
That the father provide a copy of the following documents to the paternal grandparents and use his best endeavours to ensure that the paternal grandparents read the following documents:
(a)This Judgment;
(b)The family report dated 10 December 2012; and
(c)The family report dated 22 March 2014.
That the process to be used for resolving disputes about the terms or operation of these Orders shall be as follows:
(a)The parties shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made;
(b)The parties shall pay the costs of the Family Dispute Resolution Practitioner equally;
(c)In the event that the parties cannot agree on a Family Dispute Resolution Practitioner, the party wishing to make the change to the Orders shall nominate three practitioners and advise the other party in writing of their fees, experience and availability;
(d)The other party shall choose one of the listed practitioners within seven days of receipt of the list; and
(e)If the other party fails to choose, then the party wishing to make the change to the Orders will choose the Family Dispute Resolution Practitioner.
That pursuant to s.65L of the Family Law Act 1975, the parties and the child [X] born [omitted] 2001 shall attend an appointment with a Family Consultant as nominated by the Senior Family Consultant of the Federal Circuit Court of Australia, Brisbane at a time and date as directed by the Family Consultant at the Family Court of Australia, Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane, for the purpose of explaining these Orders to the child.
That the parties and the paternal grandparents shall participate in the appointment only as directed by the Family Consultant.
NOTATION:
(A)In reference to Order 14 herein, it is requested that the father use his best endeavours to arrange for the paternal grandparents to attend at the s.65L appointment.
(B)It is requested that the Senior Family Consultant give consideration to appointing Ms C as the Family Consultant, given Ms C’s previous involvement with the matter.
(C)In the event that the father enters into drug rehabilitation and successfully completes the rehabilitation, the Court would consider that to be a chance in circumstance and is likely to increase the time the child would spend with the father, including the time during the school term and the time during school holidays.
(D)That pursuant to section 65DA(2) of the Family Law Act1975 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 “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Sites & Paxton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 7352 of 2012
| MS SITES |
Applicant
And
| MR PAXTON |
Respondent
REASONS FOR JUDGMENT
Introduction
In this matter the parents have asked the Court to decide the future parenting arrangements for the children [Y] born [omitted] 1998 and [X] born [omitted] 2001.
The parties, at the conclusion of the trial, agreed that they would not seek orders in relation to [Y], given that she will be 16 years old on [date omitted] this year. Further, both parents conceded that it would be in [X]’s best interests for the orders the Court makes in relation to [X] to only apply until he is 16 years old. The parties have also made an application with respect to property proceedings which is the subject of a separate judgment.
The Mother’s Proposal with respect to the Children’s Proceedings
The mother’s orders sought are detailed in her outline of case filed 3 June 2014. The mother seeks orders:
a)That the children live with her;
b)That the children spend time with the father each alternate weekend from after school (or 4.00pm) Thursday until before school (or 9.00am) Monday, conditional upon the father:
i)Taking into account the children’s wishes;
ii)Undertaking not to allow any contact between Ms S and the children;
iii)Undergoing codeine and opiate drug tests two days prior to any time with the children; and
iv)Providing satisfactory test results to the mother by email prior to any time with the children.
c)That changeovers take place at the children’s school or failing that, at the [omitted] Shop, [omitted].
The mother seeks sole parental responsibility for the long term care, welfare and development of the children and undertakes to inform the father of any decision she intends to make in writing.
The mother also requests orders in relation to each party retaining sets of uniforms, clothes and personal effects of the children at their respective residences. The orders sought make provisions for time on special days and telephone communication. There is also a non-denigration clause.
At the conclusion of the trial, the mother’s position was that she was agreeable to there being no orders sought in relation to the child [Y] and that the orders in relation to the child [X] should continue until he reached the age of 16.
The Father’s Proposal with respect to the Children’s Proceedings
The father’s orders sought are detailed in his outline of case filed 3 June 2014. The father seeks that there be no order made with respect to the children.
Alternately, the father seeks:
a)That the parties have equal shared parental responsibility for the long term care, welfare and development of the children; and
b)That the children live with each party according to their wishes.
The Material
The mother relied upon the following documents:
a)The amended initiating application filed 15 May 2014;
b)The affidavit of evidence in chief of the mother filed 15 May 2014;
c)The mother’s updated financial statement filed 15 May 2014;
d)The mother’s notice to admit facts filed 26 May 2014;
e)The mother’s case outline filed 3 June 2014;
f)The affidavit of Ms R filed 4 June 2014; and
g)A list of documents emailed to the Court on 5 June 2014.
The father relied upon the following documents listed in his case outline document 3 June 2014:
a)The response to initiating application filed 22 November 2012;
b)The affidavit of the father filed 22 November 2012;
c)The financial statement of the father filed 22 November 2012;
d)The affidavit of Mr P filed 29 November 2012;
e)The affidavit of Ms P filed 30 November 2012;
f)The affidavit of the father filed 13 December 2012; and
g)The affidavit of the father filed 14 January 2013.
The father also relied upon:
a)The father’s financial statements filed 5 June 2014;
b)The respondent’s objections to the applicant’s material tendered on 10 June 2014;
c)A response to the notice to admit facts filed by leave on 10 June 2014; and
d)The affidavit of Mr P filed 9 June 2014.
I have considered and taken into account:
a)The family report of Ms C dated 10 December 2012; and
b)The updated family report of Ms C dated 22 March 2014.
Background Facts
The parties’ chronologies within their case outlines detail the relevant history of the matter. I have accepted and taken into account the following facts.
The mother was born on [omitted] 1975 and is currently 39 years old. The father was born on [omitted] 1974 and is also 39 years old.
In 1993 the wife inherited a unit in Sydney from her late father’s estate, together with $80,000.00 which she invested.
The child [Y] was born on [omitted] 1998 and the child [X] was born on [omitted] 2001. The father’s case is that the mother stopped working in mid-1998 after she became pregnant with [Y]. The father contends that the mother was thereafter supported by the father.
In May of 2002 the parties relocated from Sydney to the Gold Coast.
On 8 October 2004 the father was seriously injured in a workplace accident. The father’s case is that he was unable to engage in full-time work for some time thereafter, that he underwent many surgeries with extensive recovery periods and was left with permanent damage to his left ankle and foot. The father acknowledges that he required some support from the mother and/or his parents during this period.
The mother’s case is that the father’s records from 2005 to date indicate a dependency on prescription and non-prescription drugs. The father admitted the drug dependency and conceded he has to date failed to undertake rehabilitation.
On 29 June 2008 the father was diagnosed with depression.
In March of 2009 the mother was diagnosed with Chronic Autoimmune Disease and Psoriatic Rheumatoid Arthritis.
In April of 2011 the father commenced full work as [omitted] in Brisbane.
In November of 2011 the father commenced work as an [omitted].
On 3 November 2011 the father’s medical practitioner, Dr T, advised the father he would no longer treat him due to his “addiction to pain killers”.
In March of 2012 the parties separated and mother and the children vacated the former matrimonial home.
On 5 June of 2012, the children commenced living with the father. [Y] retuned to live with the mother around 20 July 2012 whereas [X] remained with the father until 12 November 2012.
In late August of 2012 the father was diagnosed with multiple kidney stones which required multiple surgeries and hospital admissions. This further complicated the father’s dependency on prescription and non-prescription codeine based drugs.
On 16 August 2012 the mother filed an application for property and children’s proceedings in this Court. The matter had its first mention before the Court on 5 November 2012. The father was ordered to file and serve his response material within three days. If either party sought to appear at the upcoming interim hearing by telephone then that party was directed to file and serve written submissions within four days. The matter was then adjourned for an interim hearing on 9 November 2012 in relation to the residency of [X].
When the matter returned before the Court on 9 November 2012 the father was ordered to file and serve his response material within seven days. The mother undertook not to discipline the children in any way whatsoever. The Court ordered that the children live with the mother and spend time with the father each alternate weekend and for one night in the off week. Orders were also made for the father to have telephone communication with the children.
The parties engaged Ms C to conduct a privately funded family report. That family report issued on 10 December 2012.
On 13 December 2012 the matter returned to the Court and consent orders were made for the father to spend time with the children each alternate weekend from Thursday to the following Monday and each Wednesday night in the off week. The mother’s undertaking that was given to the Court on 9 November 2012 was varied so that the mother undertook not to physically discipline the children in any way whatsoever. The father was ordered to file and serve written submissions in reply by 14 January 2013 and judgment was reserved to 23 January 2013.
On 23 January 2013 consent orders were made:
a)That the father return the children to the mother on 24 January 2013;
b)That the father vacate the former matrimonial home by 2 February 2013 and leave it, as well as the lawns and pool, in good and clean order;
c)That the children spend time with the father from after school Thursday until before school Monday each alternate weekend and each Wednesday night in the off week;
d)That the father advise the mother of a quote from the [C] Clinic in relation to the costs of drug rehabilitation courses and the mother then pay the clinic that sum for the father’s treatment, such payment to be deemed a loan to the father;
e)That the parties immediately enrol in a PPP Parenting Course;
On 2 February 2013 the mother took possession of the former matrimonial home in accordance with the Orders of 23 January 2013. On 10 February 2013 the mother and the children returned to live in the former matrimonial home.
11 May 2013 was Mother’s Day. The mother alleges the father allowed the children to see the mother at 4.00pm for a period of one and a half hours. The mother further alleges that the father did not allow the children to spend time with her on her birthday ([date omitted] 2013).
On 28 May 2013 the mother completed her PPP parenting course.
On 31 May 2013 the matter returned before the Court. The parties reached further consent orders for:
a)The father to attend at the [C] Clinic for assessment in relation to any prescription or non-prescription drug dependency within fourteen days;
b)The parties to attend a mediation date on 19 July 2013;
c)The father to produce evidence of his PPP parenting course enrolment; and
On 6 September 2013 the parties reached further consent orders for the children to spend time with the father, particularly over the Christmas period.
On 3 December 2013, the Court ordered that the parties obtain an updated family report by Ms C and the parenting and property proceedings were set down for trial on 10 and 11 June 2014.
The updated family report by Ms C issued on 22 March 2014.
The Children’s Matter
Parenting Arrangements
The parenting arrangements for the children during the relationship are not agreed. The mother contends that she was the primary carer for the children since they were born.
The mother has had ongoing medical issues and is not currently employed. The father has also had ongoing medical issues and contends that, both prior to and particularly from the time of his accident in 2004 when he was home full-time, he has been heavily involved in all aspects of the children’s care and particularly so since the mother was diagnosed with rheumatoid arthritis.
The father is currently living with his parents. He spends alternate weekends with the children and his parents assist him with the care of the children. The father is working full-time.
Post-separation Parenting Arrangements
After the separation, the arrangements for the children have been varied.
The children lived with the mother in her two bedroom unit at [omitted] prior to returning to live with their mother in the former matrimonial home in accordance with the consent orders issued by the Court on 23 January 2013.
Initially upon separation in March of 2012 the children lived week about with each parent. After a two month period, the mother withheld the children for a period of approximately ten days, the mother alleges due to an incident that occurred between [Y] and the father resulting in [Y] ringing her mother in a distressed state.
The children thereafter lived with the mother and spent time with the father on alternate weekends. The father collected both children after receipt of a phone call from [X] following an incident between [X] and the mother in January of 2013. [Y] returned to her mother’s care after a period of approximately three weeks and recommenced spending alternate weekends with the father. [X] did not return to his mother’s care for approximately five months and had limited contact with the mother during that time. Thereafter the children have lived with the mother and spent time with the father in accordance with the Court orders.
Education History of the Children
The mother raised a concern that [X] missed twelve school days during the period where he lived with his father for approximately five months. Prior to the five month period and afterwards, there have been no concerns raised in relation to the schooling of these children.
Health & Any Special Needs of the Children
During the first report, a disclosure was made by the mother to the family report writer that [X] has informed the mother that he:
“[118] sticks a toothbrush down his throat…”
The family consultant raised the issue with [X]:
“[118] … He informed it was a habit, and that it did not make him feel sick or hurt him. He does not know why he does it.”
Other than this unusual behaviour by [X], the children do not have any health or special needs that require consideration.
Current Arrangements with the Mother
The children currently live primarily with the mother in the former matrimonial home at [omitted]. She has not re-partnered since separation and the children, by living in the former matrimonial home, remain in a relatively close proximity to their current school, [omitted].
Current Arrangements with the Father
The father currently lives with the paternal grandparents at [omitted] and the children spend time with the father on alternate weekends. The father had a post-separation relationship with a Ms S. The father reported to the family consultant that this relationship has ended.
Proposed Changes to the Father’s Arrangements
Although the father reported to the family consultant that his relationship with Ms S had concluded, there has been some uncertainty as to whether the father has severed all contact with Ms S. Paragraph 100 of the updated family report states in relation to the father:
“[100] He admits to having exposed the children to intimate partner violence and claims that he has ended his relationship with Ms S, however should the children’s information be correct, there are indicators that he and Ms S continue to have contact with each other. It would therefore be reasonable to suggest that the status of his post separation relationship with Ms. S is unclear. While the Report acknowledges that Ms. S has not been interviewed; based on the children’s described experiences it is the Report’s position that it will not be in the interests of either child to spend time with their father in the company of Ms. S.”
The family consultant’s recommendation at page 25 of the updated family report is that the children should have no contact whatsoever with Ms S. In the event that the father elected to restore his relationship with Ms S, the father’s living arrangements would have to be reconsidered in relation to the times when Ms S would be present in the household.
Ms S gave evidence in the mother’s case. I am satisfied the relationship between Ms S and the father is at an end. However I note the father agrees to an injunction in relation to Ms S, that the father not spend time with Ms S in the presence of the children. I am going to make an order in the terms recommended by the family consultant, that the father ensure the child have no contact whatsoever with Ms S.
Domestic Violence
The father reported verbal altercations with the mother prior to separation and told the report writer (in the first family report) that:
“[40] … Ms Sites was violent towards him on multiple occasions.”
The mother did not report any incidents of domestic violence.
The two family reports in this matter describe incidences of domestic violence between the father and his post-separation partner, Ms S. The father states that this relationship has now ended, and I am satisfied that is the case.
Violence / Abuse
The children have reported separate incidents with each parent which has resulted in the children leaving that parent to live with the other for a period of time.
In mid-2012 the mother collected both children from the father after receiving a phone call from [Y] following an incident involving an argument between [Y] and the father. The mother then withheld the children from the father for a period of approximately ten days before the father commenced spending alternate weekend time with the children.
On 8 January 2013 the father collected both children from the mother’s residence after receiving a phone call from [X] regarding an allegedly physical and verbal fight between the mother and [X]. As a result of that incident, both children lived with the father for a period of time; [Y] for approximately three weeks and [X] for five months. The father reported this incident to the Department of Communities, Child Safety & Disability Services.
Determination of the Relevant Factual Issues
The single most significant factual issue in this case is the father’s dependence on opiate medication, both prescription and non-prescription.
The mother’s evidence in respect of the father’s dependence on opiate medication is set out in her affidavit. She swears that the father purchased drugs in her name and, in the period 8 July 2010 – 16 December 2010, purchased drugs from three separate pharmacies in her name on 39 occasions. This was in addition to the drugs he purchased in his own name.
In 2013, the father provided some bank statements and from these bank statements, there were transactions paid by credit card for medications. That schedule indicates that from December 2011 to August 2013, the father made a total of 370 visits to chemists, sometimes three or four pharmacies in a day. Annexure MKS9 of the mother’s affidavit sets out the extensive number of prescriptions that the father had for oxycodone. There are certainly a significant number of different doctors who prescribed these drugs between 2006 and 2012.
The father admitted that he had an addiction to prescription and non-prescription codeine-like painkillers when he was cross-examined. On two occasions the Court ordered that the father undergo rehabilitation. The first order was made on 23 January 2013. The father was ordered to attend at the [C] Clinic for treatment in relation to this addiction. The order provided that the father was to provide a written quote for the treatment at the [C] Clinic and the mother would pay the fees for his rehabilitation, such fees to be reimbursed at the property settlement. Further, the father authorised the clinic to keep the mother updated.
The father did not comply with this order. An order was made on 31 May 2013, where the father was again ordered to attend the [C] Clinic for assessment within fourteen days. The father has not undergone satisfactory treatment. He has indicated on occasions that he has regular drug tests at work but no drug test results have been provided to the mother’s solicitor, despite numerous requests to provide them.
Ms C considered this issue in both of her reports. She said, in the first report:
“[146] In principle, the Report supports an inclusive regime in which the children spend equal time with each of their parents however considers this option to be more viable once Mr. Paxton is treated for what seems to be his drug addiction; … It is also unable to endorse this in a context in which Mr. Paxton may require admission to an appropriate facility to address his use of medication and in so doing impose upon the children further change and instability.”
The father was cross-examined at length by Mr Baston in relation to this issue. The father accepted, in the transcript at line 5 on page 71 and following, that there had been (since the proceedings commenced in 2012) an issue about whether the father had an addiction to painkilling medication. It was put to him that he had said that he had regular drug testing at work. The father agreed that he had not produced any tests in these proceedings. He agreed that from time to time he was required to attend at the [C] Clinic. The father’s recollection is that he attended on three occasions. He admitted he has not produced any evidence from any practitioner in drug or alcohol addiction from the [C] Clinic in respect of the visits. The father accepted that it was a significant concern for his wife, whether in fact he did have an addiction of any type. He agreed that it would be a legitimate concern by the mother of any child. The father accepted that a significant addiction to painkillers would be a concern. He conceded that he had produced no evidence about his medical condition.
I note that Ms C, in her later report, said:
“[30] At this point she produced what appeared to be a garbage bag half full of empty medication packets, mostly codeine or oxycodone based that she claims she collected from various places in the house on her return. She claims that the packets are all labelled with Mr. Paxton’s name and that they total eighty seven in number. “He didn’t even try to get rid of them. I think he is crying out for help.” It is her interpretation that the paternal grandparents deny that he has an addiction.”
The father is recorded as saying in the second report:
“[45] … He claims that he has undergone five or six urine screenings throughout the course of the legal process and that they have all proved to be negative. He adds that he and his general practitioner have planned that he will have undergone twenty to thirty tests by the time of the couple’s (sic) trial. “That is why we are trying the nerve blocking agents” rather than the narcotics he previously used. He adds also that he has not consumed alcohol since ending his relationship with Ms S.”
[Y], who was interviewed by the family consultant, is recorded at paragraph 69 of the report as saying:
“[69] … She spoke of how she also continues to worry about his “addiction to pills, but I am used to that now. I have seen it for a long time.” She never sees her father glassy eyed or drugged. “He always seems to be okay” when she is in his care. He does not take her to pharmacies much, “but he still does. The last time was the day after the fight with [Ms S] (sic) when he said he needed pain medication for his nose, but I just think it was for his addiction.””
At paragraph 80, the family consultant, upon interviewing [X], observed:
“[80] He frequently drives in the car with his father and adds that this is not a concern. Says that his father would never drink drive and always seems alert. He is aware of his father’s addiction to prescribed medication however states that he does not worry about this. In his opinion his father is a good driver however in the event he ever appeared to be affected by his medication he would not get in the car with him. He has only taken him to a chemist shop once.”
Ms C makes her recommendations conditional upon the father continuing to address his drug dependency issues, and that the children have no contact whatsoever with Ms S. She then, in paragraph 106, sets out under the recommendation heading her recommendations. I accept from the evidence before me that the father has not continued to address his drug dependency issues.
I have a concern, also, that the father’s mother is unaware of those issues. The father’s mother, the paternal grandmother, was cross-examined by Mr Baston. At line 10, page 98 of the transcript, the cross-examination of the paternal grandmother by Mr Baston went as follows:
“So you’re unaware that your – that there is evidence to suggest that your son has a serious addiction problem to, firstly, prescription drugs?‑‑‑I’m not aware. I have not seen any of that evidence that would indicate that there is an addiction. If you’re asking me if I’ve seen any evidence of that, I – I have not.”
I asked the witness, in relation to an addiction problem with her son, what her understanding of that allegation was. I raised the question at line 5, page 100 of the transcript and the witness’ evidence is set out below:
“Is it a truthful scenario or is it not true from your observations?‑‑‑Quite frankly, my observation is that – I think it has been – from my observation, I don’t believe it is true. I believe [Mr Paxton] does take some medications occasionally, for pain management.”
So I am satisfied that the paternal grandmother is not aware of the father’s addiction to codeine-type medications.
Ms C was cross-examined by the counsel for the mother. The question was put to Ms C about the risk-mitigating factors associated with [X] not attending with [Y] for his time with the father. She said (at line 20, page 109 of the transcript):
“… in particular for the paternal grandparents to be responsible for driving the child.
In other words not take the risk?‑‑‑Not take the risk in a motor vehicle.”
It was also recommended by the expert that the paternal grandparents read all of the family reports issued in relation to the father’s drug addiction and my reasons for judgment, as well as speaking to Ms C at a s.65L ordered conference in relation to setting out time for [X] with his father.
I intend to make a s.65L order in this matter and require the time [X] spends with his father to be in the presence of the father’s parents. He presently lives with them. This would not require the grandparents or one of them to be present at all times when [X] is with the father but rather, that they be around during the time. They might visit the shops or go to a movie and leave [X] alone with his father. However they would be present during the time the father spends with [X] whether it be in their home or in any home the father might choose to reside in.
The Legal Principles
The principles governing the Court’s determination in this matter are set out in the Family Law Act 1975 (hereafter “the Act”).
Section 65D of the Act, subject to s.61DA (“the presumption of equal shared parental responsibility”) and s.65DAB (“parenting plans”), gives the Court the power to make a “parenting order”. A “parenting order” is defined by s.64B of the Act.
In deciding whether to make a particular parenting order s.60CA requires that I must have regard to the best interests of the children as my paramount consideration.
In determining what is in children’s best interests I must consider the matters set out in s.60CC(2), the “primary considerations”, and s.60CC(3), the “additional considerations”.
There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents and the second is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as “primary” and as a note to s.60CC indicates, are consistent with the first two “objects” of Part VII, as stated in s.60B that the best interests of children are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
There are 13 “additional considerations” set out in s.60CC(3) which I will refer to later in detail in these reasons.
I must also consider (to summarise) the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities (ss.4 and 4A). I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interest being treated as paramount (s.60CG).
I will also be guided by s.60B which sets out the objects of Part VII of the Act and the principles underlying it.
Application of the Law to the Circumstances of the Case
I must now consider the application of the legal principles in the circumstances of this case, namely the background facts and the findings I have made and how they apply in determining what parenting orders are most likely to promote [X]’s best interests.
Primary Considerations
I am satisfied it is important for [X] that he has a meaningful relationship with both his mother and his father. There is, in my view, a need to protect [X] from being exposed to risk in the father’s household, if the father continues to resist seeking treatment for his drug addiction.
Both parents, as I have indicated, have had allegations made against the other in relation to abuse of the children. The allegations have been dealt with and I saw them as isolated incidents. I do not consider that those incidents raise any concern in terms of risk of harm to the children in the future.
My reason for coming to these conclusions is that both parents, to their credit, acknowledge that it is important for [X] to have a meaningful relationship with the other parent. They have both been involved as parents in [X]’s life. I treat these primary considerations and my findings as central to the structure of orders that I am ultimately going to make with respect to the best interests of [X].
Additional Considerations
In this matter I consider the additional considerations that are relevant to be as follows.
The Children’s Views
This consideration is set out in s.60CC(3)(a) as follows:
“(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;”
As I am not going to make any orders with respect to [Y], I do not intend to record her views in this section of the judgment, although I note that she expressed views to the report writer.
The most recent opportunity for [X] to express his views in relation to this matter occurred at the family report that was issued on 22 March 2014. Ms C covered his views fairly extensively:
“[77] He tells me that he has been seeing his father on alternate weekends. “It has been all right (sic), but I don’t really like it. I miss him and would like to see him more.” If he could design his future time with his father, he would want to spend alternate weeks in his care. He does not know if his mother would want him to spend increased time with his father, however he believes things should be equal. “Week on and week off.” His father has told him that he would like more time with him and that it should be “week on and week off.”
[78] He does not mind seeing his father with his paternal grandparents and believes his paternal grandparents would welcome him spending increased time at their home. “I think they would like to see more of us… …but sometimes I wish he did have his own house as well.” His grandmother mainly cares for him when he is with his father. Some night’s (sic) dad tries to cook as well. “That is about it.” His grandmother generally drives him to and from his school, however his father recently commenced collecting him on a Friday. “He has done this once but said that he is going to try and pick us up.” He likes his grandparents and “does a few things” with his paternal grandfather like playing video games. …
[79] He worries about his father. “Yes and no. I just miss him, rather than worry about him.” He believes his father’s health is “okay. His kidney stones are not a problem.”
[80] He frequently drives in the car with his father and adds that this is not a concern. …
…
[83] If the judge said there should be a continuation of the current regime, he “would be hurt. Probably wouldn’t like it.” If the Judge said he should spend alternate weeks with his father he would be happy. He believes that his sister would also enjoy this outcome (sic)”
On a bright note, he said the best thing about his life was seeing his friends.
Child’s Relationship with Significant Persons
I am satisfied that [X] has a close and attached relationship with both his mother and his father. He seems to have a relationship that is positive with his paternal grandparents. That is important given that he has been spending time with his father at their home for some time now and they are very involved in his day to day life while [X] is with his father.
Parenting and the Discharge of Parenting Responsibilities
In the circumstances of this case, it is convenient to deal under this heading with a number of considerations listed in s.60CC. I consider, under this heading, the following paragraphs of s.60CC(3):
“(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
…
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;”
The only factor I raise as a concern in relation to these parenting responsibilities is again, the father’s addiction to prescription and non-prescription codeine-type drugs. This is something that he admits to and something that he has not dealt with to attempt to overcome the problem. I am of the view that it impacts upon his capacity to provide for the needs of [X], including emotional and intellectual needs, as well as physical needs. I am concerned, while the father is still addicted to these drugs, that he should not be driving [X] nor doing any activity that requires a precision of judgment that might be impaired because of the effect of the prescription and non-prescription drugs that the father takes. I intend to make an order that the father’s agent collect and deliver [X]. I note the paternal grandmother has been doing this for some time already.
Effect of Any Changes in the Child’s Circumstances
[X] is of an age where, if there was not the issue of the father’s drug addiction, I would be inclined to take his views very seriously into account and possibly make an order that extends the time he spends with his father. I do not consider that that would have any real effect on his circumstances. He is old enough to manage that well. However whilst the father still fails to obtain treatment for this problem, I am struggling to see the benefit to the child of having extended periods of time with the father.
I note, given the child’s age, that his wishes are to have equal time with each parent, but until the father really deals with his addiction issue, I could not justify making an order that changes the current circumstances by very much.
Orders that are least likely to Result in Further Litigation
This is difficult in this matter because the child is of an age where his views should be taken into account and respected by the Court. However I have difficulty doing that because of the father’s addiction to prescription and non-prescription drugs. So that, if he were to deal with that problem, I anticipate there would be no real bar to [X] spending, if not equal time, at least substantial and significant time (from a Wednesday or a Thursday until the following Monday) with the father, and there may well be a justification for equal time.
The difficulty I have is that the father has had a number of opportunities to show the Court that he has obtained treatment and is committed to his recovery. On each occasion he has failed to take any real steps to obtain that treatment, even in circumstances where the mother was going to provide the funds for that treatment. The funds were then to be treated as a debt against the father’s interest in the property settlement. So that, I am not minded, given that these parties have spent nearly $200,000 on litigation, to make an interim order that would allow the father to rectify the problem he has with addiction. However I do anticipate that, if he were to rectify that problem, it could be the basis for further litigation, because in my opinion it would amount to a change in circumstance.
The way I see that I can assist the parties to avoid further litigation is to indicate that, on the present circumstances and facts, I would be inclined to put substantial and significant time in for [X], and even possibly equal time, but for the father’s addiction. So if he rectifies that problem and I make an order for the parties to attend mediation, it would seem to me that it would be appropriate for the parties to give serious consideration to reaching an agreement along those lines, with some protections perhaps in place for random drug testing for the remainder of [X]’s childhood, which is only a couple of years.
Conclusion
To summarise, I have made the following findings having regard to the additional considerations.
I am satisfied that [X] expressed a view that he would like to spend equal time with his father. I consider that it is probably genuinely held, even though the child does have some residual concerns, it seems, for the father’s well-being.
I am satisfied that the parties are able to provide for this child, emotionally, intellectually and physically, but for the difficulty I have with the father’s addiction problem. I consider that creates a problem that becomes almost insurmountable in progressing [X]’s time with the father.
I am satisfied that any change in [X]’s time with the father, he could manage. Indeed [X] wants it, but until such time when the father demonstrates a commitment to rehabilitation in relation to his drug issue, I see little utility in coming to a decision other than that [X] spend alternate weekends with his father. I consider it is in [X]’s best interests that it be in the presence of the paternal grandparents or either of them until the father has undergone treatment for his addiction. I appreciate that that may result in further litigation if the father corrects and rectifies that problem, but he has had a significant period of time in which to do it and has failed to do it thus far. So, it is not a reason for making an interim order.
Parental Responsibility
The mother seeks sole parental responsibility in relation to [X] and the father seeks equal shared parental responsibility.
Under s.61DA(1), when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for him. The presumption does not apply however if there are reasonable grounds to believe that a parent has engaged in abuse of the child, or family violence.
In this case, having regard to the findings I have made and as it is not the case of the mother or father that the child needs to be protected from abuse or family violence, I intend to apply the presumption and order that the mother and father have equal shared parental responsibility.
I note that the father has an issue with drug addiction and that puts the child in a less satisfactory position than if he had dealt with that. However [X] is of an age where I am confident that he understands the issue and manages it in the context of the time he spends with the father. So I do not consider that [X] is at risk of abuse or neglect in the father’s household and I am therefore satisfied that it is appropriate to apply the presumption.
I am also persuaded that equal shared parental responsibility is appropriate, given [X]’s age and given that the decisions that remain to be considered by the parents are very few. He is settled in school. It seems to me that health might be an issue and I sincerely hope that it is not, but if it does become an issue, it would be a serious illness and I am of the view that both parents should be involved in the decision-making in relation to such an issue.
Having made that decision I am then required by s.65DAA(1) and (2) to consider whether to make orders that the child spend equal time, and if not equal time then substantial or significant time, with each parent. The section provides:
“Equal time
(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
…
Substantial and significant time
(2) Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”
Equal Time
In this matter, although there are no issues raised by the parents to suggest that [X] spending equal time with each parent is not practical, I am not satisfied given the findings I have made already, that it would be in [X]’s best interests for an order for equal time to be made.
The reason for that is that the father has a serious problem with addiction to painkillers that he has chosen not to address despite orders being made on two separate occasions for him to attend a clinic to obtain assistance in relation to this issue. Until such time as he addresses this issue, I do not consider that it is in [X]’s best interests to have an equal time relationship with the father.
Substantial and Significant Time
As to whether I should order the child to spend substantial and significant time with each parent, again there is no dispute that this arrangement is not reasonably practicable. The issue is whether it would be in the child’s best interests to do so.
For a parenting order to involve the child spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the child to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times.
It must also allow the parent to be involved in the child’s daily routine and on occasions and events that are of particular significance to the child and for the child to be involved in occasions and events that are of special significance to the parent.
FM Halligan, in the decision of KML & RAE [2006] FMCAfam 528 when considering s.65DAA(3), said:
“[112]These dual minimum requirements of when the time is to occur and what the time is to achieve by way of mutual involvement of parent and child in each other’s lives relate to the dual aspects of the time being both substantial and significant respectively. A parenting arrangement will fail to meet the requirements of substantial and significant time unless it provides for time of a duration and frequency, and occurring at times, that enable the parent to be involved in the child’s daily routine.
[113]What time arrangement is necessary to achieve this is a matter of fact to be determined in each individual case. But for a parenting arrangement to involve substantial and significant time, one would normally expect to see the amount of mid week time, when taken with weekend, holiday and special occasion time, providing an opportunity for the child to be assisted by the parent with homework, to have the parent take the child to and from sports training and games in which the child is involved, to have the parent take the child to practice for, and to attend performances relating to, the child’s other extra curricular activities such as scouts or guides, music and dance, and to experience life as a member of the parent’s household with all the mundane reality that entails, including the parent cooking, washing and cleaning for the child, and the child, as may be age appropriate and in accordance with the reasonable wishes of the parent, assuming some household responsibilities in that parent’s household.
[114]That is not to suggest that a parenting arrangement in favour of a parent will not amount to substantial and significant time unless that parent has an opportunity to be involved in every facet of the child’s life, or to be so involved on a weekly basis. What is required is an opportunity for an involvement in the child’s daily routine which is significant, through spending time with the child that falls on weekends, mid week and during holidays. What is required is a common sense approach based on the facts of the particular case, and not a formulaic, one size fits all, approach.”
I am not satisfied that a proposal for substantial and significant time is in [X]’s best interests at the moment either, given the father’s addiction to prescription and non-prescription drugs.
The report writer recommends substantial and significant time for [X], in that she recommends that the child [X] spend time with his father from the completion of school or 4.00pm on Thursday until the commencement of school or 9.00am on Monday each alternate weekend. However she recommends that on the condition that the father continues to address his drug dependency issues.
Until such time as that occurs, I am persuaded that the best interests of [X] are served by the alternate weekends that are currently in place. The reason for that is that I will be relying on the paternal grandparents to do all of the driving for [X], because I am concerned about the father driving [X] while he has not had any treatment with respect to the drug dependency issue. It seems an onerous task to ask of the paternal grandparents. Furthermore, whilst the father is untreated, I consider that he is less reliable as a parent to care for [X]’s emotional and intellectual needs.
Parenting Arrangement during School Term
Having come to the decision I have in relation to [X]’s best interests, I am satisfied that the alternate weekends need to be left in place until the father addresses his drug dependency. I note that the mother sought a number of conditions that were to be satisfied before the child could spend time with the father. Her order basically had her deciding whether the child should spend time with the father after considering drug testing results. I do not consider this approach is in the child’s best interests because it could mean that the child spends no time with the father in circumstances where it is in important that the relationship continues. This finding accords with the opinion of the Court Expert Ms C.
School Holidays and Special Days
I am not satisfied that I should make an order for longer periods of time with the father until he can demonstrate that he has attended at the clinic that he was referred to, or any other clinic, psychologist or psychiatrist, to fully address his drug dependency. I will also order that the time [X] spends with his father is in the presence of the paternal grandparents or one of them. If the father does do that, I would be minded on the facts I have before me at the moment, to put half of the school holidays in for the father and indeed, up to an equal time arrangement. However I am not prepared to give him another chance by way of an interim hearing. At the final hearing, I find that he has not attended to this issue and as a consequence of that, I am not satisfied that it is in [X]’s best interests to spend school holidays with the father, other than the ongoing alternate weekends.
Special days are appropriate and the orders that the mother seeks with respect to the special days are reasonable because the father’s position was that he really did not seek an order with respect to either child.
I am satisfied that it is appropriate to make the orders in relation to [X], until he reaches the age of 16, because that is the age that [Y] is and the parties have agreed that no orders should be made in relation to [Y].
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of Judge Cassidy
Date: 27 August 2014.
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