Smithers and Smithers

[2018] FamCA 238

FAMILY COURT OF AUSTRALIA

SMITHERS & SMITHERS [2018] FamCA 238

FAMILY LAW – CHILDREN – INTERIM – Where the mother has been the primary care giver of four children under the age of 7 – Where the father has limited the mother’s time with the children and now has retained the children – Where the father says the children are at risk as a result of the mother’s mental health, drug taking, physical discipline and relationship with another man – Where there is evidence from the mother’s treating mental health professionals – Where the mother agrees to random drug testing and not to bring the children into contact with the other man – Where it is in the children’s best interests to make the orders as proposed by the mother

Family Law Act 1975 (Cth)

APPLICANT: Ms Smithers

RESPONDENT: Mr Smithers

FILE NUMBER: SYC 1885 of 2018

DATE DELIVERED: 17 April 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 11 April 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: KD Holmes Solicitors

COUNSEL FOR THE RESPONDENT: Ms Lawson

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

Pending further order

1. B born …2011; C born … 2012; D born … 2015; and E born … 2015 (“the children”) ordinarily live with the mother.

2. The children spend time with the father each four weeks as follows:

   2.1.In weeks 1, 2 and 3 from after school or day care on Friday to before school or day care on Monday; and

   2.2.In week 4, from after school Monday to before school on Wednesday.

3. The mother not bring the children into contact with Mr F.

4. The mother be restrained from consuming any non-prescription drugs or prescription drugs (save in accordance with legitimate directions of a treating medical practitioner and obtained on a bona-fide basis for medical purposes only) during all periods the children spend time with her and for a period of 12 hours prior to the children spending time with her.

5. The mother undertake random supervised urinalysis in accordance with the Standard AS/NZS4308 at intervals of not more than once each month at an accredited testing laboratory in accordance with chain of custody procedures for the detection of all drugs including but not limited to cocaine, opiates, Antabuse amphetamines, cannabis, Benzodiazepines, OxyCotin, Temazepam, MDMA and ecstasy within 48 hours of notification being given by the father’s solicitors in writing and the results of that testing shall be provided to the father’s solicitors within 48 hours of them being received by the mother and/or the mother’s solicitors.

6. The mother submit herself for forensic drug hair follicle testing, with such sample provided to cover a three month period to test for all drugs that can be tested using a hair follicle sample, with such testing to be undertaken by the South Australia Forensic Sciences and:

   6.1.The mother forthwith authorise the testing laboratory of South Australian Forensic Sciences to provide the hair testing results to the father’s solicitors as soon as practicable after they are available; and

   6.2.The father pay all costs associated with that testing.

7. Each party keep the other party informed as to his or her residential address and telephone number.

8. Each party shall encourage and facilitate the children making telephone calls to and receiving telephone calls from the mother or father whilst in the care of the other parent.

9. Each party ensure the other is advised promptly of any medical emergency or significant illness suffered by the children whilst in that party’s care.

10. Pursuant to s 65DA(2) and s 62B 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Smithers & Smithers has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1885  of 2018

Ms Smithers

Applicant

And

Mr Smithers

Respondent

REASONS FOR JUDGMENT

1. In these interim parenting proceedings, the mother seeks orders that the four children of the parties, all aged under 7 years, ordinarily live with her and spend time with their father each month (which I take to be a reference to a period of four weeks) as follows:

   1.1.In weeks 1, 2 and 3 from after school or day care on Friday to before school or day care on Monday; and

   1.2.In week 4, from after school on Monday until before school on Wednesday.

2. The father seeks orders:

   2.1.That the children live with him;

   2.2.That the children spend time with the mother for up to three hours each Monday and Wednesday afternoons and on each alternate Saturday between 9am and 6pm and on each alternate Sunday with such time to be supervised by either of the maternal grandparents, any other agreed supervisor and if there is no agreement, a private supervisor with the costs of that supervision to be paid by the mother.

3. The father further seeks that the children’s time with their mother be conditional upon the mother:

   3.1.Not consuming drugs unless for legitimate legal reasons;

   3.2.Undertaking random urinalysis tests;

   3.3.Not allowing the children to come into contact with Mr F; and

   3.4.Submitting herself to forensic drug hair follicle testing with a sample to cover a three month period.

4. The father also seeks orders in relation to telephone calls, the provision of information about residential addresses and telephone numbers and notification of medical emergencies and significant illnesses.

5. The mother agreed to a condition that she not take illicit drugs or drugs that had not been prescribed for her; to undertake urinalysis and, on the basis that the father agreed to pay for it, hair follicle testing. Further, the mother has agreed to an order that Mr F not be present during the times when the children are living with her.

6. Since 19 March 2018 the father insisted the children live with him. Since that time they have seen their mother for two days on a supervised basis.

CHRONOLOGY

1. The father is aged 34. The mother is aged 32. Mr F is aged 34.

2. The mother was initially diagnosed with depression in 2002 when she was 16.

3. The parties commenced to live together in July 2009 and married in 2011.

4. In mid 2011, shortly prior to the birth of the first child, the mother ceased full-time paid employment.

5. The parties’ first child, B, was born in 2011 and is currently aged 6.

6. In November 2011 the father commenced employment and worked shift work on a rotating roster including nights.

7. The parties’ second child, C, was born in 2012 and is currently aged 5.

8. The twin girls, D and E, were born in 2015 and are currently aged 2 ½.

9. The mother reports that in mid-2017 the father was prescribed with antidepressants but did not take them and that he commenced to see a psychologist after a mental health referral from his GP in November 2017.

10. On 6 November 2017 the mother told the father she intended to self-harm (that incident is referred to in more detail below).

11. On 7 November 2017 the mother saw Dr G saying she was not coping and that she needed help. Dr G prescribed Valium to assist the mother sleep.

12. On 9 and 10 November 2017 the parties participated in marriage counselling. 

13. The mother says that the parties separated on 21 November 2017 after approximately six and a half years of marriage. The father says the parties separated on 26 November 2017 and that he left the matrimonial home on 28 November 2017.

14. When the father left the matrimonial home, he left the children in the care of the mother. He withdrew the bulk of the money in the parties’ joint bank account.

15. The mother’s mental health deteriorated and her depressive symptoms were aggravated around the time of the end of the marriage.

16. Between 21 November 2017 and January 2018 the parenting arrangements were that the children live with the mother and spend one or two nights each weekend with the father at his parents’ home.

17. In December 2017 the mother commenced employment at a club. She asserts her duties were answering the telephone and greeting people. She says she worked there for a three week period and completed approximately eight shifts. All of these shifts were whilst the children were in the father’s care.

18. On 6 January 2018 the mother informed the father that whilst she was working she had witnessed the gruesome death of an employee who had overdosed. At that time the mother had no money available to her. She informed the father that she was not coping and that she needed him to help more with the children.

19. On 8 January 2018 the mother saw her GP and upon his recommendation she admitted herself to the H Clinic at the J Hospital. She came under the care of Dr K. The children lived with the father and the paternal grandparents.

20. On 19 January 2018, the day before her discharge from hospital, the mother had a lengthy conversation with the father to attempt to make arrangements for the children to be returned to her on her discharge from hospital. The mother asserts that during that conversation the father told her that she was “unfit” and that she was not going to see the children.

21. On 20 January 2018 the mother was discharged from the care of Dr K and returned to the former matrimonial home.

22. The children lived with the mother on 23 – 25 January; 29 and 30 January; and 3 – 7 February.

23. On 7 February 2018 the mother asked the father for his parenting proposal and sought that she have some input into the care arrangements for the children which the mother says he was unilaterally dictating at that time.

24. On 11 and 12 February 2018 the children lived with their mother.

25. On 13 February 2018 the father provided a schedule of the care arrangements he proposed for the children. That proposal was that the children spend eight nights each fortnight with him and six nights each fortnight with the mother. The mother initially agreed to follow that schedule. The children lived with their mother on 17 - 19 February; 22 – 24 February and 1 – 5 March 2018.

26. On 7 March 2018 the father obtained access to the mother’s mobile telephone. He formed the view, having read text messages that he found on that phone, that the mother was “using illicit drugs regularly”.

27. Notwithstanding that, the father left the children with the mother from 7 – 9 March 2018.

28. On 14 March 2018 the mother’s solicitor wrote to the father to provide an alternate parenting arrangement with the children to live primarily with the mother and spend three weekends each month with the father.

29. The children lived with their mother between 15 and 19 March 2018.

30. On 18 March 2018 the father texted the mother and stated that he would collect the children “as always”. The mother however indicated that she was no longer prepared to follow the arrangements which she asserted the father had imposed. As a result, the father attended the mother’s residence. There was a physical altercation. The father attempted to forcibly remove the children from the mother. The police came to the home and the father left the former matrimonial home without the children.

31. On 19 March 2018, the mother says in order to avoid further conflict and disruption to the children, she allowed the children to be collected by their father from school and day care. He did so. The father did not return the children on the basis that the father asserted that he had “grave concerns” for the safety of the children. The father kept the children out of school and day care until after 23 March 2018 (the date upon which the mother had agreed not to attempt to recover the children unless there was an agreement or a court order).

32. On 21 March 2018 the father’s lawyers wrote to the mother’s lawyers proposing that the children only spend supervised time with the mother.

33. On 23 March 2018 and 3 April 2018 the mother undertook chain of custody urine drug screening and no drugs were detected.

34. The children saw their mother on 1 April 2018 between 9am and 5pm upon the condition that it would be supervised by the maternal grandparents and Mr F would not be present. A similar arrangement applied on 3 April 2018.

THE RISK OF SELF HARM BY THE MOTHER

1. The father gives evidence that the mother told him that in about early 2009 she tried to kill herself and on that occasion she actually cut her wrists.

2. The father does not report any other occasion of a threat of self-harm until 6 November 2017. On that day the father was at work, and the mother was at home with the children. The father received a text message in the following terms:

   I am planning on killing myself tonight so it is your call if you want to come home or not. The kids will probably need someone here after 9pm

3. The father arranged for a friend to attend upon the mother and he got home about an hour later. The father alleges that at that time the mother was pale, expressionless and non-responsive towards him. He said she took herself into the bathroom, locked the door. He alleges that he had to force the door open and observed that the mother had broken glass and a razor blade in the bathroom with her and had rubbed some numbing cream on the inside of her left elbow. The mother however did nothing further to attempt self-harm. At the time the father viewed this as a cry for help by the mother.

4. The next incident took place on 11 November 2017 where there was an argument between the parties at the mother’s parent’s home. The father asserts that the mother smashed a vase, picked up a piece of broken glass and held it to her forearm saying “I will do it” but then seemed to calm down almost instantly.

5. The third incident took place on 17 November 2017 when again there was an argument between the parties about the breakdown of their relationship which involved a physical altercation. The father says the mother went to the kitchen with a handful of prescribed Valium pills. The mother put them in her mouth but then coughed them out again and the father ensured she did not re-administer these pills.

6. At the time that each of these events occurred, the father formed the view that they were not genuine suicide attempts and as they are described, I find that the father’s initial assessment of those behaviours by the mother was a reasonable one.

THE MOTHER’S MENTAL STATUS AND ADMISSION TO HOSPITAL IN JANUARY 2018

1. The father asserts that he is concerned about the mother’s mental state because of her “attempts at harming and killing herself” and because he has “observed her becoming increasing erratic and unstable in her behaviour”.

2. At various paragraphs in the father’s affidavit, for example [27], [53] and [76] he makes general statements about change of behaviour without indicating what it is.

Dr K’s opinion

1. At the time of the mother’s admission to hospital on 8 January 2018, the mother complained of depressed mood, poor energy and poor sleep. She felt anxious, distressed and agitated and was preoccupied with the conflict with the father and her financial difficulties. Her parents were supportive of her and they brought her to the hospital.

2. As indicated, the mother was placed under the care of Dr K, a psychiatrist with over 30 years’ experience. He consulted with the mother during her admission to the J Hospital between 8 January 2018 and 20 January 2018. Dr K reports that on his first meeting with the mother, her mood was depressed and her affect was flat. She was however rational and appropriate and there was no evidence of psychotic or obsessive phenomena. Her cognitive functions were clinically unremarkable and at that time she denied any thought of self-harm. He records that the wife’s admission was triggered by separate, ongoing marital conflict and financial difficulties. The mother reported to him that she felt that the husband was un-cooperative and unsupportive of her and their children. He opines that the mother gained significant benefit from the hospital’s psychotherapeutic program and individual counselling sessions.

3. During the period the mother was in hospital, Dr K saw the mother on six occasions and also saw her parents on two occasions. She reported to Dr K that during the marriage the father was frequently absent from the home due to his shift work and that she carried the burden of caring for the children mostly on her own. The mother told Dr K that she had “coped reasonably” well with the separation until the week before her admission to hospital which she attributed to multiple stresses including conflict with the father, financial difficulties and lack of emotional support. Dr K reports that the mother has suffered with depression and mood swings since adolescence, however her symptoms were manageable. Her depression had become significantly worse after she had her first child six years ago and again after she had the twins two years ago. She had been prescribed an antidepressant (Zoloft, 100mg) which was helpful.

4. Dr K’s diagnosis was that the mother had suffered a relapse of her chronic major depressive disorder.

5. The treatment that the mother received in hospital was psychotherapy and supportive counselling. There was also a review of her medication which was doubled. Dr K reports that at the time of the mother’s discharge she was euthymic (that is, in a normal non-depressed, reasonably positive mood). Dr K saw the mother again in his rooms on 23 March 2018. The mother’s affect was reactive and appropriate. She reported to Dr K that she was coping well with daily life activities and with the care of the children. She also reported to him that she had continued on her regular medication, that her mood was stable, that she was obtaining adequate sleep and had a good energy level. The one source of unhappiness was the fact that she had been unable to reach an amicable agreement with the father in relation to the children’s time with each parent and was obliged to make an application to the Family Court. The mother has a follow-up appointment to see Dr K.

6. Dr K opined that the treatment that the mother received in January has proved to be effective and is helping improve her mental state. He also opines that she has responded well to the management strategies that have been put in place.

7. The father asserted during a conversation with the mother on 18 January 2018 that the mother was meant to stay in hospital for another week. There is no indication in the evidence from the mother’s treating psychiatrist that she discharged herself from the hospital prematurely.

8. Dr K opines that currently the mother is not a risk of harm to herself or to her children and that her psychiatric condition is likely to improve once the current Family Court litigation is finalised and appropriate orders are made.

9. The mother told Dr K that she had not used illicit substances (which, as I discuss elsewhere, is not an accurate history as the mother has used illicit recreational drugs).

Evidence from Ms L

1. Ms L is a psychologist who first saw the mother in 2011 but then did not have any contact with her for approximately six years until 27 November 2017 (I assume last year. Ms L says November 2018 which is obviously not correct). Ms L records that historically the mother presented as diligent, cooperative, insightful and transparent. She opines that the mother is highly committed to improving her understanding of the stresses in her life and working effectively to protect herself and her loved-ones from any unnecessary distress. In Ms L’s opinion, the wife’s current circumstances do not warrant a diagnosis of mental illness and describes her behaviour after the father’s sudden decision to terminate the marriage as more akin to a manifestation of bereavement than any mental illness as defined by DSM-5.

1. Ms L has been providing cognitive behaviour therapy and general supportive counselling to the mother since 27 November. Ms L opines that she does not hold any concerns regarding the mother’s capacity to look after and care for her children and does not see any need to place any restriction on the way she looks after and cares for her children. In Ms L’s opinion, the mother is highly capable of carrying out her full duties as a loving, considerate and thoughtful mother and placing the well-being of her children at the centre of her own desire to maintain good health for herself.

2. Both the mother’s treating professionals are of course relying in part on the history provided to them by the mother but they both provide strong opinions as to the mother’s current parenting capacity based upon their clinical observations and treatment of the mother.

3. There is a difference of opinion between the mother’s treating psychologist and her treating psychiatrist as to her diagnosis, however both the mother’s professionals believe that her parenting capacity is currently unaffected by any mental illness.

THE MOTHER’S USE OF DRUGS

1. On 7 March 2018, by a means which the father does not disclose, the father “inspected [the mother’s] mobile phone and took photographs of messages [he] read”. The father says that what he read on the mother’s mobile phone concerned him and convinced him that the mother is now using illicit drugs regularly. The father tenders at tabs 7 and 8 of his tender bundle, messages which are to “Bags 2 chappo” dated 2 February, 3 February, 9 February, 11 February, and to “Bags” dated 16 February, 17 February, 23 February, 24 February and 25 February.

2. The father’s affidavit asserts that these messages are in 2018. The text messages on their face do not indicate what year they were sent in but I infer the year the father assumes they were sent is accurate.

3. Whilst the mother has filed an affidavit two days after the father’s affidavit which annexes negative drug testing in March 2018, she does not address what is in the father’s affidavit filed 9 April 2018.

4. The text messages are powerful evidence that the mother in the period of the text messages was making arrangements to obtain illicit drugs partly for her own use. The text messages are only on the weekends. On 16 February indicates the mother had “a guy” with her.

5. Of some particular concern is the following string of text messages:

   Mother: heyyy can you get Oxy?

   Bags: Wtf lol nohaha

   Mother: bahaha geeez, so judgemental ha ha wasn’t for me anyway lol

   Bags: Yh i knew lol ill let you know later on

   Mother: Very good! Thanks heaps x

6. That exchange of text messages seems to be a request by the mother to obtain “Oxy”, which is the common name for a serious and dangerous opioid.

7. On 3 February Bags told the mother, “ps. Gna change number soon”. It seems changing contact telephone numbers was part of the modus operandi of the mother’s dealer.

8. In an exchange with Bags on Saturday 17 February, the mother expresses the view that it would be cool to hang out with her dealer for longer than 5 minutes. They discuss the notion of spending some time together at her home, she commenting that she would need to make sure she didn’t have the kids.

9. Exhibit 4 is a toxicology report dated 9 January 2018 of a urine sample from the mother indicating that no drugs were detected. A similar result was returned (Exhibit 9) for 9 April 2018. The mother has also undertaken drug testing on 23 March, 3 April and 9 April. The results of that testing have been negative. The mother has agreed in the future to continue random drug testing.

MOTHER’S DISCIPLINE OF THE CHILDREN

1. Both parties have physically disciplined the children. The father highlights occasions where he asserts that the mother has given the children multiple smacks in a row in circumstances where the mother “would lose it”. The father sets out the text of a message sent by the mother to him on 30 October 2017 in which she admitted that she had “lost her shit” at [one of the twins] and had “smacked her more than I have ever smacked any of the kids”. The text message included the statement, “I am scared of killing one of the kids”. The text message also included the information that “all of the kids came home feral and haven’t stopped. 3.5 hrs of yelling, arguing, crying, MESS and pure, WTAF am I doing with my life”.

2. The last part of that message needs to be understood in the context of the string of text messages that were sent on 30 October 2017 at about 7:11 pm. This was a Monday night and the father was not at home. The mother was looking after the four children in the household by herself in circumstances where she had correctly formed the view that her marriage was ending and one of the twins who was at that time just over 2 years of age had presented with persistently difficult behaviour over an extended period that evening. The father did not report that the 2 year old suffered any physical injury or bruising as a result of the mother hitting the child on that occasion. Ms L formed the view that these types of behaviours were akin to bereavement.

MR F

1. The mother is currently seeing Mr F. She met him whilst she was hospitalised in January 2018. They are in the early stages of a relationship. The mother asserted that the father initially expressed no concerns about the new relationship and that Mr F was present on about four occasions at changeover.

2. The mother says that Mr F completed an inpatient program at J Hospital for opiate and cocaine addiction on 22 March 2018. He has a secondary diagnosis of major depressive disorder/bipolar type 2/chronic pain. He is undertaking a ten week outpatient program.

3. The father reports there have been some ugly and confronting interactions between Mr F and himself.

4. The father took photographs of Mr F’s bag which was left in the mother’s motor vehicle which contained boxes of pills and prescriptions (one for Oxycodone). The bag also contained a set of brass knuckle dusters.

5. The father tendered various documents relating to Mr F from subpoenaed material.

6. The police records indicate that in January/February 2016 Mr F had been in the M Clinic for about four weeks as a patient being treated for codeine and cocaine addiction. On 1 February 2016, because of Mr F’s high emotional state, he rang police who attended his premises. He told them that if the police had not arrived to help him he would have got into his motor vehicle and driven at high speed into a pole. The police organised for Mr F to be taken by ambulance to N Hospital where they record that the intention was to admit him as a voluntary patient.

7. Exhibit 6 is a referral from O Hospital to P Hospital dated 3 January 2018 for a private admission of Mr F for the monitoring of opioid withdrawal. Mr F had been admitted to O Hospital on 30 December 2017 following an intentional polypharmacy overdose with suicidal intent. He had been admitted to the high dependency unit at O Hospital. Mr F’s recorded background history included chronic back pain complicated by opioid misuse and dependence, Benzodiazepine dependence, Depression, Anxiety, Bipolar disorder, and Hypertension. Mr F had been prescribed Methadone. I infer the admission to P Hospital did not go ahead because Exhibit 4 is a medical discharge summary for Mr F indicating that between 4 January 2018 and 20 January 2018 he was in the J Hospital (where he met the mother). The discharge summary indicates that Mr F’s suicidal attempt was precipitated by chronic pain and financial difficulties.

8. The COPS entry for the incident on 18 March 2018 indicates the father had called the police to the mother’s home after there had been an initial physical altercation between the mother and the father which started when the mother was pushed into the wall by the father. After the father had come to the matrimonial home on this day, Mr F had attended the property. The police record that the father told them that he held fears for the children’s safety due to the mental disability of the mother. The police record that they held no fears for the children. The police spoke to everybody and asked the father to leave without the children.

9. The police records indicate that Mr F was involved on 26 January 2018 in an incident in a bar which led to him being charged with a number of offences arising from the following alleged behaviours:

   81.1.Whilst waiting in line to order a drink, reaching out with his hand and grabbing a female on the buttock;

   81.2.Being involved in a short verbal argument with that female’s boyfriend and punching him on the left side of his head above his ear and causing swelling and a small laceration; and

   81.3.Being in possession of 0.4 grams of cocaine.

10. The police record that on this day Mr F was moderately affected by alcohol and was highly belligerent and agitated with police. The outcome of the charges against him for indecent assault, assault and the drug offence is not known. Mr F’s actual criminal record was not before me.

11. The relevance of the mother’s relationship with Mr F may play out over time. The father made the point (presumably going to the mother’s judgment in forming a relationship when she was in a vulnerable emotional state) that the mother had met Mr F whilst they were both in J Hospital. It is probable Mr F has played some role in the mother’s illicit use of recreational drugs on weekends when the mother has not had the children. The relevance of the relationship in these interim proceedings is minimal as the mother has agreed that, pending further order, Mr F will not be brought into contact with the children whilst the children are living with the mother and the mother will submit to drug testing.

STATUTORY CONSIDERATIONS

1. Neither parent raises an issue about there being a benefit to the children of having a meaningful relationship with each of them.

2. It is the father’s case that the children are currently at risk of physical or psychological harm as a result of possible exposure to abuse or neglect by their mother. The father’s concerns are based on his assertion as to the mother’s current mental status, her use of illicit drugs, the risk of the mother losing control when physically disciplining the children and her relationship with Mr F.

3. The father concedes that he only first raised concerns about the children’s safety whilst they were in their mother’s care in a letter written by his lawyers to the wife’s lawyers dated 21 March 2018. He claims he did not know about some of the issues now giving him concern about the safety of the children in their mother’s care until that time but most of the significant matters upon which he relies were known to him well prior to that time.

4. The father asserts that when the children’s time with their mother has occurred on weekends, they’re often at the mother’s parents’ home or Ms Q (a friend) is present and that has given the father comfort.

5. The father asserts that he formed the view, after the incidents that happened in 2017, that any attempt at self-harm by the mother was a “cry for help or perhaps an attention-gathering matter” and that it had arisen as a result of the breakdown of their relationship. The father says that he has now formed the view that the mother’s problems and difficulties are “much greater”. The father asserts that he had regular facetime contact with the children on a daily basis and he used that as a monitoring mechanism to make an assessment as to the mother’s stability. The father asserts it was only from 17 March 2018 that he became increasingly concerned about the mother, who he asserted had become increasingly erratic and aggressive towards him. He does not detail the nature of that aggression from 17 March 2018 but says that it arose when he attempted to interrogate the mother in relation to her treatment from, and her relationship with, Mr F.

6. The evidence of the mother’s psychologist and psychiatrist is that she is not at a risk of harm to herself and others and that she is compliant with recommended treatment. The mother has not been candid with her psychiatrist since he records that she has not used illicit substances when there is strong evidence that that is not so during February 2018 when the children have not been with her.

7. The father concedes that on a few occasions prior to the children being born he took recreational drugs with the mother (him saying that he was “pressured” by the mother to do so). The father says he currently does not use illicit drugs and says the last time he used any illicit drug was about 12 months ago. There is an inconsistency in the father’s evidence in [65] and [68] as to the number of times he took illicit drugs. The drug that the father took 12 months ago was cocaine. Apart from that, during the relationship the father was unaware that the mother had been involved in any recreational use of illicit drugs. The father says that since separation friends have reported to him that the mother took illicit drugs without him knowing during the time that they were together.

8. The father now has a concern that the mother is regularly using cocaine and other drugs which he believes to be either MDMA or ecstasy. The father has been available to observe the mother throughout the relationship and has had numerous opportunities to observe her since the separation.

9. There are two references in the father’s evidence about his concern of drugs affecting the mother’s parenting capacity. At [53] of his affidavit he says that since the beginning of March 2018 he has noticed the mother “being erratic, aggressive and deceitful towards him when doing pick up and drop off” and he suspects that that might be either because she is taking drugs or because she is not coping with the children. At [76] the father does assert that his concerns about the mother’s use of illicit drugs regularly are based upon his review of the text messages and “my observations of [the mother’s] significant change in behaviour”. Notwithstanding the precision, detail and length in other parts of the father’s affidavit, he gives no evidence as to what he means by “significant change in behaviour”.

10. The mother has agreed to subject herself to a future drug testing regime.

11. Throughout the children’s lives, and up until January 2018, the mother was the primary carer of the children. The father assisted with the care of the children when he was able to do so outside work hours. The mother’s employment during the marriage was limited to part-time work consistent with her caring role for the children.

12. The children also have a good relationship with their father.

13. The two elder children go to the same school (in year 1 and kindergarten). The twins attend day care on Mondays and Tuesdays.

14. The father currently works full-time in a 9 to 5 job during the school week.

15. For over six years, from the birth of the first child, the father worked shift work. He says that that meant he was more available to look after the children than had he been working on a regular 9 to 5 basis. There is no doubt however that the mother is a person who was primarily responsible for the care of the children and the management of the household. The father has been working in a normal 9 to 5 job since the end of 2017. He says from the beginning of November he has taken leave on six different days to care for the children.

16. At the time of the separation the father moved from Suburb R to his parents’ home at Suburb S.

17. The father has calculated that since 22 December 2017 the children have sent 59 nights with him and 22 nights with their mother. This period of course includes the twelve day period when the mother was hospitalised and the period of time since 19 March 2018 when the father has unilaterally decided that the children should not stay with their mother.

18. Since 19 March 2018 the children have ordinarily lived in the home of the paternal grandparents. The boys have their own bedroom and the twins share a bedroom with their father. The elder children have continued to go to their same school which is about a 15 minute drive from where they are now living.

19. The father currently works full-time. His proposal is that when he is at work his parents would care for the children. Both his parents are retired and are available to assist in the care of the children.

20. The grandparents on both sides play an active role in the children’s lives.

21. The father gives evidence that on 6 November 2017, when the father became alarmed as a result of the text message that he had received from the mother and urgently needed to get home, it took him about one hour in travel time. If that was the average travel time, it would mean that on each occasion the father left the matrimonial home for work he was on the road for two hours a day in addition to the time he spent at his full-time employment.

22. The communication between the parents, as represented in the sample of the exchanges in text messages between them, is respectful and cooperative.

23. The mother asserts in her case outline that the father has failed in his obligations in respect of the payment of child support and she claims there are arrears of approximately $4,000 owing. A document supporting that contention was provided at the back of the mother’s tender bundle but it is not referred to in the mother’s affidavit or the index to the tender bundle.

24. It is the mother’s view that the father’s unilateral retention of the children (and his calling the police to the matrimonial home on 18 March) distressed and traumatised the children.

25. Both parties have demonstrated dedication to the responsibilities of parenthood.

26. There has not been any family violence order. The mother asserts the father was controlling and verbally and emotionally abusive. I have no ability to make any assessment as to the strength of that assertion in the context of this interim hearing.

27. The father reports very minor instances of physical interaction between the parties. He does not give any details as to what happened when the police were called to the matrimonial home on 18 March 2018. If the conclusions of the police as to what happened on that day are accepted on their face, the father played a part in a physical altercation with the mother when trying to remove the children from the home on that day.

28. The mother deposes to the verbal and emotional abuse suffered by her at the hands of the father during the breakdown of the marriage. That reporting however has to be seen through the prism of her depression and mental status at those times.

CONCLUSION IN RELATION TO BEST INTERESTS

1. Neither party sought any interim order for equal shared parental responsibility.

2. The mother is proposing a four night/three night arrangement for three out of four weeks and in the fourth week a five/two night arrangement. As such, what the mother is proposing is that the children be with their father for a substantial and significant time and during periods where his work commitments would not get in the way of him being fully available for the children.

3. The mother, leading up to and immediately after the breakdown of her marriage, struggled to cope with her mental status and the demands placed upon her as the primary carer of the four young children.

4. Concerns exist about the extent of her recreational drug use in February 2018. Her drug testing however in recent weeks is clean. There are also concerns about Mr F’s mental status and drug use and the effect his behaviour might have upon the mother and the children.

5. In the short term however these concerns are dealt with by:

   116.1.The mother agreeing to involve herself in a program of drug testing; and

   116.2.Not bringing the children into contact with Mr F.

6. The father seeks that the children spend only supervised time with the mother. The maternal grandparents reside in Suburb T and work full-time and therefore there is limited availability for them to act as supervisors. The father’s principle alternate suggestion is for a supervising service to be involved but only on the basis that the mother pays for that. I have no evidence that the mother would have that capacity.

1. Apart from the issues raised by the father, there is no evidence that the mother is not capable of looking after the children. She did that in the period from separation to 19 March 2018 without there being any reports that the children presented in any inappropriate way. They went to school and day care during that period.

2. The father continues to work full-time and consequently would rely significantly upon his parents to care for the children during periods of time when he was at work or travelling to and from work.

3. Given the conditions to which the mother has agreed, I find there is no unacceptable risk in returning the children to be in the primary care of their mother.

PROPOSED ORDERS

1. Neither party seeks block periods during school holidays but those arrangements could be reached by agreement between the parties.

2. I will generally adopt the drug testing orders in the form sought by the father.

3. The father has also sought some consequential orders which seem appropriate and sensible and I will make orders in those terms.

I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 17 April 2018.

Associate: 

Date:  17.4.2018