Storey and Terry
[2010] FMCAfam 258
•18 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| STOREY & TERRY | [2010] FMCAfam 258 |
| FAMILY LAW – Parenting – competing applications by mother and father for residence of seven year old boy – competing risks in each party’s household –mental health issues – exposure to illicit drug use – parental neglect – limited capacity by mother to address issues of concern – change of school – consideration of whether to make orders on a final or interim basis. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61C, 61DA & 65DAC |
| Applicant: | MR STOREY |
| Respondent: | MS TERRY |
| File Number: | SYC 7650 of 2008 |
| Judgment of: | Sexton FM |
| Hearing dates: | 28 January; 15 & 16 February 2010 |
| Date of Last Submission: | 16 February 2010 |
| Delivered at: | Sydney |
| Delivered on: | 18 March 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Alexander |
| Solicitors for the Applicant: | Verekers Lawyers |
| Counsel for the Respondent: | Mr Hansen |
| Solicitors for the Respondent: | Ktenas Solicitors And Barristers |
| Counsel for the Independent Children’s Lawyer | Mr Blackah |
| Solicitors for the Independent Children’s Lawyer | Warren Mckeon Dickson Lawyers |
ORDERS
The Independent Children’s Lawyer’s appointment continue for a period of 6 months.
The Mother submit to urinalysis (under supervision and chain of custody) upon request by the Independent Children’s Lawyer on at least six separate occasions during the next 6 month period, when the testing will take place on the same day as the request is made, such urinalysis to be conducted in accordance with the Australian/New Zealand Standard 4308:2001: Procedure for the collection, detection and quantitation of drugs of abuse in urine.
The Father submit to supervised urinalysis (under supervision and chain of custody) upon request by the Independent Children’s Lawyer on at least two separate occasions during the next 6 month period, when the testing will take place on the same day as the request is made, such urinalysis to be conducted in accordance with the Australian/New Zealand Standard 4308:2001: Procedure for the collection, detection and quantitation of drugs of abuse in urine.
The Independent Children’s Lawyer communicate such requests for urinalysis to the Mother and the Father directly by facsimile or by SMS text message.
Each party forward the drug test results to the Independent Children’s Lawyer and the other party’s solicitor immediately upon receipt.
Prior to 1 September 2010, and no earlier than 1 August 2010, the Mother’s solicitor provide written verification to the Independent Children’s Lawyer from the Mother’s treating medical practitioner of the mother’s compliance with recommendations for the treatment of her anti-psychotic illness, including compliance with medication.
The Independent Children’s Lawyer have liberty to apply at 3 days notice in the event of non-compliance with Orders (2), (3), (5) or (6), or a positive drug test result by either party, or for any other purpose.
[X] born [in] 2002 (“[X]”) live with the Father.
The Father have sole parental responsibility for long term decisions about [X].
The Father be permitted to enrol [X] at [E] School.
Each party have responsibility for making decisions about [X]’s day to day care, welfare and development when [X] is in the care of that party.
[X] spend time with the Mother as follows:
(a)During each school term:
(i)Each alternate weekend commencing on the first weekend of the school term from Saturday at 9.00a.m. until Sunday at 4.00p.m. with the exception of the Father’s Day weekend when time will conclude at 9.00a.m. on Father’s Day; and
(ii)Each Wednesday afternoon from after school until 6 p.m.
(b)In school holidays at the end of the first and second terms in 2010:
(i)On Monday, Wednesday and Friday during each week from 9.00a.m. until 6.00p.m.; and
(ii)Alternate weekend time continue.
(c)Subject to compliance with Orders (2), (5) and (6), from the commencement of 3rd term school holidays in 2010:
(i)For one week during short school holiday periods from the first Saturday at 9.00a.m. until the second Saturday at 9.00a.m. unless otherwise agreed between the parties;
(ii)
For two periods of one week, not less than 7 days apart, during Christmas school holidays, by agreement between the parties, but otherwise from 1 January at 9.00a.m. to
7 January at 9.00a.m. and from 17 January at 9.00a.m. to 9.00a.m. on 24 January each year;
(iii)From 4.00p.m. Christmas Day until 4.00p.m. Boxing Day in 2010, and in all years ending in an even number; and
(iv)From Christmas Eve at 4.00p.m. until 4.00p.m. on Christmas Day in 2011, and in all years ending in an odd number.
(d)On special days:
(i)On Mother’s Day from 9.00a.m. until 4.00p.m.;
(ii)On [X]’s birthday, if it falls on a day he is with his father, from after school until 6.00p.m. if a school day, or 9.00a.m. until 4.00p.m. if a non-school day;
(iii)On the Mother’s birthday from after school until 6.00p.m. if a school day, or 9.00a.m. until 4.00p.m. if a non-school day and it is not otherwise a day on which the Mother is caring for [X];
(iv)On each of [Y] and [Z]’s birthdays from after school until 6.00p.m. if a school day, or 9.00a.m. until 4.00 p.m. if a non-school day and it is not otherwise a day on which the Mother is caring for [X]; and
(v)On any other special day by agreement between the parties.
(e)[X]’s time with the Mother be suspended from 9.00a.m. until 4.00p.m. if [X]’s birthday falls on a weekend when [X] is spending time with the Mother.
(f)
[X]’s time with the Mother be suspended from 9.00a.m. until
4.00 p.m. if the Father’s birthday falls on a weekend when [X] is spending time with the Mother.
(g)[X]’s time with the Mother be suspended from 9.00a.m. until 4.00p.m. if Ms S’s birthday falls on a weekend when [X] is spending time with the Mother.
(h)At any other time or alternate time by agreement between the parties.
Except as provided in Order (14), the Mother collect [X] at the commencement of time periods, from school or the Father’s home, whichever is applicable, and the Father collect [X] from the Mother’s home at the conclusion of [X]’s time with the Mother.
Until the Mother regains her driver’s licence, the Father deliver [X] to the Mother’s home on Wednesday afternoons during term time, and during all school holidays, in addition to collecting [X] at the end of his time with the Mother.
Subject to compliance with Orders (2), (5) and (6), from the commencement of the 3rd term school holidays in 2010, [X]’s weekday and weekend time with the Mother be suspended during school holidays.
[X] have telephone communication with either party at any reasonable time, but before 7.30 p.m. if a school night, and unless an emergency, no more than once a day.
The Mother be restrained from collecting [X] from school before the end of the school day.
Each party be restrained from being under the influence of, or using any illicit substance when [X] is in that party’s care, and each party do all acts and things necessary to ensure that [X] is not exposed to any illicit substance, including but not limited to coming into contact with any person who is under the influence or using an illicit substance.
The Mother take all medication, including anti-psychotic injections prescribed for her and if advised to do so, attend for treatment and management through the mental health team at [S] Hospital or such other public hospital as is recommended to her by her treating doctor or health professionals.
Each party be restrained from physically disciplining [X] or permitting any other person to do so.
Each party ensure [X] is appropriately supervised at all times by a responsible adult and each party be restrained from leaving [X] overnight with anyone under the age of 18 years, including either of [X]’s sisters.
Within 72 hours of the date of Order, the Father authorise the Principal of [X]’s school to provide the Mother with copies of [X]’s school reports, newsletters, notices of events, letters about his progress at school, and inform the Mother of any school activities which parents are invited to attend.
Each party be at liberty to attend functions at [X]’s school, to which parents are invited and meetings with staff at the school.
Each party be at liberty to telephone [X] at any reasonable time and each party facilitate [X] calling the other party at any reasonable time.
The Father refrain from making critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of [X] and the Father do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of [X].
The Mother refrain from making critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of [X] and the Mother do all reasonable things necessary to ensure that no other person makes any critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of [X].
The Father ensure the Mother is kept informed as soon as is reasonably practicable of:
(a)Any significant medical event suffered by [X], whilst in the care of the Father;
(b)Any medication that has been prescribed for [X];
(c)Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding [X];
(d)Any social, school or religious functions which [X] is to attend and which parents are expected to attend;
(e)The residential address of the Father;
(f)The telephone contact number of the Father; and
(g)Any other significant matter relevant to [X]’s welfare.
The Mother ensure the Father is kept informed as soon as is reasonably practicable of:
(a)Any significant medical event suffered by [X], whilst in the care of the Mother;
(b)Any medication that has been prescribed for [X];
(c)Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding [X];
(d)Any social, school or religious functions which [X] is to attend and which parents are expected to attend;
(e)The residential address of the Mother;
(f)The telephone contact number of the Mother; and
(g)Any other significant matter relevant to [X]’s welfare.
Each party notify the Independent Children’s Lawyer of any change of contact details including change of their mobile telephone and facsimile numbers within 24 hours prior to any change.
The Mother be restrained from causing or permitting [X] to have any contact with Mr T.
Pursuant to section 65DA(2) of the Family Law Act 1975 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 Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
IT IS NOTED that publication of this judgment under the pseudonym Storey & Terry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC7650 of 2008
| MR STOREY |
Applicant
And
| MS TERRY |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties lived together from January 2000 until November 2003. Their only child [X] was born [in] 2002 and is now aged 7 years. [X] attends [M] School in Year 1. The parties’ arrangements for [X] after separation are a matter of dispute. It is common ground that [X] lived primarily with his Mother during 2008 until 13 November 2009, when he moved to his Father’s primary care. The parties have been unable to agree on [X]’s future parenting arrangements.
The evidence discloses risks for [X] whatever decision the Court makes. On the one hand, the Father has a history of daily use of amphetamines for a number of years until November 2007, and
Dr Rikard-Bell, psychiatrist, the expert in these proceedings, believes the Father is at risk of relapse, particularly if faced with significant stress. On the other hand, the Mother has a psychotic illness, has used illicit drugs in the past, and may still be consuming drugs. The Mother’s two teenage daughters from a previous relationship, have, under the Mother’s sole care, developed significant social, educational and behavioural problems.
The Father seeks orders providing for [X] to live with him, for sole parental responsibility, for [X] to change from [M] School to [E] School, a school nearer to where he is living, and to spend time with the Mother, but not overnight. The Mother seeks orders for equal shared parental responsibility, equal shared care, special days and half school holidays and for [X] to remain near her home at [M] School, where he presently attends. The Independent Children’s Lawyer seeks orders providing for the parties to share parental responsibility, for [X] to live with the Father, spend 3 nights on alternate weekends with the Mother, an afternoon each week and half school holidays, and for [X] to remain at [M] School.
Dr Rikard-Bell prepared two reports. In the first, released in November 2009[1], he recommended that [X] live on an equal time basis with each party. He had concerns about risks to [X] in each party’s household and formed the view that equal time provided the appropriate balance. In his second report released in January 2010[2], Dr Rikard-Bell revised his opinion, and recommended that [X] live with the Father and spend time with the Mother. He makes no firm recommendation as to whether that time should include overnights because, he says[3], “it’s extremely difficult to be able to make a certain assessment of the extent to which Ms Terry has become destabilised.”
[1] Exhibit 1
[2] Exhibit 2
[3] Exhibit 2 at page 7
The Father’s counsel submits that the Father is against overnight time with the Mother because he believes the Mother continues to use illicit drugs. Counsel submits the matter should be adjourned part-heard to enable the Mother to undergo hair follicle testing to establish whether she has been using illicit drugs in the last few months. The Mother’s counsel supports this approach, but says the Mother cannot meet the $450 fees involved, or any part of those fees. Counsel for the Independent Children’s Lawyer opposes any order for future drug testing and submits that the matter should be finalised.
The Father has turned 36 years since the date of hearing, and since the end of November 2009 has been living in rental accommodation with his fiancé, Ms S at [N]. The Father is working full time as a [omitted] at [K]. Ms S, aged 33 years, is [qualified in the Childcare Industry]. At the time of hearing, she was about to re-commence full time work [in the Childcare Industry] in [H].
The Mother is 35 years of age. She has two daughters from a previous relationship, [Y] aged 16 and [Z] aged 14 years. That relationship ended when [Z] was born. The Mother lives with her daughters in a Housing Commission townhouse in [M]. [Y] is subject to a Court ordered curfew and an Apprehended Violence Order as a result of a complaint from a close neighbour. The Mother is not in the paid workforce and is supported by Centrelink benefits.
Short history of proceedings
The Father initiated these proceedings by application filed in December 2008. On 24 February 2009, the matter first came before the Court. An Independent Children’s Lawyer was appointed and orders were made for the issuing of subpoenas. The matter was adjourned for mention to 1 April 2009.
On 1 April 2009, the Court noted the significant issues as the Mother’s capacity to ensure [X] (then aged 6 years) attends school, the Mother’s mental health and each party’s use of illicit substances. Orders were made for [X] to undergo an educational assessment, and a Part 15 expert was appointed to address, in particular, the impact of [X] missing significant periods of school. The Mother was ordered to ensure [X] attended [M] School each day unless there was a medical reason for his absence supported by a medical certificate. The Mother was to ensure [X] was not left in the care of her daughter, [Y]. The court ordered each party to undertake urinalysis at the request of the Independent Children’s Lawyer. By consent, interim orders were made for [X] to live with the Mother, for the parties to have equal shared parental responsibility, and for [X] to spend time with the Father from after school Friday until before school Monday on each alternate weekend, and for half the school holidays. The matter was listed for final hearing on 28 and 29 January 2010.
On 23 November 2009, the matter was re-listed at short notice by the Independent Children’s Lawyer. The Court was advised that [X] was now living with the Father in contravention of the consent orders made on 1 April 2009, as a result of information the Father had received from an officer of the Department of Human Services. The matter was adjourned to 4 December 2009 for possible interim hearing to allow the Independent Children’s Lawyer the opportunity to issue subpoenas to the Department of Human Services and the NSW Police. The Court ordered a subpoena issue for Mr F, Manager Casework [S] Department of Human Services, to give evidence on the adjourned date. The interim orders made on 1 April 2009 were varied to the extent necessary for [X] to live with the Father, and spend supervised time with the Mother each Tuesday, Thursday and Sunday from 3.30p.m. to 5.30p.m. The Father was ordered to ensure [X] attended [M] School each day, and the Mother was restrained from attending at that school.
On 4 December 2009, Mr F from the Department of Human Services gave evidence by telephone. Further interim orders were made by consent providing for [X] to spend time with the Mother every Monday, Wednesday and Friday from 9.30a.m. until 6.00p.m. unsupervised. Restrictions were placed on the Mother as to who she could permit into her home when [X] was present. The Court ordered a further report from Dr Rikard-Bell to enable an observation of [X] with the Father’s fiancé, and to enable Dr Rikard-Bell to consider the matters which had arisen since his first report.
On 28 January 2010, the final hearing commenced. On 29 January 2010, the Mother’s counsel advised the Court the Mother was unwell and would be unable to attend court. A medical certificate stated the Mother had symptoms of “acute gastroenteritis”. The hearing was adjourned to 15 February 2010 for a further two days and each party was directed to file and serve a short affidavit in relation to events which had occurred since the commencement of the hearing on
27 January 2010. The Court made interim orders providing for [X] to spend time with the Mother each Tuesday and Thursday from after school until 7.00p.m., and each Sunday from 10.00a.m. until 5.00p.m. The Court ordered the Mother to submit to urinalysis under supervision by no later than 1.00p.m. on 30 January 2010, and each party was ordered to submit to urinalysis within 24 hours of being requested to do so by the Independent Children’s Lawyer.The Mother did not comply with the Order of 29 January 2010 providing for her to undertake urinalysis by 1 p.m. on 30 January 2010.
Legal principles
The principles governing this case are set out in Part VII of the Family Law Act 1975. Section 60CA provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3). Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, I must consider all the factors before making a determination. 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 it is possible to do so consistently with the child’s best interests being the paramount consideration.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture.
The Primary Considerations
The benefit to the child of having a meaningful relationship with both the child’s parents.
[X] has spent substantial time with each parent throughout his life. There is no dispute that, consistently with Dr Rikard-Bell’s observations, [X] is strongly attached to each of his parents and enjoys a close and loving relationship with them both.
The Mother originally sought orders providing for [X] to live with her and spend alternate weekends and half school holidays with the Father. At hearing, she sought an order for equal time, week and week about with each party. The Father sought an order for [X] to live with him, and to spend time with the Mother for 4 hours on each of the two weekend days in alternate weeks, and for an afternoon each week.
The Mother’s counsel submits that [X] cannot maintain a meaningful relationship with the Mother on the basis of the Father’s proposal. In cross-examination, Dr Rikard-Bell said that he had formed the view that the Father recognises the importance of [X]’s relationship with the Mother and is committed to [X]’s emotional welfare in that regard.
Dr Rikard-Bell said the Father was focussed on the need to keep [X] safe when with the Mother, but his proposal may be too conservative. Dr Rikard-Bell does not believe [X]’s relationship is at risk on the Father’s proposal but agreed [X] would miss his Mother if he lived with the Father and perhaps [X] needs more time with the Mother than the Father has proposed. I accept Dr Rikard-Bell’s evidence on this issue and give some weight to his views.
The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.
The central issue for [X] in the Father’s household is whether the Father can remain drug free and, to a lesser extent, the stability of the household.
The central issue for [X] in the Mother’s household is whether he is likely to be exposed to the Mother’s illness, her illicit drug use, to problems associated with his sisters, to adults involved in illicit drug use, and/or to parental neglect.
(A) Risks in the Father’s household
The Father says in cross-examination that he used ICE daily from
18 May 2003, when [X] was 7 months of age, until 23 November 2007 at a cost of $50-$100 a day, and has not used since. He claims to have paid for the drugs by working for cash and borrowing from his family. He said “I would do people favours”. He paid no child support but says he used to help the Mother “when she needed something”. He has no criminal convictions. Ms S says she has never used an illicit drug in her life and “I would not be with him if he used.”Dr Rikard-Bell says ICE creates a more psychological addiction than physical addiction which occurs with heroin and other opiates. He says “4 years [is] the magic time” for long term stability, although less time is usually needed for psychological addiction than physical addiction when predicting long term stability. Dr Rikard-Bell says the critical factors for long term stability are employment, a strong relationship and stable accommodation which the Father has established. In his view, the Father is at risk of relapse if he is faced with a major stress, such as loss of employment or relationship breakdown.
The Father concedes in cross-examination that he is not completely cured of his drug addiction and “I know I must work on my addiction every day”. The Father has undertaken urinalysis in accordance with the Court’s orders, with one minor exception when he was 2 hours late[4], and I am satisfied he is not currently using illicit drugs. However, I am also satisfied the Father is at risk of relapse, particularly over the next year or two, if he is unable to maintain his current stable lifestyle.
[4] Exhibit 3
The Father has been in a relationship with Ms S since early 2009, and they have lived together since the end of November. They acknowledged a disagreement between them early in the morning of New Year’s Day when Ms S asked the Father to leave the house at approximately 5.00a.m. [X] left with him. The Father took [X] to a park near his home and called the Mother to ask her to collect [X] as he was due to spend time with her that day. Ms S said the Father had not been drinking, that she had consumed a few glasses of wine, but although she claimed not to recollect why they argued, I find she was not prepared to discuss the content of the arguments. There was a second occasion in January when Ms S demanded the Father leave the home. [X] again left with the Father, and was well aware that a disagreement had led to the expulsions. The Mother says [X] told her “Ms S kicked us out” referring to himself and the Father.
Ms S says she has never asked [X] to leave, only the Father. Ms S said there have been no other occasions when she has asked the Father to leave the home. The Mother referred to a more recent occasion when she says [X] reported being “kicked out” but the Father says he and [X] were outside playing with [X]’s remote control car and the door slammed. I found the Father a truthful witness and accepted his evidence.
I find a measure of vulnerability in the Father’s relationship with Ms S to which I have regard.
(B) Risks in the Mother’s household
It is common ground that the Mother suffers from a mental illness.
Dr Rikard-Bell reviewed the Mother’s medical history[5]. From 2002, the Mother has been treated for depression. She was hospitalised at [S] Hospital in 2003, 2004, for 12 days in April 2007, and for 5 weeks in September/October 2007. The hospital notes record that she suffered from a “paranoid psychosis with depressive features” and in September 2004 suffered “paranoid ideation and thought broadcasting” that responded well to treatment. Dr Rikard-Bell notes that in April 2007, the Mother was admitted to hospital again with a “low grade psychotic illness as a voluntary patient.” The Mother was placed on a Community Treatment Order. Dr Rikard-Bell records that in September 2007, the Mother was noted to have “Capgras Syndrome which refers to a delusion that one or more of her family are recognised as imposters.”; “She was diagnosed with a long history of paranoid schizophrenia and under the care of [S] Community Treatment Team.” Dr Rikard-Bell noted the Mother’s recorded history of poor compliance with treatment and poor insight, then intravenous amphetamine use. A Community Treatment Order commenced on17 October 2007, and the Mother complied with that Order. In 2008, the Mother reported having “thoughts in my head” but said it was temporary. In March 2009, Dr G noted “getting psychotic symptoms back”[6]. The Mother’s Community Treatment Order expired in November 2009. The Mother is now given injections of Flupenthixol every 3 weeks by her General Practitioner.[5] Exhibit 1
[6] Exhibit 7
At interview in September 2009, Dr Rikard-Bell said about the Mother that [7] :
She appeared to have reasonable insight into her problems and issues although there was a sense that she didn’t fully understand that she had a possibly life long chronic illness and that if she were to relapse this could have a major impact on the children.
[7] Exhibit 1 at page 4
Dr Rikard-Bell formed the view at that time[8] that the Mother was providing well for [X]. He states:
I believe that she is quite able to care for him when she’s well and free of psychosis. However, she does have some challenges. She has a chronic psychotic illness which can affect her ability to make difficult parental judgments and decisions….
However, the reports that the home is in a poor state of care and of great mess is a concern. It’s not clear to me that Ms Terry has stopped using speed altogether….. I do have concern about her being able to cope in the long term, particularly with the challenge of teenage years. She seems to be struggling with [Z] and [Y] in their teenage years which are a time of much more sophisticated interpersonal requirements for the parents.
I have major concerns that she may stop taking injection for medication and this may put her at risk. If the CTO doesn’t continue I would have major concerns about her remaining compliant with medication.
[8] Exhibit 1
The Mother is not currently under the care of a psychiatrist. Mr B from the [S] Mental Health Team told Dr Rikard-Bell that in September 2009, the Mother appeared to be progressing satisfactorily. She was subsequently discharged from case management. The Mother told
Dr Rikard-Bell in September 2009 that she wanted to try being off the medication as she felt well.[Y] and [Z] said to Dr Rikard-Bell, “We can tell when she’s overdue on the needle. She gets too happy.” Ms S has observed the Mother to be “more agitated” as the time for her injection approaches.
Dr Rikard-Bell says the Mother’s illness is unpredictable. In his view, the Court could have a degree of confidence in the Mother’s mental health stability if the Mother is taking her medication without interruption, is under the care of a mental health professional and is not consuming any illicit drugs. Consuming drugs will exacerbate her condition. I accept Dr Rikard-Bell’s evidence.
The Mother’s only reference in her affidavit material to past drug use is as follows[9]:
I previously experimented with drugs, mainly speed, although I do not use any illegal drug any more. I have never used drugs in front of the children.
[9] At paragraph 16 of Mother’s affidavit sworn 22 December 2009
The Mother told Dr Rikard-Bell that she had a history of drug abuse, particularly speed which she took by injection. She told Dr Rikard-Bell she has not used speed since 2007[10].
[10] Exhibit 1 at page 5
Dr Rikard-Bell tells the Court that a urine test will only identify the use of speed if undertaken within 24 hours of use. On 1 April 2009, the Court ordered each party to undertake urinalysis in accordance with the Australian/New Zealand standard within 48 hours of any request by the Independent Children’s Lawyer to do so. On 29 January 2010, the Court made the same order, but with the test to be undertaken within
24 hours of the request, and the Court ordered the Mother to undertake testing by no later than 1 p.m. on 30 January 2010. The Mother’s compliance with these Orders has been entirely unsatisfactory.The Independent Children’s Lawyer requested urinalysis be undertaken by each party on 28 April 2009, 7 July 2009, 18 August 2009,
5 November 2009, 4 February 2010 and 8 February 2010[11]. In May 2009, the Independent Children’s Lawyer (by letter incorrectly dated 19 March 2009), advised the Mother’s solicitor that she had not received the urine test result as requested. She also advised that the Department of Community Services (as then named) had received a report that the Mother had arranged for another person to undertake a urine test on her behalf.[12] By letters of May (date not clarified), 3 June 2009 and 18 November 2009 to the Mother’s solicitor, the Independent Children’s Lawyer again advised the test results had not been received.[11] Exhibit 10
[12] Exhibit 10
The mother annexes copies of negative test results to an affidavit[13] which show collection took place on 5 May 2009, 20 August 2009, 26 November 2009 and 11 December 2009. The mother has therefore failed to comply with the Order of 1 April 2009 in April, July and November in that she has not undertaken the test at all, or not taken it within 48 hours of request. Further, the only evidence as to whether the collection was supervised and done by way of chain of custody is a letter from Dr G dated 19 November 2009 which states “I certify that Ms Terry’s urine screen test was personally supervised by myself.”
[13] See mother’s affidavit sworn on 2 December 2009
The letter does not verify that the August 2009 was supervised and collected in accordance with Australian Standards. The Mother adduces evidence of a negative test result taken in March 2009 under supervision, but this was not the result of a Court order, and given it was undertaken at a time of her choosing, does not assist me to determine whether the Mother was using amphetamines during that period. The Mother concedes she did not comply with the order of
29 January 2010 to submit to a test by 1 p.m. on 30 January 2010. She says she was aware of the Order but had woken with gastroenteritis on 29 January 2010 which continued into 30 January. She denied using drugs on the night of 28 January 2010. She claimed she did not have the urine test because she was going to the toilet a lot and was embarrassed. The Mother says “I have proved I was clean.” The Mother showed no understanding of the significance of undertaking urinalysis within 24 hours of her failure to attend Court for the second day of hearing on 29 January 2010 or of the significance of the timeframe in the Order. Despite the clear objective evidence to the contrary, the Mother denied ever failing to do a test when asked.
The Mother did undertake urinalysis on 9 February 2010[14] in accordance with Court Orders and the result was negative.
[14] Exhibit 4
The Father deposes to observing significant bruising on the Mother’s right arm in December 2009, covering an area of 10 cm under her elbow. He says this is consistent with his knowledge of the Mother’s injecting site. The Mother claims the bruising was caused by a blood test. The Father also deposes to observing the Mother, at the same time, with people he recognises as drug dealers. He says “you can tell by looking at them.” The Mother acknowledges a close friendship with Mr T, a drug user currently in prison. She said “[X] really likes Mr T”. I make no finding as to whether or not the Mother was injecting drugs in December 2009.
There are numerous notes in the Department of Human Services’ files that contain allegations from third parties that the Mother has been using illicit drugs until recently. These reports have not been verified.
On the objective evidence available, I am unable to make a finding that the Mother is not using illicit substances.
Dr Rikard-Bell says that if the Court believes there is a real risk the Mother is using drugs then [X] should not spend overnight time with her. If there is an acceptable risk or no risk, then [X] should spend one overnight on the alternate weekend.
The Department of Human Services received 27 risk reports in relation to the mother’s household between September 2004 and 13 October 2010[15]. Three files from the Department were produced on subpoena and tendered in evidence, with reports dating back several years.
[15] Annexure A to father’s affidavit sworn on 21 December 2009
The letter from Manager Casework Mr F of the [S] Office dated
13 November 2009 states:
The risk of harm reports that Community Services have been receiving have been escalating… [X] has been exposed to chronic alcohol and drug abuse by his mother and recently siblings.
[X] has been exposed to ongoing domestic violence between his mother, her partner and other people in the complex…undesirable people frequenting Ms Terry’s premises… reports…that Ms Terry held a party at her home that went on for a few days. Alcohol and drugs were supplied at that party where Ms Terry allowed her teenage daughters who are 13 and 15 years to participate in the drinking, smoking and drug taking.
On 17 September 2006, the police report attending a Park in [suburb omitted]. [Y], at aged 12 years, was one of 10 young people under 15 years in the park. The police believed [Y] had been drinking alcohol and told them lies about her drink “being spiked” when she asked to go to hospital. The Mother said in evidence that she accepted [Y]’s version of events. She was not concerned that [Y] was not where she said she would be. She said, “kids do that. I know a lot of kids who say they’re somewhere and go somewhere else.”
On 31 July 2008, the maternal grandmother called the DOCS helpline. She was concerned the Mother had recommenced drug use. She reported that none of the children were attending school. [Y] had been wandering the streets at night and attended the hospital’s emergency department after hurting her arm. The notes say, “house in a terrible state.”
In February 2008, the maternal grandmother reported [Y] smoking “with apparent approval from Ms Terry.”[16] The Mother acknowledges that [Y] smokes, as she does, and that the Mother cannot do anything about it. In 2008, her Year 9 year, [Y] failed to attend school at all from 7 May 2008 until 15 August 2008, and in second semester that year she missed 67 days, 57 of which were unexplained.
On 15 February 2008, [Y] was suspended for four days “for aggressive behaviour.” [17][16] Exhibit 11
[17] Exhibit 6
The Mother says she took [Y] to school each day but [Y] would leave before school started. In cross-examination, the Mother accepted no responsibility for [Y]’s difficulties at school, nor did she accept [Y] had any responsibility for her own conduct. She spoke of [Y] not getting on with a particular teacher and [Y] having a falling out with a girl.
I found her explanations for [Y]’s problems implausible and naïve. [Y] left school permanently at aged 14, is now 16 years of age, and unemployed. Recently, [Y] had a fight with a neighbour who lodged a complaint for an Apprehended Violence Order against her. [Y] sent a threatening text to the neighbour’s daughter. An Apprehended Violence Order was granted and for a time, [Y] was unable to live at home because she was prohibited from being in such close proximity to the home of the victim. She was and (it is not clear) may still be subject to a Court imposed curfew. The Mother again made light of [Y]’s behaviour, but had not herself checked on the content of the text message.[Z] was also the subject of a suspension at [M] School for “extremely elevated disruptive behaviour”. The Department record of a telephone conversation with [Z]’s School Principal in May 2009 notes[18] that the Principal:
… describes [Z] as rude and abusive. [He] stated that [Z] has extremely poor attendance and her mother has been legally prosecuted for [Z]’s poor attendance… incidents of [Z] behaving in a physically violent manner towards other children at school.
[18] Volume 2 of Exhibit 8
She has since been transferred to the [C] School, but reports from that school reveal her poor attendance and poor performance.
The maternal grandmother says “the girls walked all over their Mum”. She says both girls are “very defiant”.
According to Ms S, the girls are disrespectful to adults, and [X]’s remarks about his sisters to her are “not positive”. On one occasion, Ms S reports the two girls and the Mother shouting at her. Ms S will not permit [X]’s sisters in their home.
The Mother’s counsel submits the girls are the product of their early upbringing affected by the Mother’s mental disturbance and that the Court should not infer that [X] will follow the same path.
The Father told Dr Rikard-Bell the Mother’s home is in a “very poor state”. The Father reports finding cat faeces, ash trays and old food in [X]’s room at his Mother’s home and [X]’s sheets being “stained and putrid”. The Father says the home smells of smoke as the Mother allows all and sundry to smoke inside. The mother’s mother told
Dr Rikard-Bell, “the house is a hell of a mess but they’re teenagers aren’t they?”The Father claims [X] plays unsupervised on the street. The Mother says [X] likes to play with his friends in the complex and an adult is always in the area. The Mother says she whistles towards the park when she wants [X] back. Ms S has seen [X] without shoes in the street when she has arrived to collect him.
Dr Rikard-Bell spoke to Mr F at DOCS in January 2010. He raised concerns about [X] in the Mother’s care. He summarised the case note of 13 October 2009[19] which recorded a caller reporting a 5 day long party at the Mother’s home involving drugs, under age use of alcohol and under age sex. The note states:
[X] came back from contact with his father after the party and went missing. He was found at a friend’s house 4 hours later under a bed saying that he did not want to go back to his mother’s…
[19] Volume 2 of Exhibit 8
Mr F told Dr Rikard-Bell that DOCS had unsuccessfully tried to engage the Mother in an intensive parenting programme known as Brighter Futures.
Dr Rikard-Bell was troubled by the material produced by the Department. He was concerned about [X]’s poor school attendance and the problems of both [Y] and [Z]’s attendance and conduct at school, which he said provided poor role modelling for [X]. He was concerned that [X] was not adequately supervised, that the Mother had poor relations with her neighbours, and that there were strong indications the Mother was not providing adequately for [X] in a number of respects. Dr Rikard-Bell believes there are significant risks of instability with the mother and even if she is currently stable, there are “serious concerns about her ability to support [X] as a teenager.” I have regard to his view.
I am satisfied that [X] is at significantly greater risk of harm and neglect in the Mother’s household than in the Father’s. I give substantial weight to this factor.
The Additional Considerations
The child’s expressed views and the weight those views should be given.
[X] told Dr Rikard-Bell in September 2009 that he wanted to see more of his mother and of his father[20]. Dr Rikard-Bell said in his first report:
I believe he does want to spend substantial time with both parents. He appears very attached to both parents. There appears to be a very strong relationship with Mr Storey. I formed the view that his attachment to both parents was equally strong…
I don’t believe he was clear in his mind about where he should live and who he should spend his time with.
[20] Exhibit 1 at page 7
I accept that since November 2009, [X] has told the Mother that he wants to return to live with her, and [X] has told the Father or his fiancé that he regards their residence as “my home”. I find [X]’s comments consistent with Dr Rikard-Bell’s conclusion that [X] is confused about where he should live.
I am not assisted by this finding in reaching my decision.
The nature of the relationships between the child and each parent and the child and other persons.
I have already noted that [X] enjoys a close relationship with each parent.
I have regard to the father’s and Ms S’s unchallenged evidence that [X] enjoys a happy and comfortable relationship with her, though regrettably Ms S missed her scheduled appointment with Dr Rikard-Bell which meant [X] was not observed with her.
On the basis of the maternal grandmother’s evidence, I am satisfied [X] has a good relationship with her.
Dr Rikard-Bell observed [X] to have a strong relationship with his half-sisters [Y] and [Z] and noted:
The three of them appeared very pleased to be together. They were happy and relaxed.
While I accept his evidence, the difficulty about [X]’s relationship with his sisters is the role modelling which they are providing him and are likely to provide him in the future. As already noted, [Y] has dropped out of school and has been in trouble with the police. [Z] has already been transferred out of a mainstream school to a special school, yet continues to frequently miss school and to behave badly.
I give moderate weight to these findings.
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent.
The Father acknowledges that [X] loves his Mother and needs time with her. He says “every child deserves a mother and a father.” The Mother does not question [X]’s need for time with the Father.
I find each party has largely facilitated [X]’s time with the other party and each party has substantially complied with Court orders providing for [X]’s time with each of them. It is noteworthy that the Mother ensured [X] had regular telephone time with the Father while he was undergoing in-house rehabilitation, and that the Mother left [X] with the Father when she was hospitalised for lengthy periods.
The Independent Children’s Lawyer questions whether the Father and Ms S will support [X]’s relationship with the Mother. By way of example, counsel submits that Ms S is not prepared to allow [X]’s sisters into her home. I am not persuaded the evidence supports this submission.
I am satisfied the parties are likely to comply with court orders about [X]’s time with each of them. I find both parties have shown a degree of flexibility about arrangements in the past when changes have been necessary, and are likely to continue to do so.
The capacity of each parent and any other person to provide for the needs of the child including emotional and intellectual needs.
The Father believes he can offer [X] stability, security and structure in his day to day life. The Father works from 6.45a.m. til 2.45 p.m. each day at [K], has been in rental accommodation in [N] with Ms S since late 2009 and intends to remain in the area long term. He and Ms S are engaged to be married. He grew up in the [S] Shire and has extended family nearby. Ms S is [employed in the Childcare Industry] and was about to commence full time work in [H] at the time of hearing. She will work 7.30 a.m to 3.30p.m. in one week and 10.00a.m. to 6.00p.m. in the other. She can take [X] to school in the alternate week and plans to take him to before school care in the other week and, if he attends [E] School, the Father can collect [X] immediately after school. In an emergency, the Father’s sister can assist as she lives nearby. In cross-examination, the Father said if he and Ms S were to separate, [X] would attend before school care.
The Father deposes to [X] having his own room, to [X] taking pride in keeping his room “spotless” and to [X] being engaged in the tasks and routine of the household. The Father deposes to ensuring [X] is in bed each night at 8.30 p.m. when they read stories together. The Father helps [X] with his homework. He believes [X]’s reading level has improved since he has lived with him and is no longer required to attend the remedial reading class. He says:
He is very proud of his school work and happily goes to school each day.
Ms S deposes to [X]’s behaviour improving and his swearing decreasing since he has been living with the Father. Recently [X] asked “Can you get me more books?” The Father plans to enrol [X] in football when the season starts. They enjoy a range of outdoor activities including going to the beach, riding bikes and fishing.
I accept Dr Rikard-Bell’s view that the Father has good insight into the problems facing [X], and his need to create stability and structure in [X]’s day to day life. I accept that the Father is taking a close interest in [X]’s schooling and academic progress, encouraged and assisted by Ms S. I found the Father an impressive witness.
The mother had a poor memory for events and demonstrated limited insight into the significant issues the Court was required to address in these proceedings. For example, she could not recall whether her Community Treatment Order had expired. She could not recall
Dr Rikard-Bell’s recommendations in his second report or the impact those recommendations had on her. She did not appear to understand why the Court required her to undertake urinalysis on the day after she failed to attend Court on 29 January 2010, and the critical importance of her compliance with that order.
I find each of her children’s schooling records reflects poorly on the mother’s parenting skills. The Mother has been unable or unwilling to ensure [X] or her two daughters have attended school regularly. I do not accept her evidence that the reason [X] missed 18 days in his first semester of school in 2008, and 66 days of second semester, was because “I decided he was too young to start school.” At no time did the Mother discuss [X]’s age with [M] School or her concerns about his age, nor did she seek any advice as to how best to deal with her concerns. She repeatedly excused his non-attendance by claiming he was ill[21]. The Department of Community Services reports finding all the children had stayed away from school on a home visit in 2008, when [X] told the officer he had watched television and DVDs all day. The Mother told Dr Rikard-Bell that [X]’s absences could be partially attributed to her mental illness as “She held a fear others may harm her and [X] may have had similar fears.”[22] While this may be so, the Mother also failed to ensure [X] attended school every day in 2009 while she was under a Community Treatment Order. [X] missed 8 full days and 5 partial days in first semester, he missed 12 days with additional partial absences in the second semester of 2009, before moving to live with his Father. The Mother has also been unable to ensure [X] completes and hands in his homework, and blames [X] for leaving his homework in his bag. The Mother provides no explanation as to why she could not accompany [X] to school with his completed homework and supervise his work being handed in.
[21] Exhibit 5
[22] Exhibit 1 at page 7
I have already referred to the Mother’s inability to ensure [Y] and [Z] attended school. In cross-examination, the Mother said she was surprised [Z] was being moved to [C] School. She appeared to have no understanding of the major problems [Z] faced at school. She said “I thought she was fine.”
I am satisfied the Mother finds it difficult to budget for the household. While the Mother is supported on the limited income provided by Centrelink, the Mother agrees she has sometimes run out of money for basics, days before pay day. At times she has asked the Father for money. While I am not critical of the Mother for struggling financially, or asking the Father for money, I am concerned to read the Department notes which reveal that the Mother has resisted attempts to provide her with practical assistance offered through the Brighter Futures Programme, including assistance with budgeting.
The Mother does not adduce evidence as to her daily routine with [X]. She agrees [X] is sometimes up late and did not contest the Father’s assertion that [X] sometimes calls him after 10 p.m. on a school night. The Mother does not dispute that [X] plays in the street with other children in the townhouses close to where she lives, without her direct supervision, nor that his Father has found him barefoot in the street, still in his school uniform, when he has arrived to collect him.
Dr Rikard-Bell said in his November 2009 report[23] that [X] appeared to be developing well in the mother’s care. However, by January 2010, when he had been provided with access to the extensive subpoenaed material from [X]’s school, [Y] and [Z]’s schools and the Department of Human Services, he changed his position. Dr Rikard-Bell says the mother has difficulty with social judgment and will therefore have particular difficulty with teenage children as demonstrated by the problems she is having with [Y] and [Z]. Dr Rikard-Bell says the Mother needs the assistance of adolescent services, but has poor insight into how services can help. Dr Rikard-Bell found it noteworthy that [C] School has been unable to engage the Mother about [Z].
[23] Exhibit 1
I am satisfied the Father has substantially superior parenting skills to those of the Mother. I give this finding significant weight.
The attitude to the child and to the responsibilities of parenthood demonstrated by each parent.
I find the Father displayed gross irresponsibility as a parent when he consumed amphetamines on a daily basis for several years, yet still drove a motor vehicle, and had [X] in his care.
However, to his great credit, the Father finally decided to change his lifestyle and undertook a long period of rehabilitation. Since November 2007, he has succeeded in avoiding illicit drug use. He has formed a relationship with Ms S who he plans to marry, he has found stable accommodation and full time work. I am satisfied the Father’s attitude to his responsibilities as a parent has dramatically improved and he now demonstrates a strong commitment to [X]’s welfare. Since [X] has been living with him since November 2009, the Father has ensured [X] has attended school each day. I do not regard the Father’s decision to keep [X] home from school in the week of 13 November 2009 as a sign of irresponsibility, when the Department of Human Services had alerted him to the risks to [X] in his Mother’s care.
I find the Mother has demonstrated an unsatisfactory attitude to the responsibilities of parenthood largely because of her social disadvantage, limited education and health issues. I have canvassed many of these issues earlier.
Of particular concern is the Mother’s involvement with Mr T. Despite her denial, I am not confident the Mother is averse to forming an intimate relationship with him on his release from prison in July 2010. She said they were “seeing what might happen” before his incarceration and she is a regular visitor to the gaol. In cross-examination, despite having a very poor recollection of significant events, the Mother could tell the court the precise date of Mr T’s release. She keeps his clothing and toiletries at her home. The maternal grandmother described Mr T to Dr Rikard-Bell as “a bad influence on her” [24]because of his involvement in the drug culture. The Mother has exposed [X] to Mr T and has taken [Y] and [Z] to the prison to see him. I find the Mother showed no insight into the damaging potential influence of such an associate on her children.
The maturity, sex, lifestyle and background of the child and of either of the child’s parents and any other relevant characteristics of the child.
[24] Exhibit 1 at page 8
Dr Rikard-Bell described [X] as “a pleasant child”. Ms S describes him as “respectful” and as a child who “notices everything”.
I find no special characteristics in [X] to which the Court should have regard.
The extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent including spending time with the child, participating in decision–making about his/her welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain the child.
The Father deposes to the Mother having no fresh food in the house and to [X] returning to him hungry, after spending time with the Mother. The Father deposes to the Mother asking him for money from time to time for food or petrol. I am satisfied [X] has not always been provided for adequately in the Mother’s home. However, the Father was out of work for many years during his period of drug dependence and has only returned to the workforce in recent months. I therefore conclude the Father has provided the Mother with very little financial support during those years.
I have previously commented upon the Father’s increasingly responsible attitude to [X]’s welfare and the Mother’s limited ability to make a meaningful contribution to his development.
I have regard to these matters.
The likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other child or other person with whom the child has been living.
[X] has spent regular, if not substantial time with the Father all his life, including periods of several weeks when the Mother has been in hospital. He is nevertheless accustomed to living mainly with his Mother and his sisters in a Housing Commission neighbourhood very familiar to him. [X] has only attended one school, [M] School, proximate to the Mother’s home.
[X] has been living with his father and spending daytime only with his mother since 13 November 2009. The Father says [X] has shown no signs of confusion as a result of the change in his living arrangements and appears happy and well settled in his care. The Father says [X] still sees his friends when with his Mother and still has the security of the same school. The Mother says [X] has often said to her that he would like to come home, because the Father and Ms S are “mean” to him, but on the other hand, Ms S says that [X] says of the Father’s home “this is my home” and is thriving on the structure and routine they provide.
I accept Dr Rikard-Bell’s opinion that [X] is likely to miss his Mother, his sisters and his [M] home if he lives primarily with his Father. I am also satisfied that [X] is likely to miss his school friends for a time if he were to move school. However, I am not satisfied the evidence discloses that [X] would not manage any such changes with the right support. I give some weight to these findings.
The practical difficulty and expense of a child spending time with and communicating with a parent.
The parties live in the [S] Shire, not more than 20 minutes by car from each other. However, while the Mother owns a car, she has lost her driver’s licence. The Father has a licence and access to a car. The parties agree that the Mother would need to travel by bus and train to go to the school proposed by the Father, or to the Father’s home, a trip of approximately an hour, depending on connections. The Mother therefore seeks an order that the Father undertake all [X]’s transport between the two homes.
I have regard to these practical difficulties faced by the Mother.
Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested.
Family violence is not an issue in this case.
The orders which would minimise the risk of there being further court proceedings about the child and whether those orders would be preferable.
I have nothing to add under this factor.
PARENTAL RESPONSIBILITY
Section 61C(1) provides that each parent has parental responsibility for the child but by section 61C(3) the joint parental responsibility is subject to any order the court may make. Parental responsibility relates to decision making and not to the amount of time a child will spend with each parent. Section 61DA requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Section 65DAC applies whenever a parenting order provides for shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
a)Abuse of the child or another child, who at the time, was a member of the parent’s family (or that other person’s family); or
b)Family violence.
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
On 1 April 2009, the parties consented to an order for equal shared parental responsibility on an interim basis. The father now seeks an order for sole parental responsibility. The Mother and the Independent Children’s Lawyer seek an order for equal shared parental responsibility.
In September 2009, Dr Rikard-Bell observed the parties to be “remarkably happy and relaxed with each other.” He concluded that:
There was a reasonable degree of cooperation and care between the couple even though they had different points of view.
Dr Rikard-Bell believes the parties can jointly make decisions about [X].
Mr Alexander for the Father submits that the Mother lacks the capacity to be engaged in major decision-making about [X] and is not competent to make decisions which concern his welfare. Counsel submits the evidence discloses that the Mother lacks insight into why events have unfolded as they have. Counsel says joint decision making will not work in [X]’s best interests. The Father agrees to keep the Mother fully informed of all relevant issues. He says, “I try to talk to Ms Terry (about issues concerning [X])” and although they do not tend to argue, he is unable to effect any change in the Mother’s approach.
Dr Rikard-Bell said that[25]:
[the Mother]… does have some limitations in being able to deal with complex issues when faced with subtle problems.
[25] Exhibit 1 at page 16
The Independent Children’s Lawyer says conflict is not a feature of the case and the Father acknowledges the need for the parties to consult. The Mother’s counsel submits that the parties have demonstrated a capacity to discuss issues. I accept these submissions which would, in the usual course, suggest there is a solid basis for an equal shared parental responsibility order.
However, in the circumstances of this case, for reasons advanced by Mr Alexander with which I agree, I have decided the presumption should be rebutted. I find the Father has shown a willingness and ability to discuss issues about [X] with the Mother and I am satisfied the Father will keep the Mother informed of any major decisions necessary for [X]’s welfare. However, I am not satisfied the Mother has the capacity or insight to contribute constructively to major decisions about [X]. I am influenced by the Mother’s demonstrated failure to engage in decision-making about both her daughters’ schooling, her acknowledged inability to set parameters for her daughters or influence their social conduct, her failure to engage services who might assist her to manage her teenage daughters, her failure to appreciate the critical importance of her continuing treatment for psychosis and her poor choice of Mr T as someone who should spend time with her three children.
I have decided the Father will have sole parental responsibility for [X].
Conclusion
[X]’s parents separated when he was 13 months of age. The parties disagree about their parenting arrangements before orders were made in April 2009, and I make no specific findings about the precise history of [X]’s arrangements. It is common ground however, that [X] has spent regular, if not substantial time, with the Father and that the Father cared for [X] full time when the Mother was hospitalised on a number of separate occasions. In April 2009, the Court made orders for [X] to live primarily with the Mother and to spend regular time with the Father. Since 13 November 2009, [X] has lived with the Father and after a period of spending supervised time, now spends periods during the day, unsupervised, with the Mother.
The Father deposes to [X] now being settled and happy and enjoying school. Ms S deposes to [X] saying to her “this is my home”. The Mother does not challenge this evidence in any substantial way.
The Father’s counsel submits that [X] needs the stability and security that only his Father can offer. Counsel submits that the Mother’s household is chaotic. Counsel submits that although the Father supports [X]’s relationship with the Mother, he does not support [X] spending overnight time with the Mother because of the risk of his exposure to inappropriate behaviour, including illicit drug use. Counsel submits the risk is significant, given, as the Mother concedes, the Mother cannot influence the conduct of [Y] and [Z] who live with her.
The mother’s counsel submits that [X]’s relationship with his Mother and his sisters is important and likely to be put at risk if [X] lives primarily with the Father. Mr Hansen submits that Dr Rikard-Bell supported shared care in his first report, and that his change in recommendation is based on untested and unreliable evidence from the Department of Human Services. He says the evidence discloses that [X]’s school attendance improved in 2009 and that in September 2009, Mr B, of the Mother’s mental health team, decided the family was progressing satisfactorily.
Dr Rikard-Bell recommends that [X] live primarily with the Father because the Father provides the stronger, more stable option for [X].
Dr Rikard-Bell believes the Mother lacks social insight and this will become critical as [X] gets older. Dr Rikard-Bell believes [X], in the Mother’s household, is at risk of similar problems faced by [Y] and [Z] which include leaving school early, poor associations, risk of drug use and risk of early relationships. Dr Rikard-Bell says[26]:There are some challenges for Ms Terry in managing [Y] and [Z] which inevitably will have a negative impact on [X]. Should [X] move to reside with Mr Storey and Ms S it appears more likely that [X]’s life will stabilise with Mr Storey and as long as
Mr Storey doesn’t relapse into using drugs again and he and Ms S are able to remain stable together. …
I believe now that there is now a significant doubt about the child being adequately cared for by the mother.
[26] At page 7 of Exhibit 2
Dr Rikard-Bell believes the Father understands the importance of his Mother to [X] although says the Father may be over-conservative in the amount of time he proposes [X] spends with her. In his second report[27] he recommends “perhaps one day one week and two days the next.” In cross-examination, Dr Rikard-Bell said [X] needs weekly time with the Mother, ideally more than once a week. He recommended the two girls be encouraged to visit the Father and perhaps spend time with [X] on some weekends.
[27] Exhibit 2
I am in no doubt that [X]’s Father and Mother love him dearly and want only the best for him. Unfortunately for [X], his parents have troubled pasts which have already impacted adversely on his short life. During [X]’s first 4 years of life, the Father was a serious drug addict. His Mother has also been a drug user and has suffered a serious and unpredictable mental illness involving psychotic episodes and requiring periods of hospitalisation. I am unable to make a finding on the evidence available as to whether or not the Mother is still using illicit substances.
As already noted, I find risks for [X] in both households. However, the Father has undergone rehabilitation for drug abuse and to his credit, has been able to stay away from illicit substances since November 2007.
I accept Dr Rikard-Bell’s evidence that the Father is not out of the woods yet. However, at present, although of recent origin, he is managing a full time job, a permanent relationship and the full time care of [X]. While there is some evidence of possible vulnerability in his relationship with Ms S, they have not lived together very long and some adjustment period is understandable. It is not possible to predict with any certainty whether that relationship will be long lasting. However, the Father is living in the area in which he was raised and has supportive family nearby. He demonstrates considerable insight into [X]’s needs and impressed me as thoughtful and strongly committed to [X]’s welfare and happiness.The Mother has not demonstrated the same capacity for change as has the Father. The Mother has poor insight into [X]’s need for an ordered household, supervision, good modelling and parental guidance. In cross-examination, the Mother demonstrated a naïve and simplistic view of the role of a parent. I am not satisfied the Mother appreciates the long term consequences of each of her daughters’ long absences from school or of [Y]’s early involvement with the police. The Mother did not appear to appreciate the significance of the Court imposed curfew on [Y] or the seriousness of a child of 12 being found in a park by police, drinking alcohol. The Mother has failed to comply adequately with Court orders in relation to drug testing, being late on almost all occasions, without adequate explanation. The Mother has told Dr Rikard-Bell she would like to go off medication. She was unable to tell the Court when or whether her Community Treatment Order had expired. The Mother has lost her licence for failure to pay fines. The Mother has a close friendship with Mr T, a convicted criminal with a history of illicit drug use, and sees no difficulty with her children enjoying that association too. The Mother has shown an inability to manage her financial affairs and has resisted help from relevant services.
I have concluded that while [X] faces a degree of risk in the care of the Father, [X] is more likely to prosper in his household than in the Mother’s. I find the Father understands [X]’s need for structure and stability and clear boundaries. I find the Father appreciates the importance of [X] attending school every day and doing his homework. I find the Father and [X] also have fun together and the Father encourages [X]’s participation in child-focussed activities. I accept
Mr Alexander’s submission that Ms S is likely to set clear boundaries for the Father and for [X] which will reinforce the Father’s efforts to remain drug-free.I gave consideration as to whether to order hair follicle testing for the Mother given she has failed to comply with urinalysis according to orders previously made. The Mother’s counsel supported such an order but said the Mother had no financial capacity to meet the cost of $450 involved. The Father supported the order but agreed to meet the cost only as a last resort. The Independent Children’s Lawyer did not support such an order. For practical reasons, given neither party is in a strong financial position, I have decided not to order hair follicle testing.
I gave consideration as to whether the matter should be finalised at this hearing or whether the Court should make interim orders and review [X]’s progress in approximately 12 months time. Dr Rikard-Bell recommended that consideration be given to reviewing [X]’s progress in 12 months time though believes there are benefits for [X] in the matter being finalised. The Independent Children’s Lawyer submitted the matter should be finalised. I have decided to finalise the matter on condition that the Independent Children’s Lawyer remains in the matter for a further 6 month period and requests random urinalysis of each party at 24 hours notice so amphetamines can be detected.
I gave careful consideration as to how much time [X] should spend with the Mother and whether that time should include overnight time. This was difficult because of the uncertainties existing in the Mother’s household concerning her mental illness, her possible illicit drug use and the behaviour of [Y] and [Z] which the Mother has been unable to control.
The Independent Children’s Lawyer proposed that [X] spend alternate weekends from Friday after school until Monday morning with the Mother, an afternoon each week and half school holidays and special days. I am not persuaded the evidence supports that submission.
I have weighed my findings in relation to each factor carefully. In particular, I have had regard to the risk factors in the Mother’s household and to [X]’s need to spend time with his Mother.
On balance, I have decided that [X] should spend limited overnight time with the Mother, one night a fortnight, an afternoon after school every week and, after a period of 6 months if orders are complied with, block holiday time. [X] will be free to speak to the Mother by telephone each day. I accept Dr Rikard-Bell’s recommendation that [X] should not spend more than a week at a time with the Mother. I have delayed the start of block holiday time because of my concerns that the Mother may still be consuming drugs. The Mother will undergo further drug testing over the next 6 months. The Mother should now understand that it is imperative she complies with the orders I have made. Her GP works across the road from her home, and the test does not cost her money. There is no excuse for further non-compliance. I have decided [X] will not spend block holiday time with the Mother until those test results have been obtained, have been negative and the results provided to the Independent Children’s Lawyer as ordered. In addition, the Mother will be required to establish that she is continuing to take her anti-psychotic medication prior to the expiry of the 6 month period.
Until the 6 month period has passed, I have decided [X] will spend
3 days a week with the mother during holidays during the day only, with as well as an alternate weekend overnight as in term time I have decided that additional holiday time with the Father in the meantime will give [X] time to develop his local friendships.The Father seeks to enrol [X] at [E] School approximately 15 minutes from [M] School where [X] is presently enrolled. The Mother and the Independent Children’s Lawyer seek an order that [X] remain at [M] School. In essence, the Father says [E] School would work better because [X] would have local friends and the Father could collect him each afternoon after school without having to leave work early. The Father says [X] knows children, including his cousins who attend the school. He believes that because [X] had a poor start at [M] School, it will assist [X] to start afresh with a different attitude, at the new school. If [X] remains at [M] School, the Father says [X] will need to attend after school care until the Father can collect him.
The Mother acknowledges the benefits of [X] attending school situated locally to his home and says [X] once said to her “I’d like to go [to [E]]. However, the Mother says it would be inconvenient if [X] went to school away from [M] because of the Mother’s transport problems. The Mother would need to travel to [E] School by bus and train which would take her approximately half an hour, depending on connections.
The Independent Children’s Lawyer submits that there is no compelling reason for [X] to move schools and it would mean the Mother would face practical difficulties.
I have decided on balance, that [X]’s interests will best be served by him moving to [E] School. I have regard to the Father’s attitude to [X]’s schooling, to the fact [X] has not missed school while in his Father’s care, to the benefits to [X] of being collected directly from school each afternoon by his Father and to living locally to his school. However, given the Mother’s transport problems, and [X]’s limited time with her, the Father will be responsible for transporting [X] to and from his Mother’s home on Wednesday afternoons and during holidays, until the Mother regains her driver’s licence. The mother will collect [X] each alternate Saturday morning and will share in the transport once she has her licence.
I have made various restraining orders and other orders concerning exchange of information which are not controversial.
I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in the best interests of [X].
I certify that the preceding one hundred and thirty four (134) paragraphs are a true copy of the reasons for judgment of Sexton FM
Associate: Skye Owen
Date: 18 March 2010
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