Stratton and Krouse and Anor

[2019] FCCA 1933

FEDERAL CIRCUIT COURT OF AUSTRALIA

STRATTON & KROUSE & ANOR [2019] FCCA 1933

Catchwords:
FAMILY LAW – Parenting – sole parental responsibility – drug use.  

Applicant: MS STRATTON

First Respondent: MR KROUSE

Second Respondent: MS STARR

File Number: MLC 10342 of 2017

Judgment of: Judge Harland

Hearing date: 6 May 2019

Date of Last Submission: 6 May 2019

Delivered at: Melbourne

Delivered on: 6 May 2019

REPRESENTATION

Counsel for the Applicant: Ms Bonney

Solicitors for the Applicant: Inner Melbourne Community

No appearance by the First Respondent:

No appearance by the Second Respondent:

Counsel for the Independent Children’s Lawyer: Ms Elleray

Solicitors for the Independent Children’s Lawyer: Clark Family Lawyers

ORDERS

1. That all previous parenting Orders in relation to the child [X] born … 2007 (“the child”) be discharged.

2. That the mother have sole parental responsibility for the child.

3. That the child live with the Mother.

4. At the request of the step-father MR KROUSE (“the step-father”), the mother do all acts and things necessary to provide him with copies of any notices, newsletters, or reports to him at his expense. With the mother at liberty to remove any identifying details for the child’s school.

5. That the step-father shall not spend time with the child.

6. The mother must facilitate any communication the child wishes to have with the step-father at all reasonable times.

7. That the mother be at liberty to provide a copy of the family report prepared in these proceedings dated 14 December 2018 to any psychologist or counsellor providing treatment to the child, and to the Parenting Orders Program.

8. That the appointment of the Independent Children’s Lawyer be discharged.

AND IT IS NOTED THAT:

A.That the mother keeps the step-father informed in writing of the following:

(a)The social and academic performance of the child;

(b)Any significant health issues the child may have; and

(c)Any significant religious observances, sporting, cultural or social activities involving the child.

B.If the step-father seeks to attend family dispute resolution with the mother or to make an application to vary these orders because he seeks to have contact with the child, he is required to provide evidence that he has:

(a)Attended upon a neuropsychologist for treatment of his Attention Deficit Disorder and complied with any treatment plan recommended by the neuropsychologist or any other medical practitioner treating his for this disorder or any other mental health condition he has been diagnosed with;

(b)Attended the Parenting Orders Program and provide certificate of completion;

(c)Obtained an assessment for drug and alcohol counselling, and attended for treatment of same; and

(d)Obtained a hair follicle sample for the six months at his expense prior to any family dispute resolution or application to vary these orders, testing negative for any illicit substances or prescription medication that he does not have a valid prescription for.

C.The second respondent has not been served and has not participated in these proceedings previously. The requirement that he be served has been waived.

IT IS NOTED that publication of this judgment under the pseudonym Stratton & Krouse & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10342 of 2017

MS STRATTON

Applicant

And

MR KROUSE

First Respondent

And

MR STARR

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting matter listed for trial today concerning [X] who was born on … 2007 and turns 12 next week. The first respondent is [X]’s stepfather who, for all intents and purposes, has always acted as a father figure for her, with her biological father never having been a part of her life apart from when she was very, very little. The biological father who is named as the second respondent has never participated in the proceedings and was unable to be served. The mother commenced these proceedings on 6 October 2017 seeking orders for [X] to live with her and that she be permitted to relocate to South Australia as she is no longer pursuing a relocation application.

3. The stepfather filed his responding material on 8 December 2017 seeking that [X] live with him and on an interim basis and spend time with the mother. On 13 November 2017 the matter first came before me and I made a suppression order with respect to the publication of the parties’ names due to risk to the mother as a result of her subsequent relationship. On 15 December 2017 I made consent orders that provided for the mother to spend limited time with [X] and for the parties to enrol with the parenting orders program at CatholicCare with respect to facilitating the relationship between the mother and child. 

4. I also ordered both parties to undergo random drug testing. On 9 April 2018 I listed the matter for trial and ordered a family report and further consent orders were made. On 6 August 2018 there was a contested interim hearing before me. One of the issues that has been in dispute has been compliance with the orders for both parties to undergo random supervised drug testing. 

5. In her trial affidavit filed on 2 April 2019 the mother addresses her compliance with those orders in some detail explaining why she did not provide a test within the allotted time which has variously been due to being in South Australia and having changed her number and not informed her solicitors and on one occasion not receiving the result. But what is clear from the mother’s material is that apart from a couple of occasions she has complied with those orders and has shown a consistent pattern of providing clear drug screens throughout 2018. The same cannot be said of the stepfather.

6. One of the issues of concern at the August 2018 hearing was his inconsistency with respect to providing tests, providing tests that were not supervised, and providing tests with positive results. On that occasion I ordered the stepfather to file and serve an affidavit within 14 days annexing all drug screens in his possession together with any explanation with supporting medical evidence with respect to any positive tests.

7. The stepfather was also ordered to provide the Independent Children’s Lawyer with a list of doctors, counsellors and drug detoxification clinics that he had attended to in the last five years. The stepfather did not comply with that order for filing the affidavit. I do not know if he complied with the request to provide the Independent Children’s Lawyer with that information or not. On that occasion the Independent Children’s Lawyer had sought that the stepfather undergo hair follicle testing which the stepfather opposed, and at that stage I did not make the order for hair follicle testing, giving him one further opportunity to address the issue of his drug screens. 

8. On the next occasion when the matter came before me on 12 November 2018 the stepfather was represented by a solicitor, but did not attend in person. The stepfather had recently tested positive for Benzodiazepines. On that occasion the Independent Children’s Lawyer raised concerns about [X] being at an unacceptable risk in the stepfather’s care and a concern about his failure to comply with previous orders. He arranged for an urgent family report. 

9. On that occasion I warned very clearly that if the stepfather did not comply with orders, an application for an interim change of residence may be considered on the next occasion. I ordered the stepfather to undergo a hair follicle test over the objection of his solicitor. The objection seemed variously based on privacy, cost and necessity. He has never provided any evidence about his inability to pay for that testing.

10. The stepfather filed an affidavit on 20 November 2018 after the November hearing date which fell short of what he had been ordered to do. The day before the interim hearing on 6 December 2018 he filed a further affidavit which in and of itself was concerning because the affidavit is essentially a criticism of the mother with respect to a handover day on 23 November 2018, and whilst being very negative about the mother, does not address any of the concerns about him. Indeed, he goes so far as to raise concerns that the mother may be using drugs in the child’s presence, but does not provide any particulars in support of that allegation.

11. On that occasion the stepfather again was represented by his solicitor and conceded that there should be an interim change of residence, but sought time on alternate weekends. I made orders for [X] to live with the mother and to not spend any face-to-face time with the stepfather pending him addressing the serious concerns about risk in his care. He was permitted telephone contact, but his time was suspended until he provided a hair follicle test for the use of illicit substances for the last six months and attended an anger management course with an organisation nominated by the Independent Children’s Lawyer and provide a certificate of completion. 

12. The family report was released on 14 December 2018 and confirmed the concerns about the stepfather. I should indicate that what is clear from the parties’ material in this matter is that both parties had a difficult upbringing. Both parties lost parents and had experience of being involved with the Department of Health and Human Services. Both parties have history of drug use, and [X] came into the stepfather’s care in December 2016 in what were traumatic circumstances for [X]. That is when the mother was charged with criminal offences and was remanded in custody. The Department was involved at that stage. 

13. After the mother was released, [X] remained living with the stepfather and for some considerable period of time did not see her mother. The difference between the parties is that the mother has been able to turn her life around. She has made significant progress since her release from prison. She has engaged with support services and continues to do so and has plans to study and obtain a university degree. The stepfather relies on Centrelink benefits. He has remarried and has a child with his wife, and his wife has other children. The mother also has another child, [A], from a subsequent relationship, and he was born on … 2017. 

14. What is clear from the mother’s trial affidavit, too, is that as soon as [X] came into her care, she put supports in place for [X] and arranged for [X] to have an orientation at her new school so that it would not be so unfamiliar to her when she started the next term. She also arranged for her to receive counselling from a psychologist who attends her school. The parties live about 90 minutes apart which is why a change of school has been necessary. 

15. According to the mother’s trial affidavit, [X] has settled in to her new school, has made friends and is progressing well. She says she has tried to reach out to the stepfather to see if they could resolve issues for [X]’s benefit, but he rejected that overture. Her evidence is that although the orders permitted him to have telephone contact with [X], more often than not, it was his partner who spoke to [X] and that he has made no attempt to speak to [X] by phone since March of this year.

16. The family report raises concerns about the stepfather. At paragraph 36, the family reporter records that there was an odour about the stepfather which reminded her of young people engaging in chroming, although she did not think that he appeared drug-affected at the time. I do note that the mother refers to the stepfather having a history of chroming during their relationship. 

17. The reporter did indicate that the stepfather provided inconsistent information during the report and was also repeatedly critical of the mother throughout the interview, which was inconsistent with his assurance to the reporter that he was open to communicating with the mother neutrally. In contrast to that, when the mother was interviewed, she was able to identify good things about the stepfather.

18. The reporter records, at paragraph 51, that [X] remembers the trauma of the police attending the home early in the morning to arrest the mother and she remains fearful about something like that happening again whilst living with the mother. She spoke about there being yelling and anger in the stepfather’s household, with both adults yelling and with her being largely responsible for getting herself ready for school. She also told the reporter that she had only very recently been engaged with the Big Sister program, whilst in her stepfather’s care, which was in contrast to the impression that and information the stepfather gave to the reporter.

19. The reporter did not identify any concerns about the mother being a risk to [X], but found that the stepfather was chaotic in his accounts, grandiose in his self-assessment of his parenting capacity and noted his non-compliance with Court orders and his refusal to undertake the hair follicle test, as ordered. The reporter thought that this indicated difficulty with his prioritising [X]’s needs over his own and had concerns about his capacity to comply with orders in future.

20. Before completing her report, but after the interviews, the reporter was made aware by the Independent Children’s Lawyer that [X] was now living with the mother. The orders that the mother seeks are largely consistent with the recommendations in the family report.

21. The stepfather has not attended Court today and I am satisfied that he is on notice of the proceedings and also on notice of the orders that both the Independent Children's Lawyer and the mother are seeking. I note, in this regard, that the Independent Children's Lawyer filed a case outline in January of this year, outlining his concerns. The stepfather was also on notice of the Court’s concerns, and the things that he needed to do to address those concerns, from his Court attendances last year. 

22. It is telling that the stepfather has not filed any material since the release of the family report, has ceased making contact with [X] since early March and has failed to attend Court today. I very much have the impression that if orders are made that he does not like or agree with, he will not comply with them and I have some real doubts that he will address the risk issues of concern. 

23. What is very clear in the orders that the mother and the Independent Children’s Lawyer seek is that I make Orders specifying exactly what he needs to do if he seeks to spend time with [X] in future. That is made very clear with the steps that are outlined at order 10. I am satisfied that it is in [X]’s best interests that she remain living with the mother and all indications are that she is doing very well in her care. I am also satisfied that the mother should have sole parental responsibility for [X]. 

24. The stepfather has not demonstrated any capacity to communicate with the mother constructively and currently there are orders made, and orders will be made on a final basis, which do not allow him to spend time with [X], pending him addressing the issues that are at order 10 of the proposed orders.

25. As I indicated during the course of submissions, I will not make order 3 as proposed but will make it as a notation, as whilst the inclusion of that order indicates the mother’s willingness to keep the stepfather informed as to [X]’s progress and acknowledges the parenting role that he has had in [X]’s life, I have concerns about her having such an obligation when the potential is that the stepfather will not spend any time with [X] or communicate in future. Given his attitude towards the mother, it could be seen by him as an opportunity to continue to berate and denigrate her and criticise her parenting. 

26. I am also satisfied that there would be an unacceptable risk to [X] if she was to spend time with the stepfather, without him having addressed the very serious concerns about his conduct, which is not limited simply to drug use but also with respect to anger management and his cognitive functioning. That is addressed in the orders seeking that, if he seeks to spend time with [X], that one of the things he must do is attend upon a neuropsychologist. 

27. So having considered the material, I am satisfied that the orders that I will make are in [X]’s best interests, and I should just add that the matter is proceeded in accordance with rule 13.03.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 12 July 2019