Sweeney and Carrigan and Anor

[2019] FCCA 2277

FEDERAL CIRCUIT COURT OF AUSTRALIA

SWEENEY & CARRIGAN & ANOR [2019] FCCA 2277

Catchwords:
FAMILY LAW – Parenting dispute – third tranche of litigation – children being in primary care of father since 2012 – mother and applicant maternal grandmother seeking time with children – children desiring to see mother but still young – weight to be given to children’s wishes – mother using drugs until at least August 2018 – mother’s sobriety not in position to be definitively assessed – mothers chances of relapse high – grandmother failing properly to supervise time – orders made as sought by Independent Children’s Lawyer and father.

Legislation:

Family Law Act 1975 (Cth)

Federal Circuit Court of Australia Act1999 (Cth)

Mental Health Act 2014 (Vic)

Summary Offences Act 1966 (Vic)

Cases cited:

Goode & Goode [2006] FamCA 1346

Rice & Asplund [1978] FamCA 84

Applicant: MS SWEENEY

First Respondent: MR CARRIGAN

Second Respondent: MS A SWEENEY

File Number: DGC 2204 of 2012

Judgment of: Judge Burchardt

Hearing dates: 12 & 13 August 2019

Date of Last Submission: 13 August 2019

Delivered at: Dandenong

Delivered on: 23 August 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Ms Chia

Solicitors for the First Respondent: O’Halloran Davis

Counsel for the Second Respondent: Mr Howe

Solicitors for the Second Respondent: Hentley’s Lawyers

Counsel for the Independent Children’s Lawyer: Mr Eidelson

Solicitors for the Independent Children’s Lawyer: McCormack & Co

ORDERS

1. That the Final Orders made on 14 August 2017 be discharged.

2. That the First Respondent have sole parental responsibility for the Children namely [Y] born … 2010 and [X] born … 2008 (collectively “the Children”).

3. That the Children live with the Father and communicate with the Applicant and Second Respondent by telephone each Wednesday between 6:00pm and 7:00pm with the Applicant and First Respondent to initiate the call.

NOTATION

A.      The Court notes that the mother has indicated a preparedness to undertake drug hair strand analysis and to rehabilitate herself following her cessation of drug use. If she does so, it will be open to her to make further application for time with the children without facing a Rice & Asplund objection.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2204 of 2012

MS SWEENEY

Applicant

And

MR CARRIGAN

First Respondent

And

MS A SWEENEY

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a parenting dispute about the best interests of two young children, [X], born … 2008, and [Y], born … 2010.  All parenting disputes are dispiriting but the circumstances of this particular proceeding are little short of tragic.  The applicant maternal grandmother seeks to spend time with the children and, although not perhaps entirely clearly articulated, it seems clear that she seeks that that take place contemporaneously with the mother also spending time with the children.  The mother seeks that she spend supervised time initially at a contact centre, followed in due course by unsupervised time.  She posits this as being subject to hair strand analysis showing that she is free of drugs.  The father seeks that time be limited, as it presently is, to telephone time once per week, and he is supported in this position by the Independent Children’s Lawyer.

2. For the reasons that follow, I am going to make the orders proposed by the Independent Children’s Lawyer.

Agreed or uncontroversial matters

1. The grandmother was born on … 1969.  She was married for many years but informed the court that her marriage had ended when she found her husband was cheating on her.  She has had at least one relationship marred by significant family violence since.

2. The mother was born on … 1990 and was therefore just under 18 when [X] was born on … 2008.  [X]’s father, a Mr B, has declined to take any part in the proceeding and [X] does not know who he is. 

3. The mother separated from Mr B in … 2009 and she re-partnered with the father by … 2009.  The father having been born on … 1992 was self-evidently just 17 at the time.  [Y] was born just over nine months later.

4. The relationship between the mother and father only subsisted for a very short time and both have asserted that it was marred by significant arguments and it appears uncontroversial that there was family violence.  They separated in September 2010 and the children remained in the primary care of the mother until 2012.  Both parents used drugs during the relationship. 

5. In mid-2012 the mother, who was struggling to cope with the children, effectively requested the father to take over their care.  The mother was sectioned under the Mental Health Act at the time.  The father to his great credit has looked after the children full time ever since.  He is a father figure to [X] even though he is not her biological father.

6. Proceedings were initiated in this court by the father in July 2012 and these ultimately, following a family report, led to orders by consent made before O’Sullivan J on 1 April 2014.  Those orders provided that the children live in the primary care of the father who had sole parental responsibility for the children in respect of education, health and religious upbringing but otherwise shared parental responsibility with the grandmother.  There was a program of time, including overnight time, for the mother but the time was to take place entirely in the presence of the grandmother. 

7. A second tranche of litigation commenced in 2016 and was ultimately resolved by orders made by myself on 14 August 2017.  Those orders were consented to by the parties but not by the Independent Children’s Lawyer who was granted leave to forward a copy of the family report and a copy of the orders made to the Department of Health and Human Services.  The orders replicated in large part those made in 2014 but on this occasion the mother’s spend time regime was to be supervised by the maternal grandmother.

8. It should be noted that both the mother and the grandmother have relatively extensive and significant criminal histories which appear to be linked with and/or arise in part out of significant illicit drug use by each of them over protracted periods of time.  It will be necessary to return to this in more detail when I consider the evidence given at court.

9. In January 2018 an incident occurred to which it will be necessary to deal in more detail which caused the father to suspend the spend time regime.  The children have had no face-to-face time with either the grandmother or the mother since that time. 

10. It should also be noted that the father has had his own difficulties with mental health.  He had what is described in the materials as a breakdown in mid-2016 during which his own father looked after the children, apparently entirely unremarkably. 

The parties’ affidavits

1. Although the parties have filed trial affidavits, given the extent to which the oral evidence traversed historical matters, I have read all of the entirety of this file.  The pattern of the parties’ affidavits has changed but little over the years.  It should be noted that the affidavits of the mother and the grandmother, while from time to time admitting drug use, have tended in the light of their evidence given at trial somewhat to minimise their usage.

2. One matter to which I would make reference as it emerged on more than one occasion during the course of the oral evidence was an occasion when the grandmother visited the children’s school.  Exhibit C3 to the father’s affidavit affirmed 15 June 2016 is a letter to the grandmother from the Principal of Suburb C Primary School where both the children were then enrolled.  It is dated 2 February 2016 and records a visit by the grandmother to the school on 29 January 2016.  Relevantly it reads:

   On Friday the 29^th of January, you entered our school – Suburb C Primary School and tried to remove two children from the school.  Although procedures were outlined to you regarding early dismissal and the importance of being listed as an Emergency Contact for [Y] and [X], you continued to ignore our requests and tried to remove both children without permission from the school.  You created a highly distressing situation for these children, other children at the school, teachers and administration staff.  As a result of your refusal to follow reasonable advise, the police were called to resolve the matter and remove you from the premises.

3. It should be noted that the Principal went on to give the grandmother a warning under s 9 of the Summary Offences Act 1966, the effect of which was to ban the grandmother from entering on the premises of the school for a period of 12 months from the date of the warning.

The report from the Department of Health and Human Services dated 27 June 2019

1. This very lengthy document sets out the sorry history of departmental involvement with the family going back as far as November 2008.  I have regard obviously to all of it but would note the following particular matters. 

2. An intake report commencing 30 January 2019 recalls a physical assault on [Y] by the father.  The father disclosed the incident and identified that he needed parenting assistance.  He acknowledged he was struggling with the care and discipline of the children.  I note that there were multiple agencies working with the family at the time and that the children identified they continued to feel safe in the father’s care. 

3. A further report commencing 2 February 2018 noted that the mother disclosed that she was using $500 worth of methamphetamines a week.  Her accommodation was transient.  On page 4 of the report, it is recorded:

   In relation to supervising the mother’s contact, the maternal grandmother confirmed that she did not supervise the mother’s contact all the time.  In relation to her drug use, the maternal grandmother stated:  ‘When we were seeing the court it was pretty much everyday drug use, now I have cut down a lot because I’m paying for hotels and stuff, so it’s that or being homeless’.  The maternal grandmother further stated that she would use Methamphetamine at least two to three times per week.

   In relation to the maternal grandmother completing a positive roadside Methamphetamine test, she initially denied it but the she advised that ‘what she does in her own time is her business and impacts her alone’. 

   Overall, it has been assessed that the maternal grandmother and the mother had been dishonest with Child Protection and were unsuitable to having contact with the girls as their drug use was regular and they had little to no insight into the effect this had on the girls.

4. At page 17 of the report it was noted that:

   [Y] and [X] confirmed that they have telephone contact with their mother every Wednesday afternoon.  The girls advised that they enjoy speaking with their mother and spoke positively about Ms Sweeney, stating that they would like to see her.  [Y] and [X] advised that they would like to spend every weekend with their mother at her home.  The girls said that they would like to see their maternal grandmother as well the same as their mother. 

5. At page 19, having traversed the mother’s history of drug use and criminal record, the report noted:

   Ms A Sweeney was requested to complete urine screens on 29/03/2019 and on 12/04/2019.  Ms A Sweeney did not complete these tests as directed and only completed one screen on a date she was not requested.  This test was completed on 9/04/2019 and detected Nordiazepam and Temazepam. 

6. At page 20 the report recorded:

   Ms Sweeney was interviewed by Child Protection on 28/03/2019.  During this interview, Ms Sweeney presented as defensive, antagonistic and uncooperative. 

7. The report went on to note the extensive history of methamphetamine use on the part of the grandmother together with ongoing cannabis use.  I notice that at the bottom of page 20 the report noted:

   In terms of her criminal activity, Ms Sweeney stated that she had pending criminal charges in the following week for driving offences and that she had previously been placed on a Community Corrections Order for one year for previous theft offences. 

8. On page 21 of the report it is noted:

   Ms Sweeney also stated “I wouldn’t harm them or put at danger, maybe I have in the past but nothing to warranted police coming round”. 

9. The Department followed up with the professionals involved in the mother’s life.  They noted that the mother had attended five counselling sessions with alcohol and other drugs counsellor Ms D from up until 10 January 2019.  The report noted “Ms D made innumerous attempts to contact with Ms Sweeney unsuccessfully therefore she closed the file in March”. 

10. At page 22 the report noted, based on a report from the grandmother’s psychologist Ms E that the grandmother “reported daily cannabis use and occasional methamphetamine use claiming that her drug use did not impact on her parenting capacity, hence she had no intention to stop using illicit drugs.  Ms Sweeney advised Ms E that she had partial care of the grandchildren because her daughter, Ms A Sweeney had drug issues and had lost custody of the children.  Ms Sweeney stated that this was unfair.  Ms E assessed that Ms Sweeney was in denial regarding her drug use as she did not believe this was a problem.  Ms Honour noted that this is part of the addiction illness.  Ms E noted a level of immaturity on Ms Sweeney’s part as she did not think that she needed help regarding her illicit drug use”.

11. At page 23 the report noted:

    Over the years, Child Protection continued to hold grave concerns should the children have unsupervised contact with Ms A Sweeney and Ms Sweeney and made recommendations that this contact remain supervised.  Mr Carrigan followed the advice of Child Protection and initiated Family Law Court proceedings which led to him having full parental responsibility for both children.

12. Having noted that the father was addressing his difficulties in coping with the children, and the failure of both the mother and grandmother to complete drug screens as required, the report noted:

    it is assessed that the children should have the opportunity to maintain a relationship with their mother and grandmother that goes beyond telephone contact.  It is assessed that the children should have contact with their mother and maternal grandmother in a contact centre to ensure their safety and wellbeing during such contact.  It is acknowledged that Mr Carrigan opposes this option as he is concerned that this arrangement can only be available for six months and that he would have to contribute financially, which will disadvantage him and the children.  It is hoped that these challenges can be conquered by negotiations and long-term planning to ensure that the children and Mr Carrigan are not disadvantaged in the process.

The section 11F report of Ms F

1. I have read the earlier 11F report and the two family reports of Ms G and Ms H.  I do not propose to refer to them given that, first, they are now essentially historical and, second, in any event the matters recorded only go to reinforce the picture that has emerged from the evidence in this tranche of the proceedings.

2. Ms F conducted interviews pursuant to s 11F of the Family Law Act on 7 August 2018.  I note that on the second page of the report the grandmother reported that she used ice on a number of occasions at the end of 2017 with the last time being February 2018.  The mother reported she continued to use ice on a regular basis but had reduced from daily use to every few days in the context of gastric band surgery she had planned on the following day.  I note that Ms F described the father as “Mr Carrigan presented with some anxiety and self-doubt”.  This is consistent with Ms H’s observations of him. 

3. Ms F described the maternal grandmother as:

   The maternal gmmo was highly defensive, argumentative and unable to take responsibility for her own behaviours.  She tended to blame others, considered herself as a victim of her circumstances.  She tended to minimise her drug use, instability, and violence in her life, in which the children had been exposed to.  She denied her daughter Ms M was volatile in the presence of the children.  She also denied she did not supervise the children with their mother, which was contradicted by Ms Sweeney at this assessment. 

4. I note that the mother sought the possibility of spending time with the children independent of her mother even if through a contact centre. 

   Ms Sweeney reported that the children had been exposed to “bickering” and “loud voices” between herself and the maternal grandmother and acknowledged the children were scared at these times.  She advised that she has had to remove the children from the home on a few occasions whilst there have been verbal altercations between her mother and her sister.  Ms Sweeney became aware of her mother’s ICE use approximately 18 months ago.  She believed her mother tended to “binge” rather than use on a regular basis.  Ms Sweeney reported that she did not use ICE in the presence of the children, however used in the bungalow with her sister, whilst the children were in house.  She advised her mother was not always present and often left the children with her.

5. I note that the children advised Ms F that they were missing their mother and were unsure about the reasons their time had ceased with her.  They mirrored some of their father’s concerns about potential drug use in the mother and grandmother’s home and Ms F thought that this was more likely their narrative and reflective of their own experience rather than being unduly influenced by their father.  They described the grandmother and maternal aunt fighting and shouting.  They expressed no concerns about living with their father.

6. Ms F was unable to recommend supervised time because more information might be required by the court.  “The main concerns about Ms Sweeney Snr were in relation to her minimisation and justification regarding the risk issues, particularly her illicit substance misuse and the significant violent incident between herself and her ex partner.” 

7. The report went on to recommend time with the mother at a children’s contact centre and noted that recent information from the Department might assist the court. 

The submissions and evidence at court – the opening by the Independent Children’s Lawyer

1. Counsel for the Independent Children’s Lawyer submitted that the children had lived with the father since 2012.  Final orders had been made in 2014 and 2017.  The mother was to have supervised time but this was suspended on 7 August 2018.  Neither the mother nor the grandmother has spent any time with the children since February 2018.  The grandmother was seeing the children while she was supervising.  Both the mother and the grandmother use drugs and they both used ice.  The grandmother had filed nothing since February 2019 and the mother had filed an amended response on 6 August 2019.  The mother seeks to start the process of spending time with the children and says she does not use drugs.  The father’s application seeks the dismissal of the grandmother’s application and that of the mother and that telephone contact only take place once per week.  The Independent Children’s Lawyer submitted that the father’s application was well-founded. 

The opening and evidence of the grandmother (Ms Sweeney)

1. What follows is taken from my notes.

2. The grandmother confirmed that she wanted supervised time.  She wanted a contact centre to start off with.  She works full time but has not had a licence for eight months.  She leaves for work early and returns home at 7 pm.  There had never been drugs around the children.  Since May 2019 she has lived in Suburb N with her mother who is extremely ill.  She has attended seven sessions of counselling and undertaken drug screens at work.  She cares for her mother full time.  There is an effect on the children not seeing the mother and grandmother.  Reports made to the Department of Health and Human Services are over-exaggerated.  One report was made by her younger daughter maliciously. 

1. The grandmother was called and adopted her affidavit.  Counsel for the mother elected to put no questions to her. 

2. Under cross-examination by counsel for the father, the grandmother confirmed that this was the third round of proceedings.  She has not spent time with the children on her own, only supervising.  She seeks time on her own and eventually unsupervised.  She would like to spend a day, seven hours, whatever the outcome is.  She eventually wants half school holidays.  She was here because of a report to DHHS.  This said she was on drugs.  It also alleged family violence and a home invasion.  She moved to a safe house.  She has moved in with her mother who is dying of cancer.  She has not seen the children for two years.  She has to undertake a drug course to get her licence back. 

3. The grandmother said she complied with court orders 98 per cent of the time.  She had to nick out to get her son or go to Safeway.  She did not often leave the children alone with the mother.  On one occasion she had stayed in a motel because her daughter was aggressive to her.  They stayed the night together.  When it was put to her that the mother left with the children or went to a friend’s place and that the father had confronted her and she had admitted it, the grandmother denied this and insisted that they went to a motel.  When it was put to her that she had told the department she did not supervise all the time, she said 98 per cent of the time she was there.  In an emergency she would have to go.  Two percent or maybe five percent of the time she was not there.  She could not be around the children because of the mother’s aggression to her.  She left the children with the mother on a Friday and Saturday. 

4. The grandmother had used drugs after she was assaulted.  She was not taking drugs when supervising.  She took drugs for a three to four-month period from December.  She would use drugs when she did not have the children. 

5. When it was put to her that she had told the Department she was taking drugs every day she said she was smoking every day.  (She appeared to me to concede using ice two to three times per week).  The mother was taking drugs every day.  She herself smoked marijuana every day when she did not have the children.  She admitted driving while under the influence of drugs and had been caught four times by the police.  She asked rhetorically, “How can I afford drugs every day?”  She had never received ICL requests for drug screens because she had moved house.  Having said this, however, she said, “What I do in my own time is my own business”, and went on to say, “So because I took drugs I can’t see my grandchildren?”, which I took to be a rhetorical question.  She said she stops taking drugs days before she sees the children.  She had never had a car accident with the children in the car and would do further drug tests if required.  She blamed her younger daughter for a misleading report to the Department.

6. I would interpolate and say that the evidence given by the grandmother was argumentative and combative throughout.

7. The grandmother had been convicted for driving without a licence.  She had driven the children on occasion without having a licence.  She lost her licence in August 2018 and saw the children till December 2018.  She has no pending criminal charges.  She lost her licence for one year and has to do 120 hours of community service.  She conceded that she is on a CCO for one year.  She breached an order to do community service because she had fallen out with her worker.  There was a dispute which went back to court.  There were new offences and then she was given 120 hours and then another year of licence suspension. 

8. The grandmother has been working for the last three months.  She has to take the bus and train to work and it is long hours. 

9. When it was put to her that at the 11F conference she said she had moved houses eight times she initially did not recall but then conceded this was correct.  She moved in with her mother in Suburb N since May 2019.  She will live there while her mother is alive.  She is dying of cancer. 

10. She moved out of her home of 31 years with her husband.  She always took the children to the matrimonial home.  The last month the mother and she were clashing together.  The home is at O Street, Suburb P.  Her two sons, Mr Q and Mr R, also live at the family home.  Things the children tell the father are over-exaggerated.  There have been clashes at the family home but the police were never called.  There was shouting and screaming in the end.  This was not good for the children which is why she went to the motel.  Her relationship with the mother is not too bad.  She has changed her life around.  She does not fight with Ms A Sweeney.  Some of the things the children say are true but they are over-exaggerated. 

11. When it was put to her that the mother had suggested that the grandmother have no time with the children because of her drug issues the grandmother responded, “I don’t know where you get your information.”  There is telephone contact but not every week.  She is not allowed to call the father’s home.  It has to be a three-way call.  She will never get back the year and a half she has lost and she cannot give birthday or Christmas presents. 

12. Under cross-examination by counsel for the Independent Children’s Lawyer, the grandmother conceded that she had been ordered to supervise time.  She understood that she was a trusted person and was required to supervise the mother.  She understood the court was concerned with the mother’s drug use and criminality.  When it was put to her that she had not fulfilled these obligations the grandmother said that she did for three years.  If she was not there her 27-year old son stepped in.  Five to 10 per cent of the time she was not there.  Between 2014 and 2017 she was there constantly until her marriage broke up.  She used drugs while driving.  She was caught by the police four times.  She denied that she had driven on other occasions under the influence of drugs.  She hopes her daughter trusts her.  Her daughter does trust her.  Her daughter would not lie to the court for her. 

13. Counsel put it that in an affidavit as recently as 6 August 2019 the mother says she did not trust her, to which the grandmother replied that she did not know this.  It was not a surprise.  The mother would do anything to make herself look better. 

14. The grandmother still smokes cannabis.  It will be legalised soon.  She does not use it while she drives but smokes every night.  Marijuana is not a drug.  It was the mother who was growing the marijuana.  The mother was not true to say that the grandmother used ice in 2014.  The grandmother denied paragraph 71 of the mother’s most recent affidavit which asserted that she is aggressive and violent when coming down off ice.  She said this was not true and she did not know why her daughter was lying.  She confirmed that she had been caught by the police driving whilst under the influence of cannabis and ice on four occasions.  When she was taxed with paragraph 75 and 76 of the mother’s affidavit which sought that she engage in rehabilitation and treatment for drug use the grandmother said, “So be it.  I’ve done my counselling.” 

15. The grandmother confirmed that she had attended five sessions of counselling overall.  She assumed that an application had been made on her behalf for time at a contact centre and assumed that time could start soon.  She said every mother should get to see their children. 

16. The grandmother confirmed she had met Ms F.  She did not know that the mother was using ice with her sister.  She has not been asked to do drugs screens by the Independent Children’s Lawyer since February 2019.  She had told the Independent Children’s Lawyer two weeks ago she had changed address.  She said she would probably not have undertaken drug tests because she is at work and this involves long hours.  She would probably have done one or two. 

17. When it was put to her that there were concerns raised by the Department, Ms F and the father about her drug use the grandmother said she knew this.  She knew that the court was concerned about it also.  She has not got $80 to do drug screens.  Her mother comes first.  She does not regard marijuana as a matter of concern.  The children are not around it.  She has been smoking since she was 16 years old.  The grandmother denied drug use reported by the children in relation to ice. 

18. In re-examination the grandmother said that the first family report was different to the second (this related to the children now revealing the drug use).  She has changed her life around.  She has not undertaken drug screens because she has not had the time.  She was not making excuses.  Marijuana would show up on tests.  She has a chronic back issue and smokes a few bongs each night.

The submissions and evidence on behalf of the mother

1. Counsel for the mother indicated that the mother seeks time at a contact centre on an indefinite basis. He pointed to the s 11F recommendation in this regard. The mother seeks that she undertake a hair follicle test, followed by supervised time for some six to nine months.

2. The grandmother was recalled.  She was cross‑examined by the Independent Children’s Lawyer about the DHHS report.  She admitted taking ice in late 2017 to early 2018 but said she had not used since February 2018.  When challenged, however, with page 20 of the report, which suggested that she had admitted using ice in January 2019, the grandmother admitted using it from the end of January to the start of February 2019.  She was asked about failure to comply with DHHS drug screens and said that the Department had said that they would contact her. 

3. Counsel for the mother resumed his opening.  He noted that the mother says she has been clear of drugs for 10 months but has no material to support this contention.  The mother thought that if she was drug free on the day of the trial she would obtain supervised time based on Ms F report.  She seeks two hours fortnightly and will undertake a hair follicle test.  She had complied with nine out of 13 drug tests requested by the Independent Children’s Lawyer.

4. The mother sought an adjournment, which, for reasons given at the time, I rejected.

5. The mother was called and adopted her affidavit as true and correct.  The grandmother elected not to put questions to her. 

6. Under cross‑examination by counsel for the father, the mother confirmed this was the third round of proceedings.  The children have been with their father since 2012.  There have been orders in 2014 and 2017, and it was put to the mother that she has not taken the chances she had to spend time.  The mother appeared to query as to whether this was the case, and it should be noted that her evidence was all given under tremendous pressure of speech.

7. The mother understood why there should be no face‑to‑face time because of her drugs.  She has a long history of drugs and had taken drugs while spending time with the children.  When it was put to her that she took ice whilst she was with the children, the mother said that the judge knew this.  She had never denied her drug use but stopped using drugs on 8 August 2018. 

8. She had failed to comply with four drug screens requested by the Independent Children’s Lawyer.  It would cost her $72 to have drug screen tests on Saturdays.  She had undertaken one screen for the Department.  Her screen of 16 July 2019 was positive for Valium, which was a prescribed drug.  She had seen her partner’s doctor, who gave her a two‑month prescription.  She had taken Valium the previous Monday and is now prescribed Avanza. 

9. The mother had concerns about the grandmother with the children because of her drug use, however, she is now okay and she has a job.  She cannot watch the grandmother all the time.  Ice use was her major concern with her.  The mother said she should see the children at a contact centre for three months, followed by a report.  She has changed her life around.  She had not had any unsupervised time since 2012.  She had told the Department time was often unsupervised.  She had not taken the children to a friend’s house.  She had taken them to a hotel.  The lack of supervision was for very short periods of an hour or half an hour at the most.  She would not agree to a hair follicle test if she was not drug clear. 

10. The mother does face criminal charges.  She got a CCO with no jail time.  This was on 6 March, previous to which she had thought she would be jailed for six months.  She had another case due the following day (this turned out to be a mention only).  This was for driving whilst suspended.  The mother professed to be compliant with her CCO.  She is seeing a psychologist, Ms J.  Dr K has been her GP for many years.  She still goes to Narcotics Anonymous, sometimes weekly and sometimes fortnightly.  She does not see her drugs counsellor as the CCO requires this anyway.  She moved to Suburb S in early 2019 and lives with her partner.  They are renting. 

11. There had been family violence during the relationship.  There were fights and she had removed the children from the father.  Her relationship with her mother was okay, now the grandmother had got herself together.  There was an agreement between the grandmother and herself as to a contact centre.  After three months she wants unsupervised time and would accept the centre’s recommendations.  Then it could be maybe one day at her home or overnight.  The current telephone contact is for up to half an hour.  FaceTime would be her second choice. 

12. Under cross‑examination by counsel for the Independent Children’s Lawyer the mother confirmed that she started drugs when she was 21.  She stopped in August 2018 but was serious before that.  She accepted that she needs rehabilitation and accepted that there would be a risk of relapse.  She had spoken to people about relapse and got a mental health plan.  This is from the Suburb T Centre to the Suburb L Clinic.  She had seen a psychologist on 4 June 2019.  Her first appointment with Ms J is 23 August 2019 and she has not seen her yet. 

13. She has seen a drug and alcohol counsellor called Mr U through her CCO.  She saw a Ms D from EACH late last year for five sessions.  She confirmed that the DHHS report at page 21 was true.  She had started with Mr U in June.  When asked if Mr U had discussed the matter of insight with her, there was no answer.  She said she stopped because she got no help at all.  She is not addicted now but it was possible she could relapse.  Her criminal history was related to drugs.  She had not tried to get off drugs in her seven years of use.  She only had four sessions with Mr U.  She had five sessions with Ms D then stopped.  Mr U only started one month ago. 

14. When it was put to her that she had not done anything between January to July 2019, the mother said this was because the CCO said what things she had to do.  She was waiting for Mr U.  She did one drug screen for DHHS and thought this was enough.  She has seen a psychiatrist.  There is a report but she is not relying on it.  There is no report from Mr U because she has only seen him once or twice. 

The submissions and evidence of the father

1. Counsel confirmed that the father seeks the orders in his amended response.  He seeks sole parental responsibility and that there be phone calls only each Wednesday.  She also sought injunctions in respect of the issuing of any further proceedings by the grandmother or mother. 

2. The father adopted his trial affidavit as true and correct. 

3. Under cross‑examination by the grandmother, the father confirmed that there were problems with supervision.  He was cross‑examined about a meeting between them at school and said he had asked about the grandmother driving unlicensed and that she had denied it.  The Department told him that she was unlicensed. 

4. The father confirmed that his own father smoked marijuana.  He had changed his life around because he became a single father at 20.  He became a full‑time father.  He acknowledged the children wished to see the mother and they are nine and ten.  He said, however, that the children want to see the mother as they remember their mother.  The mother abandoned them seven years ago.  If the children knew the full extent, they would be different.  The children did not know the mother did drugs. 

5. I interpolate and say that these latter answers were not responsive to any question put.  They demonstrated a very clear state of mind on the father’s part, even in this short interlude.  He has no intention of fostering any face‑to‑face contact between the mother and the children, and indeed remains highly critical and antagonistic towards both her and the grandmother.  It may seem surprising that I can make a finding of this sort, given the very short that the evidence was being given, but what the father said and the way he said it made a vivid impression upon me. 

Final submissions of the Independent Children’s Lawyer

1. Counsel submitted that the father’s application should be granted.  There should be telephone time only with the grandmother included.  The grandmother lacks insight into her drug use.  She has not supervised properly.  She placed the children at some risk.  The mother acknowledges her history of serious drug use until August 2018 and has failed to take any rehabilitation course.  She is only at the start of counselling with Mr U.  There is no evidence about this.  She could have continued with the Department and failed to continue. 

2. She had failed to undertake four tests requested by the Independent Children’s Lawyer and one by the Department.  There was a given history of crime and drugs.  There was no attempt by the mother to cease using drugs until August 2018, which counsel submitted was a shocking admission.  The children were sent to the father in 2012 because of the mother’s drug use. 

3. There were final orders in 2014.  These provided only supervised time but these did not prompt the mother to cease her drug usage.  There were final orders again in 2017 for supervised time because of the mother’s drug use and again this was not enough to prompt the mother to think about the impact of drugs.  Also shockingly, in February 2018 when the father stopped time because of concerns raised by the Department, through to August 2018, the mother still used drugs.  Despite having no time, the mother did nothing from February to August 2018 and kept using drugs.  Drugs were more important to her than the children. 

4. The mother now says she has reformed and should be taken at her word.  The history meant that the Court could not take her at her word. There was the mother’s criminality as a result of her drug use.  The mother completely failed to provide convincing proof she has rehabilitated.  These matters placed the children at risk if the mother relapsed and there were high prospects that this would be the case. 

5. The mother seeks time at a contact centre but this can only be an interlocutory arrangement to protect relationships that already exist pending a trial.  Before time resumes, the mother needs solid evidence of rehabilitation, particularly because she has used methamphetamines for a long time.  There is every reason to believe a relapse will occur.  The ICL naturally hopes and wishes for two supportive parents but the mother cannot yet be held to be trustworthy. 

6. The mother’s presentation at court was eloquent and thoughtful.  She did not seem to be under the influence of drugs, according to a lay person’s observation, but rehabilitation must take place before time restarts.  It would tantalise the children and might not proceed. 

Final submissions for the father

1. Counsel referred to the three rounds of proceedings.  The children have been with the father since 2012.  The presumption of equal parental responsibility was rebutted.  The mother says she is clear of drugs but given her long‑term use and mental health, a relapse was likely.  It was not appropriate to apply the presumption or to order the children to spend time with the mother.  The father acknowledges the benefit to the children of a meaningful relationship with both parents but due to the mother’s problems, the need to protect the children is greater.  Both the mother and grandmother have significant problems and these risks require greater weight pursuant to s 60CC(2A) of the Act. 

1. While the children have expressed some wishes to see their mother, they are not aware that harm could be inflicted upon them.  Time at a contact centre is temporary.  If the mother is imprisoned, the children would be let down again.  The father and the children need certainty.  They do not need to come back to court again and again.  The mother is not able to provide for the needs of the children, nor is the grandmother.  The orders the mother seeks will lead to the certainty of further proceedings. 

Final submissions of the mother

1. Counsel submitted the question was whether there was unacceptable risk to the children.  The Court must investigate and quantify the risk.  Counsel referred to the case of W & W [2005] FLC 93-235, which was, of course, a sexual abuse case, as was B& B [1986] FLC 91-758, to which counsel also referred. Nonetheless, I accept that in circumstances such as these the question as submitted by counsel is indeed correct.

2. Counsel submitted that Ms F’s report was interlocutory, she had expressed a view there should be supervised time.  This did not happen in February 2019 solely because there was a potential trial due.  The mother has said she was led to believe that time would occur if she was clear of drugs.  The Court undertook to obtain transcript from the interlocutory hearing on 23 February 2019 and the parties agreed that the Court could read this and form conclusions without further submissions.

3. The Court has indeed obtained the transcript of the proceeding on 23 February 2019. It is clear that the question of enrolment at a contact centre was discussed but what I relevantly said at paragraph [10] was as follows:

   I don’t see any reason why the parties shouldn’t at least enrol in a contact centre, that doesn’t suggest for an instant that the contact centre will ever be actually used. But if it’s got that kind of time lag on it, plainly there’s no reason why the parties shouldn’t take steps to enrol. But I would emphasise nobody should get their hopes up one way or the other simply because I’m doing that.

   The provision of this transcript only goes to reinforce, I am afraid, the mother’s lack of insight. Her Counsel’s assertion that she thought she would be having supervised time if she were drug free on the return date is plainly contraindicated by the transcript passage above.

4. Counsel submitted that the mother does not say, “Take me at my word.”  There have been nine clear drug screens out of 13.  She is prepared to provide hair strand analysis.  Counsel conceded that the mother’s continued drug use until August 2018 was shocking.  This reflected the insidious nature of ice.  The subsequent abstinence was more significant and to her credit.  There should be supervised time after hair strand analysis.  After six months, time should be unsupervised. 

5. There was a difficulty with supervised time.  An application had been made to Family Life and they had just reached the top of the list.  Counsel was uncertain how long they would remain, (although subsequent advice from his instructing solicitor shows that they are likely to lose their place if judgment is not given promptly).  The weight of the children’s views required consideration. 

6. Counsel submitted there was no question that the father had taken parental responsibility since 2012.  Family violence was historical and the presumption was not rebutted.  There was no evidence of difficulties with communication between the parents.  It was inappropriate to make vexatious litigant orders.  Counsel went on to traverse the mother’s current criminal case and expressed confidence that she was not likely to be jailed. 

Final submissions of the grandmother

1. The grandmother’s final submissions were wholly self‑absorbed and self‑pitying.  She complained that there was no hard evidence and a lot had been over‑exaggerated.  She was married for 31 years and it stopped because her husband was cheating on her.  Her life broke down.  The girls enjoy being around them, her and the mother.  There was a bit of harm on the girls but it was not significant.  She had been to a hotel but this was nothing to do with the home invasion.

2. The mother has done drug screens.  The mother was 19 when [X] was born and 20 when [Y] was born.  The mother had brought up the children in the early years but handed them over to the father.  She concluded by saying, “Without the children in my world, there is nothing”.  The grandmother was labile throughout her final submissions. 

Findings about the parties

1. It is always regrettable to have to make remarks critical of parties but the way this case has been conducted makes this unavoidable.  It is fair to say that the grandmother attempted at all times to minimise her conduct.  Her evidence about supervision was palpably unbelievable.  Her assertions to the effect that what she did in her own time was her own business (being essentially an assertion that she was entitled to take drugs if she wanted to) was significant.  Her query, “Because I took drugs, I cannot see my grandchildren”, shows an astonishing lack of insight.

2. Her behaviour throughout her evidence, and indeed whilst seated at the bar table, was at all points argumentative, combative and aggressive.  She was prone to rhetorical questions in response to those put to her.  Her airy dismissal of concerns about her continuing use of marijuana were very concerning. 

3. As indicated, the mother gave her evidence under considerable pressure of speech.  Her answers were at times chaotic and almost incomprehensible.  She was also in the habit of answering questions with questions. 

4. The father’s evidence was brief because not much was asked of him.  I have already referred to the striking impression his remarks critical of the mother made upon me. 

5. With these remarks in mind, I come to the statutory pathway. 

The statutory pathway

1. Having made these findings, I turn to the statutory pathway.  The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:

   “Summary

   [65]    In summary, the amendments to Pt VII have the following effect:

   1.  Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.  The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3.  If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4.  The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.  When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6.  The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
   (s 65DAA(5)).

   7.  The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends and holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8.  Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.  The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11.     The child’s best interests remain the overriding consideration.”

Parental responsibility

1. The Court is required when making a parenting order to consider making an order for equal shared parental responsibility.  The presumption must be applied unless the Court is satisfied that evidence satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility (s 61DA(4) of the Family Law Act).

2. In this case it is clear that the presumption is rebutted.  This is less because of the admittedly now historical family violence that all parties seem to agree occurred.  In circumstances where the father has had sole parental responsibility since 2012 to all effects and purposes, even though that has not always been what has actually been ordered, and the circumstances of the mother and grandmother are as unsatisfactory as they are, it is quite clear that it is not in the children’s best interests that there be an order for equal shared parental responsibility.

The children’s best interests – the primary considerations

1. In principle, everyone agrees that it is in the children’s best interests to have a meaningful relationship with each of their parents.  Little has been said by the father about the grandmother in this regard.  There has, however, clearly been a need to protect the children from the risk of being exposed to neglect or abuse and this factor requires to be given greater weight (s 60CC(2A)). 

2. In respect of the grandmother, her total lack of insight as to her failure to supervise properly, her continuing and unabated daily use of marijuana, and her all too recent use of ice mitigate in the strongest terms against her.  She utterly lacks insight.  The mother has taken steps that the grandmother has not taken to wean herself of illicit drugs.  Nonetheless, and this is a matter that will be revisited under s  60CC(3) considerations, she is still very much a work in progress and there is a high risk of relapse. Were that to occur in circumstances where the children would, as counsel for the Independent Children’s Lawyer correctly submitted, be tantalised and then disappointed is a very significant consideration. 

The additional considerations – section 60CC(3)(a)

1. The children clearly do enjoy spending time with their mother on the telephone and have expressed a desire to see her.  They are, however, young and the weight to be given to their views must take this into consideration.  Furthermore, they have spent but little time with their mother over recent years, and their memory of her may be to an extent somewhat idealised.  They have not seen their mother when affected by drugs, at least of recent times.  Their views might be radically different were they to do so.

Section 60CC(3)(b)

1. There seems no question but that the children have a clearly established and good relationship with their father.  To his great credit, he has reformed his life since he became a full‑time father at the age of 20 and he is the only secure and central figure that the children have known.  Their relationship with their mother and grandmother is more difficult to evaluate.  It would appear from Ms F’s report that they still, notwithstanding all the difficulties, have at least an incipiently warm relationship with their mother.

2. This relationship, however, has to be approached in the light of the fact that they have not, it would seem, seen their mother and indeed their grandmother’s life in any negative light of recent times. It seems to be acknowledged that they would have been scared by the arguments and other difficulties that obtained in the mother/grandmother’s house in earlier years, including the removal either to a friend’s house, which I frankly think is the more probable, or to a motel.  The fact that the children had to be removed because the mother, grandmother and aunt were arguing so much speaks for itself.

Section 60CC(3)(c)

1. Neither the mother nor the grandmother emerge with great credit under this criterion.  The father has, of course, participated entirely appropriately in making decisions about the children’s future and in looking after them.  While there have been no less than three sets of proceedings, the failure of both the mother and the grandmother to take the steps that were required to effectively reinstate their time speak for themselves. 

Section 60CC(3)(ca)

1. The father has, of course, fulfilled his obligations to maintain the children and, putting the matter shortly, the mother and grandmother have not.

Section 60CC(3)(d)

1. This perhaps is one of the most important matters in this case.  The mother’s position is that she will first prove that she is drug‑free and then embark upon supervised time, with a view to moving to unsupervised time in due course.  The grandmother’s position, while not precisely expressed, appears to coincide with that of the mother.  This brings us to the nub of the matter.  It is the position of the father, and this is wholly supported by the Independent Children’s Lawyer, that effectively this puts the cart before the horse.

2. It is submitted that the mother has done nothing in terms of rehabilitation training and she conceded that this was so.  Given her long‑term use of drugs, in circumstances where she well knew that the usage of drugs was the primary driver of her not spending time with her children, the prospect that her entirely creditable sobriety from 2018 till now will not be subject to relapse is a massive concern. 

3. Furthermore, as she herself concedes, through her own failures to comply with screens requested by both the Independent Children’s Lawyer and the Department, the mother is not in a position to prove the sobriety she asserts in any event.  I do, however, give her credit for her preparedness to undertake a hair strand analysis.  Nonetheless, and furthermore, the mother’s engagement with drug and alcohol counselling is at an entirely incipient stage. 

4. There is force to the criticisms made by the Independent Children’s Lawyer in cross‑examination that the mother appears to undertake drug screens and rehabilitation when she feels it suits her to the extent that it suits her.  This is not an encouraging pattern.  There must be, and I find there is, a very real risk that the mother will relapse.  If this is so, then the children’s time will necessarily have to be ceased and the matter will effectively go off into limbo, which in many ways is where it has been for much of the period from 2012 until now.  This cannot in any sense be in the children’s best interests.

Section 60CC(3)(e)

1. There is no insuperable practical difficulty and expense of the children spending time in a supervised setting such as that sought by the mother and grandmother.  They are already at the top of the list at the contact centre and because this judgment will have been issued in a timely way, they would still be able to take up the time if the Court was minded to order it.  It has not been suggested, indeed the application would presuppose, that there is any difficulty to their taking up such time, in terms of expense and practicalities.

Section 60CC(3)(f)

1. The father is by no means himself entirely perfect.  His attitude to the mother and grandmother, not concealed even during the brief period of time he was giving evidence, is plainly entirely hostile and condemnatory.  Given the history of the matter, perhaps that is not wholly surprising.  Nonetheless, and putting this weakness to one side, he has done, it would seem, very well.  The children are engaged in school and are reported by Ms F to be charming and, it would appear, reasonably well adjusted in the circumstances.

2. The grandmother impressed me, by way of contrast, as being utterly insightless.  Her final submission put the matter probably entirely honestly and effectively from her point of view.  She needs the children in her life to meet her own needs.  That is not the test.  It is a matter of the children’s best interests, not hers.  Her capacity to provide for the children’s needs in an emotional and intellectual way must be open to considerable doubt.

3. The same may well be said of the mother.  Her utter incapacity to wean herself from drugs and put the children first until, at the very least, 2018 is a matter of note. 

Section 60CC(3)(g)

1. The father appears in the main to have turned his life around.  He provides for the children’s needs on an ongoing basis.  His lifestyle seems unremarkable.  The lifestyles of the grandmother and mother are chaotic.  They have their drug‑fuelled binges and fights and arguments. Their difficulty with multiple partners (which I have not felt it appropriate to traverse in any detail but which cannot be ignored) speak for themselves.  Both the mother and the grandmother struck me as being very immature for their years and the volatility of their personalities was self‑evident.

Section 60CC(3)(h)

1. This is not relevant.

Section 60CC(e)(i)

1. The father’s attitude to the children and his responsibilities as a parent are not the subject of meaningful criticism, subject only to the caveat I have observed as to his attitude towards the mother and grandmother.  The mother’s attitude towards the children is of course one of underlying love and affection, but the fact is that it has taken her a long time to gather the strength of will to wean herself from the insidious effects of ice and drugs more generally and to put the children first.

2. The attitude of the grandmother I have just dealt with above.  She sees the children, it would seem to me, more as a support to her own emotional needs than in any other way. 

Section 60CC(3)(j)

1. There has of course been family violence during the relationship and there has been family violence of more recent moment between the mother and grandmother.  I have already dealt with the latter and it is not necessary to repeat it.

Section 60CC(3)(k)

1. The Court’s attention was not specifically drawn to Intervention Orders but it seems highly probable there have been some but they are not now of any moment.

Section 60CC(3)(l)

1. In my view this is an important consideration.  True it is that the children have not been grossly overexposed to the litigation.  They have, however, had to undergo two family reports and one 11F report.  There is no suggestion in the materials that suggest these experiences have been damaging to them.  What needs to be noted, however, that this is the third tranche of litigation between these parties.  It is a stress and strain on the father. 

2. He has deposed that this has caused him difficulties with his health, and while at one level of analysis his responses might be thought to be somewhat exaggerated, the fact is that he is the children’s primary carer and his mental health is not an irrelevant consideration.  In the end, while the matter might be thought to be somewhat evenly balanced, the submission of the Independent Children’s Lawyer is a telling one. 

3. The chances of relapse by the mother, whose endeavours at rehabilitation are, in truth, at an incipient stage only, are significant and, if this occurs, then further litigation is inevitable.  It is plainly preferable to make final orders.

Section 60CC(3)(m)

1. The thing that is otherwise relevant, in my opinion, is that indicated by the Independent Children’s Lawyer.  If the mother can obtain clear hair strand analysis and demonstrate at some future point that she has indeed engaged appropriately with her drug and alcohol counsellors, and otherwise completed her CCO and really turned her life around, then the way is clear before her to bring a further application. 

2. Were this to be done, in my view she would not face a Rice & Asplund objection as there would plainly be a material change of circumstances.  I record this so that should there be such an application, the judicial officer who hears the matter would have this matter drawn to their attention. 

Conclusion

1. This has not been an easy matter to hear.  The trial itself was difficult to control because of the grandmother’s frequent interjections and because of the stressed nature of all of the primary participants in it.  It is not a happy thing to contemplate children who want to see their mother not doing so.  There is plainly a risk that in making the orders that the Independent Children’s Lawyer seeks the relapse that is feared is made all the more likely. 

2. Nonetheless, taking all the relevant and competing matters into consideration, I have no doubt that the position contended for by Independent Children’s Lawyer and supported by the father is that which is Independent Children’s Lawyer. There will be orders accordingly.

3. I should note finally that the father sought orders pursuant to s 114 of the Act to inhibit further proceedings. In my view this application is misconceived. In substance what the father seeks are vexatious litigant orders. Such orders are properly sought under s 88Q of the Federal Circuit Court of Australia Act, not the general injunctive provision in

   
   

   s 114(3) of the Family Law Act. Secondly, this is the first judgment following a contested final hearing between the parties.  There is no history that would justify the orders the father seeks to restrain further applications.

I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 23 August 2019