Sykes and Groff and Ors
[2019] FCCA 1079
•3 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SYKES & GROFF & ORS | [2019] FCCA 1079 |
| Catchwords: FAMILY LAW – Parenting – whether a father ought to have unsupervised time with a young child when there are serious allegations of family violence and drug abuse and he has failed to provide drug screens. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC, 61C, 61DA |
| Cases cited: Mazorski v Albright (2008) 37 FLR 518 Tait & Dinsmore [2007] FamCA 1383 |
| Applicant: | MS SYKES |
| First Respondent: | MR GROFF |
| Second Respondent: | MR B GROFF |
| Third Respondent: | MS C GROFF |
| File Number: | MLC 4164 of 2017 |
| Judgment of: | Judge Small |
| Hearing dates: | 26 & 27 September 2018 |
| Date of Last Submission: | 27 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 3 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Mallett |
| Solicitors for the Applicant: | Maddison Law & Co |
| Counsel for the First Respondent: | Mr Thexton |
| Solicitors for the First Respondent: | Thexton Lawyers |
| Counsel for the Second and Third Respondents: | Ms Chia |
| Solicitors for the Second and Third Respondents: | Bowlen Dunstan & Associates |
| Counsel for the Independent Children's Lawyer: | Ms Stavrakakis |
| Solicitors for the Independent Children's Lawyer: | Danielle Webb Lawyer |
ORDERS
All previous parenting orders in relation to the child [X] born … 2015 (“the child”) are hereby discharged.
The mother shall have sole parental responsibility for the child.
The child shall live with the mother.
Before making any major decision about the child’s name, medical treatment, education or religious practice in the exercise of her sole parental responsibility for the child, the mother shall inform the father in writing of her intention to do so, and the father shall respond to that information, in writing only, within 7 days, whereupon the mother shall consider the father’s views and inform him of her decision within 7 days of the decision being made.
Within 72 hours of the date of these Orders, the Father shall make an appointment to attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee by telephoning 1300 37 84 83, and shall provide a hair sample (“the sample”) for drug testing purposes (“the drug test”), with collection to be conducted by a qualified and certified collector, and the drug test to screen for illicit substances for the 6 months prior to the provision of the sample.
To give effect to paragraph 5 hereof, the Father shall maintain his head hair at a length of not less than four (4) centimetres and he is hereby restrained by injunction from cutting, bleaching or dyeing his hair, or allowing any other person to do so, between the date of this order and the time of collection of the sample.
Each party or their legal representative (including the Independent Children’s Lawyer) shall be at liberty to provide AWDTS with a copy of these orders.
The Father shall provide the collector with:
(a)photographic identification to be recorded before each hair collection; and
(b)a copy of this order hereby authorising AWDTS or nominee to provide the results of each test to both parties, the father and the mother, and the Independent Children’s Lawyer upon receipt of such test results.
The drug test may screen for alcohol EtG and/or drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drug specified in this order as required.
For the purposes of conducting the drug test:
(a)AWDTS shall utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body;
(b)AWDTS’ selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with international Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available; and
(c)Chain-of-Custody procedure is to be applied to the sample.
The cost of the drug test shall be met by the Father.
The father shall provide the results of the drug test to the mother and to the Independent Children’s Lawyer by SMS or email within 7 days of receipt.
Until the father has provided a hair follicle drug test that complies with paragraphs 5 to 12 hereof, and which shows an absence of any illicit substance for the previous 6 months, the child shall spend time and communicate with the father as follows:
(a)Provided that he has provided six consecutive urine drug screens within 24 hours of a request by the Independent Children’s Lawyer, showing no use of illicit substances, then from 9:00 a.m. until 1:00p.m. on Saturdays supervised by the paternal grandparents;
(b)If the father has not complied with paragraph 13(a) hereof, then for 2 hours in each alternate week supervised by a professional Child Contact Service or Centre at such times as might be accommodated by the Contact Service or Centre; and
(c)at other times by agreement between the parties in writing.
Upon the father providing a hair follicle drug test that complies with paragraphs 5 to 12 hereof, and which shows an absence of any illicit substance for the previous six months, the father shall spend time and communicate with the child as follows:
(a)For four hours on each weekend at times to be agreed between the parties in writing, and in default of agreement from 9:00 a.m. to 1:00 p.m. on each Saturday for two visits commencing on the Saturday following the date upon which the clean hair follicle drug test is provided to the mother;
(b)Thereafter for eight hours on each alternate weekend at times to be agreed between the parties in writing, and in default of agreement from 10:00 a.m. to 6:00 p.m. on each alternate Sunday for four visits;
(c)Thereafter on each alternate weekend from 10:00 a.m. on Saturday to 10:00 a.m. on Sunday for four visits;
(d)Thereafter on each alternate weekend from 10:00 a.m. on Saturday to 6:00 p.m. on Sunday for four visits;
(e)Thereafter on each alternate weekend from 6:00 p.m. on Friday to 6:00 p.m. on Sunday;
(f)From the first weekend of the second term in the child’s first year of school, during school terms on each alternate weekend from the conclusion of school on Friday (or Thursday if Friday is not a school day) to the commencement of school on Monday (or Tuesday if Monday is not a school day);
(g)In the Term 2 school holidays in the child’s first year at school for five nights by agreement between the parties and failing agreement from the conclusion of school on the last day of Term 2 to 6:00 p.m. on the following Wednesday;
(h)From the Term 3 holidays in the child’s first year at school, for half the school term holidays each year by agreement between the parties and failing agreement:
(i)From the conclusion of school on the last day of term to 6:00 p.m. on the second Saturday in odd numbered years: and
(ii)From 6:00 p.m. on the second Saturday to the commencement of school on the first day of the next term in even-numbered years.
(i)In the long summer holidays at the end of the first year in which the child attends school on a week-about basis commencing at 6:00 p.m. on the last day of the school year and concluding at 6:00 p.m. on the Friday prior to the new school year;
(j)Thereafter for half of the long summer holidays each year by agreement and failing agreement for the first half in odd-numbered years commencing at 6:00 p.m. on the first Saturday and for the second half in even-numbered years save that the child shall be returned to the mother no later than 6:00 p.m. on the Friday before the commencement of the next school year;
(k)At Christmas by agreement between the parties in writing and failing agreement:
(i)From 6:00 p.m. on Christmas Eve to 10:00 a.m. on Christmas Day in odd-numbered years;
(ii)From 10:00 a.m. on Christmas Day to 6:00 p.m. on Boxing day in even-numbered years;
(l)At Easter by agreement between the parties in writing and failing agreement:
(i)From 6:00 p.m. on the night before Good Friday to 6:00 p.m. on Easter Saturday in odd-numbered years; and
(ii)From 6:00 p.m. on Easter Saturday to 6:00 p.m. on Easter Monday in even-numbered years;
(m)For the child’s birthday each year:
(i)in even-numbered years should the child’s birthday fall on a weekday from 3:30 p.m. or the conclusion of school to 7:00 p.m. on the day before the child’s birthday;
(ii)in odd-numbered years should the child’s birthday fall on a weekday from 3:30 p.m. or the conclusion of school to 7:00p.m. on the child’s birthday;
(iii)From 10:00 a.m. to 2:00 p.m. on the child’s birthday in even-numbered years should it fall on a weekend;
(iv)From 2:00 p.m. to 6:00 p.m. on the child’s birthday in odd-numbered years should it fall on a weekend;
(n)For the father’s birthday from the conclusion of school or 3:30p.m. to 7:00 p.m. should the father’s birthday fall on a weekday, and from 2:00 p.m. to 6:00 p.m. should it fall on a weekend;
(o)From 6:00 p.m. on the day before Fathers’ Day to 6:00 p.m. on Fathers’ Day each year;
(p)By telephone, FaceTime, Skype or other electronic means:
(i)at any time at the instigation of the child and the mother shall facilitate that time by providing the child with a charged and working telephone, tablet or computer and shall place the call for him until such time as he is able to place the call himself; and
(ii)at the father’s instigation on one occasion per week by agreement between the parties in writing and failing agreement between 6:00 p.m. and 6:30 p.m. on each Tuesday that the child is not in the father’s care, with the father to place the call, and the mother shall ensure that the child has access to a charged and working telephone, tablet or computer, that he is available to take the call, and that he is afforded privacy during the call.
(q)At other times by agreement between the parties in writing from time to time.
The father’s time with the child shall suspend, if necessary, on the following occasions:
(a)For Christmas:
(i)From 6:00 p.m. on Christmas Eve to 10:00 a.m. on Christmas Day in even-numbered years; and
(ii)From 10:00 a.m. on Christmas Day to 6:00 p.m. on Boxing day in odd-numbered years;
(b)For Easter:
(i)From 6:00 p.m. on the night before Good Friday to 6:00 p.m. on Easter Saturday in even-numbered years; and
(ii)From 6:00 p.m. on Easter Saturday to 6:00 p.m. on Easter Monday in odd-numbered years;
(c)For the child’s birthday each year:
(i)in odd-numbered years should the child’s birthday fall on a weekday from 3:30 p.m. or the conclusion of school to 7:00p.m. on the day before the child’s birthday;
(ii)in even-numbered years should the child’s birthday fall on a weekday from 3:30 p.m. or the conclusion of school to 7:00 p.m. on the child’s birthday;
(iii) From 10:00 a.m. to 2:00 p.m. on the child’s birthday in odd-numbered years should it fall on a weekend;
(iv)From 2:00 p.m. to 6:00 p.m. on the child’s birthday in even-numbered years should it fall on a weekend;
(d)For the mother’s birthday from the conclusion of school or 3:30p.m. to 7:00 p.m. should the mother’s birthday fall on a weekday, and from 2:00 p.m. to 6:00 p.m. should it fall on a weekend;
(e)From 6:00 p.m. on the day before Mothers’ Day each year; and
(f)At other times by agreement between the parties in writing.
All time the father spends with the child pursuant to paragraphs 14(a) to (f) hereof shall suspend during school holidays and recommence after the holidays as if the holidays had not intervened.
The mother shall ensure that the child’s school or kindergarten makes available to the father, at his cost if any, all school reports, photographs, information about parent-teacher interviews, sporting or cultural events, and information about all prizes or awards won by the child, and the father shall be at liberty to attend parent-teacher interviews and all sporting or cultural events usually attended by parents provided that he does not approach the mother without her express consent having first been obtained in writing.
The parties shall each inform the other of any serious illness or injury suffered by the child which requires hospitalisation or specialist treatment while he is in their respective care, and they shall authorise any treating medical or allied practitioners who are caring for the child to speak to the other parent about the child’s treatment.
The parties and their servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family or household in the presence or hearing of the child and from permitting any other person to do so;
(b)discussing these proceedings with or in the presence or hearing of the child (save to explain any changes in his living circumstances to him) and from permitting any other person to do so; and
(c)allowing the child to access, read, or have read to him, any portion of the Court’s Reasons for Judgment in this matter.
The mother shall be at liberty to provide a copy of these Orders to any school or kindergarten attended by the child.
The Order of Judge Small, dated 30 May 2017 appointing the Independent Children’s Lawyer is hereby discharged.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
B.Property proceedings between the wife, the husband, and the husband’s parents remain listed for trial on 25 July 2019 with an estimated hearing time of two days.
IT IS NOTED that publication of this judgment under the pseudonym Sykes & Groff & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 4164 of 2017
| MS SYKES |
Applicant
And
| MR GROFF |
First Respondent
| MR B GROFF |
Second Respondent
| MS C GROFF |
Third Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting and property matter between Ms Sykes “the mother”) and Mr Groff “the father”).
Property proceedings remain on foot and are listed for Final Hearing on 25 July 2019 for an estimated hearing time of two days.
The Orders and Reasons for Judgment contained herein are in relation to parenting matters only.
There is one child of the marriage, namely [X] born … 2015 (“[X]” or “the child”).
[X] lives with his mother and spends supervised time with his father each Saturday between 9:00am and 1:00pm.
The mother seeks orders that she have sole parental responsibility for [X] and that he live with her; that the father not spend time with [X] unsupervised until he has provided a hair follicle drug test that shows he has not used illicit drugs for 6 months; and orders for [X] to spend varying time with his father dependent on the father’s compliance with the requirement for drug testing.
The father seeks orders that the parties have equal shared parental responsibility for [X]; that [X] live with his mother; that he spend time with his father on alternate weekends, for one week in each school holiday period and for special occasions.
The Independent Children’s Lawyer seeks orders for the mother to have sole parental responsibility for [X] and that he live with her; for the father to spend supervised time with [X] for up to four hours each weekend pending the results of a hair follicle drug screen; and for gradually increasing time after he provides a clean hair follicle drug screen.
The issues to be decided in the parenting proceedings are therefore:
A. Whether the parties should have equal shared parental responsibility for [X] or whether the mother should have sole parental responsibility;
B. Whether the father ought to spend unsupervised time with [X] without providing proof that he has not taken illicit substances for 6 months; and
C. What kind of time [X] should spend with his father.
Background
Ms Sykes was born on … 1987 and is therefore 31 years old. She works on a full time basis as a professional.
Ms Sykes deposes to having been diagnosed with post-traumatic stress disorder as a result of the family violence perpetrated towards her during and following the relationship. She is otherwise in good health. She has not re-partnered.
Mr Groff was born on … 1983 and is therefore 35 years old. He is currently employed casually as a tradesman. He is in good health.
Mr Groff has re-partnered with Ms D. They were expecting a child in … 2019.
The parties met in 2006 and began cohabitation in mid-2011. They married on … 2014 and separated on 6 May 2016.
[X], who is the only child of their relationship, has lived in the primary care of his mother all his life. The father has spent minimal time with [X] since separation.
Prior to interim orders being made at trial, the father was spending supervised time with [X] every fortnight for two hours. The father has failed to provide drug screens in order for him to progress his time with [X] from supervised to unsupervised time, and to increase the hours he spends with [X].
Procedural History
This matter commenced with Ms Sykes filing an Initiating Application, Affidavit in Support and Financial Statement on 2 May 2017.
Mr Groff filed a Response, Affidavit in Support and a Financial Statement on 29 May 2017.
This matter first came before me in the Duty List on 30 May 2017. I made interim parenting and property orders on that day. I also made orders for the appointment of an Independent Children’s Lawyer, and for the parties to attend a Conciliation Conference. I otherwise adjourned the matter for Directions on 22 August 2017.
On 20 June 2017, the Mother filed an Amended Initiating Application, Affidavit and Notice of Risk.
The Mother filed a supporting Affidavit sworn by Ms E on 15 August 2017. She also swore and filed an Affidavit of her own on 21 August 2017.
On 22 August 2017, interim parenting and property orders were again made by consent. I otherwise adjourned the matter to the Duty List for Directions on 13 March 2018 and for Final Hearing on 26 September 2018 for three days.
On 13 March 2018, interim parenting and property orders were made by consent.
On 11 May 2018, the Father’s parents, Mr B and Ms C Groff, filed an Application in a Case and Affidavit in Support, seeking leave to intervene in the property proceedings.
On 15 May 2018, I made an Order in Chambers by consent that the father’s parents have leave to intervene in the proceedings and that they file and serve any Affidavits upon which they intend to rely no later than 28 days before the Final Hearing, that is, no later than 29 August 2018.
On 11 September 2018, the Mother filed her Trial Affidavit.
On 14 September 2018, the Father filed a Financial Statement and Trial Affidavit.
On 24 September 2018, the Mother and Father filed their respective Case Outlines.
On 25 September 2018, the Independent Children’s Lawyer filed her Case Outline.
Final Hearing commenced on 26 September 2018 and the matter ran for 2 days. The mother, the father and the Independent Children’s Lawyer were all represented by counsel.
Witnesses at trial were the mother and the father, both of whom were cross-examined by the other’s counsel and by counsel for the Independent Children’s Lawyer. Ms E was not required for cross-examination.
Following the conclusion of evidence and submissions on 27 September 2018, I reserved my decision on parenting matters and listed the property proceedings for Final Hearing on 25 July 2019.
I also made interim orders that the child spend time with the Father, supervised by the paternal grandparents, each Saturday between 9:00am and 1:00pm after the Father has provided six consecutive clean urine drug screens.
Issues and Evidence
It is not possible to refer to every fact and/or matter raised in the trial of these proceedings and nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, including my notes, the trial transcript and the demeanour of the parties at trial, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.
Issue A. Whether the parties should have equal shared parental responsibility for [X] or whether the mother should have sole parental responsibility
The law relating to parental responsibility for the children of separated parents is found in Division 2 of Part VII of the Family Law Act 1975 (“the Act”), and more particularly in ss.61C and 61DA.
Section 61C(1) and (2) state that each of the parents of a child who has not reached the age of 18 years has parental responsibility for the child, whether or not the parents are living together, are married, or have separated.
In Note 1 attached to s.61C(1), the Act makes clear that the above statement simply states the legal position that exists unless and until an order to the contrary is made by the Court.
Section 61DA states as follows:
(1) When making a parenting order in relation to a child, the court must 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.
(2) 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.
Subsection 4 of s.61DA states that 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 for the child.
In this case, there is ample evidence of family violence having been perpetrated upon Ms Sykes by Mr Groff. That evidence is found not only in the evidence of the mother and Ms E, to which I will refer later in these Reasons, but in the public record.
In September 2016, Mr Groff pleaded guilty to the following charges, all of which pertained to incidents involving Ms Sykes:
· Unlawful assault
· Recklessly causing injury
· Making threats to kill
· Property damage
These offences were charged in addition to 25 charges of breaching an Intervention Order.
In those circumstances, I have more than reasonable grounds to believe that Mr Groff has engaged in family violence, and therefore the presumption of equal shared parenting responsibility does not apply under s.61DA(2).
The child’s best interests
I must now determine whether it is in [X]’s best interests for his parents to equally share responsibility for his parenting under s61DA(4).
S.60CA of the Act states that whenever a Court is considering whether to make a parenting Order, the best interests of the child must be its “paramount consideration”.
S60CC then goes on to set out the matters the Court must address when considering what Orders to make in a child’s best interests, and I will deal with each of those matters separately.
60CC Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
The question of what constitutes a “meaningful relationship” has been discussed in many cases before this Court and the Family Court of Australia.
In Mazorski v Albright (2008) 37 FLR 518 Brown J said, at paragraph 26:
[…] a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
In other words, it is not the amount of time that a parent spends with a child that makes it “meaningful” – it is the quality of that time.
In Tait & Dinsmore [2007] FamCA 1383, Cronin J said, at paragraph 170:
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
There is ample evidence, in affidavits sworn by both the father and the mother, and in oral evidence given at trial, that [X] has a meaningful relationship with his mother in most of the terms set out by Brown J and Cronin J.
He appears to be developing a meaningful relationship with his father too, in that he clearly enjoys the time he spends with him, limited as it currently is, and that that relationship is important to him.
It is not clear whether Mr Groff has been able to “lead by example about self-discipline”.
There are serious concerns about his use of illicit drugs, in particular his alleged use of the methamphetamine known as “Ice”, and he has taken what can only be called a recalcitrant stand on that issue, failing or refusing to provide urine samples for screening while saying that Ms Sykes “has no proof” that he is still using.
If he wants to provide a good role model for his son, he must face those allegations head-on and provide the evidence of his alleged drug-free lifestyle. If he does not, inferences may be drawn about that issue.
Mr Groff presents as understanding the “privileges” that are involved in parenting but he shows little appetite for the “responsibility”.
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The need to keep [X] safe from harm is therefore the most important consideration for the Court in this matter.
[X] is 3½ years old. He is fully dependent on the adults who care for him in relation to his physical, material, emotional, social and educational needs.
It is the evidence of his mother that he has been exposed to the verbal and physical abuse Mr Groff perpetrated upon her both during the marriage and since separation. I will discuss that evidence further later in these Reasons.
That evidence is supported by the unchallenged evidence of Ms E, Ms Sykes’ cousin, who deposes, in her Affidavit affirmed and filed on 15 August 2017 that she had witnessed Mr Groff disparaging Ms Sykes, making “snide comments to her” and swearing at her.
Ms E says that a week before the parties separated, the father called her, and yelled at her to come and remove the mother from the family home. Ms E then attended at the family home.
She then deposes, at paragraphs 16 to 19 of her Affidavit:
16. I asked Mr Groff why Ms Sykes needed to leave. He told me it was “because she went through my phone”. Mr Groff was clearly very angry.
17. This occurred on a weekend, Mr Groff wasn’t working. I went around to the house and said “what is going on?” Mr Groff was not in the room when I walked in. Ms Sykes said to me that she had gone through Mr Groff’s phone and had seen text messages from another woman and that Mr Groff had then become angry and violent.
18. Mr Groff then walked into the lounge room and started screaming “I want that bitch out of here. That fucking mole, she went through my personal belongings and I can’t have nothing that belongs to me, she’s got to snoop around, I’ve got no privacy at all. She can fuck right off out of here. [X]’s staying here. I don’t give a fuck where she goes.”
19. I noticed that Mr Groff was behaving strangely. He was in a rage, I had not seen him this angry before. There was sweat coming down off his forehead. He was on edge and was pacing up and down. I have never seen Mr Groff so angry and violent with sweat dripping off him like that.
And later:
22. I said “Mr Groff, you can’t kick her out, she is [X]’s mother”. Mr Groff was holding [X], keeping him away from Ms Sykes.
23. Ms Sykes said to Mr Groff, “why don’t you tell her what you did to me, you grabbed me round the throat”. I was shocked. I recall clearly that Mr Groff did not deny it, he just said “well you shouldn’t have gone through my stuff”.
24. Mr Groff was in Ms Syke’s face, yelling and screaming at her with his face only centimetres from her face, nearly touching her. He was screaming “I want you out of my house, you fucking mole, you slut”. [X] was in Mr Groff’s arms at the time.
As I have stated, Ms E’s evidence is unchallenged, and I accept it in its entirety. It describes a man with no control over his emotions or his behaviour and one who is prepared to both physically and verbally abuse the mother of his child in that child’s presence.
I note in this context that under s.4AB of the Act it is an act of child abuse in itself to expose a child to family violence.
I will therefore have to make Orders whose primary object is to keep [X] safe from Mr Groff’s abuse and violence.
Section 60CC(3) then sets out “Additional considerations”. They are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
At 3½ years old, [X] is too young to express any views in this matter which would have any weight.
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
There is nothing in the evidence before the court which leads me to believe that [X] has anything but a warm, close, loving relationship with his mother. Ms Sykes has been his primary carer for his whole life and he is thriving in her care.
There is significant evidence that despite the deplorable family violence to which Mr Groff has exposed [X], and the lack of evidence in relation to the father’s drug-taking, he has been developing a warm, close relationship with his son while being supervised by a professional supervisor.
The report of the professional supervisor, annexed to the mother’s Trial Affidavit, affirmed on 11 September and filed on 26 September 2018 (“the mother’s Trial Affidavit”), is almost entirely positive about the interactions between [X] and his father for two-hour periods occurring at a play centre or swimming centre.
There is also evidence in the professional supervisor’s report of a warm, close and loving relationship between [X] and his paternal grandparents, who have attended at many of the activities undertaken by Mr Groff and [X].
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
Since separation on 6 May 2016, which occurred when Victoria Police issued a Family Violence Safety Notice excluding Mr Groff from the family home, [X] has been in his mother’s primary, and indeed almost sole care.
Because of Court Orders limiting his time with [X], Mr Groff has spent very little time with [X] since then.
Ms Sykes has made all major decisions in relation to [X]’s care and living arrangements, although it must be acknowledged that Mr Groff has not had the opportunity to participate in that decision-making because of the Intervention Orders in place against him, those Orders being the result of his violent and abusive behaviour.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
At trial, Mr Groff was cross-examined at some length about his use of the funds available to him since separation, both in terms of his purported reasons for failing to provide drug screens and his failure to pay appropriate child support.
That cross-examination revealed that at times when Mr Groff had claimed in Affidavit material not to have had money to pay for drug screens or child support, he was spending significant amounts of money, often hundreds of dollars a day, on on-line gambling sites.
I do not accept Mr Groff’s evidence that he has paid child support for [X] in an appropriate amount whenever he could afford to do so. He has clearly placed his participation in on-line gambling ahead of his responsibility to support his son financially on multiple occasions.
I note that s.3 of the Child Support Assessment Act 1989 (Cth) requires a parent to place the need to support a child ahead of all other costs save for those necessary to maintain that parent or another child.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
There is no suggestion that [X] will be permanently separated from either of his parents or his grandparents.
He sees his father and paternal grandparents regularly and relatively frequently pursuant to current court orders, although that time is limited because of his father’s failure to provide evidence that he is no longer using illicit drugs.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
There do not appear to be any practical issues in terms of distance which would affect [X]’s right to maintain his relationship with both parents.
Again, however, there is a practical difficulty which restricts his time with his father, that being his father’s failure to show that he is free of illicit substances.
That matter is entirely “in the father’s court”.
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
There is no suggestion that [X]’s parents (or his grandparents) cannot take care of his material needs. He is housed, fed and clothed appropriately, and he socialises well.
It is in the area of [X]’s emotional needs that the court has some concerns.
Mr Groff’s failure to take full responsibility for his abuse of Ms Sykes, which I will discuss later in these Reasons, as well as his almost adolescent refusal to undergo drug screens while insisting that he has never said he would not do so, do not give the court confidence that he is able to care for his son as a responsible parent.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
Ms Sykes impresses as a mature and responsible parent for [X]. She is the survivor of serious family violence at the hands of Mr Groff and she has continued to provide [X] for time with him so that [X] is safe.
Mr Groff, unfortunately, does not impress the court as being particularly mature in his approach to his parental responsibilities.
Both parents come from backgrounds rich in history and cultural traditions which, if he is properly made aware of them, will greatly expand [X]’s views of the world as he grows up.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in these proceedings.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
Ms Sykes has been [X]’s primary carer for his whole life. She has demonstrated a parental attitude that puts his safety and interests ahead of her own, and she is to be greatly commended for that.
Mr Groff would like the court to think that he too has a responsible attitude to his relationship with [X], but I am not convinced of that assertion because of the evidence of the mother, Ms E and the public record in relation to family violence and his alleged drug use.
(j) any family violence involving the child or a member of the child's family;
The issue of family violence is at the centre of these proceedings.
I have often said that when the rock of family violence, be it boulder or pebble sized, is dropped into the pool of family life, it sinks straight to the core of the family, and its ripples run very wide indeed.
Home is where people expect to feel safe and secure. It is a haven from the worries and vicissitudes of life – somewhere where one can fully relax and be oneself, and where one can expect support from one’s partner.
When that environment of security and safety is shattered by family violence, whether in the form of physical abuse, emotional abuse/disrespectful speech, or financially or emotionally controlling behaviour, it is a double betrayal. Not only is it an affront to one’s personal sense of safety and security, as would be the case in any assault or emotionally abusive behaviour, but the perpetrator is the very person with whom one is supposed to feel most secure, and most safe.
I have set out some of the public and private evidence in relation to Mr Groff’s propensity to commit family violence in paragraphs 40 – 42 and 60 – 63 above.
It is Ms Sykes’s evidence[1] that Mr Groff behaved towards her in an aggressive and disrespectful manner “around the last 5 years of our 10 year relationship”. She states:
8. The abuse throughout the relationship was verbal, emotional and psychological abuse. Towards the end of the relationship the abuse became physical. He told me that he would kill me in order to get our child.
9. I have recordings of the Husband saying things like “I don’t care that she is a mother, that means nothing to me” and threats to take [X]. He would say to me that the only way that one of us is taking [X] is if the other was “in the ground”.
[1] The affidavit of Ms Sykes sworn 1 May and filed 2 May 2017 paragraphs 7 to 9.
It is her further evidence[2] that Mr Groff physically assaulted her a week prior to their separation to the extent that she was “covered in bruises”. When she attempted to film his violence Mr Groff smashed her phone with a hammer. That incident was later reported to the police and Mr Groff was charged with assault.
[2] Ibid paragraph 13
She says that on at least one occasion, Mr Groff held her down and put his hands around her throat. That must have been terrifying for her.
It is Ms Sykes’s evidence[3] that she has been diagnosed with Post-Traumatic Stress Disorder as a result of the family violence perpetrated against her by Mr Groff.
[3] Ibid paragraph 23
Mr Groff says that he might have perpetrated some family violence against Ms Sykes, but that it was minor in degree, and that she was also aggressive towards him.
He was loath at trial to take responsibility for the acts which led to his being charged as set out in paragraph 41 above, despite the fact that he had pled guilty to those quite serious charges.
Indeed, throughout his evidence, Mr Groff appeared to minimise the severity of any family violence he could not deny, or to deflect responsibility for it on to Ms Sykes.
He had completed a Men’s Behavioural Change Program in the first half of 2017 and was very keen to have the court take that into account.
Mr Groff was asked at trial about a Department of Health & Human Services (Child Protection ) (“DHHS”) report dated 18 August 2017 provided under s.67Z of the Act (“the s67Z report”), which describes him as follows in March 2017, when he was in the middle of his attendance at the Men’s Behavioural Change Program:
On 27/3/17 Mr Groff was interviewed and reported he was undertaking the Men’s Behavioural Change course. During the interview Mr Groff was minimising of the family violence and his behaviour, and denied drug use was (a) contributing factor in the family violence incident in May 2016, or current drug use. Mr Groff was provided with a supervised urine drug screen complete within 24 hours, and he advised he wouldn’t be able to complete within requested timeframe. Mr Groff advised he wanted to see his son. Mr Groff became heightened demanding Child Protection to leave when discussing substantiation decision; there was no further discussion.
And later in the s.67Z report:
Throughout Child Protection involvement, Mr Groff’s (sic) presented as teary, aggressive, swearing and at times threatening in tone. There were times when Mr Groff would present calm and reasonable, however the majority of conversations (including text messages) would escalate. Mr Groff denied having mental health concerns. Mr Groff acknowledged he was distraught about not seeing his son and this was impacting him. Concerns were raised that Mr Groff’s ability to parent [X], when he presented as having little emotional and self-regulation and the potential risk this posed for [X].
DHHS assessed at that time that [X] was not at significant risk of harm in Ms Sykes’s care, but that “[X] was at risk of harm due to family violence and likelihood of future harm. Under s.162 of the Children’s (sic) Youth and Family Act 2005, harm was substantiated on grounds (e) emotional and (c) physical harm”.
When these matters were put to Mr Groff at trial he merely said:
She[4] wasn’t a counsellor. And yes, I was teary. Again, I was missing my son that I wasn’t allowed to see; my wife had left me.
[4] I inferred that Mr Groff was speaking about the writer of the s.67Z report here.
Later in his cross-examination, the following exchange took place between Mr Groff and Counsel for Ms Sykes:
Counsel: Well, let’s turn to the Men’s Behavioural Change Programme (sic in transcript). That was a programme that you attend through Relationships Australia.
Mr Groff: Correct.
Counsel: As part of that programme, were there sessions where you were required to accept responsibility for the family violence you perpetrated?
Mr Groff: Yes.
Counsel: And did you do so?
Mr Groff: Course I did. I’ve taken responsibility for my actions in – throughout the whole relationship and what I could have done to prevent it, yeah.
Counsel: Did you learn during the course of that that family violence isn’t simply hitting somebody?
Mr Groff: I did through that course, yes.
Counsel: Did you – were there discussions during that about belittling, emotional abuse and use of aggressive and unpleasant language towards somebody?
Mr Groff: I did learn that, yes.
Counsel: Do you accept that that was part of your relationship with Ms Sykes?
Mr Groff: I accept that it was both ways, yes.
Counsel: No, do you accept that you committed family violence towards her in the form of belittling and abusive – you do?
Mr Groff: Yes, I do.
Counsel: Do you accept that you also continued to do so following the end of your relationship?
Mr Groff: Yes, I did.
Counsel: Particularly, I’m going to suggest, as she sets out in her affidavit, when you threatened to show her father intimate images that had been taken between you when you were a couple?
Mr Groff: What about it? I don’t get what you’re trying to say.
Counsel: You did do that, didn’t you – threaten to show her father intimate images that had been taken between you two as a couple in March 2017?
Mr Groff: I could have.
Counsel: I could have?
Mr Groff: I might have said it, I don’t know. I can’t remember. I said a lot of things.
When asked why he would have made that threat to Ms Sykes, Mr Groff said: “I don’t know, your Honour. I would’ve – it would have been to upset her”.
He denied that he had done so in order to force Ms Sykes to provide [X] to him.
In relation to the Men’s Behavioural Change Program, it was his evidence that he was “still learning from that course. I’m still trying to fix things in myself from that course”.
Mr Groff impressed at trial as a man with little insight into the profound effect of family violence on his former wife and son, although he did appear to understand that he, his present partner and their expected child would all benefit if he were able to “fix things in myself”. Whether he has the motivation or indeed the capacity to do so is still unknown.
The examples of family violence set out in these Reasons are not an exhaustive list of incidents alleged to have occurred in affidavit material and in oral evidence given at trial.
When taken together, the incidents paint a picture of a self-centred, entitled and violent man who cannot understand why the violence he perpetrated against the mother of his child is an issue in these proceedings.
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(iii)any other relevant matter;
On 6 May 2016, as a result of the incident described in paragraphs 62-63 above, a member of Victoria Police made an application for an Intervention Order against Mr Groff and charged him with assault.
On 23 September 2016, Mr Groff was convicted for breaching the Interim Intervention Order on more than one occasion, assault and cannabis possession, and was sentenced to a 12 month Community Corrections Order.
In November 2016, Ms Sykes made an application to vary the Intervention Order to allow Mr Groff to approach the family home, but the police opposed that application and a further Interim Intervention Order was made.
It is Ms Sykes’s evidence that she made that Application after considerable pressure from Mr Groff and I accept that evidence.
A Final Intervention Order was made on 22 December 2016 in circumstances where Mr Groff consented to that Order without making any admissions as to the allegations made. I note that both Ms Sykes and [X] were named as Affected Family Members in that Order, which was to last until 22 September 2018.
On 20 March 2017 Victoria Police were again granted an Interim Intervention Order for the protection of the mother and [X]. The notations to that Order include:
The respondent was present at the hearing.
The respondent did not agree to this order being made.
That Intervention Order, which included the usual exceptions for Family Law Orders, was made final on 3 May 2017 and was made for 12 months.
Mr Groff has been charged with breaching Intervention Orders made for Ms Sykes’s protection multiple times. However, it was his evidence at trial that he had no outstanding charges at that time and that he had “received a $600 fine for sending Ms Sykes an email”. He described that email as “a genuine email from the heart”, and it must be said that on the face of that document, Mr Groff appears to have been attempting to apologise to Ms Sykes for his previous behaviour.
However, there are many more emails sent to Ms Sykes by Mr Groff, both before and after that one, which can only be described as vicious and abusive.
The court is not aware of there being any further Intervention Order applications made between these parties.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is always preferable for Final Orders to constitute an end to legal proceedings between the parents of the child.
However, the particular circumstances of this matter will result in Final Orders that require the father to provide some evidence that he has addressed his particular issues.
In addition, [X] is only 3 ½ years old and it is well-nigh impossible to make orders for his parenting arrangements which are appropriate to last until he is 18.
(m) any other fact or circumstance that the court thinks is relevant.
The father’s drug use is also a salient feature of these proceedings.
The mother’s evidence is that the parties took illicit drugs together during the relationship, although she says that she ceased all illicit substance use when she became pregnant with [X].
She says that the father continued to use drugs, and in particular, “Ice”, after the parties’ separation, and that she has no confidence in his assertions that he, too, has ceased all illicit substance use.
During the proceedings, orders were made for the father to undergo urine drug screens as requested by the Independent Children’s Lawyer. The Independent Children’s Lawyer made requests on a random but fairly frequent basis during the proceedings for Mr Groff to undergo such screens. He failed to do so.
Mr Groff asserted throughout the proceedings that he was prepared to undergo drug screens and his evidence at trial was peppered with what can only be called lame excuses as to why he had not done so. I note particularly that his assertion that he could not afford the pathology costs for the screens was demolished by the revelation forced from him under cross-examination that he had spent significant amounts of money on online gambling on some of the very days when he had been requested to undergo a urine drug screen.
“Ice” is an extraordinarily destructive drug. It is highly addictive and those addicted to it appear to abandon all sense of common decency and responsibility to their families and fellow citizens.
No person who is addicted to “Ice” can possibly demonstrate the capacity to care for a vulnerable child and provide for that child’s needs.
Until Mr Groff is prepared to undergo hair follicle testing which will indicate whether or not he has used illicit substances over a six-month period, the court can have no confidence that his drug-using days are behind him.
Decision: Issue A
In circumstances where there is no communication between the parties, where Mr Groff has shown himself to be unwilling to provide any reassurance to the mother of his child as to his current drug use, where there has been significant family violence perpetrated by the father upon the mother with the father showing little insight into his responsibility for that violence, and where the father has failed to live up to his responsibilities as a parent, particularly in relation to financial support, I cannot find that it is in [X]’s best interests for his parents to have equal shared parenting responsibility for him.
I will therefore make an Order that his mother be solely responsible for making major decisions about his life, although I will allow, in those Orders, for the father to be consulted before any such decisions are made.
Issue B. Whether the father ought to spend unsupervised time with [X] without providing proof that he has not taken illicit substances for 6 months.
As I have already stated, my ultimate obligation in making any parenting order is to ensure that children are protected from harm.
Based on the evidence already set out in these Reasons, I am not satisfied that Mr Groff is no longer using illicit substances, and I therefore cannot find that is in [X]’s best interests to spend time with him unsupervised until Mr Groff provides cogent evidence that he is drug-free.
Issue C. What kind of time [X] should spend with his father.
I intend to make orders which will provide for Mr Groff to spend time with [X] on a supervised basis until he has provided a hair follicle test showing that he is free from illicit substances.
Only then will the orders allow the relationship between [X] and his father to proceed to unsupervised and overnight time.
Conclusion
Unfortunately, this matter is only one of many where the issues of family violence and drug use infect and complicate relationships in separated families.
If Mr Groff is to be the father he claims to want to be, both to [X] and to his new baby, he must first truly acknowledge his past behaviour, without expecting any privileges as a result of that acknowledgement, and then behave into the future in a way that reinforces that acknowledgement and demonstrates behavioural change and true insight.
If he does not do so, his relationships with both his children will be greatly diminished.
I certify that the preceding one hundred and forty seven (147) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 3 May 2019
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Injunction
-
Natural Justice
-
Procedural Fairness
-
Remedies
-
Standing
0
2
2