Sykes and Pell

[2009] FamCA 951

FAMILY COURT OF AUSTRALIA

SYKES & PELL [2009] FamCA 951

FAMILY LAW – CHILDREN – Interim parenting orders – Issue of the Mother’s re-occurring drug use – Mother’s evidence lacking credibility – Incidents of threats and violence serious concerns – Child to live with the Father

APPLICANT: Mr Sykes

RESPONDENT: Ms Pell

INDEPENDENT CHILDREN’S LAWYER: Mr Joe Parker

FILE NUMBER: BRC 8845 of 2007

DATE DELIVERED: 19 August 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 19 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant Father appeared in person

COUNSEL FOR THE RESPONDENT: Mr Hanlon of Counsel appeared for the Respondent Mother

SOLICITORS FOR THE RESPONDENT: Gill & Lane

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Linklater-Steele of Counsel appeared for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Parker Family Law

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The children, S born … June 1999 and A born … November 2002 live with the Father.

2. The Father have sole responsibility for the short term and long term care, welfare and development of the children.

3. The children be delivered to the Father at McDonald’s Restaurant at K by the maternal grandfather at 6.30 pm on 19 August 2009.

IT IS FURTHER ORDERED THAT:

1. The proceedings be adjourned for delivery of the reserved judgment to
   10.00 am on 28 August 2009 at the Brisbane Registry of the Family Court.

2. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8845 of 2007

MR SYKES

Applicant

And

MS PELL

Respondent

REASONS FOR JUDGMENT

1. What I propose to do is to deliver reasons for judgment now putting in place interim orders, and I will adjourn this matter through until 10 o’clock next Friday when I will deliver my reasons for judgment and put in place final orders.  In the meantime, there will be certain aspects that I will be asking the parties to do, and also I will be calling on the maternal grandfather. 

2. The court is asked to determine what orders should be put in place in relation to two young children:  S born in June 1999 and A who was born in November 2002.  Mr F is the biological father of the younger child.  I am satisfied, from the mother’s evidence, that he has knowledge of these proceedings.  There is some evidence that right from the outset Mr F indicated, in no uncertain terms, he did not have any interest in the child.

3. There is some evidence – I am not sure whether to accept it or not – that Mr F has appeared from time to time on the scene.  He does not support A.  The mother says he last had dealings with the child for a very brief period of time about two years ago.  If Mr F wants any order made in his favour in relation to A at some point in the future, the onus is upon him to do what every other citizen has to do, and that is to file an application file a supporting affidavit, and come to court and convince a judge that it is in A’s interest that there be such contact.

4. The applicant in these proceedings was born in 1974.  The mother, who is the respondent, was born in 1977.  It seems the more probable account that the parties resided together from about February of 1997 through until May of 2005.  It seems to be common ground that both parties engaged in the use of intravenous drugs through the course of this relationship, principally amphetamine or methamphetamine. 

5. The parties had previously litigated and when they did so, they arrived at consent orders.  I note that the evidence before the court at that time would have been the first report of Mr B, and my recollection is that report was quite favourable to the father.  Notwithstanding that position, and notwithstanding the fact that, on that occasion, the father was legally represented, consent orders were entered into which provided for equal shared parental responsibility, and the children were to primarily reside with the mother and to see the father on alternate weekends, after school Friday till before school on Tuesday.  So he was to have the children four nights out of 14.

6. There were also orders for half school holidays and special occasions.  There were various other provisions about changeovers, non-denigration clauses and ensuring that the children were not exposed to any domestic conflict.  There was a further order – paragraph 17 – neither parent will consume alcohol to excess nor be under the influence of illicit drugs in the presence of the children, and both parents will use their best endeavours to prevent a third party from consuming excessive alcohol or be under the influence of illicit drugs in the presence of the children.

7. The orders the father seeks are set out in a case summary document filed on

   
   

   29 July.  He seeks that all previous orders be discharged.  In that document, he seeks for equal parental responsibility, but now, on today’s date, he has resiled from that and asked that he be given sole parental responsibility.  He seeks an order that there be an obligation on the parties to consult with each other. 

8. I can indicate I am somewhat reluctant to make an order in those terms on the basis that the parties in my view could not consult about the weather and reach agreement, let alone important issues involving the future of the children.  There are various provisions about exchange of information.  He proposes that the mother have the children each alternate week, from after school Friday until before school Monday, but that until the mother provides three clear drug test results, that time is to be supervised.  He is now amenable to the maternal grandfather of the children being the supervisor.  He is agreeable to the mother having half school holidays.

9. The mother set out the orders that she sought in a document filed on 14 August.  She proposes that she have sole parental responsibility, that the children live with her and that the father have the children each alternate weekend, from after school Friday until 5 o’clock Sunday.  The Mother’s proposal would reduce his time from the previous consent orders of 2007 down to two nights out of 14.  She was prepared to concede half school holidays, and the mother sought to differentiate between the older child and the younger child, A, on the basis that the father was not the biological father of this child.

10. On today’s date, the mother, through her counsel, proposes, in effect, the children live with the father. She proposes that she have the care of the children from Friday pm – that is after school – until the commencement of school on Monday in each alternate week, and then on Thursday evenings in each alternate week thereafter.  So that would be effectively the mother having four nights out of 14:  the reversal of the 2007 orders, but still significant time with the children.

11. The father, unfortunately, was not legally represented.  It is one of the ironies of the system that the mother, against whom all the allegations are made, manages to get Legal Aid; the father who has the support of the social worker Mr B, has the support of the independent children’s lawyer, the mother agreeing that he will now be the primary carer, he did not manage to get Legal Aid, for whatever reason.  The mother was represented by a solicitor and counsel, and the court was assisted by the appointment of an independent children’s lawyer who had briefed counsel.  The court is indebted and expresses its appreciation to the role played by the independent children’s lawyer.

12. The witnesses in the father’s case were the father himself, the maternal grandmother, the mother’s half-sister, H, and the father’s partner – or previous partner; they’re now not living together but they intend to in the future – Ms T.

13. In the mother’s case, evidence was adduced from the mother herself, from her partner, Mr E, and from the maternal grandfather.  The mother also relied on affidavits from Ms D, a psychologist who has treated S on eight occasions.  She was not required for cross-examination. 

14. The independent children’s lawyer relied on a report by Ms Y, a family consultant who did the original assessment when the matter came into this jurisdiction, and two reports from Mr B, a social worker in private practice in Brisbane.  Mr B had prepared a report back in 2006 and a further report in January this year.  Mr B gave evidence before me today, and I found his evidence of great assistance.

15. There was also evidence from a toxicologist from laboratories in Melbourne who gave evidence about testing certain hair samples taken from the respondent mother.  The independent children’s lawyer had produced a composite binder of documents which were admitted by consent as exhibit 1.  Nobody required witnesses from the Department of Child Safety or the police in relation to that evidence.

16. I have, in previous cases over the years, seen instances where a parent has given evidence against an adult child when the situation calls for it.  In my great reluctance and great sadness, but done with the overriding interest of the children in mind.  However, I have never seen a case such as this where, at different times over the last three years, the respondent’s mother, her father, her sister and her grandmother have all given evidence in affidavit form against her.  It makes for sad reading.

17. I have reached the firm conclusion that I cannot believe a word of the respondent mother’s evidence unless, in some way, it is corroborated by a reliable source.  I can certainly say I do not regard Mr E as a reliable source. 

18. As observed by the social worker, Mr B, the issue of drug taking is something of an issue upon which one can be sidetracked.  It is not to say it is not an important factor in most cases but in this case, to my mind, there are more important factors.  Evidence of the heavy consumption of alcohol on a frequent basis, evidence of the verbal abuse of the children, evidence of physical abuse of the children and evidence of poor parenting generally.

19. However, because it is illustrative and important, I turn to consider the evidence concerning drug use.  The mother’s sworn evidence to the court is she has not partaken of drugs for 10 years.  Mr E says he has never had drugs at all.  The evidence of the toxicologist would indicate that the first test which was carried out in about November of 2008 was that she had tested 32 centimetres of hair which had been produced and her conclusion was that the sample was contaminated and her conclusion was that was evidence of methamphetamine, amphetamine and Tramadol, which is a narcotic, having been consumed in the previous 32 months, say two and a half years.

20. As I understood the evidence from this witness it could have been on a continuous basis or it could have been just one incident two and a half years ago.  They are unable to say but what they can say with certainty - quite convincing certainty - is that there was consumption of those drugs within that timeframe.

21. What the independent children’s lawyer then did was to arrange a further sample to be provided and that sample was given in July this year.  So what was now being tested was from July 2009 back to November 2008 and it shows fresh contamination of the same two drugs, Tramadol and methamphetamine. 

22. Before I look at the consequences of that evidence I have to say the mother did not do her cause any good when, during the course of the proceedings, the independent children’s lawyer called upon her on five occasions, as I understand the evidence, to provide urine samples or blood samples for analysis and it was not convenient for her to turn up. 

23. On one occasion, as the trial drew closer and the dates of trial had already been allocated, a request was made on 30 June.  She attended on 23 July and, unsurprisingly, the only drugs detected were nicotine.  The evidence of the mother having consumed drugs in the last two and a half years is consistent with admissions made, as found in the subpoenaed documents, that she had consumed drugs whilst pregnant with her youngest daughter.  Prior to that she had said she had consumed drugs up to the birth of S in 1999, 10 years ago.

24. In her oral evidence before me she said that during the relationship with the father they both consumed drugs throughout that period and that would take the consumption of drugs up until 2005, so there is an enormous discrepancy between the evidence the mother gives in different circumstances.  It is internally inconsistent but it is also inconsistent with evidence from other sources, including the subpoenaed documents and the evidence of the toxicologist.

25. Again, the sample taken in July this year could be evidence of continuous drug taking or it could be evidence of an isolated incident of drug taking some time in the last eight and a half months.  Compelling evidence though that be, the matter does not end there.  In fact, far from it.  The mother’s version of events is not a concession on her part that she had a brief relapse.  She puts forward the theory that her mother spiked her drink whilst she was residing at her mother’s home.  There is not the slightest scintilla of evidence where her mother would possibly get methamphetamine from, why she would bother doing it, when she did it. 

26. I expect the respondent is perfectly able to know when she is affected by methamphetamine.  The physiological impact would be immediate and obvious and there is no evidence of her complaining to her lawyers or to her mother or to anybody - or to her father around that time two and a half years ago or eight and a half months ago of her drink being spiked.  She has told her father that H, her sister, spiked the drink.  Again, it has to be fatuous evidence on behalf of the mother.  She would have done her cause a lot more benefit had she simply come to court and told the truth.

27. We hear cases all the time.  We see people with drug problems, mental problems, alcohol problems, etcetera.  We take people as we find them.  We are perfectly aware of the frailties of human existence.

28. The mother, somewhat extraordinarily, instructed her counsel to put to the toxicologist that the traces found in her hair could be remnants left from 10 years ago.  It is totally inconsistent with her belief that she had had her drink spiked in the last two and a half years.

29. I turn to the evidence surrounding the taking of Tramal - Tramadol is the drug’s name, Tramal is the marketing name.  I am deeply suspicious of the mother’s evidence in this regard.  It is well known that Tramal, which is a fast infusion drug of Oxycontin or Oxycodeine, is a highly addictive drug.  It has been in the mother’s system on two occasions at least 10 months apart.  I look at the internal conflict in the mother’s evidence.  Initially she said it was only once.  It was pointed out it had to be twice according to the toxicologist’s evidence.  She said, “Yes, I forgot.  It is twice.”  She had had a migraine and her father got her two tablets from her grandmother.  Mr E’s version is that she had a toothache and she took it on one occasion, presumably about two years ago.  The respondent’s father says it was two years ago but says it was eight tablets, and that account does not explain how Tramal turns up in the mother’s system in the last eight and a half months.

30. The matter just does not end there either.  There is the evidence of the maternal grandfather of statements made by his daughter of her own drug taking within the timeframe where she now denies that she has had it but which is consistent with the toxicologist’s evidence and also the mother making concessions that Mr E had been using speed.  I far prefer the evidence of the maternal grandfather to the evidence of Mr E and the evidence of the mother. 

31. I will briefly digress at this point in time before - I will not analyse the rest of the evidence.  I will do that when I deliver final reasons in this matter next Friday but, unfortunately and sadly, they will not be favourable comments to the mother.  If you come to court and tell a load of cobblers you get what you deserve and that is what I find the mother has done, and her behaviour consistently has been appalling.  Spurious allegations of sexual abuse, serious allegations of intimidation - clear intimidation by her partner Mr E - of her own father, of the father, of Ms T - compelling evidence before the court, and then we have the evidence of serious criminal offences most likely perpetrated by Mr R.

32. I pause at this stage to pay tribute to what I regard as the great courage shown by the father and by Ms T.  It takes courage to continue with litigation in the face of that type of intimidation and threats.  The events described in their evidence, which was internally consistent and consistent with each other, are terrifying.  It is everybody’s worst fear of waking up in the early hours of the morning with a stranger in your room with a knife.  It has to be nightmarish to be in the sanctuary of your own home with a closed window and to have the glass shattered with a large rock being thrown through it.

33. I am more than satisfied that the events accurately described by Ms T and by the father are like something out the television series Underbelly.  It smacks of the drug culture.  I find it more probable than not that the mother instigated these concerted attacks, and if she did not instigate them, she had knowledge.  And if she did not have the knowledge before, she certainly had the knowledge after and she has come to court and denied it. 

34. I say to the mother, any more threats of any kind by bully boys seeking to intimidate anyone in relation to these proceedings will have serious consequences.  It can be referred to the police for prosecution through the State courts, but as I indicated to Mr E, it is regarded on clear case law as contempt of this court if litigants are intimidated and threatened, and I would not hesitate to hand out a heavy gaol sentence for such contempt of court.  Let somebody call my bluff in that regard if they choose to do so.  But the other more serious long lasting consequence of further acts of intimidation is that the mother and her partner could no longer be trusted and, with great regret, her time with the children would be seriously affected, so that she would have a greatly reduced time in the confines of a contact centre.  I am not saying what events might produce that, but I can say that the evidence before me I view most seriously.  It is terrifying stuff, and it caused the separation of the father from his partner, and then Mr R rings up and threatens the father yet again and taunts him about the fact that they are separated.  I say to the mother and her associates engage in any further intimidation at your peril.  You have been warned.

35. As I have indicated I am confident that at all times the father and Ms T have acted as they did because they perceived it to be in the best interests of the children, and the court acknowledges that.  I note that both the mother and Mr E have a very strong tendency to blame others when events occur, even to the extent of blaming the father when they had had arguments.  The mother contends that police records are fabricated, that events recorded in the police files did not happen.  The reality is the mother in all likelihood was either too drunk or too drugged to know.  Similarly she contends Department of Child Safety files do not reflect an accurate record.

1. I would be prepared to find the files are more likely to reflect an accurate record than the mother’s evidence.  The mother attacks teachers at the N School, writes letters of complaint to the Minister for Education and School Authorities.  I find that such complaints were spurious.  The mother makes a complaint to Vodafone because the father had been sending her what she regards as harassing text messages.  She has the temerity to annex those text messages and all they evidence is he was wanting to know her address so that he could effect service of legal process on her.  I do not regard that as harassment in the slightest.

2. I had the distinct impression if the mother had placed a bet on a horse at the races and it lost, it was likely to be the father’s fault.  He seemed to be blamed for everything, from the mother’s drinking to any argument she had with Mr E.  It is not for me to tell people how to run their lives.  It is difficult enough taking the responsibility for making decisions about the future of children.  But I would say to the mother and to Mr E take responsibility for your own conduct for a change.  It is called life.  The world does not owe you a living. 

3. It is about time you started having a dramatic change in lifestyle and trying to mend fences wherever they be.  I am not saying you have not had great sadness in your life.  I am not saying you have not got reasons for great emotional upset.  But the responsibility is on you to have counselling, to have treatment.  Go to Alcoholics Anonymous, do whatever you need.  I will be saying more about the mother’s evidence about her consumption of alcohol and making specific findings about that.

4. I will touch tonight on Mr B’s evidence where he expressed his horror about the incident where S was woken late at night to find the mother’s purse.  That is not the job for a six year old.  S should not have to put up with her mother’s threats, such as it is all the child’s fault if the mother looses everything because she cannot find her purse, the mother threatening to burn the home down if she cannot find the purse.  As I understood the mother’s evidence she claims it did not happen.  The maternal grandmother would have to be one of Australia’s leading playwrights to be able to manufacture that sort of evidence.  It just has a ring of truth with all of the other combined evidence as to how the mother has consistently acted for years.

5. So far as the paternal grandfather is concerned, it is not my function to work out why he changed sides, whether it was because he saw the maternal grandmother go over to the other side that he decided he would take an opposite stance.  But in paragraph 15 of his affidavit of 10 August he says:

   “I am genuinely very concerned that if the applicant is successful in having the girls live with him that he will stop them having a relationship with myself and my daughter.  The applicant is impossible to communicate with.  I believe he will just block us out.”

6. Well, it is not what the applicant said in court.  The father said he thinks the paternal grandfather is a fine fellow.  He said he is quite aware of the very deep intense relationship between grandfather and S.  He has a complaint that favouritism is shown and that not enough attention is paid to A.  But it is not the stuff of which cataclysmic consequences of a shattered relationship should fall.  I suggest that the maternal grandfather and the father should - whether you do it by email or start with phone calls or whatever, get your act together and just start communicating for the sake of the children.  It will have a powerful impact on them for the good. 

7. There is evidence which I will be touching on next Friday.  The mother just has no respect for the law and drink driving is part of it.  As soon as she is convicted of drink driving she keeps driving.  Her explanation that she does not know you lose your licence when you get caught for drink driving is nothing short of fatuous. 

8. I accept the submissions by the independent children’s lawyer that there is an intense anger in the mother, great hostility to all and sundry.  Nobody can do anything about that other than herself.  She can go through her life keeping expressing anger at government departments, courts, judges, former partners and whatever.  But there is another way to live your life.  I will be touching on the incidents of January 2009 and putting forward my own explanation of why that conduct occurred.  I think it is almost certain that it had a lot to do with the fact that Mr B’s second report had just been released.

9. What I propose to do, I do note that the orders I am about to put in place today and on next Friday will reflect the strong recommendations of Ms Y, a very experienced family consultant in this court, and Mr B, a very experienced social worker.  And those strong recommendations are for the children to live primarily with their father (Technical malfunction).

10. I take into account the submissions the experienced independent children’s lawyer recommends to me.  The mother herself accepts that the evidence has been overwhelmingly against her case.  No point in going out and having recriminations and blaming others for that.  Your evidence in your case is only as good as your own presentation.

11. Now, what I propose to do is to adjourn this matter until 10 o’clock on Friday, 28 August.  It is likely that at that time I will make an order for sole responsibility for the father.  But in any event, for the week ahead I propose to make a temporary order, an interim order, that the father have sole responsibility for the children.  I do not propose to order any time between now and next Friday.  What I propose to do is order that the children be delivered to the father.

12. At this stage I will make an order on an interim basis the children live with the father, the children to be handed over to the father by 6.30 pm this evening.  The father to have sole responsibility. 

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.

Associate: 

Date:19 August 2009