Theodore & Ambrose
[2022] FedCFamC2F 1619
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Theodore & Ambrose [2022] FedCFamC2F 1619
File number(s): DUC 105 of 2022 Judgment of: JUDGE OBRADOVIC Date of judgment: 24 November 2022 Catchwords: FAMILY LAW – Interim Parenting – short form reasons – where final consent orders made in 2019 – father engaged in criminal activity – assessment of risk – best interest of child – parental responsibility – child to spend gradually increasing time with father – orders for drug testing. Legislation: Family Law Act 1975 (Cth) ss.60CC, 69ZL Cases cited: 1 Beaton & Beaton [2020] FamCAFC 297
Goode v Goode [2006] FamCA 1346
Isles v Nelissen [2022] FedCFamC1A 97
2 Keats & Keats [2016] FamCAFC 156
Division: Division 2 Family Law Number of paragraphs: 47 Date of hearing: 22 November 2022 Place: Parramatta Counsel for the Applicant: Ms Otrebski Solicitors for the Applicant: Richard Wise Solicitor Appearing for the Respondent: Mr Virgona Solicitors for the Respondent: Mastronardi Legal Appearing for the Independent Children’s Lawyer: Ms Hughes Solicitors for the Independent Children’s Lawyer: Hughes And Co Lawyers And Conveyancing ORDERS
DUC 105 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS THEODORE
Applicant
AND: MR AMBROSE
Respondent
order made by:
JUDGE OBRADOVIC
DATE OF ORDER:
24 November 2022
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
1.Order 1.2 made on 18 July 2022 is discharged.
2.The child X born in 2013 (“the child”) shall spend time with the father, Mr Ambrose, as follows:
(a)Commencing on Saturday 3 December 2022 and each alternate Saturday thereafter from 9am to 4pm;
(b)Commencing on Saturday 11 February 2023 and each alternate weekend thereafter from 9am Saturday to 4pm Saturday and from 9am Sunday to 4pm Sunday; and
(c)Commencing on Saturday 1 June 2023 and each alternate weekend thereafter from 9am Saturday to 4pm Sunday.
3.The time in Order 2 is conditional upon the following:
(a)Forthwith, the father do all things and acts and sign all documents necessary to enrol in drug and alcohol counselling and provide confirmation of his enrolment to the mother’s legal representatives and the Independent Children’s Lawyer as soon as reasonably practicable;
(b)The father attend appointments with the drug and alcohol counsellor at a frequency recommended by the said counsellor and for the duration of the treatment recommended by the counsellor;
(c)The father is to provide evidence of his participation in drug and alcohol counselling to the mother’s legal representatives and the Independent Children’s Lawyer within twenty-one (21) days of these Orders.
(d)The father shall obtain a report from his drug and alcohol counsellor upon the Independent Children’s Lawyer’s request addressing the following:
(i)Dates of attendances;
(ii)Education and Therapy undertaken;
(iii)Any programs completed;
(iv)Any courses completed;
(v)Any further programs or courses recommended for the Father to complete; and
(vi)General comments.
(e)The father shall each 3 months contact and make an appointment in Town J with the Drug Detection Agency for the purpose of undertaking a chain of custody 5-panel hair follicle drug test and for the purpose of this Order:
(i)the father shall attend the appointment for collection;
(ii)the father shall follow all reasonable directions given by the Drug Detection Agency;
(iii)the father is to maintain his head hair at a length of not less than four (4) centimetres;
(iv)the father’s head hair shall not be bleached or dyed between the date of these Orders and the time of collection of the hair sample;
(v)the father and/or his legal representatives must provide the mother’s legal representatives and the Independent Children’s Lawyer with a copy of the father’s test result immediately upon receipt; and
(vi)the cost of the tests shall be paid by the father.
(f)The Independent Children’s Lawyer shall on no more than one occasion per month request the father to attend to provide a sample for forensic testing with respect to the presence of cannaboids, opiates, amphetamines, methamphetamines and benzoids and such sample shall be provided and testing shall occur in accordance with the appropriate Australian standard for supervised chain of custody testing and upon provision of a testing report arising from same, the father shall cause and ensure that report to be provided to the Independent Children’s Lawyer and the mother’s legal representatives. All costs associated with the urinalysis drug testing are to be paid by the father.
(g)If the father becomes the subject of any criminal charges or is arrested then he must inform the mother and her legal representatives, within forty-eight (48) hours of this occurring, as well as provide the mother with any documents in his possession relevant to the criminal charge or arrest (such as a Court Attendance Notice). Time between the child and the father shall then immediately be suspended.
4.The father shall have telephone, Facetime or Skype communication with the child as agreed but failing agreement as follows:
(a)each Monday and Friday from 5pm to 6pm;
(b)on Christmas Day from 9am to 9.30am;
(c)on Easter Sunday from 9am to 9.30am;
(d)on the Father’s birthday from 5pm to 6pm; and
(e)on the child’s birthday from 5pm to 6pm.
5.Changeover is to occur at a place nominated by the mother. Such nomination is to be in writing via SMS or email and is to occur no later than 24 hours prior to the commencement of the child’s time with the father.
6.The matter is listed for directions at 9:30am on 26 June 2023 before Judge Dunkley at City B.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Theodore & Ambrose has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are short form reasons made pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”) concerning the interim parenting arrangements for the subject child of these proceedings, X born in 2013 (“X”).
On 21 June 2019, the Court made final orders by consent that the parties have equal shared parental responsibility for X, and that X live with the mother and spend alternate weekends and holiday time with the father. The mother unilaterally suspended the father’s time in or around March 2022 after finding out that the father had been charged with drug related offences said to have occurred more than 12 months prior and whilst X was in the father’s care.
The mother commenced proceedings on 31 March 2022, and on 18 July 2022 interim orders were made by the Court discharging X’s time with the father and for X’s time to thereafter be supervised for a period of two hours each alternate weekend and for telephone communication to occur each Monday and Friday.
The mother moves the Court for orders that she have sole parental responsibility for X, that X spend time with the father supervised by C Contact Centre, City D once per month and that the father submit to a further 5-panel hair follicle test. It is noted that the mother does not articulate or propose in her Amended Initiating Application any progression of time between the child and the father on a final basis, or any final orders concerning time between the child and the father.
The father opposes the mother’s application and seeks interim orders inter alia that the parents have equal shared parental responsibility for X and that she spend time with the father unsupervised each alternate weekend from 5pm Friday to 4pm Sunday, half-school holiday time and for the provision telephone communication.
The Independent Children’s Lawyer’s (“ICL”) position is that the child should recommence spending unsupervised time with the father, but with a progression to overnight time over a period of some months. The ICL proposes orders restraining the father from engaging in criminal behaviour, using illicit substances and obliging him to undergo drug and alcohol counselling.
Documents relied upon
The following documents were before the Court:
(a)Mother’s Outline of Case Document filed 7 November 2022;
(b)Amended Initiating Application filed 5 August 2022;
(c)Affidavit of Ms Theodore filed 31 October 2022;
(d)Amended Notice of Child Abuse, Family Violence and Risk filed 5 August 2022;
(e)Exhibit 1:
•Child Impact Report – Ms E
•Father’s Court Attendance Notice
•Statement if Agreed Facts
•Father’s Sentencing Assessment Report
•Father’s Intensive Corrections Order
•NSW Police Property Seizure Exhibit Form
•Statement of SC F
•Statement of SC G
•Statement of SC H
•NSW Police Intercepts
•Father’s Criminal History & Bail Report as at 22 August 2022
•COPS narrative of search warrant execution
•COPS narrative – father admits using cannabis from time to time
•2021 School holiday periods
•Town J Newspaper Article
(f)Father’s Outline of Case Document filed 8 November 2022;
(g)Amended Response filed 1 November 2022;
(h)Affidavit of Mr Ambrose filed 31 October 2022;
(i)Parenting Questionnaire filed 31 October 2022;
(j)Exhibit 2:
•NSW Police Intercepts 11 October 2020 to 23 October 2020
•NSW Police Intercepts 23 October 2020
•NSW Police Intercepts 14 December 2020 to 19 December 2020
•Incident Report dated 6 January 2021
•Hair 5 Drug Panel Test Result dated 28 October 2022
•C Contact Centre Event Note dated 2 August 2022
•C Contact Centre Event Note dated 6 August 2022
•C Contact Centre Event Note 20 August 2022
•C Contact Centre Event Note 3 September 2022
•C Contact Centre Event Note 17 September 2022
•C Contact Centre Event Note 1 October 2022
•C Contact Centre Event Note 15 October 2022
•C Contact Centre Event Note 29 October 2022
The Court has had regard to all of the above documents. The Court also heard oral submissions from each of the parties.
Relevant Legal Principles
The principles in respect of interim hearings are well known, including that the legislative pathway must at all times be followed (Goode v Goode [2006] FamCA 1346). Interim hearings are curtailed by the absence of cross-examination and testing of evidence in general, and the Court is often in a position where it is unable to make findings of fact. Even in such constrained circumstances, the Court is still required to determine the applications before it.
The Court is to determine the issue of risk by weighing the probabilities of competing claims and the likely impact on the children in the event that a controversial assertion is acted upon or rejected (Keats & Keats [2016] FamCAFC 156).
The assessment of risk is an evidence-based conclusion. The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one (Isles v Nelissen [2022] FedCFamC1A 97 at [85]).
Best interests remain the paramount consideration (Beaton & Beaton [2020] FamCAFC 297 at [35]).
Agreed Facts
The parties have one child together, X born in 2013.
On 21 June 2019, final parenting orders were made by consent, for X to live with the mother and spend alternate weekends and part of the school holidays with the father.
On 17 March 2021, the NSW Police executed a search warrant at the father’s home, where they found illicit drugs, namely MDMA and cocaine. The father did not tell the mother about the raid at the time.
On 9 September 2021, the father is arrested and charged with possession of prohibited drug and supply of prohibited drug (7 sequences in all). The father did not tell the mother about the charges at the time.
On 18 March 2022, the father told the mother about some of the criminal charges he was facing.
On an unknown date the father entered a plea of guilty to 6 of the 7 sequences he has been charged with, and the 7th sequence is withdrawn.
On 31 March 2022, the mother unilaterally suspended the child’s time with the father and concurrently commenced these proceedings seeking an order for supervised time.
On 18 May 2022, the father was sentenced to a six-month intensive corrections order in relation to four supply charges and he was fined $1,000 for two possession charges.
On 27 July 2022, the father provided a sample for hair follicle testing which returned a negative result for all substances tested for.
On 28 October 2022, the father provided a further sample for hair follicle testing which returned a negative result for all substances tested for.
Determination
The use of illicit drugs was clearly an issue for the parties at the time they entered into final parenting orders in June 2019.
By way of Final Orders, the parents were not to use illicit drugs while X was in their care. There is no evidence that either parent has breached this order. Furthermore, the father deposes to never taking any drugs while X was in his care or before she would come into his care. However, the father has now admitted to this Court to using illicit drugs from 2018 until his arrest in 2021.
There are a number of matters which are very concerning in respect of the father’s behaviour.
The police raided the father’s home at or around 6am in 2021. There is no evidence that the father told the mother about the raid at that time.
The father did not only fail to disclose to the mother at the time he was arrested in 2021, that he was arrested and charged, but what the charges related to. The supply of drugs occurred from his home, and at times, the supply of illicit drugs by the father occurred when X was spending time with the father.
The father did not tell the mother about the charges until 18 March 2022 when X again spent time with him, and only then after he was asked about it by the mother. On the mother’s evidence she approached the father first having learnt of the charges on 17 March 2022, and the two had a conversation on 18 March 2021 at changeover. The mother’s evidence is that the father was far from frank with her about his involvement in the offending conduct.
The father ultimately plead guilty to a charge of possession of illicit drugs in 2021. He has plead guilty to charges of supplying illicit drugs in late 2020, including whilst X was in his care.
The father’s evidence is consistent with the mother’s about the parties having a conversation on 18 March 2022. The father said to the mother “the police called me in for questioning…”. It is a fact that the police raided his home in 2021, and not just called him in for questioning. They found drugs in two of the bedrooms and the front room of the home where the father lived (and live ammunition was located in the lounge room albeit no charges were laid in respect of that matter). Importantly, the father told the police at the time of the raid that he had MDMA in the top drawer in his bedroom and that it was “for personal use”. In his affidavit, the father says that he kept the drugs in a locked safe in the locked shed when X was in his care, and that X could not get into the shed.
It appears from Exhibit 1 that the paternal grandmother was also charged with possession after the police located cocaine and cannabis in her bedroom and she made admissions to the police about the drugs being for her personal use. The father’s evidence is entirely silent about his mother’s drug taking and possession. There is no acknowledgment in his evidence that X might have been at risk of exposure to illicit drugs or use of drugs as a consequence of the paternal grandmother’s possession and use of drugs. At the time the paternal grandmother was living with the father.
The paternal grandmother appears to have been a very poor role model for the father. It is to his credit that he has recognised that his mother has been a poor influence on him. The Court notes that the father is presently not having any contact with the paternal grandmother.
In his evidence to this Court, the father admits to dealing drugs since approximately early 2019, that is, prior to the Court making final parenting orders. There is no evidence that either the mother or the Court were notified by the father of this dangerous criminal activity prior to the mother consenting to the orders and prior to the Court making a finding that the proposed final orders were in X’s best interest. Furthermore, it does not appear on the evidence presently before the Court, that the father made any admissions to the mother or to the Court to using MDMA and/or cocaine prior to the Court making those final orders by consent.
The father’s view is that “X is not at any risk of being harmed when she is in my care”. There is no evidence that the father’s criminal behaviour was ever witnessed by X, that she was harmed in any way as a consequence of the father’s criminal behaviour and indeed, the evidence is that she is not at all aware of the father’s behaviour. It is lucky that X was not harmed in any way by virtue of the father’s criminal activity.
The Sentencing Assessment Report (relied upon by the father in his sentence relating to criminal conduct) indicates an insight into his behaviour and that he was able to show an awareness into the consequences that could have occurred others and him. This was not a report relied upon by the father in these proceedings. Contrary to what appears in that report, in his sworn evidence to this Court the father says “Throughout my involvement with taking and selling drugs… I do not believe I was ever at risk of danger, despite the nature of what I was doing” presumably because he “never witnessed or experienced any violence”. This is somewhat of a naïve view and potentially speaks poorly of the father’s insight and/or his lack of candour.
The father seems to be of the view that it was the “regular partying and taking drugs” which “negatively impacted my mental health as I was regularly exhausted”. He says that he now sees how negative the behaviour was, but it appears, only in terms of his health and him personally.[1] He says he never sought treatment for his mental health. It would be to his benefit if he now did so.
[1] F’s affidavit paragraph 34
What is concerning is that not only has the father not sought any treatment for his mental health, which he says was impacted upon by his use of drugs, but he has not sought any drug and alcohol counselling. The latter being the bigger concern. According to the evidence, the father appears to have been using illicit drugs since at least 2017[2], although on oath he says it started in 2018.
[2] Exhibit 1
The father says “he stretched the truth” in not telling the mother about the charges in their entirety. This is not a “stretching of the truth” it was an avoidance of responsibility. It was a minimisation of the seriousness of his behaviour. It was a lack of insight into the danger of the behaviours and the potential and significant risk he put X at.
However, the issue for the Court to determine is whether the father’s behaviour and conduct poses an unacceptable risk of harm to X, such that there ought to be an order for supervised time and/or whether such risks can be ameliorated and if so, how. The mother says that the frequency of such time should be once per month. The mother raises concern of neglect, ongoing risk and submits that the father has not shown a “sustained change” such as to support an order for overnight time.
The mother was not able to articulate to the Court what that “sustained change” ought to look like. However, the Court notes that to the report writer, the mother said that she would only agree to day visits until the father is able to demonstrate he is illicit substance free for a sustained period.
X had been spending alternate weekends and half the school holidays with the father until March 2022, when time was suspended by the mother. Since July 2022, X has been spending supervised time with her father once per fortnight and having telephone time with him twice per week. The evidence suggests a strong and loving relationship between the child and the father. The Child Impact Report notes X’s view to see her father on a regular basis and the report writer opined that given X’s presentation, some weight ought to be given to her views. The C Contact Centre reports speak very positively of the child’s interactions with the father. It is of some concern though that the father told the child on 6 August 2022, that her time with him will “soon be like it used to be”.
The father has provided to the Court evidence of two clear hair follicle drug tests, one completed in July 2022, and the second in late October 2022. He has obtained stable employment, changed his social circle, sought out positive role models and has engaged in the K Program parenting course. He has completed 100 hours of community service. The Court accepts his evidence that the charges were a “huge wake-up call” for him. The Court accepts that the father is embarrassed when he must tell people about his criminal behaviour or to talk about it.
Having regard to the totality of the evidence, the Court is not satisfied that X is at an unacceptable risk of harm if she was to spend time with the father which was not supervised, provided that there are conditions upon such time occurring. Such conditions are that the father forthwith engage in drug and alcohol counselling, and that the father notify the mother immediately if he is again arrested and/or charged in relation to any drug related offence. If he is so arrested or charged, time will immediately be suspended. The time will also be conditional upon random urinalysis testing as well as 3 monthly hair follicle testing by the father. Such safety guards will ensure that X can benefit from a meaningful relationship with her father while being safe to do so.
X’s time with the father will immediately cease to be supervised, however, there will be no overnight time for a period of 6 months, with a gradual increase in her time with the father. This will give the father the opportunity of attending upon regular drug and alcohol counselling, and of re-building the trust with the mother which he has broken. The 6 month period will allow the father to further show a sustained change in his behaviour.
Given the mother’s current circumstances and the distance between the parties’ homes, it is appropriate that X’s time with the father be spent with the father being responsible for all of X’s travel at first instance and then after a period of six months for the travel to be shared between the parties but with the father otherwise being responsible for the majority of that travel once time is increased. The changeover location is to be as nominated by the mother.
The Court notes the suspension of final orders 3, 4 and 6 to 10 will continue pending further order.
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.
48 I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.
Associate:
Dated: 24 November 2022
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