Tucker & Tucker
[2023] FedCFamC2F 854
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tucker & Tucker [2023] FedCFamC2F 854
File number(s): PAC 761 of 2018 Judgment of: JUDGE STREET Date of judgment: 13 July 2023 Catchwords: FAMILY LAW – PARENTING - 7 year child – poly substance abuse- on going addiction- supervised stages Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited: A v A (1998) FLC 92-800
Cotton & Cotton (1983) FLC 91-330
Deiter & Deiter [2011] FamCAFC 82
Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5
Fitzwater & Fitzwater (2019) 60 Fam LR 212
G & C [2006] FamCA 994
Isles & Nelissen (2022) FLC 94-092
Johnson & Page (2007) FLC 93-344
Jurchenko & Foster (2014) FLC 93-598
Loddington & Derringford (No 2) [2008] FamCA 925
M v M (1988) 166 CLR 69
Masson v Parsons (2019) 266 CLR 554
McCall & Clark (2009) FLC 93-405
N v S (1996) FLC 92-655
Napier & Hepburn (2006) FLC 93-303
Nikolakis & Nikolakis [2010] FamCAFC 52
Stott & Holgar [2017] FamCAFC 152
Division: Division 2 Family Law Number of paragraphs: 186 Date of hearing: 19 – 21 October 2022, 28 – 29 March 2023, 14 April 2023 Place: Sydney Counsel for the Applicant: Ms D Kaiti Solicitor for the Applicant: Jacqui Griffin Mobile Solicitors Counsel for the Respondent: Ms R Druitt Solicitor for the Respondent: Frank Law Counsel for the Independent Children’s Lawyer: M McConaghy Independent Children’s Lawyer: Legal Aid NSW ORDERS
PAC 761 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS TUCKER
Applicant
AND: MR TUCKER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE STREET
DATE OF ORDER:
14 April 2023
THE COURT ORDERS THAT:
1.That all previous orders made in relation to the child, X born in 2016 (‘X’), be and are hereby discharged.
Parental Responsibility
2.That the Father have sole parental responsibility for all major long-term decisions relating to the care, welfare and development of X.
3.That the Father consult the Mother in writing as to any significant proposed decision about X’s major health, education and religion before he makes the decision and will notify the Mother of the decision in writing as soon as reasonably practical.
Live with
4.That X shall live with the Father.
Spend Time with – Stage One (Centre-Based Supervision)
5.That unless otherwise agreed to between the Mother and Father in writing, X shall spend supervised time (centre-based supervision) with the Mother as follows:
(a)From the date of these Orders and for up to a period of two months (or at such other period as when Order 5(b) commences), under the supervision of B Contact Service, each alternate week for two hours at such times as nominated by B Contact Service AND IT IS NOTED that such time is to occur at the Centre.
(b)Thereafter, under the supervision of C Children’s Contact Service Suburb D, on one occasion every fortnight for a minimum period of two hours at such times as nominated by C Children’s Contact Service Suburb D AND IT IS NOTED that such time is to occur at the Centre.
(c)That for the purposes of facilitating Order 5(b) herein:
(i)The Mother and Father shall within 7 days of the date of these Orders contact C Children’s Contact Service Suburb D to arrange an intake assessment;
(ii)The Mother and Father authorise the Coordinator of B Contact Service (or their delegate) to provide any information requested by the Coordinator of C Children’s Contact Service Suburb D (or their delegate) to appropriately facilitate the transition in supervised time;
(iii)The Independent Children’s Lawyer have leave to provide a copy of these Orders and Ms E’s Report of 30 September 2022 to C Children’s Contact Service Suburb D;
(iv)The Father shall do all acts and things necessary to ensure that X attends upon C Children’s Contact Service Suburb D for a ‘child meeting’ as and when requested by them.
6.That in the event the parties agree to supervised time at a Contact Centre other than C Children’s Contact Service Suburb D, then the Mother and Father have leave to provide a copy of these Orders and Ms E’s Report of 30 September 2022 to the supervision service(s).
7.That the Mother shall be responsible for the total costs of the fees imposed by the supervision services, including the cost of the intake assessments (if any) for both the Mother and Father, and shall arrange to make the payments as and when advised to by the supervision service(s).
8.That for the purposes of X spending supervised time with the Mother:
(a)The Mother and Father shall follow all reasonable directions and requirements of the supervision services;
(b)The Mother and Father shall comply with any appointment made by the supervision service for supervised contact; and
(c)The Mother and Father shall comply with all reasonable rules and directions of the supervision service.
Spend Time with – Stage Two (Community-Based Supervision)
9.That following a period of not less than 12 months of X spending time with the Mother in accordance with Order 5(b) herein, and subject to Orders 10 and 11, then X shall spend time with the Mother under the supervision of C Children’s Contact Service Suburb D (or such other supervision service) to take place in the community (community-based supervision) for one occasion every fortnight for a minimum period of two hours at such times as nominated by the supervision service.
10.That the progression of X’s time with the Mother to Stage Two (community-based supervision) is subject to the assessment of C Children’s Contact Service Suburb D (or such other supervision service) and is conditional upon the following:
(a)X spending supervised time with the Mother in accordance with Order 5(b) and the Mother not failing to attend any contact visits without a reasonable excuse;
(b)There being no significant issues of concern reported by the supervision service with respect to the Mother’s conduct or behaviour that gives C Children’s Contact Service concerns in relation to time progressing to community-based supervision;
(c)In the period between 1 October 2023 and 30 October 2023, and every October thereafter, the Mother shall attend at an Australian Workplace Drug Testing Services (AWDTS) Clinic and submit to the supervised collection of a hair sample from her at the earliest available opportunity. To give effect to this order:
(d)The Mother is required to keep her hair at a sufficient length to provide a sample of not less than 3.9 cm length;
(i)The Mother is advised to not bleach or dye her hair;
(ii)The Mother is to provide AWDTS with a copy of these Orders;
(iii)The Mother is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this Order also hereby authorising and directing AWDTS or nominee, to provide the results of the test to the Father upon receipt of such test results;
(iv)The hair drug and alcohol test may screen for alcohol EtG and drugs of abuse including but not limited to amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drugs;
(v)AWDTS is required to utilise the testing services of F Service or such other appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; 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;
(vi)For the purpose of this testing, the Mother and the Father shall each be responsible for the payment of alternating hair follicle tests, with the Mother to make payment of the first test;
(e)That the Mother’s results of the hair testing in accordance with Order 10.3 are negative for all drugs tested (except in relation to prescribed drugs as disclosed by the Mother to AWDTS at the time of the testing) and the results do not show excessive alcohol consumption
11.That prior to every visit during Stage Two, the Mother shall undertake a drug test using a sealed Test Kit in the presence of the supervisor, and shall instruct the supervisor to provide the results to the Father at the commencement of each visit. In the event the Test results are positive for drugs, the Mother must provide a copy of the Prescription of any drug that is found to be positive. If the Mother is unable to do the Test, or the results indicate a positive reading for alcohol, or if the Mother is unable to provide a Prescription that matches the drug identified as positive in the Test results (‘an unexplained positive drug result’), then the visit shall not proceed on that occasion.
12.That in the event the Mother fails to comply with any of the requirements as set out in Order 10 herein or provides three (3) consecutive unexplained positive drug results or a positive alcohol result pursuant to Order 11 herein, then X’s time with the Mother shall remain at Stage One of these Orders, namely at Order 5.2.
13.That in order for X’s time to progress to Stage Two of these Orders, the Mother is at liberty to repeat the hair testing as provided in Order 10 not before March 2024 and every four months thereafter, and on the production of two consecutive negative hair drug test results (except in relation to prescribed drugs as disclosed by the Mother to AWDTS at the time of the testing) then time can progress to Stage Two.
Spend Time with – Stage Three (Unsupervised Day-Time with Supervised Changeovers)
14.That upon X being 12 years old, and only if time has successfully graduated to Stage Two (community-based supervision) for a minimum of 12 months, and subject to the Mother’s compliance with Order 15 herein, X shall spend time with the Mother as follows:
(a)On one occasion every fortnight for a minimum period of two hours at such times as agreed between the Mother and Father;
(b)Such time is to occur at a public place as nominated by the Mother, with the Mother to provide the Father with notice in writing via Our Family Wizard at least twelve hours prior to spending time with X the location(s) at which she intends to take X;
(c)At such other and additional times as agreed between the Mother and Father in writing.
15.That for the purposes of X’s time with the Mother progressing to Stage Three:
(a)That between the period between 1 January 2028 and 30 January 2028, and every January thereafter, the Mother shall attend at an Australian Workplace Drug Testing Services (AWDTS) Clinic and submit to the supervised collection of a hair sample from her at the earliest available appointment time. To give effect to this order:
(i)The Mother is required to keep her hair at a sufficient length to provide a sample of not less than 3.9 cm length;
(ii)The Mother is advised to not bleach or dye her hair;
(iii)The Mother provide AWDTS with a copy of these Orders;
(iv)The Mother is to provide the collector with photographic identification to be recorded before hair collection and authority, with this Order also hereby authorising and directing AWDTS or nominee, to provide the results of the test to the Father upon receipt of such test results;
(v)The hair drug and alcohol test may screen for alcohol EtG and drugs of abuse including but not limited to amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drugs;
(vi)AWDTS is required to utilise the testing services of F Services or such appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; 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.
(vii)For the purpose of this testing, the Mother and the Father shall each be responsible for the payment of alternating hair follicle tests, with the mother to make payment of the first test.
(b)That the Mother’s results of the hair testing in accordance with Order 15.1 are negative for all drugs tested (except in relation to prescribed drugs as disclosed by the Mother to AWDTS at the time of the testing) and the results do not show excessive alcohol consumption;
(c)The Mother is restrained from bringing X in the presence of any person known to her other than the Maternal Grandparents or Maternal Uncle or such other person agreed to between the Mother and Father in writing;
(d)The Mother is restrained from taking X to her residential address or any other residential address while he is spending time with her;
(e)The Mother is restrained from driving with X and/or travelling with X in a private vehicle at any time that X is spending time with her;
(f)That prior to every unsupervised visit during Stage Three, the Mother shall undertake a Test (‘the Test’) using a sealed Test Kit in the presence of the supervised change-over staff member, and shall instruct the supervised change-over staff member to provide the results to the Father at the commencement of each unsupervised visit. In the event the Test results are positive for drugs, the Mother must provide a copy of the Prescription of any drug that is found to be positive. If the Mother is unable to do the Test, or the results indicate a positive reading for alcohol, or if the Mother is unable to provide a Prescription that matches the drug identified as positive in the Test results, then the visit shall not proceed on that occasion;
(g)The Father shall ensure that X has access to a mobile telephone with an application (or such other similar application) downloaded, and shall invite the device to the ‘family Circle’, and the Mother shall ensure that X has access to the mobile telephone that has an application (or such other similar application) activated at all times that he is spending time with her;
(h)AND FOR THIS PURPOSE, the Father is responsible for paying for all costs associated with the mobile telephone and shall set up and provide the same to X by no later than 6 months prior to the commencement of Stage Three. The Father is responsible for paying for all costs associated with the application (or such other similar application) at such time as the visits progress to Stage Three.
(i)In the event the Mother is unavailable for X to spend time with her, she is to inform the Father in writing at least three hours beforehand.
16.That in the event the Mother fails to comply with Hair Testing on any occasion or produces a positive test result for use of illicit drugs pursuant to order 15.1 above, or provides three (3) consecutive unexplained positive drug results or a positive alcohol result pursuant to Order 15.6 herein, then the Stage Three Orders shall be suspended, and X shall spend time with the Mother only in accordance with his wishes with such time to be subject to the requirements of Stage Two in Order 9 above.
17.That the Mother is at liberty to send gifts and cards to X on special occasions, AND FOR THIS PURPOSE, the Father shall advise the Mother via Our Family Wizard of the postal address where the Mother is to send cards and gifts to X and advise of any change within 48 hours of any such change.
18.That in the event the Mother’s hair testing and drug tests are negative for all substances tested for a period of 12 months during Stage 3, then the requirement of Orders 15.1 and 15.6 are dispensed with during Stage Three.
Changeover
19.That for the purposes of X’s time with the Mother pursuant to Stage Three, changeover shall occur under the supervision of C Children’s Contact Service Suburb D or such other supervision service as may be agreed in writing between the Mother and Father (‘the supervision service’) and to facilitate this:
(a)Within six months prior to X’s time progressing to Stage Three, the Mother and Father shall:
(i)Contact the supervision service and arrange any necessary appointments for assessment for suitability for supervision of changeovers between the parents (‘the assessment’);
(ii)Attend the assessment;
(iii)Comply with any appointments made by the supervision service for supervised changeovers;
(iv)Comply with all reasonable policies and rules of the supervision service; and
(v)Comply with all reasonable requests or directions of the staff of the supervision service;
(vi)Deliver X to and collect X from the Contact Centre at the times specified by the Contact Centre.
(vii)IT IS NOTED THAT if the supervision service observes or suspects the Mother to be under the influence of drugs or alcohol at the commencement of the time, then the supervision service shall return X to the Father and notify him of the reasons for the visit not proceeding.
20.That in the event X’s time with the Mother does not progress to any Stage as set out in these Orders, whether by reason of the Mother’s failure to comply with any order or the Supervision Service suspending supervised contact service, then the Mother shall forthwith do all acts and things necessary for the parties to participate in a Family Dispute Resolution conference with an authorised Family Dispute Resolution Practitioner under s 10G of the Family Law Act 1975 (Cth).
Communication between the Mother and X
21.That the Mother shall be permitted to have video communication with X each Tuesday between 5.30pm and 5.40pm, with such calls to extend to up to 30 minutes from 5.30pm once X turns 10 years of age, as follows:
(a)With the Mother to initiate the call to X’s device that the Father has obtained or such other number nominated by the Father;
(b)With the Father to use his best endeavours to ensure that X is ready to receive the call; and
(c)With the Father to set up a Skype account for X on a device the Father has obtained and provide the Skype details to the Mother via Our Family Wizard within 7 days of the date of these Orders, and the Mother to initiate the call to X’s Skype account.
IT IS NOTED that the Mother may arrange for the Maternal Grandparents or Maternal Uncle to be present during such communication with X.
22.That in addition to Order 21 herein, the Mother shall be permitted to have telephone and/or video communication with X between 5:30 pm and 6:00 pm on the following days of special significance:
(a)On the Mother’s Birthday;
(b)On X’s Birthday;
(c)On Mother’s Day; and
(d)On Christmas Day.
Mother’s Attendance at X’s Sporting Games
23.That the Mother be permitted to attend at X’s extra-curricular sporting games, AND FOR THIS PURPOSE:
(a)The Father shall advise the Mother via OurFamilyWizard the date, time and venue at which the games will be held as soon as he becomes aware of those details;
(b)The Mother is restrained at all times from approaching the Father or members of his family while attending X’s sporting games;
(c)The Mother is restrained from bringing any person other than the Maternal Grandparents and/or Maternal uncle to X’s sporting games;
(d)The Mother is restrained from being under the influence of alcohol and/or any illicit substance and/or non-prescribed drugs for 72 hours prior to attending X’s sporting games
AND IT IS NOTED that if X wishes to make contact with the Mother during the sporting games, then he may do so and the Father (or his delegate) is not to interfere with such contact provided that such contact occurs within the view of the Father (or his delegate).
Communication between the Parents
24.That the Mother and the Father shall communicate in writing via Our Family Wizard for the sole purpose of communicating about the parenting arrangements for and wellbeing and development of X, and for the purpose of this Order, each party shall do all things and pay all subscription fees as may be necessary to obtain and maintain a subscription to Our Family Wizard, including the relevant application add-on.
25.The Father shall notify the Mother via Our Family Wizard of any medical emergencies involving X as soon is as reasonably practicable.
Mother’s Engagement with Medical Practitioners and Supports
26.That the Mother continue attend upon her Treating Psychologist at G Centre, or another Treating Psychologist (“Treating Psychologist”) for counselling for her anxiety, depression and substance abuse issues for a period as deemed necessary by the Treating Psychologist.
27.That in the event of a change to the Mother’s Treating Psychologist in relation to order 26 herein, the Mother advise the Father of the name address and telephone number of her Treating Psychologist within 48 hours of such change occurring.
28.That the Mother comply with all reasonable directions and recommendations of any doctor or mental health practitioner upon who she attends about treatment in relation to her anxiety and depression, including that she takes her medications at the dosage and frequency as prescribed by the doctor or mental health practitioner.
29.That the Mother continue to attend upon Narcotics Anonymous Meetings at such frequency and for a period as deemed necessary by Narcotics Anonymous Australia.
30.That within 14 days of the date of these Orders, the Mother shall contact the O Centre at H Hospital to arrange and attend an intake assessment for counselling for substance abuse and addiction, and continue to attend upon the Centre for treatment for a period as deemed necessary by them and at such frequency as recommended by them.
31.That the Mother comply with all reasonable directions and recommendations of the O Centre at H Hospital in relation to treatment, including any referrals to programs and/or groups.
32.That the Mother shall provide a copy of these Orders and a copy of Mr J’s reports of 11 October 2019 (and the Addendum), 13 December 2019 and 11 October 2022, and a transcript of Mr J’s evidence at Final Hearing, to her treating practitioners, and for the purpose of this Order, leave is granted for the same.
Father’s Engagement with Support Services
33.That the Father continue to attend upon his treating Psychologist, Ms K (or such other Psychologist), for a period as deemed necessary by the Psychologist and follow all her reasonable directions and recommendations in relation to treatment.
34.That the Father have leave to provide a copy of these Orders to his treating practitioners.
Provisions of Information
35.That this Order is sufficient authority for the Mother to obtain any information from, and speak to, any medical practitioner or health professional who may treat X from time to time.
36.That this Order is sufficient authority for the Mother to contact X’s school for the sole purpose of requesting that the school provide her with information about X, school reports and school photos for X at her own expense, AND FOR THE PURPOSE of this Order, the Father is to keep the Mother informed in writing of the school at which X attends.
37.That the Mother and Father have leave to provide a copy of these Orders to X’s school.
Restraints
38.That the Mother be restrained from being under the influence of alcohol and/or any illicit substance and/or non-prescribed drugs whilst spending time with, or communicating with, X and for 72 hours prior to any such contact with X.
39.That the Mother be restrained from vaping and/or smoking whilst spending time with, or communicating with, X.
40.That the Mother and Father are restrained from discussing these proceedings and/or any issues in dispute between them with X, in the hearing or presence of X, and shall take all reasonable steps to immediately remove X from the presence of any other persons who may be doing so.
41.That the Mother and Father are restrained from denigrating each other and/or members of the other parent’s family in the presence and/or hearing of X, and shall take all reasonable steps to immediately remove X from the presence of any other third person who is denigrating the other parent (or their family).
Airport Watchlist Order
42.That the parties, Mr Tucker born in 1983 and Ms Tucker born in 1985, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child X born in 2016 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Airport Watch List until the child turns 18, AND IT IS NOTED that this Order does not prohibit the taking or sending of the child from Australia to a place outside of Australia if it is done by consent in writing (authenticated as prescribed in accordance with Part VII of the Family Law Act 1975 (Cth)).
Miscellaneous
43.That within 14 days, the Independent Children’s Lawyer shall meet with X to explain these Orders to him and upon doing so, the ICL is discharged.
44.The Court declines to make a costs order in favour of the ICL.
45.That pursuant to Sections 62B and 65DA of the Family Law Act 1975 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
46.The Court reserves its written reasons.
THE COURT NOTES THAT:
A.In making these Orders, the Court notes that the Mother has suffered from many issues in her past including childhood trauma and more recent illness which has caused chronic pain from time to time the Mother has engaged in self-medication with prescription drugs, illicit drugs and excessive alcohol. The Mother is earnest in her wish that X does not ever blame himself for the limitations on his time with the mother or nay disruption to his time with the mother.
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 Tucker & Tucker has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
INTRODUCTION
These proceedings were commenced on 22 February 2018 in which the applicant mother is seeking contested parenting orders in relation to the child, X, born in 2016. The proceedings are ones in which there has been the benefit of an independent child’s lawyer since orders were made on 28 February 2018.
On that date, orders were also made for the applicant mother to submit hair testing for illegal or unprescribed substances and was prevented from cutting, dying or otherwise treating her hair. An order was also made for the applicant to undergo a carbohydrate‑deficient transferrin test, and an order was made placing the child on the watchlist, restraining the removal of the child from the Commonwealth of Australia. On that date, an order was also made for the child to live with the father and spend time with the mother each Wednesday and Saturday between the hours of 12 pm to 3 pm.
On 27 March 2018, the contact time by the applicant mother with the child was suspended and an order was made for supervised access for three hours each Saturday commencing on 31 March 2018. On 28 August 2018, the Court made orders noting the receipt of a positive hair follicle test for an illicit substance and stood the matter over until November 2018. On 20 November 2018, the Court received into evidence a further positive hair follicle test for illicit drugs and made an order that the child spend time with the mother supervised by M Contact Service Suburb L at such dates and times as the service makes available. A further order was made for hair testing and for suspending time if there is a positive test or a failure to submit to testing.
On 26 April 2019, orders were made seeking to permit the mother, at her cost, spending time with the child at a supervised service for an additional occasion of one day each week for three hours. There were also orders made in relation to hair follicle testing and urinalysis. On 30 July 2019, orders were made to obtain a family report, as well as the appointing of an expert, Dr J, as a single expert witness. An order was also made restraining each party from consuming illicit substances. On 13 July 2020, orders were made for the mother to contact the O Centre at H Hospital and to arrange and attend an intake assessment and comply with the directions and recommendations of the O Centre at H Hospital.
Orders were also made on that occasion for hair follicle testing, and for restraining any interference with the same, and for the mother to enrol in the anger management course at M Contact Service. On 7 May 2021, orders were made for the applicant mother to attend upon Dr N, psychologist, or other appropriate psychologist, and for the applicant mother to attend upon her psychologist for a period of no less than two months, and for time with the child to resume, being two hours each fortnight supervised by the B Contact Service. Orders were also made for further hair follicle testing and restraining the mother from dying or treating her hair.
On 7 April 2022, the parenting orders in respect of supervised access were vacated. On 21 October 2022, the matter was stood over part‑heard and an order was made for the applicant mother not to consume illicit substance or alcohol 48 hours prior to any supervised visit, as well as orders facilitating video audio contact each Tuesday and Sunday between 6.30 and 7 pm, and orders for the applicant to undertake hair follicle, urinalysis and CD testing at the request of the ICL. On 29 March, the matter was stood over part‑heard to 14 April 2023. In summary, the applicant has, in essence, only had supervised contact for the last five years with the child, who is now seven.
The applicant is seeking shared parental responsibility and that the child spend equal time with the parties. The respondent is seeking that the father have sole parental responsibility and that the child live with the father and spend no time and not communicate with the mother. In the alternative, there were identity‑type orders sought for four occasions of contact supervised by the B Contact Service for two hours each year and for the mother to provide 21 days notice of her intention to exercise that time, and for an order suspending time if the B Contact Centre terminates the visit due to the mother’s behaviour, conduct or otherwise.
The ICL, in summary, supports the respondent’s orders that the father have sole parental responsibility, that the father inform the mother of any significant decisions about the child’s major health, education and religion as soon as practical after he has made the decision, that the child live with the father and for supervised time at the B Contact Service each alternate week for a minimum period of two hours at times nominated by the service. The ICL then proposes staged supervision by firstly B Contact Service, then, the C Suburb D Children’s Contact Service, then by a Community based system.
The proposed orders were qualified by the mother not failing to attend contact visits without a reasonable excuse and that there is no issue of significant concern raised by the supervision service. The proposed orders also provided for the mother to provide a hair sample for testing and orders restraining the mother from cutting, bleaching or dying her hair, as well as orders to confirm the identity of the applicant being tested, and that if the respondent fails to comply with the requirements in respect of testing, the contact time shall remain the same and for repeat testing, with a proposed stage 3 when the child is 12 years old on one occasion each fortnight for a minimum of two hours at such times as agreed between the mother and father in a public place with three hours written notice and at such other times agreed between the mother and the father.
The orders also provide for restraining the applicant mother bringing the child into contact with any person other than the maternal grandparents or uncle, and to provide evidence of alcohol testing prior to each visit to the respondent father, and to ensure that the child has a mobile telephone with a 360 app at all times when he is spending time with the mother, and restraining the mother from taking the child to her residential address or any other residential address. The mother is also sought to be restrained from driving the child at any time and is to notify the respondent if unable to attend.
The proposed orders provided for a positive reading to result in the reverting to supervised time. The orders provided for the mother being at liberty to provide gifts and cards on special occasions. The orders also provided for a changeover location at a supervision centre. The orders also provided for a potential family dispute resolution conference under section 10G in the event of the mother’s failure to comply with an order or in the event of supervision being suspended. The orders also provide for contact between the mother and child between 5.30 and 6 pm each Tuesday and for the communication between the parties to be by OurFamilyWizard or other electronic means.
The proposed orders also provided for notification of the mother of medical emergencies involving the child, and for the mother to continue attending upon a treating psychologist, and to attend Narcotics Anonymous meetings, and to contact the O Centre at H Hospital to arrange and attend an intake assessment for counselling for substance abuse and to continue to attend upon the centre.
The proposed orders also facilitated the respondent father attending upon a psychologist as deemed necessary and authorise the provision of medical material to appropriate treating practitioners. The orders provided for authority for the applicant mother to receive school reports. The proposed orders also proposed restraints from the mother consuming alcohol or illicit substances or non-prescribed drugs 72 hours prior to contact with the child, restraining the mother from vaping once spending time or communicating with the child, restraining the parties from discussing the proceedings in the presence of the child, restraining the parties from denigrating the other in the presence of the child.
The Court heard evidence on the following dates from the following the applicant, Mr J, the first respondent, the paternal grandparents and the family report writer Ms E.
EVIDENCE OUTLINE
The following affidavits were treated as read, with annexures treated as being in evidence:
(1)Affidavit of Applicant Mother dated 18 October 2022;
(2)Affidavit of Respondent Father dated 14 October 2022;
(3)Affidavit of Ms P dated 14 October 2022;
(4)Affidavit of Mr Q dated 14 October 2022.
The following was further tendered into evidence:
(1)Exhibit A: Respondent Father’s Notice of Risk dated 22 February 2018;
(2)Exhibit B: Family Report dated 20 April 2020;
(3)Exhibit C: Addendum to the Family Report dated 30 September 2022;
(4)Exhibit D: Single Expert Report of Dr J dated 11 October 2022;
(5)Exhibit E: Addendum to the Single Expert Report of Dr J dated 11 December 2022;
(6)Exhibit F: Respondent Father’s Tender Bundle
(7)Exhibit G: Independent Children’s Lawyer’s Tender Bundle;
(8)Exhibit H: Applicant Mother’s Tender Bundle;
(9)Exhibit I: Independent Children’s Lawyers Supplementary Tender Bundle;
(10)Exhibit J: Single Page Report of Mr J dated 13 December 2019;
(11)Exhibit K: Further Report of Mr J dated 11 October 2022;
(12)Exhibit L1: Commonwealth Bank of Australia Banking Statement No. … for account ending #...52 dated 20 October 2022;
(13)Exhibit L2: Commonwealth Bank of Australia Banking Statement No. … for account ending #...52 dated 20 October 2022;
(14)Exhibit L3: Commonwealth Bank of Australia Banking Statement No. … for account ending #...19 dated 20 October 2022;
(15)Exhibit L4: Commonwealth Bank of Australia Banking Statement No. … for account ending #...19 dated 20 October 2022;
(16)Exhibit L5: Statement of Attainment from R Pty Ltd dated 4 October 2022;
(17)Exhibit L6: Statement of Attainment for S Company dated 10 October 2022;
(18)Exhibit M: Respondent Father’s Supplementary Tender Bundle dated 20 October 2022;
(19)Exhibit N: Respondent Father’s Second Supplementary Tender Bundle dated 21 October 2022;
(20)Exhibit O: Unsworn Affidavit of the Applicant Mother dated 16 March 2023;
(21)Exhibit P: The Drug Test dated 27 March 2023;
(22)Exhibit Q: Respondent Father’s Third Supplementary Tender Bundle;
(23)Exhibit R: Independent Children’s Lawyer’s Third Supplementary Tender Bundle dated 24 March 2023;
(24)Exhibit S: Independent Children’s Lawyer’s Fourth Supplementary Tender Bundle dated 27 March 2023;
(25)Exhibit T: Independent Children’s Lawyer’s updated Chronology dated 24 March 2023:
(26)Exhibit U: Payslip from T Company dated 1 March 2023;
(27)Exhibit V: Child Support Assessment of 2023 dated 14 February 2023;
(28)Exhibit W: Screenshot of payments of overdue Child Support;
(29)Exhibit X: Respondent Father’s updated Minute of Order dated 14 April 2023;
(30)Exhibit Y: ICL’s updated Minute of Order dated 14 April 2023;
(31)Exhibit Z: Respondent Father’s Fourth Supplementary Tender Bundle comprising of four pages dated 14 April 2023;
(32)Exhibit AA: Tender Bundle of Screenshots comprising of Test Information Sheet.
The court received the following:
(1)Case Outlines of the Applicant Mother dated 19 October 2022;
(2)Case Outline of the Respondent Father dated 17 October 2022;
(3)Case Outline of the Independent Children’s Lawyer dated 18 October 2022.
(4)Respondent’s submissions dated 14 April 2023
(5)ICL’s Submissions dated 14 April 2023
CHRONOLOGY
The Court finds the relevant dates and events are in the following Chronology:
Date Event 1983 Father born (38 years) 1985 Mother born in U State, USA (37 years) 2013 After Father met Mother in 2013, Father discovered from conversations that the Mother had a history of drug and alcohol use. 2004 Mother arrested & charged in V State, USA for multiple offences 2004 Mother arrested and charged in V State, USA with possession of illicit substances 2005 Mother charged in V State, USA with offences – charges dropped/abandoned in 2005 2005 Mother charged in V State, USA with offences. Charges dropped/abandoned in 2005 2005 Mother arrested and charged in V State, USA with an offence 2006 Mother charged in V State, USA with multiple offences 2006 Mother found guilty/convicted of driving under influence of alcohol/ drugs – probation and fine 2008 Mother charged in V State, USA with multiple offences 2008 Mother charged in V State, USA with possession of illicit drugs, dui alcohol/drugs 2013 The parties meet in Australia 2013 Mother says father had sex with her whilst she was unconscious 2014 The parties get engaged 2014 The parties marry in City W, USA 2015 The Mother finds out that she was pregnant.
Parties decided to raise their child in Australia.
Father returned to Australia to renovate future family home in Suburb Y, NSW (“the Suburb Y Property”) ahead of child’s birth.August 2015 Mother states that father pushed her to ground and punched her. She states father arrested and charged in US. Late 2015 Father leaves USA 2016 Father obtains mother’s USA police report in accordance with Application of Mother for Australian PR 2016 Mother moves to Australia and parties commence living together. 2016 Child X born (6yrs)
X lives with the Father and currently spends time with the Mother supervised at B Contact Service for 2 hours per fortnight.
During the cohabitation, Father’s parents cared for X around 2 to 3 times per month during the day when required, overnights and even whole weekends.
X has his own room set up at Father’s parent’s home with a queen bed, spare clothes, books and toys.
2017 Father discovered drugs and drug implements in mother’s possession.
Father leaves Suburb Y Property as Father didn’t want to expose X to arguments between the parties.
Since the start of 2017 the Father has observed the Mother using various “gateway drugs” and alcohol to excess, more serious drugs on various occasions causing a strain the family and their relationship.
4 February 2017 Parties move out of Suburb Y property and initially separate. Child remains living with mother and visits the father. February 2017 Mother said to the Father “I need to go and get some things from the shop” around 11.30am. Mother returned at approximately 3pm. Mother appeared intoxicated upon her return, slurring her words, unsteady on her feet and smelt strongly of alcohol.
Another time, the Mother had told the Father “I ignored your calls because I was at the pub and didn't want to come home”.
The Mother had on another occasion punched the Father on the left side of his head and yelled “I will kill you in your sleep if you cause any issues with [X]”.
Immediately after the Mother punched the Father, the Father phoned his Father dad and left the house leaving X because he was in bed.
February 2017 – February 2018 During this period of Father observed that on occasions when the Mother brought X to visit him at his parent's home, the inside of her car did smell like marijuana. Mother said she was smoking by saying “[Mr Tucker], it’s just weed. What’s the problem?” Mid-2017 Mother scratches father in self-defence after he punches and pushes her to bed. Final ADVO made for the protection of the father from the mother. 10 August 2017 Father moves back into the Suburb Y Property and then the Father, Mother and X move into a new property in Suburb Z. August 2017 Mother picked up Father from the station with X in the car.
Argument over Mother wanting alcohol ensued. Mother tried to force Father from the car. Mother drove Father to his parent’s house. Father took the keys to the car as X was in the car. Mother tried to physically get the keys back from the Husband, they fell, Father’s hand was broken. Mother ran screaming from the car.
Police arrived.
Father arrested and charged with Assault occasioning Actual Bodily Harm. A police officer took photos of Father’s injuries. Father served with a provisional AVO.
Father went to court and was found not guilty.
December 2017 – February 2018 Father noticed drug utensils at house.
Mother was drunk and Father and Mother had a fight, Mother physically abused Father.
Father reported Mother to police31 January 2018 Mother asserts that the father threatened to murder her in her sleep. Early 2018 Domestic violence incident –Mother was intoxicated and threw objects at the Father, mother tried to leave with child, father called police. Mother assaulted the Father by kicking, scratching and biting. Father was assaulted by Mother’s new partner. Mother and mother’s partner arrested by police. Police give the child to the Father.
Father retains child in his care.
Following this incident, the terms of the Final ADVO were varied to state that she could have no contact with me whatsoever.
Parties Separated.
Early 2018 ADVO naming father as PINOP updated to no contact order. 22 February 2018 Mother files Application for Interim and Final Parenting Orders, Notice of Risk and Affidavit.
Father concerned about impact on X.
27/28 February 2018 Father files response.
On 28 February 2018, Orders were made for X to live with Father and spend time with Mother each Wednesday and Saturday from 12pm to 3pm.
Orders: Mother to have supervised contact only with the child.
April 2018 Father received a call from Ms AA and Mr BB asking him not to attend court the next day. Father later returned to his car to find two front side windows smashed in. Father had car repaired. May 2018 Father awoke to discover two front side windows of car smashed in again. Mid-2018 Mother arrested for breaching no contact provisions of ADVO. Mid-2018 Father visited by two people asking him to drop the charges against the mother. Mid-2018 Mother pled guilty to breaching ADVO. 12 month good behaviour bond. July 2018 Mother commences CC program. 9 July 2018 Mother commences to see Mr DD psychologist. July 2018 –August 2018 Mother calls police a number of times but doesn’t say anything. Police are looking for her. 14 August 2018 Mother entered into EE Centre, Suburb FF inpatient program. 23 August 2018 Mother checked herself out of EE Centre, Suburb FF program. October 2018 Mother entered into EE Centre, Suburb GG program.
In the same month, the Mother was removed from the EE Centre, Suburb GG program due to behavioural issues.
18 October 2018 Mother files amending application seeking equal time and equal shared parental responsibility. 20 November 2018 Order: mother to spend time with the child supervised by M Contact Service. 2019 Mother granted permanent residency 2019 Mother convicted of assault and domestic violence re incident in mid‑2017. Further final ADVO made. mother placed on community corrections order for 12 months with conditions 2019 X began attending early childhood education program at HH Kindergarten.
Mother’s friend, Mr JJ, told the Father that he had taken the Mother to drug rehab three times and the Mother had asked him to send her drugs.
2019 A friend of the Mother’s from the USA came to support the Mother. The friend, Ms KK, told the Father:
“There’s no way [X] should be around [Ms Tucker] unsupervised. She is still drinking every day and doing drugs, she has just substituted the drugs and now uses [other illicit substances] because she was told it won’t show up in the hair follicle tests. She is also doing weekly urine tests on her own to prove she is clean, but she is getting a guy called [Mr NN] who is on parole to urinate into a condom. She puts the condom inside herself and uses this to cheat the urine tests.”
Ms KK informed the Father that “[Ms Tucker] has informed me that she is arranging her own drug tests so she can work out which drugs are undetectable. She’s trying to find loopholes to keep taking drugs without being caught.”
15 April 2019 Mother completed CC program 10 June 2019 – 21 June 2019 Father facilitated phone calls between mother and X 26 April 2019 Order: mother to spend additional time with child supervised by OO Contact Centre. 15 July 2019 Father’s solicitors received correspondence from PP Company stating PP Company cannot confirm the presence of a specific illicit substance in hair, which would prove long-term use. PP Company stated, “We are not aware of any other laboratory routinely testing for [this substance] in hair in Australia”.
The QQ Company who have previously performed drug tests in these proceedings, also does not test for this substance as per their website.
23 July 2019 Father facilitated X having time with the Mother. Supervision by OO Contact Centre.
M Contact Centre advised there would not be able to supervise X’s time with the Mother.
Mother continues to harass Father by phone.
Mid-2019 The parties are divorced 2019 Father attended Suburb L LC for the Mother’s criminal proceedings. The Mother did not attend. Prosecutor and Mother’s representative agreed that Final ADVO to be updated with “no contact” provision. 2019 The mother failed to appear at Suburb L Local Court and produces medical certificate. 14 August 2019 The father applies for child support assessment.
RR Agency queries how the mother supports herself.4 September 2019 Mother’s solicitors advised Father that Mother was terminating ongoing services with OO Contact Centre because she could not afford it. 10 September 2019 Final property orders by consent 12 September 2019 Order: mother to spend time with the child supervised by B Contact Service 25 September 2019 Mother did not turn up to B Contact Service for time with the child. Lost track of days. 2019 Mother reported as experiencing overdose, then on waking attacked reporter, Police attended Ms Tucker’s address she appeared effected by illicit substance (pupils dilated) and her partner refused to speak with police. 11 December 2019 Expert report Dr J 2019 Mother’s criminal proceedings listed at Suburb L LC. 2020 X began attending SS School, Suburb L.
The school said that X was ready for kindergarten and recommended that Father send him to a private school.
Father arranged for an interview at TT School in Suburb UU where X was accepted and currently attends.
20 April 2020 Mother’s contravention application dismissed.
Family report of Ms E
12 June 2020 During visit at B Contact Centre, Mother presents with sunglasses. Mother is asked to take sunglasses off which reveals she has a black left eye. Mother requested to put sunglasses back on. Visit ends early upon child’s request. 10 July 2020 – 13 July 2020 Father and Mother attend mediation with legal reps.
Consent Orders were agreed.
Mother to undertake hair follicle testing order 7.
Mother to provide results to Father’s solicitor and ICL order 7.2 and 8.
Mother to attend O Centre intake assessment. Order 2.
26 June 2020 Incidents causing father’s concern over her time with X including often late and appeared with black eye. 31 July 2020 Mother was aggressive with X 21 August 2020 Mother was late and had bruises. 18 September 2020 Mother made denigrating comments about father in front of X. 14 November 2020 At the end of a visit at B Contact Centre, Mother argues with Supervisor and raises her voice. Startles another child who is about to commence contact. Mother warned. 16 December 2020 Mother completes Managing Anger Online through M Contact Centre. 2021 X commences Kindergarten at TT School 15 January 2021 Mother appeared or time with X with a black eye 18 January 2021 Mother undertakes hair follicle testing through QQ Company pursuant to Order 7 of the Orders dated 13 July 2020 (“the primary test”) 29 January 2021 Mother undertake further hair follicle testing through QQ Company of her own accord (the secondary test) 6 February 2021 QQ Company releases the results of the primary test to the Father. The Mother tests positive for illicit drugs.
Father contacts B Contact Centre to terminate the supervised visits between the child and Mother.
10 February 2021 The Mother’s solicitors provide the test results for only the secondary test done to the parties.
The secondary test results provide negative results for all substances tested.23 February 2021 ICL and Mr VV, managing director of QQ Company email outlining explanations for the secondary test results. 2 March 2021 Order: Mother’s time at B Contact Centre reinstated. 6 March 2021 Mother is 55 minutes late to visit with child at B Contact Centre 17 March 2021 Parties receive re-tests done by QQ Company on samples from the primary test. QQ Company does not re-test negative samples from the secondary test as per policy. 16 April 2021 – Between April 2021 and May 2022 B Contact Centre suspends the Mother’s time with the child at the Centre until she has addressed her abusive behaviour and anger related issues.
As a result of Mother’s aggression and behaviour B Contact Centre would not allow Mother to see X.
19 April 2021 Father’s lawyers received an email from the Independent Children’s Lawyer “I understand from the Contact service that the mother’s time has been suspended and that the contact service requires the mother to undertake an anger management course prior to time recommencing there.” 23 April 2021 Parties receive a Report prepared by Dr WW validating the results of the primary test.
Explanation given that a possible explanation for the discrepancy in the Mother’s positive and negative results from B Contact Centre may be the use of chemical treatments to remove drug from the hairMarch 2022 Father understands Mother sees Mr XX psychologist. As a result, B Contact Centre allowed Mother to see X again from May 2022.
Father starts a small online business named YY Company.7 April 2022 Mother was required to undertake further follicle testing. Mother did not do this. 22 April 2022 Mother undertakes hair follicle testing through QQ Company 24 May 2022 Mother provides results of 22 April 2022 hair follicle test, showing a positive result for THC. May 2022 B Contact Centre allows mother to see X again. 21 May 2022 Mother discussed the court case with X during a visit and also questioned him on why she was not allowed to come watch his sports games, saying “I’m not sure why daddy won’t let me come watch”. X raised this with the Father after the visit saying “I’m confused why she wanted to come but said she isn’t allowed because of daddy”. 1 June 2022 Mother consults with Dr ZZ relating to medicinal cannabis 2022 Mother charged with illegal drug possession and fined 16 July 2022 Father informed that mother’s visit with X was cut short due to mother’s poor behaviour. 13 August 2022 Mother did not turn up to visit X 15 August 2022 Mother supposed to undertake further hair follicle testing but did not do so. 27 August 2022 Mother supposed to provide lunch to X at visit. Mother forgot and gave X an iced donut, packet of lollies and a can of coke. 29 August 2022 ICL requested mother to undertake urinalysis testing. The mother did not do this. 23 September 2022 Father files amended response 30 September 2022 Addendum to family report of Ms E October 2022 Father and ICL requested for mother to undertake further hair follicle testing but mother did not respond. 10 October 2022 Updated report of Dr J 14 October 2022 Father filed trial affidavits 19 October 2022 Mother files trial affidavits 19 October 2022 Hearing set before Judge Street for 3 days FAMILY REPORT AND SUPPLEMENTARY REPORT
The first Family Report was dated 20 April 2020 and involved the interviews of the applicant mother, the respondent father, the paternal grandparents and the child.
At the time of conducting the interview, the child spent two hours with the applicant mother each Friday supervised at the B Contact Service in City AB. The parties sought different outcomes with the applicant mother seeing that the child live with both parents on an equal basis and the parties have equal shared parental responsibility of X. The respondent father sought that the child spend two hours with the applicant mother supervised by M Contact Centre for a period of 12 months with the condition that the applicant mother undertake drug testing every three months. Following this 12 month period, the respondent father proposed that the child spend time with the applicant mother each alternate weekend (Saturday 8:00am till Sunday 6:00pm) and then after a further 12 months, this time be increased to each alternate weekend from Friday afternoon till Sunday afternoon. The respondent father sought sole parental responsibility for X.
The matter has a history of family violence, drug and alcohol abuse and mental health risk factors that were taken into account by the family report writer.
Ms Tucker (Applicant Mother)
The applicant mother reported that her relationship with X is a positive one and described instances of them running around together and laughing. She stated that she used to be the child’s primary carer and loved being a mother. It was reported that her and X have fun when they spend time together and that X loves coming to see her. It is the opinion of the applicant mother that she does not see a need for ongoing supervision and that X wishes for the applicant mother to come home. The applicant mother expressed concern for the child stating that his fine motor skills are below average of a child his age and reported it to the supervisor at the contact centre.
In respect of the applicant mother’s parenting proposal, the applicant mother reported that X spending more time with her will be of benefit to him, stating that the child is in need of both parents as much as possible. The applicant mother reported that she has complied with all Court orders and has not missed spending any time with the child other than the time she was in drug rehabilitation and attending a responsible service of alcohol course. The applicant mother was of the opinion that she has more to offer than the respondent father because it is her belief that the respondent father focuses his attention on video games.
The applicant mother reported that she has been spending supervised time with the child for over two years and was advised by the Judge in April 2019 that should she pass a hair follicle tests, then she would be able to spend overnight time with X. The applicant mother accused the father of telling the Court that the mother was engaging in “all this other stuff” convincing the Judge to order another assessment with Mr J. The applicant mother conceded that the “other stuff” related to alcohol use and did not deny the consumption of alcohol. However, the applicant reported that she had tested negative for everything and denied working as a sex worker pursuant to the respondent father’s allegations.
The applicant mother reported that she does not believe that the respondent father’s parenting proposal of her spending supervised time with X for another 2-3 years necessary. It was further reported by the applicant mother that the respondent father does not allow for X to communicate with maternal family members and does not respond to messages from the maternal grandparents.
It was reported that the applicant mother has not taken up the option of additional time with X due to financial difficulties.
In respect of family violence, the applicant mother reported that the respondent father had been physically and verbally abusive towards her during their relationship as well as inflicting controlling behaviour. It was reported that the respondent father had been arrested for domestic violence on two occasion when the couple lived in the USA. The applicant mother made reference to this abuse stating that the respondent father would hit her, pull her hair and in 2017, the respondent father attempted to crash the car which she was driving. An ADVO was made however the charges were dropped in 2018. The applicant mother alleged that the respondent father would throw household objects and would insult her, telling her that she would not amount to anything. It was reported that the respondent father was financially controlling and the parties would fight if the applicant mother would spend any money. The applicant mother reported that the parties would fight often, with an increase of physical and verbal abuse occurring quarterly. It was reported that these fights would occur in the context of drugs or alcohol use on both parties. The applicant mother conceded that she had been charged with assault in 2018, however is of the view that she should not have been and denies acting in a way that would make the respondent father or the child feel unsafe.
Is respect of drugs and alcohol, the applicant mother reported that she has not used drugs around X. The applicant mother conceded to using illicit drugs since moving to Australia and conceded to the use of other drugs. The applicant mother alleged that her drug use did not bother the respondent father and that he would buy her drugs and would consume them together when they lived in the USA. It was reported that the applicant mother had attended rehabilitation with EE Centre in Suburb FF in 2018 but she left after two weeks. She then re-entered rehabilitation with EE Centre in City AC at the end of August. The applicant mother stated that she had been sober for 12 months and that she attends Narcotics Anonymous meetings three times a weeks as well as attends counselling session at City AB Community Health. The applicant mother denies driving under the influence with X in the car and does not have future concerns about her consumption of alcohol. The respondent father’s consumption of alcohol was a topic of concerns for the applicant mother, alleging that the respondent father would binge drink entire bottles of spirits or cases of beer and would become angry when drinking.
In relation to the applicant mother’s mental health status, she conceded that she suffers from anxiety and started having panic attacks in 2005. The applicant mother reported that she continues to see a psychologist, Mr DD through AD Services and takes prescribed medication as required. She does not believe that her anxiety affects her parenting capacity.
In respect of X’s wellbeing, the applicant mother is not concerned about the child’s emotional well-being and claimed that X was so young when the family violence occurred and that he was asleep a lot of the time. There was no reported concern about X’s physical well-being however the applicant mother expressed concern for the paternal grandparent’s health.
The applicant mother reported that the parties do not have a current co-parenting relationship with no communication occurring between them.
Mr Tucker (Respondent Father)
The respondent father reported that he has been the child’s primary carer “pretty much since he was born” and that he and X have a very healthy relationship. The respondent father expressed that he does not believe that X has any medical or developmental issues however is not completely sure of the effects of the applicant’s mother’s drug use on the child’s development.
In respect of the respondent father’s parenting proposal, it was reported that the respondent father seeks that the current arrangements are to remain in place until concerns about the applicant mother’s lifestyle are addressed, stating that the applicant mother’s drug use is a “huge amount of risk”. The respondent father stated that he has presented options for X to spend an additional three hours with the applicant mother but this offer has not been taken up. It is the respondent father’s proposal that he provides the applicant mother small amounts of time with X over the course of three years and does not agree to X living with the parties equally.
In respect of family violence, the respondent father denied assaulting the applicant mother physically. The respondent father alleged that the applicant mother was aggressive during arguments, especially if he suggested she decrease her alcohol consumption, and that he would often have to restrain her to prevent harm towards him. The respondent father is of the view that he is still at risk of harm from the applicant mother’s behaviour and reported that since separation, the applicant mother has posted denigrating material about him on social media. The respondent father reported that the applicant mother has breached the no contact provisions of the AVO, specifically on one occasion where the applicant mother texted the respondent father from 3:00pm until night time. The respondent father reported that the applicant mother has made threats against his life and is afraid to go home as he fears for his life.
In regards to the respondent father’s consumption of drugs and alcohol, the respondent father reported concerns of the applicant’s mother’s use of drugs, alleging that she “did a lot of drugs”. It was reported that the applicant mother had been in rehabilitation three times in the USA during 2015. The respondent father alleged that the applicant mother is still using an illicit substance, which causes users to pass out and is concerned that the illicit substance cannot be detected in drug tests. The respondent father expressed concern that the applicant mother would not be able to care for X if she uses the illicit substance and passes out. The respondent father reported his concern for the applicant mother’s consumption of alcohol, alleged that she would sometimes “start the morning with a cup of vodka” and that her drinking habits causes arguments in their relationship. The respondent father reported that the applicant mother would fill up water bottles with vodka and keep it in the car with her.
The respondent father expressed concern about the applicant mother’s mental health, stating that she has a temper and is unaware if she has a formal diagnosis. The respondent father alleged that the applicant mother goes to the doctors to get a lot of pills along the lines of muscle relaxers and opioids. The respondent father did not report concerns of his own mental health.
In respect of well-being of the child, the respondent father reported that he is concerned for X’s physical safety with the applicant mother. He expressed concern as to how the applicant other would respond if X was upset and she was unable to calm him down.
The respondent father reported that the parties do not have a current co-parenting relationship and there is no communication between the two of them.
Mr Q and Ms P (Paternal Grandparents)
The parental grandparents reported that they love X and have a positive relationship with the child. The paternal grandmother specifically stating that X is a smart child who is rounded and inquisitive. The paternal grandfather stated that X loves playing with games and gardening and is good at jigsaw puzzles. The parental grandparents commented on the respondent’s parenting reporting that X and the respondent father are inseparable and they are of the view that he is a great father.
In relation to well-being of the child, the paternal grandparents did not report any concern about their health status or their ability to appropriately care for X when required.
X (the child)
During the conducted interview with X, the report writer claims that X presented as a generally happy and talkative child whose manner and appearance are consistent with his age.
It was noted that when the child was placed in the childcare room by the respondent father, X became distressed as the respondent father said goodbye and left the room. The respondent father explained to the child that he would not be very long which provided X with ease and allowed the child to play with the social worker.
The family consultant reported that X did not want to leave the childcare room and was happy to discuss the toys he was playing with. The family consultant noted that X had a stutter at times and asked the respondent father about it. The respondent father told the family consultant that X developed a stutter when the applicant mother did not turn up to spend time with X three weeks prior to this assessment.
It was concluded that X is not of an age or development level where he could be meaningfully interviewed in regards to the proposals of each of the parents.
When the child was asked if he wanted to play with mum and saw the applicant mother, X raised his arms, indicating he wanted to be picked up to hug her. The two of them played positively and was characterised by excited play that was mutually enjoyable. The child returned to the child care room at the conclusion of his play time with mum without distress.
X vocalised excitement when the family consultant asked if he wanted to play with dad. The child ran towards the respondent father and hugged him. The respondent father and the child played with the dinosaurs and engaged in a play time that was characterised by laughter and appeared to be relaxed. The child acknowledged the paternal grandparents when they entered the room but did not stop playing with the dinosaurs. The child initially seemed disinterested in interacting with the paternal grandparents however, when the paternal grandfather sat on the couch to read a book, the child ran to the couch and sat on the paternal grandfather’s lap and engaged in reading a book together. At the conclusion of the observation, X returned to the childcare room without displaying distress.
Evaluation and Recommendations
The family report writer write that X presented as initially shy but when relaxed, he presented as a happy, contented child, who is meeting his developmental milestones. The accounts of the parents and grandparents both separately interview and during interactions with the child indicate that X is a well-loved child.
It was noted by the family report writer that both parties provided very different stories regarding family violence in their relationship, with each parent reporting that the other used physical violence and verbal abuse. Each party denies that they were ever physically violent towards the other. The parties alleged that the other consumes alcohol at a problematic level and describes their own consumption of alcohol as non-problematic and occurring on a social basis. The respondent father expressed concerns of the mother’s drug use and alleged that she is currently still using illicit substances, however the applicant mother denies currently using drugs or using drugs whilst caring for X. The report writer noted that it is outside of the scope of the report to determine the veracity of the respondent father’s allegations and this will need determination by the Court. The report writer notes that both parties seek different orders in terms of parenting however, based on the current relationship of the parties, it is unclear if they would be able to clearly communicate or come to agreement at a level required for shared parental responsibility.
The family report writer recommended that X lives with the respondent father and that the Court is to determine whether it is appropriate for the respondent father to have sole parental responsibility or whether the parties have shared parental responsibility. It was further recommended that should the applicant mother be found to still be using drugs, it is in the best interests of the child that X do not have any contact with the mother, in person or via the telephone however, if the other is deemed to not be an unacceptable risk, the writer recommended that unsupervised with X and the applicant mother may commence.
Addendum Family Report dated 30 September 2022
The Court ordered on 7 April 2022 for an updated family report to be made. The updated report is to assist the Court is determining the best outcome for the child and should be read in conjunction in the earlier report.
In terms of the risk factors discussed by the parties, there is very little difference between the two reports with the parties expressing the same views and concerns as prior.
The family report writer provided the following updated recommendations:
(1)That the respondent father have sole parental responsibility for the child;
(2)That the child live with the respondent father;
(3)Further information is sought by the applicant mother’s doctor in regards to his prescription on medical marijuana.
(4)If the applicant mother is found to still be using illicit substances then it is recommended that she attend a rehabilitation facility and/ or substance abuse counselling.
(5)If X is at an unacceptable risk of harm spending time with the applicant mother, it is recommended that the child spend no time with her.
SINGLE EXPERT REPORT AND ADDENDUM
The Court appointed Dr J to produce a Single Expert Report pursuant to Rule 15.44 to assist the proceedings, which was completed on 11 October 2022. The Single Expert Report is solely focused on the applicant mother and concerns areas of her drug and alcohol abuse, mental health and prior criminal history. Her interview was conducted in person on 30 June 2022 and follow up telephone calls occurred between the applicant mother and the Single Expert on 10 October 2022.
At the time of the interview, the applicant mother had recently moved into a shared apartment with her friend. The relationship between herself and her ex-partner, Mr AE, had ended a couple months prior and he was now subject to an ADVO. The single expert reported that at the time of the interview that the applicant mother’s body mass index was low, suggesting an inadequate caloric intake for her nutritional needs, however the applicant mother denies ever having disturbed eating or behaviours associated with an eating disorder, but acknowledged that she struggled with anxiety. It was reported that whilst she had a low BMI, she did not appear malnourished or emaciated and no visual skin imperfections.
Three months prior to the conducted interview, the applicant mother underwent a medical procedure, however at the time of the interview, she was symptom free and was no longer taking her pain medication. The applicant mother reported that separate to her surgery, she has been prescribed anxiety medication and has taken medical cannabis for the management of her anxiety and insomnia. It was reported that the applicant mother takes anxiety medication as needed and cannabis appears to be used more frequently. It was reported that the applicant mother’s current psychologist treating her is Mr XX. The applicant mother reported that since commencing taking medical cannabis, she was no longer experiencing disturbed sleep.
In respect of the applicant mother’s employment, it was reported that the applicant mother had been undertaking some office work for a company and was working from home. It was reported that she had been employed by the same firm prior to COVID. The applicant mother reported not recently working due to recovering from her surgery, however reported that she had completed courses that enable her to work in the transport industry.
When asked about her daily routine, the applicant mother reported that she takes her dog out, drinks coffee and perhaps smokes a cigarette. The applicant mother reported that her smoking is very limited and smokes a maximum of two cigarettes per day. At the time of the interview, the applicant mother reported that her current days are not heavily structured but that she is trying to make the most out of her day whilst she recovers from the surgery.
The applicant mother reported that she has a small number of close friends, with her closest friend, Ms AF, being the girl she is sharing the apartment with. It was also reported that the applicant mother received support from her psychologist, Mr XX. It was the view of the single expert that the applicant mother’s social capital is quite impoverished. The applicant mother reported that she enjoys being alone and expressed pleasure in reading. In respect of hobbies, the applicant mother reported that she enjoys numerous hobbies and activities.
In respect to the dispute, the applicant mother reported that the last three years have been distressing and just wants the proceedings to be over. The applicant mother discussed her parenting proposal with the single expert to which the expert noted the family report discussing her issues surrounding drugs, violence and her potential profession as a prostitute. When questioned about her intoxicant use, the applicant mother reported that her typical daily consumption of cannabis is approximately 1ml of cannabis oil. In respect of alcohol, the applicant mother reported that she consumes a glass of wine with her evening meal and added that she might consume a couple shots of vodka after a bad day. The applicant mother denied experiencing alcohol associated blackouts. The applicant mother further denied that she had consumed illicit substances in the preceding 12 months and stated that she last consumed illicit substances in 2018 and in 2017. The applicant mother further reported that she had not taken any illicit substances in the preceding 12 months and that she only had been taking prescribed medical cannabis and anxiety medication.
The applicant mother was questioned on her psychological wellbeing, to which the applicant mother reported that she always had anxiety. She reported that she has suffered a lot of traumatic experiences and will often go through waves of low mood. It is the single expert’s view that the applicant mother is socially isolated. It was reported that she has her familial support network in the USA and a strained relationship with the respondent father’s family. It was reported that Mr XX has recently diagnosed the applicant mother with PTSD.
The reviewer was required to examine the applicant mother’s hair follicle test samples and her urinalysis results. The report summarised her results which appeared to be mixture of negative and positive readings for illicit substances and alcohol. The single expert was also required to review the applicant mother’s police records and focused on the most recent police events in his report. It was evident that the applicant mother has been involved in multiple occasions of family violence and assaults which may have occurred as a result of drug and alcohol consumption. The single expert also reviewed the contact notes from the B Contact Service. The reviewer was aware that the applicant mother’s visits were suspended to reduce in frequency during April 2021 for abusive behaviour towards staff and failing to comply with security.
Impression
The single expert reported that in regards to the applicant mother’s use of intoxicants, the most recent hair follicle test is 6 months old to which the sample detected cannabinoids only. In the absence of other intoxicants, the results were consistent with the applicant mother’s self-report that she is consuming cannabis prescribed and approved by TGA. The single expert requested that the applicant mother undertake an updated general blood test to provide meaningful data on ongoing excessive alcohol use. It was noted that during the interviews, the applicant mother did not appear to show signs of intoxication.
Additionally the following guidance emerges from authorities:
(1)It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 at 77.
(2)Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[148].
(3)The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or only some of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at [68], endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.
(4)While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact: “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”.
FINDINGS
The court has taken into account the principles in s43, s60B and s69ZN of the Family Law Act. The Court has taken into account the statutory pathway in Part VII, including the definition of family violence in s4AB and the definition of child abuse in s4. The Court has taken into account that there was an ADVO obtained by the father, but that there is now no longer any ADVO in place.
The Court is mindful of the primary obligations in s60CC and that greater weight must be given to the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. The first primary consideration in s60CC(2)(a) is for the child to have a meaningful relationship with both of the child’s parents and the greatest weight must be given to s 60CC(2)(b) as the need to protect the child pursuant to s60CC(2A)
The Court has taken into account, in particular, the meaning of parental responsibility in s61B. The Court finds that the presumption in s61DA is rebutted in the present case because the Court finds there has been family violence. The Court finds that it is in the best interests of the child for the father to have sole parental responsibility and for the child to live with the father. The Court finds the child had been thriving in the father’s care and in the routines created by the father and paternal grandparents. The Court found the father to be an impressive witness who was focused upon protecting his child to the maximum extent possible. The candid evidence of the respondent father was an endeavour to ensure the maximum protection possible for his child.
The Court finds that the father has been diligently discharging his parental responsibility in relation to the child and has had the benefit of assistance from the parental grandparents. The Court accepts the evidence of the respondent father that he will comply with the Court’s orders in relation to communication and contact by the applicant with his child. The respondent father was anxious to ensure that there were appropriate safeguards and balances in place in relation to contact between the mother and child.
The respondent father maintained and the Court accepts that in substance, the applicant mother is still engaged in polysubstance abuse and presented an unacceptable risk to the child. That said, the respondent father candidly acknowledged that the child had been enjoying the limited contact at the supervised centre with his mother, which the respondent father described as “play time.”
The enjoyment of the child of the contact with the mother is also supported by the views expressed by the child to the ICL, indicating a desire for continued contact and expressing a clear preference for the physical contact over the supervised communication that had occurred.
The Court accepts the respondent father’s evidence that he is supportive of the child having a meaningful relationship with his mother, albeit he has strong and genuine concerns as to the ongoing substance abuse by the mother and the milieu in which she currently finds herself. The Court accepts the submissions advanced on behalf of the respondent that the failure to undergo the CDT testing and the regular hair follicle testing, the subject of requests by the ICL, and the CDT testing support a finding, which the Court makes, that the mother is still engaging in polysubstance abuse and on the balance of probabilities is still addicted to amphetamines.
The Court accepts that the mother’s current drug addiction poses a risk of neglect in relation to unsupervised time with the child, now seven.
The Court also finds, given the mother’s recent car accident, that the mother presents an unacceptable risk, even if allowed unsupervised contact, in driving the child. The nature to this risk is physical injury through car accident if the mother is affected by drugs whilst driving. Such a car accident could be catastrophic and the drugs identified in the mother’s system in respect of the recent accident that did occur can cause sleep which if driving could be fatal.
The Court finds the magnitude of this risk given the recent car accident in which the mother was affected by drugs to be high and as such an unacceptable risk.
The Court accepts the evidence of the single child expert that the mother’s addiction to amphetamine impairs her ability as a caregiver in being able to fully discharge her parental responsibilities for her child. The Court accepts the expert’s evidence in that regard, that this diminished ability or vigilance in relation to the welfare of the child at his current age would presents a risk in relation to unsupervised time at this age. There is contested evidence about whether the mother is also addicted to illicit drugs, given a positive test obtained in October 2022. The single expert pointed out the increased adverse impact on the applicant from a cocktail of drugs on her capacity to discharge her responsibilities as a caregiver. The Court cannot at this stage make a finding that the mother is addicted to illicit drugs but the taking of the cocktail of drugs, the subject of the positive test in October 2022, is obviously recent, concerning and identifies an unacceptable risk if there was to be unsupervised contacts.
The Court appreciates the escalated anxiety and stress upon the mother at times approaching the custody hearings concerning her child and that this does provide a partial explanation for her relapse into drugs. The explanation for the combined drugs of involuntary consumption was not satisfactory. The Court finds that this significant effect of other drugs would be apparent to the child from the mother’s inability to communicate coherently, inability to respond to the child’s needs and likely somnolence. Like the observation by the child of the blackened eye of the mother caused the child distress, so too the impairment of the mother from drugs may cause the child to be fearful and this would fall within the definition of family violence albeit self-perpetrated through drug addiction by the mother. The impairment of the mother could also fall within the meaning of abuse if assessed as causing serious psychological harm or serious neglect.
The nature of the risk from exposure of the child to drug impairment by the mother that this gives rise to be first one of neglect and secondly emotional harm from seeing his mother in an impaired state.
The Court had hoped, as a result of the hearing in October, that the applicant not only would have adhered to the requests for the obtaining of a number of tests in respect of urine, hair and CDT for the next hearing occasion. There was almost five months for the applicant to do so and it was only the day before the hearing that a single urine analysis test was provided, that appeared full negative. The failure of the applicant mother to undertake appropriate testing both as requested by the ICL and in the interim, in terms of the adjourned hearing when the applicant was informed that she would have the opportunity to adduce further evidence in respect of that testing, causes the Court not to accept that the applicant has now ceased using illicit drugs and has not got into a managed state her drug addictions.
The Court accepts the evidence of the single expert that the applicant’s ability to manage her addiction problem is first advanced by her acknowledgement of the problem and that it was a significant positive that the mother was able to express and acknowledge a relapse in relation to drug use. The single expert identified the need for support and professional treatment to assist the applicant move into a state in which she could abstain from taking illegal substances and/or consuming alcohol. The Court accepts the single expert’s identification of the polysubstance abuse by the applicant tragically being one of self-medication. The consequences of the long-term alcohol use by the applicant mother have given rise to a medical condition, resulting in the applicant, even though of a relatively young age, requiring surgery and significant pain.
The compounding adverse impact of the self-medication by the applicant of illicit drugs, alcohol and what was described as medicinal cannabis, is one in which the Court accepts the applicant’s recollection or memory has been impaired. The Court prefers the contemporaneous notes in relation to the accuracy of events and accounts given by the applicant to the notetakers in relation to all conflicts between the applicant’s assertion and the contemporaneous notes, the subject of the chronology which the Court finds to be correct.
The single expert gave evidence as to the possibility of shorter timeframes of a matter of months with the appropriate support for the applicant to be able to move into a state of being drug and alcohol free. The tragedy for the applicant is that her parents and brother are in the USA and other than through community services and professional services, the reality is the mother has no support structure around her currently in Australia. The absence of that support structure, the Court finds, is likely to make the speed with which the applicant is able to address her addiction issues and become drug and alcohol free as being more difficult and uncertain. The Court has taken into account that it appears that the applicant has been engaged in polysubstance abuse for effectively the past five years, during which she has not had the benefit of other than limited supervised contact with her son.
The Court does accept that the limited supervised contact has not assisted the mother in addressing her drug issues. Those orders are not, however, the cause of the self-medication. The applicant mother has a very sad history of sexual assault when she was the age of 15 and the Court does accept that she turned to drugs to help self-medicate and the Court finds that that progression of drugs and alcohol has been compoundingly destructive of the applicant mother’s ability to become drug free. The Court also accepts that the applicant mother’s related physical ailments, such as a medical condition, have had a compounding effect on the mother’s abuse of illicit drugs and alcohol, in part to try and address the pain from the medical condition. This is nothing short of a tragic cycle of self-destruction.
The very bright positive for the applicant mother is her persistence in these proceedings in seeking to advance more significant and meaningful time with her child. The participation by the mother in the processes of this court and in the testing that she has undertaken reflect a strong character and determination to try and maintain her connection with her child. It is greatly to the credit of the applicant mother that she has been so ardent in her endeavours, notwithstanding the polysubstance addictions, to try and pursue and enhance her significant time with her son. The Court is in no doubt that the applicant mother, just like the respondent father, loves dearly the child. In one sense, increased significant time with the child is the reward circuitry benefit that may assist the mother in addressing her drug dependence.
The court expert opined on the difficulty of stepping out of the reward and benefit that continues from drug or alcohol dependency.
The Court also accepts that the mother’s means are parlous and that this has had a significant impact on her ability to undertake and remain in treatment facilities and to get the necessary supporting treatment. Again, the parlous means of the mother are a compounding factor in her cycle of drug abuse and the milieu in which she is engaging. The applicant mother needs to extract herself from that milieu. The Court notes that there were police reports suggesting that the applicant mother was not just a drug user, but also may have been supplying illegal drugs.
The further cycle of destruction from illegal drug supply would be a massive tragedy and would, ultimately, probably lead to the need to revisit the parenting orders that the Court is making now on a final occasion. The Court cannot emphasise more strongly the need for the applicant mother to extract herself from the company of other addicts or dealers, or those engaging in illegal activities as that vortex will only add to self-destruction and loss of what appears to be the most important thing in her world, which is the reconnection and maintenance of a meaningful relationship with her son.
The Court has taken into account the submissions of counsel for the applicant and that there has been a period of time in which because of the statutory obligations of a parent in respect of parenting responsibility the child has not been the subject of a sole parenting responsibility order. Be that as it may, the Court is firmly of the view that there is a greater need to protect the child by making a sole parenting order in the present case.
The Court is of the view that the order and routine that the respondent father has created around the child has obviously been very constructive to his positive and significant development and advancing and reaching his full potential, which the respondent father has been constructively advancing. The Court is also of the view that, given the past ADVO, there has been a level of family violence which the Court has indicated rebuts the presumption of equal parental responsibility.
Further, the Court finds that there has been such a serious breakdown of communication between the applicant and the respondent that they would not be able to effectively co-parent. The Court does, however, propose to make orders to facilitate communications via a parenting app that will diminish the risk of parental conflict in communications concerning the child. At this stage, the Court finds there is an unacceptable risk in moving to unsupervised time because of the diminished vigilance that the applicant mother currently has due to what the Court finds to be her current drug addiction to illicit drugs.
The Court is of the view that any lesser period of 12 months supervised contact and then minimum 12 months of community supervised contact and achieving age 12 is not sufficient to ensure that the applicant with the tragic history that she has is able to move into a space of being drug dependent free and alcohol dependent free. The Court fully recognises the important rights of the child for a meaningful relationship with his mother and is firmly of the view, given the enjoyment expressed by the child, that furthering and advancing that meaningful and significant relationship is in the best interests of the child. How that significant and meaningful time is developed, however, must take into account the greater weight which must be given to protecting the child pursuant to s 60CC(2A)
The Court was not persuaded by the family report writer that the benefits of no contact identified by the family report writer outweigh the potential emotional and psychological harm to the child in bringing an end to a meaningful relationship that the child is clearly enjoying. The Court considers that the family report writer did not provide a compelling explanation for why the no-contact harms to which the child would be exposed outweighed the benefit of advancing the child’s rights under s60B and progressing albeit very carefully protected by the proposed orders a meaningful and significant relationship between the mother and the child.
The Court is also of the view that the family report writer did not have the benefit of the supportive evidence given by the father in that regard or the more up to date views of the child nor did the family report writer have the evidence from the father about the strengths and determination of the child.
The Court now returns to the additional considerations and notes under section 60CC(3)(a) the child has expressed views of enjoyment of the relationship with his mother. The Court is of the view that the child’s age is such, taken together with the evidence of the father about the child’s maturity and intellectual ability, support the Court giving weight to those views in relation to making a relationship. The views cannot be treated as determinative but are part of the additional considerations that the court must weigh in determining what parenting orders should be made.
The court accepts in relation to section 60CC(3)(b) that the child has, in fact, a loving relationship with both parents and well as with his paternal grandparents. The Court finds that the current nature of the relationship between the mother and the father as a result of the supervised visits is that those visits are perceived more as a play time, as described by the father, and that the mother is not at this stage engaged in the ordinary care giving that would occur between a parent and a child. The Court accepts that ongoing supervision will impair the advancement of that relationship, albeit as the child matures the Court accepts that the child is more likely to get further emotional and psychological support from even the supervised contact with the mother under the orders made.
The court accepts the family report writer’s opinion that contact with the mother if drug affected be detrimental to the child. The Court accepts that the child was distressed at seeing the mother having a black eye. The court accepts the family report writer’s recommendation that the child must be told the truth in relation to the applicant mother’s impairments. The Court proposes to add a note that will be included in the explanation given to the child about the Family Court orders.
In relation to section 66CC(3)(c) the court does understand that the mother was the primary caregiver for the first two years of the child’s life. When the relationship with the respondent came to an end effectively the mother has then been the subject of restriction arising from the supervision orders because of her inability to comply with drug testing requirements. The Court accepts that those failed opportunities or late attendances or attendance terminated due to the mother’s impairment are a reflection of the poly substance abuse and not a reflection of the lack of determination of the mother to maintain and advance a meaningful relationship with her child.
The Court finds that the child is enjoying the time currently being spent, albeit it supervised, with the mother and, to a lesser degree, enjoying what has been the supervised communication. The court finds that the child is happy and enjoying living with the father and also spending time with his grandparents.
In relation to section 60CC(3)(ca) the applicant mother did fulfil her primary caregiving role for the first two years and her descent into poly substance abuse gave rise to the parenting orders that have diminished the applicant’s ability to discharge parental obligation in relation to maintaining the child. The court does, however, find that the applicant mother has demonstrated significant determination to try and re-establish and resume parenting obligations to maintain the child. The court finds that the respondent father has been effectively and diligently complying with his parental obligations to maintain the child and that the child is currently prospering under the respondent father’s parental care.
In relation to section 60CC(3)(d), the court accepts that the supervised contact and long term supervised contact are not an ideal outcome in respect of parenting orders. The Court accepts that as the child matures the child will become more acutely aware of the impairments that the mother has as a result of her poly substance abuse. The court does not, however, accept that the discovery of these impairments will have a damaging psychological and emotional impact on the child, as suggested by the family report writer. In that regard the court finds the child in the present case in light of the father’s evidence has a sufficient resilience and intelligence that ascertaining the impairments that his mother is facing and greater insight in relation to those impairments will not diminish his emotional and psychological wellbeing.
The Court accepts that changes to the contact between the applicant and the child as suggested by the family report writer should be one step at a time. The court also accepts the evidence of the family report writer as to the benefit of routine in relation to communications. The court finds that the child has also benefited from the paternal grandparent input to his wellbeing and that more recently he has been staying one night during the school week with his grandparents to the benefit of the child.
In relation to section 60CC(3)(e) the court is of the view that expense of supervised communication must be borne by the mother and the practical difficulty of compliance is a matter that the mother has because of her substance abuse. Given the commitment that the applicant has displayed to have a meaningful relationship these are not difficulties that cannot be overcome by the applicant. The order also provide for electronic communication to help maintain the relationship with the child and to facilitate the compliance checks.
In relation to section 60CC(3)(f) the Court finds that the father has full capacity to meet the child’s needs, including emotional and intellectual needs. The court also finds that the paternal grandparents have similar capacity in relation to the child. The court is of the view that whilst addicted to drugs and engaging in poly substance abuse, the mother’s capacity to meet the needs of the child, including emotionally and intellectual needs, are impaired. The nature of the impairment is the likely diminished vigilance whilst the child is in her care.
In relation to section 60CC(3)(g) the court has taken into account that the child, given the father’s evidence, appears to be mature for his age of almost six and in a stable and good routine with the respondent father and the paternal grandparents. The court adds to section 60CC(3)(e) that the applicant mother is currently living at a distance that makes increasing supervised time practical in the Suburb AM vicinity at public places.
The court finds that section 60CC(3)(h) has no application in this case. The court finds in relation to 60CC(3)(i) that the attitude of the child is one supporting the continuous and development of a meaningful relationship with the applicant and obviously enjoying living with his father, who is effectively discharging the responsibilities of parenthood. The court accepts that the applicant has demonstrated in the two years where she was the primary carer the ability to care for the child as a parent. However, the court finds this was before what is, in fact a relapse into poly substance abuse by the applicant mother. The court is of the view that the applicant mother has demonstrated a genuine and sincere endeavour to advance her responsibilities of parenthood, but that these have been impaired by her addiction.
In relation to 60CC(3)(j) the court finds that there has been a level of family violence by the applicant mother as asserted by the respondent. The repetitive telephone calls which the court finds were made recently by the applicant are a form of harassment that obviously arose because of the mother’s desperation in trying to reconnect with her child. The court does accept that the respondent father was sufficiently disturbed to stay elsewhere following receipt of those repetitive calls. The court does not accept that the respondent father is fearful of the applicant mother but does accept that he was fearful of the possibility of others being involved. The court also notes that the family violence order that was sought by the mother was dismissed against the father.
In relation to section 60CC(3)(k), there is no existing family violence order in place and the court accepts the respondent father’s fear that the applicant mother may abduct the child. The court finds, given the watch list order which the court proposes to continue and non-removal order from Australia, that there is no real unacceptable risk of the child being abducted by the mother.
In relation to section 60CC(3)(l), the court is of the view that the proposed parenting orders are least likely to lead to the institution of further proceedings in relation to the child. The court has weighed in that regard the protraction of the period of supervised access under the stages identified in the orders. The court does, however, accept the evidence of the family report writer that a punitive or oppressive regime is not appropriate as that would, on balance, be more likely to adversely impact on the emotional and psychological wellbeing of the child.
In relation to section 60CC(3)(m), the Court is of the view that the candid acknowledgement by the respondent of seeking the maximum protection possible in the supervised access orders is understandable given the history of drug abuse by the applicant.
Taking into account all those considerations and giving greater weight to the consideration under s60CC(2)(b) the court finds that it is in the best interests of the child to make the parenting orders identified.
The Court pronounced orders on 14 April 2023 and reserved its written reasons. The Court took into account the principles in s 43, s 60B, s69ZN, and was satisfied that it was in the best interests of the child to pronounce orders and reserve written reasons.
I certify that the preceding one hundred and eighty-six (186) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 13 July 2023
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