Verdin and Verdin

FAMILY COURT OF AUSTRALIA

VERDIN & VERDIN

[2020] FamCA 690

FAMILY LAW – PARENTING – Reintroduction of time – Where orders were made in 2017 for the father to gradually commence contact with the children – Where that contact did not occur – Where the children have not spent time with the father since 2011 – Where there is no up-to-date information regarding the father’s mental health – Where the children’s treating practitioners do not support the recommencement of time – Where contact with the father would not be in the children’s best interests – Order that the father be permitted to communicate with the children in writing.

Family Law Act 1975 (Cth) s 60CC(2).

APPLICANT:

Mr Verdin

RESPONDENT:

Ms Verdin

INDEPENDENT CHILDREN’S LAWYER:

Phillip A Wilkins & Associates

FILE NUMBER:

SYC

6692

2013

DATE DELIVERED:

21 August 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

8,9 & 10 May 2017 & 12 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jackson

SOLICITOR FOR THE APPLICANT:

Finnane Family Law

COUNSEL FOR THE RESPONDENT:

Mr Gilbert – 12 August 2020

Mr Schroder – 8,9 & 10 May 2017

SOLICITOR FOR THE RESPONDENT:

Mark Brown & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Fermanis – 12 August 2020

Mr Berry – 8,9 & 10 May 2017

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Phillip A Wilkins & Associates

Orders

IT IS ORDERED

That the interim orders made on 10 May 2017 in relation to the parenting of the children W born … 2007 and Z born … 2010 be discharged.
That the father be permitted to communicate with the children in writing, through email, or by posting letters, cards and gifts to them at Christmas, birthdays and at any other time.
That to facilitate the father’s communication with the children:
(a)the mother is to keep the father informed of her current postal and residential address at all times;
(b)the father is to keep the mother informed of his current postal and residential address at all times;
(c)the mother is to ensure that any letters, cards or presents received from the father are passed on to the children and to use her best endeavours to ensure that the children read the letters and cards and open the presents; and
(d)the mother is to facilitate the children’s responding to the father’s communications if they wish to do so.
That the mother authorise and direct the principal of any school attended by either of the children to send to the father copies of any material usually forwarded to parents including, but not limited to, school reports, newsletters, circulars and order forms for school photographs.
That the mother cause the father to be notified immediately if either of the children suffers any serious injury or illness.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

IT IS NOTED

That on 10 May 2017 final orders were made which provided that the children live with the mother and that she have sole parenting responsibility for them.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Verdin & Verdin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6692 of 2013

Mr Verdin

Applicant

And

Ms Verdin

Respondent

REASONS FOR JUDGMENT

These proceedings relate to the parenting of two children, W who was born in 2007 and is now 13 years old and Z who was born in 2010 and is now ten years old.
During their marriage, the parents lived in the same house as the mother’s parents and her sister, Ms B.
The parents separated in December 2010. The children live with their mother, Ms Verdin and have not spent time with their father, Mr Verdin, since May 2011. At the time of separation, W was three years old and Z was six months old. They have had no relationship with their father since separation.
The father filed an application for parenting orders in November 2013, some three years after separation.
The father’s application for orders that he have equal shared parental responsibility for the children and spend time with them, initially for one hour in a contact centre but gradually increasing to overnight time at weekends, was opposed by the mother.
The positions of the parents were summarised in the Child Dispute Memorandum:
[The mother] alleged that [the father] was verbally abusive, intimidating, and highly volatile during their relationship. She described being cautious regarding his mood, and often fearful, constantly trying to protect herself and the children. [The mother] alleged that [the father] once yelled at [Z] (aged under six months) “shut the fuck up, you’re always crying” and that he once hit W. She alleged that, post separation, he stalked her and threatened her life. She said that he threatened to take the children from her in order to ruin her life.
[The father] acknowledges problems with his mental health and drug and alcohol abuse, but it seems that he denies the extent of [the mother’s] allegations of violence.

REPORT OF Dr C

Dr C recorded the history given by the mother of the father using drugs and alcohol from the beginning of their relationship. Dr C reported that the mother said:
‘There were bongs and marijuana and Visine drops for his eyes.’ The alcohol problem was more towards the end of their relationship, in the last few years it was very excessive, he would drink sometimes six long necks at night and sometimes spirits as well, about half a bottle every day; and he would drink on the job too and at home in the shed. [The mother] actually preferred it when he used marijuana ‘because at least he was calm but then with alcohol he would become very angry, more unpredictable and risk taking’. One day [the father] wanted to take W to the beach and [the mother] said no, ‘because you’ve been working’ but he took W with him in the vehicle, unrestrained ‘and I was very distressed; that’s how low he was; you couldn’t stop him when he was drunk’.
The mother told Dr C:
[The father] had very little relationship with the children. He would lie in bed on the weekend and [the mother] would play with the children. On one occasion when [Z] [sic] was only four months old and when so far he would have nothing to do with her, he called out from the bedroom: ‘Bring me my daughter’. [The mother] took her in but she was a colicky baby and within a few minutes she was screaming; [the father] told her to ‘shut up’ but she screamed more; [the mother] ‘raced in’ and asked why he was yelling; he said: ‘She never shuts the fuck up’. That kind of behaviour was not unusual.
Dr C reported that the father told her:
When they broke up, [he] stopped drinking; he stopped completely for about four and a half years and then began social drinking. He did not resume marijuana. He has been drug and alcohol tested for several years now and he is clean. He never used other drugs in the time he knew [the mother].
The father told Dr C that, from about 2002, the mother wanted him to seek treatment and that over the ten years they were together he saw about four different psychologists and a psychiatrist who prescribed antidepressants. He said “I was still getting very dark patches”. The father started seeing Dr D, a psychologist, after separation.
The father denied any physical violence. He said “I might have punched a wall but I never hit her”. They argued about his use of alcohol.
Dr C spoke with the father’s psychologist, Dr D on 27 July 2016. She reported:
Dr [D] has been seeing [the father] since 2010. Initially he was in a bad way, mostly related to the breakdown of the relationship. In 2012 Mr [sic] Dr [D] went into private practice and he has continued seeing [the father] regularly since then.
[R Medical Centre] confirmed a diagnosis of bipolar disorder and [the father] has been on a mood stabiliser since and that has helped him quite a lot.
The most important issue currently is the ongoing distress of not seeing his children and his anxiety about going through the court process. In other respects [the father] is well at present; he is working well; he is intelligent and a good learner.
Dr [D] has no concerns regarding child safety; he would be confident of [the father’s] capacity to participate appropriately in contact with his children. He will be continuing in regular treatment and is quite committed to this.
When the children saw Dr C in March 2016 she formed the view that they were too young to understand the situation they were in or to express any wishes in a meaningful way. Dr C stated “neither are they aware of options as their mother has not discussed any with them”.
In relation to the nature of the children’s relationship with their parents Dr C stated:
The children are strongly attached to their mother and to the maternal aunt. It is likely that they have strong attachments also to the maternal grandparents since they have lived with them continuously throughout their lives.
The children have no relationship with their father. [Z] [sic] would not have any memory of him and would not have established a bond of attachment to him. Possibly [W] has some memory and some minimal bond of attachment might have endured, but it would have diminished greatly over time.
In relation to the likely change in the children’s circumstances Dr C has stated:
If the Court were to determine that some contact with the father is permissible, then provided there [sic] were introduced in an appropriately slow and graded manner, the children could accommodate this, but it would require some level of willingness on the part of the mother to support such an arrangement.
As to the capacity of the parents to provide for the children’s needs Dr C stated:
With one exception, in regard to a relationship with their father, the mother is well able to provide for all of the needs of the children and is very strongly supported by her family. It might be said that her continued opposition to the children having any relationship at [sic] with their father does not meet their psychological needs optimally.
It is evident that in the past the father’s capacity to provide appropriately for the children has been very limited and he would accept this. There are some continuing limitations in his capacity, but basically he seems to have succeeded in rehabilitating himself, he is pursuing a stable lifestyle at present and it seems likely that he would be able to relate appropriately to the children under conditions of limited contact.
Dr C stated:
The mother shows little willingness to facilitate a relationship between the children and their father or with his family. It is not clear whether she would be [sic] alter her position if the court were to make a determination supporting the father’s application.
In relation to the benefit to the children of having a meaningful relationship with their parents Dr C stated:
In general, children benefit from having a meaningful relationship with both parents. In this case the opportunity to form a meaningful relationship with their father was limited earlier because of [the father’s] problems with mental ill health and substance abuse. Undoubtedly his involvement with the children at that stage posed a risk of harm … and it was understandable that the mother sought to limit his contact with them. It appears that those problems are presently under control, all drug and alcohol testing has been negative, [the father’s] mental state is stable, he continues in treatment with Dr [D] and he is committed to remaining in ongoing treatment. It seems likely that he would now be able to participate in a meaningful relationship with the children, although this would perhaps be a limited one and would have to be introduced carefully.
Dr C stated that the benefit to the children of having a relationship with their father “…is contingent on there being no ongoing issues of family violence, substance abuse and mental illness and a father who is sensitive to and supportive of the children’s needs”.
In relation to the father’s mental health Dr C stated:
The father has had significant psychiatric issues that have affected his parenting capacity in the past, but at present he is sufficiently stable that he could relate in an appropriate way with the children on a limited contact basis. He has ongoing personality problems, quite separate from issues of mood disorder, in that he is markedly externalising, he feels bitter and victimised and he has difficulty accepting responsibility for his difficulties; there are also some past issues of antisocial behaviour, as suggested by the police history. While these are negative characteristics in terms of parenting capacity, [the father] now seems capable of a better understanding of the children’s needs and is more able now to give priority to their safety and he has support from his family; all of these factors are more encouraging indicators of present capacity…
Dr C stated “If visits were to be instituted and difficulties were to arise from those visits, there may be a need for further assessment of either party or the children”.
Ultimately Dr C recommended that there be contact between the children and their father. She stated:
At present there do not appear to be significant risks to the children in having some relationship with their father and as noted above, in general children benefit from the opportunity to form a relationship with their father. If the Court were to determine such, then contact would need to be introduced slowly since the children are starting from a base of no relationship with their father so he will be a stranger to them and the mother will be highly anxious and possibly not supportive. I would recommend contact for one hour at a contact centre on a monthly basis for three months and then, if there are no difficulties, progressing thereafter to two hours a month and perhaps after another three months the paternal grandfather or the aunt might be included, separately, in order to introduce the children to them. There seems little reason not to progress ultimately to visits with the paternal family.
If visits of two hours proceeded satisfactorily for a period of 12 months, I would recommend that contact could proceed without supervision; initially this might be for a period of four hours at the home of the grandfather and with the paternal aunt present as well. If that proceeded satisfactorily for a period of a further 12 months I would suggest a program of further gradually increasing contact. By the time the children are aged eleven if there have been no further mental health issues with the father, no substance abuse problems and no significant difficulties with the contact arrangement, perhaps this might progress to weekend contact. The age of eleven is nominated here as that is generally the age at which children are capable of self protective behaviours…
If the Court were to determine that there is a risk of harm and that regular contact should not be instituted I would still favour some identity contact since it is important for children to have some knowledge of a non contact parent.
(As per the original)

THE HEARING

The proceedings were listed for final hearing on 8 May 2017 before me for four days. The father was represented by a solicitor and counsel.
It was the father’s position at the hearing that, although he had been diagnosed with anxiety, depression and bi-polar disorder and had been admitted to hospital in 2010 with suicidal concerns, he was obtaining treatment, taking medication and was in a stable mental state.
The Court was assisted by an Independent Children’s Lawyer (“ICL”) and by a report from a single expert psychiatrist, Dr C. Dr C was not required for cross-examination.
On the third day of the hearing, after all the evidence had been heard and all cross-examination completed, the matter was settled. Final orders were made giving sole parental responsibility to the mother and providing that the children live with her.
In relation to the children’s contact with the father, interim orders were made in the following terms:
IT IS ORDERED BY CONSENT
1.THAT all previous parenting orders in relation to the children W born in 2007 and Z born in 2010 the child of the parties be discharged.
2.THAT the said children live with the mother.
3.THAT the mother have sole parental responsibility for the said children.
4.THAT PENDING FURTHER ORDER the said children spend time with the father as follows:
a.   for not less than 2 hours each month to be supervised by P Contact Services and in the presence Ms B for a period of 6 months from the first period of supervised time.
b.   for not less than 2 hours each fortnight to be supervised by P Contact Services for a further period of 6 months and the presence of Ms B for 2 of those 6 months.
c.   on the expiration of 12 months thereafter then for not less than 4 hours per fortnight to be supervised by F Services.
5.THAT the parties shall share the cost of P Contact Services equally.
5ATHAT the parties shall share the cost of F Services for the period of 3 hours equally and the father shall pay the cost for the fourth hour.
6.THAT at the expiration of the times referred to in order 4 the matter be relisted before her Honour Justice Rees to assess the progress of the arrangements put in place pursuant to order 4 hereof.
7.THAT each party attend upon the P Contact Services and sign all documents and do all things necessary for the purpose of intake within 7 days of these orders.
8.THAT the mother:
a.   sign all documents and do all things necessary to:
i.     authorise the school at which the children may from time to time attend:
(1)   to furnish the father with copies of all school reports, notices and advices concerning:
(a)the said children and each of them; and
(b)any activity involving the said children and each of them;
and
(2)   to make available to the father copies of any school photographs of the said children at his expense.
b.   notify the father immediately of:
i.     any major illness suffered by the said children;
ii.   any hospitalisation of the said children;
and
c.   make available to the father copies of any medical report or reports that may be sent to the mother in connection with such illness or hospitalisation;
and
d.   Authorise:
i.any hospital in which the said children or either of them may be admitted; and
ii.   any medical practitioner under whose care the said children or either of them may be
to give such information to the father as he may request.
9.   THAT within 48 hours of being requested by the Independent Lawyer,
a.   the father shall undertake a chain of custody urinalysis test in accordance with the Australian standard and provide a copy of the report to the Independent Children’s Lawyer and the other party within 48 hours of receipt thereof. Such a request shall not be made more than once per calendar month.
b.   the father shall arrange to undertake a hair follicle test for any illicit substance and provide a copy of the same to the Independent Children’s Lawyer and the other party within 7 days of receipt.
c.   the father shall undertake a Carbohydrate Deficiency Test and provide a copy thereof to the Independent Children’s Lawyer and the other party within 7 days of receipt.
10. THAT in the event any of the tests referred to in order 9 are returned positive then order 4 shall be suspended.
11. THAT the father be restrained from consuming any alcohol for 24 hours prior or during any time the children are spending time with him.
12. NOTATIONS:
a.   THAT the father’s time at the P Contact Services shall be exercised by the father without the presence of any of his relatives participating in the father’s time.
b.   THAT the parents note that the time at the P Contact Services is available after 12.00 noon on a Sunday and this is the time that will be requested.
c.   THAT in the event the father’s time occurs on Mother’s day, Christmas day, Easter Sunday or the mother’s birthday then an alternate Sunday will be sought for the father’s time.
d.   THAT the parents will co-operate in relation to swapping a Sunday should the father request it so that he spends time with the children on Father’s day.
e.   THAT the parents will use their best endeavours to ensure that the father’s time with the children does not conflict with extra-curricular activities for the children’s eisteddfods or dancing and W’s band commitments. In that regard the mother shall provide the father with one (1) month’s notice of any required change utilising the email address provided in accordance with order 13.
f.   THAT the father shall be free to arrange attendance of his relatives for his time when that commenced with F Services.
g.   THAT the father’s time with F Services is agreed to occur in S Area.
13.THAT the mother will set up an email address for communications, which will be through her sister, Ms B and her sister’s mobile telephone number will be used for emergencies.
14.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
IT IS ORDERED
15.That leave be granted to the independent children lawyer to relist the matter before the Honourable Justice Rees on a date after 10 May 2019.
(As per the original)

The matter was stood over, part-heard.
The interim orders made on 10 May 2017 have never been put into effect.
The father deposed that he completed the required documentation for the contact centre (as did the mother) and was placed on a waiting list.
In about November 2017, he was advised that the contact centre would not facilitate his time with the children if Ms B, their aunt, was to attend.
In December 2017 there was an exchange of correspondence between the respective lawyers. The mother offered to facilitate supervised time with F Services, a professional supervision agency, provided that the father paid the costs of the first year. Thereafter, she proposed, the costs would be shared. The mother attended the intake interview with F Services.
The father never responded to that offer.
The father did not cause the matter to be relisted and there was no further communication with the mother’s lawyers about the implementation of the orders.
Although there was evidence that, before the hearing in May 2017, the father had on at least one occasion, sent presents and cards to the children, and the mother had given them the presents and read the cards to them, it was conceded on behalf of the father that since the interim orders were made in May 2017, he has made no attempt to make contact with the children and has not sent presents or cards or acknowledged their birthdays or Christmas. He gave no adequate explanation for that failure on his part.
The matter was relisted by the ICL on 11 July 2019 and the Court was told that the provisions of Orders 4, 5, 5A and 6 had not been put into effect by the father and that there had been no contact between the children and the father since the conclusion of the evidence.
It was the mother’s position then that the father’s parenting application should be dismissed. She was unwilling to participate further in the proceedings and strongly opposed to any further involvement of the children in the preparation of a further report.
The children had already been involved in two full family reports, one by a Family Consultant in 2014 and the report of Dr C in 2016.
An order was made for a Child Dispute Conference to be conducted, in the first instance with the parents only, to report on:
·    the competing proposals of the parents;
·    the effect of further litigation on the children; and
·    the evidence which is required in the event that the matter proceeded to hearing.

CHILD DISPUTE CONFERENCE MEMORANDUM

The Family Consultant saw the parents on 13 August 2019 and issued a report dated 19 August 2019.
The Family Consultant reported:
The parents have different accounts of what happened after the 2017 orders were made. [The father] said that he was initially not notified of any problems and when he discovered that the contact centre would not allow the maternal aunt to be present, the only option available was a private agency but he could not afford the fees and he lost faith in his solicitor and the entire system. [The father] said that he had spent thousands of dollars and felt unable to return to Court. He said that this changed when he received some support and advice.
[The mother] seems to consider that [the father’s] lack of follow-up in order to implement the 2017 orders is indicative of his lack of persistent commitment to his relationships with the children. She considers that, if the children were re-introduced to him, [the father] would not be reliably available to them long term.
In relation to the mother, the Family Consultant reported:
[The mother] said that the children have always been and continue to be unaware of the Court matter involving their father’s proposal for them to spend time with him. Therefore, it seems that the ongoing litigation would have had no direct effect on them. Indirectly, the litigation has likely had a negative impact on the children via the financial and emotional toll on [the mother].
The impact of further litigation on the children would depend on various factors, as well as the outcome of that litigation. Given [the mother’s] beliefs and opinions, any further litigation is likely to be stressful and anxiety provoking for her, as well as occupying her time, emotional energy and finances. This would all have a negative impact on her capacity to be available to the children.
When asked about the children participating in an assessment for the Court, [the mother] said, “I would not bring them”. She claims that it would “rock them” and all progress that they have made with regard to managing their anxiety would “go by the wayside”. [The mother] is adamant that she is advocating for the children’s best interests and that, at this time, they would not cope with any introduction to their father or discussion with strangers about being introduced to their father. She indicated that she thinks it may be appropriate at some point in the future.
As to the future direction of the litigation, the Family Consultant stated:
[The mother] considers that the Court matter should be ended, with final orders for her to hold sole parental responsibility and the children to live with her and no orders regarding the children spending time with their father. [The father] indicated he would like to be able to settle the matter and pursue a therapeutic intervention to facilitate re-introduction, but that, if [the mother] does not consent to that, he feels that he would need to pursue a final hearing in the matter. [The father] indicated that he would not pursue time with the children if the children express a view that they do not want time with him, but he also used the term “alienation”, so it is unclear whether he would accept the children’s expressed views as being genuine.
It may be that [the father] is mentally well, free from drug and alcohol problems, generally stable in housing and employment, and capable of engaging in a meaningful relationship with the children. However, the concern is that he may not have the capacity to engage meaningfully and consistently with the children. Despite there being some problems beyond his control, the lack of implementation of the 2017 orders might indicate that [the father] is unable to commit to what is required. On the other hand, [the father] is participating in these proceedings and reports wanting to be involved in the children’s lives, for his own and the children’s benefit.
It may be that [the mother’s] proposals are in the best interests of the children, aimed at protecting them from stress and anxiety when they are already vulnerable. However, the concern is that [the mother] may be gate-keeping, and preventing the children from having a relationship with their father due to her own motivations. Her apparent unwillingness to have the children seen by an assessor or counsellor is of particular concern.
If the children’s treating mental health professionals are of the view that the children should not be involved in any assessment or be given the opportunity to be re-introduced to their father at this time, then the Court may need to rely on evidence provided by those professionals.
In addition, if the Court is of the view that [the father] has not demonstrated adequate commitment to re-establishing a relationship with the children and that [the mother’s] involvement in further litigation would be detrimental to the children, then the matter may need to be finalised with no orders for the children to spend time with their father.
Otherwise, the Court would likely require a Single Expert Report by a child and family psychiatrist, who would be able to assess the children independently and also be informed by the children’s treating psychiatrists’ assessments, interventions and opinions.
On 31 October 2019 orders were made for the father to file any further affidavit material by 13 December 2019 and the mother to file any further affidavit material by 24 January 2020. The father filed an affidavit sworn on 23 January 2020. The mother filed an affidavit sworn on 2 February 2020. The mother also relied on affidavits by Z’s treating psychiatrist, Dr G, sworn on 30 October 2019 and by W’s treating psychiatrist, Dr H sworn on 16 October 2019.
Significantly, the father filed no updating material in relation to his own mental health, either from Dr D or from any other treating doctor.
On 7 February 2020, when the matter was listed for directions, it was noted that the parties agreed that the matter would proceed to submissions on the basis that no further evidence would be filed by either party and neither party proposed any further cross-examination. The matter was listed for submissions on 12 August 2020.
At the commencement of submissions, counsel for the father tendered a Minute of Orders he sought. The general scheme of the orders sought by the father was:
·    Contact supervised by F Services on Sunday for two hours each fortnight for three months.
·    For a further period of three months, the time be increased to three hours.
·    Thereafter, for a further period of three months, the contact occur for three hours each fortnight at the father’s home, unsupervised.
·    After a further period of three months the time be extended to four hours each fortnight.
·    After a further period of three months the time be extended to seven hours each fortnight.
·    After a further period of three months the time be extended to eight and a half hours each fortnight.
·    The costs of the supervision are to be paid by the father.
·    From the time Z reaches her 11^th birthday in 2021 the time be extended to overnight time from 10am Saturday until 10am Sunday each fortnight.
·    After a further period of three months the weekend time be extended to end at 12 noon on Sunday.
·    After a further period of three months the weekend time be extended to end at 5pm on Sunday.
The father sought, in addition, a suite of orders relating to Christmas, birthdays, Mother’s Day, Father’s Day and Easter. He also sought an order permitting him to attend functions and events at the children’s schools which parents normally attend and extra-curricular activities and sporting events.
The mother opposed the orders sought by the father and consented to the orders sought by the ICL.
The position of the ICL was that there should be no order for contact between the children and the father but that he should be permitted to send them letters and cards and presents and be provided with any information usually made available by the children’s schools to parents and notified if they suffer a serious injury or serious ill health. I did not understand it to be the position of either the mother or the ICL that the father’s communication with the children should be confined to Christmas and birthdays.
Both the ICL and the mother acknowledged that the father’s communication with the children would include his contact details so that they could contact him directly if they wished.

THE FATHER’S DRUG AND ALCOHOL USE

It is necessary to give some consideration to the mother’s allegations as to the father’s marijuana use and excessive alcohol use and his denials.
Dr C summarised the records produced by T Health Centre of the father’s involvement between 2005 and 2009:
…issues of cannabis dependence, using every day; also family issues; if he wasn’t using pot it would be alcohol; cannabis causes mood changes; both wife and father angry he is not able to get over the problems; wife attended with him November 2005; they discussed impact of his drug use on family life…
After separation, the father was admitted to hospital in Suburb V. Dr C summarised the records of the admission:
[The father] presented suicidal; recent separation from wife of 11 years; background of alcohol and marijuana use; had been going to T Health Centre for psychotherapy. No previous psychiatric admissions but has had suicidal thoughts since age 13; on antidepressants intermittently for eight years, ceased two weeks ago.
[The father] had a voluntary admission of four days. He didn’t want counselling for his drug and alcohol use but did want to see a psychologist for further therapy regarding marital breakup and low mood…
In examination-in-chief the father gave the following evidence:
[Counsel]      The reference to you smoking marijuana?
[Father]         Yes.
[Counsel]      Paragraph 165 of your affidavit, you say that:
“Since the end of 2010, I stopped smoking pot”.
Is that accurate?
[Father] Not entirely. I did smoke through 2011. I stopped in early 2012.
[Counsel] Right. Okay. And have you smoked at all since 2012?
[Father]Very sporadically. I can’t remember. I think maybe two times, but very minimal amounts.
[Counsel] And, doing your best, can you recall the year that you last smoked any marijuana at all?
[Father]2014.
In cross-examination the father’s evidence changed.
[Counsel] So if you stopped buying it in early 2012, how were you getting it very spasmodically after that?
[Father]         Just socially with friends every now and again.
[Counsel]      In what social circumstances were they?
[Father]Visiting friends at their house. They would have had it there.
[Counsel]      Right. And it would have been offered to you; is that right?
[Father]         Yes.
[Counsel]      And you would have accepted the offer; is that right?
[Father]         Every now and again. Yes.
[Counsel]      Do you still associate with those friends?
[Father]No. No. I’ve – I’ve realised that I’m probably better off by myself.
[Counsel]       And you last used it, to your recollection, was in 2014?
[Father]         Yes.
[Counsel]      And was that in a social circumstance?
[Father]         Yes. Yes.
[Counsel]      With the same group of friends?
[Father]         Pretty much. Yes.
[Counsel] So when was it that you decided that you wouldn’t associate with this group of friends?
[Father]I meet a lot of people through construction. I meet a lot of people that abuse alcohol, drugs, all the rest of it. I just pretty much, by 2014, just had enough of being around people that done those things.
The father said, in answer to a question about his failure to disclose his continued use of marijuana:
My main issue was alcohol. I made it clear that I stopped drinking alcohol straight after the separation. The marijuana wasn’t the same level, I guess, or whatever, but the affidavit didn’t reflect those details.
In relation to his drinking, the father gave the following evidence in cross- examination:
[Counsel] And you seem to indicate that your use of alcohol in 2010 increased?
[Father] Yes.
[Counsel] And that you didn’t spend significant time with the children for the last six months of the marriage. Was that because of your drinking?
[Father]No. In hindsight – I was misdiagnosed with depression and post-traumatic stress disorder….I was – I guess I was self-medicating with alcohol, but obviously, in hindsight, being diagnosed with bipolar, it was – it was depression. It was irritability. It was anxiety. All these things were coming to the fore, and I hadn’t – I couldn’t control it. I just couldn’t control it. The antidepressants weren’t working. I guess alcohol became my friend.
[Counsel] But, your words, you said you self-medicated with alcohol. So my question to you was, when you say you did not spend significant time with the children for the last six months of the marriage, was that because you were self-medicating with alcohol?
[Father]Yes, sir.
[Counsel] Okay. And were you drinking at home?
[Father]Yes, sir.
[Counsel] That would have been in the presence of the children, correct?
[Father] No. I would withdraw to the shed in the backyard and sit there and drink by myself.
[Counsel] Right. And did you do that – were you working at that time?
[Father] The last six months, no. I was doing a real estate course.
[Counsel] Right. So – and the real estate course, was that 9 to 5?
[Father] Most days, yes, at the Suburb X TAFE.
[Counsel] At a TAFE college? Okay. So the self-medication with alcohol was in the shed out the back when you weren’t doing your course. Is that right?
[Father]Yes, that’s correct.
[Counsel] And who was looking after the children while you were self-medicating with alcohol out the back?
[Father]They were always with [the mother].
[Counsel] And out the back, that’s where you also smoked pot, is that right?
[Father]Yes.
[Counsel]And, of course, this would have been at a time after which Z was born in 2010. Correct?
[Father]Yes, sir.
[Counsel] So at a time when you had an opportunity to be bonding with your daughter, you were self-medicating with alcohol and smoking pot out the back. Is that right?
[Father]Yes, sir.
The father told counsel for the mother that he did not understand why the mother objected to his spending time with the children after separation. He said that he did not understand the mother’s concern about his use of alcohol and marijuana, saying:
I still spent time with my kids when I was under the influence and she never had a – or not that I knew of that she had an issue with it.
The father agreed that the mother said to him “You have to stop your drinking. You have to put more time in with your family.”
Dr D, in cross-examination, said that he had last seen the father a few weeks ago. In relation to the father’s use of marijuana and psychological state, Dr D gave the following evidence:
[Counsel]And did he refer to any difficulties that he had in relation to alcohol?
[Dr D] He mentioned abusing alcohol and cannabis.
[Counsel]And did he tell you the extent of his use of cannabis at the time of separation?
[Dr D]Yes. I formed the impression that he was a regular cannabis and, to a lesser extent, alcohol use. And once again, these – the use goes up and down with the level of stress.
[Counsel]And he discuss with you at the time that you first consulted with him in August of 2011 his level of use of cannabis, if any, at that time?
[Dr D]I don’t recall precise levels being discussed. I might have asked him.
[Counsel]Has he talked to you about his use of cannabis at all since the date of separation?
[Dr D]Yes, he uses cannabis occasionally.
[Counsel]Right. And is that your view up to the present time, that he uses cannabis occasionally?
[Dr D]Yes. It – it goes up and down according to the stress.
[Counsel]All right. Okay. Would it be fair to say that is perhaps one way he still deals with stress?
[Dr D]Yes, I think like a lot of cannabis or substance users it’s a form of self-medication.
[Counsel]And did he describe to you in a consultation session that appears to have occurred on 28 March 2016, and please refer to any notes if you’ve got them there if you need it, to any sort of manic episode that he might have had in February of 2016?
[Dr D]I don’t disclose – I don’t recall any florid and manic episode. I think his mood does fluctuate, and it would be hypomanic rather than manic. Manic is where somebody is not really in control. It’s a very intense state. I don’t think he’s experienced that level.
[Counsel]Did he describe anything to the effect of getting a bit racy and energetic, something that lasts for about two or three days, being full of energy, running around, very busy but working normally and feeling totally under control? Did he describe anything like that occurring?
[Dr D]Yes. That sounds plausible. Yes.
The mother’s lawyers asked the father to have a hair follicle test in 2016 but he refused. In cross-examination it was put to him that he refused because he knew the test would establish that he was using marijuana. Although the father rejected that proposition, he gave no other explanation and that is the obvious inference.
The mother’s sister, Ms B, lived in the same house as the parents during their co-habitation.
She deposed that the father had little to do with W and:
I observed particularly from the time of [W’s] birth that when [the father] came home from work he often immediately went to the garden shed where he stayed usually an hour or more. On numerous occasions I heard [the mother] call to [the father] from the back window saying “Come inside and say goodnight to the children” or words to that effect. I also recall on numerous occasions when [the father] came in from the back shed he said to [the mother] “I just want to talk to you – get rid of the child” or words to that effect.

Ms B deposed that she saw the father under the influence of marijuana and of alcohol on many occasions. She deposed that when the parents were both living in the house where she lived …“I saw [the father] on most days and from my observations he appeared to be drunk on most days”.
Ms B deposed that on a number of occasions she spoke to the father about his substance abuse and he either did not respond or responded aggressively saying such things as “Fuck off” and “I need it. It’s the only way I can get through the day”.
Ms B observed the father yelling at and swearing at the mother on numerous occasions and that she saw the father yelling at W and making him cry.
Ms B deposed to an incident about a week before the parents separated where she intervened when the father was yelling at the mother. She deposed:
…[the father] pushed me against the wall with his hands on my shoulders, and he then put a hand around my neck until Mum and [the mother] both yelled at him. He then stopped and left the house.
Ms B deposed that, on a number of occasions after the parents separated, she invited the father to come to the house and spend time with the children and he responded in such terms as “I’ve got to sort my shit out”.
Ms B supervised each of the father’s visits with the children after separation. She said that he did not engage with the children and on most occasions he cried for most of the visit while she entertained the children.
Ms B’s evidence was not shaken in cross-examination.
On the basis of all of the available evidence, I accept the evidence of the mother and Ms B about the father’s substance abuse and behaviour and its effect on the mother and on W.

EVENTS SINCE 10 MAY 2017.

In his affidavit sworn 23 January 2020 the father deposed to having had a number of lawyers acting for him in the proceedings and losing faith in his legal representation. He deposed that by December 2017: “…I lost all faith in the legal system and was completely devastated.” The father deposed that he was at that point upset and in debt and exhausted from the process of litigation. He deposed “I lost confidence in my own lawyers as a result of the unworkable Interim orders of 10 May 2017.”
The father deposed:
On or about early last year I had a breakdown of sorts at work which led to the recommendation that I see a counsellor provided by [N Organisation]. The only counselling available was through [Y Centre], a drug and alcohol rehabilitation service. I met with a counsellor named [Mr BB] for four or five sessions and then it became clear that my meltdown at work was related to stress associated with the unworkable family law Interim Orders, not seeing my children and not knowing how to proceed. It was recommended that I be referred back to my long-term psychologist Dr [D].
I have met with [Mr CC] twice since September 2019 and have appointments booked with him in the future. The deterioration in my state of mind ceased and I realised my symptoms were related to not being able to see my children and feeling like I didn’t have any way of rectifying the situation.
On the father’s own evidence, there are unresolved issue concerning his mental health of more recent times, in 2019.
Dr H, a child and adolescent psychiatrist, who is W’s treating psychiatrist provided a report to the Court dated 1 August 2019. Dr H had been treating W since May 2018. Dr H stated:
This is a letter to inform you that [W] is receiving treatment for Attention Deficit Hyperactivity Disorder (predominantly inattentive subtype) and Generalised Anxiety Disorder. This is on a background of [W] also previously suffering from separation anxiety disorder.
W’s transition to high school this year has proved difficult and has significantly exacerbated his anxiety. At this stage, I am concerned that any significant changes in [W’s] day-to-day life will exacerbate his mental health issues. I understand that [W’s] father is seeking supervised visits with W. It is my clinical opinion based on [W’s] current mental health symptoms and fragile mental state that supervised visits with his father not be considered at this stage until his anxiety is stabilised.
Dr H’s evidence was not challenged.
Dr G who is a clinical psychiatrist and Z’s treating doctor, since February 2017 provided a report dated 1 August 2019. Dr G stated:
In my opinion [Z] can be diagnosed with clinical anxiety, specifically Separation Anxiety Disorder and Generalized Anxiety Disorder. I note that [Z’s] issues occur in the context of alleged domestic violence form her father towards her mother, and reported significant difficulties in the family following separation of the parents.
[Z] has made significant progress in the last 2 and half years with treatment. She has been treated with anti-depressant medication, had regular psychiatric reviews by myself, and regular psychological treatment from [Ms K], psychologist. Both [Z] and her mother … have been very engaged in the treatment process with myself. Both [Z] and [the mother] report that there has been good progress in reduction of anxiety and better social, academic and general functioning at school.
It is my understanding from [the mother] that there has been no contact with the father for some time. My clinical opinion is that [Z] has shown significant signs of improvement, and is currently functioning relatively well. I would express concern about any significant change to [Z’s] circumstances, including custody arrangements, as that could potentially affect her mental well being negatively, and jeopardise the progress she has made.
Dr G’s evidence was not challenged.
In addition to the difficulties described by Dr G and Dr H, Dr J a paediatrician provided a report to the Court indicating that W, at the time of his report in April 2017 suffered from asthma, erosive oesophagitis and attention deficit disorder. Dr J reported that Z suffered from recurrent croup, gastro oesophagitis reflux, a history of recurrent otitis media and significant anxiety.
Dr J was not required for cross-examination.
In her affidavit sworn 2 February 2020 the mother deposed:
[W] commenced year 8 at [M School] at the start of 2020. [W’s] transition into High School in 2019 was quite difficult, in that he suffered significant anxiety and stress, particularly in the first 4 weeks of high school. During that time, [W] cried almost every day whilst going to school. I arranged for the head teacher, and the learning support team at the school to assist with his transition by taking him into the classroom at the commencement of the day, and supervising his change of classes during the day, and by ensuring that [W] was allowed to ring me on occasions when he was particularly distressed. By about week 5, W had begun to settle into school, but I observed that throughout that year with any significant change in his school routine, such as the attendance of a temporary teacher, or absence due to health reasons, he became very anxious. [W] missed 39 days of school during 2019, mainly due to the requirement for treatment of a recurring cyst on his left ear. Although [W] is a very good student, his school performance is negatively affected by disruption to his daily routine.
In relation to Z the mother deposed:
[Z] is in year 5 at [L School]. She achieved exceptionally good academic results in 2019, and because of her success in 2019, will participate in a limited special academic class in 2020. [Z] still suffers from anxiety, for which she is prescribed and takes Zoloft 75mg daily. [Z] has difficulty falling asleep at night, and takes Circadian 2mg every night to assist her to get to sleep… [Z’s] anxiety is exacerbated by anticipation of change to her routine.
The mother deposed:
Prior to this matter being set down for hearing in May 2017, I was extremely concerned about the children being reintroduced to [the father], and having time with him. I felt pressured to reach the agreement that was reached between [the father] and myself, and enter into orders which were made by this court on 10.05.2017.
Despite ongoing health issues, both children are now very well settled in their school and home routine. A change to their arrangements by being forced to spend time, or communicate with [the father] will, I believe, have a devastating effect upon them.
I do not know what I will do if a further order is made that the children are to spend time with their father. I feel that the children need to be protected from their father, and my view about that is even more determined in the light of the admissions made by [the father] in his affidavit about his ongoing mental health issues, and new living arrangements with his mother, who has significant mental health issues. I simply do not think I could cope if an order were made for [the father] to see the children.

CONSIDERATION

Counsel for the father relied upon the provisions of s60CC(2) of the Family Law Act 1975 (Cth) and the benefit to the children of having a meaningful relationship with their father.
However, Dr C stated that the benefit for the children:
…is contingent on there being no ongoing issues of family violence, substance abuse and mental illness and a father who is sensitive to and supportive of the children’s needs.
I accept that there are no ongoing issues of family violence but there is no evidence that could satisfy the Court that there are no issues of substance abuse or mental illness and, as will be explained, the evidence does not establish that the father is either sensitive to or supportive of the children’s needs.
The children’s views have not been canvassed. They are of an age where those views would be relevant, especially in the case of W, but they are not aware of the present proceedings or of the father’s application to spend time with them.
The children have no relationship with their father. That is, at least in part, because he has chosen since May 2017, to make no attempt to contact them.
Their mother has been their primary carer for the whole of their lives. I accept the evidence of Dr C that they are strongly attached to her and to their aunt, Ms B with whom they share their residence.
The mother and the ICL are strongly critical of the failure of the father to communicate with the children and to put into effect the agreed regime of gradual reintroduction of him to the children. That criticism is justified.
The evidence of Dr G and Dr H about the potential negative effect on the children of any change in their circumstances has not been challenged and must be given proper weight.
These children have each faced both physical and mental challenges.
If the very serious step towards reintroducing their father to them, after he has been absent from any meaningful relationship with them for more than ten years, is to be contemplated, then it would be necessary for there to be a clearly demonstrated probability that the reintroduction would be successful and beneficial.
Put simply, the benefit to the children of the reintroduction would have to be such that the risks enunciated by Dr G and Dr H were outweighed by the benefits.
The father’s explanation of the circumstances in which he did not pursue the time with the children which was available to him from 10 May 2017 might have some persuasive value in relation to the events up to December 2017. However, his complete failure to respond to the mother’s offer of time with F Services because, he said, he could not afford to pay, gives rise to a real concern that the father will not pursue his relationship with the children if there is even the slightest obstacle.
More significant, however, is his complete failure to communicate with the children in any way in the last three years.
The father last made any contact with the children in 2015. In cross-examination, the mother agreed that in 2015 the father sent presents to the children on two occasions. It was not put to her that anything was sent after 2015 and I accept that nothing was sent.
If the father’s case is to be accepted, and his mental health and substance abuse issues are under control, what explanation is there for his failure to make some contact with his children since 2015? Since May 2017, three Christmases and three birthdays have gone by without any acknowledgement from their father.
For the past three years, the father has passed up his opportunity to establish, however tenuously, some relationship with the children – to send them cards or emails, to ask how they are going at school and congratulate W on his pleasing high school reports, ask what their hobbies and interests are and to invite them to respond.
His failure to take such a basic step towards reintroducing him to his children casts serious doubt over his commitment to them, on any terms other than those he proposes.
That failure also gives cause to question the father’s parenting capacity.
He does not want the children’s aunt, Ms B, to be involved in their reintroduction and, in his affidavit, he deposed that when he entered into the consent orders in May 2017 he was reluctant to have any involvement by Ms B. That involvement was at the instigation of the Court and the ICL, as is apparent from the transcript. It was not the mother’s idea. That the children’s reintroduction to him, might be eased by the presence of a familiar, trusted and reassuring presence is, apparently, something he dismisses.
The father does not appear to have any appreciation of the fact that he is a complete stranger to Z and, at best, a dim memory for W.
There is no evidence that he has considered the possibility that the children might be resistant to reintroduction and resentful of what they might perceive as his neglect and abandonment of them. He does not appear to have considered the effect on the children if his attempts to re-enter their lives are disruptive for them.
Nothing in the father’s evidence suggests that he has the capacity to deal sensitively with the reintroduction process or to persevere if the process does not progress smoothly.
I do not accept the submission made by counsel for the ICL that the mother may not comply with orders. It was her preference, as she said in cross-examination, that the father be erased from their lives. In answer to questions about her failure to ensure that the children had contact with their father after May 2011, the mother said:
Yes. I tried – [the father] decided not to continue with those visits. And I tried, and I had tried up until that point, and I had been verbally abused and ripped to shreds by him, and threatened, and I felt that I just did not have anything left in the tank. And if that’s wrong, I take full responsibility of that, but I also did not feel that it was in the children’s best interests, at the time, to have the visits that they were having with him. And nor was it in my best interests to be told I was a “fucking bitch”, or a “useless piece of shit”, or anything like that, and I could not continue to try under those circumstances. And if that’s wrong, I apologise.
However, it was also her position that, provided the children were safe and any contact properly supervised, it was important that they know their father.
Before the mother was re-examined, I asked her about her willingness to facilitate contact between the father and the children. That passage of transcript is set out below:
[Her Honour]           …if I were to make an order that the children see their father in a contact centre, so they get to understand who he is, firstly, would it be appropriate, do you think, that, at least for the first few visits, your sister, [Ms B], went with them?
[Mother] Yes.
[Her Honour]           And do you think she would be prepared to do that?
[Mother] I obviously can’t speak for her. But possibly, yes.
[Her Honour]           And if I were to make such a decision, would I be right in saying that you would do everything in your power to make sure that that worked for the children?‑‑‑I would try to.
[Her Honour]           And in order to do that, you could get some help from [Dr Q]; is that right?
[Mother] Yes. But I find it very difficult to.
[Her Honour]           I understand that you would find it very difficult. But even so, would I be right in saying, because you’re their mother and because you love them very much, you would do everything you could to make it work? Is that a yes?
[Mother] I try to.
I accept that the mother was being truthful. She consented to orders which, had they been put into effect, might have resulted in the relationship being re-established. She did so, she deposed, unwillingly. However, when it became known that the orders could not be put into effect with the contact centre, it was the mother who initiated contact with F Services and made the alternate proposal to the father.
In cross-examination by counsel for the ICL, Ms B said that she would support the children if orders were made for them to have time with their father and that she would be present as a support person for them during the introductory period.
The risk of mandating a reintroduction of the children to the father, having regard to the evidence of Dr H and Dr G, and the father’s failure to persevere with his relationship with them is that their present fragile progress will be destabilised for little benefit if the father again fails to persevere and disappears from their lives.
It remains to be seen whether the father will seek to build a relationship by contacting them and seeking their contact with him, however tenuous.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 21 August 2020.

Associate:

Date: 21/08/2020

[2020] FamCA 690

21 August 2020

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Procedural Fairness