Vickers and James

[2012] FamCA 323

FAMILY COURT OF AUSTRALIA

VICKERS & JAMES [2012] FamCA 323

FAMILY LAW – CHILDREN – With whom a child spends time – Drug use – s 60CC(4)

APPLICANT: Ms Vickers

RESPONDENT: Mr James

INDEPENDENT CHILDREN’S LAWYER: Norman O’Dowd, Solicitor

FILE NUMBER: SYC 1192 of 2010

DATE DELIVERED: 4 May 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Sydney

JUDGMENT OF: Bell J

HEARING DATE: 28 - 29 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITORS FOR THE APPLICANT: Etheringtons Solicitors

SOLICITOR FOR THE RESPONDENT: The Respondent Father appearing in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Shea, Solicitor of Legal Aid NSW

Orders

IT IS ORDERED:

1. That all previous parenting Orders be discharged.

2. That, N born … July 2005, (“the child”) live with the Mother.

3. That the Mother has sole parental responsibility for the child.

4. That the child has no contact with the Father, save for the provision by the Father      to the child of letters, emails, birthday cards and presents and Christmas cards and      presents.

5. That the Mother:

   (a)provide to the Father photos of the child three (3) times per year;

   (b)     provide to the Father the child’s school reports; and

   (b)to inform the Father of any serious medical illnesses that the child may be suffering from.

6. That the Mother and the Father keep each other notified of their mailing address and will inform each other of any change of their mailing address no later than seven (7) days after it has changed.

7. That Legal Aid NSW release funds held in their trust account to Dr W in the sum of $1,650.00 in payment of his invoice for preparation and attendance at the hearing of this matter.

8. Subject to the Father being alcohol and drug free for a period of twelve (12) months from today’s date, he be given leave to institute such proceedings as he may be advised.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1192 of 2010

Ms Vickers

Applicant

And

Mr James

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of Ms Vickers (the applicant) for parenting orders in relation to a child of herself and Mr James hereinafter referred to as the respondent.

2. The respondent was born in 1965 and the applicant in 1975.  In the year 2000 the respondent separated from his then wife, Ms K, to whom he had children and the parties commenced a relationship in early 2001.

3. During cohabitation between the parties from about, as I have said early 2001, until December 2009 when the parties finally separated, cohabitation was generally one of the respondent being either affected by drugs ie. cocaine or alcohol and he being addicted to gambling to the detriment of the parties and of the child, the child M (“the child”) born on 6 July 2005.  I say in passing that the parties never married.

4. As appears from the chronology of the applicant attached to the summary of argument outline of case, as I have said before, the respondent is clearly a drug addict and he is an alcoholic.  I only refer to that chronology in order to briefly indicate that I am of the view that the evidence more than supports the particulars as set out in that chronology.  I do not believe that anything further can be gained from particularising each and every one of the allegations contained in that chronology.  Since I am satisfied that the evidence more than supports that chronology, I accept it as evidence in these proceedings.  But, I do feel constrained to indicate that there are certain matters which must be highlighted and these are as follows:

   ·In January 2004 the respondent was convicted of driving with a prescribed concentration of alcohol.  Even at that stage in 2003, a friend of the respondent, Mr J, suggested that the respondent be taken to hospital for treatment.  The respondent refused and stated that there was no problem.

   ·In 2004 the respondent was in the United States of America and was heavily affected by cocaine.

   ·He further purchased cocaine from the concierge in a hotel in England where the respondent and applicant were staying.

   ·In May 2004 the respondent assaulted the applicant.

   ·In January 2005 the respondent’s employment with Company B was terminated and he was a “high flyer” receiving up to $1 million per year as and by way of salary.

   ·On Mother’s Day in 2005 the respondent was admitted to D Hospital suffering a drug overdose.

   ·

   In May 2005 the respondent became a missing person for approximately two weeks and presented himself to the Emergency Department at

   
   

   D Hospital.

   ·Shortly subsequent thereto, the applicant attended with the respondent at a doctor’s appointment to deal with his drug problem/addiction.  The applicant had been attempting to have the respondent attend to the doctor with his addiction but he refused to do so.

   ·At birth in July 2005, the child being born by caesarean section, the applicant asked the respondent to obtain a toothbrush and some items of clothing for her whilst she was in hospital.  The respondent left at 9.00 am on 8 July 2005 and she did not see him for a period of approximately four weeks.

   ·In July 2005 the respondent was referred to a detoxification program by Dr L.  The respondent had suffered convulsive episodes after an overdose of cocaine.

5. The list goes on and on and on.  Not only was the respondent imbibing of cocaine and alcohol it appears that he was also associating with women other than the applicant. 

6. In August 2005 the respondent was admitted for eleven days to H Clinic for the treatment of cocaine abuse.  He left before the program was completed. 

7. In November 2005 the respondent was divorced from his former wife, Ms K, and up until this time the respondent showed little or no interest in his three children to Ms K and this continued until comparatively recently when he appears to have had a conversion on the ‘Road to Damascus’ and tends to look upon his children from his first wife in somewhat more favour and is developing a relationship with them.

8. As I have said I do not believe it is necessary for me to set out chapter and verse all of the destructive conduct on the part of the respondent.  He is an alcoholic as he readily concedes.  He is a drug addict and he has on occasions associated with women other than the applicant and also prostitutes.

9. He has frequently indicated to the applicant that he would reform but he seems to reform for, if any time, only a comparatively short period.  Although the applicant does concede that the respondent did reform for a period of about eight months in or about 2009 and she was at that stage considering that she would have another child to him. 

10. In or about September 2007 he was admitted for three days to the Emergency Department of C Hospital for an assessment of suicidality.  He had attempted suicide and was scheduled under the Mental Health Act 2007 (NSW) to the C Hospital. He was released into the care of a psychologist, Ms S and a psychiatrist, Dr T.

11. In February 2008 Ms S, psychologist, comes to the opinion that the respondent suffers from bipolar disorder, drug and alcohol condition and narcissistic personality disorder. 

12. He relapses into drug taking in October 2008 and on one occasion the applicant left the child with the respondent for a short period of time and upon her return she finds the respondent is in a comatose condition and the child was watching inappropriate television shows.  The respondent has informed the applicant that he has probably wasted $2 million on cocaine.

13. In early 2009 a gambling venue contacts the applicant requesting some $3,000 for gambling debts since the respondent has been unable to pay such debts, and also the respondent informed the applicant that he has received threats to have his legs broken unless he pays amounts of $20,000 and $30,000.

14. In 2009 two people, one Mr A and Mr O, contact the applicant requesting moneys of some $1,500 and $5,000 respectively.  The debts were paid by the applicant and the respondent apologises and says it will never happen again.

15. In 2009 the respondent borrows $2,000 from his nephew to buy cocaine and the applicant has to repay this amount at the request of the respondent, such moneys having been put aside for the child’s school fees.

16. On the 19 April 2009 after journeying to Brisbane with the respondent, he disappears and does not return for a period of two days.  He once again promises to reform.

17. By September 2009 Ms S the psychologist has refused to see the respondent and recommends him to seeing a psychiatrist.  The applicant once again pleads with the respondent to attend a rehabilitation program and the applicant telephones the C Hospital Acute Care Team due to her concerns arising from the respondent’s risk of suicidal behaviour, erratic behaviour and increasing verbal abuse towards the applicant.

18. The parties separated on the 20 November 2009 when the applicant takes the child to her parents’ home.  The parties reconciled after ten days and the respondent does not come home for Christmas and stays at a luxury hotel on a bender.  The parties finally separated on the 25 December 2009.

19. There is before me and evidence from the applicant, that she discovered a receipt relating to the respondent’s stay at the luxury hotel for Christmas 2009 totalling $3,988 from 26 to 30 December 2009.

20. Subsequently the applicant attends the Suburb E property which was the former matrimonial home and observed that the pool was not clean, there was a blow up sex doll on top of the garbage bin and there were also photographs of the respondent engaging in sexual activities with a dark haired woman.

21. As I have said, once again, I repeat that the litany of destructive behaviour on the part of the respondent is inexcusable.  He was unable to control either his drinking or his drug addiction or his gambling or his predilection towards prostitutes, he saying prostitutes were a ready source for providing cocaine.  I re-emphasise that I accept without reservation the chronology attached to the applicant’s summary of argument in relation to the respondent’s conduct and I am more than satisfied that the evidence supports this.  In fact, the respondent’s evidence does not to any great extent diverge from that of the applicant.

22. Since the time of separation the Suburb E property has been sold and the sale was completed in or about the month of October 2010. 

23. Thereafter we have to move to the evidence of the relationship between the respondent and Ms F.  Ms F looms comparatively large in this case.  She is a woman of high intelligence; she is a professional person and is a partner in a large professional business in Sydney.  The respondent commenced a relationship with Ms F in or about the month of November 2010.

24. I must say in passing, Ms F is a remarkable person.  This will become apparent the further I enter into the consideration of the relationship between herself and the respondent.

25. By December 2010 Ms F and the respondent are having disagreements because of his taking cocaine.  He once again promised never to do it again.  In February 2011 he has four episodes of binge drinking in a week, followed by an expression of contrition to Ms F.  He drank to the extent of vomiting when Ms F’s children from a previous relationship were at home, causing her to send them away.

26. I turn to Ms F’s evidence which is contained in her affidavit filed

    
    

    16 March 2012.  At paragraph 6 of the aforesaid affidavit, the witness

    
    

    Ms F says:

    6.…

    When the Respondent was drinking heavily he would be late for appointments, fail to return telephone messages, fail to turn up for appointments at all and stay out all night.  Upon one occasion in February 2011 I observed the Respondent repeatedly vomit over a number of hours after drinking heavily.

27. Ms F refers to and accepts the report of Dr W subject to a small point of detail (see paragraph 7 of her affidavit aforesaid).

28. Ms F says at paragraph 8 of the aforesaid affidavit:

    8.Since 30 June 2011 I have observed the Respondent to take the following steps to manage his addictions.  He has always been contactable when I have called him, he has never gone missing, his mood appears predominately calm and stable, and I have observed him regularly taking his medication in the correct dosage, visiting his psychiatrist regularly, avoiding triggers and taking more responsibility for managing his emotions.

    …

29. Whilst Ms F does not particularly refer to an incident, it is quite clear that the respondent on one occasion in early 2011 went out on a bender and expended something like $30,000 of Ms F’s moneys on gambling.

30. Ms F impressed me as a witness.  She has impressed me with her determination.  She has indicated to the respondent that should he have one further drink, and it appears according to her that he has not had any alcohol since about June or early July 2011, that the relationship between herself and he will be finished.  It appears that he has complied with this.

31. What does this all mean?  It cannot be said that the child would receive any benefit at all from having contact with the respondent if the respondent maintains his drug addiction, his alcohol addiction, his gambling addiction and his relationship with prostitutes.  He has shown little or no interest in the child.  The respondent concedes that on occasions he has, whilst looking after the child, prior to separation from the applicant, consumed alcohol.  I am quite satisfied that he consumed it to excess.  He was an absolute mess and a disaster.

32. However, the respondent says that since June or July 2011 he has not consumed alcohol.  May I say in passing that the respondent informed the Family Consultant, Ms R in the child dispute conference that he had not had any drugs since meeting Ms F in about August 2010 and has not had any alcohol since about February 2011, which was a downright lie.  Ms F has made that quite clear, and the respondent has conceded that he has partaken of alcohol and drugs since that date.

33. As I have said I am of the belief that the respondent could not offer anything towards his son.  But what he says now is that he is now dry with the assistance of Ms F and I admire and compliment her tremendously, he is on the road to recovery notwithstanding the fact he recognises he is a recovering alcoholic and has not been cured and will never be cured.  At my page 37 of

    
    

    Dr W’s report he states as follows:

    In the event that the relationship between [Ms F] and
    [the respondent] breaks down, it is my view that the visits would need to be professionally supervised until such time as he can provide a lay supervisor of [Ms F’s] extraordinary quality or [the respondent] has been able to demonstrate a period of up to several years of abstinence and there is good evidence that this is largely maintained by internal mechanisms rather than by external mechanisms for which he feels little or no responsibility

34. I have considered in depth the report of Dr W and as I have already indicated I would accept his views and in particular I refer to his reporting of the statements made by the respondent as well as Ms F (see particularly my pages 21 to 23 inclusive).  At my page 36 Dr W says (see under subparagraph k):

    …

    In my view there are significant risks associated with the child spending time with his father, the most likely of which is that his father will be inattentive to him but the most serious of which are that he will come to some physical or severe psychological harm as a consequence of exposure to his father’s drug use, association with some of the people with whom his father associates during drug use, or self harming or reckless behaviour.

35. It appears to me that there is more than sufficient evidence to be concerned about those matters which have concerned Dr W.

36. If I can touch upon the applicant.  It is quite clear on the evidence before me and her presentation in the witness box that the applicant is very distressed about the relationship between herself and the respondent, about the respondent’s addictions and her extreme concern as to whether or not the welfare of the child would be advanced by having any contact with his father. 

37. Dr W says at my page 36 subparagraph m as follows:

    [The applicant] would clearly be much happier if the child had nothing to do with his father at all.  In my view this case is not a set of circumstances where the child should be denied the opportunity to re-establish and maintain a relationship with his father if at all possible.”

    [my underlining]

38. It is quite clear in my opinion that the applicant’s experiences with the respondent over a period of some years would cause a great deal of concern in any average person.  She is doubtful as to whether or not he has controlled his addictions.  She points to the fact that for a period of about eight months he controlled them with her but fell off the wagon once again and reverted to his previous conditions.  I am also pointed to his conduct with Ms F up until around about June 2011 and as such it is suggested that I should not give him the chance to resurrect a face to face contact with his son until such time as he has shown for a period of up to two years that he has control over his addictions.

39. One further matter which Dr W refers to are the three elder children, the children of the respondent’s relationship with Ms K.  Dr W says at my page 37 that it is in his view that fairly early it would be helpful if the child was reintroduced to his older siblings, saying in passing that the older siblings would normally last longer than the mother and father, by way of lifetime expectancy.  That is a matter which I have taken into consideration as well in the orders that I intend to make.

40. It is incumbent upon me to consider the provisions of s 60CC. 

41. I am always of the belief that the authorities do not require me to proceed through s 60CC seriatim.  There are naturally of course subsections which I am directed to consider and I will do so after this.

42. Of course I have to require the question of joint parental responsibility, it being a presumption in the Act.  Needless to say as a result of the facts that I have found about the respondent’s conduct in this matter, his lack of interest in the child and his uncontrollable addictions, I do not believe that anything can come of there being joint parental responsibility in a case such as this and consequently I consider that the presumption has been discharged.  I do not believe equally that joint parental responsibility would be in the best interests of the child.  I just say that the conduct of the respondent once again is such that I could not in any way believe that the parties could parent co-jointly for the welfare of the child.

43. Insofar as the s 60CC factors which I consider are of importance, I recognise that it is essential that the child have a meaningful relationship with both of his parents.  I do not believe at this stage that a meaningful relationship could arise.  The child has obviously had exhibited to him physical and psychological harm which he has been subjected to because of the neglect of the respondent.  The child has little or no relationship with the respondent and I believe that is brought about solely as a result of the respondent’s bizarre and destructive conduct.  I recognise that the applicant does not, as is pointed out by Dr W, desire the child to have anything to do with the respondent, but recognise there are many reasons for the applicant so feeling, but further recognise that the applicant, I am sure, will comply with any Orders of this Court.

44. Insofar as s 60CC (4), one of the compulsory subsections, I have to consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent.  I am quite satisfied as I make it quite clear in my reasons hereinbefore, I do not believe that the conduct of the respondent is such that he has fulfilled any of his responsibilities as a parent and I believe that he has totally failed, and that such failure continues.  I do believe that the applicant has failed to facilitate the respondent spending time with the child (see s 60CC (4)(b)(ii)) but believe there are very good reasons for it and I excuse her for this.  The respondent has of course failed to fulfil his obligation to maintain the child (see s 60CC (4)(c)).  Even today the child is being maintained by Ms F and Ms F is not only maintaining her children but is assisting in payment of the maintenance of the respondent’s children to his first marriage.  I believe that I have adequately complied with s 60CC (4A).

1. The respondent’s duties in relation to his child have generally failed in every one of the particulars in s 60CC(4), because of his various addictions.

2. The applicant has sought orders in the minute which has been put before me which generally indicates that she does not seek an order that the child spend any time with the respondent.  To the contrary, the respondent has in his original response sought orders as set out in orders (1) to (7) (inclusive) but it appears that he has put before me proposed orders in which he seeks leave to amend that response and he is substituting (2) to (3) as set out in the respondent’s orders.  These, if I may generalise them, indicate that he wishes to have supervised contact with the child for every two weeks and thereafter to generally increase such contact until such time as to increase to overnight contact.

3. After taking into consideration the conduct of the respondent over a period of many years since the date of the child’s birth, can I be satisfied that any benefit would come to the child by his having contact with the child face to face, I do not believe so.  I had at one stage considered that it would be possible for the child to see his father in a supervised setting for some limited period.  I directed my questions to Dr W, whose evidence was very impressive and I incorporate in these my reasons for judgment his evidence generally, but I also say that Dr W is of the opinion that if contact is to be resumed and of course it is the child’s right to have contact with his father and know his father, that it should be done sooner rather than later.  Dr W also indicated on a question from me that he is of the view that notwithstanding a person has been an alcoholic and is still an alcoholic, to be satisfied that he has control over his alcoholism, it needs a period of at least two years between the last drink before it could be said that there is a very strong chance that the alcoholic has controlled himself.

4. Mindful as I am of what Dr W says about the child having contact with the respondent sooner rather than later, he did go on to say delaying contact for  some period of eighteen months to two years, it would not make much difference.  I am satisfied upon the submissions of the Independent Children’s Lawyer that I should not grant physical contact between the respondent and the son for a period to enable the respondent, and the onus is upon him, to show that he is controlling his addictions for a period of at least twelve months. 

5. One of my prime concerns is that the unreliability of the father as set out hereinbefore wherein his drinking causes him to not comply with any

   
   

   pre-arranged agreements concern me to such an extent (see paragraph 26 supra).  Here we have a boy who has the right to know his father and as his father says he has something to give to the child.  But what if we are put in the invidious position if the father falls off the wagon again?  The child, who may have had one, two or three contact periods with his father and is anticipating his father turning up and he does not do so because of his obvious and conceded addictions.  I need only refer to those statements made to Dr W, see paragraph 26 hereof, for me to emphasise that I have this concern.  I regret to say that as a result of that it has concerned me and therefore I am further of the opinion that as a result of that that the father needs to have a period of abstinence for longer than the period of about nine months that he has at present and reiterate those matters which I have set out in paragraph 34 hereof.

6. I do however believe that the child’s right to know of his father is important and consequently I would order that the respondent would have the right to write to his son once per month, that he should forward photographs of himself to his son and I will order the applicant to send to the respondent photographs of the child on at least three occasions per year.  I further order that the applicant do forward to the respondent the school reports as they become available to her and that she will inform the respondent of any serious illness that the child may be suffering from. 

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 4 May 2012.

Associate: 

Date:  4 May 2012