Warren & Warren
[2022] FedCFamC2F 1556
Federal Circuit and Family Court of Australia
(DIVISION 2)
Warren & Warren [2022] FedCFamC2F 1556
File number(s): CSC 544 of 2021 Judgment of: JUDGE COPE Date of judgment: 17 November 2022 Catchwords: FAMILY LAW – parenting – one child aged 6 years – father poses an unacceptable risk to the child – mental health issues – family violence – failure to accept psychiatric diagnoses – repeated failures to successfully complete rehabilitation – failure to accept that conduct amounts to family violence – prescription and illegal drug abuse – presumption of equal shared parental responsibility does not apply – not in the best interest of the child – child live with mother– child spend supervised time with the father. Legislation: Australian Passports Act 2005 (Cth) s 11
Family Law Act 1975 (Cth) Part VII ss 60B, 60CA, 60CC, 60CG, 61DA(1), 64D(2), 65AA, 65Y
Cases cited: Deiter & Deiter [2011] FamCAFC 82
Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Geisler & Geisler [2018] FCCA 3959
Hickson & Matthew [2022] FedCFamC1A 161
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
M v M [1988] 166 CLR 69; [1988] HCA 68
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
N v S (1996) FLC 92-655; [1995] FamCA 139
Napier & Hepburn (2006) FLC 93-303; [2006] FamCA 1316
Nikolakis & Nikolakis [2010] FamCAFC 52
Rice v Asplund (1979) FLC 90-725;[1978] FamCA 84
Williamson & Parish [2022] FedCFamC2F 68
Division: Division 2 Family Law Number of paragraphs: 264 Date of hearing: 25, 26, 27 & 28 July 2022 Place: City B Counsel for the Applicant: Mr Williams of Counsel Solicitor for the Applicant: Reaston Drummond Law Counsel for the Respondent: Mrs Bassano of Counsel Solicitor for the Respondent: MK Family Law Counsel for the Independent Children's Lawyer: Mr Eylander of Counsel Solicitor for the Independent Children's Lawyer: Collier Lawyers ORDERS
CSC 544 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WARREN
Applicant
AND: MR WARREN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE COPE
DATE OF ORDER:
17 NOVEMBER 2022
THE COURT ORDERS THAT:
1.All previous Orders are hereby discharged.
Parental Responsibility
2.The mother have sole parental responsibility for making decisions about major long-term issues for the child X born in 2016 (“the child”).
3.That in the exercise of her parental responsibility in accordance with Order 2:
(a)The mother will notify the father of her proposed decision (including reasons for the decision) in writing as soon as practicable prior to the decision being made);
(b)The father is to respond as soon as practicable to the mother’s proposal, and, if he wishes, indicate his view in relation to her proposal, including reasons;
(c)The mother is to give genuine consideration to the father’s response; and
(d)The mother is to notify the father in writing within 48 hours of the final decision being made.
4.That for the purposes of these Orders a major long-term issue shall include, but is not limited to, issues about:
(a)The child’s education (both current and future);
(b)The child’s religious and cultural upbringing;
(c)The child’s health;
(d)The child’s name; and
(e)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
5.That the mother shall not, without the agreement of the father in writing:
(a)Change the child’s name; or
(b)Relocate the child away from the City B area.
6.Notwithstanding Order 2 herein, each parent shall have responsibility for day-to-day decisions concerning the child whilst the child is in their care.
Living Arrangements
7.The child live with the mother.
Father’s Time with the Child
8.The father shall spend supervised time with the child at the City B Children’s Contact Centre (“the contact centre”) or such other professional supervision service as may be agreed between the parties, at all times as can be accommodated by the contact centre/service, but not more often than on one occasion each alternate weekend.
9.The mother shall be at liberty to suspend the father’s supervised time with the child for a period of up to a total of four weeks each year, during school holiday periods, for the purposes of the child travelling with the mother on a holiday. The mother shall provide the father and the contact centre/service with at least 28 days’ written notice of her intention to suspend the father’s time.
10.The mother and father shall forthwith attend at C Counsellors in City B for the purposes of completing the intake procedure for the father spending supervised time with the child at the contact centre in accordance with these Orders.
11.The father shall be responsible for the costs of his supervised time with the child.
12.During supervised time with the child, the father is restrained from consuming or otherwise being under the influence of any of the following;
(a)illicit drugs; and/or
(b)any non-prescribed or in excess of prescribed opioid or extended opioid type prescription drugs; and/or
(c)any non-prescribed or in excess of prescribed medication type prescription drugs; and/or
(d)any cannabinoid/THC type drugs.
Telephone/Video Calls
13.The child shall be at liberty to communicate with the father by telephone or video call each Wednesday between the hours of 6.00 pm and 7.00 pm, and at other reasonable times as may be requested by the child, with the mother to facilitate those calls.
Passports and Overseas Travel
14.Pursuant to s 11 of the Australian Passports Act 2005 (Cth), the mother be permitted to do all acts and things and sign all documents necessary to apply for and maintain a current Australian passport for X born in 2016 notwithstanding that the father may not have signed the passport application or renewal forms.
15.Pursuant to s 65Y of the Family Law Act 1975 (Cth) the mother be permitted to travel overseas with the child for a holiday in accordance with Order 9, provided that the father is given 28 days’ prior written notice of:
(a)The destination;
(b)The proposed itinerary; and
(c)Contact details for the child whilst she is away.
Authorities
16.These Orders shall, without more, act as authority to the child’s school and outside school hours care facility to provide each parent (at that parent’s expense) information about the child’s education progress, school-related activities, copies of school reports, photographs, photograph order forms, certificates, awards obtained by the child and other school communications ordinarily provided to parents.
17.These Orders shall, without more, act as authority to each of the child’s medical practitioners (including counsellors and psychologists) to provide to each parent (at that parent’s expense) information about the child’s treatment and any medical conditions and copies of medical reports and records.
18.The father is not permitted to attend school functions and events to which parents are usually invited without the written consent of the mother and further such attendance will be subject to the discretion of the school.
19.The mother is granted leave to provide and shall ensure that the school and outside school hours care facility attended by the child, and the child’s usual treating medical practitioners (including counsellors and psychologists) are provided, with a copy of these Orders.
20.The mother is at liberty to provide to the child’s usual treating medical practitioners (including counsellors and/or psychologists) a copy of the affidavit of Dr D, filed 11 April 2022.
21.The father has leave to provide to his treating medical and mental health professionals a copy of the report and assessment of the father by Dr D dated 8 March 2022 and copies of the tests completed by Dr D in the preparation of her report, the report of Ms E dated 11 October 2021, and the subpoena records from F Clinic and Ms G together with these Orders and Reasons for Decision.
Restraints
22.The father is restrained from removing the child from the care of the mother or from any location where the mother may place the child, including but not limited to the child’s school.
23.During the time that the child is with either parent, that parent will:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent or other family members in the presence or hearing of the child;
(d)Use their best endeavours to prevent any other person denigrating or insulting the other parent or other family members in the presence or hearing of the child;
(e)Not discuss adult issues or the current proceedings in the hearing of the child nor allow another to do so; and
(f)Not expose the child to family violence.
Notification
24.Both parents will keep the other informed of any changes to their phone number, address or email within 24 hours of that change.
25.The mother shall keep the father informed as soon as practicable of any illness or injury suffered or sustained by the child.
Other Orders
26.The Independent Children’s Lawyer be discharged 30 days from the date of these Orders.
27.All outstanding applications be dismissed and the matter be removed from the pending cases list.
AND THE COURT NOTES THAT:
A.The father intends to take steps to engage with a specialist medical clinic for the purposes of receiving treatment from a multi-disciplinary team of medical professionals.
B.Upon the condition that the paternal grandmother shall not allow the child to come into contact with the father, the mother agrees to facilitate the child spending time with the paternal grandmother at all reasonable times agreed between the mother and paternal grandmother.
C.Pursuant to section 65DA(2) 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 are set out in Attachment A and these particulars are included in these orders.
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 Warren & Warren has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE COPE
PART one: INTRODUCTION
The application before the court is in relation to the living arrangements for the child X born in 2016 who is six years of age (“the child”).
Proceedings were commenced by Ms Warren aged 32 years (“the Mother”) on 25 June 2021. The Respondent is Mr Warren (“the Father”) aged 32 years.
Issues for Determination and Risk Factors
The significant issues for the court to determine are:
(a)Whether the court should make interlocutory or final Orders;
(b)Whether the child is at unacceptable risk of harm with the Father;
(c)Whether there should be Orders for equal shared parental responsibility or whether the Mother should have sole parental responsibility;
(d)Whether the Father’s time should be supervised; and
(e)Related child Orders flowing from those decisions.
The risk factors identified are:
(a)Mental health issues;
(b)Drug use;
(c)Alleged family violence; and
(d)Child safety and wellbeing arising out of the above matters.
PART TWO: BACKGROUND
The parties commence living together in 2007 and were married in 2013. They separated on a final basis on 25 October 2017.
Following separation, the Mother’s evidence is that the child spent time with the Father for a few hours each fortnight which then progressed to overnight time.
The Father re-partnered with Ms H (“Ms H”) in around 2018. Ms H has children from a previous relationship.
The Mother has re-partnered with Mr J (“Mr J”).
Current Living Arrangements
At the time of trial, the child was living with the Mother and spending time with the Father in accordance with Orders made on 14 October 2021. Those Orders provided that the child spend time with the father on alternate weekends from 9.00 am Saturday until 5.00 pm Sunday, and other specified time in school holidays. The child also spent time with the paternal grandmother each alternate Thursday.
The Father’s time with the child was conditional upon clean hair follicle testing, a restraint against consuming illicit drugs and opioid or prescribed type drugs and from driving whilst under the influence of any prescription drug that may make him drowsy or where driving is not recommended whilst the child is in his care.
At the conclusion of the Trial, an oral application was made to vary the Father’s time. Orders were then made on 28 July 2022 for the Father to have professionally supervised time on one occasion each alternate weekend and video calls each Wednesday.
Family Violence
The Father denies any family violence in his relationship with the Mother or indeed in his relationship with his current partner Ms H.
The Mother alleges that the Father started steroid use in 2013 and in her affidavit material describes him as becoming “short tempered.”[1] She gives affidavit evidence that during the relationship the Father threw her cat, grabbed her by the throat when she was pregnant and threatened self-harm.[2]
[1] Mother’s affidavit filed 27 June 2022, paragraph 105
[2] Mother’s affidavit filed 27 June 2022, paragraph 105, 109 & 126
At the time of Trial, there was a current Protection Order in place between the Father and his current partner with the Police as the applicant. The police attended at their home on 16 February 2020, 13 August 2020, and 31 January 2021.[3] Despite this, both the Father and his partner deny that their relationship is characterised by family violence.
[3] Exhibit M4, pages 36,41-42 & 50
Drug Use
The Father has a long and troubled history with prescription drug abuse and illegal drugs. A useful summary of the Father’s self-reports to the F Centre (where he attended for rehab on three occasions) and Queensland Health Alcohol and Drug Service is provided by Dr D in the psychiatric assessment as follows:[4]
[4] Psychiatric Report filed 11 April 2022, page 19-20
[The Father] reported that he was introduced to alcohol at age 16. He developed a pattern that could be considered as pathological binge drinking, where large amounts of alcohol are consumed on occasions. [The Father] stated that he would consume alcohol with his friends on weekend nights. He has reduced his alcohol intake significantly over the years. He quantified his current alcohol use as six beers per week. He did not experience any withdrawal symptoms at times when he did not access alcohol.
He was a non-smoker, but was vaping 2mg of nicotine per week. He acknowledges that he experimented but reported that he never used illicit substances including cannabis, stimulants, opioids or hallucinogens in an abusive or dependent manner.
He did report that he developed a substance use disorder between 2015 to 2016, after he has been prescribed oxycodone and [drug of addiction] following a physical injury.
Contradictorily, in [the Father]’s admission notes to the F Centre, it was reported that over a two-year period, prior to his initial admission, he was sourcing Endone (opiate) and [drugs of addiction] from the street, and on occasion he would crush and inject it. He also reported using steroids (some IV use), [drugs of addiction] socially, and he was diagnosed at this time with opioid and [serious drug] use disorder.
In 2017 [the Father] engaged with the Queensland Health Alcohol and Drug service and reported the following drug use history:
•Alcohol – first used age 14 however he now describes himself as a non-drinker
•Cannabis – first used age 16 and last used ‘years ago’ (the CSC report of October 2021 [the Father] stated he last used 2-3 years ago)
•[drugs of addiction] – first used age 20 last used 5-6 years. (In 2018 he presented to City B Base Hospital and was screened positive for [drugs of addiction]).
•[drug of addiction] – never tried
•[drugs of addiction] – first used age 24, [the Father] described taking large amounts of [drugs] while using
•Opiates. Taking approx. 30mg Xanax (usual prescribed dosage for General Anxiety Disorder is 0.25 to 0.5mg)
•[drug of addiction] – first used age 20 last used ‘5 – 6 years ago’ (the CSC report of October 2021 [the Father] stated he last used 2 years ago)
•[drug of addiction] – first used age 22 last used 2 years ago (the CSC report of October 2021 [the Father] stated he last used in late 2020)
•Opiates – first used age 24 – prescribed for bilateral knee tendonitis, also suffered dislocated shoulder during this time. Started to inject about 6/12 months after he was prescribed – topped up with illicit purchasing off the street
Collateral from QPS Police DV application for a cool-down period of [the Father] state that [the Father]’s current partner had concerns about his substance use in January 2021.
Further collateral from information provided by Medicare via the PBS suggests long-term purchasing of oxycodone and [drugs of addiction] through several GPs from 2016 – April 2021.
The CSC report of October 2021 reports an updated recent use of substances (see above list) also that a hair follicle test on 19 August 2021 indicated positive for opioids, however this may have been a residual indication from his cessation in April.
I am of the opinion that [the Father] would meet the Diagnostic and Statistical manual of mental disorders (5th edition) DSM-5 criteria for substance use disorder iatrogenic opioid and [drugs of addiction] disorder, currently in remission.
The drug testing history for the Father is similarly concerning. In 19 August 2021 he had a positive reading for oxycodone which he ascribed to a prescription filled on 24 March 2021, about six months earlier.[5] Then the Father’s hair follicle tests have returned positive readings on two occasions in April 2022. The Father’s evidence is that he is perplexed by these reading but the court notes that they are positive for a drug that he has historically abused.[6]
[5] Father’s affidavit filed 29 June 2022, paragraph 44
[6] Father’s affidavit filed 29 June 2022, paragraph 50-51
The court is asked to accept that the Father is now free of illegal drugs.[7] There is however no evidence of ongoing drug counselling or successful attendance at rehabilitation. After each attendance at rehabilitation there is documented evidence of further drug abuse.
[7][7] Father’s affidavit filed 29 June 2022, paragraph 59
The court is also asked to accept that after he last attempted self-harm, the Father has turned a corner. This discounts however the Police attendance at this home in January 2021 where he is reported to have been intoxicated and arguing with Ms H, who is documented as reporting to Police that she feared for her life. Her affidavit evidence however is that she “does not recall being scared for my safety”[8] and in the witness box she denied it.
[8] Ms H’s Affidavit filed 29 June 2022, paragraph 22
Mental Health
In the report of Dr D psychiatrist, the Mother is assessed as having no mental health diagnosis or other mental health factors which impact her ability to care for the child.
In her report, Dr D expressed the opinion that the Father fulfils the criteria for serious mental disorders and substance use disorder, currently in remission at the time of assessment on 6 December 2021. She expresses that the “gold standard” treatment for serious mental disorders is psychotherapy, specifically dialectic behaviour therapy based intervention. [9]
[9] Psychiatric Report filed 11 April 2022, page 30
Dr D is of the opinion that the diagnoses impact the Father’s capacity to parent and that it will “contribute to an escalated risk of physical or psychological harm to the child in his care and would negatively impact upon the parent’s capacity to provide for the needs of the child’s emotional and intellectual needs.”[10]
[10] Psychiatric Report filed 11 April 2022, page 31
The Father challenges Dr D’s diagnoses which I address later in these reasons. There is however no evidence from an adversarial expert.
Child Safety and Wellbeing
The Mother raises concerns in relation to the child’s mental health and well-being arising out of exposure to family violence and drug use by the Father.
The Father alleges the child is exposed to drug use, family violence and inappropriate conduct (such as showering with Mr J) in the Mother’s household. The suggestions regarding Mr J was not pursued at Trial but were the subject of a subsequent and unsuccessful application to adduce fresh evidence.
In addition to the obvious risks of exposure to family violence, mental health issues and drug abuse, the opinion of the Family Report writer is that the Father’s impairments in functioning as regards empathy and intimacy, raise another more subtle level of risk, and may cause psychological and emotional harm to the child.
He presented with Impairments in empathy: with a lack of concern for feelings, needs, or suffering of others; lack of remorse after hurting or mistreating another as well as intimacy with an incapacity for mutually intimate relationships, as exploitation is a primary means of relating to others, including by deceit and coercion; use of dominance or intimidation to control others.[11]
PART THREE: ORDERS SOUGHT
[11] Psychiatric Report filed 11 April 2022, page 26
The Mother’s Proposal
The Mother proposes final Orders in the following general terms:
(a)She have sole parental responsibility;
(b)The Mother proposes that she consult with the Father and notify him of the decisions made;
(c)The child live with her;
(d)The child’s time with the Father be supervised by a professional supervision service, with the Father to be solely responsible for those costs and to be restrained from consuming or being under the influence of any illegal non-prescribed drugs or prescribed drugs in excess of the prescription and only cannabinoid/THC drugs while he is spending time with the child;
(e)She be able to suspend the Father’s time for four weeks each year during school holidays;
(f)Phone or video calls between the Father and the child on a weekly basis;
(g)That she be able to obtain a passport for and travel overseas with the child, authorities for both parents to obtain documents and information from the child’s school, medical practitioners and the like;
(h)Both parents be able to attend at school functions, noting that this appears to be in direct contradiction to the supervision order sought;
(i)Restraints against the Father removing the child from the Mother’s care, a non-denigration clause, and restraints against exposing the child to parental conflict and family violence. The usual notification clauses are also sought as regards changes to contact details and any illness of the child; and
(j)The Mother also proposes detailed notations as to the circumstances in which the Father would be able to revisit the Orders without being prevented by Rice v Asplund (1979) FLC 90-725 (“Rice & Asplund”) considerations.
The Father’s Proposal
Interlocutory Orders sought
The Father’s first preference is that Interlocutory Orders be made. He proposes that the matter be adjourned for six months to enable him to engage with a pain management clinic and mental health clinic as recommended by the Family Report writer and the Psychiatrist some nine and four months prior to Trial respectively.
In the meantime, he proposes equal shared parental responsibility, the child live with the Mother and he have day time contact with the child in the presence of his partner Ms H or the paternal grandmother.
During the six month adjournment period, the Father proposes that he undertake treatment with a pain clinic and a mental health clinic and complete the stopping family violence course.
The Father also proposes that he undertake a hair follicle test each three months.
The matter would then progress from there.
Final Orders sought
In the event that the court declines to make interlocutory Orders, the Father proposes final Orders in similar terms as the interlocutory orders sought but that after six months with the pain and mental health clinics and on completion of the stopping family violence course then his time with the child start to incrementally increase such that ultimately there be a week about arrangement in place and half school holidays.
He proposes each increase in time with the child be subject to clear hair follicle testing each three months, and if any test is “dirty” that his time revert to supervised time. He also proposes a number of restraints and conditions on his time.
The Father proposes that once an equal time arrangement is in place that he be subject to hair follicle tests each three months for a period of 12 months.
He also proposes Orders for special days, changeovers, travel and the like.
The Independent Children’s Lawyer’s Proposal
During submissions the Independent Children’s Lawyer (“ICL”) provided proposed draft Orders in the following general terms:
(a)The Mother have sole parental responsibility and the child live with the Mother;
(b)The Father have day time only contact, to be supervised by the paternal grandmother or Ms H;
(c)Upon the Father’s successful engagement with a pain management clinic and a mental health clinic, and completion of the stopping family violence course, a Family Report be obtained from Ms E;
(d)That Ms E then decide whether the Father poses a serious risk of harm to the child at that point in time;
(e)In the event that Ms E decides that the father is not a serious risk of harm, the father’s time with the child gradually increase to four nights per fortnight and half school holidays, conditional upon clean drugs tests undertaken at his own expense and his completion of the stopping family violence program.
(f)Provision for special days, changeovers and video calls;
(g)Conditions on the Father’s time including that once the child’s time with him has increased, the ability for the Mother to require the Father to undergo drug tests no more than four times each year at the Mother’s expense;
(h)Restraints regarding drug use, a requirement on the Father to notify the Mother of any interactions with Police or ambulance services, a requirement on the Father to notify the Mother of any car accident whilst child is in the car with him;
(i)The Father to notify the Mother of any changes to his medication;
(j)Circumstances when the Mother may suspend the Father’s time with the child;
(k)Standard travel and passport provisions and standard authorities;
(l)An authority to the Mother to provide the two expert reports to the child’s treating medical practitioners; and
(m)Standard restraints and notifications.
PART FOUR: THE EVIDENCE
Material read by the parties
The Mother relies on the Outline of Case document filed on 21 July 2022 and the documents listed therein.
The Father relies on the Outline of Case document filed on 22 July 2022 and documents listed therein.
The ICL relies on the Outline of Case document filed on 22 July 2022 and documents listed therein.
The court was also provided a detailed joint chronology which was of significant assistance.
The material tendered at the Trial was as follows:-
·Exhibit M1 – Final Orders sought by the Applicant Mother received on first day of trial – missing from Case Outline
·Exhibit F1 – Objections by Father to tender bundle of Mother
·Exhibit F2 – Confirmation of enrolment – K school dated 27/04/2020
·Exhibit F3 - Protection Order dated 09/05/2016 – Respondent Mr J – Magistrates Court Town L
·Exhibit M2 - Photos of Facebook posts from Father
·Exhibit F4 - Medicare Patient History Summary of Mr Warren for service period 13/09/21 to 22/04/22
·Exhibit ICL1 – Proposed Final Orders sought by the ICL
·Exhibit M3 – Revised Proposed Orders sought by the Mother
·Exhibit F5 – Proposed Final Orders sought by the Father
·Exhibit M4 - Tender Bundle from the Mother - Agreed documents to be included following objections.
Witnesses
The Mother
The Mother underwent lengthy cross examination. She was a calm and considered witness. Where she was challenged about her own conduct, such as the failure to give notice of holiday travel to the Father, she made the appropriate concessions.
Parental responsibility
The Mother conceded that post separation the parties had agreed on a school, counselling for the child and that the child attend on one agreed GP. However, her evidence was that those agreements were not easily achieved. For example, her evidence was that it took about six months for the father to agree that the child should have counselling.
The Mother conceded that she took the child to the original mental health referral without the Father’s knowledge. The evidence is that while the counselling occurred and the child’s counsellor has recommended, and the doctor has approved, more sessions, the parties have been unable to agree on the child’s new counsellor and therefore at the time of trial counselling was not occurring.
The Mother gave evidence that if she was granted sole parental responsibility she would be content with restraints preventing her relocating and changing the child’s name.
I accept the Mother’s evidence that the child made disclosures to her about the Police attending the Father’s home. I accept her evidence that she wanted the child to attend counselling and sought the Father’s consent for that. I also accept that she wants the child to see a more experienced practitioner now that the usual counsellor is unavailable, but had been unable to reach agreement with the Father.
Family violence
The Mother did not accept that the child was not present for family violence between the Father and Ms H given the disclosures made to her by the child.
The Mother conceded that the child may be picking up on her own anxiety. She also conceded that the child may not show the same signs of worry in the Father’s care. This does not mean however that the worry does not exist.
The Mother conceded that Mr J had been the respondent to Protection Orders, but nonetheless gave evidence that she trusted him to assist with care of the child. She conceded that she wished the Father to complete a Stopping Family Violence Program but not Mr J.
The Father’s time
Under cross examination, the Mother’s evidence was that she was prepared to accept the paternal grandmother as a contact supervisor if she understood and accepted the risk and put the child above the Father. She expressed concern however that the paternal grandmother may be unable to stand her ground if the Father was in a “certain headspace”.
I make no criticism of the Mother for suspending the Father’s time due to his drug use and positive test results in 2021 and again earlier this year. It is a responsible parent who acts protectively of a child by taking such steps.
The fact that she did not suspend the time earlier indicates to me that she accepts the importance of the father /child relationship and wants to facilitate it. This leads me to find that I can rely on her to act protectively in the future and also to facilitate and encourage the relationship with the father to the extent that it is safe to do so.
Mr J
Mr J’s evidence was unremarkable. I had no reason not to accept his evidence.
As regards his history regarding family violence, this witness made the proper concessions. There is no evidence of family violence in his relationship with the Mother.
The Father
The Father gave evidence that in his view the Mother had blown things out of proportion. He conceded that in the past his drug use had not been good for him, but he had trouble seeing that it was a significant and ongoing issue. He agreed with the proposition that there were periods when he had issues with drugs but outside those periods he said that it was not an issue. His evidence was that it was not an issue at the time of Trial although he said he needed to continue to work in order to avoid a relapse.
Under cross examination, he also agreed with the proposition that the family violence issues with Ms H had been blown out of proportion, that the court had nothing to worry about and there was nothing he needed to do.
He also agreed with the proposition that his mental health issues were limited to those periods of surgery and opioid and illicit drug abuse and the court need not worry at the time of Trial. He also conceded that he needed to keep on top of it and said that he was not perfect. The Father’s evidence was that he saw his psychologist every four weeks. The subpoenaed material however indicated lengthy periods of non-attendance and this was conceded in cross examination.
Under cross examination, the Father accepted the diagnosis of substance use disorder but not the diagnosis of serious mental disorders. His evidence was that his treating psychologist also disagrees with the diagnoses. He had therefore had no counselling or treatment to address those diagnoses at the time of the Trial. The Father’s evidence was that he did not agree that he displayed the traits identified by Dr D. His evidence was that his therapy was more about acknowledging his feelings, such as anger, and controlling them.
He was challenged about telling Dr D that he was a non-smoker and had never used illicit substances in an abusive or dependant manner.[12] He denied that; saying that he did not say it like that. He conceded it was not true.
[12] Psychiatric Report filed 11 April 2022, page 19-20
Counsel for the Mother explored with the Father exactly what illicit drugs he used, whether prescribed or illegally obtained. The Father conceded sourcing prescription drugs illegally and at times crushing and injecting them. He acknowledged steroid use and illicit drug use, the latter on a couple of occasions only, conceding a couple of times before and a couple of times after his attendance at the F Clinic.
The Father also conceded that the prescribed drugs were not working, that he had built up a tolerance and his evidence was that he started using other drugs in order to manage his pain. He denied that he used drugs in order to get high but rather used those drugs to manage pain.
The Father was taken through the Tender Bundle in detail. He disagreed with many of the contemporaneous records from third persons and indeed with his own self reports as documented. He denied changing his story and gave evidence that the records from F Clinic, the Queensland Police Service (QPS), Queensland Ambulance Service (QAS), Queensland Health (as regards prescription shopping) and from the hospital were all at various times incorrect.
Some of the significant matters which the Father now denies or disputes as correct are as follows:
(a)the F Clinic evidence that he told them he had a serious substance abuse addiction;
(b)the two positive hair follicle tests in March/April 2022 which he could not explain;
(c)the Police evidence from 2016 that he presented as under the influence although he blew under the legal driving limit;
(d)the self-report that he was using 200-300mg per day at a point in time. Under cross examination, his evidence was that it was historical, and not his use at the time of the interview, despite contemporaneous notes to the contrary;
(e)the hospital records from 15 May 2018[13] - that he would not have said they were both under the influence of illicit drugs, that it must have been an assumption. He disputed the records even down to telling them whether he was working,
(f)that he did not accept that he stated on 15 May 2018 that he was having a “four day binge”, noting that to do so would mean he accepted he was on a binge whilst he had his daughter in his care;
(g)the denial that he advised the hospital that he and Ms H had separated;
(h)the insistence that photos of drug paraphernalia taken by the Mother at his home when he had the child in his care were not only not his, but in some cases unidentifiable by him;
(i)the refusal to accept the assessment by Medicare of prescription shopping; and
(j)Both the Father and Ms H denied in cross examination that she had ever asked him to do drug tests. That was also contrary to what the Father told his treating therapist.
[13] Exhibit M4, page 18-20
These discrepancies made a significant impression on my assessment of his evidence.
When a discrepancy between tendered material and his own evidence was put to the Father under cross examination he said various things including “I remember it differently” or “that’s not how I remember it” or “I can’t remember what I said exactly”, or “I don’t remember it” or “what you read makes no sense” or “I don’t believe I would’ve” or “that’s what they say” or “not sure, thought I would’ve”, or “I’m not telling lies” or “I am telling the truth” or “I don’t know where this story is coming from” or “I don’t believe so” or “I don’t recall”. When asked if those third persons were lying or had made it up, the Father had little to say.
I was also troubled that although the Father concedes he attempted suicide in late 2020, it is not reflected in his treating therapist’s notes dated 28 January 2021, when he next saw her just a month later.[14] I was also troubled that the Father did not advise the Mother that the Police attended at his home on 31 January 2021. Under cross examination, he justified this failure by saying “that’s my personal life”.
[14] Exhibit M4, page 49
I am of the view that so far as hospital attendances, ambulance and Police engagement are concerned, there is nothing ‘personal’ as it may impact his ability to care for his daughter. To fail to disclose these events is to mislead the Mother and to prioritise his time with the child over the need to ensure that she is safe – not just physically but also psychologically. These failures and his continued resistance reflects a troubling lack of insight on the part of the Father in that he failed, and still failed at the time of Trial, to consider the dangers for his daughter.
So far from the Father intensively treating his issues, at the time of Trial he acknowledged that he did not attend counselling between February 2021 and October 2021 being an eight month gap. As noted earlier, the counselling notes in January 2021 do not reflect that he talked to his psychologist, Ms G, about his suicide attempt. The records then show that the Father attended on Ms G on or about 13 October 2021 and 11 November 2021 but he did not attend again until on or about 8 March 2022 and then 31 March 2022. Far from regular attendance and treatment that is another long gap – this time a four month gap.
Where a person is struggling with addiction and self-harming behaviours, regular and consistent engagement, and complete honesty, with the treating therapist is essential. That is clearly lacking in the case of the Father and gives his therapist no opportunity to provide the support and assistance required. This also means that the views of his therapist are of little assistance as they are based on incomplete data.
While the Father gave evidence that he was aware that he needed to always be on top of his issues with substance abuse and that it was something that he would need to be vigilant about, he was not attending regular counselling or going to ATODS or regular AA type meetings.
Under cross examination, the Father was also vague about identifying drugs, drug paraphernalia or knowing that his friend was a drug user. This was literally unbelievable for someone with his lengthy history and admitted use of both illegally obtained prescription and other drugs.
Under cross examination, the Father’s evidence was that neither he nor Ms H knew there was a Protection Order in place. Ms H’s evidence was to the same effect. This again is hard to believe as personal service of those Orders and applications are required.
The Father’s evidence was that he had not done a stopping family violence course and that he did not believe that he needed to do so. He did not accept the evidence set out in the tendered material which reflect family violence with his current partner.
The Father was an unimpressive witness. He minimised his issues with drugs and violence and frankly a large part of his evidence was simply unbelievable for the reasons outlined above.
Ms H – the Father’s partner
Ms H was supportive of the Father however she was an unhelpful witness. At times she appeared reluctant to answer questions and often provided long answers that did not directly answer the question that had been asked.
Like the Father she tended to minimise the issues. For example, she described the Father as “surprised” and “upset” that she had called the ambulance after finding him passed out on 13 August 2020, and yet concedes he threatened to throw a rock through their window. This description of his presentation is also despite the Police report describing the Father as “verbally aggressive” and “threatening to assault QAS members if they arrived”.[15]
[15] Exhibit M4, page 36
Like the Father, she denies that they were separated at this time, however the Police records reflect that she and the Father both told the Police (and he also told the hospital) that they were separated. She reported the records in that regard as “weird” and denied that she would have said they were broken up.
Like the Father, she also denies that he threatened suicide in late 2020, whereas the Police records reflect that she told them that the Father had “threatened suicide and had taken prescription medication and subsequently passed out”.
Ms H denied telling the Police that there had been family violence involving mutual shoving. She expressed surprise that it was reported to Police that she had slapped the Father describing it as “mind blowing”.
Ms H would not concede that she thought the father may have overdosed, saying rather that she thought maybe he had taken too much of his prescription medication.
She gave evidence that there was a lot going on that day, that she “stood back from it” and did not go to the hospital.
The counselling records of 13 August 2020 reflect the Father reporting that Ms H wanted him to take drug tests and being resentful of that. Under cross examination, however, Ms H gave evidence that the Father had offered to take random drug tests.
Although she agreed that she had attended a few doctors’ appointments with the Father, her evidence was that she did not know about the large volume of prescribed drugs obtained by the Father in early 2019, and did not recall any specific drugs.
Ms H’s evidence was that she did not need the Father to do drug tests; that she would be able to see for herself if he was using. This is the woman who called emergency services on more than one occasion and where those service providers have recorded that she made disclosures to them about drug abuse and family violence. It made no sense that she was backing away from those disclosures and actions, as those are the very actions and disclosures that would have persuaded this court that she was a protective factor for the child.
Under cross examination, Ms H also disagreed with the records from 2020 about the Father’s suicide attempt. I was troubled by her evidence that she had seen the Father take drugs of addiction on only one or two occasions and that was not an issue for her despite the history of drug misuse.
Ms H also disagreed with the records from 31 January 2021. The events of that day led to the Police obtaining a Protection Order on her behalf. Her evidence was that “there was no violence” but she also said that the Father “shoved” her back, shoved past her, and “possibly a few more words”, threw water at her and told her to calm down. Ms H denied that he called her a “cunt” and she denied talking to the Police. This was all contradicted by the tendered records and reflects a lack of understanding that the described behaviour fulfils the definition of family violence in any event.
As regards her evidence that she was not aware that a Protection Order existed, she struggled to answer questions around this and would not concede that she told the Police that she was fearful for her safety and supportive of the Order. Ms H’s evidence under cross examination was rather that she was fearful for the Father and that she had never experienced family violence at the hands of the Father.
Because of the minimisations and evasions, I found Ms H’s evidence unpersuasive and where it is contrary to the contemporaneous reports I prefer the independent evidence.
I was also troubled about her distinction under cross examination between a drug user and a drug abuser. Ms H struggled to answer the questions, but ultimately gave evidence that using marijuana or drugs of addiction say once a year was “probably” not a problem. She gave evidence that people do it all the time, that it’s highly sought after, and that it’s sold so she presumes people use it. Setting aside the validity of such a distinction, this ignores that the Father has an addiction that he must manage for the rest of his life.
I was also troubled that she did not accept the diagnoses of Dr D or feel that the Father needed to undertake a family violence program. To say that this is not the man that she sees but also to have called the Police and ambulance to their home on more than one occasion is contradictory to say the least.
When challenged about specific events that Ms H had conceded – such as struggling with the Father when he tried to take her phone – she said that was a “one off incident”. When it was put to her that the child had disclosed to her mother that Ms H and the Father argued, her evidence was that they did not really have arguments. Even on her own evidence that is not true.
I find Ms H’s evidence about the father and their relationship to be simply unbelievable. Throughout her cross examination, she consistently avoided and did not answer questions. Ms H did not accept the independent evidence in the form of contemporaneous notes made by emergency services.
It was suggested in submissions that the Father had simply not told her everything, however I do accept that is the case, or at least not solely the case. As with the Father, there were just too many discrepancies between her evidence in the witness box and what the Police and hospital records reflect that she told them at the time. There were also discrepancies between her own and the Father’s evidence at times.
For all those reasons, Ms H was an unimpressive witness. I formed the view that I could not rely on her to be honest with this court or the Mother about the Father and his conduct. I formed the view that Ms H will say whatever is necessary to protect the father and support him in his application. I am of the view that this is troubling even in a partner but dangerous in a contact supervisor.
This means that I cannot consider Ms H as a contact supervisor, as I cannot be satisfied that she will report honestly to the Mother. I am of the view that she will prioritise the Father over the child’s safety and well-being.
Ms M – the paternal grandmother
Under cross examination, there were several times the paternal grandmother gave evidence that she did not remember details or events. When it comes to events such as the Father overdosing or attempting suicide and Police and ambulance involvement that is very hard to believe.
Under cross examination, the parental grandmother gave evidence that she had not heard the details of the Father’s suicide attempt in 2020 before it was put to her by counsel. However the exact detail that was put to her was set out in her affidavit filed 7 September 2021.
I do not accept her explanation that she meant she did not know about it at the time it occurred. The parental grandmother’s evidence was very clear that she was hearing the detail for the first time under cross examination. That was blatantly untrue.
The paternal grandmother’s evidence was that the Father had not told her about his struggles in any detail and on her evidence there was much she did not know about his history.
Under cross examination, the parental grandmother’s evidence was to the effect that when they did talk she could not now remember any specifics of those conversations. It was put to her, and I agree, that it is odd that she does not recall such significant and worrying conversations or the events of 13 August 2020 when she went to the Father’s home after the ambulance was called.
There were some lengthy pauses in her cross examination and on one occasion she conceded that she did not know how to answer the question.
Like the Father and Ms H, the parental grandmother did not believe that the Father needed to do a Stopping Family Violence Program and her evidence under cross examination was that she did not have any concerns about him now.
Because of all those matters I formed the view that the parental grandmother’s alignment with the Father prevents her from being a reliable historian.
I formed the view that the parental grandmother was so anxious not to say anything to the Father’s detriment that at times she chose to say nothing at all. Whilst this is understandable, coming from a loving and supportive Mother, it means that I would not be able to rely on her as a contact supervisor.
The Psychiatric Report writer - Dr D
Dr D is a psychiatrist of many years’ experience. Her expertise was unchallenged. Dr D’s report was filed on 11 April 2022 although the assessments were completed in December 2021.
Dr D gave evidence that the Trial affidavit material had not changed her opinion, but rather had reinforced it, as did the two positive hair follicle tests in March 2022, though she conceded that there could be a number of explanations for those results.
Dr D expressed concern about the Father being prescribed medical marijuana in circumstances where he had a history of substance misuse together with diagnoses of serious mental disorders. She saw this as increasing the risk for the child.
Her opinion remained that the Father suffered an extremely complex condition with a lot of psychological issues at play and that his treatment should be managed by a specialist pain clinic. In her opinion, a pain clinic was better placed to support the Father than a GP, as they would be able to monitor him for substance abuse as well as addressing his diagnoses.
Dr D expressed concern that any psychoactive substance, such as the medical marijuana, will impact on his mental state, make him more impulsive and could impact on the child’s physical and mental state. Regardless of being prescribed, her opinion was that the Father’s use of medical marijuana needed to be monitored by a pain specialist teams.
She did not support the idea of the Mother being the gatekeeper; reviewing test results and deciding whether the Father’s time with the child needed to be suspended or increased. Dr D expressed the opinion that such a role would place the Mother and child at increased risk. She called it a “risky move”.
Dr D was asked to comment on the Father’s whole history, including the different drugs used by him, the family violence records, the three attendances at the F Clinic for rehabilitation and the four motor vehicle accidents, in the context of the Orders sought by the Father and noting the legal fees incurred by the Mother. Dr D’s opinion was that these matters were examples of the traits of serious mental disorders.
She expressed the opinion that even supervised time between the child and the Father that was not professionally supervised placed the Mother and child at risk. Dr D recommended that contact between the Mother and the Father be eliminated.
When asked to consider whether the Father spending six months with a pain specialist would be enough, Dr D agreed that it could be, but there would need to be evidence that there had been no violence or manipulation in that time.
She agreed that the Stopping Family Violence Program could mitigate risk. She expressed the opinion that the Father would benefit from long term Dialectic Behaviour Therapy (DBT) over a 6 – 12 month period.
She supported the Father having contact with the child during that time, but in a positive and nurturing environment and guided by the child’s psychologist.
Dr D recommended a substance use disorder specialist to support the Father to overcome his addiction.
So in summary she recommended a multidisciplinary team for the Father.
Her opinion is that simply undertaking counselling for substance use in a vacuum would not effectively deal with his issues; that he would have a higher risk of relapse. She advised that effectiveness of treatment would depend on the Father’s insight and acceptance of his condition but that the challenges for him would be lifelong.
Dr D’s evidence was that if the Father did not accept the diagnoses and failed to address all aspects of his conditions then his prognosis was poor.
Counsel for the Father sought to question Dr D’s opinion, based on a number of suggested errors. I shall address only those of significance to her diagnoses as follows:
Psychological Support
Counsel for the Father questioned Dr D’s statement that the Father was not accessing psychological support when the Father is seeing Ms G, a psychologist. The records reflect however that far from any regular attendance the Father attended at best on a monthly basis and there were gaps of eight months and four months respectively in the lead up to the Trial. Further, Ms G is not working with the Father’s pain management team as there is no such team.
So the suggestion that the Father was engaged in any regular or intensive therapeutic support is incorrect. I am of the view that this does not undermine the validity of Dr D’s opinions.
Lack of long form testing
Dr D gave evidence that the fact that she had done the shorter form psychometric testing for DSM-5 did not undermine the validity of her diagnoses. Her evidence was that those diagnoses can be made without that testing.
Her evidence was that the testing simply reinforces the diagnosis and provides additional evidence. I accept that evidence.
Family Violence Orders vs Events
Dr D’s report of the Father’s criminal history was incorrect in that she referred to three family violence “Orders”. In fact the Police records do not show three Protection Orders but rather show that the Police attended at his home for what was reported as three family violence events. There was one Protection Order. That Protection Order was made on a Police application.
In cross examination, both the Father and Ms H deny family violence in their relationship. As discussed elsewhere in these reasons, both the independent records and their own evidence under cross examination say otherwise.
Dr D’s evidence was to the effect that it was the pattern of behaviour that is relevant, rather than any legal consequences.
I am not troubled by the error as having heard her evidence I am satisfied that it was an error in terminology and that she was not mistaken as to actual events.
Victim of Assault v Perpetrator
When it was pointed out that the Father was the victim rather than the perpetrator of assaults, Dr D expressed that this too could tie in with patterns of serious mental health behaviours or connections. Having heard her evidence I accept that opinion.
The Father’s Childhood
Dr D acknowledged that the Father reported an unremarkable childhood and that there was no evidence of a conduct disorder in his childhood.
Dr D did not agree that this meant that she could not uphold the diagnosis of serious mental health disorder and maintained her opinion. Having heard her evidence I accept her opinion.
In Conclusion
Dr D did not accept that her diagnoses were based on mistaken information and gave evidence that it was the patterns of behaviour that were important. Certainly, there is a plethora of evidence that the Father has engaged in antisocial and drug affected behaviours over a lengthy period of time.
The pattern of behaviour that she relied on to make those diagnoses included the Father’s conceded serious substances use, drugs of addiction, injecting opioids and abusing drugs of addiction. It also included the family violence events referred to in the Queensland Police Service material and the motor vehicle accidents.
Her opinion was not swayed during the extensive and thorough cross examination by counsel for the Father. I found her a persuasive witness.
It was suggested that I should not accept Dr D’s diagnosis, at least of a serious mental disorder, as DSM-5 criteria required a childhood serious mental health condition. This was put to Dr D and she addressed it confidently.
I accept her opinions as to the Father’s diagnoses of serious mental health disorders and substance use disorder.
I am also of the view that the recent positive drug test results throw into doubt the suggestion that the substance use disorder remains in remission.
The Family Report Writer – Ms E
The Family Report was filed on 11 October 2021. Ms E was questioned as to whether her opinion had changed due to the two recent positive hair follicle test results and Dr D’s report. Whilst she conceded that those results indicated a “slip” or “relapse” on the part of the Father, her recommendations were less draconian than those of Dr D.
Ms E expressed disappointment that the Father was using medical marijuana, as nine months earlier she had recommended he attend a pain clinic in an attempt to wean off prescription medication. She gave evidence that although prescribed, medical marijuana remained a mind altering drug that impacted the ability to drive and ability to parent. She expressed concern about the Father using this drug when he had a substance use disorder.
She gave evidence that because of the Father’s history she was not surprised by the diagnoses of Dr D. She gave evidence that a pain clinic would address the Father’s issues at the source rather than simply masking the symptoms.
When discussing dialectical behaviour therapy for the Father she described it as the “gold standard” for treating a serious mental health condition. Her opinion was that Dr D’s report would need to be made available, and possibly her own, to both a pain clinic and for effective mental health treatment. She endorsed the Father engaging in the Stopping Family Violence Program.
Ms E also supported a multidisciplinary approach for the Father and further expressed the view that it would not be a quick fix; that no end date could be predicted.
Ms E was of the view that the Father’s refusal to accept the diagnoses, the family violence in his relationships and the Father’s failure to educate himself about those matters, all enable him to maintain that behaviour. She expressed the view that was a significant risk.
Ms E was of the opinion that the Mother re-partnering would have also had an impact on the child.
Ms E expressed that stopping the child’s time with her father or having that time at a formal supervision centre would not be in her best interests.
Ms E was supportive of the paternal grandmother as a contact supervisor, provided that she accepted the Father had used illegal drugs and that he poses a risk to the child. Unfortunately, this was not the evidence we heard from the paternal grandmother.
In summary, Ms E recommended a three pronged approach to occur simultaneously as follows:
(a)the Father to attend a mental health clinic for serious mental health disorders and substance abuse treatment;
(b)the Father to attend upon a pain clinic for management of his chronic pain; and
(c)that this treatment go hand in hand with spending time with his daughter. Her proposal being that the time be supervised by the paternal grandmother.
PART FIVE: FINDINGS
The Mother
I accept the Mother’s evidence that her intention is not to destroy the father/child relationship. The Mother facilitated time long beyond what many parents would have done, despite finding the Father passed out with the child in his care and with implements in the house. While the Father may split hairs about being “unwell” and on medication, if a parent is unable to be roused when a young child is in their care then that is a serious issue indeed.
The Mother’s evidence was that the Father insisted that they take turns taking the child to counselling. Counsel for the Father suggested in submissions that the Mother was reluctant to describe the Father’s conduct around these events as proactive. I am, however, similarly reluctant and am of the view that he was not proactive given his initial long delay in agreeing to counselling.
It was also suggested to the Mother that it was not a significant matter for there to be gaps between child counselling appointments due to the Father’s other commitments. Given the views of the family report writer about impacts of recent changes on the child, that the child had disclosed to the Mother that she had seen the Police at the Father’s home on multiple occasions and the disclosure that she had seen the Father and his partner arguing, it is my view that it is a real issue if the child cannot attend regular counselling as recommended by her treating therapist.
The Mother’s evidence is that she and the Father have difficulty agreeing on certain things and based on that evidence I share that view.
I accept the Mother’s evidence that the child told her she had seen the Police at the Father’s home on multiple occasions. I accept the Mother’s evidence that she did not know the Police had attended at the Father’s home until the child told her. Children are however notoriously unreliable historians. The reliability of the child’s evidence is also undermined by the mother’s concession that she had asked the child if she had seen the police on more than one occasion.
Due to the mother’s history of acting protectively of the child, I am of the view that she will also act protectively in the event that Mr J perpetrates family violence.
The Father
Questions are raised as to the Father’s credibility in the psychiatric assessment of the parties. Dr D reports that she repeatedly asked the Father to be truthful in interview and states:
When collateral information was assessed against his interview statements there were inconsistencies that informed the psychometric testing interpretation.
Dr D sets out the Father’s self-report to her as regards his criminal history[16] where he reported that he had not been charged and had no previous convictions. She goes on to report:-
Contradictorily, the information received from QPS suggests the following criminal record:
•Three DV orders between [the Father] and his current partner [Ms H]
•Reports of several car accidents (02/03/2021 – [The Father] aggrieved; 15/02/2021; 26/12/2020; 18/12/2020 – [The Father] aggrieved; 11/12/2019; 25/06/2018
•Reports of assault against [the Father] (12/06/2019; 05/05/2018)
•Report of Drink Driving 29/09/2016 (0.026)
•Report for contravening direction of requirements 10/03/2021
[16] Psychiatric Report filed 11 April 2022, page 19
Similarly, he minimised or misreported his drug use[17] self-reporting to Dr D a sanitised version of his history when compared to his self-reports to ATODS and the F Centre.
[17] Psychiatric Report filed 11 April 2022, page 19 - 20
Dr D’s concerns were in part about the Father’s impulsivity. This concern is supported by the Father’s at times childish conduct – for example sticking his tongue out at Mr J, noting this was unchallenged evidence.
For the period of about nine months prior to the hearing, the Father had time to consider the advice of the Family Report writer. For the period of about four months prior to the hearing, the Father had time to consider the advice of Dr D. He made no efforts to link into a pain clinic and a mental health clinic. Rather, he is now on medicinal marijuana.
The Father’s evidence in the witness box was to the effect that while he accepted the diagnosis of substance use disorder, he did not accept the diagnoses of either serious mental health disorder. The submission was later made by his counsel that he accepted the diagnosis of serious mental health disorder however this was contrary to his own evidence. Further, his failure to proactively link into the supports recommended by the experts prior to Trial affirms that.
The Father’s evidence at the time of Trial was that the Mother was not supportive of him during the relationship. This is contradicted by documents in the Tender Bundle that are contemporaneous with the relationship and reflect that he reported her as being supportive. He was reluctant to concede this at Trial as evidenced by the long pause.
I was troubled to see that the Father had been prescribed and was taking medical marijuana. That concern was shared by both of the expert witnesses. It says much of the Father’s state of mind that he would accept such a prescription when he has a history of abusing prescription medication and where he had not first tried to work with a pain clinic as recommended by Ms E.
The Tender Bundle[18] reflects that the Father told the hospital on one occasion that he did not have a mental health history, and his evidence under cross examination was that he didn’t need to be there. While he denied making up stories to get out of things, he conceded that he had done so on that particular occasion. By his own admission he says what needs to be said to get what he wants. I therefore accept the submission that the Father has likely also not been completely open with his partner Ms H or his Mother about the struggles he has faced.
[18] Exhibit M4, page 38
I do not accept the Father’s evidence, or indeed that of Ms H, that the records from Queensland Police Service, Queensland Ambulance and the Hospital are all littered with errors. If there was one occasion where they disagreed with the subpoenaed evidence I might be more open to their evidence, but it is multiple occasions. That includes occasions where the Father and Ms H have both told those services the same thing at times. And despite disagreeing with the evidence contained in many of the documents in the Mother’s tender bundle, the witnesses who created those documents were not called and challenged. I therefore do not accept their evidence about those matters.
Based on those failures, I am also concerned that the Father may not have been honest with his own GP prior to being prescribed medicinal marijuana.
The Father was the subject of a letter from Medicare dated 2 April 2019[19] which advised that he had been identified under the prescription shopping programme for the period 1 January 2019 to 31 March 2019. This identified his attendances on nine different doctors for multiple prescriptions. The Father did not accept that evidence, his explanation that he had seen multiple medical practitioners at the hospital and maybe one or two others. I did not accept that evidence and am of the view that he was again minimising his drug abuse.
[19] Exhibit M4, page 27
The Father said that he could not see what the Mother was troubled about. He has said he has it under control and that should, in his view, be enough. He was quick to defend – for example when members of the public pulled him over in 2016 his evidence was that he did not believe he had been swerving all over the road. This was despite independent evidence in the Police records that more than one person had reported that he was driving erratically, that they had pulled over, taken his keys and remained until the Police arrived and that the Police report itself describes his intoxicated appearance.[20] His evidence under cross examination was that he might have been distracted and that was “not how he remembered it”. He may not have been over the limit as regards alcohol. Knowing what we do of his abuse of illegal and prescription drugs, this appearance is consistent with drug use - whether prescription or illegal drugs. His efforts to minimise this incident when he was in the witness box did him no credit.
[20] Exhibit M4, page 7
At one stage in his evidence, the Father stated that if he did not remember something then it did not happen. Later in his evidence he sought to retract that statement. However he nonetheless disputed much of the independent evidence. This was a telling statement in conjunction with his failure to attend regular counselling or to commence treatment at a pain clinic. I am of the view, supported by his own evidence under cross examination, that the Father does not accept that he needs help.
The Father at times presented as sincere and genuine. I have no doubt that he loves his daughter very much. I believe he was trying to give a good account of himself. I formed the view however that he was a poor historian, likely because of his drug abuse, and that he has reinvented history so that he is not a drug abuser but rather a victim of an addiction to prescription drugs only; that he used only to manage pain and never to get high. I do not accept that version of the Father, as it too often contradicted not only by the documents in the tendered material but also by the Father himself.
Despite the Father’s evidence that he is now in control of his drug use, there is no independent evidence of how he achieved that, or indeed if he achieved it. There is only his word and the absence of evidence to the contrary. By that I mean that since January 2021 there have been no attendances at his home by QAS or QPS. But that also follows a letter sent in December 2020 by the Mother’s lawyer addressing her concerns and then legal proceedings were commenced. I accept however that the lack of evidence is not evidence that no further events occurred, only that if they did occur they were not reported.
The Father conceded that he did not follow the 2017 plan from ATODS to wean off prescription drugs. He conceded that while he attended at rehabilitation on three occasions, on each occasion he used illegal drugs or misused prescription again after he was discharged. He did not accept the diagnosis or recommendations of the expert psychiatrist Dr D or the Family Report writer Ms E. He did not link in with a pain clinic or a specialist mental health team. He did not provide a report from his treating psychologist as to how she addressed the issues he faced with chronic pain or drug dependency.
The Father appears to suggest that he had an epiphany of some sort after his drug overdose on in 2020 and yet he was again involved in a Police family violence call out on 31 January 2021 after what he conceded under cross examination was an all-night session – with the Police attending at 6.00 am.
Whilst there could be explanations for the two positive hair follicle test results in April 2022, the Father did not present any evidence to this court other than his perplexity and his suggestion that it may be related to prescribed medication taken some six months earlier. That explanation is far from reassuring because the passage of time makes that a most unlikely explanation.
For all those reasons, where the evidence of the Father is contrary to the independent evidence from the hospital or the Police or the ambulance service, then I prefer the evidence of that independent source.
Because of the numerous denials by the Father and the failure to accept evidence from multiple independent sources, I prefer the evidence of the Mother as regards those events. In particular I accept her evidence that when she attended at his home to collect the child on 15 May 2018 the father was passed out, the child was distressed and there was drug paraphernalia out in the open where it could be accessed by an unsupervised child. For those same reasons, I do not accept the Father’s evidence that he did not do drugs whilst the child was in his care. I prefer the independent records that he had been on a four day binge.
There were discrepancies noted in cross examination between his affidavit evidence, the contemporaneous reports in the Tender Bundle material and what he told Dr D. The Father’s evidence that all those records including records of his own reports to those sources were wrong, are just too numerous to discount. Based on all those matters, I am of the view that the Father is at best an unreliable historian, possibly due to his long history of drug abuse.
Ms H
I was very troubled about Ms H’s differentiation between drug use and drug abuse – as if the frequency of use somehow makes it better. It is still illegal, the person taking drugs is still under the influence of mind altering drugs, that person has come in contact with known criminals to buy those drugs, these people come to the Father’s house and use those drugs there – as has the Father himself. All of those are risk factors for the child in the Father’s home whether it happens occasionally or every day.
As the Father accepts that he has a substance use disorder such distinctions are even more troubling.
I was impressed that the Father had come a long way over the course of these proceedings, but he still has a long way to go and needs a partner who is honest and unflinching in setting the rules in their home for the sake of the Father, and more importantly for the sake of the child.
The fact that Ms H is not taking a strong and determined stance means that she accepts his views about the drug use and family violence being a non-issue.
Family Violence
I do not accept the evidence of the Father or Ms H that there was no family violence in their relationship. I do not accept that evidence because it flies in the face of multiple Police attendances in their home for that purpose, the records of what Ms H told the Police on those occasions, and indeed the Father and Ms H’s own evidence about their behaviour including shoving, name calling and the tussle over Ms H’s phone.
Having heard both parents in the witness box, I prefer the Mother’s evidence that she was subjected to family violence during the relationship. Although she was not cross examined in detail about family violence, the Father’s evidence was far from satisfactory about this issue. I therefore do not accept the evidence of the Father that there was no family violence in his relationship with the Mother.
PART SIX: THE LAW
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”). I will be generally guided by s 60B which sets out the objects of Part VII of the Act and the principles underlying it.
In making Parenting Orders, s 60CA and s 65AA provide that the best interests of the child are the paramount consideration.
Section 60CC prescribes the various “best interests” considerations that the Court is obliged to consider in arriving at its determination.
Section 60CC(2) sets out the two primary considerations, described by Justice Brown in Mazorski v Albright (2007) 37 Fam LR 518 as “twin pillars”. I am required to give greater weight to the second of the primary considerations.
The “additional considerations” are set out in s 60CC(3) and I am required to consider all of those issues including parental capacity, the extent to which each parent has fulfilled their parental responsibilities cultural matters and family violence. I must also ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interest being treated as paramount (s 60CG). No greater weight is placed on any particular additional consideration.
In M v M [1988] 166 CLR 69, the High Court held that a parenting Order ought not be made if such Order exposes the child to an “unacceptable risk” of harm.
The relevant principles in assessing whether a child would be exposed to an unacceptable risk of psychological and/or physical harm were recently considered by the Full Court in Isles & Nelissen (2022) FLC 94-092, who agreed with and adopted Austin J’s dissenting judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212 as being the correct statement of the law. Justice Austin’s judgment includes the following:
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
…
142.As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
(Emphasis in the original)
There is an obligation on a trial judge to evaluate not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N v S (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier & Hepburn (2006) FLC 93-303, Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96] and Deiter & Deiter [2011] FamCAFC 82 at [54].
I am also assisted by McClelland DCJ[21] who summarised the following further principles:
39. …
(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”.
PART SEVEN: APPLICATION OF THE LAW TO THIS MATTER
[21] Hickson & Matthew [2022] FedCFamC1A 161
S.60CC(2) The primary considerations are:
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
It is undisputed that both parents love the child and that she loves them. The issues that are significant here and which are the focus of this judgment are the child protection issues. By that I mean family violence and drug abuse and misuse on the part of the Father and in his household.
I have made findings about the family violence. The Father and Ms H both deny and minimise the violence that has occurred. The Father has undertaken no treatment or courses because he simply does not believe that he needs to do so. As a consequence I am satisfied that this remains a risk factor in the Father’s home.
Similarly with his illegal drug use and prescription drug misuse, the Father has had no treatment for that since the failed attempts at the F Clinic.
It is somewhat troubling that the Father disengaged with the ATODS plan to wean him off drugs. That was in 2017, but he has not worked consistently with any service to ensure that he remains drug free since then. On top of that he has ignored the advice of the Family Report writer and instead now has a prescription for medicinal marijuana.
While the Father says that he will need ongoing management to remain drug free, his commitment to therapeutic support has been far from consistent and that therapist is not fully informed about the detail of the Father’s issues.
As a consequence of those matters and my findings made earlier in these reasons, I am satisfied that this remains a risk factor in the Father’s home.
As regards the Mother’s home I am satisfied that there is no risk in that home. The Mother has acted protectively of the child though suspending the Father’s time and filing these proceedings. She has a proven capacity to meet the child’s day to day needs.
S.60CC(3) The additional considerations are:
S.60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Given the child’s young age her wishes carry little weight.
S.60CC(3)(b) The nature of the relationship of the child with each of the parents and other persons (including any grandparent or other relative of the child)
The Family Report writer reflects that the child speaks positively and happily of her Mother.
While she enjoyed her time with the Father, she made disclosures to the Family Report writer of the Father being angry with Ms H and hitting her and also hitting the child herself. She also talked of the father yelling at her for nothing. [22]
[22] Family Report filed 11 October 2021, paragraph 120 & 122
With such a young child, and one who has been in the midst of high conflict, these disclosures are concerning and relevant to my decision.
S.60CC(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions; to spend time with the child; and to communicate with the child.
I am satisfied that the Father spends time with the child whenever he can. I am however concerned about the delay in agreeing to her attending at counselling.
S.60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
This is not a significant factor in the decision making process.
S.60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
The Family Report writer is of the view that it would not be in the child’s best interests for her to either spend no time or to have only supervised time with her Father. She supported the paternal grandmother as contact supervisor provided that she accepted that he was a risk.
This view must however be secondary to the need to keep the child safe from harm.
S.60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
If I order professionally supervised time then there will be a financial impost on one or both parents. Both parents are however in paid employment.
S.60CC(3)(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
The Mother has been the primary carer for the child post separation and has a proven capacity to meet her needs on a practical and on a psychological level.
The Mother’s evidence under cross examination was that, in addition to ordered or agreed time, she facilitated spontaneous calls from the child to the Father on a handful occasions. The Mother’s evidence was that the child access to a number of photos of the Father on display and moved them around at will.
The Mother has facilitated the Father’s relationship with the child despite his struggles with drug abuse and misuse. I accept the submission that the fact that she has done so is to her credit. I am satisfied that she will continue to facilitate the child’s relationship with the Father as and when appropriate.
The Father on the other hand has struggled and my findings as regards family violence and his drug abuse lead me to have concerns as to his capacity to meet the child’s meeds on either a practical or on a psychological level.
S.60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
The child is only six years old.
I accept that the Mother has had reason to be troubled about the child. The Mother’s affidavit evidence that the child had a “busy” head, that the child spoke of seeing the Police and witnessing family violence at her father’s home, and that the child was herself displaying distress and some aggressive behaviours such as kicking, hitting and punching at school are all good reasons for her to be troubled.
The suggestion that the Mother as primary carer had the most influence on the child’s development shows limited insight and in no way lessens the concerns about the child.
S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
The Mother’s evidence at Trial was that the Father paid approximately $240 per month by way child support and the regularity with which is paid varied. The unchallenged evidence was that there was about $540 in arrears in child support due by the Father.
The parties share equally in the school fees and in the costs for the child to attend a psychologist.
There has been some delay in re-engaging the child with another psychologist after the current therapist went on maternity leave. There has been some dispute as to who the child should see - between the first available as opposed to the most experienced. It is unfortunate that this means the child has not recently had that benefit.
S.60CC(3)(j) and (k) Any family violence involving the child or a member of the child’s family and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the legislative factors.
I have already addressed the issue of family violence in detail and have nothing to add here.
S.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
I am urged by the Mother to make final Orders that bring this matter to an end. The ICL also proposes final Orders but seeks to delegate judicial power to the Family Report writer as regards if and when the Father should spend increased and unsupervised time with the child.
The Father proposes interlocutory Orders and a continuation of this litigation, allowing him further opportunity to address his issues, having failed to do so in the lead up to Trial despite the recommendations of Family Report writer and Psychiatric Report writer.
S.60CC(3)(m) Any other fact or circumstance that the court thinks is relevant.
I have nothing to add.
PART EIGHT: DETERMINATION
Interlocutory or Final Orders
Firstly I will consider the Father’s proposal for interlocutory Orders, with the matter to be adjourned for six months to enable him to attend at a pain clinic and mental health clinic, and complete the Stopping Family Violence Program. He also proposes to undertake three monthly hair follicle tests. During that time he proposes that the child live with the mother and spend time with him in the presence of his mother or his partner.
I was referred to the case of Geisler & Geisler [2018] FCCA 3959 to support the Father’s proposal. This case supports the principle that justice is of greater import than finality. Whilst I agree with that principle, in this particular case I am of the view that justice is best served by the making of final Orders.
I do not propose to make interlocutory Orders for the following reasons:
(a)The fact that the Father returned two positive hair follicle tests earlier this year;
(b)The fact that the Father has attended rehabilitation on three occasions and has continued to misuse drugs after each attendance;
(c)The fact that the Father does not accept the diagnoses of Dr D other than the substance use disorder;
(d)The denial by the Father that his conduct has at times amounted to family violence and the consequent failure to undertake the Stopping Family Violence Program.
(e)The view of the experts that unless the Father accepts the diagnoses and the need for help that the recommended treatment is unlikely to succeed; and
(f)The Father has had ample opportunity to start the Stopping Family Violence Program and enrol with a pain clinic and mental health clinic. He has chosen not to do so.
All those factors indicate that the Father’s road to recovery is likely to be long and troubled. The child deserves finality and certainty. In the event that the Father is successful in undertaking the programs and the course, then he can provide confirmation of that to the Mother along with the clear hair follicle tests. I have every confidence that she will consider such evidence and propose changes in the care arrangements if she deems that to be in the child’s best interests.
The Orders proposed by the Mother also include notations reflecting that she would not oppose the matter returning to court in the event that the Father does actually comply with the recommendations of the experts in this matter.
Parental Responsibility
In accordance with s 61DA(1), when making a Parenting Order, the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child, or family violence. In this case I have made findings that the Father has perpetrated family violence against the Mother and also against his current partner. This is therefore a matter where the presumption of equal shared parental responsibility does not apply.
As the presumption of equal shared parental responsibility does not apply, I then move to consider whether I believe it is nonetheless in the best interests of the child to make an Order for equal shared parental responsibility.
The submission that there are not many decisions to be made when it comes to parental responsibility does not lead me to consider that equal shared parental responsibility is appropriate. It takes only one significant decision to be argued for months on end, such as counselling for the child, to cause damage to a child.
I am not prepared to make an Order for equal shared parental responsibility for the reasons outlined as regards the evidence and findings but in particular:
(a)The Father’s history of drug misuse, together with his repeated failures to successfully complete rehabilitation;
(b)The findings I have made that the Father has perpetrated family violence against both the Mother and his current partner;
(c)The Father’s failure to accept that his conduct amounts to family violence and the failure to engage in a Stopping Family Violence Program;
(d)The Father’s failure to comply with the recommendations of the Family Report writer to attend a pain clinic;
(e)The Father’s failure to disclose to the mother that the police attended at his home in January 2021 on the basis that it was “personal”;
(f)The Father’s long delay in agreeing to a counsellor for the child in the first place;
(g)The parties more recent inability to reach agreement on who should now be the child’s new therapist;
(h)My findings that the Father has not been honest with this court or the Mother, which mean that there is a real risk that he would not be honest with the Mother in future; and
(i)The Father’s choice to use medicinal prescribed cannabis.
In the circumstances outlined above, I am of the view that it is not in the child’s best interest that the parents have equal shared parental responsibility.
For those same reasons I am satisfied that it is in the child’s best interest that the Mother have sole parental responsibility, with the restraints that she conceded as to relocation of the child and the child’s name.
Living Arrangements
Having made that decision I am not required to consider whether to make Orders that the child spend equal time or substantial and significant time with each parent. I am to make orders that I deem to be in the best interests of the child and reasonably practicable.
I am satisfied that the Father is an unacceptable risk of harm to the child for the following reasons:
(a)He has a triple diagnosis of mental health issues which he does not accept;
(b)Although Dr D was of the opinion that his substance use disorder was in remission in December 2021, he has returned two positive hair follicle test results since then;
(c)His failure to accept and act on the recommendations of the experts as to treatment;
(d)His history of attendance at rehabilitation and then engaging in further drug use;
(e)He is the respondent to a Protection Order application made by the Police on behalf of Ms H;
(f)Medicare found him to be a prescription shopper in 2019 and his resistance to that description;
(g)My findings that he perpetrated family violence against both Ms H and the Mother;
(h)His failure to seek treatment and support after his attempted suicide last year;
(i)My findings that he was not honest with the court about those matters;
(j)My findings that I could not rely on the paternal grandmother and Ms H to prioritise the child over the Father.
While the Father is irregularly seeing his therapist, the court does not know if Ms G is supporting the Father in the way he needs. This seems unlikely, given the Father’s evidence that she also does not accept the diagnoses of the psychiatric expert and on the evidence before the court he has not told her of his suicide attempt. However, I simply do not know much about his treatment other than the letters and short form notes tendered in these proceedings. Those notes reflected the Father’s input rather than her plans or treatment.
In the event that the Father uses drugs or misuses prescription drugs, noting he is currently prescribed medicinal marijuana, and/or perpetrates family violence, the risk to the child is at the higher end of the scale. The risks include not only physical harm which arises when a parent is under the influence of drugs or experiencing untreated mental health issues, but also the risk of emotional and psychological harm due to the risk of exposure to that environment and the risk of more police and ambulance attendances at the father’s home.
I was asked to consider that the child has had a big year last year with many events and changes for her. This is indeed the case, but it does not change my assessment and findings as to risks.
On the other hand, I am satisfied that there is minimal risk of harm in the mother’s household. She has acted protectively of the child. I propose to make Orders that the child to live with the Mother based on those findings.
In relation to the child’s time with the Father, I have found him to be an unacceptable risk of harm and therefore her time with him must be supervised.
The Father and the ICL each propose that the Father spend time with the child in the presence of either the paternal grandmother or Ms H. While Ms E preferred the paternal grandmother to assume that role, it was conditional on the paternal grandmother’s acceptance of the risk that he posed to the child. Given the evidence of the paternal grandmother and Ms H in minimising or denying the Father’s conduct as regards family violence and drug use, I am not satisfied that either would prioritise X’s wellbeing over that of the Father. I will therefore not make Orders appointing them as contact supervisors.
What is particularly troubling is that either the Father has not kept his mother and his partner informed of his struggles as they occur or they have joined with him in minimising and covering up his behaviour.
Because of the risk factors I have identified with the Father, I am of the view that it is not in the child’s best interest to make the Mother the gatekeeper. Dr D saw this as increasing risks.
I do not propose to delegate the judicial decision making function to a Family Report writer. It is not appropriate that Ms E decides whether the Father poses an unacceptable risk of harm. I therefore do not intend to make Orders in those terms.
I am satisfied that it is in the best interests of the child to make Orders that the Father’s time be professionally supervised in terms of the Orders proposed by the Mother. It is the only way that the risks posed by the Father can be ameliorated based on the options available at the time.
Orders for long term supervision are far from ideal and have long been the subject of debate, both in and outside these courts. It is no doubt preferable not to make such Orders. But if I did not make an Order for long term supervised contact then I would have to either:
(a)leave this child in limbo while the Father tries again to address drug and mental health issues, in the situation where he does not accept two of the diagnoses of Dr D and therefore has limited prospects of success in doing so; or else
(b)deprive her of the relationship with her father altogether.
In this case I am satisfied that the risks to this child are such that it is in her best interests that time be supervised. As the child has an established relationship with the Father I do not propose to suspend that time altogether, but rather ensure that it is able to continue but in a safe way.
In the event that the Father does manage to successfully complete his proposed treatment with a multi-disciplinary team, the door is open for him to bring another application provided that he can satisfy the rule in Rice & Asplund. I propose to also make the Order sought by the father giving him leave to provide the relevant material to those treating health professionals, together with these Orders and Reasons, so as to allow those professionals access to the information needed to assist the Father to succeed in that endeavour.
I find that it is appropriate for the Father to be solely responsible for the costs of supervision in circumstances where he is not paying significant child support and was at the time of Trial in arrears.
Turning to practicability, both the Father and the ICL propose a complex plan for the Father to follow with conditions to be fulfilled prior to moving to the next staged increase in time and consequences for failed drug screens. This places an enormous burden on the Mother but more importantly fails to provide stability and certainty to this child. I am therefore of the view that the proposal fails what I will call for the sake of convenience, the reasonable practicability threshold.
Due to the same risk factors as outlined above, I will not make Orders that the Mother monitor the Father’s drug testing and progress with mental health and pain clinic engagement. I am also of the view that it would not be appropriate for the ICL to assume that monitoring role after the matter has been finalised. The ICL would be unlikely to obtain funding in such circumstances and in my view it is outside the scope of tasks which an ICL should be expected to undertake. Again I am therefore of the view that the proposal fails the reasonable practicability threshold.
I am also troubled about the Father’s suggestion that after 18 months there should be an equal time arrangement and no further drug testing. He has been attempting to get the better of his drug abuse for many years and the suggestion that in 18 months’ time there will be no need for further concern is not shared by this court. That finding is based on the two positive hair follicle screens, the inconsistent evidence he has given, the opinions of both experts that there can be no set time frame in which these issues can be successfully addressed and also his own refusal to accept the diagnoses.
The Father needs to first do the hard work himself - to follow the recommendations of the experts as to pain management clinic and mental health clinic for mental health disorder and substance abuse treatment. Only if and when he has been successful should he then come back to the Mother or the court to revisit the arrangements for X.
The issue of the cost of supervision needs to be considered in the context of reasonable practicability. I have limited knowledge of the parties’ financial circumstances however both parties are employed. The uncontested evidence is that the Father is assessed to pay $240 per month by way of child support. The Father loves X and wants to see her. I am satisfied that the money he would have spent on the child when she was in his home will now be allocated to meet supervision costs.
For those reasons I am satisfied that the proposal of the Mother as to X’s living arrangements is in the best interests of X and is also reasonably practicable in the circumstances of this case.
Other Orders
Having made Orders for the child to have supervised time with the Father, the majority of the Orders sought by the Father and the ICL are incongruous with that Order and naturally fall away. In particular, I do not propose to make any Orders about the Father’s treatment and drug testing. That is a matter for him.
The parties are in general agreement about regular video and phone calls for the child with the Father. The time that calls are agreed to occur should be respected, in that X should be in a quiet location without distractions. If that is not possible, due to events such as extracurricular activities or the like then times and days should be varied in advance.
I propose to make the orders sought that will allow the mother to have holidays and to travel overseas with X, as that will allow X opportunities for such travel without the need for further court events. There is no suggestion of risk of relocation in this matter that would argue against such a blanket Order.
The authorities proposed by the Mother are non-controversial and I propose to make those Orders save and except the Order that permits both parents to attend at the school. Given that the Father is to have supervised time this is only appropriate if approved by the Mother in advance and I will vary that Order accordingly.
The restraints proposed by the Mother are appropriate and I propose to make those Orders, noting the Father sought a similar non denigration clause. Given that I have made findings about risk and have ordered supervised time, the restraints against the Father removing the child from the Mother’s care are in the child’s best interests.
The Mother proposes that I order that Section 64D(2) of the Family Law Act 1975 (Cth) applies – that the Orders can only be varied by this court and not by agreement. Although this is a matter where I am satisfied the Father has perpetrated family violence, I am not satisfied that it is appropriate to make this Order. I see no exceptional circumstances to justify such an Order. The Mother has been able to stand up to the Father. She has suspended time when she formed the view that the child was at risk. She instigated the current proceedings. If the Father does succeed in following the recommendations of the Family Report writer and Dr D, I am of the view that the parties should have the opportunity to mediate rather than head straight to court. Indeed, the Mother herself foreshadows FDRC in her proposed Final Orders.
The Mother proposes a notation reflecting her intention to facilitate the child’s time with the paternal grandmother and I am content to make the notation in that form.
The Mother also proposes notifications in the following terms which are intended to apply to any Rice & Asplund consideration:
A. It is intended that the father will take steps to engage with a specialist medical clinic for the purposes of receiving treatment from a multi-disciplinary team of medical professionals designed to assist the father to address and manage his diagnoses of Substance Use Disorder, [and serious mental health disorders], as per the Psychiatric Report of the father prepared by [Dr D] and attached to the Affidavit of [Dr D] filed in these proceedings on 11 April 2022. The father will provide a copy of [Dr D]’s report and a copy of these Orders to the treating medical professionals.
B. For the purposes of the rule in Rice v Asplund, it is intended that the issue of the Father’s with the child shall not be the subject of further litigation unless and until such time as:
i.The father has been spending supervised time in accordance with these Orders for a period of at least 6 consecutive months.
ii.The father has completed a course of treatment with the specialist clinic referred to in Notation A, to the satisfaction of the medical professionals involved in the father’s treatment at the clinic, such that those medical professionals jointly recommend that it is appropriate that the father to undergo a further independent psychiatric assessment the purpose of which is to ascertain whether, in the opinion of the psychiatrist, the risks posed by the father towards the child as identified by [Dr D] in her report, are ongoing or no longer apparent. Such joint recommendation must take the form of a comprehensive report which confirms that the purpose of the treatment provided to the father has been in accordance with Notation A, the nature of that treatment, and the facts said to support the recommendation. The costs of the treatment and / or report shall be met by the father.
iii.Where the circumstances in Notation B(ii) are met, the father will arrange for a copy of the report referred to in Notation B(ii), together with a copy of these Orders and also any Reasons for Judgement, to be provided to a forensic psychiatrist with experience diagnosing and treating each of the three (3) disorders referred to in Notation A, for the purposes of his obtaining a psychiatric assessment. The purpose of the assessment shall be to determine whether, having regard to [Dr D]’s diagnosis of these disorders and the subsequent treatment the father has received, the risks posed by the father towards the child as identified by [Dr D] in her report, are ongoing or no longer apparent. The assessment report must confirm receipt of each of the documents referred to above in this Notation. The costs of the assessment shall be met by the father.
iv.The father is compliant with all recommendations of his treating medical professionals referred to in Notation A, and all recommendations of the psychiatrist referred to at Notation B(ii).
v.The father completing the Stopping Family Violence Program.
vi.The father having successfully engaged in specific pain management treatment.
vii.The parties having engaged in, or attempted to engage in, Family Dispute Resolution with a Family Dispute Resolution Practitioner.
Noting the guidance of Judge O’Shannessy in Williamson & Parrish [2022] FedCFamC2F 68, whether the Father manages to satisfy the rule in Rice & Asplund will be a matter for the Trial Judge’s discretion and I do not propose to include notations in those detailed terms. I will however include a short notation reflecting the father’s intention to engage in that multidisciplinary treatment. That notation together with these reasons reflect the Mother’s views and the Father’s intentions and will be considered by the Trial Judge in the event of such an application.
PART NINE: CONCLUSION
For all of the reasons set out above, I am satisfied that the Orders set out at the commencement of these reasons for judgment are in the best interests of the child X and order accordingly.
I certify that the preceding two hundred and sixty-four (264) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cope. Associate:
Dated: 17 November 2022
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