WILKINS & SPRINGFIELD (No.2)
[2019] FCCA 2508
•18 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WILKINS & SPRINGFIELD (No.2) | [2019] FCCA 2508 |
| Catchwords: FAMILY LAW – Where there is a risk of harm to Child whether in Mother’s care or Father’s care – where least risk of harm in the Mother’s care – where parents struggle with drugs, alcohol and mental health issues – where the Maternal Grandmother provides a safety net for the Child. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 62B, 65DAA, 68B |
| Cases cited: MRR v GR [2010] HCA 4 |
| Applicant: | MS WILKINS |
| Respondent: | MR SPRINGFIELD |
| File Number: | WOC 748 of 2011 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 19, 20 and 22 August 2019 |
| Date of Last Submission: | 22 August 2019 |
| Delivered at: | Wollongong |
| Delivered on: | 18 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Cook |
| Solicitors for the Applicant: | Heard McEwan Legal |
| The Respondent appeared in person. |
| Counsel for the Independent Children's Lawyer: | Mr White |
| Solicitors for the Independent Children's Lawyer: | Acorn Lawyers |
ORDERS
The Mother have sole parental responsibility for the Child X born … 2010 (“the Child”) in relation to her care, welfare and development of a long-term nature involving the Child to include: -
(a)The education of the Child – both current and future;
(b)The religion of the Child;
(c)The Child’s passport and travel; and
(d)The health of the Child.
The Mother shall do the following in exercising sole parental responsibility for the Child:-
(a)The Mother shall notify the Father of any medical emergencies involving the Child;
(b)The Mother shall inform the Father of any changes to the Child's schooling;
(c)The Mother shall inform the Father of overseas travel plans involving the Child including flight details, dates of departure and return to Australia and the locality of the holiday travel;
(d)The Mother shall inform the Father of the sporting and extra-curricular activities in which the Child is engaged.
The Child live with the Mother.
The Child spend time with the Father as follows: -
(a)On the last Saturday of each month from 10:00am until 4:00pm;
(b)On Christmas Eve from 10:00am until 4:00pm;
(c)On Easter Saturday from 10:00am until 4:00pm; and
(d)On Father’s Day from 10:00am until 4:00pm.
For the purpose of changeover, unless otherwise agreed, changeover is to take place at A Train Station with the Mother to direct the Maternal Grandmother or other agreed nominee to conduct changeover with the Father.
The Father is to provide no less than 12 hours' notice to the Mother prior to any visitation with the Child if he is unable to attend for any reason and such time is to be rescheduled as agreed.
The Mother is to provide no less than 12 hours' notice to the Father prior to any visitation with the Child if she is unable to facilitate visitation for any reason and such time is to be rescheduled as agreed.
The Child have telephone and/or Skype communication with the Father on no less than one (1) occasion per week as agreed by the parties in writing and failing agreement each Wednesday from 5:30pm to 6:30pm and the Mother is to facilitate such contact.
For the purpose of communicating information between the parents, the Father and the Mother shall communicate by:-
(a)Telephone in emergencies or matters of an urgent nature; and
(b)By text message and/or email for all non-urgent matters
Each of the parents are to provide full particulars of any medical practitioner, health service provider or institution attended by the Child and provide any authority or direction necessary to enable the other parent to obtain all necessary information concerning the Child.
These Orders provide authority for each of the parents to liaise directly with the Child's school(s), sporting bodies and/or extra-curricular organisations to obtain any necessary information about the Child's progress, copies of school reports and that both parents are to authorise the school(s), sporting bodies and/or other organisations to facilitate this.
The Father shall ensure the Mother is kept informed as soon as is reasonably practicable of:-
(a)any medical problems or illness suffered by the Child, whilst in the care of the Father;
(b)any medication that has been prescribed for the Child;
(c)the residential address of the Father;
(d)the telephone contact number of the Father;
(e)any other matter relevant to the welfare of the Child.
The Mother shall ensure the Father is kept informed as soon as is reasonably practicable of:-
(a)any medical problems of illness suffered by the Child, whilst in the care of the Mother;
(b)any medication that has been prescribed for the Child;
(c)any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the Child;
(d)any social, school or religious functions which the Child is to attend;
(e)the residential address of the Mother;
(f)the telephone contact number of the Mother;
(g)any other matter relevant to the welfare of the Child.
Within 28 days the Mother and Father do all such things and sign all documents to ensure that the Child engages with and attends counselling through the Anchor Program. That for the purpose of the child's counselling, leave be granted for the Mother to provide the Second Updated Family Report to the treating professional.
Within 7 days of the date of these Orders, the Mother provide an Undertaking to the Court that she shall engage with and regularly attend a qualified psychologist for a period of no less than two (2) years from the date of these Orders or as directed by the treating professional, for the purposes of addressing her mental health and substance abuse issues and that she shall follow all treatment and recommendations made by the treating psychologist.
Within 7 days of the date of these Orders, the Father provide an Undertaking to the Court that he shall engage with and regularly attend a suitably qualified treating professional for a period of no less than two (2) years from the date of these Orders or as directed by the treating professional, for the purpose of addressing his mental health and substance abuse issues and that he shall follow all treatment and recommendations made by the treating professional.
The Father shall refrain from making critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of the Child and the Father shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of the Child.
The Mother shall refrain from making critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of the Child and that the Mother shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father or other members of his family in the presence or within the hearing of the Child.
Pursuant to s.68B of the Family Law Act 1975, the Mother and Father be restrained by injunction from the following:-
(a)From discussing the legal proceedings with the Child or in a manner bringing the proceedings to the attention of the Child;
(b)From drinking alcohol to excess or otherwise being affected by alcohol during any period, or 12 hours prior to any period that the Child is in that parent's care; and
(c)Consuming illicit substances during any period, or 12 priors prior to any period that the Child is in that parent's care.
The Legal Aid Commission of NSW is requested to extend the appointment of the Independent Children’s Lawyer, Ms Mowbray of Acorn Lawyers, for a further 12 months.
Liberty is granted to the Independent Children’s Lawyer to re-list the matter on short notice by application to the Court in Chambers in relation to the interpretation, implementation, and enforcement of these Orders.
In the event that there is any further litigation in this matter, the matter should be relisted before Judge Altobelli, should he be reasonably available, and subject to any other application the parents may wish to make.
Upon the making of these Orders, the Family Violence Support Worker (Male Service) is requested to meet with the Father to explain the Orders that have been made and the Reasons for Judgment.
Pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
Pursuant to s.65DAA(2) of the Family Law Act, 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 the Fact Sheet, attached hereto and these particulars are included in these orders.
NOTATIONS
(A)The Maternal Grandmother Ms B is to provide an Undertaking to the Court that she shall immediately notify the Father of any and all drug relapses by the Mother that she is reasonably aware of, and that in those circumstances she will immediately remove the child from the Mother's care and place the Child in her care.
IT IS NOTED that publication of this judgment under the pseudonym Wilkins & Springfield (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 748 of 2011
| MS WILKINS |
Applicant
And
| MR SPRINGFIELD |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about X, born … 2010, who is 9 years old. These Reasons for Judgment explain why the Court has ordered that X should live with her mother, but spend time with her father once each month.
Background
X's mother is the Applicant in this case. She is 39 years old and lives in the Region C of New South Wales. X's father is the Respondent. He is 40 years old and lives in the Region D of New South Wales. Both X's parents have had difficult lives. The Mother has a child from a previous relationship, Ms P, who is 18 years old. Before she met the Father, the Mother was involved in drug use including cannabis and ice.
The parents commenced their relationship in 2009. Not much turns on when, exactly, the relationship ended. The Father said that in fact it was not until February 2014. The Mother suggests it was much earlier. It is possible that February 2014 represents the date of the last separation, as the parents may have reconciled after an earlier separation.
In any event even before X was born in … 2010, her father was experiencing mental health issues which included depression and suicidal thoughts. He was suffering from drug dependency and anger management issues. In the same year as X was born, and the Father was experiencing his problems, the Mother developed an addiction to prescription medication including OxyContin, Lyrica and Fentanyl.
The present litigation commenced in September 2011 when the Father brought an Application. It was concluded on 21 May 2012 when the parents entered into final consent orders that X live with her mother and spend time with her father for up to 24 hours each week. Primarily because of the Father's drug-related mental health issues, as well as a brief reconciliation of the parties, the parenting arrangement broke down. The Mother's relationship with her daughter Ms P also broke down. On 28 February 2014 there was a very serious incident in which the Mother used a knife to threaten and assault the Father. She was convicted of reckless wounding and assault occasioning actual bodily harm. There is no dispute that, at the time, she was seriously affected by prescription drugs, cannabis and ice.
There was a substantial period, during this particularly dysfunctional time in the parents' lives, when the Father did not spend any time, or very limited time, with X. Both parents were battling their own demons.
The present round of litigation commenced on 11 April 2014 when the Mother brought proceedings, initially for the recovery of X after she had been unilaterally retained by the Father. Even then, however, it was apparent that a substantive issue for the Court was what was the most appropriate order for X, in the circumstances of the great difficulties that both her parents confronted in their lives.
By 31 July 2014 interim Orders were made by consent that X spend each alternate weekend with her father, day times only, as well as on alternate Wednesdays between 9:00am and 5:00pm. The Mother contends that during this period the Father's compliance with this Order was inconsistent. The Father's contention is that the Mother resisted compliance with the Orders.
On 17 December 2014 the first of three Family Reports prepared in this matter was released to the parties. The Father failed to attend the interviews, although he did provide an explanation for this at the Final Hearing.
In February 2015 X commenced school, and by June that year the parents agreed that she would continue to spend time with her father each alternate weekend. Regrettably, the previously adverted to pattern of either parent allegedly not complying with the Orders recommenced. At the same time, in 2015, the Mother's relationship with her daughter Ms P continued to deteriorate, and the Mother relapsed into drug use. In 2015, whilst the Father met Ms E, his partner until quite recently, he too was clearly using drugs including ice.
On 7 April 2016 further interim Orders were made by consent for X to spend each alternate weekend including overnights with her father. Notwithstanding this, the evidence indicates that the Father, at the very least, was using cannabis and benzodiazepines. He was clearly continuing to struggle with alcohol with excessive alcohol consumption as well. For example, the documents produced by his own doctor, Dr F, dated 3 June 2016, indicates that the Father told his doctor he was going through a 30 pack of VB, and a few Jack Daniels one litre bottles of whiskey, in a week.
The Father's first child to Ms E, Q, was born on … 2016. By the time of the Final Hearing, the Father would have two children to Ms E including his youngest, R born … 2017.
In March and April 2017 there is evidence clearly indicating that the Mother was using ice and, indeed, had been hospitalised after expressing suicidal intention. She attended the rehabilitation program known as ‘G Rehab’ between April and June 2017. However, it is clear that she was still struggling with prescription drug use. At this time, the Father was continuing to use cannabis, but also morphine and amphetamines, though it is possible that the latter was attributable to prescription medication.
On 31 July 2017 an updated Family Report was released to the parties and this probably contributed to further consent Orders made in September 2017 in which the parents agreed that X would continue to live with her mother, and spend time with her father each alternate weekend from after school Friday to before school Monday. Whilst it is clear that these Orders were complied with for a period, it is not entirely clear whether there was consistent compliance.
In October 2017 the Father was diagnosed with post-traumatic stress disorder, adult attention-deficit disorder, and major depression. He was prescribed with dexamphetamine. As at October 2017 the evidence clearly indicates that the Mother was once again using ice, and continuing to struggle with an addiction to prescription medication. One of the impacts for X of these difficulties in the lives of both her parents was that she struggled to maintain a reasonable rate of attendance at school. X was receiving counselling from a psychologist, Ms H, in this period.
In January 2019 it appears that X ceased spending time with her father. The Mother asserts that this was because X did not want to attend. The Father asserts that the Mother was, once again, failing to comply with Orders of the Court, including Orders to which she had herself consented. Whilst contact resumed briefly in March 2019, the arrangements once again fell apart, this time on the basis (according to the Mother) that X became concerned about violence between the Father and Ms E.
In about May 2019 the Father and Ms E in fact separated, but on the basis that their children remained living with the Father.
On 18 July 2019 the third Family Report in this case was released to the parties.
The dysfunction experienced in the lives of both parents, and X, is surely self-evident from the above. There is much detail that has not been recited, indeed does not need to be recited. Suffice it to say that both parents have struggled, and X has been caught in the middle and has suffered disadvantage as a result of this.
The Hearing
At the Hearing the Mother was represented by a Solicitor and her Counsel, Mr Cook. The Father represented himself. He impressed the Court as quite an intelligent and reasonably articulate man. He was passionate in his case about his daughter X but, like most parents representing themselves, lacked objectivity. X had the benefit of an experienced Independent Children's Lawyer, and was represented by Mr White of Counsel.
The Mother's proposal was set out in her Counsel's case outline document filed 14 August 2019. She proposed that she have sole parental responsibility, that X live with her, and spend time with the Father on the last Saturday of each month from 10:00am until 4:00pm, and then on special occasions. The detailed minute of order proposed by the Mother is reproduced in the First Schedule to these Reasons for Judgment.
The Father's proposal was outlined by him during his evidence and in closing submissions. He proposed that X live with him, and spend time with the Mother each alternate weekend, and on special occasions.
The Independent Children's Lawyer's proposal was that the Mother have sole parental responsibility, that X live with her, and spend time with her father on one occasion every three weeks from 10:00am to 4:00pm on either Saturday or Sunday. He also proposed time on special days, and a number of very important other restrictions affecting both parents. The Independent Children's Lawyer's minute is also reproduced in the First Schedule to these Reasons for Judgment.
The evidence in this case was as follows. In the Mother’s case, she relied on the following documents:-
a)Amended Initiating Application filed 9 August 2019;
b)Affidavit of Ms Wilkins filed 9 August 2019; and
c)Affidavit of Ms B filed 9 August 2019.
In the Father’s case, he relied on the following documents:-
a)Response filed 23 April 2014;
b)Affidavit of Mr Springfield filed 19 July 2017;
c)Affidavit of Mr Springfield filed 23 February 2015; and
d)Affidavit of Mr Springfield affirmed 22 April 2014 and filed 23 April 2014.
The following documents were tendered as evidence during the course of the proceedings:-
a)The Father’s drug test results;
b)Family Report prepared by Ms J dated 18 July 2019;
c)Family Report prepared by Ms J dated 31 July 2017
d)Family Report prepared by Ms J dated 17 December 2014;
e)Bundle of text messages between the parties;
f)Documents produced pursuant to subpoena on NSW Police;
g)Documents produced pursuant to subpoena on Ms H;
h)Documents produced pursuant to subpoena on Dr F, Region D Medical Centre;
i)Documents produced pursuant to subpoena on the Department of Family and Community Services;
j)Documents produced pursuant to subpoena on Medicare;
k)Documents produced pursuant to subpoena on City S Hospital; and
l)Documents produced pursuant to subpoena on the Region C Local Health District.
The Mother, maternal grandmother, Father, and Family Consultant all gave evidence and were each cross-examined.
The issues
In closing submissions, Counsel for the Independent Children's Lawyer correctly identified that the evidence would lead the Court to conclude that there was a risk of harm to X present in both her mother's and father's household. Counsel, again correctly, submitted that this was a case where the Court would need to decide where X was exposed to the least risk. If the answer to that question is that the least risk to X exists by remaining in her mother's household, then the Court must decide what is the most appropriate and safest arrangement for her to spend time with her father and step-siblings. If the answer to the question, however, is that there is less risk in the Father's household than in the Mother's household, the Court would nonetheless need to consider a range of other considerations to ensure that it was in the best interests of X that she live with her father, when the totality of the evidence is considered. If the Court concludes that X should be living with her father, the Court must decide what arrangement for X to spend time with her mother is in her best interest, having regard to the risks in the Mother's household to be identified below.
It will thus be seen that the risk of harm consideration will carry significant weight in deciding this case. Of course, there will be other considerations, and these will be discussed if and when the need arises.
After setting out the applicable law, the Court will consider the expert evidence of the Family Consultant, Ms J, who prepared all three Reports. The evidence of Ms J is the only independent, and expert evidence before the Court, and hence it is useful to discuss this evidence up front, albeit by reference to some parts of the evidence of both parents. That is not to say, however, that Ms J's evidence is determinative. It is one part of the evidence, albeit important, but this decision is being made by reference to all of the evidence in its totality.
The applicable law
The applicable law is found in Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(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;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(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;
(f) the capacity of:
(i) each of the child's parents; and
(ii) 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;
(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;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) 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 following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The expert evidence of Ms J
Ms J produced three Reports dated 17 December 2014, 31 July 2017, and 18 July 2019 (hereafter referred to as “the First Report”, “the Second Report” and “the Third Report” respectively). Each of these Reports will be discussed, even the First Report where the Father did not attend. In discussing the three Reports the Court will also make observations about other evidence that was before the Court at the Final Hearing so that it becomes able to consider the Reports in the context of broader findings of fact.
As mentioned above, the First Report regrettably did not include the Father, even though he had been invited. It would unnecessarily distract matters to discuss why the Father did not attend. The particular benefit of this first Report, however, is that it provides the Court with a longitudinal perspective on the risk of harm to X, from her own mother.
At paragraph 12 of the First Report, Ms J observed that the Mother displayed: “...a good capacity for self-insight and she was able to reflect about aspects of her past in an open and transparent manner, even when this did not put her in a good light.”
In the next paragraph the Mother was recorded as reporting that 2014 had been a good year but that: “...she is feeling better than she has in many years, and more in control of her life. Ms Wilkins expressed the belief that the positive changes she had recently made are leading to other positive things happening in her life.”
It is important to record that the Mother's optimism about the future is a common theme in all three Reports, and indeed in the evidence that she gave before the Court. Regrettably, that optimism is not founded in reality.
The Mother expressed a number of concerns to the Family Consultant, duly recorded in the First Report, about the Father's inappropriate behaviour in sleeping naked with X. The allegation was maintained at the Final Hearing. Indeed, the Father admitted that this occurred at least once, but strenuously denied that anything inappropriate took place, whilst conceding, with the benefit of hindsight, it was probably not a good idea. Nothing more will be said about this, in these Reasons for Judgment. The Mother's case did not proceed on the basis that there was an unacceptable risk of abuse to X in spending time with her father, and even her case against there being overnight time did not have as its foundation concerns based on these allegations.
The Mother acknowledged in the First Report that she had separated from the Father in 2009, but later reconciled with him at the end of 2013. At paragraph 17 there is this candid admission:-
Ms Wilkins said that, on reflection, her judgment was significantly clouded by the amount of pain medication that she was taking and she realises in hindsight that all of these motivations were wrong, hence why the reconciliation turned out to be a disastrous mistake.
An important incident occurred on 28 February 2014. The Mother's version of this event is set out at paragraph 18 of the First Report in the following terms:-
Ms Wilkins said that the incident where she held a knife to Mr Springfield’s throat was not as bad as it appears, because she had no intent to do him any harm. Ms Wilkins said that she was literally ‘out of her mind’ on prescription drugs at the time, and she was also using ‘ice’ and cannabis. Ms Wilkins said she had, by then, formed a strong belief that Mr Springfield had been molesting X and she had confronted him about this that morning. When she arrived home later that afternoon, Mr Springfield told her that he was leaving and Ms Wilkins said she became enraged because she thought that she was never going to be able to get the “truth” out of Mr Springfield. Ms Wilkins described this as a very low point in her life and she said she feels very ashamed and remorseful but the person who reacted this way was not really her; it was a person whose rage and loss of control was fuelled by drugs.
This passage is important for a number of reasons. The Mother's concession about the impact on her of prescription and illicit drug abuse at the time is significant. The Mother's account, consistent with the accounts she gave of this incident in evidence, probably minimises the seriousness of the event. The Father suffered a deep laceration to one of his fingers. The Mother was charged and convicted of reckless wounding and assault occasioning actual bodily harm. The Father claims that he suffered, and continues to suffer, from post-traumatic stress disorder as a result of this incident. There is no independent evidence to support the Father's contention. Nonetheless, by any account, and certainly by reference to the Police records, this was a serious, drug-fuelled attack by the Mother, and it is certainly not unreasonable to infer that it would have had some psychological impact on the Father. Throughout the Mother's evidence, and indeed as reflected in paragraph 18 of the First Family Report, the Mother sought to minimise the seriousness of this event.
Paragraph 19 of the First Family Report is also insightful:-
Ms Wilkins recalled that, as bad as February 2014 was, things continued to go downhill from there. She said she felt absolutely devastated when Mr Springfield removed X from childcare and refused to return her and she said it was incredibly painful not to see X for over five weeks, until she was returned to Ms Wilkins by an order of the Court. Ms Wilkins said she expected that having X returned to her care would make everything better, but what she actually experienced (or what she was later told) was a form of post-traumatic stress, “where I just fell apart.” In a short period of time, Ms Wilkins had an incident of self-harming (where she cut her wrists), which resulted in her being scheduled (in … 2014) and then, at the end of … 2014, she took an overdose of the anti-depressant ‘Xanax.’ These latter events resulted in the Department of Community Services becoming involved with Ms Wilkins and X. Around the same time, X made a clear disclosure to a number of family members that her father had put his fingers in her vagina and it hurt. This was investigated by JIRT and the disclosure was found to most likely be associated with Mr Springfield putting cream on X’s vagina in 2013 when she had vulvovaginitis. The allegation of sexual abuse was not substantiated.
This, of course, is the Mother's account to the Family Consultant. It is certainly true that "...things continued to go downhill from there..." for the Mother. The subpoenaed documents indicate that in March 2014 the Mother was abusing prescription medication and was prescription shopping. Moreover, whilst the Mother may well have "...felt absolutely devastated..." when the Father removed X from her care on 17 March 2014, it was hardly surprising given the state of dysfunction in the Mother's life. In any event, on 24 April 2014 the Court decided that it was in the best interests of X that she be returned into her mother's care. One wonders, with hindsight, whether that Order would have been made then, if the Court had known what it knows now.
The Family Consultant records that she had a frank and open discussion with the Mother about her extensive substance abuse history. Ms J formed the view that the Mother: “...had made a decision to be as open as possible, despite how that might reflect on any judgment about her parenting capacity.”
Regrettably, Ms J's optimism about the Mother was shortly shown to be ill-founded.
In the opening paragraphs of these Reasons for Judgment the Court observed that the Mother had had a very difficult life, even before meeting the Father. These are matters discussed at paragraphs 22 to 23 of the First Report. The deterioration in her life after her daughter Ms P was born, and after forming a relationship with the Father, is graphically portrayed at paragraph 24. The Mother descended into excessive drinking and continued to abuse prescription medication including OxyContin. Even the Mother acknowledged that the drinking was a substitute for the illicit drugs.
At paragraph 27 Ms J records:-
Ms Wilkins reported that she has been clean and sober since the end of September 2014 and this is demonstrated in all of her urinalysis tests since this time, which have been negative. Ms Wilkins said that DoCS have stopped testing her three times a week and now it is only once a week, and if she maintains negative results, it will drop down to random. She said that she is still taking ‘Seroquel’ (for possible bi-polar, which Ms Wilkins strongly disputes she has) and ‘Endep’ (an anti-depressant) but she hopes to be weaned off the Seroquel in the near future.
In the next paragraph it is obvious that the Mother was aware of the risk of relapse. She attended the G Rehabilitation Centre in September 2014. The Department of Community Services' files were available to Ms J, as they were to the Court. Paragraph 49 of the First Family Report is a useful summary, which is entirely consistent with the records themselves:-
Ms Wilkins appeared to struggle with admitting the extent of her addictions to caseworkers and she consistently either lied about what she was taking or underestimated what she was taking and the effect it was having on her. As a confident and articulate woman, Ms Wilkins seems to be able to ‘spin’ a good story and appear to be more high functioning than she actually is.
In Ms J's evaluation she says at paragraph 60:-
Ms Wilkins is at a point in her life where she has realised that she needs to deal with her addictions in a serious and sustainable way in order to be able to continue to care for X. To her credit, she has taken significant steps towards this in the last three months and her current frame of mind is positive and she appears to be committed to the process of remaining clean and sober. However, in the context of a life long addiction to substances, both legal and illegal, three months is a very small amount of time. It is not a reliable indicator of the future, but it does demonstrate that Ms Wilkins has the capacity to deal with her addictions with appropriate levels of support.
In the next paragraph the Family Consultant observed that X presented as a Child who:“...has experienced a good enough level of care in her life and it is likely that this is probably due in the most part to the level of support provided to Ms Wilkins by the maternal grandmother.”
Indeed, the Court finds that the maternal grandmother has, consistently, provided a safety net for X whilst in the Mother's care. She was an impressive witness who presented as primarily child-focused.
Paragraph 62 is important as it expresses concerns about X, and makes recommendations that the Mother did not in fact follow:-
If there is an adjournment period in this matter, a priority should be for X to be referred to play therapy. Community Services will know of a suitable person to undertake this work. The dissonance between X’s superficially open and chatty nature and the way she became markedly closed to discussions about her home life and emotions in general (mainly to do with her father but also her mother to a lesser extent) indicates that she may have been traumatised by her exposure to parental substance abuse over the course of her life. Therapy will provide her with the chance to talk about her feelings and experiences and it will also be an external source of monitoring and a safety net for X.
The Mother gave no plausible explanation as to why she did not engage X in play therapy.
Ms J's Second Report is dated 31 July 2017. The Father participated on this occasion. Significantly, the Father explained to the Family Consultant at paragraph 6 that he had met Ms E in … 2015 and that they live in the Region D of New South Wales with their daughter Q, born … 2016, as well as Ms E's two children from a previous relation, T (7 years old) and U (4 years old). As at the time of the report interviews X had commenced school (indeed, in February 2015). The Mother was proposing that the Interim Orders which were in place at the time, i.e., for X to live with her but spend each alternate weekend with her father from 9:00am on Saturday until 5:00pm on Sunday, be made final orders. The Father was proposing that X live with him, and spend each alternate weekend with her mother.
The mental health of the parties is discussed at paragraphs 15 to 17 of the Second Report:-
[15] The father reported that he suffers from post-traumatic stress disorder as a result of the incident described above. He said that he has recently sought psychiatric help for this.
[16] The father described having weekly instances of what he referred to as “meltdowns” when he is unable to control his emotions. He indicated that these instances are gradually reducing in their frequency and severity.
[17] The mother reported that she suffers from anxiety and depression, and she is seeing a psychologist, Ms H, through a Mental Health Plan.
The independent evidence confirms that the Father sought psychiatric help. The Father's own evidence before the Court confirmed that, even at the time of the Final Hearing, he continued to experience weekly "meltdowns".
The substance abuse issues for both parents are described at paragraphs 18 to 23:-
[18] The mother’s history of substance abuse (up until the beginning of 2015) is documented in the first Family Report. At the time of writing the first report, the mother told the Family Consultant that she was no longer using prescription opiates, or any illicit drugs.
[19] It appears that within a week of the last Family Report interviews, the mother recommenced using prescription opiates, allegedly because her back pain had substantially increased.
[20] Subpoenaed material from a number of sources indicates that the mother’s opiate use increased exponentially over the course of 2015 and she was eventually put on a controlled prescribing regime and then a controlled dispensing regime. The mother reported that she has now decreased her dose, and she has is working with her GP on a plan to further reduce her dose and then eventually cease taking opiates.
[21] The mother reported that she used the drug ‘ice’ in April 2017, on a one off basis. Subpoenaed records indicate that she was subsequently admitted to City S Hospital with “a complex presentation…. due to bipolar affective disorder with stimulant abuse and borderline personality.”
[22] The mother attended ‘The G Rehab’ drug and alcohol day program from April 2017 until June 2017.
[23] The father reported that up until approximately 12 months ago, he was an alcoholic who was drinking heavily on a daily basis, in order to “self medicate.” He reported drinking up to a case of beer per day at times during 2014 and 2015. The father said that he no longer drinks but he has used cannabis to assist him to remain alcohol free. He considers this cannabis use to be “medicinal.”
The Mother's relapse into drug abuse is plainly evident, and is consistent with the other material before the Court, including the Mother's own evidence.
Turning to the Father, he acknowledged a past drinking problem, and contended he no longer drinks alcohol, but uses some cannabis instead. The Father's contention is consistent with the overall evidence before the Court but, as will be seen, he too suffered a serious relapse into alcohol abuse.
At paragraphs 24 and 25 Ms J summarises the risk of abuse to X, having regard to the matters set out above:-
[24] If either of her parents is using drugs and/or alcohol in a problematic way, and they are not receiving appropriate help for their addictions, X will be at risk of harm while being cared for by them, as addiction can compromise parenting capacity, often to a significant degree. If mental health issues complicate X’s parents’ substance abuse, this exacerbates the risks to her. Both parents report quite recent issues with substance abuse and also current mental health problems and the extent to which these issues are being substantively professionally addressed is not clear.
[25] The co-parenting relationship is toxic and the communication between the parties (as reported by both of them) is often abusive. X is being placed in the middle of this conflict and it appears that neither parent has insight into the impact on X of their actions in this regard.
Ms J's comments are unimpeachable, having regard to the totality of the evidence. In particular, the toxicity of the co-parenting relationship, and the abusive communication between them, was plainly evident at the Hearing, and this is a finding that can be made on the parents' own evidence.
Ms J, correctly as it turns out, identifies certain issues about the parents and X at paragraphs 29 to 33:-
[29] The mother’s return to using opiates, and her recent hospital admission after having an adverse reaction to the drug ‘ice’ is concerning. During the Family Report interviews, the mother continually minimised the seriousness of her addiction issues and expressed a belief that things were now fully under control, in much the same way as she did in December 2014. It appears that the maternal grandmother has played a significant role in caring for X when her mother may have been less than able to do so.
[30] On the day that report interviews were initially scheduled, the father was interviewed for approximately 5 minutes by the Family Consultant before he became too distressed to continue. He had what he described as a “panic attack” and asked for an ambulance to be called. The father said that he was unable to continue the interviews unless his partner was with him for support (and as their children were present, this was not possible). When further interviews were held a week later, the father reported that this panic attack was an unusual occurrence, triggered by the severe stress of having to be interviewed by a stranger and also by X’s allegedly ‘strange’ behaviour on the day, toward him and his partner Ms E.
[31] This initial presentation, as well as the father’s narrative about him having regular emotional “meltdowns”, gives rise to concern about the stability of the father’s mental health and suggests that X’s exposure to him may need to be limited while he seeks medical treatment.
[32] The father’s narrative about his past drug and alcohol use and general lifestyle issues (before he met his current partner in … 2015) gives credence to the mother’s previously expressed concerns about the father. While his new relationship appears to have provided the father with stability, security and a sense of purpose that he previously lacked, this does not negate past concerns but instead, requires cautious and careful consideration of all of the risk factors that are still present.
[33] It appears that both parents (and the father’s partner) have involved X in this parenting dispute in ways that are likely to have caused her emotional confusion and distress. This includes the mother withholding X from her father because the parties have argued; and the father and his partner telling X that her mother is unable to care for her properly and this is why they want her to come and live with them. The father’s partner read recent text messages from the mother to her and the father, which were abusive and at times irrational.
A number of important observations need to be made. The maternal grandmother continued to be an important safety net for X. The Father's "meltdown" was plainly evident to the Family Consultant. Moreover, the parents' own evidence provides support for the opinion of Ms J at paragraph 33 that both of them have involved X in this case. Indeed, an example of the Mother's inability to maintain a boundary between her conflict with the Father, and exposing X to the conflict, is apparent at paragraph 35 of the Report. At paragraph 39 is an example of the Father's inappropriate involvement of X.
The Mother's drug abuse is discussed at paragraphs 41 to 46 of the Second Report:-
[41] Ms Wilkins said that she began using opiates again in … 2014 and she went fairly quickly up to 80mg per day, “but then I realised what was happening so I took myself back down to 60mg.”
[42] Ms Wilkins said that she has used the drug ‘ice’ “only a few times since 2014 and only ever when there were no kids around.” She said that in … 2017, she had a bad reaction to the drug and “it scared the living crap out of me. It didn’t react with my brain very well.” The Family Consultant commented that she had read the text messages that Ms Wilkins’ had sent to her mother (which led to her being hospitalised) which were suicidal in content and as such, very concerning. Ms Wilkins said that, “Those messages were bull crap. That is NOT me. It was the ice, it changes you. I was so angry with myself, for giving in and taking it. I was so depressed.”
[43] Ms Wilkins said that after being discharged from hospital, she completed ‘The G Rehab’ day program, to address her ice use. The Family Consultant asked if the program had also addressed her opiate addiction. Ms Wilkins said that she was not sure why the hospital assessed her as having an opiate addiction, “because I have a gradual reduction plan in place, with my GP. You need to be sensible.” When the Family Consultant asked Ms Wilkins when she realised (in 2015) that she had a problem with opiates again, if not an addiction, she demurred, saying that she had only ever had two scripts for the 80mg dose “and then I realised what was happening. And I immediately reduced my dose and came up with a plan (to further reduce). But I was upset with my GP, he should have realised.”
[44] The Family Consultant commented that it would be unusual for someone who isn’t considered to be an addict (or to have serious problems with their use of opiates) to be put on a pharmacy controlled dispensing regime. Ms Wilkins agreed with this but said, “this is about me not taking my meds correctly (in the past).”
[45] Ms Wilkins said that she has not taken up The G Rehab aftercare program, because she is attending the stimulant program at K House and seeing a counsellor called Ms V, every fortnight. Ms Wilkins said that she also sees a psychologist called Ms H, who comes to her home “and we deal with my anxiety.”
[46] Ms Wilkins said that she would describe herself as “not your usual ice user. I was able to stay clean for long periods of time.” She said that she is completely, 100% confident that she will never use again because of she knows how badly it can affect her, “and I have big plans for my future now. I’m about to start a course and I’m in control now.” She said that, “Yes I am addict but I KNOW I won’t use again.”
The Mother's optimism, if not idealism, and her lack of insight about the seriousness of her own drug addiction, is plainly apparent from not only the above paragraphs, but from the totality of the evidence before the Court.
On the topic of the Father's "meltdown" Ms J records at paragraphs 56 to 58 as follows:-
[56] Mr Springfield said that the panic attack he had experienced the week before is his fourth panic attack since 2000. He recalled that prior to this one, the last one he had was “a couple of years ago, when Ms Wilkins had cut me off the lease and she sent me nasty text messages and I had a meltdown and lost my job.”
[57] Mr Springfield said that he still has regular “meltdowns” where he feels like he can’t control his emotions and he gets upset and sometimes throws things. He said that this is happening less frequently since he gave up drinking but usually about once a week. Mr Springfield said that he main trigger is feeling upset about not having X live with them all the time, “and I get very sad when she has to go home. I tell T that it’s the sole reason I get upset.”
[58] Mr Springfield reported that he has recently begun seeing a psychiatrist, Dr F, in Town K “to improve my life and help me to manage my PTSD properly, because I get too emotional at times and I need help.”
The Father was able to express his concerns about the Mother's parenting capacity, in support of his contention that X should live with him. There is no doubt that he passionately believes that X is better off with him on the basis:- "...that Ms Wilkins was an even worse parent than he was..." (paragraph 64 of the Second Family Report).
He was deeply concerned about the Mother's brainwashing and manipulation of X against him. He was concerned about X's diet, and that the Mother physically abuses her. At paragraph 72 he admitted that he has told X why he wants X to live with him. Indeed, at paragraph 72 he is recorded as expressing the view that it would be:- "...a complete miscarriage of justice..." if the Court ordered X to remain with her mother.
Ms E, the Father's partner, was also interviewed. Observations about her are found at paragraphs 74 to 85. It is clear from this account (and bear in mind that the Court did not have evidence from Ms E at the Hearing) that she shared the Father's concerns about the Mother's parenting of X. Ms E also corroborated the Father's own evidence about what she described as:- "...emotional outbursts..." (paragraph 77 of the Second Family Report).
X was interviewed and paragraph 100 of the Second Report provides an insight into X's perspective of life with her Mother:-
X said that sometimes her mother has to stay in bed in the mornings “because she gets sick and she needs to rest.” X said that when this happens, Ms P makes her lunch and X gets her own breakfast. X said that they have things like spaghetti bolognese, or toasted sandwiches and sometimes takeaway for dinner, “but Mum and I are on a diet, because we need to lose weight. So we are trying to eat more healthy food. So I had a spinach roll for lunch!”
X was also observed with both her parents and step-siblings. The observations were positive.
The relevant parts of Ms J's evaluation commences from paragraph 113 of the Second Report. There are a number of findings the Court can make now that it has the totality of the evidence before it. Thus, for example, where in paragraph 113 Ms J refers to the Father's problematic drug and alcohol use before the Mother assaulted him in February 2014, this is consistent with the objective evidence before the Court. To blame all of the Father's problems on this assault, as serious as it was, is misplaced.
At paragraph 114 Ms J refers to the Father's:- "...loathing for and antipathy towards Ms Wilkins was palpable." This continued to be the case.
The risks to X from her own Mother are candidly stated at paragraph 115:-
As detailed in the first Family Report, Ms Wilkins has a long history of substance abuse, largely as a result of her traumatic childhood experiences. At the time of writing the first report, Ms Wilkins reported that she was clean and sober and that she intended to stay that way in the longer term. Regrettably, this did not happen and she returned to using opiates and also began taking methamphetamines again. Ms Wilkins’ description of herself as “not a typical ice user” infers that she is more in control of her use than a typical addict would be. However, in the report writer’s professional experience, there is no such thing as a “typical” user, and risk to the drug user’s children does not rise or fall depending on how they meet the profile. The concerns with Ms Wilkins parenting is not her ice use per se; it is the fact that she has lifelong issues with addiction to various substances and it is this addictive behaviour which may put her children at risk.
The Mother's relapse into drug addiction, and the protective role played for X by the maternal grandmother, is noted at paragraphs 116 to 117.
The Family Consultant could not, however, support the Father's proposal for X to live primarily with him. In short, the Family Consultant asserted that there were risks in both households, and the risks to X in her Mother's care were substantially ameliorated by the protective presence of the maternal grandmother, and this was unlikely to change:-
Mr Springfield’s proposal for X to live on a primary basis with him is not supported. There would need to be compelling reasons to reverse an arrangement that has been in place for all of X’s life, and it is the report writer’s opinion that such reasons do not exist. The risks to X in her mother’s care are substantially ameliorated by the protective presence of the maternal grandmother and this is unlikely to change in the future.
Ms J did, however, support more overnight time with the Father. Thus, while she recommended that there be equal shared parental responsibility, and X live with her mother, then subject to a number of other detailed provisions, the Father should be able to spend alternating weekends with X, and half the school holidays.
Ms J's third and final Family Report was dated 18 July 2019. Her focus in this Report was events after August 2017. One of the most significant changes that had occurred was that the Father had separated from Ms E, about two months before the report interviews were held. Moreover, Ms E left the youngest three children with the Father, including R born … 2017. Thus, in effect, the Father was parenting Q born … 2016, U who is 6 years old, and R born … 2017.
The Family Consultant noted that the recommendation she made for the Father to spend weekend time with X was largely implemented by way of Interim Orders, which for all practical purposes appear to have been complied with until January 2019. The problem that seemed to have emerged after then, was X's increasing resistance to spending time with her father based, at least in part, on a number of matters that she experienced whilst in her father's care. Indeed, X had not spent any time with her father since March 2019.
Notwithstanding the Father's quite dramatic change in circumstances he continued to propose that X live with him and spend time with the Mother. At the report interview the Mother was unable to articulate a precise proposal for the Father to spend time with X, as she seemed primarily concerned about X's strong resistance to spending time with him.
The Family Consultant noted at paragraphs 14 and 15 that X made disclosures about both verbal and physical arguments between the Father and Ms E. The Father admitted to verbal arguments, but denied physical abuse. Indeed, Ms E denied physical abuse, but agreed that there were verbal arguments. It is clear, even from the Father’s evidence in cross-examination, that X was exposed to these verbal arguments. Indeed, the frequency of the arguments, which X described as “constant”, appears to have been supported by what the Father himself told the Family Consultant at paragraph 14.
Paragraphs 16 and 17 are important insofar as it deals with the Mother’s drug abuse:-
[16] The issues regarding Ms Wilkins’ use of opiates and other drugs have been covered at length in past reports. On this occasion, Ms Wilkins reported that she is “doing really well” and is now on a weekly and controlled dispensing of Oxycontin. She said that she hopes to discontinue all pain medication at some point in the future. She said that she also takes Valium on a PRN basis for pain. Subpoenaed medical records, however, suggest a slightly less rosy picture than Ms Wilkins painted, both in July 2017 and also for this current report. In November 2017, Ms Wilkins was blacklisted for ‘prescription shopping’ and she was no longer able to obtain scripts for her pain medication. She was put on a daily dosing regimen, which was then varied to a weekly pick up, however in August 2018 Ms Wilkins disclosed to her GP that as a result of stress from dealing with her daughter Ms P, this Court matter and also working in the school canteen, she had begun taking more Oxycontin than she was being prescribed. She was then put back on a daily dispensing regime (it was not clear when she went back to weekly dispensing).
[17] Ms Wilkins said that she has not used the drug ‘ice’ in the past two years and she has had no hospitalisations for either substance use issues or mental health issues. However, subpoenaed records indicate that there was an incident in October 2017 when Ms Wilkins was apparently ‘coming down’ from using ice and had begun expressing suicidal ideation, leading to the police being called. This was only shortly after Family Report interviews took place in July 2017 when Ms Wilkins denied she had a problem with ice and she told the report writer that she was “100% certain” she would never use again.
It is important to note that the subpoenaed material to which Ms J refers in fact supports the conclusions that she draws. Moreover, in cross-examination the Mother gave evidence to similar effect. The Mother’s misplaced optimism, lack of insight into her own condition, and minimisation was palpable. The risk of relapse of the Mother into drug abuse is perhaps the most significant risk to the wellbeing of X in the Mother’s care.
The Father’s substance abuse and mental health issues are covered at paragraphs 18 and 19:-
[18] The issues regarding Mr Springfield’s past substance use have been covered at length in previous reports. On this occasion, Mr Springfield reported that he has begun drinking alcohol again. He described his use of alcohol as ‘moderate’ and does not consider it to be problematic. He indicated that he drinks a daily six-pack of beer, usually over an extended period of time, “in order to relax.”
[19] The issues regarding Mr Springfield’s mental health have been covered at length in previous reports. On this occasion, Mr Springfield reported that he has been diagnosed with adult ADHD and medicated for this. He said that he began seeing a psychiatrist called Dr F, in Town K, on a regular basis, approximately two years ago, with the last time being the week before Mr Springfield was interviewed. Mr Springfield said that he is much calmer and more focused since commencing on medication.
The Father himself acknowledged that what he told Ms J was correct, even after the point at which he became the sole carer for three very young children. Indeed, there can be no doubt from the evidence the Father gave in cross-examination that he uses alcohol and marijuana, sometimes at the same time, at times when he is solely responsible for the care of the children.
One of the important aspects of the Father’s case is that the Mother was, in effect, brainwashing X. He fervently believes this. Ms J deals with this at paragraph 23:-
While Mr Springfield and Ms E expressed a strong belief that Ms Wilkins is “brainwashing” X so that she will reject her father, X’s discussion of the issues in her father’s household and her mother’s household were clear-eyed and her reflections about Mr Springfield and Ms E were not entirely negative. Mr Springfield also agreed that X had, in fact, been exposed to a lot of fighting between him and Ms E (although he downplayed the impact on X of this).
The effect of the above paragraph is to cast significant doubt on the Father’s assertion that X was being brainwashed. It is not possible, on the evidence before the Court, to make the finding that the Father contends, i.e., that X was brainwashed by her mother.
In relation to the Father’s anger management issues, at paragraph 24 he reported to Ms J that he believed that his anger issues were now largely under control, but this seems to have contrasted to his presentation to Ms J, which she described as: “...quite a brittle and impatient/irritable manner, particularly whenever he was challenged.”
One of the significant issues for this Court is to understand the nature of the Father’s relationship with X, and why X was no longer spending time with him. In the Third Family Report, Ms J deals with this at paragraphs 26 to 28:-
[26] Mr Springfield expressed the view that X stopped spending time with him in March 2019 “because we showed her a good time and we let her express herself.” Mr Springfield showed the report writer a video on his phone of X dancing enthusiastically to a band. The report writer said that X had told her that she’d had a good time at the function but it was on the way that she became scared because of the argument that happened between Mr Springfield and Ms E. Mr Springfield said that, “This was a bit of an argument over where to stop for petrol, nothing major. And the red light, that was me going through it a second before it changed to green, because I was watching out. And there was only one place where I was speeding a tiny bit.”
[27] The report writer commented that X had told her that he had said “bad things” to her about her mother. Mr Springfield said that he did tell X “that her mother had tried to stab me and that’s why I hated her (Ms Wilkins).” After the report writer provided Mr Springfield with some psycho-education about the impact of these types of conversations on young children he said that, “I can see now that it was not a great decision but it was the heat of the moment.” He said that he and Ms E “never, ever denigrated” Ms Wilkins to X “but on the day of the ‘home invasion’, the grandmother called Ms E stupid!” Mr Springfield said that in the future, he knows that saying anything to X about the conflict between him and Ms Wilkins – “even if it’s the truth” – is not in her best interests.
[28] The report writer asked Mr Springfield to reflect on his relationship with X. He said that he and X did not spend a lot of time together “because all she wanted to do was to play with the children. I used to try to encourage her to learn things from me but she was never that interested. So we never really did stuff together.” The report writer asked Mr Springfield to describe X’s personality. When he was answering this question, Mr Springfield focused on what he views as negative aspects of X’s behaviour, such as her being “jealous” of Q and being violent towards Q (X allegedly kicked Q in the face when they were both on the trampoline). Mr Springfield went on to say that he believes Ms Wilkins “is destroying X’s mental health.” When asked to expand on this statement, Mr Springfield said that Ms Wilkins is deliberately encouraging X to be violent towards her siblings. He said that, “I know that Ms Wilkins has told X to behave in a certain way when she is at my house.”
In relation to paragraph 26, the Father was cross-examined about the events referred to here. His own evidence was that the argument between Ms E and himself was quite intense, voices were raised, all of the children were present, he was driving quite fast and, perhaps, was anticipating a red light turning green. The Father’s own account of this incident in cross-examination leads the Court to conclude that even if X had had a really good time at the event in question, the journey home was, in all likelihood, a frightening one for her. At paragraph 27 the Father again confirmed that he is saying inappropriate things to X.
Perhaps the most disconcerting evidence about the nature of the Father’s relationship with X is at paragraph 28. Indeed, throughout the entirety of the Father’s case, what was apparent to the Court was a seeming disjunct or disconnect between the objective evidence of X’s relationship with her father, and the Father’s subjective belief in the risks of harm to her in her mother’s care.
The Father confirmed that Ms E left the three younger children with him, and then at paragraph 32 confirmed that the verbal arguments between Ms E and himself escalated, took place in the presence of the children, and was not good for them. At paragraph 32, the Family Consultant records:
Mr Springfield said that he would get frustrated with Ms E regarding the housework ‘and I had to sort of snap at her to get things done. She was a great mum but she couldn’t manage to do the housework. She would call me the extra child, but really, she was’.
It is interesting to observe that the Father’s “frustration” about Ms E is reflected in some of his early Affidavits about the Mother.
The toxic nature of the co-parenting relationship was evident in paragraph 33 of the Report:-
The report writer read Mr Springfield the text message where he refers to Ms Wilkins as a “maggot” amongst other things. Mr Springfield became agitated at this point and said that the message wasn’t “any worse” that anything Ms Wilkins had said to him or Ms E in the past (messages which have been canvassed in previous reports). Mr Springfield said that he could not recall the context of why he sent that particular message but he thought it would have been in relation to some type of provocation on Ms Wilkins’ part. The report writer said that Ms Wilkins said it was in response to her asking him to call X. Mr Springfield said that he used to get very angry about the fact that Ms Wilkins would insist on supervising his calls with X.
Disturbingly, from paragraph 33, the Father reported to Ms J, consistently with his evidence before the Court, that he had recently begun drinking again from around Christmas 2018. He told Ms J, as well as the Court, that he had between four and six beers each day, spread out from 2:00pm until midnight. Whereas he told Ms J that he felt confident he could stop at any time, his evidence before the Court suggested less confidence. At paragraph 37 Ms J records:
He said that he never feels even slightly drunk and it does not affect his capacity to care for the children, and in fact by relaxing him, he believes it enhances his ability to respond to them patiently.
This Court does not agree. Even in the absence of expert evidence, this Court would have serious concern about a Father who has responsibility for the sole care of what would be four children, on his proposal, to drink as much as he does, as regularly as he does, especially when he admits he also uses cannabis.
At paragraph 36, Ms J reports that the Father felt relieved to have been diagnosed with ADHD and that his prescribed dose of dexamphetamine helped him to manage his anger so that: “I only have (an episode) about once a day. I’m proud of myself.”
Ms J explained to the Father, at paragraphs 37 to 39, that she could not recommend that X lives with him, despite the benefits that he contended for. What was concerning for the Court are some of the comments the Father is reported as having made. For example, at paragraph 38: “He said that Ms Wilkins has repeatedly breached the orders and nothing has happened to her ‘because she has a vagina’.”
Ms J asked the Father whether he would consider anything less than a change of residence. He is reported as having prevaricated about this. He did the same during the Hearing. Firstly, he said no, he would consider nothing less. He did the same at the Hearing. Ultimately, with both the Family Consultant, and during the Hearing, he seemed to accept that some time with X was better than none. He told the Family Consultant that two weekends a month “would not be enough for Q”, and he made similar comments during the Hearing. Indeed, throughout the Father’s evidence, one of the most important things to emerge was the prioritisation that he gave to X being able to spend time with her step-siblings. Indeed, at times, this seemed to be more important to the Father than spending time with X himself.
The Mother was, of course, also interviewed. She admitted that she was finding it hard, but was succeeding, in reducing her reliance on opioid medications. She thought that the problems in X’s time with her father, and X’s resistance to that time, centred around a number of factors: X’s exposure to the Father’s denigration of the Mother; the conflict between the Father and Ms E; the Father not spending quality time with X when they are together; and X’s general unhappiness.
Ms J asked the Mother whether she had acted on the recommendation made in the Second Family Report that X be referred to the Anchor Program. The response the Mother gave, reported at paragraph 50, was, with great respect to the Mother, as vague and ambivalent as the evidence she gave in cross-examination about this issue. Regrettably, the impression the Court forms from the totality of the evidence is that the Mother did not prioritise referring X to the Anchor Program.
X was interviewed, and Ms J sets out what took place, and her observations, at paragraphs 61 to 69. This extract is lengthy but, the Court accepts, it presents an accurate picture of X’s experience of life in her mother’s household, and her time with her father:-
[61] X (aged 9 years, 5 months) has now been interviewed and/or observed by the report writer on three separate occasions, spanning five years. On this occasion, X presented as a friendly, chatting and engaging young girl. She appeared unguarded in her responses, but also inclined to be very positive about her relationship with her mother.
[62] X reported that she is in Year 4 at Town L Public School and her teacher Mr M, “is really nice because he helps everyone and we get lots of points!” X said that her favourite subjects are art and maths. She described herself as “not so great at some things, but I can learn.”
[63] X said that she “is a bit of an angry person sometimes.” She said that she has just “lost” one of her friendships because this friend thought that X was being too mean. X estimated that she feels angry with her peers “maybe about half the time.” X named her two current friends as AA and BB (both boys). The report writer commented that they were both boys. X said, matter of factly, “Yep, that’s because no girl wants to be my friend.”
[64] X said that after school, she enjoys reading books and playing on her phone, “but sometimes I get a bit bored.” She said that she likes watching her mother make dinner and her favourite thing to eat is “marinated chicken and rice, because it’s delicious.” X said that “sometimes there’s not a lot of food in the house, because we’re poor I guess.” X said that being poor is not that great, “because Mum sometimes promises me things, and then we don’t do it, like go to the Easter Show? But when we go out I can get sushi or a pie and a coffee with whipped cream and that’s delicious!”
[65] X described her mother as “a happy and caring person and we have lots of fun together. We have a strong bond that no one can break. She makes sure that I have nice things to eat and nice clothes. She spends her money on me but Dad says he can’t pay for anything (for me).” X said that her “Nan” also buys her food and clothes “because she has a little bit of money I think. And she’s here to support my Mum and she’s pretty nice to me.”
[66] X said that the only thing that makes her sad about her mother “is that she gets pretty bad back pain and she has to lie on the couch. I look after her (a bit) but she always gets up to help me get ready for school and to make me breakfast. I have to help with the dishes and help put the rubbish too.”
[67] X was asked about her time with her father and Ms E. She said that on a “normal” weekend, “they would fight maybe about half the time? Dad would get really mad. He would swear and yell so much. And a couple of times he broke some cups. And he would stay in his garage most of the time. I would only watch sometimes because it was pretty boring. And he would sleep in until about 10 or 11am.”
[68] X said that while Ms E “was always calm” she still felt scared a lot of the time that she was with her father. She described herself as feeling “sort of sick and worried all at once” a lot of the time. X said that one of the things that really made her feel this way was when her father “showed me some text messages from my Mum and he accused Mum of trying to kill him, but why would she do that? And he told me that Mum was being abusive towards me?”
[69] In relation to the incident that happened during the trip to Canberra, X recalled that, “We’d had a pretty good time. We went to a party and it was a bit boring. (On the way back) Dad and Ms E got into a fight and Dad was saying lots of swear words and he was speeding and he ran a red light. Then when we got home (the next day) R spilled soup over him and me and Dad picked him up to rinse him off and on the way he stopped in front of Ms E and he lifted up his foot and he kicked her really hard. Then later Dad said that they were getting divorced. He took his ring off and clipped it to his keychain and said he would use that to remember that he was once married.” X said that after this, her father warned her not to tell her mother anything about what had happened but she wanted to, because she didn’t want to go back again. “Now I really feel that I want to send them all away on a boat (so I never have to see them again).”
Returning to the topic of his alcohol consumption, and his concession to the Family Consultant in the Second Report that he was previously an alcoholic, the Father explained words to the effect:
Now that I’m drinking again I concede that once an alcoholic always an alcoholic. But I have three babies now and so I regulate my drinking. I feel that at any time in the day I could drive the children in the car.
Counsel asked whether that would be legal. The Father conceded that it would not. Counsel asked whether it would be safe. The Father explained that it would: “..based on my years of driving experience.” The Father did explain, however, that he was ready to seek help and to quit drinking, though he had not done so as yet, and had not been to Alcoholics Anonymous because he did not think that he had a problem at the time.
The Father was once again invited to give evidence about what his proposal would be if the Court decided that X should not live with him, but continued to live with her mother and spend time with him. Firstly, the Father reiterated that everything X had said to the Family Consultant was what she had been told to say. He then added words to the effect:
I have long held the fear that if the Court ordered X to live with me the Mother would be capable of infanticide. I am scared that if the Court orders X to live with me her mother could do murder-suicide. If that were the case, I would rather walk away and let her have a life of shit.
The Court observes that there is absolutely no evidence that the Mother would be capable of infanticide, under any foreseeable circumstances, based on the evidence of this case.
The Father rejected the possibility of a recognition contact type order whereby he would see X four times each year. He said this placed too much of a burden on his other children. When it was suggested that perhaps four times a year was better than no contact at all he explained, words to the effect: “I will not take it. It’s too detrimental on my younger children.”
At the close of cross-examination he was invited to comment on whether he was confident about the maternal grandmother’s capacity to protect X. He explained, words to the effect: “I will be happy if X is put into her Grandmother’s care, if I can’t have her.”
The Father was given the opportunity to re-examine himself. He made a number of comments relevant to the issue of risk assessment. He said words to the effect: “I believe cannabis is not an illegal narcotic.. I was able to quit cannabis in order to do drug tests for the Court, then went off it, then on again. I use alcohol to calm my nerves..”.
The Father was most certainly candid with the Court. That is not the issue.
There is no doubt that X would benefit from having a meaningful relationship with her father. There is clearly the makings of a good relationship there. If there is anything the Court can do to facilitate that relationship continuing, and becoming stronger, as a result of making orders, then the Court should aspire to do so.
However, the Father’s own evidence demonstrates the need to protect X from harm in the Father’s care. The level of his alcohol consumption, and his regular cannabis use, are often (if not always) in conjunction with each other, raises concerns in the Court’s mind about his ability to be consistently available to meet X’s needs at all times of the day and night. The Father’s inability to contain his anger, even if his meltdowns were limited to one per day, presents risk for X. What would appear to be the Father’s visceral hatred of the Mother, and his inability to contain his own feelings about this, presents another risk of harm to X. The Father’s parenting capacity is already challenged by his responsibility to care for three young children. The Court does not accept that if X lived in his care, it would only be another meal to cook. The Father’s lack of insight is palpably evident on this point, and permeates so much of his evidence.
To make an order that X lives with her father would be a significant disruption to the strongest relationships that she has had in her life, i.e., with her mother and maternal grandmother. The Court would only make such a dramatic change if the risks in the Mother’s household were greater that the risks in the Father’s household. There are significant doubts about the Father’s capacity to provide for X’s needs, physical, emotion and intellectual. The Father’s attitudes to X, and to the responsibilities of parenting her, leave much to be desired.
Conclusion: orders in the best interests of X?
By the time of closing submissions the Independent Children’s Lawyer had submitted a minute of proposed order which in effect provided that the Father would spend time with X on one occasion every three weeks from 10:00am to 4:00pm on either Saturday or Sunday. The Mother’s proposal continued to be that set out in her case outline, i.e., that X spend time with her father on one Saturday of each month between 10:00am and 4:00pm, specifically the last Saturday. She also proposed time on Christmas Eve, Easter Saturday and Father’s Day. The Father’s proposed remained difficult to ascertain. Whilst the proposal he articulated continued to be that X live with him, and spend time with the Mother supervised by the maternal grandmother, together with school holidays and special occasions, there was a dissonance between this and the concessions he (quite appropriately) made in cross-examination about what time he would in fact accept with X, if the Court ordered that X live with the Mother. Doing the best the Court can, in the circumstances, the impression formed is that the Father would abide by an order of the Court that enabled him to spend time with X either once every month, or once every three weeks, or more frequently. It was not his preference. The Court does not rule out the possibility (as much as it does not want this to occur) that the Father will simply give up, walk away and not accept any order in his favour for him to spend time with X. This would be a tragedy for X.
It is important to also record the Family Consultant’s opposition, in cross-examination, to the Independent Children Lawyer’s proposal of once every three weeks. Ms J emphasised the quality of time, rather than either the quantity or the frequency. She was concerned that, in effect, anything more than once a month would be setting up the arrangement to fail given the formidable issue that confronted the family. The Court agrees. There is so much going on in the Father’s life, and there are so many uncertainties about his parenting capacity, that even the slight difference between once a month and once every three weeks, might undermine the long-term viability of the parenting orders for X to spend time with her father. Accordingly, the order for X to spend time with her father will be based on the Mother’s proposal. The Mother’s proposal is specific, and leaves very little for the parents to agree. It will be on the last Saturday of each month. It will be on Christmas Eve between 10:00am and 4:00pm. It will be on Easter Saturday between 10:00am and 4:00pm. It will be on Father’s Day between 10:00am and 4:00pm. However, the Court prefers the form of order used by the Independent Children’s Lawyer. Indeed, the Independent Children’s Lawyer’s order requires the maternal grandmother, or other agreed nominee, to conduct changeover with the Father. This is a good idea, given the very difficult relationship that exists between the parents. Moreover, the detailed order proposed by the Independent Children’s Lawyer covers a range of commitments that both parents are required to undertake in order to address the myriad issues that affect, or have the potential to affect X, and the range of risks that have been identified in these Reasons for Judgment.
The Court proposes a number of other Orders.
An Order will be made for the Family Violence Support Worker (Male Service) to sit with the Father, and explain to him the Orders that I have made, and the reasons. The Court does have concerns about how the Father will respond to the outcome of this litigation, and it is important for him to receive such support as the Court may reasonable provide through a difficult time, as well as to understand why the decision is what it is. The Court will also request the Legal Aid Commission to extend the appointment of the Independent Children’s Lawyer for 12 months. Moreover, the Independent Children’s Lawyer will have leave to relist as regards interpretation, implementation, and enforcement of these Orders. There is much for both parents to do pursuant to these Orders, and the continued appointment of the Independent Children’s Lawyer will create a measure of accountability. Moreover, the Father is deeply suspicious about the Mother’s commitment to the orders that she proposes and, whilst the Court does not share those concerns, extending the appointment of the Independent Children’s Lawyer may help to reinforce to the Mother her obligations to comply with these Orders.
Finally, the Court will also order that should there be any further litigation in this matter, the matter should come back before Judge Altobelli, should he be reasonably available, and subject to any other application the parents may wish to make. It may well be preferable for X that should this matter ever be re-litigated, it comes before a Judge familiar with her case.
Both the Independent Children’s Lawyer and the Mother propose that she have the benefit of an order for sole parental responsibility. The evidence points overwhelmingly towards this conclusion. The statutory presumption in section 61DA of the Act is rebutted by evidence that satisfies the Court that it would not be in the best interests of X for her parents to have equal shared parental responsibility for her. That is clearly the case here. The parents are unable to communicate effectively. They do not trust each other. The communication between them is both toxic, and counterproductive. In any event, the Father’s time will be relatively limited with X.
Both the Independent Children’s Lawyer, and the Mother, proposed that X live the Mother. The evidence overwhelmingly points to that conclusion. Despite the Father’s genuine belief that X is exposed to less risk of harm in his household, the Court has come to a different conclusion. Whilst the Father’s concerns about the Mother’s risk of relapse are well-founded, both X and the Mother have the benefit of the safety net that is provided by the maternal grandmother’s very active involvement in both of their lives. The maternal grandmother impressed the Court in her evidence, and in what she told the Family Consultant who, likewise, seemed impressed by her. By contrast, the many risks identified about the Father’s parenting capacity, and his household, do not enjoy the benefits of a similar safety net that is offered by the maternal grandmother. The Father is thinly stretched at home having the care of three other young children. He continues to struggle with a number of issues relating to himself, and his capacity to care for children. The Court assesses that there is least risk if X is ordered to continue to live with her mother.
The remaining orders proposed by the Independent Children’s Lawyer are appropriately child-focused, are proportionate to the risk issues raised in this case, and are in any event uncontentious insofar as the obligations that they impose on both parents.
I certify that the preceding one hundred and sixty-eight paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 18 October 2019
Schedule One
Minute of order proposed by the Mother
All prior orders in the matter be discharged.
The Applicant Mother have sole parental responsibility for the child X, born … 2010 (“the child”).
The child live with the Applicant Mother.
That the child spend time with the Respondent Father:
4.1On the last Saturday of each month from 10.00am until 4.00pm;
4.2On Christmas Eve from 10.00am until 4.00pm
4.3On Easter Saturday from 10.00am until 4.00pm
4.4On Father’s Day from 10.00am until 4.00pm; and
The child's time with the Father pursuant to order 4 occur at a location agreed between the parties, but failing agreement at A Train Station.
That the Father be restrained by injunction from drinking alcohol when, or in the twelve (12) hours prior to the child spending time with him pursuant to these orders.
The Mother shall ensure that the child is able to contact the Father by telephone or electronic means upon request from the child.
For the purpose of any telephone or electronic contact the child has with the Father:
8.1The Mother shall ensure that a suitable telephone or electronic device is available, charged and in working order;
8.2The child is afforded privacy during a call; and
8.3The child is not distracted during the call.
The Mother do all things and sign all documents necessary to ensure that the child attends ‘The Anchor’ program with Uniting, City S, for such time as her allocated counsellor deems to be necessary.
That the parties are restrained by injunction from denigrating each other in the presence or hearing of the child and will ensure no third party does so.
The parties shall not communicate with each other by any means except for text message and this communication is to be restricted to subjects in relation to parenting matters.
The Mother shall keep the Father informed as soon as is reasonably practicable of:
12.1Any serious medical problems or illness suffered by the child that requires medical treatment;
12.2Any change to her residential address;
12.3Any change to her or the child's telephone contact number.
Minute of order proposed by the Independent Children's Lawyer
That the Mother have sole parental responsibility for the child X born … 2010 in relation to her care, welfare and development of a long-term nature involving the child to include: -
13.1The education of the child – both current and future;
13.2The religion of the child;
13.3The child’s passport and travel; and
13.4The health of the child.
That the Mother shall do the following in exercising sole parental responsibility for the child:-
14.1The Mother shall notify the Father of any medical emergencies involving the child;
14.2That the Mother shall inform the Father of any changes to the child's schooling;
14.3That the Mother shall inform the Father of overseas travel plans involving the child including flight details, dates of departure and return to Australia and the locality of the holiday travel;
14.4The Mother shall inform the Father of the sporting and extra-curricular activities in which the child is engaged.
That the child live with the Mother.
That the child spend time with the Father as follows: -
16.1For a period of six (6) months following the date of these Orders to be supervised by the Maternal Grandmother Ms B or any other supervisor as agreed by the parties in writing:
16.1.1On one occasion every three (3) weeks from 10am to 4pm Saturday or Sunday as agreed by the parties in writing and failing agreement on every third Saturday of each three (3) week cycle;
16.1.2That such time is to take place in an appropriate child-focused setting;
16.2Thereafter:
16.2.1On one occasion every three (3) weeks, unsupervised, from 10am to 4pm Saturday or Sunday as agreed by the parties in writing, and failing agreement on every third Saturday of each three (3) week cycle;
16.2.2Any other time as agreed by the parties
That the child spend the following additional time with the Father: -
17.1Child's Birthday – Unless otherwise agreed, for a period of two (2) hours on the child's birthday;
17.2Father's Day - Unless otherwise agreed, from 10am to 4pm on Father's Day;
17.3Christmas – unless otherwise agreed
17.3.1From 10am to 2pm on Christmas Day in odd numbered years commencing 2019 and alternating thereafter; and
17.3.2From 2pm to 6pm on Christmas Day in even numbered years commencing 2020 and alternating thereafter.
That the child's time with the Father shall be suspended and the child shall spend time with the Mother on special occasions as follows:-
18.1Child's Birthday – Unless otherwise agreed, for a period of two (2) hours on the child's birthday;
18.2Mother's Day - Unless otherwise agreed, from 10am to 4pm on Mother's Day;
18.3Christmas – unless otherwise agreed
18.3.1From 10am to 2pm on Christmas Day in even numbered years commencing 2020 and alternating thereafter; and
18.3.2From 2pm to 6pm on Christmas Day in odd numbered years commencing 2019 and alternating thereafter.
That for the purpose of changeover, unless otherwise agreed, changeover is to take place at A Train Station with the Mother to direct the Maternal Grandmother or other agreed nominee to conduct changeover with the Father.
That the Father is to provide no less than 12 hours' notice to the Mother prior to any visitation with the child if he is unable to attend for any reason and such time is to be rescheduled as agreed.
That the Mother is to provide no less than 12 hours' notice to the Father prior to any visitation with the child if she is unable to facilitate visitation for any reason and such time is to be rescheduled as agreed.
That the child have telephone and/or Skype communication with the Father on no less than one (1) occasion per week as agreed by the parties in writing and failing agreement each Wednesday from 5.30pm to 6.30pm and that the Mother is to facilitate such contact.
That for the purpose of communicating information between the parents, the Father and the Mother shall communicate by:-
23.1Telephone in emergencies or matters of an urgent nature; and
23.2By text message and/or email for all non-urgent matters
That each of the parents are to provide full particulars of any medical practitioner, health service provider or institution attended by the child and provide any authority or direction necessary to enable the other parent to obtain all necessary information concerning the child.
That these Orders provide authority for each of the parents to liaise directly with the child's school(s), sporting bodies and/or extra-curricular organisations to obtain any necessary information about the child's progress, copies of school reports and that both parents are to authorise the school(s), sporting bodies and/or other organisations to facilitate this.
That the Father shall ensure the Mother is kept informed as soon as is reasonably practicable of:-
26.1any medical problems or illness suffered by the child, whilst in the care of the Father;
26.2any medication that has been prescribed for the child;
26.3the residential address of the Father;
26.4the telephone contact number of the Father;
26.5any other matter relevant to the welfare of the child.
That the Mother shall ensure the Father is kept informed as soon as is reasonably practicable of:-
27.1any medical problems of illness suffered by the child, whilst in the care of the Mother;
27.2any medication that has been prescribed for the child;
27.3any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;
27.4any social, school or religious functions which the child is to attend;
27.5the residential address of the Mother;
27.6the telephone contact number of the Mother;
27.7any other matter relevant to the welfare of the child.
That within 28 days the Mother and Father do all such things and sign all documents to ensure that the child engages with and attends counselling through the Anchor Program. That for the purpose of the child's counselling, leave be granted for the Mother to provide the Second Updated Family Report to the treating professional.
That within 7 days of the date of these Orders, the Mother provide an Undertaking to the Court that she shall engage with and regularly attend a qualified psychologist for a period of no less than two (2) years from the date of these Orders or as directed by the treating professional, for the purposes of addressing her mental health and substance abuse issues and that she shall follow all treatment and recommendations made by the treating psychologist.
That within 7 days of the date of these Orders, the Father provide an Undertaking to the Court that he shall engage with and regularly attend a suitably qualified treating professional for a period of no less than two (2) years from the date of these Orders or as directed by the treating professional, for the purpose of addressing his mental health and substance abuse issues and that he shall follow all treatment and recommendations made by the treating professional.
That the Father shall refrain from making critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of any of the child and that the Father shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of any of the child.
That the Mother shall refrain from making critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of any of the child and that the Mother shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father or other members of his family in the presence or within the hearing of any of the child.
That pursuant to s.68B of the Family Law Act 1975, the Mother and Father be restrained by injunction from the following:-
33.1From discussing the legal proceedings with the child or in a manner bringing the proceedings to the attention of the child;
33.2From drinking alcohol to excess or otherwise being affected by alcohol during any period, or 12 hours prior to any period that the child is in that parent's care; and
33.3Consuming illicit substances during any period, or 12 priors prior to any period that the child is in that parent's care.
That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
That pursuant to s.65DA(2) of the Family Law Act, 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 the Fact Sheet, attached hereto and these particulars are included in these orders.
Notation
A.That the Maternal Grandmother Ms B is to provide an Undertaking to the Court that she shall immediately notify the Father of any and all drug relapses by the Mother that she is reasonably aware of, and that in those circumstances she will immediately remove the child from the Mother's care and place the child in her care.
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Remedies
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Procedural Fairness
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Costs
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Standing
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