Yargis & Hope - [2008] FamCA 509

FAMILY COURT OF AUSTRALIA

YARGIS & HOPE

[2008] FamCA 509

FAMILY LAW – CHILDREN – Parenting proceedings – history of drug abuse – protection of children through supervision and urinalysis.

Family Law Act 1975 (Cth)

M and M (1988) 166 CLR 1235
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235
Johnson and Page (2007) FLC 93-344
R and C, (unreported, Full Court of the Family Court of Australia, Fogarty, Baker and Lindenmayer JJ, 25 June 1993)
A and A (1998) FLC 92-800
B and B (1993) FLC 92-357
N v S(1996) FLC 92-655
Sampson and Sampson (1977) FLC 90-253

APPLICANT:

Mr Yargis

RESPONDENT:

Ms Hope

INDEPENDENT CHILDREN’S LAWYER:

Hamish Cumming Family Lawyers

FILE NUMBER:

SYF

3143

2003

DATE DELIVERED:

27 June 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Moore J

HEARING DATE:

28 and 29 May, 4 and 5 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hansen

SOLICITOR FOR THE APPLICANT:

Coustas & Co

THE RESPONDENT MOTHER:

Appeared on her own behalf

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr McPherson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Hamish Cumming Family Lawyers

orders

The parents are to have equal shared parental responsibility for the children S (born … December 1999) and T (born … May 2001).
The children are to live with their father.
Subject to orders 4, 5 and 6 hereof, the children are to spend time with their mother
(i)for a period of four (4) months from the date of these orders [ie until and including 27 October 2008]:
(a)one day every alternate weekend for a period of two (2) hours at specific times nominated by the B Contact Centre situated at … and the parents are to use their best endeavours for that time to occur on Sundays if the Centre can accommodate that time on that day;
(b)one day every other alternate weekend at Relationships Australia Contact Service at N at times to be nominated by the Contact Centre and the parents are to use their best endeavours for that time to occur on Sundays if the Centre can accommodate that time on that day; and
(c)the parents are both to complete whatever intake or assessment procedures may be required [if required] by the Relationships Australia Contact Service in N no later than seven (7) days from the date of these orders.
[It is noted as presently advised the Centre at N will not be available until July 2008]
[It is noted it is the policy of Relationship Australia N Children’s Contact Service that if a session is missed for any reason a further session may be offered the following week and if that session is missed for any reason the service will make a record of the fact that those sessions have not taken place.]
(ii)after the expiration of the period referred to in order 3(i) hereof for a period of three (3) months [ie until and including 27 January 2008]:
(d)on Sunday each week between 10am and 4pm;
(iii)after the expiration of the period referred to in order 3(ii) hereof for a period of three (3) months [ie. until and including 27 April 2008]:
(e) from after school Friday to 5pm Saturday each week; and
(f) the mother is entitled to attend any school function or parent interviews that parents are invited by the school in the normal course to attend;
(iv)after the expiration of the period referred to in order 3(iii) hereof [after 28 April 2008]:
(g)during school terms, from after school Friday to before school Monday each alternate weekend; and
(h)during school holidays, for one half of each school holiday period as agreed and failing agreement the first half in even numbered years and the second half in odd numbered years.
When changeovers of the children’s care are to occur other than through the school, the changeovers are to take place through the B Contact Centre and if the Centre is unavailable the changeovers are to take place outside L Police Station.
The mother is to have telephone communication with the children each Thursday between 7pm and 7.30pm to be facilitated by the mother telephoning the children within that time and the father is to make the children available to take her call.
If the father does not provide to the mother his telephone number then the mother is at liberty to provide a pre-paid mobile telephone to the children for the purpose of making those calls and the father is to ensure it is available to them at those times and used for that purpose.
The mother is to submit to urinalysis screening as follows:
(a)for a period of five (5) months from the date of these orders the mother is to provide samples for testing each week on Monday, Friday and one further random test;
(b)for a further period of seven (7) months thereafter the mother is to provide samples for testing once a week on a random basis;
(c)random tests pursuant to (a) and (b) hereof are to be instigated by the Independent Children’s Lawyer telephoning the mother on her mobile telephone number by 6pm the evening before the testing is scheduled to occur and the Independent Children’s Lawyer is to make the necessary appointment at the pathology laboratory several days beforehand;
(d)the tests are to be conducted by D Laboratory at L [‘pathology laboratory’] unless otherwise agreed or by further order of the Court;
(e)at the commencement of each test the mother is to provide the pathology laboratory staff with photographic identification and request that the taking of the urine sample be supervised and her identification and the supervision be noted on their records;
(f)the mother is to post a copy of all test results to the solicitors for the father as soon as each becomes available to her;
(g)the mother is to authorise the pathology laboratory to provide a copy of the test results to the Independent Children’s Lawyer if the Independent Children’s Lawyer requests copies at any time;
If the mother fails any urine screening test referred to in these orders by pathology results showing the presence of illegal substances then the time the mother spends with the children pursuant to order 3 hereof is suspended until the mother has provided four (4) consecutive weeks of clear tests.
If the mother’s time with the children is suspended pursuant to order 8 hereof then the periods of time referred to in order 3 is extended by the period of suspension.

10.The mother is to enrol in and attend a relapse prevention program run by “Pathways”, conducted through Fairfield Hospital, and complete that course within five (5) months of the date of these orders and forward to the father’s solicitors a letter confirming completion or a certificate of completion from the service provider.
11.The mother is to be at liberty to receive any information of the kind normally communicated to parents, written or oral, from the children’s schools and also from medical practitioners consulted by the children and to the extent necessary the father is to authorise that information to be provided.
12.Each parent is to immediately inform the other of any serious accident or illness suffered by either of the children.
13.The parents are to initiate a communication book about the children’s arrangements and ensure it is with the children at changeover times.
14.Neither parent is to denigrate or permit any other person to denigrate the other in the presence or hearing of either of the children.
15.The father is restrained and an injunction is granted restraining him from relocating the residence of the children to Queensland or to any place other than in the municipality in which the children presently live without the written consent of the mother or further order of the court.
16.Pursuant to s 65L of the Family Law Act 1975 for a period of 12 months from the date of these orders:
(a)compliance with these orders is to be supervised by Mr G, Family Consultant, or other Family Consultant as may be nominated by the Manager Child Dispute Services if he is unavailable at any time;
(b)the supervisor is to give any party to the parenting orders such assistance as is reasonably requested by that party in relation to compliance with or carrying out these orders;
(c)the parents are to facilitate any request by the supervisor to meet with the children;
(d)the parents are to take all steps necessary to ensure that the children, or either of them, receive counselling if counselling is recommended by Mr G and make and attend appointments with any counselling provider reasonably recommended by Mr G;
(e)should Mr G recommend that the children or either of them receive counselling Mr G is at liberty to discuss the children’s needs or progress with the counsellor and has permission to provide the counsellor with a copy of the Family Reports.

17.The supervisor is requested to see both children at the earliest available appointment time for the purpose of informing the children of the nature and effect of these orders and the father is to do all things and make all arrangements necessary to present the children at the Child Dispute Services premises in the Sydney Registry of the Family Court at the time and on the date advised by the supervisor.

IT IS NOTED that publication of this judgment under the pseudonym Yargis & Hope is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3143 of 2003

Mr Yargis

Applicant

And

Ms Hope

Respondent

REASONS FOR JUDGMENT

Proceedings

In this case decisions are required about the arrangements for two young children, S [aged 8 ½ born in December 1999] and T [aged 7 born in May 2001; more particularly, what time they should spend with their mother and the circumstances in which that should occur. Those decisions have to be made against a troubling parental history, bound up as it has been with illegal drug use, an unstable lifestyle revolving around criminal activity, intervention by State child protection authorities followed by a series of foster placements, amongst other risks to their well-being.

Approach

The law is clear that the decisions required are to be taken with the best interests of the children as the paramount consideration [s60CA] and their best interests are to be determined through the filter of a range of specific considerations [s 60CC] viewed against stated objects and principles [s 60B]. One key issue relevant to their best interests is the existence of risk of harm, which is not disputed, and the evaluation of its magnitude, which is in dispute; in other words, whether on the whole of the evidence the children’s time with their mother and the circumstances in which it takes place is likely to expose the children to an unacceptable risk of harm.
The approach to risk and its magnitude was discussed by the High Court 20 years ago in M and M (1988) 166 CLR 1235 and nothing has displaced it since [see Full Court decisions of W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; Johnson and Page (2007) FLC 93-344]. While concerned there with the risk of sexual abuse, M and M applies equally to all risks of harm to children. What was said at paragraphs 77-78 is to be read in that light and illustrates the approach:
‘In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’
The Honourable John Fogarty AM comprehensively discussed some relatively recent appellate level cases in “Unacceptable risk – A return to basics” (2006) 20 Australian Journal of Family Law 249 at 251. A summary of the principles to be derived from M and M and his analysis [replacing s 140 Evidence Act (Cth) 1995 where reference is made to the ‘Briginshaw test’] was adopted recently by the Full Court in Johnson and Page (supra) at 81,890:
‘1 The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
If it is concluded that there is no unacceptable risk arising from a particular arrangement, it may nonetheless be necessary to consider the other parent’s belief about what underlies the risk [see Full Court discussion in R and C, (unreported, Full Court of the Family Court of Australia, Fogarty, Baker and Lindenmayer JJ, 25 June 1993)] and whether the belief is genuinely held. As discussed by the Full Court in A and A (1998) FLC 92-800 [Fogarty, Kay and Brown JJ], it is not necessary that the belief be reasonably and objectively based, but that it be genuinely held. If it is, it may be necessary to consider whether the arrangements contemplated by reason of the finding of no unacceptable risk would so impact on the parent’s capacity as primary carer as to impinge upon the interests of the children. If so, despite the finding about the magnitude of the risk, other arrangements, proportionate to the circumstances, may need to be considered so as to allay apprehensions [see also B and B (1993) FLC 92-357 and N v S(1996) FLC 92-655]. None of that is to say the opposition of the primary carer parent to a particular arrangement or the wishes of that parent are themselves relevant since the determination is about the interests of the children and not the parent’s wishes. But, as Fogarty J discussed in Sampson and Sampson (1977) FLC 90-253, the parent’s reasons for holding that view should be given proper weight and the detriment and advantages to the child of the available options have to be weighed. His Honour concluded the discussion with this observation:
‘7. In cases where the attitude of the custodial parent is genuinely but unreasonably held, the relevance, and in my view the only relevance, of that attitude of the custodial parent is that such wilful or irrational behaviour may indicate such a defect of personality or character as to indicate that that person may not be a suitable custodian for the child. Similarly where the non-custodial party is prepared and able to assume the duties of a custodian and is prepared to agree to access to the other party that circumstance may be of such overall advantage to the long term welfare of the child that it may, taken with all the other relevant factors, justify the Court in altering the custodial position.’
The guidance these cases offer will be taken up in discussion of the outcome after the evidence is outlined and findings are made about the relevant s 60CC considerations.

Evidence

The father did not call any witnesses to supplement his evidence. The mother called evidence from her partner, Mr H. There is also evidence from Mr G, Family Consultant, who has had a history of engagement with the parties over some time now. He has presented three Family Reports – dated 30 April 2007, 10 August 2007 and 27 April 2008 – which were supplemented by evidence he gave at the hearing. His assessments will be discussed in due course and are given their due weight after being considered alongside all the other evidence. To the extent that I draw a different conclusion it will be discussed in context. Also in evidence are various documents tendered without objection.

Issues

Following discussions pre-hearing, the parties agreed these are the issues:
1.Should the Mother undergo random urine screening three times a week for two weeks prior to her time with children commencing. Mother says no, Father says yes.
2.Should urine sample collected at D laboratory be under their normal protocols or pursuant to “chain of custody”?
3.If “chain of custody” who should meet the costs?
NOTE
§ Chain of custody three times a week costs approximately $200.00;
§ Mother, although in a relationship and new partner works, is unemployed; and
§ Father on a pension.
4.For how long and at what frequency should the urine screening continue?
5.The effect upon the Mother’s time with the children if the Mother fails a urine screening.
6.The frequency and time the children should spend with the Mother.
7.For how long should supervision be in place and the nature of that supervision.
8.Who should provide the supervision.
9.Should the Father undergo urine screening and if so, the type of such screening, the frequency and duration.
10.Telephone contact.
However, the evidence does give rise to other issues relevant to the interests of the children and they will be taken up in what follows.

Orders sought

Since the outcomes proposed were in constant motion, perhaps it will serve some useful purpose to set out what emerged as the final positions.

First, at the outset of the hearing some orders were agreed although there were later changes by the withdrawal of 4 and 5 below:
1.The parents have equal shared parental responsibility for the children, [S] (born […] December 1999) and [T] (born […] May 2001).
2.That the children live with the Father.
3.The Mother should undergo urine screening (see parties’ proposals).
4.~~The Mother’s time with the children for the first six months should be supervised (see parties’ proposals).~~
5.~~After six months of clear urine screening the Mother’s time with the children should be unsupervised (see parties’ proposals).~~
6.The Father to authorise the children’s schools and medical practitioners to provide to the Mother any information she may request.
7.Each party to immediately inform the other party of any serious accident or illness suffered by the children.
8.Each party to be restrained from taking or being under the influence of illicit drugs or taking alcohol to excess.
9.That neither party shall, or cause any other person to denigrate the other in the presence or hearing of the children.
10.That the parties will initiate a communication book in relation to the children and ensure it is with the children at changeover times.
11.That it be noted the Mother undertakes to continue with drug and alcohol counselling for the next six months.
There is also agreement about the orders being supervised pursuant to s 65L as proposed by the ICL in exhibit 18 in these terms:
1.That pursuant to s 65L of the Family Law Act 1975 for a period of 12 months from the date of these orders:
(a) compliance with these orders is to be supervised by [Mr G], family consultant, or such other family consultant as may be nominated by the Manager Child Dispute Services, if he is unavailable at any time;
(b) the supervisor is to give any party to the parenting orders such assistance as is reasonably requested by that party in relation to compliance with or carrying out these orders;
(c) the parties shall facilitate any request by [Mr G] to meet with the children.
2.That the parties shall take all steps necessary to ensure that the children, or either of them, receive counselling if such counselling is recommended by [Mr G], and make and attend appointments with any counselling provider reasonably recommended by [Mr G].
3.That should [Mr G] recommend that the children or either of them receive counselling [Mr G] be at liberty to discuss the children’s needs or progress with the counsellor, and have leave to forward to the counsellor a copy of the Family Reports.
The ICL also proposes the following orders with the tender of exhibit 20, later amended by addition of a handwritten note [thereby replacing the earlier proposal in exhibit 19]:
1.That the mother spend time with the children for a period of 6 months as follows:
(a) one day of each alternate weekend for a period of 2 hours at specific times nominated by the [B] Contact Centre at […], and the parties shall use their best endeavours for such time to occur on Sundays, if the Centre can accommodate;
(b one day each other alternate weekend at Relationship Australia Contact Service at [N], at such specific times nominated by the Contact Centre, and the parties shall use their best endeavours for such time to occur on Sundays, if the Centre can accommodate;
2.That the parties shall both complete all intake or assessment procedures as may be required by the Relationship Australia Contact Service in [N] within 7 days of these orders, noting that at present the Centre will not be available until July 2008.
3.That for a period of 6 months the mother undergo urine screening tests each Monday, and Friday, and one random test weekly.
4.That for a further period of 6 months the mother undergo urine screening tests once a week on a random basis.
5.That where random tests are to occur, the testing shall be triggered by the Independent Children’s Lawyer telephoning the mother on her mobile telephone number by 6pm the evening before the testing is due to occur such testing appointment to be by the Independent Children’s Lawyer several days before.
6.That the tests referred to in orders 2 and 3 shall be conducted by [D Laboratory] at [L] on a supervised basis.
7.That the mother at the commencement of the tests referred to in orders 3 and 4 provide to the testers photographic identification.
8.The mother shall provide test results to the solicitors for the father as soon as same are available.
9.That the mother shall authorise such facility to provide test results to the Independent Children’s Lawyer if such results are requested by the Independent Children’s Lawyer.
10.That after the expiration of the period referred to in order 1 herein, the mother shall spend time with the children on Sunday each week between 10am and 4pm for a further period of 2 months.
11.That after the period referred to in order 10, the mother spend time with the children from after school Friday to 5pm Saturday each week for a further period of 2 months.
12.That after the period referred to in order 11, the mother spend time with the children from after school Friday to before school Monday each alternate weekend, and for one half of school holiday periods as agreed and failing agreement the first half in even numbered years and the second half in odd numbered years.
13.That if the mother fails any urine screening test referred to in these orders then the time the mother spends with the children shall be suspended until the mother has provided 4 weeks of clear tests.
14.That if the mother’s time with the children is suspended pursuant to order 13 then the periods of time referred to in orders 1, 10, 11 be extended by the period of such suspension.
15.That when changeovers occur other than through the school, the changeovers take place through the [B] Contact Centre, and if the Centre is unavailable outside [L] Police Station.
16.That the mother have telephone communication with the children each Thursday between 7pm and 7.30pm, and the mother to telephone the children at those times.
17.That the mother enrol in and attend a 6 week Relapse Prevention Course conducted through Fairfield Hospital, and complete such course within 6 months of the date of these orders and forward to the father’s solicitors a letter or certificate of completion from the Service provider.
[As per handwritten note later added]
That it be noted that it is the policy of Relationship Australia [N] Children’s Contact Service that if a session is missed for any reason a further session may be offered the following week and if that session is missed for any reason the Service will make a record of the fact that those sessions have not taken place.’
The mother’s proposals, other than those noted as agreed earlier, are to be found in exhibit 21 expressed in these terms:
1.That for a period of 6 months, I undergo supervised urine screening each Monday, Wed, Fri and that photo I.D. be shown on each occasion.
2.That for a further 6 months I undergo supervised urine screening twice a week on a random basis.
3.The above is to be done at [D Laboratory in L] and the results to be forwarded to the children’s rep.
4.That contact commence immediately and for the first 2 months occur at [B Contact Centre] at 2 hours each Saturday.
5.That for the following 3 months contact occur each Sunday from 9am – 4pm with the contact centre used for changeover.
6.That for the following 3 months I spend time with my children each week from Fri after school till 5pm Saturday.
7.That after the period referred to in order 6 then contact is to occur each alternate weekend from Fri after school to commencement of school Monday.
8.That to coincide with the time spent in order 7, I get to spend time with my children for half of all school holidays and failing agreement the first half in odd numbered years and the second half in even numbered years.
9.That if I fail any urines then contact is suspended until I provide 4 weeks of clear tests.
10.That if my time with the children is suspended pursuant to order 9 then the periods of time referred to in relation to contact earlier are to be extended.
11.That when changeovers occur other than at the school, the changeovers take place at [B] Contact Centre and if the Centre is unavailable then outside [L] Police Station.
12.That I have telephone contact each Thursday night between 7-7.30pm.
13.That I complete a relapse prevention program run by “Pathways” (a branch of Fairfield Hospital) ( within 3 months of these orders and forward proof of such completion to the children’s rep and [the father’s] solicitors.
14.That [the father] authorise the children’s schools and medical practitioners to provide me with any information I may request.
15.That I have the right to attend any school function or activities that I’m as parent able to.
16.Each party to inform the other immediately of any serious accident or illness suffered by the children.
17.That [the father] be refrained from relocating the home of the children outside the Sydney metropolitan area.
18.That [the father] undergo supervised drug screening once per week on a set day at [a] lab convenient to his location for a period of 6 months.
19.That the children be involved in individual counselling (without [the father] or myself present).
The father’s final proposals, after a series of shifts in his position throughout, were expressed this way in exhibit 17:
‘A. 1-6 months supervised [B] 2 hours Sat.
3 x testing ID supervised Monday Friday
[D Laboratory] one random
B.7 – 12 1 day per week – Sunday unsupervised
Testing 1 random per week
C.13 – 24 alt. Saturday am to Sunday 2pm
Half school holidays
D.Alternate w/ends Fri after to 4pm Sunday
Breach – one month clear at whatever is operating at the time
[As per later document provided by father and then attached to exhibit 17]

-Random Test to be triggered on the same day.
-Procedure of Testing at [D Laboratory]:
-mother to see doctor for the referral who sites (sic) the ID.
-mother then takes the referral to laboratory. Prior to the testing, the collector at the lab is to complete a procedural form confirming details of the mother and confirms that the collector checks the identification of the mother prior to being tested.
NoteIn relation to “Blue Form”, this is the doctor’s referral and does not confirm that identification was produced to the collector prior to the testing.’

Background

The father (40) was born in September 1967. The mother (29) was born in December 1978. The evidence suggests their relationship began around April 1997. They have two children: S (8½) born in December 1999 and T (7) born in May 2001. It appears they separated around November 2000 while living on the Sunshine Coast in Queensland when the mother was pregnant with T. She left at the time and returned with S to Sydney. The father followed and they reconciled for some months before the final separation which appears to have been sometime in late 2001 before the father went to prison for a period of 9 months in early 2002.
As Mr G reports it, they acknowledge they both used illegal drugs throughout their relationship and it is common ground there was family violence and the father was involved in drug related criminal activities.
As the father relates the history, he met the mother in an adult entertainment venue he attended and their relationship began from there. Over the early years of the relationship he says he would constantly tell her to stop working in this industry and ‘get a more respectable job’, to no avail. If the father offers this information to the court to disparage or discredit the mother, which must be at least partly so, it attracts the observation that as a client of the venue the high ground is hardly available to him. His own account of his drug use is to the effect that he smoked marijuana on a daily basis during their relationship. The evidence also establishes that he has a vast criminal history consisting of over 100 fraud related offences and he has been in prison three times in the past, the last being his incarceration during 2002. He agreed at one point in cross-examination that for a large portion of his life [he had run away from home at the age of 13] he could be seen as a ‘career criminal’ although he preferred the description of ‘lazy bum who did not want to go to work’. Indeed, when asked about his work history, he had to concede there had not ever been a time when he has not been in receipt of Centrelink benefits and he has not ever had a job, although he says he did some training to learn about constructing fences in return for accommodation at one stage. He relates having resolved to give up criminal activities a couple of times and he attributes relapses to pressure from the mother to ‘go out and make money’. In 2001 he voluntarily presented himself to police in an effort to ‘clear the slate’ and get outstanding matters out of the way. The result was the term of imprisonment mentioned. He was released in November 2002 and there have been no criminal charges since. He also maintains he has been ‘drug free’ since going to prison.
Turning to the mother’s background, Mr G reports she has a history of considerable family instability, family violence, abuse and trauma during her formative years which has culminated in poor relationship choices and a propensity for low self esteem, depression and drug abuse. Certainly she has a long history of drug abuse which continued throughout the relationship with the father and beyond, but further discussion of that can be deferred until later because that history is central to the decisions now to be taken. It is common ground that she worked as an adult entertainer, including during the time she was with the father, but on her case that ceased some time ago. Last year she started a TAFE course which she did not complete and around September she started work in a retail shop although she left that job in March this year. The reasons she gave relate to the stress she was experiencing, to make time for counselling she has resumed to deal with circumstances that have developed, to undertake urinalysis throughout the week which occurs only during specific hours at the pathology laboratory she attends, and she has also had the responsibility of representing herself in these proceedings. She is now on Centrelink benefits. Since January this year she has lived with Mr H with whom she formed a relationship last year.
After the final separation in 2001 the children remained in their mother’s care. There is a curious dispute about whether or not she took them to see the father while he was in prison – she says she did not and he says she did on several occasions even though he told her he did not want the children brought to the prison environment – but it is not necessary to make a finding one way or the other. On the father’s release from prison in November 2002 arrangements were agreed for him to spend time with the children every weekend at his parents’ home.
Mr G says, correctly, there is an indication of the circumstances of the children over the three years between 30 August 2000 and 28 June 2003 from the eleven ‘at risk’ reports received by the Department of Community Services.
In April 2003 the father brought proceedings in this Court seeking certain parenting orders and on 17 June 2003 interim orders were made by consent providing for him to spend time with the children from 9am to 5pm each Saturday in the presence of certain persons.
On 28 June 2003 there was an extremely significant and troubling event. The surrounding circumstances are to be found in the police facts sheet. In short, the mother was at a motel with a man known to her and the children, then aged 3 and 2 years, were in her care. While there S ingested a number of ecstasy pills in a Kinder Surprise [lolly] box and she was taken to hospital where her condition became critical. It is alleged her mother would not reveal the substance S had ingested despite police and hospital staff ‘frantically’ attempting to find out from her what she believed had been consumed. While outside having a cigarette with an unrelated person the mother revealed that S had swallowed ecstasy tablets. It is alleged she withheld the information to avoid drug possession charges and this put the child in a life threatening situation. S responded in due course to emergency treatment. The mother was arrested two days later and participated in a record of interview in which she denied possession of any prohibited drugs and could not provide an explanation for what had happened to her daughter. She did admit to being neglectful due to the presence of the child in the motel room. She pleaded guilty in the course of the later hearing.
Court proceedings in the Children’s Court followed the event and orders made there effectively brought to an end the pending proceedings in this Court. Both children were placed in the care of the Department and they remained in foster care for the next 17 months. Under the direction of the Department the parents were permitted to visit the children for short intervals each week and they were obliged to undertake a regime of specified drug testing. The father satisfied those arrangements but the mother did not and in November 2004 the children were placed in the care of their father. They have lived with him since. Their time with their mother over the 3 ½ years to follow has a more chequered history.
As I apprehend it, during 2005 the children spent time with their mother once a week at a Contact Centre. However, this came to an end around December 2005 because, as the mother expressed it to Mr G, she was ‘in the worse state of addiction I had been in my whole life’. She was admitted to a rehabilitation centre in late June 2006 and remained in residence until 10 July 2006. Afterwards she continued for a time with the centre’s after care program.
Against the background of those developments, on 5 September 2006 the father instituted further proceedings in this Court seeking orders that the children live with him and that any contact with their mother be supervised. For some months to follow there was a series of Court appearances and orders made about the children’s arrangements. In summary:
·On 12 September 2006 an independent children’s lawyer was appointed and for a specified period the children were to live with their father and spend time with their mother as agreed. In her response filed not long after this, the mother sought equal shared parental responsibility, the children to live with their father and spend time with her every second weekend, special occasions, and for half of the school holidays as well as regular telephone contact. She also sought a suite of other orders, including restraint on the father relocating the children outside the Sydney metropolitan area.
·On 1 November 2006 interim orders were made for the children to live with their father and spend time with their mother, subject to clear drug screen tests as set out, each Saturday for six weeks from 9am to 11am to be supervised by the children’s paternal grandmother; each Saturday for a further six weeks from 10am to 2pm by the mother collecting the children from their paternal grandmother’s residence; each Saturday for a further eight weeks from 10am to 5pm by the mother collecting them from their paternal grandmother’s residence; and there was also provision for time on special occasions such as Christmas Day and birthdays as well as telephone contact. The conditional orders were these:
‘a. the Mother having urine testing to establish that she is no longer using any illicit substances on three occasions each week on a Monday, Wednesday and Friday up until 29 January 2007 and thereafter on two occasions per month within 48 hours of the Mother’s solicitors receiving a request from the Independent Children’s Lawyer and that such tests be undertaken at supervised drug testing facility; and
b. forwarding a copy of all results of any urine tests undertaken by her to the Father and the Independent Children’s Lawyer within 24 hours of the results becoming available or alternatively giving any authority necessary to the testing facility to enable them to forward the results directly to the Father and the Independent Children’s Lawyer.’
[The orders noted that on the adjourned date consideration will be given to whether the mother’s time spent with the children will increase to include overnight visits]
·The father sought a review of these orders, resisting unsupervised contact without prior strict drug testing. On 8 December 2006 the review was heard by Rose J who made orders ‘by consent on a without admissions basis’ which had the effect of suspending the interim orders until 23 January and providing in the meantime for the children to spend time with their mother each Saturday from 9.30am until 11.30am supervised at the C Contact Service.

On 23 January 2007 the matter first came before me. The parties were to attend a conference with Mr G in an effort to resolve matters, but that did not happen and so on 14 February 2007 an order was made for a Family Report to address relevant considerations: the children’s attachments; the nature of their relationship with each parent and other significant persons; the willingness of each parent to facilitate the relationship with the other parent; the parents’ attitude to their parental responsibilities, their capacity to meet the children’s needs; any risk of harm to the children in the care of either parent; and any other matter considered relevant in the opinion of the reporter. Further orders were made continuing certain arrangements under the 1 November orders and the children’s time with their mother was to be each Sunday for a period of two hours supervised at the C Contact Centre and provision was made for telephone contact each Wednesday. The hearing was set to commence 4 June.
On 30 April 2007 the first Family Report became available. However, the reporter had been unable to properly address the matters directed since the father did not present himself or the children for interview; he had rung on the morning appointed to say he and one of the children were sick. The mother did keep the appointment. She advised she had been spending time with the children at the Contact Centre pursuant to the orders and the children were enjoying their time with her although, at the father’s request, the arrangements had changed to four hours each fortnight instead of two hours each week. She also advised Mr G she had recently smoked marijuana.
Mr G correctly observed that in light of the events in June 2003 the mother’s admission of marijuana relapse meant the interviews would have to be rescheduled so the father and the children could attend. Therefore the 4 June hearing was postponed and rescheduled to commence on 21 August 2007 and the father was directed to present himself and the children for interviews on 16 July.
In the meantime, there was a development in June 2007 which has had far reaching consequences in several directions. It came about when the mother went to stay at the father’s home for two days at his invitation after an argument with her mother. An event during that time gave rise to mutual allegations of sexual assault. The mother alleged that the father pressured her into a sexual act which she agreed to because, as she later told Mr G, ‘he has all the power over me’ in relation to the time she is permitted to spend with the children. The father alleged that while sleeping next to T he awoke during the night to find the mother sexually assaulting him by performing oral sex on him. The mother left his premises the next morning. This was followed by engagement with the police. The father said he went to the police after he received a text message from the mother to this effect: ‘what would your daughter think if she knew that her mummy would have to perform oral sex (or words to that effect) to see the children’. While at the police station reporting the incident he says he received several telephone calls from the mother which he described as ‘very erratic, threatening and abusive.’
Whatever the situation, the police applied for an AVO against him on the mother’s behalf and in due course after a contested hearing an order was made for a two year period. The father also instigated proceedings for an AVO against the mother which were dismissed and he was ordered to pay costs. He lodged an appeal in the District Court although the nature of the appeal and the stage it has reached has never been clarified. It appears there was also a police investigation into the sexual assault allegations but the investigation was suspended at some point because, as the father tells it, the police were unable to have the mother provide a statement. It seems there may be more court proceedings to come if the father’s affidavit is any indicator – he stated there will be future legal action taken against the mother when his brother is well enough to give evidence in court since he has been told this is the only way to get past the sexual assault on him by the mother.
Certainly the father conveys his views about the event in strong language. His evidence is peppered with references to her telling ‘lies’, alleging that she ‘continues to attempt to denigrate (him) and attempt to make trouble for (him)’, suggesting she has ‘continually abused the legal process’, she has ‘blatantly lied to police by making such false allegations’, and it has restricted him from spending valuable time with his children. Perhaps the father’s heightened response derives partly from his concerns about being put in jeopardy of returning to jail, as his counsel relayed from the bar table at one point. Mr G commented in the most recent Report that the father’s ‘negativity towards [the mother] and his apparent obstructiveness in relation to the children spending time or having telephone contact with their mother’ has been exacerbated by his sense of ‘outrage and humiliation arising out of her accusation that he sexually assaulted her’ and her contact with the children is contingent on her apologising for accusing him of sexually assaulting her. No mention is made in the Report of the mother’s attitude, whether of outrage and humiliation or otherwise, and perhaps that is because her insistence on his wrongdoing and her statement that it has caused her distress is conveyed with less fluster, while appearing no less genuine than the father’s. Of course the display of indignation is consistent with the truth of a denial, but then again its power to convince can be overvalued since it is hardly likely a false denial will be asserted without a degree of rectitude, particularly when grave consequences might hang in the balance.
That said, this is not a case where the decisions to be made require a finding about what happened and so the probabilities attaching to one version or the other need not be considered; if they are to be judged, it will occur elsewhere. But there have been other consequences from the episode, yet to be discussed.
On the heels of the event and its fallout, the interviews for the second Family Report took place in mid-July. Both parents related something of their circumstances at the time:
·The mother had not had contact with the children since she left the father’s house some weeks earlier and, I gather, she did not attempt to do so. She told Mr G she wanted unsupervised time with the children and she asserted they were not at risk although she recognised supervision would continue given her use of marijuana during the preceding months. She said she was living with her mother but unemployed and she had discontinued her TAFE course as well as urinalysis. She said she had smoked marijuana on occasions in the past six months, though she denied using any other illegal drugs, and the last occasion had been with the father in his garage during the two days she had spent in his house in June.
·The father said he believed she was still using drugs ‘extensively’ and he ‘suspected’ she had returned to adult entertainment. He considered the children still to be at risk in her care and therefore supervision should continue. He denied smoking marijuana with her during her stay at his home. Amongst other things, he said S misses her mother and feels let down by her if she does not turn up or telephone. He described S as ‘sad’ and ‘disappointed’ her mother had not turned up for the last two occasions. He had reassured S her mother loves her and he speaks positively about their mother. He described T as having only a weak attachment to his mother. He said they do not know about her drug use.
As for the children, Mr G assessed S as an ‘intelligent, compliant, kind and thoughtful child’ who appeared at times to assume something of a ‘motherly role’ towards T. Speaking of the diary she shares with T, S said she writes that she is sad when her mother does not ring. Of her mother’s recent stay at her father’s house, she said: ‘I like her coming to my house more than there (ie the contact centre)’ adding ‘that was the first sleep over I could remember and we played musical chairs and we don’t have enough players any more.’ As for spending time with her mother, S said: ‘We could live in a house together so I could see her all the time. I want to spend the same amount of time with my Mum and Dad.’ She cried when she described her feelings about her mother not turning up to pick her up from school after her mother had left her father’s home. S observed: ‘[T] doesn’t say nothing about my Mum’ but she added: ‘she is in my head all the time.’ When she drew her family she drew her mother in a bright red flowing dress. Mr G assessed T as easily losing his train of thought although he managed to indicate he likes playing with and spending time with his mother but he would ‘like Dad to be there’. When T drew his family he drew himself, his father, S and his mother in that order.
Reporting his observations of the children with their mother, he said S greeted her mother warmly and enthusiastically and he described her as physically affectionate towards her mother who responded similarly. The interaction between them was reported as ‘joyful, natural and relaxed and the mother appeared to have a calm authority in relation to the children.’ Both parents, he said, interacted easily with the children.
In his evaluation Mr G noted that both parents had struggled with drug addiction for prolonged periods ‘probably as a result of their respective complex and problematic childhoods, and the children had been exposed to risks that are commonly associated with extensive drug use and addiction – including neglect, family violence, chaotic and unstable lifestyle and the sporadic, physical and emotional availability of parents.’ In S’s case, he accurately observed, the risks had proved to be grave and life threatening. He saw indications that the father had for the most part overcome his addiction although the mother’s allegation of recent use of marijuana was of concern. He had suspicions about the mother’s usage, particularly given that in recent months she had discontinued her TAFE course, she had not provided urine samples, and had not turned up at the Contact Centre to spend time with the children despite her love for them and her awareness of the disappointment her absence would cause them. She acknowledged resorting to marijuana to deal with emotional stress, despite being fully aware that any usage could impact on her time with the children and therefore her relationship with them. Noting her comment that she tends to ‘sabotage’ herself, he described this as a phenomena that is often associated with low self esteem. Even so, he said he had no doubt she has the potential to be a nurturing and involved mother. Paradoxically, he observed, her limited involvement in their lives challenges her self esteem which in turn probably exacerbates her predisposition to resort to drug use.
In his opinion S is ‘yearning’ for a mother figure and for her own mother to be restored to her; the limited time with her mother at the Contact Centre is insufficient to satisfy her ‘emotional hunger for a more substantial and normal relationship’ with her mother. He noted T to enjoy spending time with his mother, but his emotional need for her is less pressing than his sister’s and he appears less affected by his mother’s inconsistencies in spending time with them. Nonetheless, he said T would benefit from the emotional nurturance and warmth that his mother could provide for him.
Commenting on the mother’s vulnerability to drug use at times of stress or in response to feelings of low self esteem and self doubt, Mr G could not confidently recommend unsupervised time with the children. But he also noted she has much to offer them and they need to spend substantially more time with her than is possible at the Contact Centre. He suggested that if a reliable supervisor could be found then for a period of one year the children spend time with their mother each week from Friday evening after school until Monday morning before school; if not, the time be as frequent as possible at the Contact Centre. In either event, he recommended the mother continue with urinalysis for a year and she obtain professional intervention to help assess and resolve the emotional issues that underpin her predisposition to addictive and self-destructive behaviour. He also suggested the orders be supported for a year by an order pursuant to s 65L.
At the August hearing the father was represented by counsel, as was the ICL, and the mother represented herself. On the second day of the hearing, after discussions between the parties and with assistance from Mr G, interim orders were made. They were designed to put in place a regime that would see the children’s care eventually move to unsupervised time with their mother, underpinned by clear results from regular testing for illegal drugs, and there was to be a review of the arrangements before overnight visits were scheduled to be introduced. Given the events that followed the making of the orders, the orders are set out in full:
‘1.The parents have equal shared parental responsibility for the children [S] born […] December 1999 and [T] born […] May 2001.
2. The children are to live with their father.
3.The children are to spend time with their mother as follows subject to these orders:
(a)for a period of three (3) calendar months commencing the weekend of 25 and 26 August 2007
(i)each week alternating between Saturday one week and Sunday the next for four (4) hours at times to be agreed;
(ii)to be supervised at the [C] Contact Service at […];
(iii)costs related to the supervision in (ii) to be paid by the mother.
(b)thereafter for a period of six (6) calendar months commencing the weekend of 24 and 25 November 2007
(i)subject to (b)(ii) hereof, one day each weekend, either Saturday or Sunday depending on the opening of the [C] Contact Service at […], for seven (7) hours commencing at 10am and concluding at 5pm;
(ii)if Saturday, and either child has a sporting or other extra-curricula commitment on that day requiring their attendance at the time they are to go into their mother’s care pursuant to the arrangements in (b)(i), then either the period is to commence at such time as to enable the mother to take the child/ren to that commitment or later after the commitment has concluded, as agreed by the parents;
(iii)the children are to be collected at the [C] Contact Service at […] by their mother at the time specified in (b)(i) or agreed in (b)(ii) and returned there in time for collection by their father at 5pm;
(iv)costs related to the handover arrangements in (b)(i), (ii) or (iii) to be paid by the mother.
(c)thereafter for a period of three (3) calendar months commencing the weekend of 24 and 25 May 2008
(i)on the first weekend from 2pm Saturday to 5pm Sunday and each second weekend thereafter;
(ii)on the second weekend from 10am to 5pm on either Saturday or Sunday as agreed and each second weekend thereafter;
(iii)the collection and return of the children is to be shared equally between the parents with the changeover venue being by agreement but absent agreement proximate to a police station about midway between their residences.
(d)thereafter commencing the weekend of 23 and 24 August 2008 until the beginning of the school holiday period at or around Easter 2009
(i)each second weekend from after school Friday until before school Monday or if falling during gazetted school holiday periods from 4pm Fridays to 9am Mondays;
(ii)over the Christmas 2008 period from 3pm Christmas Eve to 1pm on Christmas Day when they will be returned to their father;
(iii)the collection and return of the children is to be shared equally between the parents with the changeover venue being by agreement but absent agreement proximate to a police station about midway between their residences.
(e)thereafter from the beginning of the school holiday period at or around Easter 2009
(i)for one half of each school holiday period, the Christmas period to be alternated between the first half in even numbered years and the second half in odd numbered years;
(ii)during school terms each second weekend from after school Friday until before school Monday;
(f)at all times
(i)by telephone twice per week on days to be agreed for a reasonable duration by the mother telephoning the children between 5.30pm and 6.30pm and on each of their birthdays and on Christmas Day.
4.During the operation of the periods referred to in 3(a), (b) and (c) hereof, expiring the weekend of 23 and 24 August 2008, the following is to apply:
(a)the mother is to attend a clinical consultation each fortnight with Dr [O] or a clinician nominated by him in his absence or at such other times as Dr [O] recommends;
(b)so as to test for the presence of prohibited drugs the mother is to:
(i)provide to Dr [O] at each clinical fortnightly consultation a urine sample to be taken under supervised conditions;
(ii)provide two further urine samples each fortnight under supervised conditions at Dr [O’s] surgery at times to be randomly notified by the father making an appointment for the mother at that surgery (if appointment is necessary) and notifying her by SMS no later than 7pm the previous evening of the time of the appointment;
(iii)authorize the results from the testing referred to in (i) and (ii) to be forwarded forthwith to the Independent Children’s Lawyer.
(c)if any of the tests referred to in order 4(b) are returned positive for any substance the Independent Children’s Lawyer is to contact the parties and take any available steps to have the parties confer and agree about the consequence of the result and, failing agreement, list the matter for mention;
(d)if at any time the time to be spent with the mother is withheld each parent is to notify at the earliest available opportunity the Independent Children’s Lawyer who is to take any available steps to have the parties confer and agree about upcoming arrangements and, failing agreement, list the matter for mention.
5.If the mother does not attend at the clinical consultations referred to in order 4 hereof Dr [O] is requested to notify the Independent Children’s Lawyer.
6.The Independent Children’s Lawyer is at liberty to provide a copy of these orders to Dr [O].
7.So as to test for the presence of prohibited drugs during the operation of 3(a), (b), and (c), the father is to provide two (2) urine samples under supervised conditions and authorize the results from the testing to be forwarded to the Independent Children’s Lawyer.
8.The appointment of the Independent Children’s Lawyer is to continue for a period of 12 months from the date of these orders.
9. Pursuant to Section 65L of the Family Law Act 1975:
(a)compliance with these parenting orders is to be supervised by Mr [G], Family Consultant of the Sydney Registry or other Family Consultant nominated by the Manager Child Dispute Services if he is unavailable at any time;
(b)the supervisor is to give any party to the parenting orders such assistance as is reasonably requested by that party or by the Independent Children’s Lawyer in relation compliance with or carrying out these orders.
10.The matter is to be re-listed before Moore J for review of the orders at 10am on Thursday 8 May 2008.
11.Each parent is to:
(a)keep the other informed of all medical treatment sought for or provided to the children by writing the information in a journal to accompany the children when changed from the care of one parent to the other;
(b)notify the other immediately of any emergency or hospital treatment;
(c)provide to the other copies of any school reports or awards provided to that parent by the children’s school provided also that each parent is at liberty to obtain from the school directly any school reports or newsletters or any other publications provided in the normal course to parents and each parent is at liberty to attend any parent/teacher interviews or any events to which parents are invited at the school.
12.The father is to consult with the mother about any arrangements for the children to be baptized and/or undertake religious instruction.
13.Neither parent is to:
(a)remove the children from the State of New South Wales without giving one (1) month’s prior written notice to the other;
(b)remove the children from the Commonwealth of Australia without the consent of the other parent.
14.All parties are at liberty to list the matter for mention upon the giving of 24 hours notice in writing to the other.
15.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these order.’

Important developments effecting the children after the August orders were made will be discussed shortly, but their arrangements were also set against the backdrop of further court proceedings, in summary:
·The father filed an appeal and sought a stay of the August orders pending the outcome of the appeal. On 22 November I dismissed the application for a stay of orders 1 and 2 and 4 - 15 inclusive but stayed the operation of orders 3(b) – (f) and varied order 3(a) to read:
‘3. The children are to spend time with their mother as follows subject to these orders:
(a) pending the hearing of the father’s appeal:
(i) each Saturday for four (4) hours at times to be agreed;
(ii)to be supervised at the [C] Contact Service at […];
costs related to the supervision in (ii) to be paid by the mother.’
·The appeal was later discontinued.
·On review, I set the matter for final hearing to commence 30 April 2008 and directed an updated Family Report. On 9 February the father had withdrawn the children from the Contact Centre declaring he would not return them there. He later filed an application seeking to vary the August orders and to change the venue away from the Contact Centre. He offered to have the children attend a play centre called Hocus Pocus where their mother could see them under video surveillance but the mother declined to take it up. Instead, she filed a contravention application and when that came before a Judicial Registrar on 16 April it was stood over to the first day of the 30 April hearing.
·Apparently the father was agitating the position he had taken at the hearing about drug testing with the Department of Community Services since their letter to him of 10 March 2008 responds to his telephone call on 7 February requesting their mother undergo drug testing prior to having contact with the children and for the cost of testing to be paid by the Department [exhibit 6]. The Department declined.
·At the outset of the hearing on 30 April the mother agreed to abandon the contravention application since she accepted that the facts would be considered in the history of events going to the overall consideration of the children’s best interests. She had not seen the children since 9 February save for the relatively brief encounter at Court premises on 25 March during the Report interviews.
·The father, representing himself, asked for the hearing to be adjourned and I dismissed his application for reasons then given. However, in the course of the morning he received word that his application for grant of legal aid had been successful, he wished to engage solicitors, and the hearing was then adjourned to 28 May.
I return now to developments after the August orders. Some days afterwards it came about that S wrote a statement in her father’s notebook related to the events in the house during her mother’s stay in June [exhibit 14]. The precipitating factor was never made very clear - the unit is small and she overhears things when he is talking to the police, the father said – but whatever brought it about he told S that when ‘mummy had a sleepover’ mummy told police he had hit her and this was wrong. Unprompted, he relates, S said she remembers what happened – ‘how could you hit her when she was sleeping in my bed?’ Despite his assurance that she should not worry, S insisted she wanted to help him by writing it down to tell the police and the court what had happened. She started to write her statement on a piece of paper, but he suggested if she wanted to help she should write it in his notebook where he recorded important things. He thanked her and said he will tell the police she wants to help. Asked the question at the hearing, he says he does not intend for S to give evidence in the District Court proceedings. What other proceedings he might be contemplating in light of the passage in his affidavit mentioned earlier is not known but presumably the same would apply to any future litigation.
It will be recalled that the father told Mr G in the interviews in July 2007 prior to the August hearing that the children had no knowledge of their mother’s drug history. It became apparent from the March 2008 interviews that the children had since acquired knowledge, including the events of June 2003 to the effect that when S was an infant she ingested drugs while in her mother’s care and she had been hospitalised. The father told Mr G that he was obliged to explain the incident to S after she overheard him talking about it on the telephone to a relative. The father was not so definitive about the precipitating circumstances when giving evidence on the topic at the hearing. He denied initiating the discussion with S or with T; it having been raised with him, he says he attempted to explain what had happened. As for where S had got any information, initially he said he presumed she got the information from documents at the house; he spoke of having documents at his home in boxes, bags, a filing cabinet with a broken lock, including near the computer in the lounge room – S goes through a lot of things, he explained, when he is cooking or cleaning or when he is showering her brother. He could not exclude the possibility that she had got the information from the Department’s documents. Yet he retreated from this explanation after a time when questions tended to suggest some shortcoming by leaving such sensitive documents lying around where they might be available to S who can read. In any event, he denies pointing out to S the motel where it occurred when driving past; in fact, he says, she pointed it out to him. He agreed the motel was named in the police facts sheet and there was also reference to it in the Department’s documents.
Putting to one side how the topic came to be discussed, the father says he told the children there had been an accident and S had been hospitalised but God and the doctors had made her better. He elaborated after being taken to the reference in Mr G’s Report to the children referring to a ‘lolly’ bag and he agreed this detail had been given. He says he also told them that drugs are very bad and they kill people. He also told S that she had been left with strangers in foster care, such as Mr and Mrs …. He agreed he said nothing of his own circumstances to explain why they were in foster care and not his care except to say he was ‘working’.
Mr G did not form the opinion that the father was deliberately trying to alienate the children from their mother and he discussed the topic further in these passages of his more recent report:
‘22. …..I am of the view that the children would already have been aware, at an unconscious (and therefore less manageable and more disturbing level) that something 'bad' had happened in their infancy and that this was connected to their mother. I am also of the view that, one way or another, it was inevitable that the children, as they reached middle school years, would develop a more conscious awareness of these events. Their awareness in this regard, at the least provides an opportunity for them, with help, to better integrate and process the above mentioned events and help them develop a more coherent and objective understanding of the complexities that impact on their relationships with their parents.’
23. Ironically, the children's conscious awareness, (and therefore alertness), to the dangers of drug misuse might also serve as a protective factor for them. Additionally, they are now less vulnerable to ingesting drugs accidentally than they were in early childhood. Having said that, the impact on parenting capacity and parent child relationships of intoxication and/or addiction, in terms of inadequate supervision and/or unstable lifestyle, is relevant to children of all ages.’
Turning to other developments since the August orders, the father did not undertake the drug testing ordered other than on one occasion. He says he deemed it pointless and hypocritical unless it was completed under supervision or involved some kind of identification check at the time of giving the sample. Furthermore, he says it was difficult for him to do so since there were costs involved and disruption to his routine with the children, not to mention the embarrassment of asking people to look after the children because he needed to go for a drug test. He denied his failure was because he was smoking marijuana, consistent with his denial that he had smoked marijuana with the mother in the garage at his home in June. He also dismissed concerns recorded by staff at the Contact Centre to the effect that they had smelt marijuana on him with the explanation that the brand of tobacco he smokes, White Ox, has a similar smell. He maintained his assertion that he has been drug free since 2003. As he sees it, he has proven himself to be drug free from the series of tests he undertook under the direction of the Department and there is no evidence the children are being neglected or not doing well at school.
All that may be so. The information the mother volunteered constituted an admission by her of relapse, so it could only impact adversely on her case. And it does raise the suspicion that the father did use marijuana in June last year and his failure to adhere to the order, knowing as he did of the allegation, tends to suggest he was concerned about detection.
Nor did the mother continue to comply with the orders for testing or for attendance upon Dr O. The father was obviously aware of this and yet, subject to missed dates to be mentioned shortly, he presented the children at the Contact Centre until 9 February and therefore in circumstances where there was no testing undertaken at all. The explanation the mother gives for the failure to comply relates variously to her circumstances at the time. She obtained her job at a retail shop about three weeks after the orders and she formed a relationship with Mr H. She says she did not have time for the testing and she thought it did not matter anyway since the father had control of the situation as far as she was concerned. She felt herself to be at his mercy and that he will never allow her to have a normal relationship with the children because ‘he wants complete control’. The AVO proceedings arising from the event in June last year were running parallel with these proceedings and they had moved to the District Court. She felt under stress from the separation from the children and the numerous court appearances, she had stopped counselling, and she threw herself into her job and relationship in an effort to outrun the stress. The upshot was that she started smoking marijuana again to deal with ‘insomnia, nightmares and stress.’ Mr H, who was not aware of her obligations under the court orders and unaware of her history, obtained marijuana for her. Apart from this relapse she says she has not used illegal substances, she is no longer smoking marijuana, and she says she is committed to maintaining that path. She left her job in March to make time for regular drug testing, which can only occur at certain times, and she has resumed counselling. The results from a number of tests she has undertaken this year – ranging from 1 April to 2 June – are negative for prohibited substances [exhibits 4, 24]. The mother asserts that she has been honest about relapses and has not tried to deny they occurred or to hide it. She also says her failure to adhere to the orders was ‘foolish’ and she is ‘painfully aware’ that if she had done so and not smoked marijuana she would by now be having the children in her care for weekends under the August orders.
Again, all this may be so. But it is one more relapse with marijuana, which she refers to as her ‘demon drug’, and that in circumstances where she can be taken to know the serious implications for her relationship with the children while ever this court is ordering their arrangements. In the meantime, whatever the logistical difficulties with her job, her failure to adhere to the orders also raises the suspicion of continued use and that path was taken to avoid detection. The relapse this year is not the first since these proceedings have been pending, now for some 20 months. The feelings of stress are understandable since she is not in the position that the father occupies with the children, but other means of addressing pressure must be found and sustained.
It has also been the case that up until the father withdrew the children from the Contact Centre in February the mother has missed allocated time with the children; on one occasion she had to work [he said he got little notice of this] and on another occasion she left early to attend a wedding. There have been many more occasions that the father has not brought the children to the Centre. Putting aside the delay in the first visit, said to be related to the father not having a copy of the court orders and his view of the need to attend the Centre to complete paperwork, he did not take the children on a number of occasions in August, September, November, and January for reasons related to his car breaking down on two occasions, a relative died, illness, and he took the children on holidays for two weeks in January.
A key development has been the father’s decision to withdraw the children from the Contact Centre on 9 February. They had no contact with their mother thereafter save for seeing her at the report interviews in March. Broadly expressed, his decision related to his view that the staff at the Centre had provided inadequate supervision and care for the children who were being subjected to abuse. While this arose from discussions with S and Centre staff after the 9 February visit, it is clear he had grievances related to other occasions; for example, they had ‘manhandled’ the children, T’s pants had not been changed, they had not informed him of the mother’s early departure to attend a wedding, the children had not been allowed to ring him from the Centre, and they are bored there. Despite consistent resistance from the children to going to the Centre, he had encouraged them to go. The particular concern on this occasion arose from S supposedly being ‘forced’ to tell her mother and staff that she wanted to stay with her mother and if she did not do so then her father would go to jail. Having advised the staff of their withdrawal and other action he intended taking, the father told the children they would not be returning there. He said he told them their mother was ‘sick’ and until she gets better then they would not be seeing her.
Of course, since they had been given some information about their mother’s history of drug taking and that had been couched in terms of it being a ‘sickness’ it is reasonable to suppose the children might have gained the impression their mother was taking drugs rather than coming to visit them. If that is stretching it too far, it is certainly not unreasonable to suppose they were affected by the absence of contact or the inconsistency of it. There had been an earlier absence for a time last June, it will be recalled, after the short stay at the father’s house, not to mention the allotted times missed since the August orders or the periods of absence further back. The children saw Mr G in late March by which time some weeks had passed since the visits ceased and I shall come shortly to his report of their presentation.
The mother has also had no telephone contact with the children since 9 February. The father has a new number which he refuses to give her. He has not made arrangements for the children to take their mother’s calls because he would ‘leave (himself) in a vulnerable position for her to make allegations to the police’ adding that if you breach an AVO there is no bail and he does not want to find himself in the position where the children would be put in care. He resisted suggestions put to him about assisting the children to ring their mother by means other than having his phone number; he has no land line and he can only spend $20 per month on his mobile which he keeps for emergencies. He rejected the suggestion that their mother provide the children with a mobile since this would also put him at risk with the police, in his view.
I return now to aspects of the more recent Report, in particular his observations of the children. They told him they wanted to continue seeing their mother but not at the Contact Centre which they found ‘boring’. They understood they see their mother there because, amongst other things, their mother is not having proper drug tests and they do not speak to her by phone because she never rings them.
S said she would like her relationship with her mother to be more normal to include ‘sleepovers, restaurants and Easter hunts’. She was close to tears when she described her notion of a ‘perfect mum’ which was a mum who ‘does not have drugs and takes us places’. In relation to drug misuse, S said ‘drugs are dangerous and make you die and are very bad — especially for babies’. She confirmed she had overheard her father talking on the telephone about an incident when she was infant involving her mother and drugs and some threat to her own wellbeing. Despite this, she was certain that she is not afraid of her mother. Mr G said S had difficulty containing her tears when she said she worries the court proceedings might mean she will be taken away from her father: ‘it comes back in my mind when I am not having fun.’
T presented somewhat differently, as he had before, appearing to be less affected by circumstances than S. His manner was matter of fact and his demeanour invariably cheerful even when he attributed the scar on his face to some action of his mother’s when he was an infant. Yet he also said he was not afraid to spend time with his mother though he made comments about drug misuse such as ‘when you're a baby it kills you’. He also preferred to see his mother in more normal circumstances than at the Contact Centre.
Mr G noted something of a change in S’s interactions with her mother on this occasion, describing her as somewhat ‘less ebullient’ than previously. Nevertheless she stayed physically close to her mother and chatted with her about everyday matters such as school. In response to her mother's questions, she said she does not like going to the Contact Centre and towards the end of the observation she said to her mother, rather sadly, ‘Do you have to go now?’ T was described as remaining physically close to his mother but otherwise he appeared to be emotionally unperturbed even though he had not seen her for a considerable period and he showed no sign of fear or anxiety.
In his evaluation Mr G said the mother’s failure to comply with orders about drug testing and attending upon Dr O and the father's failure to present the children at Centre or facilitate telephone contact makes it difficult to see what arrangement would guarantee the children's safety while also promoting their relationship with their mother. Even if he did comply with further orders to take the children to the Centre, which he thought unlikely, the children are genuinely and understandably fed up with going there. The parents could not identify an alternative supervisor and Mr G ruled out Mr H given his role in procuring marijuana for the mother when he was unaware of the full circumstances and the children have not yet met him.
His recommendations based on the availability of a suitable supervisor away from the Centre, therefore, fell by the wayside. As for drug testing and psychological interventions for the mother, his recommendations are largely consistent with the August 2007 orders. As for time with their mother, he suggested some variation to the orders by taking account of the father’s difficulties in keeping to a weekly regime, especially one that includes Saturdays, and the father’s comment that he could unfailingly present the children regularly on Sundays. It was also his recommendation that whatever orders are made they be explained to the children by Mr G and he assist the parents explain issues arising out of the mother’s problems with drugs. He also recommended the continuation of the orders being monitored under s 65L.

It remains to say that at the conclusion of the hearing on 5 June I made further interim orders that would re-establish the children’s contact with their mother at a different Contact Centre. It is accepted that the continuation of the arrangements with the previous Centre are untenable in the circumstances and can only lead to more distress for the children. The orders provide for the children to spend time with their mother as follows:
a)one day of each alternate weekend for a period of 2 hours at specific times nominated by the [B] Contact Centre at […] and the parties are to use their best endeavours for the time to occur on Sundays if able to be made available through the Centre;
b)one day each other alternate weekend at Relationship Australia Contact Service at [N], at times to be nominated by the Contact Centre and the parties are to use their best endeavours for the time to occur on Sundays if able to be made available through the Centre.
[IT IS NOTED the mother will continue to undergo urine screening tests three times per week]

Other proposals

The father reiterated many times in the course of the hearing that the results of tests already undertaken by the mother cannot be relied on since there is no solid indication samples were given by her in a supervised setting.
The mother seeks an order to be permitted to attend functions at the children’s school but the father foreshadowed difficulties. He could see problems because a couple of the parents had mentioned a ‘few things’ to him, having recognised her through the media a few years ago, and wanted her to stay away from the school. Referring to the balloons the mother had tied to the school fence recently for T’s birthday [at night, not during school time] he said a couple of the parents had not been ‘too impressed’. He agreed there was nothing about her conduct that had caused problems at the school; it was just that ‘they knew of what she’d done’. He said he did not believe the school would have a problem with the children being collected from school or returned there if that were the arrangement later down the track. But he said he would have a ‘little problem’ with that arrangement because it might cause some conflict which could affect the children. Still later he said such an arrangement would be a ‘risk to my children and the other children’.
As for alternatives to supervision at a Contact Centre, the father had not been able to suggest anyone, despite enquiries to Burnside and the Department and the suggestion was put to him at some point that someone from the Salvation Army or similar organisation might be able to assist. But he did not embrace that since he would prefer it to be a ‘professional person’, preferably a child protection worker. He was prepared, however, to have the people from the play centre supervise and he had even offered to pay them to do so. Asked about apparent inconsistency in his attitude, he was bound to agree he was not familiar with the qualifications of the workers there but he said the matter had not progressed to the stage where enquiries became relevant.
The mother seeks an order that the father be restrained from relocating the children to Queensland and she took this up with him in cross-examination. If the opportunity comes up, he said, he would consider moving to Queensland. He has said to the children ‘as soon as Daddy gets a job, and we can afford to move up there, we are going move’. He said the children are looking forward to it and it is something he has told them ever since they have been in his care.
The mother’s longer term proposals, supported by the ICL, involve her having the children in her care outside a supervised setting and progressing from day visits to overnight stays including three consecutive nights every second weekend and half of the school holidays. Since she is living with Mr H the children inevitably will be introduced to him and spend time with him. He outlined his circumstances in his affidavit and he was interviewed by Mr G in March. He has lived on acreage outside of Sydney for many years. He has worked all his life and for some years now as a mechanic. He has two children from two previous relationships – a boy aged 17 and a girl aged 8 – whom he sees regularly every second weekend and he has maintained a friendship with both mothers. He has no criminal history and does not drink alcohol except on special occasions and does not take drugs. He did take drugs on a social basis once, but the last time was about 15 years ago. None of that was put in contest. He volunteered that on the occasion he obtained marijuana for the mother she was having a major panic attack. He is now aware of her past and her negative life experiences and he would not do so again but is committed to helping her achieve her goals of recovery and getting the children back into her life.
Mr G found Mr H to be an ‘affable, easy going person’ who described himself as ‘big hearted’ and ‘no longer quick tempered.’
There is no reason to see Mr H as anything other than a stable, positive force in the mother’s life. His intact and ongoing relationships with his children and his former partners, along with his long term work history and apparently affable nature, are supports for that view.

Best interests

Primary considerations

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

There can be no doubt in this case that these children would benefit from the opportunity to have a meaningful relationship with both parents, including their mother. Of course that is to be balanced against the risks that arise from the circumstances that allow such a relationship to be supported and develop.
The risk that has occupied so much of the foreground here is the risk of harm from being in their mother’s care if she relapses into taking illegal drugs. Given the very serious events of June 2003, the gravity of the consequences for the children if that were to occur cannot be underestimated. She is yet to establish that she has and can put drugs behind her and remain drug free into the longer term.
For that reason the children’s time spent with her will remain supervised in the short term. There is no dispute about that, although there are differences about the duration and I will discuss my assessment shortly in light of all relevant considerations. It is also the reason for the continuation of urinalysis testing which, it is common ground, will continue for a period of one year from the date of the orders, although the frequency and nature will change during that time. I shall also elaborate on that later. Furthermore, it is the reason for the suspension of time with the children for a period if any test is returned positive for illegal substances, also common ground. In summary, while there is an identifiable risk of harm to the children in their mother’s care, with certain arrangements in place I am satisfied the risk is not of the magnitude where it could be called ‘unacceptable’. I am satisfied in all of the circumstances that the children’s time with their mother can progress through the stages reflected in the orders, in due course outside the supervised setting of a Contact Centre to day time visits, from there to an overnight stay, and later to alternate weekends from Friday afternoons to Monday mornings along with half of the school holidays.
Not so prominent, perhaps for obvious reasons related to the lack of alternatives, is the risk to the children’s well being if their relationship with their mother is not sufficiently supported but thwarted for reasons unrelated to their interests. There is some risk of that here; it comes out of the evidence about the children’s access to information about their mother’s history [S at least] and what happened to S in 2003 without that being approached in a proper setting; it comes out of the evidence surrounding the circumstances in which S wrote a statement purportedly to assist her father with the police; and it emerges from the circumstances surrounding the children’s withdrawal from the Contact Centre visits in February and the failure to establish even telephone contact with the mother. There remained the distinct impression that the children had not been given proper information about the reason for the visits coming to a sudden end and there is a lingering concern that the children were led to believe it was their mother’s fault and her inconsistency and absence had let them down and caused disappointment.
The claim by the father that any step he takes involving the children is to protect them and keep them safe is readily available because of the history, but the integrity of that position requires more objectivity and detachment than the father has been able to muster in a range of situations when it comes to the mother. It is recognised that he has taken the children to see her at Contact Centres since they came into his care over 3 ½ years ago; nonetheless, there remains a concern that he does not have sufficient insight to properly support their mother’s role in their lives or to recognise the importance of it to their balanced development. It is not a question, for example, of S or both children having around them women such as the father’s mother or sister – ie she has a ‘lot of mother figures in her life’ - as he pointed out at one stage, but of acknowledging properly their relationship with their mother and that being demonstrably valued.

Additional considerations

(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

I am satisfied both children have a relationship with their mother which should be supported. They both want to see her although, understandably, neither is keen to do so in a Contact Centre setting. S in particular when she saw Mr G last year was ‘yearning’ for her mother.
It is difficult to know what to make of the father’s evidence about S’s well being generally. He maintains they had counselling some time ago after they came into his care but that ceased long ago and he sees no need for counselling now. Yet that sits somewhat oddly with the arrangements he has made, or is to make, for S to see the counsellor at school next term, which can hardly be related to the fact that she enjoys making beads and so on. Their mother takes quite a different view of it and says they do need counselling.
As to that, it will be noted that the ICL proposed an assessment of that by Mr G as part of the supervision arrangements and in my view the question is best left to be discussed there and so I do not propose making any further orders about counselling for the children.

(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)

The children’s relationship with their father is not in dispute. Their relationship with their mother has been interrupted for a variety of reasons, not all related to the father’s doing but related in major ways to the mother’s failure to fulfil her responsibilities. It was described at one point as being ‘strong’ and the father agreed with that, adding ‘I have kept it strong….of course I would know, I am the one who has kept it strong.’ Be that as it may, it is imperative for both children now that the relationship with their mother be sustained and properly supported.

(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

[see also (4) - Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) 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; and
  (b)      has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and

(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

(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

The father has cared for the children now for more than 3 ½ years and these proceedings are not concerned with the care he provides as part of his parental responsibilities. It is accepted they will remain in his care. Even so, his capacity to meet their needs is being undermined by his attitude to their mother and to demonstrable shortcomings in the support he is giving to their relationship with her.
The mother’s troubled past and destructive experiences give her a great deal to contend with and plainly there have been significant and grave shortcomings in how she has discharged her parental responsibilities. None of it needs to be repeated here. She has struggled at times to recover from it and she has faltered over the last two years since she left the rehabilitation centre, as recently as earlier this year. Yet it is obvious she has intelligence and balance and warmth that would be of considerable benefit the children. It cannot be doubted that if she is able to maintain the course she has set for herself and manage to detach herself sufficiently from the difficulties she predicts will continue [probably accurately] in her quest to take on her proper role in the children’s lives, the children’s well-being will be enhanced.

(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

The orders proposed will continue for a time to be supervised at a Contact Centre, as all agree, but beyond that there will be changes provided the underlying conditions are satisfied. Ultimately if that pertains there will be a change to the children’s circumstances by spending significant time in their mother’s care which will be to their advantage.

(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

There are practical difficulties and expense in the orders proposed but there is no avoiding it since they are essential to meet the risks for the children.

(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

This is not of any particular significance in this case outside what has already been said.

(j) any family violence involving the child or a member of the child’s family

(k) any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person

This requires no further discussion.

Parental responsibility

It has been agreed here that the parents are to have equal shared parental responsibility. It may be necessary to say in this case that this responsibility is not about children’s time but about decisions related to their upbringing. More particularly, the term ‘parental responsibility’ is defined to mean all the duties, powers, responsibilities and authority which by law parents have in relation to children [s 61B] and until a child reaches the age of 18 years each parent has parental responsibility [s 61C]. Absent a court order about it, that responsibility can be exercised by parents jointly or severally but if there is a court order giving parents equal shared parental responsibility decisions have to be made jointly about ‘major long term issues’ [s 65DAC] which is defined in s 4(1) as relating to issues about the child’s care, welfare and development of a long term nature and include education, religious and cultural upbringing, health, name, and changes to the child’s living arrangements that make it significantly more difficult for a child to the spend time with a parent.
Notwithstanding the troubling history as recounted earlier [s61DA], that arrangement is agreed. It is entirely appropriate their mother participate in decisions about their upbringing. She has been marginalised from those decisions in recent years, partly the result of her own conduct, but also from their father’s apparent belief that parental rights were delivered to him along with responsibilities. She is well able to take an involved parental role and it is assessed as consistent with the children’s interests that she do so.

Equal time

Given the parents are to have equal shared parental responsibility, the law requires that consideration be given to whether it would be in the best interests of the children and reasonably practicable for them to spend equal time with each parent [s 65DAA(1)]. That is not an outcome proposed by either parent either in the short or long term in the circumstances of this case and it would be artificial and unwarranted to discuss that option any further.

Substantial and significant time

In that event the law requires that consideration be given to whether it would be in the best interests of the children and reasonably practicable for them to spend ‘substantial and significant time’ with each parent. That is defined by the Act [s65DAA(3)] as requiring the child to spend days that fall on weekends and holidays and those that do not, it also allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child, and it further allows the child to be involved in occasions and events of special significance to the parent.
I do conclude substantial and significant time would be consistent with the children’s best interests and reasonably practicable. However, that result must be delayed for reasons already discussed.

Conclusion – best interests

I come now more directly to the decisions required which can be taken in turn. First, there is the question of the time to be spent in the more immediate future at the Contact Centre. I have set that to occur for four months. While it is less than the six months proposed by the ICL and the father, I have taken into account the tests she has been undertaking regularly since early April and I have balanced considerations related to the mother demonstrating her capacity to maintain her drug free state before moving to an unsupervised setting against the obvious and understandable negative attitude the children have [and she has] to seeing her in that environment. By the same token, I have increased the next phase of day time unsupervised visits from the ICL’s proposed two months to three months and the short weekend overnight visits from two months to three months. It remains a 10 month phased in period in either event, but in my assessment the scheme as drafted in the orders better meets the children’s needs.

I have also determined that the mother should be able to attend at school functions, as other parents are, consistent with the school’s usual arrangements and provision is made for this at a later stage. Nothing said persuaded me otherwise and I am satisfied it would be to the children’s advantage to have their mother involved in these sorts of functions and activities like other mothers.
I have accepted the changeover arrangements being at the school, the Contact Centre or a police station. The last venue is obviously undesirable if it can be avoided but I am satisfied some controlled environment is required. It will always be open to the parents to change to a more suitable venue if they can agree.
As for the testing, I am satisfied that the arrangements in the orders are appropriate and adequate. The father will not agree with that. However, I am satisfied reliance can be placed on the evidence given by Dr O [exhibit 22] and by Mr G as to detection. The random nature of the testing can also be supported by their evidence as an important detection tool.
The telephone contact for the children with their mother is problematic given their father’s attitude. However, while he may have seemingly intense views about it on balance the children should have the opportunity to have regular calls from their mother. If it is the mother’s decision that it is not operating in the children’s interests that will be for her to decide but if she does so it should be made clear to the children what will be in place so as to avoid disappointment.
The orders take up the mother’s proposal about enrolling in the relapse prevention program.
Something should be said of the state of the father’s belief about the magnitude of the risk for these children spending time with their mother unsupervised. Whether or not there is a genuine belief – or, for example, a ploy borne of malice or manipulation or power and control – is something to be considered if the risk is not gauged to be at that level.
As for the mother’s application that the father be restrained from relocating the children outside the Sydney Metropolitan area, that shadow should be removed having regard to what has been said of the importance for the children of their relationship with their mother.
They also take up Mr G’s recommendation that he see the children for the purpose of informing them of the decision so they can be assured of receiving clear information about what the future should hold for them.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate:

Date: