ZARDA & ZARDA

[2020] FCCA 3421

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZARDA & ZARDA [2020] FCCA 3421

Catchwords:
FAMILY LAW – Parenting – sole parental responsibility – indefinite supervised time with the father.

Legislation:

Family Law Act1975, s.60CC

Cases cited:

Fitzpatrick & Fitzpatrick [2005] FamCA 394
Godfrey & Sanders [2007] FamCA 102

Goode & Goode [2006] FamCA 1346

RG & JR [2006] FamCA 293

Applicant: MS ZARDA

Respondent: MR ZARDA

File Number: SYC 6789 of 2015

Judgment of: Judge Boyle

Hearing dates: 23 and 24 January 2020

Date of Last Submission: 24 January 2020

Delivered at: Sydney

Delivered on: 16 December 2020

REPRESENTATION

Counsel for the Applicant: Mr Reeves

Solicitors for the Applicant: Dillon-Smith Lawyers

Counsel for the Respondent: Ms Goodsell

Solicitors for the Respondent: Jacqui Griffin Mobile Solicitor

Counsel for the Independent Children’s Lawyer: Mr Ladopoulos

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW

ORDERS

1. All previous parenting orders be discharged.

2. The Mother have sole parental responsibility for the child X born in 2013 (hereinafter “the child”).

3. The Mother shall notify the father of any proposed decision relating to the long term care and welfare of the child and the reasons for the proposal, such notification to be given in writing at least six (6) weeks prior to any final decision being made; and take into consideration any views expressed by the father about the proposed decision.

4. The child live with the Mother.

5. The Father spend time with the child as follows:

   (a)Once every second month, for at least 2 hours, at B Contact Centre Suburb C, or such other contact centre as is agreed in writing, commencing the third weekend of January 2021; and continuing the third weekend of each second month thereafter in 2021.

   (b)From the beginning of 2022 once each school term, for at least 2 hours, at B Contact Centre Suburb C, or such other contact centre as is agreed in writing, on a date agreed and failing agreement the second weekend of each term.

   (c)The Father may bring members of his extended family to his visits.

6. The Father is restrained from using illicit drugs or consuming alcohol for a period of 12 hours before and during the time spent with the child.

7. The Mother shall set up an email address for the child so that the Father can send emails and photos to the child, and the Mother shall encourage the child to reply.

8. The Mother is entitled to take the child to a place outside the Commonwealth of Australia and does not require the consent of the Father for such travel.

9. That pursuant to section 11 of the Australian Passports Act 2005 (Cth) the child is permitted to have an Australian travel document and is permitted to travel internationally with her Mother, and the Mother is hereby authorised to solely sign passport applications for the child and to sign all documents and give all consents and do all necessary acts and things to cause a passport to issue.

10. That the Mother shall forward to the Father, through the child’s email address, copies of school reports, photographs and any other relevant information about the child’s social and academic progress.

11. That the Mother shall advise the Father, through the child’s email address, of any significant health issues for the child.

12. That neither parent shall make critical or derogatory remarks about each other or members of each other’s family in the presence or hearing of the child, or on social media, and the parents shall do all things reasonably necessary to ensure that no other person makes critical or derogatory remarks about either parent or members of their family in the presence or hearing of the child, or on social media.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6789 of 2015

MS ZARDA

Applicant

And

MR ZARDA

Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings with respect to the child of the parties X who was born in 2013, and is now aged seven years.  X lives with her mother, and time arrangements with her father have been occurring at B Supervised Contact Centre.

2. The parties commenced cohabitation in 2008. They were married in 2010, separated in July 2014, and divorced in February 2016.  X has always lived with her mother. She was two years old when her parents separated, and spent no time with her father until 2018.

3. The mother commenced proceedings in November 2016.  On 8 May 2018 there was an order for time between X and her father to occur once a month at B Contact Centre.

4. In mid-December 2018 X told her mother that the builder at the childcare centre “hit me on the bum”,[1] pointing towards her vagina.  There was an investigation by the Joint Investigation Response Team (JIRT) following a report by the mother to the police.  No disclosures were made by X during the investigation. The mother has not observed X display any concerning behaviour. The mother remains concerned that X was sexually abused.

   [1] Family Report dated 6 March 2019, paragraph 9.

5. The mother has not disclosed her address as she maintains she is frightened of the father, and people with whom he may associate.  X has not learned her address because the mother is concerned she will disclose that during a visit with the father. 

6. The matter was listed for undefended hearings on 26 March 2019 and 5 September 2019 due to the father’s failure to comply with directions for filing material.

Issues

1. The issues for determination are:

   a) whether the parties are able to communicate sufficiently to support an order for equal shared parental responsibility

   b)     the extent to which either party used illicit substances, and if so whether that places X at risk in their care

   c)   whether the father has perpetrated family violence against the mother, and if so what impact that should have on any parenting orders

   d)     whether there is sufficient risk to X from the father, whether for reasons of mental health problems, or drug use, for orders to be made for supervised time to occur on only a few occasions each year.

Applications

1. The mother sought orders for sole parental responsibility, and that X live with her.  At the beginning of the hearing she sought that the father spend time with X once a month at a professionally supervised contact centre.  Once the father demonstrated that he was drug-free for a period of 12 months, and provided a psychiatric assessment, she sought that time move to short daytime periods unsupervised.

2. The father seeks equal shared parental responsibility, and to spend time with X each alternate weekend, and half the school holidays. He consents to an order that X live with her mother.

3. The Independent Children’s Lawyer (ICL) sought orders for what might be described as “identity contact” between X and her father, so that supervised time occur on four occasions each year.  The mother ultimately joined in seeking those orders.

Documents Relied on

1. The mother, father and ICL filed case outline documents identifying the documents relied upon. I have also had regard to the material tendered and marked as an Exhibit at the hearing.

Background

1. The father had a difficult childhood.  He describes being bullied at school.  He had undiagnosed and untreated attention deficit hyperactivity disorder (ADHD). He was eventually diagnosed, and is currently prescribed 40 to 50 mg per day of dexamphetamine. The dose has increased since the parties separated. His evidence is that when he stopped taking medication for six months he did not do well, and lost his employment. He claimed that he ceased taking the medication because the mother “was in my ear”, telling him it was unnecessary.  When it was suggested to him that it was his responsibility to manage his health he agreed, “but I’d do anything for someone I love.” 

2. When the parties commenced their relationship they took ecstasy and smoked ice together recreationally. The mother’s evidence is that she stopped this in her mid-20s when she wanted to become a mother. The mother undertook a hair follicle test on 6 May 2019, and urinalysis test on 14 November 2017.  She returned clear results.

3. The father was found in possession of ice after being stopped by New South Wales Police in May 2014.  In 2016 the father was charged with offences relating to kidnapping and torture of a person. Initially he was on bail under conditions to report daily to City D Police Station. His evidence is that he found it difficult to comply with the conditions because he was sleeping rough, and then in temporary accommodation in Sydney.  He breached his bail conditions and was on remand for six months. Ultimately he was acquitted of the charges following a trial.  This experience had an impact on the father’s mental health; he had suicidal thoughts at that time.

4. The father has given different accounts of what occurred in 2016. When accounts from the Police material that he was afraid of his co-accused, and that he would have been assaulted if he had not cooperated were put to him, he denied those matters. He said the police suggested that version of events, not him.  His evidence in this area was not coherent.

5. During family report interviews the father told the report writer that he was disadvantaged, and did not initially realise drug testing was required. I accept that the father was aware he was required to undertake urinalysis testing pursuant to consent orders made on 24 October 2017, 8 May 2018 and 26 March 2019.

6. A request was made for urinalysis testing in December 2017.  He complied with that request on 15 January 2018. The test result records:

   at the tail end of methylamphetamine metabolism, amphetamine can persist in the urine after methylamphetamine is no longer detected.  At this low amphetamine level it is no longer possible to differentiate between amphetamine and methylamphetamine ingestion.[2]

   [2] Exhibit F1

7. It is not possible to determine from the test result whether the father was using ice or not.  He did not comply with testing within the time frame required.

8. The father has not complied with requests for testing made by the ICL.  He gave various reasons for his non-compliance, including that he did not receive the requests, that he could not read attachments to emails on his telephone, that he could not get to a laboratory for the test, and that he had no money to pay for the tests. He agreed that he was working at the time the requests were made. I do not accept the father’s reasons for failing to comply with the orders for urinalysis testing. 

9. Orders made on 26 March 2019 required each party to provide a hair sample of not less than 3 cm within seven days of a request. When the father was requested to provide a hair follicle test he was unable to do so as his hair was not long enough on his head, nor elsewhere on his body.  He has never completed a hair follicle test.

10. In March 2018 the father was convicted of driving under the influence of alcohol and disqualified from holding a licence for 12 months.

11. At the time of the hearing, the father indicated that he was defending an Apprehended Violence Order (AVO) for the protection of his sister’s ex-partner. The AVO was taken in early January 2020, following an incident on Boxing Day 2019.  The father maintained that he had been assaulted in the incident.

12. The father admitted that he had punched the door or the wall whilst living with the mother. He maintained that had happened once, although he could not remember whether he punched the door or the wall.  He denied that he did that in order to make the mother feel threatened. He did not appreciate that it had that effect.

13. The father did not agree that he had a short temper. He agreed that he had verbally abused the receptionist at a doctor’s surgery. He did so because he was “upset” with her. He agreed that he had called the mother’s solicitor “scum”. He denied that he had put his hands on the mother’s neck, or threatened her at any time.

14. The father denied sending abusive text messages to the mother.  He agreed that a message tendered appeared to come from his mobile number, but said that the message was fake. The message tendered dated 1 January 2014, and read in part:

    I am trying really hard so keep your smug comments to your fucken self and the sooner you wake up and realise that there is a reason most people are scarred the Fuck of me and its not coz I mite yell in there face. and if you think you have seen it your wrong and I dont want you or anyone to coz I scare the Fuck out of my self like that (sic) . 

15. I accept that the father sent the message.  It is impossible to imagine that anyone seeking to set the father up would have done so in such an oblique manner.

16. The mother’s evidence about the father’s conduct towards her was consistent and credible.  It was suggested by counsel for the father that it was unusual the mother did not report family violence to the police.  The report writer was clear that this is not unusual in circumstances of family violence.  I accept that the mother has suffered family violence at the hands of the father.

The Law

1. The best interests of the children are paramount in parenting proceedings. The Family Law Act 1975 (Cth)(“The Act”) at section 60CC provides the legislative pathway to determine children’s best interests.[4]

Primary considerations

Section 60CC(2) The primary considerations are:

(a) Benefit to the children of having a meaningful relationship with both of their parents

[4] Goode & Goode [2006] FamCA 1346.

and

(b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. X currently has the benefit of a meaningful relationship with her mother.  Her mother has provided her with loving care since her birth.

2. The father has spent time with X supervised on 11 occasions since June 2018.  There have been visits cancelled by the mother at times X was unwell. There have been visits where the father has cancelled time, or been late.  The father has not consistently communicated with the Centre when arrangements have needed to be varied, nor with regard to payment of his fees.

3. X did not know her father at the beginning of the supervised visits.  She has grown in confidence with her father over the course of the visits.  She is reported as being happy by the supervisor, and manages changeovers well. The relationship with her father, although limited, has meaning for her.  She now knows who he is, and enjoys seeing him.

4. The mother has assisted X to manage the visits.  She helped her prepare for the start of time arrangements, and has sent her with cookie dough to bake on one occasion.  The mother has supported X’s relationship with her father. 

5. The mother has real concerns about X’s safety if unsupervised with her father. There are number of reasons for this. She raises the risk from people the father associates with.  The charges in 2016 named him as a co-accused with two other people.  Although the father sought to diminish in his evidence that he knew those people, or that anyone should be concerned given he was not convicted, I accept there is a basis for the mother’s concerns about who the father associates with.

6. In July 2018 the father was assaulted by someone with a baseball bat.  He says he did not know the person who did it, and he was in the driveway of a friend’s home at the time. An AVO was taken for the protection of the father against that person, although his evidence initially was that he did not know if he was protected by an AVO.  He agreed that his home was broken into.  He pleaded guilty to possession of ice in 2014, saying he did so to help out the person whose car he was in.  I accept that the mother’s concerns about risk to X from associates, or people in the father’s life, are reasonable.

7. The father has a history of being volatile and aggressive. Within the context of time at a supervised centre that behaviour has been managed.  If time were to occur on an unsupervised basis there is a real risk to X being exposed to that behaviour. It would cause harm to X were it directed at her and if it were directed at anyone else in her presence.

8. The father has not complied with orders with respect to drug testing.  His current use of illicit substances is not known. Were he to spend time with X affected by drugs that would place her at risk.

9. Long-term supervised time is difficult to maintain for children, and is generally considered not to be in the best interests of the child.[5] Centres provide for a limited range of experiences between children and adults, and it is difficult for a relationship to develop in those circumstances. It is often considered that if risk from a parent requires time to be permanently supervised, how is a child’s best interests served in maintaining that relationship.

   [5] RG v JR [2006] FamCA 293, at paragraph 107.

10. There are occasions when it may be appropriate to make orders for indefinite supervised time.  These may include circumstances where there is a relationship between the child and father, which can be sustained through supervised time. In Fitzpatrick & Fitzpatrick [2005] FamCA 394 at [76-79] May J, referred to cases where:

    evidence objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised … In an endeavour to preserve their relationship with the father but also in minimising the risks, limited supervised contact for the present time accords with the children’s interests.[6]

    [6] Fitzpatrick & Fitzpatrick [2005] FamCA 394, at paragraphs 76-79.

11. The mother initially sought orders predicated on the father undertaking drug testing and obtaining psychiatric reports.  He could have attended to those matters prior to the hearing. There were orders for drug testing made by consent that he did not comply with. Looking at the evidence as a whole, there is nothing to suggest that the risks in the father spending time with X will change. I am satisfied that the father would pose an unacceptable risk of harm to X if time were unsupervised.

12. The ICL promoted “identity contact”, meaning that supervised time decrease to each alternate month for a year, then four times a year.  This would give X the benefit of knowing who her father is, even in the constrained circumstances of a contact centre.  It gives her a sense of her identity through the paternal side of her family.  She will know that she is loved by her father, and that he is interested in her.  It will be a relationship meaningful to her, even if not an optimal relationship.[7] X has no recollection of any other kind of relationship with her father.

    [7] Godfrey and Sanders (2007) FamCA 102.

13. The mother has successfully managed supervised time arrangements for X.  X told the report writer that her parents were friends.  The mother can be relied on to assist X’s understanding of limited supervised time with her father. This is the only option that is viable for X to maintain a meaningful relationship with her father, which is safe for her.   

Additional considerations

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.

1. X was five years old at the time of the family report interviews.  The report writer described her as a “warm, friendly, curious and outgoing child who laughed a lot”.[8] This is consistent with the description given by both her parents.

   [8] Above n 1, paragraph 59.

2. X has been buffered from this dispute. She described her mother and father as friends to the report writer.

3. X is not at a level of maturity or understanding for weight to be given to her views, were she to express any.

Section 60CC(3)(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);

1. X has a close and loving relationship with her mother.  She asked for her mother frequently during the family report interviews.  Her mother is her source of comfort and security.

2. X is reliant on her mother to meet her needs. I accept that the mother is frightened of the father, and his involvement in her life. The father has not done things he could have done to assuage this fear, for example, complying with drug tests. It is important for X that her mother functions well as a parent, and is not stressed and anxious.

3. There have been significant periods of time in X’s early years when she has not seen her father. This was from at least early 2016 to early 2018. Although the father is critical of the mother in not facilitating a relationship, the father was as he describes, living rough, and then on remand for a large part of that period. The mother’s concern to protect X is understandable.

4. X has developed a relationship with her father through time at the Contact Centre. She enjoys her relationship with her father.

5. The maternal grandmother and X share a close relationship.  They spend time together regularly.  The mother initially facilitated time with the paternal grandmother following separation, but this has since ceased.

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) To participate in making decisions about long-term issues in relation to the child;

(ii) to spend time with the child; and

(iii) to communicate with the child.

1. The father has not been in a position to take up opportunities with respect to these matters following separation. 

Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child

1. The father was employed providing customer service at the time of the hearing.  There are arrears in child support in the order of $5,000. The father dates the arrears from when he was in custody.  He did not appear concerned about the impact of that on the mother’s ability to provide for X’s care.

Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he has been living;

1. X has been spending supervised time with the father once each month. This will diminish in accordance with the orders I propose making.

2. X will likely miss her father. She will be curious about him. The mother has protected X from having any negative view about her father, and I expect the mother would manage the decrease in time sensitively for X.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.

1. Consideration of this factor does not assist in the determination of the best interests of this child.

Section 60CC(3)(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.

1. X has had significant health issues. She was born with fluid on the lungs, and spent eight days in the special care nursery.  She had hip dysplasia, and was in a harness during her early weeks of life. At four months she was admitted to hospital for possible seizures, and ultimately diagnosed with a medical syndrome for which she received medication.  She had an operation for kidney reflux at two years. Her tonsils and adenoids were removed following a diagnosis of sleep apnoea.  At four years she had eye surgery for a lazy right eye.  X has been assessed as having an intellectual disability. Her mother has ensured that appropriate supports are in place for her.

2. Her various medical issues have been managed capably by her mother.  The father was not involved in her health treatment. I accept this was not at his election.

3. The father has been prescribed dexamphetamine for about 10 years prior to the hearing. He agreed there were times he has attended on doctors for repeat scripts when he has lost his medication.  His evidence is that he reported the loss to Crime Stoppers when that occurred.  There is nothing in the material produced by New South Wales Police that confirms that occurred.

4. The father pleaded guilty to possession of ice in May 2014. He did not refer to this matter in his affidavit. His evidence was that it was a very small amount, it was not his motor vehicle, and he was not using the drugs. This is a relevant matter to the father’s capacity to parent this child, and should have been referred to in his affidavit. His excuses around this conviction were not credible.

5. The father denied that he used ice when spending time alone in the parties’ garage. He conceded that an ice pipe is visible in photographs taken of the garage. He did not concede it was used by him.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.

1. Consideration of this factor does not assist in the determination of the best interests of this child.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. The mother has demonstrated her commitment to this child since her birth.  She has ably managed the responsibilities of parenthood.

2. The father has had limited opportunities to demonstrate these matters.  However, it was within his capacity to comply with orders for drug tests, and know that evidence on those issues would be important for his relationship with this child. He says he completed most of a Triple P parenting course.  His evidence is that he was unable to complete the course as he did not have the child with him.  He proffered no evidence about this.

Section 60CC(3)(j) any family violence involving the children or a member of the child’s family.

1. Both parents make allegations of family violence against the other.  The father refers to arguments between the parents, where he locked himself in the garage to get away from the mother.  He describes her hitting him, and standing in his way to stop him leaving an argument.  He complained that she was financially controlling by keeping her finances separate, when she had access to his money. 

2. The mother acknowledges that at times she was frustrated and argumentative with the father. There was an incident she admits, where she threw a cup at his laptop, intending to break it. She expressed remorse about that.

3. The report writer has posited that the description of family violence by the father is possibly more suggestive of parental conflict, than family violence.  The parties had the care of a baby with significant health issues.  The father did not appreciate the stress on the mother around X’s health. By removing himself to the garage he was not engaging with the problems, nor supporting the mother.

4. The mother has described serious family violence perpetrated by the father.  She was consistent and clear in her evidence on these matters. I accept that the father has made serious threats towards her, including to slit her throat and crush her skull. There have been occasions of physical violence where he has pushed her, put his hands around her throat, spat on her, and thrown a knife at her.  He punched holes in the walls of their home, and broke household items. He has driven erratically at times when she was in the car, making her afraid.

5. The mother is worried that should the father have unsupervised time with X he could harm her.  The mother does not want him to know her address, nor where X attends school.  I accept that the mother has suffered family violence at the hands of the father.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter;

1. Not applicable.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

1. There is no evidence on which the court could be satisfied that the father is likely to change his conduct. Orders should be made that finalise these proceedings.

Parental Responsibility

1. The presumption of equal shared parental responsibility is rebutted by the findings of family violence.  Even were it not, the parties do not have a relationship where they are able to communicate, or cooperate about X. The family report writer observed that:

   it seems the parents are not able to engage in an effective co-parenting relationship or make joint decisions which impact on X’s safety and wellbeing because there is a significant lack of trust and respect between them.[9]

   [9] Above n 1, paragraph 98.

2. The father’s evidence is that it is no fault of his that there is no communication with the mother.  I do not accept that is the case.

3. There is ample evidence that the father has not responded to correspondence, emails and the like. Despite consenting to orders for drug tests he ignored requests for those tests to take place. He was unable to deal with filing affidavits in accordance with deadlines. Were the mother required to await responses from the father to make decisions for X’s health, for example, it could cause serious difficulties for this child.

4. The father regarded X as having health issues similar to his own.  He regarded this as helpful in his ability to make decisions for her.  X had a complicated early medical history. Her mother has managed those matters competently for her, and there is no suggestion she would do otherwise in the future. 

5. The orders will require the mother to keep the father advised about X’s health and education.  The mother needs to be able to manage these matters for X.

6. The orders seek to strike a balance for X that she knows who her father is, and that she is loved by him, and she is kept safe from family violence, and exposure to drug use. Her mother has competently cared for all her needs to date, and has been able to make sense of supervised arrangements for her. The orders are less likely to cause stress for the mother, who will be meeting all her needs.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Boyle

Associate:

Date: 16 December 2020

[3] Exhibit M2