Parental drug use – children to live with grandmother – Bannan & Taft & Anor [2015] FCCA 3167 (2 December 2015)

Parental drug use – children to live with grandmother – Bannan & Taft & Anor [2015] FCCA 3167 (2 December 2015)

Last Updated: 24 December 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

Legislation:  Family Law Act 1975 , s.60CC

REPRESENTATION

ORDERS

(1) All previous orders regarding X born (omitted) 2003, Y born (omitted) 2005 and Z born (omitted) 2007 (“the children”) are discharged.
(2) Ms Bannan (“Ms Bannan”) shall have sole parental responsibility for the children.
(3) The children shall live with Ms Bannan.
(4) The children shall spend such time with the mother and in such circumstances as she and Ms Bannan may agree.
(5) The children shall spend no time with and have no communication with the father.

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

NCC 3124 of 2011

Applicant

And

First Respondent

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern parenting arrangements for X, 12 ½, Y, almost 11 and Z, 8. The proceedings have been ongoing since October 2011 with a short interregnum between November 2012 and May 2013.
2. The mother and father are both long term illicit drug users and while they lived together, the children’s lives were blighted by very imperfect parenting and exposure to parental conflict and family violence.
3. The parents separated in about 2010 and in March 2011 the mother relocated from (omitted) to (omitted) with the children and their sister W, who is the mother’s child from a previous relationship.
4. Material produced on subpoena during the first court proceedings revealed that the children’s school in (omitted) rapidly became concerned about issues such as poor school attendance and lack of food and made notifications to DOCS. The school was also concerned about the mother’s appearance; one teacher thought that the mother might be engaged in prostitution.^[1]
5. In an affidavit he filed in the first proceedings the father said that when he visited the mother and children in (omitted) he observed that the home was filthy, saw needles and a meth pipe on a bedside table and saw the mother shooting up in W’s room. The father was not a witness of credit but given other evidence in the case all this seems likely to be true.

The first court proceedings – 2011 to 2012

6. For a short period of time in September 2011 the children ended up in the father’s care in (omitted) but the mother set about snatching them back one by one and on 17 October 2011 the father filed an application in Tamworth Local Court seeking an order that the children live with him.
7. Tamworth Local Court made orders which effectively created a de facto shared care arrangement between the father and the maternal grandmother, because while the orders gave both parents substantial time with the children the mother was only permitted to exercise that time if the maternal grandmother was present. The Local Court made drug testing orders and then transferred the matter to the Federal Magistrates Court as it then was.
8. The maternal grandmother sought leave to intervene after the proceedings were transferred to this court.
9. On 22 November 2011 I conducted an interim hearing in Tamworth.
10. At the interim hearing the mother sought orders that the children live with her but she did not present as a viable option.
11. The mother tested positive for oxazepam and methamphetamines in the drug test ordered by the Local Court, although she insisted that she had not used illicit drugs and that there must be some a mistake. She was also in a relationship with a man named Mr D. He was allegedly a drug user and dealer and violent and the mother had been observed with recent injuries including bruising and a black eye, although she insisted that she had sustained these injuries either by falling off a skateboard or slipping in the shower.
12. The father sought orders that the children live with him and at that time he presented as a somewhat more viable option than the mother.
13. The father’s drug test was positive only for cannabis and also for methadone which was to be expected as he was on the methadone program. The father maintained that he had recently stopped using cannabis and that subsequent tests would show a tapering off of THC in his system and that he was about to graduate from the methadone program.
14. However the father was living with the paternal grandparents and the accommodation there was not suitable for the three children, and he had a long history of illicit drug use and a lengthy criminal record which included convictions for assaulting the mother.
15. I also had some concerns at that time about the father’s relationship with the mother and his willingness to protect the children. He had done nothing to protect them between March and September 2011 and had been slow to act even after observing drug implements and drug use at the mother’s home in (omitted).
16. The third option was the maternal grandmother, who had a good relationship with the children, did not use drugs, did not have a criminal record and was not the subject of any serious allegations.
17. The fourth option was continuing the de facto shared care arrangement but this was considered unsatisfactory not only because of concerns about the father but because of the acrimonious relationship between the father and maternal grandmother.
18. I made interim orders placing the children with the maternal grandmother and for reasons set out in my 2011 judgment ordered that the time the children spent with both parents be supervised at (omitted) Children’s Contact Centre.^[2]
19. There was no application before the court about W. She remained living with the mother who by that time was living near to the maternal grandmother.
20. Following the making of interim orders a family report was ordered and it was prepared in April 2012 by a Regulation 7 Family Consultant.
21. The mother told the Family Consultant that she was content for the children to remain with the maternal grandmother while she ‘got her life on track’. She admitted that she was still using illicit drugs including ‘street methadone’. She said that her relationship with Mr D had ended after he assaulted her in January 2014.
22. The father told the Family Consultant that he was seeking an order that the children live with him.
23. The father said that he was abstinent from drug use and he produced eight clean drug screens but the Family Consultant commented that given the father’s long history of illicit substance abuse it was ‘far too early to suggest that he had consolidated a drug free status.”
24. The Family Consultant expanded on this later in his report, saying as follows:
    <li “=””>

    Whilst the father appears to have maintained his participation in the methadone program, and seems to have eliminated his cannabis usage, it is fair to say given the length of the father’s use of illicit substances, that it may be appropriate for the father to participate in a residential rehabilitation program. The experience of this Family Consultant suggests that parents such as the father and the mother in these proceedings would need to establish living at least for a twelve month period in the community in a drug free state. It remains difficult to discern whether the father’s current use of illicit substances, other than cannabis is in fact less than what the mother’s has been historically. Notwithstanding this, the father’s perpetration of violence towards the mother and W would suggest that he needs to reflect upon his behaviours, and at this point in time there are sufficient indicators to suggest that the children would be at some risk in his primary care. ^[3]

25. The maternal grandmother told the Family Consultant that she was seeking orders that the children live with her but was open to the children being restored to the mother’s primary care if the mother attained and sustained a drug free status.
26. The Family Consultant noted that the maternal grandmother did not have any illicit substance issues and that while she would like the children restored to the mother’s care there was no suggestion that she had placed the children at risk by providing extra time with the mother outside of the court orders. He went on to say that:
    <li “=””>

    …there is sufficient evidence to suggest that if [the maternal grandmother] had not had a significant relationship with the children to date, then the only current alternative for the subject children would have been for them to be placed in Department of Human Services care.^[4]

27. The Family Consultant recommended that the children live with the maternal grandmother and that both parents participate in residential rehabilitation for a minimum of 6 months. He expressed the view that it would be in W’s best interests to also live with the maternal grandmother.
28. The Family Consultant’s recommendations about the time each parent should spend with the children in the future was as follows:
    <li “=””>

    Both parents to spend time with the subject children in the future once completing the three months at the (omitted) Family Contact Centre dependent on the outcomes of their respective therapeutic intervention. It would be envisaged that neither of the parents are likely to spend unsupervised time with the children in the next six months from the date of this report.

<li “=””>

… both parents would require a minimum of eighteen months to two years of having completed their directed therapeutic programs and then successfully lived in the community for a twelve month period drug free, confirming their drug free status with the Independent Children’s Lawyer prior to any future application. ^[5]

29. The father did not accept the recommendations and the matter was listed for hearing on 19, 20 and 21 November 2012. The hearing commenced and the father was cross-examined but on the second day the parties reached an agreement and orders were made by consent.
30. The consent orders provided for the children to live with the maternal grandmother and for the maternal grandmother to have sole parental responsibility for them.
31. It was ordered that the children spend time with the father from 10.00am to 4.00pm each alternate Saturday with such time to predominantly occur at the home of the paternal grandfather in the general presence of the paternal grandfather.
32. It was ordered that the children spend time with the mother from 10.00am to 4.00pm each alternate Saturday in the general presence of the maternal grandmother.

The second court proceedings – 2013 to date

33. The final orders were followed by but a short period of peace.
34. In March 2013 the maternal grandmother stopped the children spending time with the father following allegations by X of rough handling and a possible assault.
35. On 16 May 2013 the maternal grandmother filed an application seeking to have the November 2012 orders discharged and orders made which would effectively prevent the father spending any time with or having any communication with the children.
36. The father filed a response seeking that the children resume spending time with him on alternate Saturdays but that the time be unsupervised and gradually increase until he was spending alternate weekends and half school holidays with them.
37. It was the father’s case that he had done nothing wrong by the children. He said the maternal grandmother did not like him and was overreacting to things the children were saying and would use any excuse to cut him out of the children’s life.
38. The mother supported the maternal grandmother’s application.
39. On 5 August 2013 after the re-appointment of the Independent Children’s Lawyer an order was made that the father’s time pursuant to the existing orders be suspended and that he spend time with the children at (omitted) Children’s Contact Centre. He was also ordered to undergo drug testing.
40. No change was made to the order concerning the mother’s time with the children.
41. A second Family Report was ordered and it was prepared by the same Family Consultant as before.
42. By the time of the report interviews in December 2013 it was clear that the father had resumed illicit drug use; in September 2013 he returned a drug test positive for illicit substances and in the Family Report prepared in December 2013 the Family Consultant said as follows:
    <li “=””>

    Mr Taft stated that in July 2013 that his mother died, and that this had deleterious implications upon his emotional wellbeing, with Mr Taft stating that he commenced using “gas (amphetamines) and dope” sporadically. Despite this, the father was categorical that in his supervised time with the children at the (omitted) Contact Centre that he has never presented as drug affected.

<li “=””>

The father stated that he has been engaged in the Bridge Program with the Salvation Army in (omitted), where he is also employed for approximately thirty one hours per fortnight. Mr Taft outlined that during the last three months of the program that he has participated in group sessions, being on three occasions per week, as well as participating in one NA meeting per week, as well as participating in individual counselling. The father said that part of his requirement is to contribute three volunteer days per week as well. The father sees this program as having been beneficial for him already, indicating that the program is a twelve month program, whilst he stated that the Salvation Army “controls his finances”.^[6]

43. The Family Consultant went on to say:

It remains of concern that the father has yet again relapsed with his use of illicit substances, and it would appear that he will have to focus on this in the immediacy if he is to eventually spend unsupervised time with the children and further evolve a more significant relationship with the subject children. The reality would seem to be that if this is not achieved in the next twelve months, then the prognosis for the father in having a long term and integral relationship with the children would appear to be poor.^[7]

44. Although the children related well enough to the father during the observation session none expressed an enthusiastic view about spending regular time with him and X complained that she had been manhandled.
45. The Family Consultant made the following recommendations in the report:
    <li “=””>

    The children to spend time with their father for two hours every fortnight at the (omitted) Contact Centre for a further six months from the date of this report. During that time, the father to participate in drug urine analysis at least on a monthly basis during that period, or as requested by the Independent Children’s Lawyer.

<li “=””>

If the father does not have any positive drug screens during the next six months, then he should commence spending time with the children every fortnight weekend from nine am until four pm both Saturday and Sunday.^[8]

<li “=””>

Following the completion of the father’s program with the Salvation Army in twelve months time, and assuming that there are no further positive drug results, the father to commence spending every fortnight weekend with the children from Saturday morning until Sunday afternoon.^[9]

46. The parties were not able to reach agreement following the release of the report and the matter was listed for final hearing on 12 & 13 November 2014. However on 22 October 2014 the hearing dates were vacated on the father’s application. The court was informed that in August 2014 the father had entered a residential rehabilitation program at (omitted) and wished the hearing to be deferred until after he had completed the program.
47. On 30 April 2015 the matter was listed for hearing on 19, 20 and 21 October 2015 in the light of the father’s imminent completion of the program. By this time the father was not seeking to disturb the children’s residence with the maternal grandmother and the issue in dispute was the nature and extent of the time the children should spend with the father.
48. The father resumed spending fortnightly time with the children at the (omitted) Children’s Contact Centre after leaving (omitted) on 6 May 2015.

The parties proposals and circumstances at the commencement of the trial

49. The mother did not file any trial documents and when the hearing commenced the court was informed that she was in prison, having recently been arrested on multiple armed robbery charges and denied bail.
50. During cross-examination the maternal grandmother said that she had informed the girls of their mother’s arrest and at their request had taken them to the jail to see their mother. She said that the mother and girls had all been tearful during the visit and that the mother told the girls that she might be spending 4 years in prison and would make it up to them when she got out.
51. The maternal grandmother said that W, now 15, had been living with her since the mother’s arrest and she expected to have the care of W for the foreseeable future.
52. As the issue in the case was the father’s time with the children the court, with the consent of the maternal grandmother and the father, decided to proceed with the hearing in the mother’s absence.
53. The maternal grandmother’s proposal was that the children should spend time with the father on four occasions each year professionally supervised, in other words she proposed what is sometimes called identity contact. She said she did not believe that the father would be able to maintain a drug free lifestyle and that X had told her recently that she had seen track marks on his arms.
54. The maternal grandmother also remained concerned about unsupervised time because of X’s report of being manhandled by the father and her general reservations about the father’s parenting capacity.
55. The father’s proposal was that the children should spend time with him from 10.00am to 4.00pm each alternate Saturday unsupervised for 3 months and then from 5.00pm on Friday to 5.00pm on Sunday each alternate weekend for 3 months, then each alternate weekend from Friday to Monday, and after 12 months for half of the school holidays. He said that his time with the children at the Contact Centre was going well and he looked forward to moving on to seeing the children unsupervised.
56. The father said that he had successfully completed the (omitted) program with one relapse in September 2014. He returned drug tests negative for the presence of illicit drugs in May 2015 and July 2015 and in his case outline document maintained that he had beaten his drug habit.
57. In his trial affidavit filed on 18 September 2015 the father said as follows:
    <li “=””>

    During my stay at (omitted), I feel like I gained a more extensive insight into my past behaviour and my drug use. My time there taught me better coping strategies and I believe that in the future I will be able to cope with any situation without turning to drug use again. On 6 May 2015 I graduated from (omitted)……^[10]

58. The father said that he was working casually on a (employment omitted) in (omitted) and was looking at obtaining full time employment with his current employer. He acknowledged that X may have seen track marks on his arms but said that they were old marks.

The evidence which emerged at the hearing

59. Unfortunately for the father his story unravelled as the hearing progressed and his credit was called seriously into question.
60. During cross-examination on 19 & 20 October 2015 the father said that he was no longer working at the (employment omitted) because his employment had been terminated and was once again living in (omitted).
61. The father admitted that when the maternal grandmother’s solicitor asked his solicitor not long before the trial why he was no longer working at (omitted) the information he provided was that there were no more hours available; he agreed that this was untrue and that his employment had been terminated, and documents produced on subpoena suggested that the father’s employment had been terminated for conduct issues rather than unjustly as the father implied in answers during cross-examination.
62. It became apparent during cross-examination that the version of events the father gave to the Family Consultant in December 2013 about his involvement with the Salvation Army and the Bridge Program in (omitted) in 2013 was somewhat sanitised.
63. The father agreed that he had used drugs including ice and amphetamines between September 2013 and April 2014 and he admitted that his attempts to rehabilitate himself from drug use during this period were chequered. He agreed that he had been booted out of the Bridge Program in November 2013; that was not in his affidavit. He agreed that a note in Salvation Army records on 1 November 2013 that he was in denial about his drug use and how it was impacting on his chances of having his children full time was a “fair summary”.
64. The father agreed that he relapsed into illicit drug use in (omitted) 2014, a month after commencing the (omitted) program, when he was given special leave because of Z’s birthday. He said that while on release he smoked a joint, used gas and consumed a bottle of alcohol. He said that this was his only lapse.
65. It remained the father’s case that he was not currently using illicit drugs.
66. The father admitted during cross-examination that he had not done drug tests requested of him on 25 September 2015 and 12 October 2015 but he sought to excuse this.
67. To explain why he had not done the test on 25 September 2015 when he was living in (omitted) the father told a story about not being able to do it because his medical records were in (omitted). To explain why he had not done the test on 12 October, by which time he was living back in (omitted), he claimed that he could not do it because his medical records were in (omitted). There was a farcical air to this evidence.
68. The hearing could not be completed in October 2015 because of the unavailability of the Family Report writer for cross-examination and the matter was adjourned to 23 November 2015 for completion of the hearing. An order was made, with the father’s consent, for him to do drug tests on 4 occasions between 20 October 2015 and 23 November 2015 within 24 hours of being requested by the Independent Children’s Lawyer to do so.
69. The Independent Children’s Lawyer requested the first drug test immediately and the father did it on 21 October 2015. He subsequently received three further requests but did not do the tests.
70. When the hearing resumed on 23 November 2015 the father’s counsel informed the court that his instructing solicitor was chasing down the first drug test result and expected to have it shortly. He also informed the court that the father expected that it would be positive for cannabis.
71. Later that day the result for the 21 October 2015 test was tendered. It showed that the father had tested positive for methamphetamines, amphetamines and cannabis.
72. The father did not seek to re-open his case to give evidence about his drug use or his future intentions in regard to rehabilitation or counselling.
73. Each counsel then advised that they did not wish to cross-examine the Family Report writer and each counsel then made submissions.
74. The maternal grandmother changed her position and sought an order that the father spend no time with the children.
75. The father’s counsel asked the court to order that the children continue to spend time with the father each fortnight at (omitted) Children’s Contact Centre and that he continue to do drug tests for the next six months. He asked the court to order that if the father did not have any positive screens in this period then he should commence spending unsupervised time with the children each alternate weekend from 9.00am until 4.00pm on Saturday and Sunday.
76. The father’s counsel submitted that the recommendations in the December 2013 report supported this outcome.
77. The Independent Children’s Lawyer supported the maternal grandmother’s position.

The children’s best interests

78. Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and to determine the children’s best interests I must have regard to the matters in s.60CC(2) and (3) of the  Family Law Act .
79. I intend to start with the additional considerations in s.60CC (3) before returning to the primary considerations.
80. The first of the additional considerations is any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views.
81. There is no current independent evidence about the children’s views.
82. On 5 December 2013 X complained about an incident in which she alleged that the father had dragged her up the stairs and was choking her, which was the incident which led to the maternal grandmother ceasing time. X told the Family Consultant that her preference would be to live with Mum or Nan and the Family Consultant felt that she had a negative view of the father.
83. Y told the Family Consultant that the father had no toys or games at his house but described her time with the father at the contact centre as positive.
84. Z told the Family Consultant that she had fun with the father at the contact centre but when asked what she would do if she had a magic wand said “make Dad disappear.”
85. The next consideration is the nature of the relationship of the children with each of the children’s parents and other persons (including any grandparent or other relative of the children).
86. The children love their mother despite all that they have been through. They were very distressed when they found out about her arrest and incarceration and very distressed seeing her in jail. However the mother has repeatedly let the children down throughout their lives and does not have a nurturing relationship with them.
87. I am satisfied that the children’s primary attachment is now to their maternal grandmother. They were observed by the Family Consultant in December 2013 to be warmly attached to her and there was nothing in any of the material tendered at trial to suggest that their relationship with her was currently anything other than warm and strong.
88. The maternal grandfather did not attend either report interview. The children have never made any negative comments about him but I am unable to make findings about the nature of his relationship with them.
89. All of the evidence suggests that the children’s relationship with the father has not been a nurturing one for them.
90. In the April 2012 interviews the Family Consultant observed that the children seemed relaxed in the father’s presence but that only Z was affectionate with him. During the December 2013 interviews the Family Consultant observed that all three children initiated affection with the father and that he sat on the floor and engaged the children in play. However he noted that X was somewhat abrupt with the father and seemed the least connected and interactive with him.
91. The paternal grandfather Mr J gave evidence at the hearing before me. He has had some interaction with the children throughout their lives. On the evidence the children’s relationship with him seems benign but I cannot make findings about the strength or nature of it.
92. I must consider the extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with the children and to communicate with the children.
93. The father has always sought an opportunity to be involved with the children since court proceedings commenced in 2011.
94. I must consider the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children.
95. The maternal grandparents provide almost 100 % of the financial support for the children. The father is assessed to pay a trifling amount of child support and given his circumstances and work history and his recent short-lived attempt to enter the workforce that seems unlikely to change. The mother is not in a position to help support the children.
96. I must consider the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the children), with whom he or she has been living.
97. The maternal grandmother and father both proposed a change in the children’s circumstances.
98. The maternal grandmother proposed a no time order.
99. The father proposed a restoration of substantial periods of time on weekends.
100. I will consider the likely effect of these changes in the conclusion to the judgment.
101. I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
102. This is not an issue as the father and maternal grandmother both live in (omitted).
103. I must consider the capacity of each of the children’s parents and any other person (including any grandparent or other relative of the children) to provide for the needs of the children, including their emotional and intellectual needs.
104. The mother has no capacity to provide for any of the needs of the children.
105. The maternal grandmother is providing well for the children on a day to day basis and she has recently also taken on this role in respect of W. I have no reason to be concerned about her capacity to provide for the children’s needs, including their emotional needs. I do not accept that she has irrationally sought to exclude the father from the children’s lives.
106. The father has no capacity to provide for the needs of the children while he is using illicit drugs including methamphetamines in the form of ice.
107. It is important to note however that although the father’s illicit drug use tended to overshadow all other issues at the hearing, the material raised other concerns about his parenting capacity.
108. The maternal grandmother went into considerable detail in her affidavit about angry and oppositional behaviours sometimes displayed by the children and expressed concern about how the father would cope with these behaviours. She was not challenged about this evidence and I am satisfied that her concerns are soundly based.
109. The father’s unsupervised time with the children ended in March 2013 after an incident during which he grabbed and manhandled X. It is impossible for me to make findings about precisely what occurred; X maintained that she was dragged and choked while the father maintained that he acted to restrain X because she insisted on playing near a gateway which led onto a busy road.
110. I cannot be satisfied that the father assaulted X and while there could be an element of minimisation in the father’s account there could be an element of reconstruction and exaggeration in X’s account. However W complained to Mr P of the father assaulting and/or manhandling her which gives rise to a concern that at the very least the father does not have the capacity to manage children’s behaviour constructively.
111. The father has used illicit drugs on and off throughout the children’s lives and for significant periods has been focussed on his own problems and no doubt on his cravings for drugs. It would not be surprising if he had a very limited capacity to provide for the children’s day to day needs or respond appropriately if disciplinary issues arose; he has little day to day experience of doing so.
112. The father is not willing to admit any fault however or to concede that he could do with some help in learning appropriate methods of disciplining or entertaining or managing the children; his response when issues are raised is ascribe the complaints to the negative influence of the maternal grandmother. This does not inspire confidence that there will be any change in the father’s parenting capacity in the future.
113. I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant.
114. This is not relevant in this case as a separate consideration.
115. I must consider the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents.
116. It could be argued that the father has demonstrated an extremely poor attitude to the children and the responsibilities of parenthood in relapsing into drug use, but this is better viewed as a matter of addiction rather than a matter of attitude, and the same could be said of the mother.
117. I must consider any family violence involving the children or a member of the children’s family.
118. The father has convictions for assaulting the mother and came to the attention of the police on other occasions during his relationship with the mother as a person of interest in complaints concerning the mother.
119. W told the Family Consultant during the 2012 family report interviews that the father “hurt the mother a lot” and gave some specific examples.
120. The maternal grandmother told the Family Consultant that the father assaulted her in about 2009 and I regard the maternal grandmother as a witness of credit and accept her evidence.
121. The difficulty I face with the family violence issue however is that the primary focus of attention during the hearing was the father’s drug use and there was little exploration of the family violence issue. An intertwined problem is that it is impossible for me to know the extent if any to which the father has problems with anger management or violence separate from his drug use issues.
122. However it is a very troubling issue sitting there in the background and it means that X’s description of being manhandled raises considerable concern even if findings cannot be made about exactly what happened to her.
123. There have been ADVO applications in the past involving the parties but there are no current family violence orders.
124. I must consider 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 children.
125. The orders sought by the maternal grandmother are the orders least likely to lead to further proceedings.
126. The orders sought by the father if made are highly likely to lead to further proceedings. Among other things issues could arise about the children being unwilling to attend the contact centre regularly which might well lead to complaints by the father about the maternal grandmother’s compliance with the orders and contravention proceedings. It is also possible given the history of this case that the father might manage to be clean of drugs for six months and then relapse; this has happened in the past and it would quickly lead back to court.
127. I must consider any other fact or circumstance which the court considers relevant.
128. A matter which is relevant to whether the father should be given yet another chance to deal with his drug problems is that he shows a marked propensity for avoiding facing up to issues.
129. When the father was asked about the 2013 Family Report during cross-examination he said that he had not read it. When asked why, he said that he was not in a good head space when he received it and threw it in a corner. He did not explain why he still had not read it.
130. The father also said that he had not read the maternal grandmother’s affidavit and when asked why said “Its fiction and I don’t read fiction.”
131. Another relevant matter is the father’s attitude to the maternal grandmother.
132. The maternal grandmother is bringing up the father’s children and she is doing that because he has let his children down. The father is not even making a financial contribution to his children except in an extremely trivial way. The father is not grateful or thankful for this; rather he is highly critical of the maternal grandmother and feels she should have a better attitude to him.
133. The father and maternal grandmother have had a very poor relationship for years, and this is something I will have to take into account when I come to consider appropriate final orders.
134. The poor relationship is not down to some unreasoning antipathy shown by the maternal grandmother to the father. Her distrust of the father and inability to believe that he will ever be drug free is rational in light of the evidence.
135. The father has convictions for drug offences dating back twenty years. He has relapsed into drug use on numerous occasions since proceedings commenced in 2011. He was using regularly between September 2013 and April 2014; he ran out of chances with the Salvation Army’s Bridge Program in (omitted); he enrolled in the (omitted) Residential Rehabilitation program in August 2014 and graduated from it in May 2015 after one relapse but he is now using again and lying about it.
136. The father lied about why he had not done drug tests requested by the Independent Children’s Lawyer in September and early October 2015; he made up a story about the problem being the location of his medical records. When the hearing resumed on 24 November 2015 the father’s counsel informed the court that the father had done one drug test since the matter was last in court and expected that when it was produced it would show that he had used cannabis. This must have been on the father’s instructions but when the result was produced later that morning it was positive not just for cannabis but for methamphetamines and amphetamines.
137. The father did not seek to re-open his case to give evidence about why he had relapsed into drug use since or why the court should believe that if he was given another six months or twelve months he would be able to demonstrate that he had ceased using drugs.
138. There is absolutely nothing in the evidence to suggest that there is any likelihood of the father remaining drug free for any length of time in the future.
139. Having made those findings about the additional considerations I now return to the primary considerations which are as follows:
     1. the benefit to the children of having a meaningful relationship with both of the children’s parents; and
     2. the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
140. S.60CC (2A) provides that the court must give greater weight to the requirement in s.60CC (2) (b).
141. These children would benefit from being able to have a meaningful relationship with their parents but that is not possible because of the parents’ drug addiction.
142. The mother’s problems are so severe that any time the children spend with her is likely to involve the children looking out for her rather than the mother looking out for the children.
143. The father has resumed illicit drug use. It would be unsatisfactory and potentially unsafe for the children to spend unsupervised time with him at present and the father conceded that professionally supervised time should continue until he was able to demonstrate that he had been abstinent from drug use for six months.
144. If the father was able to beat his drug problem and time became unsupervised and was for a whole day or consecutive days on weekends then absent any issues with his parenting capacity he might become a meaningful person in the children’s lives. However there is absolutely nothing to inspire confidence that starting today the father will return clean drug tests over a lengthy period and be able to demonstrate that he has finally beaten his drug problem for good.
145. It says a great deal about the seriousness of the father’s drug problem that knowing that everything turned on him providing clean drug screens prior to the resumption of the hearing in November 2015 he tested positive for methamphetamines, amphetamines and cannabis one day after giving evidence in the proceedings in October 2015 and then failed to do the three subsequent drug tests which were requested.

Parental Responsibility

146. Even on the father’s case at its highest the father will be spending only supervised time with the children for at least six months, and on the father’s case as well as the maternal grandmother’s the father and maternal grandmother have a very poor relationship. The only appropriate order is for the maternal grandmother to have sole parental responsibility for the children.

Conclusion

147. At the conclusion of the hearing the father did not pursue the orders for unsupervised time starting immediately, rather he proposed that his supervised time with the children continue to occur fortnightly and that an order be made that if he returned six months of clean drug screens then he should commence spending unsupervised time with the children every alternate weekend from 9.00am until 4.00pm on Saturday and 9.00am until 4.00pm on Sunday.
148. The father’s counsel submitted that this outcome was supported by the recommendations in the December 2013 Family Report, but there are two major problems with this submission.
149. First, when the Family Consultant prepared that report he was unaware of the full extent of the father’s drug problems in 2013. This only became apparent when a subpoena was issued to the Salvation Army and that subpoena was not issued until January 2014. The Family Consultant noted in his report that he had put in a call to the Salvation Army but they had not called him back.
150. Second, the Family Consultant was not given an opportunity to reconsider his recommendations in the light of evidence about what had occurred since the report was released, including the father attending rehabilitation for nine months and then relapsing.
151. I cannot place weight on the recommendations in the December 2013 report about the father’s time. I consider it most unlikely that the Family Consultant would have maintained them if informed of what has recently occurred, and in any event and for the following reasons in the light of the evidence available to me I do not consider that it would be in the children’s best interests to make the orders proposed by the father.
152. First, it would be very burdensome for the maternal grandmother to have to request random drug tests for any length of time, and I cannot ask the Independent Children’s Lawyer to remain in the proceedings at community expense to oversee the testing.
153. Second, it would only be worth doing this if there was a real prospect that the father would remain drug free for the next six months, and there is no evidence to suggest that this is likely. The father is currently using and he declined to give any further evidence after returning the last positive screen to explain why this had occurred. He has been dishonest with the court and he shows a marked tendency to avoid facing up to reality.
154. Third, I could not consider ordering unsupervised time simply because the father returned six months of clean drug tests; that is not a sufficient period of time in this case. As far anyone can tell the father was abstinent from drug use from sometime in 2012 until June 2013 and from September 2014 to May 2015 while he was in residential rehabilitation but he relapsed on both occasions.
155. If there is a considerable risk that the father might relapse even if he appears to be clean for six months, and I am satisfied that there is, all I would be doing by making the order proposed by the father would be potentially condemning the parties and the children to further litigation, which particularly concerns me when the maternal grandmother is not only the sole financial supporter of the children but is a self-funded litigant.
156. Who knows what trigger would set the father off using drugs again after six months in which he happened to be clean and who knows when he might relapse? The only thing I can be absolutely certain about is that he is not likely to be honest with the maternal grandmother if he slips up and starts using drugs again. She is only likely to become aware of it from something the children say or perhaps from gossip in the community.
157. Finally, I have reservations about whether it would be appropriate to order unsupervised time simply because the father demonstrated that he had not used drugs for a specified period. I share the maternal grandmother’s concern about whether the father is able to appropriately manage the children’s behaviour and am uneasy about the numerous reports about him being violent.
158. The father is not willing to even consider that he might have problems appropriately parenting the children, which does not create confidence that he would be willing to do parenting courses or change his parenting practices.
159. However I do not need to grapple with this last matter because the primary problem is the father’s drug use and in my view the passage in Mr P’s report which should be given weight is not the recommendation the father’s counsel referred to but the following passage which the maternal grandmother’s counsel referred to:
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     It remains of concern that the father has yet again relapsed with his use of illicit substances, and it would appear that he will have to focus on this in the immediacy if he is to eventually spend unsupervised time with the children and further evolve a more significant relationship with the subject children. The reality would seem to be that if this is not achieved in the next twelve months, then the prognosis for the father in having a long term and integral relationship with the children would appear to be poor. ^[11]

160. The father has not achieved abstinence in the 23 months since this report was released. He is currently using and the only order I could consider making at present, as the father conceded, would be for professionally supervised time. However there is no demonstrable benefit to the children in being required to go to a contact centre or some other place to have a play with the father for two hours each fortnight for an indefinite period. X is already disengaging from this and as time passes it is likely to become increasingly burdensome to all of the children.
161. If supervised time is all that can be ordered then in my view there is considerable merit in the time being scaled back to four times a year if nothing else. This would allow the children to see their father from time to time and assuage their curiosity about him but would not be so frequent as to be burdensome.
162. The maternal grandmother initially proposed this, but at the end of the hearing proposed that there be a no time order. Her counsel submitted that the relationship between the children and the father was not a fulfilling one and that there was no prospect of that changing and enough was enough.
163. There is considerable force in this submission. A no time order will avoid the burden on the children and the maternal grandmother of quarterly visits to undertake supervised time and the risk of contravention proceedings if a child is ill or refuses to go but the father disbelieves this because of his antipathy to the maternal grandmother.
164. It will also avoid the risk of the children forming a worse rather than a better view of the father from seeing him possibly deteriorate if he continues to use drugs. I can still remember the shock of the mother’s physical appearance in court in October 2011 when seated next to her well adult sister.
165. It is sad for the children that they must lose any chance of a meaningful relationship with their father but the only person to blame for that is the father. It would only be worth making a further order for unsupervised time if there was some prospect of unsupervised time becoming an option in the future and there is no current evidence that the father has any prospect of permanently beating his drug problem.
166. The maternal grandmother proposed that an order be made that the mother spend time with the children as agreed between the maternal grandmother and the mother.
167. It was clear during final submissions that the father resented the fact that an order might be made that he spend no time with the children but that the mother, who has even worse problems than him, would be able to see the children if the maternal grandmother agreed. The difference in the two situations however is that the maternal grandmother and mother have a good relationship and an order along these lines in respect of the mother is not likely to lead to tension and arguments and be burdensome for the maternal grandmother. Such an order in respect of the father would be highly likely to be burdensome for the maternal grandmother given the poor relationship and level of distrust between the father and the maternal grandmother and I do not intend to make it. .
168. As the maternal grandmother’s counsel pointed out the father can always bring another application if circumstances change, although he will need to bear in mind another passage from the 2013 report, as follows:

… both parents would require a minimum of eighteen months to two years of having completed their directed therapeutic programs and then successfully living in the community for a twelve month period drug free, confirming their drug free status ….prior to any future application. ^[12]

169. For all of the above reasons I intend to make the orders proposed by the maternal grandmother.