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Derek Legal Blog

Author: Derek Legal


Derek Legal Blog

How Not to Do Family Litigation



AT Wollongong


WOC 908 of 2019













1. This case is about two children X who is six years old and his brother Y, four years old.  The Court must decide where the children live, what time they should spend with the other parent, and under what conditions.  The Father is the Applicant.  He is 39 years old and describes himself as the proprietor of a business.  He lives at the home of the paternal grandparents in a suburb of City A.  The Respondent Mother is 35 years old.  She currently lives with the children at an undisclosed location in the City A area.  The parents met in 2005, commenced cohabitation in 2007, married in 2010, and separated approximately mid-2019.


2. At the outset the Court must record its profound sense of not being told everything by either of the parents.  This is a decision that needs to be made, but is being made in a context of factual uncertainty which has been contributed to by both parents.  It is a risk assessment exercise.  The Court will conclude that there is a risk to these children whether they live with their mother, or live with their father.  For the time being, the orders that will be made will reflect where the Court believes, doing the best it can, minimises the least risk for the children whilst maintaining a relationship with both parents.
3. There are other disturbing characteristics of this case.  Both parents adopted polarised positions in the litigation.  Both were represented by experienced Counsel, at the Interim Hearing.  Both parents are represented by competent lawyers.  Neither is presently legally aided.  Notwithstanding this, both parties submitted, at various points during the interim proceedings, that they were impecunious and could not afford drug tests in the case of the Mother, and in the case of the Father that he could not afford to pay the Mother’s drug tests.
4. Each parent makes very serious allegations about family violence allegedly perpetrated by the other.  Each parent denies that they perpetrated family violence except in the context of self-defence.  There is an ADVO against the Father.  The Mother alleges that the family violence commenced shortly after a cohabitation, and that it included sexual violence.  The Father denies this.
5. The Father alleges that the Mother has experienced mental health issues from very early in the relationship, manifested by erratic behaviour and threats of self-harm.  He further contends that at least from 2018 the Mother commenced problematic alcohol and drug use.  The Mother alleges that the Father was a user of the cocaine and methamphetamine, and in fact introduced her to methamphetamine.  The Father admits to using cocaine, but never methamphetamine.  The Mother admits drug use during the last year of the marriage, including methamphetamine use once a week in this period.  The Mother denies mental health issues, but does admit that there was at least one mental health referral/admission for her during their relationship.
6. The Mother alleges that she was the primary carer of the children, for most of their lives.  The Father disputes this characterisation, and asserts he was actively involved in their care at all relevant times.  The Mother concedes that shared care was put in place in between May and July 2019.  There were times in the post separation period when both parents unilaterally retained the children from each other.  An interesting feature of this case, however, is that notwithstanding what was clearly an acrimonious separation from mid-2019 and notwithstanding the serious allegations both make, the parents implemented an arrangement that was initially equal shared care, and then which resulted in the Father having regular and substantial time with the children.  This only appears to have ceased on the commencement of the present proceedings.
7. In the lead up to the Interim Hearing a regime of drug testing was implemented.  The evidence indicates that the Father promptly complied with all requests for him to undertake drug testing, and CDT testing.  His results were unremarkable, and where a urine test was positive, he provided an acceptable explanation based on prescription medication that he was taking at the time. 
8. The drug testing regime in relation to the Mother was, however, more problematic.  Her drug tests were not provided on time even though they were negative.  The evidence about the Mother’s drug use was contained in an affidavit in which she made a voluntary disclosure.  Notwithstanding that, she declined to provide a hair test requested by the Father. Moreover, notwithstanding an order made by this Court on 24 September 2019 that she provide a hair sample for testing purposes, she once again declined.  She contended that she could not afford the same.
9. When the matter was relisted before the Court on 8 November 2019, following the Mother’s non-compliance with the order of 24 September 2019, the Independent Children’s Lawyer who had been appointed, and appeared for the first time thought that she was able to secure funding for the Mother’s drug test but that turned out to be incorrect.

Risks to the children

10. The risks to the children appear to come from a number of different sources.  It is clear that they are exposed to a highly conflictual situation.  It is highly likely that they have been exposed to intense parental conflict during the relationship and after separation.  The Court will form the impression that it is highly likely that the children have also been exposed to conflict between the parents which has escalated to violence which was primarily, but not exclusively, perpetrated by their father, sometimes in their presence.  The Court will form the impression that it is also highly likely that the children have been present, or exposed to, periods when the Mother has dysregulated possibly because of the mental health stresses that she has experienced.  The Court will form the impression, even on the basis of this very limited assessment, that it is highly likely that the children have been exposed to periods when their mother has been under the influence of drugs, and that these periods probably included times when the Mother was responsible for their care.
11. A number of factors will inform the risk assessment and management exercise.  The focus must always be on protecting the children from harm.  Of relevance will be whether the parents have acknowledged the risks to the children, denied or minimised them.  Of further relevance will be to understand the support systems in place to protect the children from aspects of their parent’s behaviour which presents a risk of harm to them.  The nature of the risk is also important.  Some risks, perhaps including the risk of further exposing the children to conflict and family violence, can be mitigated by separating the parents, and either ensuring they have no contact with each other, or minimising the same.  Other risks, for example possibly including the risk of the Mother continuing to use drugs, or relapsing into drug use, cannot necessarily be managed in the same way.

Posted in: Derek Legal Blog at 29 January 20

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