Monroe & Collins [2023] – Sole Parental Responsibility Granted Amid Non-Participation and Safety Concerns

HENDERSON J:

1. This is an application in relation to the parties’ child, X, born 2011.
2. The reality is that other than for the purposes of attending upon the expert in these proceedings, Dr B on 25 November 2019, X has spent no time with the mother, despite interim orders being made by me on 18 May 2021 for this to occur on a supervised basis.^[1]
3. These proceedings were listed for hearing for five days commencing on 31 July 2021. The mother failed to attend the hearing. Mr O’Reilly of counsel represented the father and Ms Smith appeared as solicitor advocate for the Independent Children’s Lawyer (“ICL”).
4. The mother’s failure to appear is despite that she attended Court on 16 November 2022, at which time the proceedings were listed for final hearing, and a Child Impact Report (“the report”) was ordered involving the parents and X attending with a Court Child Expert for the purposes of preparing the report. On this day, an order was also made pursuant to section 102NA of the Family Law Act 1975 (Cth) (“the Act”) and the mother failed to engage with that scheme to have lawyers appear for her at the hearing.
5. The report was prepared by Ms U on 26 April 2023 and released to the parties on 16 May 2023. The mother failed to attend for the preparation of the report. Ms U endeavoured to contact the mother using the telephone number recorded on the Court file, which was disconnected. Ms U then contacted the ICL and the father, enquiring if they had a different contact number for the mother, which they did not. Properly, Ms U concluded that the mother could not be contacted.
6. The mother has not complied with the trial directions made by the Court on 16 November 2022 to have this matter ready for hearing. However, I have read the material read for the hearing I conducted in April 2021 delivering judgment on 18 May 2021.^[2] At that time, the mother supported the position of the ICL for her to spend supervised time with X, for two hours per week, at a contact centre.
7. The father opposed any time and appealed this decision, which appeal was dismissed with costs.^[3]
8. The decision I made on 18 May 2021, although on an interim basis, was extensive, consisting of some 138 paragraphs. Unfortunately, the faith that the Court and the ICL had in the mother at that time, that she was progressing well psychologically, was no longer using alcohol, and her mental health was improving, were unfounded, and the mother has had a significant relapse since that time.
9. Of great concern is that since that decision, in late 2022, the mother was convicted of a breach of an Apprehended Violence Order (“AVO”) by use of a mobile phone, sentenced to an intensive correctional order, with the term of imprisonment suspended on the basis she comply with the intensive correction order. The mother had also been found guilty of breach of bail in late 2022.
10. The AVO was reissued for the protection of the father and X and another person unrelated to these proceedings and is to expire this year. This is consistent behaviour the mother has exhibited almost since X’s birth of uncontrolled outbursts, relapse of chronic abuse of alcohol, resulting in police action ultimately. Her behaviour is both a combination of alcohol abuse and significant mental health issues.
11. The Court is left now in the position of simply not knowing the mother’s situation – where she is living, what her current mental health is, her current abstinence from alcohol, her current treatment plan or practitioners, if any – given the last affidavit she filed was for the interim hearing in 2021.
12. It is sad but correct that in 2021 the positive reports from her psychiatrist Dr D and the reports of Dr C, who she was also seeing at that time, was pleasing; a slow but positive trajectory to retrieve her mental health and abstain from alcohol. This positive trajectory has not been borne out or continued and she has been unable to sustain her recovery and is again in the criminal justice system.
13. The judgment delivered on 18 May 2021 and the facts therein are as poignant and relevant today as they were then.
14. The father and ICL were ad idem, namely that the father have sole parental responsibility for X, he live with the father, that he spend time with and communicate with the mother as the father agrees in writing, various injunctions be made against the mother, which are to come into effect upon the expiration of the breach of AVO order in late 2023, the father be permitted to obtain a passport for X without the mother’s consent, including renewal of said passport, and leave to provide these Reasons for Judgment and orders, and the report prepared by Ms U, to X’s school, any medical practitioner he may attend upon, the police, and any other professional organisation the father deems appropriate.
15. It is a significant sadness for X that the mother has been unable to retrieve her functioning as it was apparent in 2021 from the report of Dr B of November 2019 that X was interested in a relationship with the mother and was, even at that stage, cognisant of the mother being unwell but was still desirous of spending some time with her. That desire of X was referred to in Ms U’s report:
    12. [X’s] feelings about his mother appear complex. He said that he has some memory of when he was living with his mother. [X] indicated that he feels love for his mother, as she is his mother, but he also feels upset with her as he said that he learned from his aunty and father that his mother “kidnapped” his grandmother. [X] believes he has not seen his mother in many years as she has been “sick” and he indicated that he has some knowledge that his mother has suffered with problems related to her alcohol use.
    13. It appeared that [X] had not thought much about whether he misses his mother or not or whether he wants to see her. He said that, while he feels upset with his mother for her behaviour towards his grandmother, he also feels that perhaps she should be given a “second chance”. He also said though, he is not sure if his mother has perhaps had “too many” chances. [X] indicated that he would be content either way if a decision was made for him to spend supervised time with his mother or not. He said that he believes his father might have some worries about his safety with his mother.
    14. [X] vaguely recalled having phone contact with his mother some time ago but could not remember whether he liked this or not. He indicated, once again, that he has not thought much about whether he would like to speak to his mother or not and would be content either way.

(As per the original)

16. In my decision of 18 May 2021, I made the following observations:
    4. The mother supports the orders proposed by the ICL and is clearly on notice that if she missteps, ongoing time and an ongoing relationship with her son is at risk. [X] has not spent time with his mother since he came into his father’s care in January 2018, save for at the interview in October 2019 before [Dr B] and via telephone in 2020. There are sound reasons why the father has taken such a strong stance against [X] spending any time with this mother, even supervised time, a course that was recommended by [Dr B] in his report of November 2019. Such is the father’s resistance that he objected to [X] and his mother having a meeting in the presence of [Dr B] and he continues to resist any order that the child spend time with his mother including supervised time.
    5. The father is resistant to the child spending any face-to-face time or having any communication with the mother at all as he asserts that the risk to [X] from his mother’s uncontained behaviour, significant mental health issues, addiction to alcohol, addiction to prescription and/or illicit drugs, presents such a risk to [X’s] emotional functioning and psychological health that the benefit he will receive from spending time with his mother, even in a supervised setting, is outweighed by the potential risk of harm to his pleasing but slow progress in his behaviour and functioning.
    6. Further, the father submits that X has particular emotional vulnerabilities as noted by [Dr B] and until [Dr B’s] report can be tested and all the evidence tested, the risk to the child’s emotional and psychological well-being outweighs any benefit to him in re-establishing a relationship with his mother. The father’s affidavit was silent on the benefit to [X] in resuming time with his mother when clearly there must be some given she was his primary carer from birth. The father and his partner were focused on the potential harms and risks to the child due to his mother’s past functioning and behaviour, and [X’s] particular vulnerabilities.
    7. There is no doubt that [X] is a particularly vulnerable child. This was noted by [Dr B] at paragraph 226 of his report, where he says:

The child has experienced an insecure attachment in the context of the mother’s disorganised behaviour under the influence of substances. This has left him vulnerable to emotional dysregulation and insecurity. The combination of genetic and environmental factors render him vulnerable to current and future emotional and behavioural problems including substance abuse.

…

15. The short relevant chronology as opposed to the voluminous chronology, understandably prepared by the husband’s counsel, is as follows.

16 The father is aged 61, the mother is 40.

17 The parties began to live together in […] 2010.

18 Their son, [X], was born [in] 2011.

19 The parties separated on 1 July 2012.

20. The mother’s mental health significantly deteriorated after the birth of the child. [Dr D] initially diagnosed the mother in 2018 with [multiple mental health disorders], and alcohol use disorder in circumstances where she was unable to provide him a history, so poor was her mental health.
21. By 2019 the mother’s functioning was at a stage where she could give him a history. After taking her history he diagnosed that she suffered from [a number of] comorbid mental disorders […].
22. The mother’s use of alcohol has been a consistent theme since at least [X’s] birth, and there is evidence in all the material, including [Dr B’s] report, of her overuse of prescription medication. The mother was significantly unwell from the time of the child’s birth and her concerning functioning and behaviour was well set out by the Independent Children’s Lawyer in her submissions to me where she said that “[X’s] early parenting was, at best, chaotic”. It may be that it was also abusive, perhaps unintentionally as she was seriously unwell and her overuse of alcohol and prescription medication only exacerbated her underlying conditions.
23. The information from the COPS entries attached to the police records at pages 14, 15, 29, 30, 31, 35, 36, 37 to 38, 46, and 62 to 63 of the father’s tender bundle is truly concerning. The mother was significantly affected by alcohol when [X] was three months of age, and police were concerned about her and the child. The police were concerned that the mother had been driving under the influence of alcohol when the child was nine months of age. In […] 2013, the mother was hospitalised due to intoxication. [X] was two years of age at this stage.
24. In […] 2014, the police found the mother was intoxicated again. [X] would have been three years of age. [Later in] 2014, the mother was intoxicated and argumentative. [X] was three years of age. The mother was violent to other people in […] 2015, and significantly affected by alcohol. [X] was four at this stage. [In] 2016, the mother was screaming, losing her temper, was uncontrolled, uncontained and affected by alcohol. [X] was four and a half. [In] 2016 when [X] was almost five the police attended the home and reported the mother was significantly affected by alcohol and behaving poorly.
25. In […] 2019 the police attended the mother’s home and reported concerns she was significantly affected by licit or illicit drugs. It is reported in […] 2017 that the mother is suffering from unstable mental health. [X] was six years of age at this time. In […] 2017, [X’s] school made a report to the Department of Communities and Justice as they were concerned about [X], his behaviour and appearance at school. His mother arrived at school drunk and they had made a report of this behaviour [earlier in] 2017 as well. [X] was six.
26. When [X] was six years […] of age his mother had a significant psychotic episode which he fortunately was not involved in.
27. The mother found out that her mother had let the father take [X] with him to spend time with him [in] 2018. The father says her mother asked him to take the child as she was concerned about the mother’s behaviour and I accept this was the case. When the mother found this out she became angry and screamed at her mother to go and get her son back, and she called her all night via the telephone. The grandmother woke up, found her daughter in her room screaming and yelling at her, told her to come with her and tied her mother’s hands together with tape. The mother was aided by a [Mr N]. The grandmother was placed into a car being driven by [Mr N], a friend of the mother’s at the time. [Mr N] drove the mother and the grandmother to the mother’s home. The mother pulled her mother out of the car and led her into her bedroom, continuing to yell at her for handing her son over to the father. …

…

29. The mother sat on her mother whilst she was in the bedroom, pulled her hair, hit her around the face and chest, and this happened on four occasions. [Mr N] did nothing, just stood watching. The mother threw a glass of water over her mother, and told her mother they were going to collect [X] tomorrow. At about 8 am in the morning the three of them were driven by [Mr N] to [X’s] father’s home. …
30. The grandmother went inside the father’s home, and fortunately the father did not bring his son out. The father observed bruising to the grandmother’s [face and body]. The grandmother told him she had been assaulted and she had to get [X] back or she would be in “serious trouble”. The father rang the police.
31. This is not the only incident of the mother’s out-of-control, most concerning behaviour however it is the most flagrant. The mother also breached an Apprehended Violence Order (“AVO”) which had been issued against her for the protection of the child’s father. The mother rang the father repeatedly [in early] 2019. He ultimately answered the phone, and he immediately recognised her voice. She said to him “You’re the [one] going to be sorry”, “You are the son of the devil”, “You will get what’s coming to you” and she hung up.
32. [The following month], the father received 37 text messages from the mother. Messages included statements such as “I have a new billionaire and I’m going to fuck you. Once you’re in the tent? You put me on the map!”
33. [The next day], the father received 23 messages from the mother, saying things such as “If you don’t keep your end of the deal I will destroy you”. The father went to [Suburb P] Police Station [that day] to report the incidents.

This behaviour continues with her breach of AVO proceedings in late 2022;

36. The mother tells me at paragraph 38 of her affidavit she has apologised to her mother on many occasions:

I am deeply remorseful for my actions in […] 2018. My mother has forgiven me and we are moving on with our lives as a family.

…

44. It is clear that the maternal grandmother was very concerned about [X] and provided him to the father in […] 2018 because of the significant deterioration in the mother’s mental health and incapacity to care for her son. The mother was convicted of [offences against] her mother, and she was incarcerated. Orders were made on 19 April 2018 that the father have sole parental responsibility and the child live with him.
45. The mother was in custody […] from that period of time, released from jail [in] 2018. The mother came into contact with [Dr D] in […] 2018 consequent upon her arrest, and this is where she began her slow but upward trajectory of taking on advice and adhering to recommendations of specialists in the field of addiction.

…

47. When orders were made on 19 April 2018, telephone time was to take place between the mother and [X] as agreed by the parties. The father was entirely unaware that when [X] had been at his maternal grandmother’s home that he had also had telephone conversations with his mother as he and the mother had not agreed in relation to telephone time.
48. The father only found out about this telephone time in late 2020 at a time when he says he noticed [X’s] behaviour had changed and he had become more anxious. The father asserts that the mother told [X] she was better now, he would be coming soon to live with her, he wouldn’t be living with his father, his father never wanted him when he was a baby, and that the phone call should be a secret from his father. These are matters that the mother has denied she said to her son.

It was imperative that any time X spent with the mother or any communication he had with her was supervised;

51. The mother attends [alcohol support group] meetings and she has attended these meetings for some years now and attends six a week and finds them to be of benefit to her …

The Court is unable to say whether the mother has continued to attend these alcohol support group meetings;

53. The mother contravened the AVO by contacting the father, as I have set out, and that occurred in 2019, a year after [X] was removed to his father’s care. The mother says it was because the father would not allow [X] or did not agree to the child communicating with his mother via telephone. That is no excuse for such uncontrolled, uncontained behaviour.

The mother has contravened the AVO again in late 2022;

55. Orders were made on 23 May 2019 that the parties were to do all things and acts necessary to engage the services of the [K Centre] if the Court made such orders. The Independent Children’s Lawyer advised in June 2019 she consented to supervised time. The father has resisted any face-to-face time or communication between his son and the mother at all.

The mother made no contact with the supervised contact centre and has failed to take advantage of the extant orders made on 18 May 2021;

57. [Dr C], drug and alcohol professor, prepared two helpful reports. …

…

60. [Dr C] assessed the mother as well, alert, not intoxicated or experiencing withdrawals, cooperative, answered all the questions, and that her reaction to the humiliation she experienced over the last two years was reasonable.

…

62. In his opinion, she has a long history of excessive alcohol consumption and would meet the criteria for alcohol use disorder of at least moderate severity. The mother also described a period of taking high dose regular [medication], as well as [another medication]. That she had ceased [the first medication] some time ago and he was concerned that [the second medication], which is also a [similar] sedative, may be of concern for her and she should be monitored by a psychiatrist or at least a suitably experienced GP into what drugs she should or should not have. … He recommended long-term abstinence from alcohol, particularly should she seek unsupervised access with her son and that court orders for the monitoring of alcohol biomarkers and clinical functioning were appropriate.
63. … [Dr C] reported the mother demonstrates several risk factors for alcohol use disorder including a strong family history affecting her sister, father and grandfather, she has had various psychological traumas over her life recognised as triggers for alcohol use, and mental illness including anxiety and depression also increased the risk. Severity of alcohol use disorder can compromise any successful treatment. He notes that the current extent of Family Court issues is stressful and traumatising, yet she has abstained from alcohol. That she should continue with counselling, attending at [an alcohol support group], and can perhaps use medications […].
64. The mother was reported to have demonstrated good insight into her problems, and acknowledged that the alcohol use has been a serious problem for her and ongoing abstinence is required. She doubted the need for long-term abstinence. [Dr C] reiterated that due to the severity of her previous problems, this was required, and at the second interview with [Dr D] she did not raise this as an issue and seemed to accept what [Dr D] said. [Dr C] reports at paragraph 7:

[Ms Monroe] had severe and relapsing alcohol use disorder with multiple relapses after hospital-based treatment. Accordingly, the risk of relapsing must be considered quite high. I would note that she has now been abstinent for almost a year and this is a very positive step. The natural history of alcohol problems is that relapses are well recognised. Relapse becomes rare (<5%) only when a period of about five years of abstinence has been achieved. Consequently, I am recommending ongoing monitoring for that period (another 3-4 years).

…

69. [Dr C] wrote a further report dated 24 April 2021, where he says as follows. That there was testing undertaken by the mother for drugs and alcohol and that the test indicated she had used alcohol in the first half of 2020. … It is on this evidence that the mother was not abstinent in 2020.

It would appear the mother has relapsed yet again and is unable to, as was clearly said she must by Dr C and Dr B, to be abstinent from alcohol;

70. … [Dr C] said …

The long history of relapsing and remitting consumption raises the concern that further relapse is very much possible. The period of alcohol use in the first half of 2020 is of concern in that this reflects a continuing risk of further problematic use. Any alcohol use, even of a modest amount, is concerning given the context and the expressed desire to maintain abstinence from alcohol in relation to the court matters.

In my 2019 report, I commented that [the mother] was ready to control her drinking but was not ready to commit to long term and complete abstinence.

Taken together, I believe that further use of alcohol is highly likely.

…

Unfortunately, that is what has now occurred. Her progress cannot today be said to be favourable or have continued;

74. Going to the reports of [Ms G], [X’s] treating psychologist. …

…

77. [X] appeared to be destabilised and confused in January 2021, more agitated in sessions and uncertain about the future. Recommendations were made to protect [X] from “unsupervised access to his mother, especially considering the risk she posed to his psychological welfare”, and this is correct. I agree with this position.

In relation to X, he has continued to blossom with the exemplary care provided by the father and his wife, and he now has a sister aged three years. X’s school reports included in the ICL’s court book show he is performing extremely well, that he had a period of time where he was on medication for ADHD as recommended by Dr B but has now ceased that medication, is engaged fully in all school activities and has a strong commitment to sporting activities, a good social network of friends, and described himself as one of the good kids at school. X’s positive trajectory is the antithesis of what the Court would determine today is the mother’s trajectory and her inability to be abstinent from alcohol;

81. The mother has an extraordinarily hard path to navigate in relation to time with her son progressing. The time that the Independent Children’s Lawyer is positing is supervised time only. That can only be a short-term measure. Ms Gillies SC and the father were quite properly concerned that the mother would not stay the course, in that she would again become uncontained as the father asserts she has been on the telephone and cause [X] stress. That may be correct. It may not be. I do not know. The mother may become unwell again, she may relapse, her mental health may suffer, and she may not be able to sustain time at a contact centre. All these outcomes are possible.

Unfortunately, the mother could not bring herself to engage in supervised time or comply with the orders made by the Court for drug and alcohol testing, which orders were made on 21 January 2021, and not one report has been received in that regard;

83. If, due to the mother’s conduct, behaviour or functioning, or [X’s] reaction to spending time with his mother, time with his mother cannot progress further than supervised time, the Court may face the very difficult decision of making an order that there be no time. That is also a possibility.^[4]

(As per the original)

Unfortunately, this is the position the Court is now faced with. The risks for X in the mother’s unsupervised care were clear in 2021 and he has not commenced any time with her due to her inability to engage in the proceedings and comply with the Court’s orders.

17. Fortunately for X, not resuming time with the mother appears to have little, if any, deleterious emotional impact upon him, and he is in all areas of life progressing well.
18. I noted in my earlier judgment that X’s psychologist, Ms G, who has been very important in his positive trajectory, said at that time he had limited capacity to understand and manage the mother’s mental health needs and he could destabilise. X has progressed significantly since that time, and his mental health is now at a very pleasing position. Since this report was prepared, the mother has not spent time with X. The father ensures X sees his maternal grandparents regularly, has regular sleepovers at his maternal aunt’s home, and of course, he sees the father’s family. X is living in a happy, stable, caring environment and he is flourishing. This is not the case for the mother.
19. I dealt with factors under section 60B and 60CC(2) of the Act in my earlier Reasons for Judgment.^[5]
20. The presumption of equal shared parental responsibility must be rebutted in this matter,^[6] given the mother’s violent behaviour and again breaching an AVO for a second time in 2022 and in respect of X.^[7]
21. The Court cannot assess whether X would benefit from a meaningful relationship with the mother. He does not have a relationship with her at present and has not seen her since 2019. The mother has been unable to engage in the Court process or the processes necessary to become abstinent from alcohol and retrieve her mental health.^[8]
22. X has benefitted exceptionally from the meaningful and supportive relationship he has with the father and his wife Ms M, and X will continue to benefit from that relationship by the orders sought.
23. X has been exposed to neglect, violence, and poor behaviour in the mother’s household.^[9] He has not been exposed to any such behaviour in the father’s household.^[10] The Court must give greater weight to protect X from unacceptable behaviour in the mother’s household.^[11]
24. The Court is unaware of the mother’s current living circumstances.^[12]
25. X is 12 years of age and well-able to express a wish, and he has become a reflective and insightful young man, as attested to in the report of Ms U.^[13]
26. X has memories of the mother, would be agreeable to spending some supervised time with her, but his life now is a life without the mother, and he has been able to accept this given he spends significant and quality time with his maternal family, being his grandparents, aunts and cousins.^[14]
27. X has no relationship with the mother, although she was his primary carer for the first six or so years of his life. He has a strong, committed, beneficial relationship with the father and his wife, and X has a strong relationship with both his paternal and maternal extended family.
28. The mother has failed abysmally to carry out any positive role in X’s life. She has failed to financially support him. She has failed to take on board and continue with treatment that was available to her and made available to her, which appeared to be progressing well in 2021. She has been unable to abstain from alcohol and has been unable to participate in any decision‑making for X or contribute positively to his life in any way at all.^[15]
29. There will be no effect on X’s circumstances by the orders sought.^[16] Indeed it may be even a greater positive for him as the spectre of this litigation will be removed from the father’s concerns finally,^[17] and X will know he will continue, as he has done for many years now, to live full-time with his father and Ms M, and his sister, with the adults together making the best possible decisions for X into the future as they have in the past.
30. The Court does not know if there is a practical difficulty or an expense for X spending time with the mother.^[18]
31. The mother has no capacity to parent X or put the needs of X before her own and is significantly unwell, and it is more likely than not that she continues to be affected by excessive alcohol use.^[19]
32. X has progressed well in the father’s care. The mother’s progress in redressing her alcohol and drug use, and mental health issues, has been deleterious and is of significant sadness for X.^[20]
33. The mother demonstrates a poor attitude to her responsibilities of parenthood. The father takes this responsibility seriously and parents X at an exemplary level. X has flourished in his full-time care.^[21]
34. In light of the evidence, there can be no time nor communication ordered at all between X and the mother. There is no way to ameliorate the risk to X in the mother’s care if time of any type, including electronic communication, is ordered.^[22] The mother has failed to take up orders made on 18 May 2021 to spend time at a supervised contact centre, and the only communication she would have with X was via telephone on an unsupervised basis, and that was deleterious to his stability, as attested to in the father’s affidavit.
35. The mother cannot be trusted and X must be protected now from her deleterious functioning and behaviour and lifestyle choices.
36. I find the orders proposed by the father and ICL are orders in X’s best interests, and I will so order.^[23]
37. It is appropriate the injunctions as sought against the mother coming into contact with the father and X be made to commence when the current state personal protection orders expire.^[24]
38. I have added that should the mother wish to spend time with X, she must only contact the father through a legal representative.
39. The father and ICL sought an order that the father be permitted to apply for a passport for X without the mother’s consent, pursuant to the Australian Passports Act 2005 (Cth). Given that the father shall have sole parental responsibility for X, this is the most appropriate option and I will make that order.
40. An order was sought for leave to provide these Reasons for Judgment and orders, and the report of Ms U to X’s school, medical practitioners, and police. I will provide this leave, as well as leave to any professional the father deems appropriate to be aware of the orders made today.
41. I make the orders as set out in the forefront of these Reasons for Judgment.