BALDWIN & PANTAZIS

[2020] FamCA 918

FAMILY COURT OF AUSTRALIA

BALDWIN & PANTAZIS [2020] FamCA 918

FAMILY LAW – PARENTING – With whom the child shall live and spend time – Where the parties both propose equal shared parental responsibility – Where the parties live 150 kilometres apart – Where the parties both used illicit drugs until separation in 2017 – Where the mother developed a substance use disorder – Where the child lived with the parties until he was two years old – Where the Department of Communities, Child Safety and Disabilities Queensland approved the removal of the child into extended family care – Where the child then lived with the maternal aunt for four days and thereafter, with the paternal grandparents to date – Where the father has lived with the paternal grandparents for almost three years and is said to be the primary carer of the child in that household – Where the father proposes that the child live with him and his partner in B City – Where the mother proposes that the child live with her in Sydney – Where the child is due to start school next year – Where the child currently spends time with the mother for four nights/six days per fortnight – Where each party submits that the child is not now at an unacceptable risk of harm in the care of the other parent – Where minimising change to the arrangements which have been in place is determinative – Ordered equal shared parental responsibility and for the child to live with the father and spend time with the mother each alternate weekend.

Family Law Act 1975 (Cth) ss 60CC, 61DA

APPLICANT: Mr Baldwin

RESPONDENT: Ms Pantazis

FILE NUMBER: NCC 2496 of 2017

DATE DELIVERED: 30 October 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 8-11;14 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Harper

SOLICITOR FOR THE APPLICANT: Waller Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Cummings SC

SOLICITOR FOR THE RESPONDENT: Mills Oakley Lawyers

Orders

1. That all prior parenting orders in relation to X born … 2015 (“the child”) made in this Court and in the Federal Circuit Court are discharged.

Parental responsibility

1. That the parents shall have equal shared parental responsibility for the long term issues to be decided for the child.

2. That the mother and father will consult with one another about all matters concerning the child’s long-term care, welfare and development including but not limited to matters concerning:

   (a)Health and medical needs;

   (b)Education, including selection of the schools the child will attend; and

   (c)Religion.

3. The mother and father will consult with each other about major long-term decisions to be made in the exercise of their equal shared parental responsibility as follows:

   (a)Each will inform the other parent about the decision proposed to be made;

   (b)Each will consult with the other with a view to reaching terms upon which they may agree; and

   (c)Each will make a genuine effort to come to a joint decision with the other parent.

4. That the mother shall be responsible for the daily care, welfare and development of the child when he is spending time with her.

5. That the father shall be responsible for the daily care, welfare and development of the child when the child is living with him.

6. The father may enrol the child to commence school in 2021 in the B City area and shall provide a copy of these orders to the principal of the relevant school.

7. That the mother and father will:

   (a)Keep the other parent informed at all times of their current residential address, contact telephone numbers and email address and inform the other within 24 hours of any change;

   (b)Keep the other parent informed via email of the names and addresses of any treating medical or other allied health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child;

   (c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child and authorise any treating medical practitioner to release the child’s medical information to the other parent;

   (d)That the parents authorise the school attended by the child to give to each parent information about the child’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the child (at that parent’s costs).

8. That in the event the child is prescribed short term medication for a particular form of treatment which is required to continue into a period when the other parent will be caring for the child, any medication or materials required for treatment is to be sent with the child along with the description of the condition for which it is required and the appropriate dosage or method of treatment.

9. That in the event the child is prescribed long term medication, then the medication or materials required for treatment is to be obtained and maintained by each parent to administer to the child in accordance with specific medical advice given by the relevant prescribing medical practitioner.

10. That both parents are entitled to receive, at their own request and expense, from the child’s school, or health practitioners, any and all information in relation to the child’s health, education and welfare. This order will constitute an authority to the child’s medical/health/dental practitioners and school to provide that information.

11. That each party be at liberty to attend the child’s school for the purpose of attending any activity or occasion routinely attended by parents and for the purpose of discussing the child’s academic progress with the relevant teaching staff.

12. That a party may enrol the child into an extra-curricular activity that impacts upon the other party’s time with the child only if expressly agreed to in advance by the other party in writing. In the event that a party does enrol the child unilaterally into such an activity then the child will only participate in that activity during the time the child spends with that parent who organised the activity.

13. That if the child is enrolled by agreement in an extra-curricular activity or sporting activity (whether school based or non-school based), then both parents will ensure that the child attends that activity, any training for the activity or any events associated with that activity during the period when the child is in their care.

Residence

1. That the child shall live with the father.

Time and Communication

1. The child shall spend time with the mother, unless otherwise agreed, as follows:

   (a)       Until the commencement of Term One at school in 2021:

   (i)Each alternate weekend [including the period from 10.00 am Thursday 24 December to 6.00 pm Monday 28 December 2020] from 10.00 am Thursday until 6.00 pm Monday commencing Thursday 12 November 2020 concluding with the weekend from Thursday 21 January to Monday 25 January 2021.

   (b)       From the commencement of Term One in 2021:

   (i)During school terms:

   1.From after school on Friday 5 February 2021 to 4.00 pm on Sunday 7 February 2021 and each alternate weekend thereafter, re-commencing on the second weekend of each term when the child has spent the second half of the previous holiday period with the mother and on the first weekend of term when the child has spent the first half of the previous holiday period with the mother.

   (ii)During school holiday periods:

   2.For one half of each school holiday period being the first half in even numbered years (to include Christmas) commencing in 2022 and the second half in odd numbered years commencing in 2021.

   (iii)At special times:

   3.In the event that Mother’s Day falls on a weekend when the child is not due to spend time with the mother, then the child shall spend time with the mother on that weekend, as an additional weekend, from after school Friday to 4.00 pm Sunday.

   4.In the event that Father’s Day falls on a weekend that the child would otherwise spend with the mother that period of weekend time shall not take place and the child shall remain with the father.

   5.At such other and/or additional times as are agreed between the parties.

Changeovers

1. Changeovers will occur at school, and if a non-school day at the father’s residence, by the mother or her nominee collecting the child from school or the father’s residence at the commencement of the child living with the mother and the father or his nominee collecting the child from the mother’s residence at the conclusion of the child living with the mother.

Overseas Travel

1. That the mother and father do all acts and things and sign all documents within 14 days of a request from the other parent for the child to be issued a passport (or any renewal of passport) with the costs to be shared equally and the father to hold the passport.

2. That the father is to hold the child’s passport on his undertaking to use such for the purposes of and compliance with Order 20 below. In the event that the mother wishes to holiday with the child outside Australia, the father will forthwith deliver to the mother the child’s passport upon the mother complying with Order 20 below.

3. That unless otherwise agreed, when the child is living with a parent during school holidays, that parent will be at liberty, during their school holiday time, to take the child to an overseas Convention country and in relation to that travel:

   (a)The travelling parent will provide the other parent with a copy of their itinerary for the trip including but not limited to departure and return times and dates, a contact telephone number for the travelling parent and the child and the address at which they will predominantly be based (provided that they will not be required to provide details of every address at which the child will stay) at least 30 days prior to scheduled departure;

   (b)The travelling parent will then provide to the other parent a copy of their return airline ticket for the child; and

   (c)During the trip, the travelling parent will arrange for the child to have electronic communication with the other parent by way of telephone, Skype or FaceTime on at least two occasions each week.

4. That each parent be restrained from removing and/or causing the child to be removed from the Commonwealth of Australia to a non-Convention Country (a non-Convention Country is a country which is not listed in Regulation 10 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) unless agreed in writing between the parties, or by order of a Court and in the event the parent has a stopover flight in a non-Convention Country, then that parent undertakes not to leave the airport during that stopover.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baldwin & Pantazis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2496 of 2017

Mr Baldwin

Applicant

And

Ms Pantazis

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders concerning one child, X, a boy aged five years. He is due to start school in 2021.

2. After a relationship of ten years including three years of marriage, the parties separated in 2017. They are now divorced.

The Parties

The Applicant – Mr Baldwin

1. The applicant father is currently 32 years of age. He lives in B City, New South Wales (“NSW”). He is employed as a health professional. He is hoping to be accepted for higher education commencing in 2021.

2. The father is engaged to Ms K. She is currently 32 years of age. Ms K is an employed health professional. She lives in a suburb of B City.

3. Since 2017, the father and the child have been protected by a five year Apprehended Domestic Violence Order (“ADVO”) against the mother. The order expires in 2022.

4. The household in which the father lives consists of the paternal grandparents, himself and the subject child. He also spends time with Ms K in her home.

5. The father and Ms K plan to live together full time in Ms K’s home commencing in October 2020.

6. The father proposes that the child will also become a member of that new household.

The Respondent – Ms Pantazis

1. The respondent mother is currently 33 years of age. She lives with her paternal grandparents in their home in Sydney. The mother proposes that the child become a full time member of that household.

2. The mother works on a casual basis as a administration officer. She also receives Newstart allowance.

3. The mother is undertaking a health related course.

4. The mother has suffered episodic mental illness. She was first diagnosed with depression at 18 years. Since the birth of the child, the mother has voluntarily admitted herself to hospital on five occasions over a two year period (2016-17). She was diagnosed with depression, anxiety, borderline personality traits and post-traumatic stress disorder during that period.

5. Her current and sole diagnosis by her treating psychiatrist and her psychoanalyst is Substance Use Disorder in Sustained Remission.[1]

   [1] Affidavit of Dr N filed 20/08/2020, Annexure N-02, para 2.

6. The mother is currently in remission from drug use. Her prognosis in respect of relapse into drug use is assessed by her treating psychiatrist as good.[2]

   [2] Affidavit of Dr N filed 20/08/2020, Annexure N-02, page 15.

7. The mother denies a current relationship.

The Trial

1. The trial was listed for 6 days commencing 8 September 2020.

2. In December 2019 the paternal grandparents had advised the Court that they wished to withdraw as parties and became witnesses for the father.

3. The trial proceeded on that basis.

4. Both parents were represented by solicitor and counsel.

5. The trial finished within five days.

The Applications

1. The parties proposed very similar orders although not precisely mirror orders, in the Minutes of Order ultimately relied on, contained in case outline documents.[3]

   [3] Exhibits 1 and 2.

2. Both parties consistently proposed equal shared parental responsibility.

The father

1. By his Further Amended Initiating Application filed 31 January 2020, the father had proposed that the child live with him and spend time with the mother for six days/four nights per fortnight until he started school.

2. That time was to be unsupervised but overnights to be spent in the home of either the mother/maternal great-grandparents or another maternal family member.

3. Once the child commenced school in 2021, the child to spend time with the mother on alternate weekends.

4. There would be half of two school holiday periods and all of two term holiday periods, and other special times.

5. The Minute of Order proposed the same arrangements as above during school terms.

6. There was a more expansive proposal for term times (four nights per fortnight) and an equal sharing of holidays if the mother moved to live in B City.

The mother

1. By her Further Amended Response filed 28 February 2020 the mother had proposed that the child live with her and spend time with the father six days/four nights a fortnight.

2. Once the child commenced school in 2021 the child would spend time with the father two nights per fortnight during term and half of all school holidays.

3. The Minute of Order proposed the same arrangement as above during school terms.

4. There was a more expansive proposal for term times (five nights per fortnight) and half school holidays if the father moved to Sydney to live.

Brief History of Relevant Events

1. The parties met in 2007, aged in their late teens, as undergraduates at the same university in Sydney. The parties began a romantic relationship. They did not live together. The father was in a university college. The mother was living with her younger sister in an apartment owned by their parents.

2. Both parties acknowledge having used at various times methamphetamine, GHB, cannabis, MDMA and cocaine over a ten year period roughly 2007 to 2017.

3. The mother asserts that she began using illicit drugs after she met the father, with his encouragement.

4. The father asserts that the mother had used drugs before he met her. The mother denies having been “a recreational drug user” before her relationship with the father. The distinction being drawn was that the mother had been taking the drug, Lexapro, prescribed by her then psychiatrist for depression, before she met the father.

5. Whether the father suggested drug use to the mother, or they each came to it separately, both parties were willing, regular users of illicit drugs.

6. By the end of 2008 both had completed a degree.

7. In 2009 the father commenced a further degree at BB University. The parties took the decision to move to DD City together as a couple. There they began living together for the first time.

8. The mother obtained employment for a company but resigned at the end of the first year.

9. In 2010 the parties moved into an apartment in DD City owned by the paternal family. The father’s sister lived with them there for twelve months. The mother enrolled in a course, studying part time but discontinued at the end of the year.

10. In 2011 the mother’s parents separated. The description by the father of the impact on the mother of that event was “Ms Pantazis took the separation very personally”.

11. Over the following three to four years the mother had a number of short lived part time jobs.

12. In 2014 the parties married. At that point the career of the father was flourishing and the mother appeared to be disengaged from pursuing a career or employment generally. The evidence suggests she felt disheartened.

13. In February 2015 the father took up employment in T City and the parties moved from DD City to live there.

14. In 2015 the subject child was born. Both parties struggled with getting the child to sleep. The mother had disrupted sleep and became increasingly distressed and upset. The father was at work each day and did what he could before and after work. The parties had no family close by to call on for respite.

15. The father described the mother, by the end of 2015, often leaving the house as soon as he came home, returning only when the local shopping centre had closed, having made no purchases.

16. Drug use by both parties continued.

17. One of the parties, or both together, took the decision to enrol the child in day care three days per week. The father dropped him off and one of the parties picked him up each day. This arrangement reduced pressure within the household. With some assistance from friends, the mother was able to care for the child on the other two week days.

18. By early 2016 the mother was struggling to get out of bed at all. The parties were in crisis. The father urged the mother to get help for herself. The mother was reluctant. She told the father she feared being judged a bad mother.

19. On 27 February 2016 the mother left the child in the car alone for 10-15 minutes while she went shopping. The car was parked in a ‘No Stopping Zone’ with the engine running. The car was unlocked. Police were called. The mother rang the father who attended. The mother told police she had been suffering Postnatal Depression and was getting very little sleep. The mother was not charged.[4]

    [4] Exhibit 15.

20. In March 2016 the mother admitted herself, with the child, to a clinic in DD City for postnatal disorders within V Hospital. There may have been a diagnosis made there of Postnatal Depression but evidence of that specific diagnosis is not before me. The material tendered into evidence is of the participation of the mother in a group program at the hospital but the Court is not in a position to interpret test results.[5]

    [5] Exhibit 22.

1. The mother remained in hospital for three months. The mother asserts that she did not disclose her methamphetamine use to the medical staff for fear of being viewed as a failure as a mother.[6]

   [6] Affidavit of the mother filed 10/08/2020, para 51.

2. There is no evidence to suggest that the father provided information about the drug use of himself and the mother to medical staff either.

3. In her trial affidavit the mother conceded that the drug use of both parties adversely affected their behaviour to each other.[7] She presently considers, looking back, that they were both responsible for the aggressive and destructive fights which occurred.

   [7] Affidavit of the mother filed 10/08/2020, para 48.

4. In 2016 during her first admission to hospital the mother did not have that view, or at least she did not express it. She was treated for Post-Traumatic Stress Disorder and for trauma as a consequence of domestic violence.

5. In or around late June 2016 the mother was discharged from hospital. She lived separately from the father for a period and had a female friend to stay with.

Overseas Holiday

1. In July 2016 the parties, together with the child, travelled overseas to Country Z to visit the father’s grandparents and to Country AA to spend time with the maternal grandfather. The mother and child stayed for an additional four weeks in Country AA after the father returned to Australia to work. During that holiday the maternal grandfather confronted the mother with his concern about the amount of Valium she was taking “…you cannot be taking such large quantities.”[8]

   [8] Affidavit of Mr J Pantazis filed 07/08/2020, para 22.

2. In September 2016 the mother and child returned to Australia. The mother admitted herself to hospital for two weeks. The child attended day care full time and was otherwise cared for by the father.

3. In October 2016 the parties and child reunited in the DD City property and the father commuted to his work in T City. The reconciliation of the parties led to a resumption of methamphetamine use by themselves and a friend the mother had made in the hospital. The funds in their joint bank account diminished rapidly. The father had rages where he smashed things over the decreasing ability of the mother to care for the child and their dwindling funds.

4. By early 2017 the parties were ordering drugs online and their drug use accelerated. The mother describes the behaviour of both as “more erratic, paranoid and violent”.[9] The mother began filming the father. Physical fights became more dangerous.

   [9] Affidavit of the mother filed 10/08/2020, para 75.

5. On 1 February 2017 police were called after a dispute between the parties. It is common ground that the dispute was over the use of the parties’ car. The father wanted to drive to work. The mother had hired a car to use that day but had lost its keys. She wanted to go out. The significance of the incident is that police were called to determine the outcome of car use because the parties could not do it themselves.

First Report to Child Safety

1. Early in April 2017 the mother disclosed to the maternal aunt that she and the father “had taken methamphetamine and GHB in their family home with friends” whilst the child was asleep in the house. In a turning point event for the child the maternal aunt made a full report to the Department of Communities, Child Safety and Disabilities Queensland (“Child Safety Queensland”).

2. On 29 May 2017, police were called to the parties’ home following a domestic violence incident. The house reflected the chaos of the parties’ relationship. Police raised concerns about the safety of the child. The marriage ended at this time. Police notified Child Safety Queensland of concerns for the welfare of the child.

3. On 2 June 2017 the maternal aunt and her husband travelled to Queensland for work and visited the parties. The house was dirty, the parties were hostile towards each other, both had apparently lost weight. The maternal aunt assessed that neither party was able to adequately care for the child. She suggested, and both agreed, that she take the child with her for the weekend. She did so and returned him reluctantly.

4. Soon after, the maternal aunt told her father [the maternal grandfather] about the parties’ drug use “Ms Pantazis and Mr Baldwin are using methamphetamines and have for years and are most likely addicted to it.”[10]

   [10] Affidavit of Mr J Pantazis filed 07/08/2020, para 24.

5. In June 2017 Child Safety Queensland visited the parties’ home to “commence investigation and assessment”.[11] The father and the child were present. The father advised that the mother was staying with friends but visited the home during the day. Officers identified a range of concerns but concluded that the child was not immediately unsafe.

   [11] Exhibit 14.

6. Soon after that visit the mother contacted the maternal aunt, told her of the visit by Child Safety Queensland, and asked her to come and collect the child. The next day the maternal aunt travelled to Queensland. The father and the child were at the home. The mother was not at the home.

7. It is apparent that both parties had full confidence in the maternal aunt.

8. On 15 June 2017 the maternal aunt flew back to Sydney with the child with the approval of both parents and Child Safety Queensland.

9. The maternal aunt was due to return to work. Despite reluctance by the mother, agreement was reached between herself, the maternal aunt, the father and the maternal grandfather that the child should go into the care of the paternal grandparents. The mother’s opposition was not based on the capacity of the paternal grandparents to care for the child but on her belief that they “had never liked her.”[12]

   [12] Affidavit of Ms Q filed 07/08/2020, para 56.

10. On 20 June 2017 the maternal aunt, in a most considered and responsible way, took the child to the home of the paternal grandparents in B City. She told them that both parents were “hiding many things from them” and effectively said that they needed to speak to their son, the father.

11. The next day the maternal aunt advised Child Safety Queensland of the changed arrangements[13] and expressed her concerns about the continued drug use of the parents.

    [13] Affidavit of Ms Q filed 07/08/2020, para 59.

12. On 23 June 2017 the mother moved to Sydney to stay with her father. Four days later the mother admitted herself to a private hospital in Sydney where she remained for about four weeks. On discharge the mother moved to live with the maternal aunt, her sister, in Suburb FF.

13. From the date of leaving hospital at the end of July 2017, the mother made many requests for the paternal grandparents to “return X to my care.”[14] They refused. Visits were arranged.

    [14] Affidavit of the mother filed 10/08/2020, para 91.

14. The paternal grandparents were cross-examined on the basis that their response was unreasonable. I conclude that it was not for the reasons which follow.

15. The relevant texts from the mother[15] were a combination of immediate intention to collect the child, intended legal action, veiled threats to tell the father’s employer of his drug use unless the child was returned, an intention to obtain an AVO for her own protection from the father mixed with apology for having said some of those things and regret for past conduct.

    [15] Affidavit of mother filed 10/08/2020, Annexure R4.

16. The mother had just left hospital when the text messages began. Her current state of mental health was unknown to the paternal grandparents.

17. The paternal grandparents had become aware of the drug abuse and reckless conduct of their son and daughter-in-law, concealed from them over many years.

18. I conclude that they were being child focused and appropriately protective of their two year old grandson.

Protective Orders

1. In 2017 a Protection Order, for a five year period, was made in the Magistrates Court in DD City for the protection of the subject child and the father, from the mother. The mother is noted as having been present in Court when the order was made.[16]

   [16] Exhibit 3, page 1.

2. Ultimately that order was registered in NSW in the Local Court in B City. The registration date (contained within the Notice of Registration) was in 2017. However the document [Notice of Registration of External Protection Order] containing the registration date was not signed off until later in 2017.[17]

   [17] Exhibit 3, pages 5 and 6.

3. As a result there was a period when it would have appeared, although it was not the case, that there was no relevant operative Protection Order in place in NSW at all.

4. During that period, the mother applied for an Interim Domestic Violence Order. The order was made in a Local Court in Sydney in 2017 for the protection of the mother and the child from the father.

5. What the applicant police officer was told about where the child was then living, and the existence of a five year Protection Order made in Queensland, is not before me. There is no evidence from the mother to suggest that she provided that information.

6. The order issued with a “standard” restriction on the father coming within 100 metres of “any place where (the mother) or (the child) live”.[18]

   [18] Exhibit 3, page 11.

7. At that time the mother was living in Sydney. The child was living with the paternal grandparents in B City.

“The Abduction” of the child

1. In 2017 the mother, together with her father and sister, travelled to B City with the express purpose of removing the child from the care of the paternal grandparents under the guise of a visit.

2. The mother alerted local police to her plan and intention, relying on the order of 2017 to establish that the father was not to approach within 100 metres of the home where the child lived.

3. This was an orchestrated plan by the mother to bring the child into her care, which in the end did not succeed.

4. Senior Counsel took to task the paternal grandparents and the Single Expert for referring to this incident as “the abduction”. Certainly the mother would not have interpreted her own actions in that way. More likely she considered she was restoring the status quo.

5. In my view it was a manipulative course of action. The mother wanted the interim AVO to effect her plan and not because she had a current fear of exposure to domestic violence.

6. In late 2017 a further interim ADVO issued from the Local Court in Sydney, rectifying the first order by omitting the restriction on the father coming within 100 metres of where the child was living.[19]

   [19] Exhibit 3, pages 7 - 9.

7. Later in 2017 the Queensland Protection Order was registered in NSW. The proceedings for a final AVO in NSW were discontinued.

Parenting Proceedings in the Federal Circuit Court

1. The father had initiated proceedings in August 2017. He proposed that the child ultimately live with him, but in the interim with the paternal grandparents.

2. The mother responded with orders for the child to live with her immediately and on a final basis.

Orders by Consent 6 November 2017

1. On 6 November 2017, a comprehensive suite of parenting orders was made by consent including residence for the child with the paternal grandparents and defined supervised time with the mother.

2. Both parties were to be psychiatrically assessed.

Father moves to B City

1. On 13 November 2017, having found employment in B City, the father moved from Queensland to live in his parents’ home with the child and has lived there since.

Psychiatric assessment of parents - February 2018

1. On 12 February 2018 each party underwent psychiatric assessment by a Single Expert and reports issued soon after.

2. The opinion, in summary and as quoted, of the psychiatrist about each parent was as follows:

The Father

·The father was not identified to have a psychiatric disorder.[20]

[20] Single Expert Report of Dr C (re. father) dated 16/02/2018, para 37.

·The father identified extensive drug use but was not identified to have a Substance Use Disorder.[21]

[21] Single Expert Report of Dr C (re. father) dated 16/02/2018, para 38.

·The father had demonstrated poor judgment in self prescription of drugs for himself and the mother.[22]

[22] Single Expert Report of Dr C (re. father) dated 16/02/2018, para 39.

·[40.]    Mr Baldwin was identified to be well supported by his family. Over the years, he had maintained stable employment. There was no indication that he lacked the capacity to maintain this in the future. He was identified to have the capacity to appropriately attend to X’s needs with the support of the paternal grandparents. He was not identified to have impaired parenting capacity as a result of mental illness. It is probable that, while intoxicated with substances, alleged by Ms Pantazis (sic), he had had periods where he was (not?) able to appropriately attend to X’s needs.[23]

[23] Single Expert Report of Dr C (re. father) dated 16/02/2018, para 40.

·[41.]    I would recommend that Mr Baldwin contact the S Medical Service to obtain tailored counselling and support given his challenging circumstances.[24]

[24] Single Expert Report of Dr C (re. father) dated 16/02/2018, para 41.

The Mother

·The mother was noted to have been diagnosed with a Substance Use Disorder. She was assessed to have demonstrated significant insight into her experience of substance abuse and was well engaged with therapeutic services.[25]

·[56.] Elise (sic) was viewed to have a good prognosis contingent upon her capacity to maintain abstinence from substances, particularly methamphetamine, and utilise DBT strategies. It will be important for her to maintain her current psychotherapeutic, psychiatric and drug and alcohol treatment program. There was every indication that she is now committed to doing so.[26]

·[57.] Thus, although she had experienced a significant impairment in her parenting capacity in the context of her impaired mental state whilst using substances, her current capacity to attend to X’s needs was not significantly impaired.[27]

[25] Single Expert Report of Dr C (re. mother) dated 16/02/2018, para 51.

[26] Single Expert Report of Dr C (re. mother) dated 16/02/2018, para 56.

[27] Single Expert Report of Dr C (re. mother) dated 16/02/2018, para 57.

Report of Single Expert – 22 March 2018

1. On 7 March 2018 both parties, the child and other family members were interviewed and observed for a Single Expert Report.

2. The report was released about two weeks later.

3. The assessment of the capacity of the parents to provide for the needs of the child was as follows:

The Father

[138.]The father has the capacity to care for X and indeed has a good recognition of X’s needs. He is attuned to the child and he has an understanding of what are the tasks of parenthood. He has strong support for that from his parents and also from his brother and sister and under normal circumstances, even given that he has a demanding job, I would expect him to adequately care for his son and to provide him with a high level of fathering opportunities.[28]

[28] Single Expert Report of Dr M dated 22/03/2018, para 138.

The Mother

[139.]As it currently stands Ms Pantazis also has the capacity to care for her child. She also has good levels of family support. The difficulty for this assessment is the concern that Ms Pantazis had a long history of psychological disturbance beginning in her adolescent years. There is some suggestion of an underlying characterlogical disturbance with borderline traits, although it does not seem possible at this point to make a diagnosis of borderline personality disorder. Clearly she has a lifetime history of depression and her drug use was excessive and her abuse of medications extremely concerning. Her relapse potential remains unknown but I suspect it is higher than that of her ex-husband Mr Baldwin and hence I have some concerns for the future in regards to the continuity of care that Ms Pantazis can provide for her son.[29]

[29] Single Expert Report of Dr M dated 22/03/2018, para 140.

1. The Single Expert was then provided with the psychiatric assessments of Dr C Those assessments did not alter his recommendations (Update Report dated 11 April 2018).

Time with mother becomes unsupervised

1. On 17 October 2018 orders were made in the Federal Circuit Court for the mother’s time with the child to become unsupervised and more extensive.

Transfer to the Family Court of Australia - January 2019

1. On 21 January 2019 the proceedings were transferred to this Court.

2. The parties had arranged for interviews in September 2019 with the Single Expert Dr M for an updated report.

Updating Single Expert Report - December 2019

1. On 5 December 2019 the updated report was released. The recommendation in summary was to avoid disruptive change for the child.

2. The matter was set down for trial.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant Father – Mr Baldwin

   (a)Further Amended Initiating Application filed 31/01/2020;

   (b)Affidavit of the father filed 7/08/2020;

   (c)Affidavit of the father’s partner - Ms K filed 7/08/2020;

   (d)Affidavit of the paternal grandmother - Ms F Baldwin filed 7/08/2020;

   (e)Affidavit of the paternal grandfather – Mr D Baldwin filed 7/08/2020;

   (f)Affidavit of preschool director - Ms L filed 10/08/2020;

   The Respondent Mother – Ms Pantazis

   (g)Further Amended Response filed 28/02/2020;

   (h)Affidavit of the mother filed 10/08/2020;

   (i)Affidavit of the mother’s psychoanalyst/psychiatrist - Dr N filed 20/08/2020;

   (j)Affidavit of the mother’s psychiatrist - Dr P filed 7/08/2020;

   (k)Affidavit of the maternal great-grandfather - Mr G Pantazis filed 7/08/2020;

   (l)Affidavit of the maternal great-grandmother - Ms Pantazis filed 7/08/2020;

   (m)Affidavit of the maternal grandfather – Mr J Pantazis filed 7/08/2020;

   (n)Affidavit of the maternal aunt - Ms Q filed 7/08/2020;

   Reports

   (o)Expert Report of Dr C (re: mother) dated 16/02/2018;

   (p)Expert Report of Dr C (re: father) dated 16/02/2018;

   (q)Single Expert Report of Dr M dated 22/03/2018;

   (r)Update Report of Dr M dated 11/04/2018;

   (s)Update Report of Dr M dated 28/11/2019.

Oral Evidence

The Applicant father

1. The father presented as someone committed to being open and honest as a witness. I had the impression that although cross-examination was uncomfortable and at times embarrassing for the father, the worst was over for him before the trial began. That he had put his own child at risk of harm and had deeply disappointed his parents has been confronting and has changed his life.

2. The father, together with the mother, lived recklessly for the almost eight year period between moving to Queensland in 2009 and the subject child aged two years moving out of their care in mid-2017. Had they remained childless that would have been a matter of private choice, subject only to the law around obtaining and using illicit substances.

3. Probably neither expected to be as comprehensively exposed as they have been in relation to drug use and personal conduct.

4. Despite being a young health professional, the father was probably out of his depth in relation to the impact of their lifestyle on the mother. What was exciting hedonism for him was a chaotic path to addiction and mental illness for the mother.

5. The father had not inspected the documents produced in response to subpoena in order to have accurate information on his prescribing rates for benzodiazepines and other drugs for the mother. This was a much canvassed issue. The mother had been prescribed certain drugs by her psychiatrist. The father and the mother’s own father (in relation to benzodiazepines), wrote follow on scripts. It seems the father had not wanted to see the evidence although he expected to be asked about it. In that way he was avoiding the past, which led to his minimising the extent of his prescribing to the Single Expert.

6. The father conceded having lied to the Queensland Child Safety authority about his own drug use in 2017. He had told officers he had not used drugs since the birth of the child. Knowing the truth about his own use it was appropriate for the father to have agreed that the child should move to stay with the maternal aunt.

1. The father was unfailingly positive about the mother now being well and in remission from drug addiction. I accept that he wants the child to enjoy his relationship with the mother. I also accept his evidence that the child understands who his mother is and there is no confusion in the mind of the child or in the behaviour of the paternal family about that.

2. Dr M assessed the child as having an excellent relationship with the father (and with the mother) who he considered has the capacity to care for the child and a good recognition of his needs.[30]

   [30] Update Report of Dr M dated 28/11/2019, para 100.

3. That assessment accords with my impression of the father.

The father’s partner - Ms K

1. Ms K was not required for cross-examination. Her evidence is accordingly unchallenged.

2. Ms K has lived permanently in Australia for two and a half years and has worked in B City throughout that period. She has a permanent residence visa. She has been warmly welcomed into the father’s extended family.

3. The father and Ms K began a romantic relationship in September 2018. They plan to marry in 2020.

4. In June 2019 Ms K bought a house in Suburb CC a suburb of B City, with a view to herself, the father and depending on the outcome of these proceedings, the subject child, living there together in due course.

5. Ms K has lived in the house for the past 12 months. The father and X have visited and stayed at the house regularly. X is familiar with his bedroom there.

6. A “positive, happy and relaxed relationship” has developed between Ms K and the child. She has spent time with him without the father at the park or the beach. She has dropped him off at preschool and taken him to soccer. Dr M observed that Ms K and the child were “well engaged” with each other.[31]

   [31] Update Report of Dr M dated 28/11/2019, para 75.

7. Ms K is able to control her working hours. She and the father are hopeful of having children together.

8. Ms K has met the mother and the relationship between the two women is reported to be amicable and respectful.

9. The child has apparently called Ms K “Mum” on occasions after he has spent the weekend with the mother.

10. I accept that when that happens the child is kindly reminded by the father and Ms K that he only has one “Mum” and also that there is no doubt in the child’s mind about who that is.

The paternal grandfather – Mr D Baldwin

1. In the period between June and November 2017 the paternal grandfather travelled to DD City a few times, to use his own term “to talk turkey” to the father. The father also came home to B City a few times.

2. He had been shocked by the child being brought for the paternal grandmother and himself to care for, but understood that the reasons for that were likely to be disappointing and upsetting. They had also been alerted by the maternal aunt.

3. I had the impression that the paternal grandfather approached the situation pragmatically “I wanted him on the recovery track, not to persecute him about everything.”

4. The paternal grandfather was critical of the mother and wary of regarding her as “cured”.

5. There is no suggestion in the evidence that the paternal grandfather would share his views with the child or with anyone else in the presence of the child.

The paternal grandmother - Ms F Baldwin

1. The paternal grandmother was tested on the extent of her knowledge of the father’s use of illicit drugs.

2. I accept that the paternal grandparents were not aware of any drug use by their son until the child came to live with them.

3. The Court was left in no doubt that a revelatory conversation had taken place in mid-July 2017 between the father and his parents. The paternal grandmother was thereafter sternly critical of both her son and daughter-in-law.

4. The paternal grandparents had visited the parents in DD City in January 2016 and concluded that “something was wrong”. Other than the paternal grandmother flying to DD City for the child’s first birthday they thereafter stayed away. My impression was of reluctance to interfere.

5. I am confident that if they had been aware of drug abuse that approach would have changed at once.

6. I conclude that the paternal grandmother found the demands of the mother hard to tolerate especially that the grandparents should bring the child to see her in hospital in Sydney on 9 July 2017.

7. The conversation which gave rise to that request was experienced by the paternal grandmother as so hostile that she contacted the hospital about it.

8. I accept that she did so for the reason she gave “I didn’t think it would help her to be fixated on Mr Baldwin [the father]. She needed to recover herself.”

9. The paternal grandmother facilitated Skype calls for the child with the mother and some visits.

10. The events in September 2017 where the mother came with her family to take the child into her care have undoubtedly led to a legacy of mistrust. The paternal grandmother was clear to say she had not forgiven the mother, more time would need to pass.

11. As parties, the paternal grandparents consented to Court orders in November 2017 and have complied with those and subsequent orders.

12. The paternal grandmother was pressed to answer whether she liked the mother. She was diplomatic in response: “Ask again in a year. Mixed feelings good and bad”. Relevantly she offered “X loves her. He loves both his parents”, “things are improving”.

13. The evidence supports a finding that the paternal grandmother has been scrupulously protective of the relationship between the child and the mother.

Preschool director - Ms L

1. Ms L had caused an assessment report for the child to be produced.

2. Ms L informed the Court that she had offered to take that course when she learned that the child’s parents were in Court. That is her practice for parents who are engaged in Family Law litigation.

3. The report was positive about the skills and school readiness of the child. Something was sought to be made of there having been an original report subsequently varied at the request of the paternal family.

4. The material omitted was not taken out to enhance or protect the father. I am satisfied that Ms L’s comments that she guessed it was to save the mother from hurt are likely to be realistic.

The Respondent mother

1. The mother presented as a calm considered witness. She appeared determined to conceal nothing from the Court.

2. She made appropriate concessions for the child. For instance that whichever parent the child lived with should hold his passport, and that the father could enrol the child for school in B City pending the outcome of these proceedings.

3. The mother reflected in detail about the adverse consequences for the child if she were to relapse into drug use. The contrast was sharp between the knowledge and insight revealed in her response and her conduct on her first trip to hospital in 2016 where she concealed her drug use and blamed the father for her problems.

4. The mother acknowledged that whilst she was dependant on drugs she externalised blame and that was true with respect to complaints about the father. “I blamed him a lot for why I was feeling so depressed. I did that to Mr Baldwin and quite a few people around that time”. That is confirmed by police records which offer the opinion that the mother was making false complaints in 2017.[32]

   [32] Exhibits 15 – 18.

5. The mother expressed regret over her attempt to remove the child from the paternal grandparents in September 2017. That is a significant change from her attitude at the time and immediately afterwards.

6. Senior Counsel for the mother submitted that the mother could not have made a better recovery.

7. The evidence supports a finding that the mother has made a most genuine effort to rehabilitate herself and has successfully arranged her life to minimise the risk of relapse into drug dependence and mental illness. She is studying, doing some casual work and is very well supported by her family.

Dr N – consultant psychiatrist for mother

1. Dr N, in addition to being a psychiatrist, is a psycho-analyst. The mother has been her patient since November 2017, on a weekly basis at first, now fortnightly.

2. In response to a question from me about how long Dr N expected to continue seeing the mother the doctor said that it would be for the foreseeable future, many years. The doctor added that regularity and continuity is critical.

3. The doctor agreed with my proposition that the purpose (of years of psychotherapy) might be to address long standing vulnerabilities arising from childhood and adolescence.

4. In her report Dr N addressed the issue of risk of relapse as follows:

   Ms Pantazis has recovered from her addiction to methamphetamine but the issue of risk of relapse may exercise the mind of the Court. I offer my opinion on this question, with respect, to the Court. I consider Ms Pantazis’ prognosis is good based on the following rationale. Firstly risk of relapse is significantly reduced because Ms Pantazis is no longer living in the drug-using social milieu she shared with her then husband Mr Baldwin. Secondly Ms Pantazis now has and exercises an improved sense of personal empowerment in her day to day life, which increases her effectiveness in coping with problems which means she is unlikely to turn to drugs to relieve distress. Thirdly a further protective factor is Ms Pantazis has re-established close and supportive relationships for herself and X with her Sydney–based extended family.

   Finally, Ms Pantazis has engaged very well therapeutically and complied effectively with all aspects of her comprehensive mental health treatment plan so this framework of care continues to protect her from relapse.[33]

   [33] Affidavit of Dr N filed 20/08/2020, Annexure N-02, page 15.

5. On the topic of the doctor providing information to the father about the mother Dr N was quite resolutely opposed. She considers, and the Court does not suggest unreasonably, that it would offend patient confidentiality.

6. The doctor acknowledged that she herself might be regarded by the father as a safeguard. However her response to a question on behalf of the father as to there being any way she could communicate with the father about relapse was “patient confidentiality is key”.

7. The next proposition put was that if the mother did relapse she [the mother] would be unlikely to tell the father.

8. In a manner quite dismissive of that question the doctor responded “You’d have to ask her that”.

9. Counsel persisted with the question and the doctor resisted responding:

   I think the likelihood of her taking drugs again is so minimal it’s not a material question.

10. In my view the unwillingness of Dr N to engage with the idea of possible relapse went beyond her written report to the effect that the prognosis in relation to relapse was good for the four stated reasons. Logically if any of the four stabilising factors changed, risk levels would rise.

11. Counsel for the father then asked whether, if the mother had given prior instructions for the doctor to do so, Dr N would tell the father if the mother disengaged with her psychotherapeutic treatment.

12. The doctor said that in those circumstances she would give the mother a letter to that effect, to give to the father. She would also advise the mother’s GP in writing.

13. My conclusion is that Dr N does not consider it proper to obtain the type of instructions from the mother in advance which were postulated. That is a matter of course for her own professional judgment and practice.

14. As a result of her evidence I was left confident that Dr N would not advise the father of relapse by the mother nor would she let him know if the mother disengaged with therapeutic treatment.

15. In circumstances where one of the four nominated safeguards against relapse is ongoing therapeutic treatment some risk for the child arises if the mother ends her therapeutic relationship.

16. In submissions, counsel for the father advised the Court that the father no longer pressed for orders relating to provision of information about relapse or disengagement by the mother.

17. The father also expressed his confidence that the maternal grandfather would let him know if such a situation arose.

Dr P - consultant psychiatrist for mother

1. In October 2017 the mother was referred to Dr P by Dr R, a forensic psychiatrist working within the clinic in which the mother had been a patient.

2. Dr P is a peri-natal specialist. Accordingly he treats mental illness in women who are pregnant or have given birth in recent times.

3. Dr P confirmed the confidence expressed in his report[34] that the mother had made excellent progress and that her regime of care would prevent relapse but detect it early if it did re-emerge.

   [34] Affidavit of Dr P filed 07/08/2020, Annexure P-01, page 10 – 13.

The maternal grandfather - Mr J Pantazis

1. The maternal grandfather is undoubtedly a most loving father and grandfather.

2. He was an open and honest witness.

3. I accept that he was shocked and bitterly disappointed when he learned in 2017 that the mother had been using illicit drugs for years.

4. I also accept that to use his own words he “would not have written one script for her” if he had known of her drug abuse. He had been in the habit of prescribing benzodiazepines for her from time to time.

5. The maternal grandfather was most unhappy with the outcome of the trip to B City undertaken in September 2017 by the mother, the maternal aunt and himself, for the mother “to recover” the child. He asked the mother to remain in the car with him until police arrived. She did not. Instead she got out of the car and attempted to remove the child from the father.

6. The maternal grandfather was aware of a Queensland Protection Order in place for the protection of the father and the child. He had been told that a subsequent NSW interim AVO restrained the father from being within 100 metres of the child. That information together with a report from Dr R psychiatrist about the mother having stabilised, had been the two bases for his decision to participate.

7. I conclude that the maternal grandfather is a solid source of love and support for the mother and the child

The maternal great-grandparents – Mr G Pantazis and Ms H Pantazis

1. The maternal great-grandparents were not required for cross-examination. Accordingly their evidence is unchallenged.

2. The mother has been living in the home of the maternal great-grandparents with them for three years. The child has his own bedroom there for when he comes to stay.

3. The maternal great-grandfather and his wife, the maternal aunt and her family are very regular visitors to the household.

4. The mother is not required to pay board or to contribute financially to the household.

5. It is apparent that the mother lives in an atmosphere of unconditional love and acceptance in the home of her grandparents. They know about her drug use, mental illness and the crisis which gave rise to the child moving out of the care of the parties. They are only too happy for her, and the child, whom they dearly love, to remain with them for as long as the mother wishes.

6. Going further, the great-grandparents, now both aged around 90 years, have put arrangements in place for the mother after their death. Their house will pass to the maternal grandfather and his brother, but the mother will be entitled to remain until 2027 at a low rent payable only to her uncle.

7. Their thinking is that a further seven years will be sufficient for the mother to complete her studies and for the child to finish his primary education.

8. Certainly this factor, of extended family support, one of the four identified by Dr N, is solid and invaluable to the mother.

The maternal aunt - Ms Q

1. The maternal aunt is the younger sister of the mother and a godmother of the child. She was not required for cross-examination. Her evidence is accordingly unchallenged.

2. The maternal aunt is an educator, married to a health professional. They have two infant children. She works at the school which was proposed by the mother for the subject child to attend.

3. The maternal aunt was informed by both parties about their drug use and saw something of it herself.

4. She witnessed a decline in the parties’ conduct and household. She remained strongly supportive of her sister and nephew and also maintained confidence in the father.

5. By early 2017 the maternal aunt was doubtful about the ability of both parents to parent the subject child. To her great credit she made a report to Child Safety Queensland.

6. In June 2017 the maternal aunt and uncle took the child with them to T City for a weekend when they were there. The maternal aunt felt reluctant to return him to the parents.

7. Within 10 days Child Safety Queensland had become involved and the aunt flew back to Queensland.

8. On 15 June 2017 she returned to Sydney with the child. She cared for him and discussed the future within the family before returning to work.

9. I consider it likely that the protective actions of the maternal aunt prompted the mother to admit herself to W Hospital for rehabilitation. Those actions certainly also alerted the paternal grandparents to the vulnerability of the child.

10. On 9 July 2017 the maternal aunt saw swift improvement in the mother in hospital and heard her expressions of remorse.

11. The maternal aunt apparently believed that collecting the child from the paternal grandparents for return to the mother would be straightforward. She contacted the father and his parents to arrange it.

12. During that period the paternal grandparents had had a thorough conversation with their son [the father] and had begun to appreciate the extent of the danger the child had been in with both parents. They declined to return the child to the mother.

13. On 21 August 2017 a visit was arranged for the mother with the child in B City. The maternal aunt accompanied the mother. It was clearly a shock to the mother when the paternal grandfather denied a request for her and the maternal aunt to take the child out to the park.

14. After that visit the mother admitted herself to GG medical centre for what the maternal aunt described as “situational crisis and to work through her grief at being separated from her son.”

15. After the mother came out of GG medical centre it seems likely that the maternal aunt concluded two things, first that her sister had made sufficient progress to have the child in her care and second that it was her [the maternal aunt’s] responsibility to get the child back. Perhaps because she had been the one to take him to stay with the paternal grandparents. There may be other reasons.

16. The maternal aunt describes herself as going with the mother and the maternal grandfather, on 16 September 2017, to “collect X from B City.”

17. Unlike her earlier actions what the maternal aunt did was ill-considered. She or the mother called police and told them something which caused police to agree to meet them at the home of the paternal grandparents.

18. When the father and child arrived at the paternal grandparents’ home by car, the mother, to use the words of the maternal aunt “approached the car to recover her son”. She opened the car and lent in to get the child. The father attempted to take the child back. The mother stated “Don’t touch me this is assault”.

19. Predictably, after some manoeuvring by the two parents, the child was crying and was probably frightened. Police arrived, handed the child to the paternal grandmother and asked her to take him inside.

20. This incident was destructive of trust between the paternal family and the mother and to an extent the maternal family.

21. Two months later, interim parenting orders were made by consent for the mother to spend time with the child, supervised by the maternal aunt or maternal grandfather.

22. The requirement for supervision was subsequently removed. The maternal aunt has continued to be closely involved with the mother and child and is likely to maintain those bonds to the benefit of the child. He enjoys playing with his younger cousins; the maternal aunt’s children.

23. The maternal aunt and her family have a great deal to offer the child.

The Single Expert – Dr M

1. In his final report of November 2019 the Single Expert formulated a view.[35]

   [35] Update Report of Dr M dated 28/11/2019, paras 85 – 87.

2. First he was confident that neither parent appeared to have any current mental health or drug related difficulties.

1. The parties themselves expressed that view about themselves and each other at trial.

2. Second that both parties remain reliant on extended family support for their future plans and both parties seem comfortable and able to access that support.

3. The father was committed to remaining in B City where he would be living with his partner and working. He wishes to maintain the close connection with the paternal grandparents for the subject child and himself.

4. The mother confirmed in cross-examination that although she had considered moving to B City she intended to remain in Sydney in order to live with her grandparents, to have regular contact with her father and sister and to maintain her therapy and treatment with current specialists, particularly Dr N.

5. Third he acknowledged that change was coming for the child as a result of school starting in 2021. Time with one of the parents would necessarily diminish.

6. The parties acknowledged the inevitability of the current shared care arrangement changing. Alternate weekends are the most obvious arrangement when the parties live 150 kilometres apart.

7. The Single Expert summarised as follows:

   There will be disruption to X if a substantial shift in time occurs between the paternal and maternal families, and even if it is manageable (and likely will be) the question remains as to what benefit there is to X by creating that disruption in the situation where X has secure attachments to both families, and the commitment each has made to facilitating X’s contact with the alternate family.

8. In his oral evidence the Single Expert confirmed his view. He identified the single largest issue as “continuity of care where both parents are functional, they live far apart and a child is about to start school”.

9. The Court accepts the inherent recommendation in that analysis.

10. Using the language of the legislation I consider that the best interests of the child are promoted by putting in place the arrangement least likely to disrupt or destabilise him.

11. Various words were used to describe the subject child including “robust” and “resilient” and “a lovely advanced child”.

12. The likelihood that the child could tolerate being separated from his father and paternal grandparents for 12 days out of 14, because of the loving support and care he would receive from the mother and maternal family, is not a proper basis for that arrangement being implemented.

13. The child is five and a half years old. For the first two years he received sub-optimal care but good enough that he was a healthy child who had met his milestones in the assessment of Child Services in June 2017.

14. Since age two, he has lived with his paternal grandparents. His father became a full time member of the household within a few months. He has thrived. There is no doubt that the mother too has been a contributor to that healthy outcome. However for three and a half years his day to day people have been his father, his paternal grandparents and for the past two years his father’s partner.

15. The Single Expert commented that “leaving his familiar environment will have some consequences, why put a child through even short term disruption?”.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Parental Responsibility

1. Both parties propose an equal sharing of parental responsibility.

2. Are the parents capable, as they each propose, of sharing parental responsibility?

3. There is an acceptance by the parties that the residence of the child will determine most of the long term decision making. Neither objects to the local school proposed by the other.

4. The parties are capable of communicating about specialist medical attention, religious instruction if any, and variations to the orders from time to time.

5. It is in the best interest of the child to have considered input from each parent.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. The parties agree that the child will benefit from continuing to enjoy a relationship with them both and input from both about big decisions.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

1. Neither parent presently represents a risk of harm to the child. This is so despite there being a current Protection Order for the father and child which has two years of currency.

2. The father continues in full time employment and is committed to the care of the child. With the assistance of his parents, he has confronted his past behaviour and matured.

3. The mother is doing some casual work and is studying to pursue a career as a psychologist. She is committed to the care of the child and is well.

4. With the professional assistance of her psychiatrists the mother too has confronted her past behaviour and acknowledged her past impaired judgment.

5. Provided she maintains current arrangements the prognosis for the mother in terms of relapse is good.

Additional Considerations

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. The child is five, well ready to start school next year. He is assessed by the Single Expert to be an intelligent, resilient, cheerful child.

2. He would have no memory of his parents living together with him.

3. He is too young to understand the dispute between the parties and its implications for him.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The child is assessed by the Single Expert to have a primary attachment to each of his parents.

2. The attachment to his father extends or is diffused through the extended paternal family. He is naturally very close emotionally to the paternal grandparents with whom he has lived for three years. He has developed a close bond with his father’s partner, Ms K.

3. The child has a loving affectionate relationship with his maternal grandfather, his maternal aunt, uncle and cousins. His maternal great-grandparents dote on him.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. The father was the financial provider for the child and the mother from the birth of the child in April 2015 until June 2017. Thereafter the paternal grandparents have provided a home for the child and they, and the father, have met his expenses. The maternal great-grandparents have also provided a home for the child when he stays with his mother.

2. No issue was raised by the father about financial contribution by the mother to the maintenance of the child.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. This is an important consideration. The child is poised for change away from living with his paternal grandparents on either application. Full time with his mother in Sydney or full time with his father and Ms K in B City.

2. Over the past 18 months the child has regularly spent time with his father in the home of Ms K. The child has a close easy relationship with her. If he lives with his father the child will also live with Ms K.

3. Very regular time with his paternal grandparents will be reassuring for him. They were, at least for the first six months after he came to live with them, in the parental role. They have continued to be part of his life every day since. Their intention is to finalise stepping back to being grandparents, living nearby.

4. Finishing preschool where he has attended for the past three years will also provide continuity for him. It is possible but less likely that some of those children will attend the school proposed for him by the father. Less likely because the preschool is within a hospital for the benefit of staff within.

5. It may or may not be that children within the local area of the home of Ms K will attend the proposed school.

6. Starting school will limit the amount of time during terms that the child can spend with the other parent. Blocks of holiday time will balance the impact of that loss.

7. Importantly, he has done well, is a happy confident child, without health or behavioural problems.

8. Minimising change to the circumstances which have been in place is determinative where most other things are equal.

The practical difficulty and expense of a child spending time with and communicating with a parent

1. There is a two hour drive between the two residences, about 150 kilometres. There are family members who will willingly assist with transport however it will always be the child who does the travelling.

2. The child starts school in January 2021. Thereafter the most travel he should be expected to do during school terms is a two hour drive each way for alternate weekends.

3. I accept the evidence of the paternal grandmother, based on her own knowledge and her discussions at the preschool which confirmed her view, of the ability of the child to cope with this level of travel.

4. The sharing of holidays and special times is generally agreed.

5. The mother’s preference is to collect the child from school at the commencement of weekends. I consider there is a benefit to the child while he is very young, in infant school, of this occurring. The mother will be at school with other parents, may greet his teachers and see his classroom. He will not need to travel with a bag and is likely to sleep in the car. He will be able to enjoy two or more hours in the mother’s home before bedtime.

6. In primary school, a mid-point changeover would work quite well. His bag and personal effects could be handed over there. Such a change to the orders would be a matter for the parents entirely.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

Do each of the parents have the capacity to meet the needs of the child?

1. When the subject child was born in DD City in 2015, both his parents lacked capacity to meet his needs well without assistance. Not unusual for any new parents in such a situation of separation from both extended families.

2. These two parents had, over the prior eight years been indulging in the use of illicit drugs. They were not ready or able to give priority to the needs of a young child.

3. Unfortunately the capacity of each diminished over the following two years, more so for the mother.

4. The father was working full time, caring for the child at times and continuing to use drugs.

5. The mother was using illicit drugs. She was also abusing prescription drugs, enabled by the father and her own father who both topped up scripts for her. She descended into participation in a drug using milieu that put the child and herself at a very real risk of harm.

6. After the involvement of the Queensland welfare authorities in June 2017 when the child moved to live with the paternal grandparents, each party set out on a path to change.

7. The father ceased using drugs. He found employment in B City and moved to live in his parent’s home to be with the child. He has since met a new partner about whom there is no criticism from anyone. They intend to marry and live locally to the paternal grandparents.

8. The mother continued to admit herself to hospital. She had developed a substance use disorder, now diagnosed by her psychiatrist to be in sustained remission. The mother has ceased drug use.

9. The mother is living in the home of her paternal grandparents and is supported by them, financially and emotionally.

10. Each of the parents could accurately be described as intelligent, well-educated and ambitious.

11. The intellectual needs of the child will likely be well met.

12. Present indications are that each parent has matured since the child was effectively removed from their care. His need to enjoy a close loving relationship with each of them appears to be well understood and reflected in thoughtful cooperation around such things as speech therapy and swimming.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. X is a five year old boy, an only child. He is assessed by his preschool director as a capable active child, easy going, well-liked by other children. He loves soccer and numbers.

2. Culturally he is connected to Australia, to Country AA and to Country Z. The mother spoke AA Language as her first language until she started school and has maintained that language.

3. The maternal great-grandparents of the child speak AA Language as their first language. The child is learning to speak AA Language and enjoys communicating with his maternal family in that language.

4. He is likely to be well supported in his education, sporting activity and whatever else interests him.

5. He has cousins on both sides of his family whom he knows and enjoys spending time with.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. For the first two years of his life both parents were quite irresponsible about the child’s welfare.

2. Good fortune rather than good management kept him from accident, injury, illness and abuse. The drugs which his parents used to alleviate distress or heighten pleasure adversely affected the ability of both to meet his needs.

3. The Single Expert commented in cross-examination that the father was working full time. The mother was the one with more of the physical care, she took the child out of the home, “but what she was doing to herself made it difficult for her to be psychologically present for the child.”

4. On 13 June 2017 the child was assessed by departmental officers as a physically healthy, well grown two year old with insecure attachment.[36] He reached out to safety officers for affection and called one of them Mum. He appeared to feel ambivalent about his father’s attempts to interact with him.

   [36] Exhibit 14.

5. He had been present in the household as an infant when the parties shouted at each other, threw objects and allowed the property in which they lived to become dirty, cluttered and unsafe.

Any family violence involving the child or a member of the child’s family, and 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

1. The child was exposed to family violence due to physical and verbal conflict aggravated by parental drug abuse. That exposure ceased when the child was placed in the care of his paternal grandparents shortly after his second birthday.

2. A five year Protection Order for the benefit of the child and the father was put in place in 2017 in a Magistrate’s Court in Queensland.

3. The mother obtained an interim AVO in NSW for her protection which she later discontinued.

4. The mother is in remission from drug abuse and addiction and is functioning well.

5. The father asserts that he no longer uses drugs. He too is functioning well.

6. Each parent is now able to communicate and cooperate for the benefit of the child.

7. Neither parent now holds fears of violence or threat by the other parent nor of risk of harm to the child.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

1. After a residence order is made it is likely, with one exception, that only a deterioration of capacity would see a further application to the Court.

2. The exception is as follows.

3. The parties proposed alternate orders based on each party possibly moving to the city where the other party lived.

4. At the outset of proceedings the Court indicated that orders would not be made on that basis, since neither party gave evidence of an intention to move.

5. That is not surprising or unreasonable. The father grew up in B City. The mother grew up in Sydney. After their marriage broke down each returned to live with family members in their city of origin.

6. Accordingly, orders have been made on the basis that the father will remain living in B City and the mother in Sydney.

7. In the event that either party does move to live closer to the other it will be a matter for the parties to negotiate changed arrangements.

8. In the event they are unable to do so, these orders apply, subject to any successful application to the Court for variation.

Any other fact or circumstance

1. If the decision about where the child was to live was based in fairness to parties the outcome could be different.

2. The mother has had to work hard to engage with therapeutic assistance and to overcome her dependence on substances. Her efforts have allowed her to achieve mental health. She has done everything she can to be in a position to assume majority care of the child and it is all she has wanted.

3. The father was able to step away from the use of illicit drugs more readily.

4. The child was living with the paternal grandparents and the father was able to live with them too and gradually take full responsibility for the care of the child although with their help ongoing.

5. However the basis for the decision is the best interests of the child.

6. He is doing very well, is thoroughly attached to his father, paternal grandparents, Ms K and the mother, maternal aunt, maternal grandfather and great-grandparents.

7. This has come about through the efforts of the paternal grandparents to protect and promote his relationships with all those people and then step back. That they are there close by whenever he wants them is a big factor in determining that his life in B City should continue undisrupted. They have provided the stability he has needed.

Conclusion

1. The child has now lived in the home of the paternal grandparents for more than three years, with his father as a member of the household for most of that time.

2. In accordance with current orders the child spends time with the mother in Sydney for six days/four nights per fortnight.

3. Both parties accept that current arrangements cannot continue once the child starts school, which he will in January 2021.

4. For the reasons given, the orders provide for the child to continue to live in B City with the father.

5. When the father moves to live with his partner full time, the child will move with him. The child will be able to freely spend time with his grandparents which is a key factor to maintaining stable arrangements.

6. Time with the mother will reduce in 2021. During term time there will be alternate weekends and holidays will be shared.

1. If the parents maintain their stated commitment to X’s well-being there will be flexibility in the arrangements by agreement between the parties.

2. Orders are made accordingly.

I certify that the preceding three hundred and twenty four (324) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 30 October 2020.

Associate: 

Date:  30 October 2020