Barber and Salmon
[2009] FMCAfam 272
•31 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BARBER & SALMON | [2009] FMCAfam 272 |
| FAMILY LAW – Children – parenting orders – weight to be attributed to “status quo” – where father leads lifestyle that involves drinking alcohol to excess and the use of cannabis – where mother can provide a more stable, stimulating and balanced environment – comparison of parents’ maturity and lifestyle. |
| Family Law Act 1975 (Cth) |
| A v A: Relocation Approach (2000) 26 FamLR 382 Burton (1978) 4 FamLR 783 Carpenter and Lunn (2008) FamCAFC 128 Chappell (2008) FamCAFC 143 Goode (2006) FLC 93-286 Hungerford & Tank (2007) FamCA 637 M & S (2006) FamCA 1408 Mazorski & Albright (2008) 37 FamLR 518 McLeay (1996) FLC 92-667 Mills & Watson (2008) 39 Fam LR 52 Moose (2008) FLC 93-375 Pender & Haywood [2007] FamCA 152656 Re: G: Children’s Schooling (2000) 26 FamLR 143 Roth (2008) FMCAfam 781 |
| Applicant: | MS BARBER |
| Respondent: | MR SALMON |
| File Number: | DGC 4238 of 2007 |
| Judgment of: | Walters FM |
| Hearing date: | 12 September 2008 |
| Date of Last Submission: | 26 September 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 31 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Testart |
| Solicitors for the Applicant: | Gray Friend And Long, Warragul |
| Counsel for the Respondent: | Mr Brewer |
| Solicitors for the Respondent: | Quintessential Lawyers, Dandenong |
| Counsel for the Independent Children’s Lawyer: | Ms Boymal |
| Solicitors for the Independent Children’s Lawyer: | Victoria Legal Aid, Melbourne |
ORDERS
IT IS ORDERED THAT:
All previous parenting orders be discharged.
The father and the mother have equal shared parental responsibility for the child [X] born in 2001 (“the child”).
The child live with the mother.
The child spend time with and communicate with the father as follows:
(a)from 5.30 pm Friday until 5.30 pm Sunday for the first three weekends of a four week cycle commencing 24th April 2009 PROVIDED THAT if a public holiday occurs on the day before or after such a weekend the time will commence at 5.30 pm Thursday or conclude at 5.30 pm Monday as is applicable;
(b)for half of all school term holidays at times to be agreed between the parties but failing agreement the first half, commencing the final day of the school term;
(c)for half of the long summer vacation at times to be agreed between the parties but failing agreement as follows:
(i)for the second 12 days and half of the remaining holidays after the second 24 days in the year 2009/2010 and each alternate year thereafter; and
(ii)for the first 12 days and half of the remaining holidays after the first 24 days in the year 2010/2011 and each alternate year thereafter.
(d)from 5.30 pm Easter Thursday to 5.30 pm Easter Monday in the year 2009 and each alternate year thereafter;
(e)from 5.30 pm the Friday prior to Father’s Day until 5.30 pm Father’s Day;
(f)at such other times as is agreed between the parties.
Should the child be spending time with the father in accordance with order 4(a) or 4(b) herein such time be suspended as follows:
(a)from 5.30 pm Easter Thursday until 5.30 pm Easter Monday in the year 2010 and each alternate year thereafter.
(b)from 5.30 pm the Friday prior to Mother’s Day until 5.30 pm Mother’s Day.
For the purpose of changeover the father collect the child at the commencement of time spent from the [omitted] McDonald’s restaurant and the mother collect the child at the conclusion of time spent from the father’s residence in [W].
The father be authorised to receive from the child’s school at his own expense copies of all material usually provided to a parent, including but not limited to newsletters, notices of events parents are invited to attend, reports and photo order forms AND the father be authorised to communicate with the school, attend parent teacher interviews and other activities which parents usually participate in or attend.
With a denial of the necessity for same the father be and is hereby restrained from drinking alcohol to excess or using illicit substances and/or non-prescription drugs when the child is in his care, and from knowingly bringing the child into contact with anyone so affected.
Each parent notify the other as soon as practicable of any medical or dental emergency or serious accident or illness suffered by the child when in their care.
Each parent notify the other 28 days prior to any change of address or telephone numbers.
AND THE COURT NOTES THAT:
[X] will be enrolled in [R] School to commence Term 2 (April) 2009.
It is agreed that [X] will spend the first half of the Term 1 holidays 2009 with her father.
It is agreed that these orders will take effect from Friday 3 April 2009.
Pursuant to ss.65DA(2) & 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Barber & Salmon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
DGC 4238 of 2007
| MS BARBER |
Applicant
And
| MR SALMON |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns living arrangements for a seven-year-old girl, [X].
[X]'s parents separated when she was a baby. They now live in similar sized country towns in south-eastern Victoria, approximately 75 km apart.
[X] has lived principally with her father since she commenced kindergarten, but she has spent a great deal of weekend and holiday time with her mother – and her elder half brother (who lives with her mother).
By all accounts, [X] is an intelligent, happy and well-adjusted child. When interviewed, she was not prepared to express a preference for living with one parent over the other.
[X]'s parents both love her very much, and each has a very good relationship with her. The mother left the town in which she lived with the father (and [X] and her other son) because she felt that certain aspects of the parties’ lifestyle in that town were unhealthy for her, and inappropriate for the children. She has re-established herself successfully in the other town, and now presents as a mature and responsible parent.
A great deal of the evidence in the case focused on the father's lifestyle and, in particular, his use of alcohol and marijuana. He has done his best to care for [X], and by and large he has done a good job, but he seems unwilling or unable to take the steps that might be considered necessary to remove the risks that his continued use of alcohol and marijuana represent to [X]'s best interests. To that extent, he presents as a less mature and responsible parent than the mother.
In many ways, this was a case about the parties’ maturity, and about their comparative lifestyles. It was also about the potentiality of risk to [X].
At the end of the day, I have determined that it is in [X]'s best interests to live with her mother (and her half brother). I fully understand that such an arrangement amounts to a significant change to the status quo. I also understand that it will take [X] some time to adjust to the change in her circumstances. She will be required to attend a different school in a different town, and she will have to make new friends. But I have no doubt that she will benefit from living with her mother, where she will no longer be exposed to the less positive aspects of her father's lifestyle. To that extent, I feel confident that the mother's household will provide a more stable, stimulating and balanced environment for [X]. At the same time, [X] still will be able to spend significant time with her father, and he will have the freedom to socialise with his friends at times when [X] is with her mother.
The above summary comprises no more than a superficial introduction. I shall do my best to identify and resolve the various issues in dispute between the parties elsewhere in these Reasons.
Background and overview
In these Reasons, and unless otherwise indicated, all statements of fact comprise findings of fact.
Although the law now refers to a child “spending time” with a person with whom the child does not live,[1] I shall use – from time to time in these Reasons – the obsolete term “contact”. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
[1] See, for example, s.64B(2) of the Family Law Act 1975. See also Carpenter and Lunn (2008) FamCAFC 128 and Chappell (2008) FamCAFC 143
The mother was born in November 1976 and is now 32. The father was born in April 1970 and is now 38. They started living together in March 1999 and separated in October 2001. They never married.
[X], the only child of their relationship, was born in 2001. She is now seven.
The mother has another child, [Y], from a previous relationship. [Y] was born in 1997 and is now 11. His father is Mr J. The mother lived with Mr J for approximately 2 years prior to [Y]'s birth. They separated when [Y] was approximately one month old.
[Y] has two half brothers– a 16-year-old who lives nearby in [R] (whom he sees from time to time) and a younger half-brother who lives in [M] (with whom he has little or no contact).
Prior to separation, the parties were living in [W], in South Gippsland – approximately 135 km southeast of Melbourne. At the time of separation, however, the mother moved to [R] with [Y] and [X]. [R] is approximately 75 km north of [W], on the Princes Highway. It takes approximately one hour and 10 minutes to drive between the two towns. The mother said that she moved to [R] (where her father lives) because of what she considered was a generally unsatisfactory environment in [W]. She said:
Everyone (in [W]) either took illicit drugs or drank to excess – including me. People didn't work and had no morals. I did not want to continue that lifestyle.
For approximately two years after the parties separated, the father spent time with [X] on alternate weekends. Over the next 18 months or so, the father's contact with [X] increased to seven days per fortnight.
According to the mother, the father "begged her" to allow [X] to attend kindergarten in [W]. She said that they eventually reached an agreement to that effect that, and that [X] would probably attend primary school in [R].
In January 2006, [X] commenced kindergarten in [W]. She lived with the father from Tuesday evening to Friday afternoon and spent time with the mother from Friday afternoon to Tuesday evening in approximately three out of every four weeks.
Later that year, the mother found out that the father had enrolled [X] to commence primary school in [W]. The parties then attended mediation to further discuss [X]'s living and primary school arrangements. They eventually agreed that [X] would remain in [W]. The mother said that [X] "seemed content and happy" in [W], and that she did not wish to interfere with that state of affairs.
[X] commenced primary school in [W] at the beginning of the school year in 2007. She lived with the father and spent each weekend (from Friday evening to Sunday evening) with the mother in [R].
According to the mother, the father's lifestyle was only of moderate concern to her at the time that she agreed to leave [X] in his care (so that she could commence primary school in [W]). She was aware that he used marijuana irregularly, and that he would drink alcohol from time to time, but she did not then regard his drug or alcohol use as matters of serious concern.
By mid 2007, the mother's concerns regarding the father's use of drugs and alcohol began to increase. She described him as appearing intoxicated or "very hung-over" at times that she would see him. At one point, [X] saw cigarettes in the mother's car and asked: "Is that where you keep your dope?"
On another occasion, the mother arrived at the father's house (to return [X] after spending time with her) to find "the whole house filled with marijuana smoke". She said that the smell of marijuana smoke was very strong. [X] had entered the house before her, and gone through to her room. The father was in the kitchen with a group of people, who had clearly been using marijuana.
The mother asked the father to come outside the house, where she speak with him about the scene in the kitchen. She described his eyes as being bloodshot, and was well able to recognise that he had been smoking marijuana (given that they had smoked marijuana together many times in the past, and that she was therefore very familiar with its effect on him). The mother later said that she is “intimately familiar" with the effect of marijuana on the father. She said that his eyes appear bloodshot and that he "stinks" of the drug. She also said that the father usually drinks alcohol and smokes marijuana on the same occasions.
Although the mother was aware that the father would smoke marijuana from time to time, she was particularly concerned on that occasion because he had known that she would be returning [X] to his care. She conceded, however, that she returned [X] somewhat early on that day. Still, her perception was that the father appeared more aggressive and moody than usual.
Notwithstanding her concerns, the mother left [X] with the father on that occasion.
In late September or early October 2007, [X] was not at the father's home when the mother arrived to collect her for the weekend. She had been informed that [X] had chickenpox and would not be not at home. She was being cared for by another person in [W]. The mother looked for [X] at various places in [W], but eventually drove back to the father's home. Shortly thereafter, the father arrived in a car driven by another person. The mother described the father as "very intoxicated". She "couldn't believe how drunk he was", and said that he could barely stand up. As a result, the mother was angry and upset. She then followed the father to the house where [X] was being cared for, and collected her for the weekend.
On 10 October 2007, the mother removed [X] from the father's care. She did so because she believed that [X] was at risk of abuse or neglect because of the father's use of alcohol and illicit substances.
According to the mother, she had been contacted by a person called
Ms P earlier that day. She had met Ms P before, but did not know her surname. Ms P told the mother that the father was "using heroin and speed" and that he was "acting aggressively towards [X]". The mother said that she had no reason to doubt what Ms P told her, and that the information "sent her into shock and panic".
Having spoken with Ms P, the mother (who was working an afternoon shift) took the rest of the day off. After obtaining legal advice, she drove to [W], arriving at approximately 4:30 p.m. She obtained the father's permission to take [X] to McDonald's for a hamburger, but she well knew that she proposed to keep [X] and not return her to the father. Afterwards, the mother returned to [R] with [X]. On the way, she sent an SMS text message to the father in the following terms:
I feel very sorry for you. I know what you have been up to and I'm not happy. [X] will stay with me until you get yourself clean. Good luck. Do it for [X].
The father then tried to contact the mother on a number of occasions. In the process of doing so, he sent her an SMS text message in the following terms:
Please don't take our daughter. I’m on nothing but beer and choof.
"Choof" is slang for marijuana.
The mother said, and I accept, that she was genuinely concerned for [X]'s welfare at the time that she removed her from the father’s care on 10 October 2007. She said that she had no reason to disbelieve what Ms P had told her. She had noticed, over time, that the father seemed to be drinking more heavily. She also noticed that he had begun to appear more aggressive. In other words, his behaviour seemed to be changing for the worse. Nevertheless, the mother genuinely regretted that she had felt it necessary to mislead both the father and [X] in order to take [X] into her care on that occasion, and she accepted that her actions were likely to have damaged the previously good relationship between herself and the father. They generated serious questions as to whether either could comfortably trust the other in the future.
The mother was cross examined at length regarding her contact with Ms P. She conceded that she had made no attempt to ascertain Ms P’s surname, or her address, and eventually admitted that she could have or should have done more to find her. Somewhat surprisingly, however, the father eventually admitted that he knew Ms P as being a person that he "went out with a few times". Ms P’s mother lives behind the father in [W]. The father said that he didn't like Ms P, and had severed all contact with her. To his credit, he also admitted that the mother was "not the sort of person who would make up a story" that she had been contacted by Ms P if that was not in fact the case.
[X] was returned to the father's care by virtue of an order made in this court on 29 October 2007.
The orders made on 29 October 2007 were as follows:
a)The parties were to retain equal shared parental responsibility for [X].
b)[X] was to live with the mother from 7 p.m. Friday to 6:30 p.m. Sunday in each week, and with the father at all other times.
c)An independent children's lawyer was appointed.
d)A family report was to be prepared.
e)The father was restrained by injunction from "drinking alcohol to excess or imbibing any illicit substance and/or non-prescription drugs" when [X] is in his care (although the orders record that there was "a denial for the necessity" of this injunction).
f)Both parties were restrained by injunction from discussing the proceedings with or in the presence or hearing of [X], from denigrating each other in front of [X] and from allowing [X] to see documents relevant to the proceedings.
Other "mechanical" or procedural orders were also made on that day.
Ms Joy Slattery, Family Consultant, was appointed to prepare the family report. She saw the parties, together with [X] and [Y], on
26 March 2008. Her report is dated 1 April 2008. I shall discuss the family report, and Ms Slattery's evidence, elsewhere in these Reasons.
The proceedings eventually came back before the Court on 28 April 2008. The orders made on that day were as follows:
a)Final orders were made discharging all previous parenting orders and providing for the parties to have equal shared parental responsibility for [X].
b)Interim orders were made to the effect that [X] live with the father and have contact with the mother from 5:30 p.m. Friday to 5:30 p.m. Sunday for the first three weekends of a four week cycle, together with half of all school holidays – as well as other defined occasions.
c)Other interim orders were made to the following effect:
i)The father was restrained by injunction from "drinking alcohol to excess or imbibing any illicit substance and/or non-prescription drugs" when [X] is in his care (although the orders record that there was "a denial for the necessity" for this injunction).
ii)Both parties were restrained by injunction from discussing the proceedings with or in the presence or hearing of [X], from denigrating each other in front of [X] and from allowing [X] to see documents relevant to the proceedings.
iii)The father was ordered to undergo random supervised urine drug and alcohol screens.
Other "mechanical" or procedural orders were also made on 28 April 2008. Relevantly, the proceedings were adjourned to 29 August 2008 for trial (with an estimated hearing time of one day).
The trial commenced on 29 August 2008 in the Dandenong registry of this Court. It was not completed on that day, however, and was adjourned, part heard, to 10 September 2008 in the Melbourne registry.
The hearing continued (in Melbourne) on 10, 11 and 12 September 2008. Ms Boymal (for the ICL) presented her closing submissions on 12 September 2008. Mr Testart (for the mother) and Mr Brewer (for the father), provided written submissions (pursuant to orders made on
12 September 2008).
I shall refer to Mr Brewer’s written submissions as "WSF", and
Mr Testart’s written submissions as "WSM".
The parties' competing proposals
In her closing submissions, Ms Boymal argued that the parties should retain equal shared parental responsibility, and that [X] should live with the mother. Ms Boymal acknowledged that communication between the parents is "strained", but felt that it could be made to work.
The fact of the matter is that a final order for equal shared parental responsibility was made on 28 April 2008.
In the broadest of broad terms, the mother proposes that [X] live with her and spend substantial and significant time with the father. The father proposes the opposite arrangement.
The law[2]
[2] This generic summary of the law is extracted from my decision in the matter of Mills & Watson (2008) 39 Fam LR 52
Applications concerning children (or, more accurately, applications for parenting orders) are dealt with in Part VII of the FLA. Much of
Part VII reflects comprehensive amendments to the pre-existing law, which amendments came into effect on 1 July 2006.
The Full Court carefully analysed the structure and effect of a significant portion of Part VII in Goode (2006) FLC 93-286. It began by identifying the types of orders that fall within the category of "parenting orders", and by referring to section 64B (which includes, among other things, a list of the matters with which a parenting order may deal). For example, orders allocating parental responsibility for a child, specifying the person with whom a child is to live or defining the time a child is to spend (or the communication a child is to have) with a person, are all parenting orders.
Parenting orders dealing with the allocation of parental responsibility for a child can also deal with "the allocation of responsibility for making decisions about major long-term issues in relation to the child”[3]. Such issues include (but are not limited to) important questions regarding a child's education, religious and cultural upbringing and health. A proposed change to a child's name, or proposed changes to a child's living arrangements that would make it significantly more difficult for the child to spend time with one of his or her parents, are also regarded as major long-term issues. But a parent's decision to form a relationship with a new partner is not, of itself, a major long-term issue in relation to a child ─ although such a decision could involve a major long-term issue if the new relationship requires the parent to move to another place (thereby making it more difficult for the child to spend time with the other parent).[4]
[3] See s.64B(3)
[4] See the definition of "major long-term issues" in s.4(1)
If a parenting order provides that parents (or others) are to share parental responsibility for a child, and if the exercise of that responsibility involves the making of a decision about a major long-term issue regarding a child, then the relevant decision must be made jointly. Further, an order for shared parental responsibility requires those in whose favour the order has been made to consult with each other in relation to any relevant major long-term issue, and to make a genuine effort to come to a joint decision.[5] Such consultation is not required in relation to issues that are not major long-term issues, and a parent with whom a child is spending time will not normally need to discuss minor matters (such as what a child eats or wears) with the other parent.[6]
[5] See s.65DAC; see also Pender & Haywood [2007] FamCA 152656
[6] See s.65DAE
As has long been the case, the child’s best interests remain the paramount consideration in the making of parenting orders. That principle is set out in section 60CA:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The objects of Part VII, and the principles underlying it, are set out in section 60B. They are important.
The objects of Part VII are:[7]
[7] See s.60B(1)
… to ensure that the best interests of children are met by:
· ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
· protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
· ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
· ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of the children.
The principles underlying these objects are:[8]
[8] See s.60B(2)
… that (except when it is or would be contrary to a child's best interests):
· children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
· children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
· parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
· parents should agree about the future parenting of their children; and
· children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Aboriginal or Torres Strait Islander children not only have a right to enjoy their culture, but they also have the right to:
a)“maintain a connection” with and “develop a positive appreciation” of it; and
b)be provided with “the support, opportunity and encouragement necessary to explore the full extent of that culture” (consistent with the child's age and developmental level, and the child's views).[9]
[9] See s.60B(3)
Given that all the expressed objects of Part VII are directed towards ensuring that a child’s best interests are met, and given that the court must always regard the child's best interests as the paramount consideration in deciding whether to make a particular parenting order, the question of how a court determines what is or may be in a child's best interests is crucial. The subject is dealt with in section 60CC, which directs the court to consider a relatively lengthy list of factors before determining what is in a child's best interests.[10] The list is divided into two parts, the first comprising "primary considerations", and the second comprising "additional considerations".
[10] If the court is considering whether to make an order with the consent of all parties, it is not required to have regard to all or any of the listed factors (although it may do so if it wishes) ─ see s.60CC(5)
The primary considerations are set out in section 60CC(2). They are:
a)the benefit to the child of having a meaningful relationship with both of the his or her parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are set out in section 60CC(3). They include:[11]
[11] This list is not intended to be comprehensive. It is simply a summary of the factors in s.60CC(3). The actual factors set out in s.60CC(3) ─ or, more accurately, those of them that are relevant ─ will be considered later in these Reasons.
a)any views expressed by the child, and any factors that the court thinks are relevant in determining the weight that should be given to those views;
b)the nature of the child’s relationship with each of his or her parents and other relevant people (including grandparents and other relatives);
c)the willingness and ability of each parent to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
d)the likely effect of any changes in the child's circumstances (including as a result of any separation from a parent, sibling or grandparent with whom the child may have been living);
e)the practical difficulty and expense of a child spending time with and communicating with a parent (and the effect of such difficulty and expense on the child's right to maintain personal relations and direct contact with both parents on a regular basis);
f)the capacity of each of the parents, and of any other relevant person, to provide for the child's needs (including his or her emotional and intellectual needs);
g)the child's maturity, sex, lifestyle and background (including the child's culture and traditions);
h)in the case of an Aboriginal or Torres Strait Islander child, the child’s right to enjoy his or her indigenous culture;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents;
j)any relevant family violence, or family violence order;
k)whether it would be "preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child"; and
l)any other fact or circumstance that the court considers relevant.
Section 60CC(4) elaborates upon two of the factors referred to above ─ namely, the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child (and to the responsibilities of parenthood) demonstrated by each of the parents. It requires the court to focus upon each party’s "track record" as a parent. Particular regard must be had to events that have happened (and circumstances that have existed) since the parties separated.[12] One of the matters that the court is obliged to consider is the extent to which each parent has fulfilled, or failed to fulfil, his or her obligation to maintain the child.[13]
[12] See s.60CC(4A)
[13] See s.60CC(4)(c)
The Full Court in Goode summarised the above process as follows:[14]
… in deciding to make a particular parenting order, including an order for parental responsibility, the individual child's best interests remain the paramount consideration … and the framework in which best interests are to be determined comprises the factors in sections 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in section 60B provide the context in which the factors in section 60CC are to be examined, weighed and applied in the individual case.
[14] See para. 10
Notwithstanding the Full Court's reference to a "framework", and to the context in which the factors comprising that framework are to be considered, a trial judge who is obliged to determine competing applications for parenting orders does not start with a blank sheet of paper.[15] Relevantly, certain conditional presumptions (relating to parental responsibility) may apply. Generally speaking, however, and subject to those presumptions, the court may make such parenting order as it thinks proper.[16]
[15] See, in a different context, McLeay (1996) FLC 92-667 at 82,901
[16] See s.65D(1)
When making a parenting order, the court must apply a presumption that it is in the child's best interests for his or her parents to have equal shared parental responsibility.[17] Such a presumption, although clearly important, says nothing about the amount of time that the child should spend with each parent.
[17] See s.61DA
The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused the child (or another relevant child), or has engaged in family violence.[18] In interim proceedings, the application of the presumption is less strict: it does not apply if the court considers that "it would not be appropriate in the circumstances" for it to be applied.[19]
[18] See s.61DA(2) and the definition of "family violence" in s.4(1)
[19] See s.61DA(3); it is important to note, however, that the Full Court in Goode (at para. 78) held that the discretion in s.61DA(3) should not be exercised "in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult."
In circumstances where the presumption relating to equal shared parental responsibility would otherwise apply, it may be rebutted "by evidence that satisfies the court that that it would not be in the best interests of the child" for the parents to have equal shared parental responsibility.[20]
[20] See s.61DA(4)
Where parents are ordered to have equal shared parental responsibility for their child (whether as a result of the application of the presumption referred to above, or otherwise[21]), the court must go on to consider whether the child spending equal time with each parent would be both reasonably practicable[22] and in the child's best interests. If it is, then the court must consider whether it should make an order to that effect.[23] If the court comes to the conclusion that an order for equal time should not be made, then it must then go on to consider whether the child spending "substantial and significant time"[24] with each parent would be both reasonably practicable[25] and in the best interests of the child. If it is, then the court must consider whether it should make an order to that effect.[26]
[21] See, for example, Goode at paras 46 and 47, and Pender & Haywood [2007] FamCA 1526 at para. 44
[22] How a court determines "reasonable practicality" is the subject of s.65DAA(5)
[23] See s.65DAA(1)
[24] "Substantial and significant time" is defined in s.65DAA(3)
[25] How a court determines "reasonable practicality" is the subject of s.65DAA(5)
[26] See s.65DAA(2); see also Goode at paras 43 and 44
The sequence in which the court should consider the various provisions discussed above (and other relevant matters) is not clear from Part VII itself. In Taylor & Barker (2007) FamCA 1246, however, the Full Court said[27]:
… (Given) that the concept of the child's best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that section 60CC(1) provides that in determining what is in the child's best interests, the court must consider the matters set out in subsection (2) ("primary considerations") and subsection (3) ("additional considerations") of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child's best interests. (Emphasis added)
[27] See para.62
The Full Court in Taylor & Barker added that failure to follow the above approach (which it clearly regards as "the logical approach") does not necessarily amount to an appealable error. Such an error would arise, however, if a trial judge failed to give adequate reasons or did not have regard to "the matters which the legislation requires must be considered".[28]
[28] See para.63
In Mazorski & Albright,[29] Brown J dealt with the “additional considerations” (in section 60CC(3)), prior to dealing with the primary considerations (in section 60CC(2)). In Moose,[30] Boland J (with whom May J agreed) approved of such an approach, saying that, in certain cases, it may help to focus the court's attention on relevant matters to be determined under section 60CC(2) if it first considers and makes findings about relevant factors under section 60CC(3)
[29] (2008) 37 Fam LR 518
[30] (2008) FLC 93-375
Having summarised the effect of the amendments to Part VII in paragraph 65 of its judgment in Goode, the Full Court then described the "legislative pathway" that "must be followed" in interim proceedings in paragraph 82. There seems to be no reason, however, why the same pathway ought not to be followed at trial, where final orders are sought.[31]
[31] See, for example, Hungerford & Tank (2007) FamCA 637 and M & S (2006) FamCA 1408 at para.36
The relevant steps (as modified for a final hearing) are as follows:
a)Identify the parties’ competing proposals.
b)Identify the issues in dispute in the proceedings.
c)Make relevant findings in relation to the facts.
d)Consider the relevant section 60CC factors and (if possible) make findings about them.
e)Decide whether the presumption in section 61DA (that equal shared parental responsibility is in a child's best interests) applies.
f)If the section 61DA presumption applies, then consider whether it has been rebutted (because its application would not be in the child's best interests).
g)If the section 61DA presumption applies, and has not been rebutted, then consider making an order that the child spend equal time with the parents ─ unless equal time would be either:
i)contrary to the child's best interests as a result of the application of one or more of the factors in section 60CC;[32] or
[32] But see subpara.(k) below
ii)impracticable.
h)If equal time is not in the child's best interests, or is impracticable, then consider making an order that the child spend substantial and significant time with the other parent – unless (in turn) substantial and significant time would also be either:
i)contrary to the child's best interests as a result of the application of one or more of the factors in section 60CC;[33] or
ii)impracticable.
i)It should be borne in mind, however, that it is only necessary to consider whether it would be “reasonably practicable” for a child to spend equal time with each parent (or substantial and significant time, as the case may be) if a conclusion has already been reached to the effect that it would be in the child’s best interests to spend equal time with each parent (or substantial and significant time, as the case may be).[34]
j)If the section 61DA presumption has been rebutted or does not otherwise apply, or if it does apply but "neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child's best interests", then issues regarding the child's living arrangements and the time that the child is to spend with each of the parents are "at large and to be determined in accordance with the child's best interests" (or, in other words, as a result of consideration of the objects and principles in section 60B and the factors set out in section 60CC).[35]
k)The court is not relieved from having to consider equal time, or substantial and significant time, simply because neither party has sought orders to that effect ─ although the court would only make orders of this nature if it were to conclude that it would be in the best interests of the child to do so, and after affording procedural fairness to the parties (by informing them that equal time, or substantial and significant time, is being considered, and by giving them an adequate opportunity to lead evidence or make submissions in relation to the subject, including the issue of impracticability).
[33] But see subpara.(k) below
[34] See Taylor & Barker at para.74
[35] See Goode at para.65.8
Throughout the entire process, the court must bear in mind that the child's best interests "remain the overriding consideration",[36] and that the child's best interests are to be “ascertained by a consideration of the objects and principles in section 60B and the primary and additional considerations in section 60CC”.[37]
[36] See Goode at para.65.11
[37] See Goode at para.65.9
Issues in dispute
Mr Testart described as the issues for determination in the proceedings as follows:
a)The nature and extent of the father's substance use (or abuse), and its impact (if any) upon [X] – in circumstances where the mother otherwise concedes that the father's parenting of [X] has been, in most other respects, at the least satisfactory, and in some areas, exemplary.
b)The desirability or otherwise of reuniting [X] with her half brother [Y].
Mr Brewer referred to the issues as follows:
a)Comparison of the two competing environments.
b)Analysis of the comparative risks to the child.
c)Stability of the parties.
d)Capacity of the parents to foster the child's relationship with the other parent.
In other words, and in broad terms, the Court was invited to compare the two "environments" provided by the parties. Mr Testart submitted that the environment provided by the mother provides greater stability for [X] than does the environment provided by the father (which carries with it risks associated with or derived from the father's use of alcohol and drugs). In many ways, Mr Brewer's case relied upon the maintenance of the status quo, which (he argued) was more than satisfactory. He also argued that, with very few exceptions, the father's "track record" as a parent and primary caregiver was very positive.
General findings in relation to the parties
I have already made a number of findings, and will make others as I deal with the various steps that I am required to take. I shall also make findings as I deal with relevant aspects of the parties' evidence and the evidence of other witnesses.
I paid careful attention to the father and the mother, and the other witnesses, as they gave their evidence. The mother was an impressive witness. She made appropriate concessions when it was necessary for her to do so, and she gave credit when it was due. She remained calm, and she gave appropriate responses to the questions that she was asked. For the most part, she appeared open and balanced. I find that she is a witness of truth. Mr Testart submitted, and I accept, that the mother presented as "a clear example of a thoughtful, perceptive, straightforward and honest woman who was nonetheless hampered by her lack of education and articulacy".
Mr Testart provided a number of examples of appropriate concessions made by the mother during the course of her evidence. They were to the following effect:
a)her behaviour in taking [X] from the father's care in October 2007 was "dishonest and impulsive";
b)that behaviour had significant negative ramifications for her relationship with [X] and, similarly, her relationship with the father;
c)she had been an alcohol and drug abuser in the past (and had joined with the father in his alcohol and drug use);
d)she had been involved in further substance abuse even after her separation from the father (for example, in the context of her relationship with a subsequent partner, Mr B, in 2005);
e)save in respect of his substance use or abuse, the father's parenting of [X] was "at worst unexceptionable, and at best unassailable";
f)she would not have pursued her case to have [X] live with her on a permanent basis "if it were not for the father's drinking and drugging"; and
g)her failure to pursue Ms P’s allegations " was damaging to her case, and meant that the court was effectively denied relevant facts that may have assisted it to determine the case”.
In relation to the last of those examples, Mr Brewer highlighted a number of things that the mother did not do after or as a consequence of her contact with Ms P. Relevantly:
·she did not record Ms P’s particulars;
·she did not question Ms P’s allegations;
·she did not discuss Ms P’s allegations with the father;
·she did not contact the police;
·she did not notify DHS; and
·she did not call Ms P is a witness.
Even accepting all the above criticisms of the mother, I am not persuaded that her actions (or failures to act) at or around that time together comprise factors or considerations relevant to [X]'s best interests which serve to outweigh the other factors or considerations to which I make reference elsewhere in these reasons. Indeed, much to his counsel's evident surprise, the father conceded that it was indeed a person named Ms P and that he had had a form of relationship with her in the past. He also admitted that the mother was "not the sort of person who would make up a story" that she had been contacted by
Ms P if that was not in fact the case.
The father was a less impressive witness than the mother. I accept
Mr Testart's description of the father's evidence as (at times) "evasive, vague, self contradictory, self-serving and self-justificatory". I also accept that the father "displayed significant levels of lack of insight".
Mr Testart provided the following examples of "defects" in the father's evidence:
a)
The father's affidavit evidence relating to his cannabis use was "incomplete, it was evasive, minimising and self-serving".
He provided no explanation as to the reason for his positive urine screens, there was no detailed explanation of his drug use (other than in general and minimising terms), and he generally attempted to assure the court that his drug use was conducted in [X]'s absence. When confronted with the material in his most recent affidavit (to the effect that he smoked cannabis on
16 August 2008, when [X] was in his care), the father attempted to resile from his previous evidence and asserted that the date set out in his affidavit must have been incorrect.
b)When cross-examined about a frequently screened television advertisement,[38] the father "attempted to take refuge in the explanation that he never asked [X] to get him his beers, thereby attempting to avoid the point being put to him that his alcohol consumption was always under scrutiny by his daughter when she was in his care".
[38] The advertisement can be viewed at DrinkWise.com.au. Its theme is described as follows: “How you drink will also have a big impact on how your children choose to drink or not drink when they are older. Although they may be many years away from their first drink, they’re absorbing the way you and other influential people in their lives drink and act around alcohol. Children form their attitudes about drinking long before they ever have a drink themselves; from their most important role model…you.”
c)He suggested that the advertisement referred to in the previous paragraph was shown simply "to fill in time". Such an interpretation displays "either an appalling lack of insight or a deliberate attempt to block a real inquiry as to his true views about substance use, and drinking in particular".
d)His evidence in relation to the "kitchen bong session" was not credible, and appeared to have been concocted as he sat in the witness box.
e)
His evidence in relation to a positive alcohol urine screen on
5 September 2008showed that he was bewildered by the fact that his alcohol use was being questioned.
f)His evidence revealed that he became intoxicated on a frequent basis.
g)When pressed about the fact that he had returned repeated positive urine screens to cannabis at a time when his drug use was under scrutiny by both the mother and the court, the father was unable to provide any adequate explanation.
h)Although the father said that he had decided to stop using cannabis "a couple of weeks" before giving evidence, he seemed unable to adequately explain his reasons for having made that decision.
i)Similarly, although the father asserted that smoking cannabis was "bad", he seemed unable to explain his reasons for having formed that view.
j)His evidence regarding the frequency of his cannabis use was less than satisfactory. For example, he endeavoured to assure the court that he used cannabis infrequently, and in minimal amounts, but his positive drug screens indicate of the likelihood that he uses the drug far more frequently, and in greater quantities, that he was prepared to admit.
k)His evidence regarding the impact on [X] of the "unsatisfactory state of his interactions with others in [W]" was also less than satisfactory. He endeavoured to minimise (or trivialise) the effect on [X] of the criminal activity of which he had become a victim.
l)It seems clear that he did not provide his drug and alcohol counsellor with an honest account of his alcohol and drug use.[39]
[39] The counsellor's record reads: "(The father) did not report that he had dependency problems relating to the use of alcohol and other drugs. Therefore (the father) was assessed that he has no need of any ongoing contact with this service."
Generally speaking, where the evidence of the mother contradicts that of the father, I prefer the mother's evidence.
The Family Report
After summarising the parties’ current parenting arrangements and their proposals, Ms Slattery dealt with the issues in dispute. She focused, in particular, on the father's use of alcohol and drugs.
Following her observation of the mother with [X] and [Y], Ms Slattery wrote:
Through the session, [X] seemed to be comfortable being physically close to the mother. [X] and [Y] seemed to have a fragile relationship that could turn hostile quickly and easily. Overall, [X]’s interactions with the mother were of a positive nature.
Ms Slattery made similar comments following her observation of [X] with the father. [X] seemed to be comfortable being physically close to the father and, overall, their interactions were positive in nature.
Ms Slattery described [X] as a friendly, chatty girl, who appeared quite confident for her age and was able to express her feelings (to an extent, at least). [X] indicated that she wanted to live with both her parents and that, if she could not do so, she would like to see the parent with whom she does not live "every holiday and weekend". She also indicated that she likes the school that she attends and has friends there.
In the introduction to her evaluation, Ms Slattery wrote:
Initially the mother was requesting that [X] live with her but it is my understanding that the mother is now agreeable for [X] to live with the father if he provides assurances that he will not drink or use illicit drugs when [X] is in his care.
Ms Slattery continued:
[X] appears to be a happy six year old child who would just like to have the mother and the father together. It is my view that the priorities in [X]'s world are to spend time with the mother and the father without them fighting. [X] is a child who has spent a great deal of her time as an only child living with the father and all of their pets so it seems that when she spends time with the mother she has to adjust to being the younger child of two. Likewise for [Y], he spends a great deal of his time being the only child with the mother and when [X] stays with them he also has to make adjustments. I believe that [X] and [Y] find it difficult to adjust, as they are both children who like to have their own way and do not find it easy to give in to a sibling.
According to Ms Slattery, [X] was unable to realistically form her own view as to where she would like to live. She added that [X] appeared to have a warm and close relationship with both of her parents, and that no concerns arose from her observations about the nature of those relationships.
Generally speaking, Ms Slattery was of the view that both parties are able to give priority to [X]'s best interests, notwithstanding their (seemingly temporary) feelings of animosity towards each other.
After speculating about some of the facts in issue in the proceedings, Ms Slattery continued:
It does appear that generally the mother and the father are able to communicate about [X] and rather than proceed through court over the years they have attended mediation and have been able to resolve issues even if it meant one of them made compromises. In my view, this demonstrates their ability to be able to place [X]'s needs as the priority rather than "fight" to have their own needs met. It is my view that the mother and the father have the capacity to and have demonstrated they are able to meet the emotional needs and intellectual needs of [X].
Ms Slattery cautioned against changing [X]'s school unnecessarily. She felt that this would be a major change for [X].
Ms Slattery recommended that [X] live with the father "with conditions". The conditions were that he give an undertaking that he will not drink alcohol to excess when [X] is with him, that he do a further two supervised drug screens and that he attend a drug and alcohol counsellor through the [W] Community Health Service or other appropriate agency.
Ms Slattery also recommended that [X] spend two out of every three weekends with the mother (in addition to other times when the mother is in [W]), as well as half of all school holidays and defined special occasions. Further, Ms Slattery recommended that [X] communicate with the mother by phone at least once each week.
Finally, Ms Slattery recommended that [X] attend counselling at the [W] Community Health Service or other suitable agency.
Ms Slattery's evidence at trial
Ms Slattery's qualifications and experience were not disputed. Her evidence at trial (insofar as it is relevant to the matters in issue in these proceedings) was as follows:
a)She confirmed that it is not appropriate for a child to be exposed to ongoing circumstances where there is illicit drug use. Similarly, it is not appropriate for a child to be exposed to ongoing circumstances where a parent’s alcohol usage is inappropriate, or where the parent seems incapable of educating the child regarding appropriate alcohol use.
b)She was clearly concerned about the father's attitude to alcohol, and was disappointed that he had not followed through with appropriate counselling. Her view was that the father should continue to see a counsellor whether or not [X] continues to live with him.
c)She accepted that the father's parenting capacity is effectively impeded or made incomplete by his inability to recognise that substance abuse can have a role in parenting. If substance abuse continues in a parent's household, then it will eventually impact adversely on any child in that household. If the choice had to be made between a household in which there is no substance abuse and a household in which such abuse exists, then the court should "go with" the household in which there is no substance abuse.
d)She expressed the view that the father is a dedicated and motivated parent. There is cause for concern, however, if the father, although motivated to change (his approach to substance abuse), finds himself unable to do so.
e)She accepted that her expressed view regarding [X]'s relationship with [Y] might be inaccurate, given that the evidence revealed that both parents see the relationship as a positive one.
f)She confirmed that [X] expressed no preference as to the parent with whom she would want to live.
Overall, and save for some of the above observations, Ms Slattery's evidence was broadly consistent with the contents of her report, and was not unflattering to either party.
Dr S
Dr S is a consultant psychiatrist. His qualifications and experience were not in dispute.
Dr S swore an affidavit on 4 September 2008, to which he attached four scientific articles dealing with the long-term effects of smoking marijuana. He also attached to his affidavit a brief report summarising his professional opinion on the subject.
Dr S's evidence was unchallenged.
After outlining his qualifications, confirming his broad knowledge of literature relating to the effects of cannabis and referring to his clinical experience in dealing with cannabis users, Dr S wrote that the four articles attached to his affidavit "clarify the issues and are not tendentious". Leaving aside the specific references to the papers, Dr S's opinion (based on his own experience and knowledge of the literature) can be summarised as follows:
a)Chronic long-term use of cannabis leads to "subtle" neuropsychological impairments, but "not of the nature observed with alcohol".
b)Robust links exist between long-term use of cannabis and psychotic illness and psychosocial impairment. It remains unclear whether cannabis use causes these links, or whether "its long-term use is more prevalent in those who would otherwise be prone to underachievement and relative impoverishment".
c)Research demonstrates that "long-term heavy cannabis use causes structural brain changes and is associated with neuropsychological deficits".
d)There is "a clear association between cannabis use and psychotic symptoms, with an increased prevalence of psychotic illness among users."
e)Some long-term cannabis users present as "amotivational". This presentation is considered to reflect either "the inanition of chronic intoxication" or, alternatively, "the development of cannabis abuse in a population of people who were, even prior to use, disinclined to pursue employment, activity or personal development".
f)The above findings "relate to populations". It follows that, although associated mental disorders "are more likely to be found in cannabis users, and the association is stronger with persistence and heaviness of use, individual conclusions cannot be drawn about individuals without clinical assessment".
Dr S concluded his report with the following:
In summary, cannabis use is associated with a range of mental disorders. However, individual users vary in their liability to developing mental disorders. Nevertheless, even in those without psychiatric diagnosis, cannabis use is associated with relative psychosocial impairment.
I have no reason to reject any of Dr S's evidence or opinions.
The mother’s evidence
I have already referred to some of the mother's evidence in general terms.
The mother described the deterioration in her relationship with the father following her removal of [X] from his care in October 2007. She said that she had seen evidence of him continuing to drink to excess, including while [X] was in his care. For example, she said that on one occasion the father held a party at his home, and that [X] was still asleep at 2 p.m. on the following day. On other occasions, she said that she could hear the father slur his words when she would ring to speak with [X].
The mother also expressed her concerns relating to various people with whom the father associates. She said that the father had been the victim of certain criminal offences, including an assault and burglary. He told her that he had been involved in a fight with a person with whom he had lived at some time in the past. He also told her that people had broken into his house.
The mother conceded that the father is a very loving and affectionate father. Indeed, she conceded that he is a good father "when he is not drinking or choofing to excess".
The mother spoke frankly and with tenderness about [Y] and [X], and of their relationship. She accepted that the relationship between [Y] and [X] is not always perfect. Effectively, both live as single children during the week and only see each other on weekends. She said that they fight from time to time, but no more than other siblings do. More importantly, they love each other, talk about each other frequently and look forward to seeing each other.
Although [Y] initially had a very close relationship with the father, the mother described (with some emotion) the deterioration of that relationship to the point that the father "doesn't even say hello to [Y]" any more. The mother believes that the father has withdrawn from [Y] because he is angry with her. To the father's credit, however, that situation appeared to improve during the course of the trial.
During cross-examination by Mr Brewer, the mother conceded that [X] has a number of pets at the father's home. She also has friends in the neighbourhood. The mother did not deny that [X] seems happy and content at the school that she attends in [W].
The mother conceded (without hesitation) that she commenced living with the father when [Y] was less than two years old, and that she continued in the relationship until after [X]'s birth. She conceded that she used speed and ecstasy prior to [X]'s birth, and admitted that she "lost touch with her responsibilities" at that time. She denied using marijuana. She recognised that the father was her partner and protector at that time, and that he was "a close friend" of [Y] (having far more to do with him than [Y]'s biological father).
The mother also conceded that she regarded cannabis as "a soft drug" and that she had little discomfort with the father using it, or drinking alcohol, so long as his usage of both was modest.
As far as the mother is concerned, the father "put his shoulder to the wheel" and was a good and caring father (or step-father) for both her children during the early stages of their relationship.
Part of the reason for the deterioration of the mother's relationship with the father was her frustration with his apparent unwillingness to obtain employment. My impression of the mother is that she is a relatively serious, hard-working person. For example, she said (and I accept):
I don't believe in sitting at home on the pension, even if one is a single parent.
The mother also conceded that she "broke trust" between herself and [X] and herself and the father when she removed [X] from the father's care in October 2007. She believes, however, that time will heal that problem.
The mother said that she was in a relationship with Mr B for approximately six months. She said that "he turned out not to be a very nice person". There are occasions when she and Mr B would drink to excess, but never when [X] was with them.
Mr B was also a drug user. He used amphetamines, and on one occasion, she used the drug with him. She conceded that he had assaulted her. She said that the children were at a friend's home when the assault occurred.
In response to questions asked of her by Ms Boymal, the mother explained that she works from 8 a.m. to 2:30 p.m., five days per week. She said that the school that she proposes [X] should attend is "around the corner" and that it has a before school program which she could utilise for [X].
The mother has occasionally worked on weekends, but has made appropriate arrangements for the children when she has done so.
The mother conceded that [X] has not complained about the father's alcohol or drug use. She also conceded that at the time she agreed to [X] attending kindergarten in [W], she did not turn her mind to the father's drug and alcohol use, the parties’ different parenting styles and the effect on [X] and [Y] of living in separate households. She said that she simply wanted "what was best for [X]".
During re-examination, the mother confirmed that the father usually smokes marijuana and drinks alcohol at or around the same time. She said that, when using alcohol and marijuana in combination, the father becomes "all loud and silly". He also loses patience with [X] when he is under the influence of marijuana or alcohol, and can snap at her in an angry tone of voice.
The mother expressed her concern that if [X] continues to live with the father, and if he does not deal effectively with his problems in relation to marijuana and alcohol, then [X] will grow up thinking that the use (or misuse) of marijuana and alcohol is appropriate and acceptable. By way of example, she described the incident in 2007 when she delivered [X] back to the father's home while he was sitting in the kitchen with three or four people, all of whom were using a "bong" to smoke marijuana. The bong was being passed around "in plain sight". [X] saw what was happening as she walked to her room and appeared to accept the actions of those present as normal.
The father's evidence
The father gave evidence that he works at two jobs. His hours in the first job from 9 a.m. to 12 noon. His hours on the second job from
12 noonto 3:15 p.m. In addition to the two part-time jobs, he "mucks around with cars" at his home.
During cross examination by Mr Testart, the father conceded that he had used marijuana for many years. He accepted that it was "not good" to use marijuana, but seemed unable to satisfactorily explain why that might be the case. Indeed, he asserted that he had come to the realisation that it was "not good" to use marijuana "over the past few weeks".
He asserted that, although marijuana relaxes him, he is capable of giving up the drug at any time. Notwithstanding that fact, he had recently used marijuana ─ while fully appreciating the fact that that his use of the drug was likely to be a very significant issue at trial.
In relation to the incident when the mother delivered [X] home at the time that a bong was being passed around in the father's kitchen, the father denied that he had been smoking marijuana on that occasion. He said that he abstained because he knew that [X] was due to come home. I do not accept his evidence in that regard, and find that he was indeed smoking marijuana that afternoon.
The father confirmed that he had been the victim of various criminal incidents over the years in [W]. When asked why he was not prepared to relocate from [W] to [R] (or to another town closer to where the mother and [Y], and perhaps [X], would be living) the father said that he had had long-term employment in [W] at the time that the mother originally moved and that he did not want to lose that employment. When pressed as to whether he could now relocate to [R] to be closer to [X] (if the court were to conclude that [X] should live with the mother) the father was clearly reluctant to consider any such arrangement.
In spite of Ms Slattery's evidence, the father confirmed that [Y] and [X] have a good and close sibling relationship. [X] always asks after [Y], and they speak with each other on the telephone. The father has no doubt that [X] loves [Y].
The father confirmed that he had lost his driver's licence in the past because of drink-driving convictions, but his evidence in relation to the subject was vague. He conceded, however, that he has an interlock device on his motor vehicle. Obviously, [X] is well aware of the fact that he must use the device if he wishes to drive the car.
Ms Boymal cross examined the father regarding his alcohol intake. His evidence in relation to the subject was less than clear. He said that he drinks "a couple of cans" with his evening meal on two or three nights per week, and six or seven "drinks" on Friday night when [X] is not with him. I find that it is likely that the father drinks far in excess of this amount. He said that, when he goes out, he does not count drinks and "before you know it, you're drunk". He also conceded that his view of socialising is to go out with his mates and get drunk.
Overall, the father's evidence regarding his alcohol consumption and his use of marijuana was less than satisfactory. It was often vague, and at other times it was inconsistent. What was very clear, however, was his statement to the effect that his view of socialising is getting drunk. Although he said that he did not believe that he had a problem with alcohol, he did not seem at all convinced by his own statement in that regard. My impression is that he was troubled by his own alcohol consumption, but seemed powerless to take steps to bring it under control.
Towards the end of his evidence, the father stressed that he will cooperate with whatever orders the court considers might be in [X]'s best interests – including any order to the effect that [X] should live with the mother. He said (and I certainly accept) that he loves [X], and that he means that no harm. He offered to do any tests that the court might consider appropriate in order to monitor his alcohol and drug usage. Overall, he seemed surprised that his alcohol and marijuana usage might be considered relevant to [X]'s life, or risk factors to be taken into account in the current proceedings.
Mr D
Apart from the parties and Ms Slattery, the only witness who gave evidence in the proceedings was Mr D, the mother's boyfriend. He is 33 years old and single, and lives on his own in a unit in [R]. He has no children.
Mr D and the mother have known each other for approximately five or six years. Their relationship became more serious in mid 2007. During the period leading up to the trial, Mr D spent "many weekends" staying with the mother, [Y] and [X].
There was nothing controversial about Mr D, or about his evidence. He gives the impression of being a sensible and hard-working person. He is an active member of the Country Fire Authority, in which he has previously held positions of responsibility.
His observation of [Y] and [X] is to the effect that they usually get along together very well. In paragraph 9 of his affidavit, he summarised their relationship as follows:
They just seem like typical siblings in a family.
Section 60CC factors
I now turn to consider the section 60CC factors.
Before proceeding further, however, I remind myself that I must regard [X]’s best interests as comprising the paramount consideration in this case. It is for the purpose of determining which party's proposal best promotes that consideration that I must consider the matters set out in section 60CC.
I would add that Mr Testart indicated that the mother refers to and adopts Ms Boymal's submissions
Meaningful relationship
It was not in dispute that [X] has a close and loving relationship with both her parents.
It is clear from the Full Court's approval[40] of the decision of Brown J in Mazorski & Albright (2008) 37 FamLR 518, that the “additional considerations” (in section 60CC(3)), can and perhaps should be dealt with before dealing with the primary considerations (in section 60CC(2)). I consider that such an approach is appropriate in the present case.
[40] See Moose (2008) FLC 93-375
Protection from harm
As indicated above, I propose to deal with this consideration after I have dealt with the considerations listed in section 60CC(3), to the extent that they are relevant.
Child's views
Ms Boymal submitted that [X]’s views indicate that she has no real preference as to the parent with whom she lives. She seeks time with both.
Neither Mr Testart nor Mr Brewer suggested that [X]’s wishes comprise a relevant consideration.
Nature of relationship
Ms Boymal submitted that [X] has a secure, stable and meaningful relationship with both her parents. She also submitted that, irrespective of Ms Slattery's impressions, [Y] and [X] have a good and close relationship, and that [Y] has a good relationship with the father.
Ms Boymal had "no criticism" of [X]'s relationship with Mr D. I accept Ms Boymal's submissions in that regard, which are clearly consistent with the views of both parties.
Mr Brewer emphasised that [X] presents as "a bright, friendly little girl, well-balanced, well-behaved, a good student, settled in living with her father, enjoying a meaningful relationship with both parents". He also submitted that she does not exhibit symptoms that may be expected to be found "in children exposed to parents seized of substance abuse problems". While that may be so at the present time, I find that – unfortunately – there is a real possibility that [X] will begin to exhibit such symptoms (as ill-defined as they appear to be) if she continues to live with the father and if, as appears likely, he is unwilling or unable to successfully address his problems associated with alcohol and cannabis use.
Facilitation and encouragement of the relationship between child and parent
Ms Boymal submitted that both parents are willing and able to facilitate and encourage a close and continuing relationship between [X] and the other parent. She expressed concern, however, regarding the mother's actions in October 2007 (which may have had the effect of undermining [X]'s relationship with the father). Nevertheless, she submitted that the mother acted genuinely in the light of the information then known to her (such as the "dope" found in the glove box, the kitchen “bong” incident and the mother's telephone discussion with Ms P), and out of concern for [X]'s best interests.
Mr Brewer placed significant emphasis on the mother's actions in October 2007. He pointed to the mother's evidence to the effect that her actions had destroyed the trust that existed between herself and [X] (and, to a lesser extent, between herself and the father) prior to that time. I accept that the mother's behaviour at that time was both unfortunate but, as I have recorded elsewhere in these reasons, I am satisfied that she felt that she had adequate reasons to act to protect [X]. Even if I were to accept Mr Brewer's submission to the effect that the mother's actions at that time were unfair, deceitful and reprehensible, my conclusion as to the orders that are most likely to promote [X]'s best interests would be no different. As in almost every case involving children, some factors or considerations will favour one parent, whilst others will favour the other parent. At the end of the day, and as Ms Boymal observed, it was upon the father that (to use a colloquialism) the spotlight ultimately focused. That is not to say that I have ignored the mother's behaviour. I have not, but I have concluded that the events of October 2007 are ultimately of less relevance or significance than other factors bearing on the father's behaviour, and his use of alcohol and cannabis.
I do not pretend that the events of October 2007 reflect on the mother in an unequivocally positive fashion. On the other hand, I reject
Mr Brewer's submission to the effect that the court should infer from the mother's statements to the father and [X] at that time that she "must be a well practised, competent liar". The evidence does not support such a conclusion. In my opinion, Mr Brewer's submission is offensive and inappropriate.
Effect of changes in child's circumstances
Ms Boymal submitted that both parties can be relied upon to make efforts to facilitate a change in [X]'s living arrangements. That change will not be insignificant. It involves [X] changing her principal place of residence and school. [X] is also likely to have to make adjustments in her friendships. On the other hand, [Y] lives in the mother's household and, as I have indicated earlier, their relationship is a positive one.
Ms Boymal submitted, and I accept, that [X] can remain in touch with her friends in [W] after she commences living in [R].
The wife works, but she is usually at home in the afternoon. I am more than satisfied that she will make proper arrangements for [X]'s care and supervision at all relevant times.
The evidence reveals that [X] is a bright and articulate child.
Ms Boymal submitted that there is no evidence that she would suffer unduly from a change of school. I do not ignore, however, the fact that [X] has only ever attended one primary school. Nor do I ignore the fact that she has been progressing well at that school, and that the father has involved himself appropriately in [X]'s school activities.
Practical difficulties and expense associated with contact
Ms Boymal submitted that the practical difficulties associated with the parents living in different towns have been overcome in the past (even at times when the father has not had his own car). There is no reason, therefore, why these difficulties should cause significant problems in the future.
Neither party suggested that this was a relevant factor in the context of the matters in issue in these proceedings.
Capacity to provide for the child's needs
Ms Boymal submitted, and I accept, that in the circumstances of the present case this consideration is closely interrelated with the two subsequent considerations (being, among other things, the maturity and lifestyle of [X] and her parents and the attitude to [X], and to the responsibilities of parenthood, demonstrated by each parent).
Ms Boymal submitted that, to a large extent, the case was always "about" the father. Put another way, the spotlight was on him.
He would have the court accept that he experienced an epiphany on the first day of the trial, in that it was then that he recognised that it was inappropriate for him to continue to use marijuana. The evidence revealed that he had last used marijuana only a very short time before. He must have been aware from the earliest stages of the proceedings, however, that his drug and alcohol usage would be placed under the microscope (as it were). Similarly, he must have realised how much was at stake in the proceedings. The evidence revealed, however, that he was in the habit of drinking significant quantities of alcohol frequently. Clearly, [X] is well aware of the father's drinking habits.
In my opinion, the father simply did not understand the inappropriateness of the example that he sets to [X]. He has no insight into the effect of his drinking on his daughter.
The evidence reveals that the father did not comply with the injunction that was in place restraining him from drinking to excess when [X] is in his care. Having six or seven drinks while [X] was in his care was clearly inappropriate. As Ms Boymal submitted, either the father forgot about the injunction, he thought that the amount of alcohol that he consumed was not excessive or he simply decided to breach the order. Given his evidence to the effect that he "likes getting drunk", and in all the circumstances, I find that he simply decided to breach the order. My impression is that the father simply did not and could not appreciate the need for such an injunction. I note, as well, that the father drank at a hotel where he also acquires marijuana. The clear implication is that alcohol and marijuana go hand-in-hand as far as the father is concerned.
Ms Boymal linked her submissions in relation to these subjects to the court's consideration of the father's capacity to provide for [X]'s needs, including her emotional and intellectual needs. She argued that, as [X] grows older, she will become more inquisitive and hence more conscious of the father's approach to socialising and his behaviour generally. In a broader sense, Ms Boymal submitted that a significant part of a person's parenting capacity is "simply missing" if that person cannot understand the impact of his or her substance abuse on the child of the relationship. In that regard, she submitted that the father has not developed a mature insight into the effect (or likely effect) on [X] of his behaviour and attitude. She urged the court to accept that the father "left his run too late"; he had many chances to recognise and confront his substance abuse problems, but he is failed to do so.
I find that he mother has the capacity to provide for [X]'s needs (including her emotional and intellectual needs). I find that the father has a similar capacity for much of the time. Until such time as he properly and effectively deals with his own problems, however, I find that there will inevitably be occasions on which his capacity to provide for [X]'s needs will be impaired by his alcohol or drug use (or by other factors associated with his lifestyle in [W]). [X] must be protected from any form of harm that may be caused to her from being subjected or exposed to the father's (at times) inappropriate or irresponsible behaviour.
In Roth (2008) FMCAfam 781, Altobelli FM wrote:
20. In a case where it is alleged that one or both parents, or any person involved in the care of a child, are addicted to drugs, this is highly relevant because, potentially:
· It might undermine or even destroy the meaningful relationship that exists between child and parent (s.60CC(2)(a)); and/or
· It creates a need to protect the child from physical or psychological harm from being subjected to, abuse, neglect, or family violence attributable to the drugs (s.60CC(2)(b)); and/or
· It adversely impacts on the nature of the relationship of the child with the drug dependent person (s.60CC(3)(b)); and/or
· It impairs the capacity of that parent or person to provide for the needs of the child: (s.60CC(3)(f)); and/or
· It demonstrated a poor attitude to the child and to the responsibilities of parenthood (s.60CC(3)(i)); and/or
· It might lead to situations of family violence (s.60CC(3)(j)).
21. From a social science perspective, parenting and drug addiction are a potentially dangerous mix for the child. Drug dependence creates a pre-occupation that is inconsistent with responsible parenthood. The compulsion for drugs is not inconsistent with parental love, but is often inconsistent with the ability to meet the needs of children. Choices are often made that compromise the ability of parents to protect their children. Funding and maintaining a drug habit creates instability in family life. Children can often become secondary priorities, and thus vulnerable to harm. Routines are often disrupted. Sometimes drug dependency leads to exposure to criminal behaviour and the criminal law. Even if a parent is physically present for a child, drug dependence often leads to emotional unavailability for children, which is sometimes the most damaging impact. In short, parental capacity is grossly compromised. (See generally Barnard M., Drug Addiction and Families, London: Jessica Kingsley; 2007.)
I agree with the comments made by Altobelli FM in the passages cited above.
Mr Brewer submitted that the father has done "the hard yards" in caring for [X] in [W]. He submitted that the father has worked hard (at two jobs) to help support [X]. While there may well be merit in such submissions, an order providing for a child to live with a parent cannot be regarded as some form of reward for that parent's efforts (in whatever context). Such an approach devalues the requirement that the Court must consider a child's best interests as the paramount consideration. As I have said elsewhere in these reasons, it is almost always the case in parenting disputes that some factors will favour one parent and that others will favour the other parent. It falls to the court to decide which factors should be given the most weight, and to strike an appropriate balance in the child's best interests.
Mr Brewer also implied that the mother has "no ambition" and that she was "resiled to being a laundry hand for the rest of her working life". My impression of the mother is different. In my opinion, she would like to improve her employment opportunities, but she recognises that her present employment is convenient for so long as she has the care of school-age children. It is particularly convenient given that she is likely to have to devote more time to [X] (in the short term, at least) after she commences living with her.
Maturity, lifestyle and background of the child and the parties
As indicated above, Ms Boymal dealt with this consideration under the general heading of the parents’ capacity to provide for [X]'s needs. Neither Mr Testart nor Mr Brewer dealt with at in any other way.
Attitude to the child and to the responsibilities of parenthood
I have dealt with aspects of this consideration (directly or indirectly) elsewhere in these Reasons, and there is no need for me to recast previous statements in a slightly different form.
As indicated above, Ms Boymal, Mr Testart and Mr Brewer all dealt with this consideration under the general heading of the parents’ capacity to provide for [X]'s needs.
Family violence
This does not appear to be a relevant consideration in the circumstances of the present case.
Orders least likely to lead to the institution of further proceedings
Ms Boymal urged the court to make final orders providing for [X] to live with the mother. She submitted that the father had "run out of chances".
I am well aware, of course, that the evidence before me does not suggest that [X] has ever come to serious harm (of any sort) whilst she has been in the father's care. That is a factor that I take into account and weigh in the balance, and it is certainly not without significance. But, section 60CC(2)(b) speaks of a “need to protect” a child from certain behaviours. In my view, the fact that such behaviours have not harmed [X] in the past does not mean that they could not harm her in the future. Further, there is clear evidence before me of the potential of its significant and serious long-term adverse effects on [X] if the father does not moderate his behaviour.
Reconsideration of meaningful relationship and protection from harm
Having dealt with those considerations pursuant to section 60CC(3) that I consider relevant, I shall now revisit the considerations referred to in section 60CC(2).
In my opinion, there is little further that needs to be said. I have dealt with [X]’s relationship with the parties elsewhere in these Reasons.
I recognise the benefits to [X] of having a meaningful relationship with both her parents. The orders that I have outlined in these reasons reflect my attempt to protect, preserve and promote that relationship.
I note, however, and accept Mr Testart's submission to the effect that the father's drug and alcohol use (or abuse) has the capacity to undermine (and potentially destroy) the meaningful relationship that currently exists between the father and [X].
In relation to the need to protect [X] from the type of harm referred to in section 60CC(2)(b), Ms Boymal and Mr Testart both submitted that, as a result of the father's lack of insight and delayed and incomplete recognition of the need for him to change his behaviour (as it relates to substance abuse), the court should not feel confident that the father is in fact capable of making such a change. In short, both submitted that the father's assurances as to his future intentions regarding abstention from alcohol and cannabis were "too little, too late". In those circumstances, (and on the assumption that all other considerations might be perceived as being equal, or even if one were to assume that the other considerations favour the father's case), the court should ensure that [X] is placed with the mother. The mother's behaviour is more mature and child focused than that of the father. As a result, [X] is less likely to be subjected to, or exposed to, the type of behaviour that occurs in the father's household. By way of example only,
Ms Boymal referred to evidence to the effect that the father was unable to drive [X] to hospital after he had been drinking.
Mr Testart urged the court to find that the father's drug and alcohol use are more serious than the ICL’s concerns might indicate. He submitted that "the father is frankly dependent upon both substances". Regrettably, I am satisfied that the evidence supports Mr Testart's submission in that respect, it is and I find that the father is, indeed, dependent upon both substances.
Conclusion as to most satisfactory proposal
The father effectively opposes any change in [X]’s present living arrangements – for two primary reasons:
a)[X] has been in his primary care for a significant period of time (indeed, for much of her life).
b)The father is (and the mother has conceded that the father is) "a skilled and loving parent" with "not a single point on which the mother and attacks his parenting, save his substance use (or abuse)".
In relation to the first of those reasons, and the significance of an existing status quo generally, the Full Court in Burton (1978) 4 FamLR 783 said (at page 786):
… (We) are of the view that no legal onus rests upon a party with whom a child is residing to show that a change would be detrimental to the child and no legal onus rests upon a party seeking a change to justify the change either by establishing that a change would be positively advantageous to the child or in any other way. An existing status quo is but one factor to be weighed with all other relevant factors in determining a particular case. When weighing that factor, the quality of the status quo would require examination – and if a long standing status quo is disturbed, then the factors which influence the Court to come to that conclusion should be clearly identified. (Emphasis added)
These remarks were re-affirmed by the Full Court in Re: G: Children’s Schooling (2000) 26 FamLR 143 at 154[41]. In my opinion, and although the pre-existing law in relation to parenting issues was comprehensively amended in mid 2006, the passage from Burton quoted above remains good law.[42]
[41] See also A v A: Relocation Approach (2000) 26 FamLR 382 at 405-6.
[42] See (for example) Goode at paras.72-3
To the extent that Mr Brewer might be considered to be arguing that the current status quo should be preserved for its own sake, I reject that submission. Relevantly, there is no legal onus on the mother to persuade the Court that the current status quo should be altered. I have had regard to the current status quo (and, of course, its quality) as part of my consideration of the various factors referred to elsewhere in theses Reasons.
Mr Brewer submitted, and I accept, that it is important to have regard to the father's "track record" as [X]’s carer. I have not ignored the positive role that he has played in this regard. Nor, it seems to me, have the mother or the ICL ignored this aspect of the father’s case. They were, by and large, complimentary of the father's commitment and parenting efforts. The concerns that they raise, however, cannot be overlooked.
In paragraph 28 of WSM, Mr Testart submitted that the evidence before the court supports a number of very clear findings. I agree with him. Thus, I find that:
a)The father suffers from substance dependence (either alcohol or cannabis or both), which dependence might undermine or even destroy the meaningful relationship that exists between [X] and himself.
b)The father has sought to minimise the extent of his use of (and, ultimately, his dependence on) both alcohol and cannabis.
c)Without significant assistance, and a frank admission that he suffers from such dependence, the father is unlikely to address his problems effectively or at all.
d)Having regard to Dr S's evidence, the father may well be at significant risk from further cannabis use.
e)The father leads a lifestyle that involves drinking alcohol to excess, the use of cannabis and associating with people who are cannabis users, and [X] has been exposed to this lifestyle. Unfortunately, there is a strong possibility that the father will continue to expose [X] to this lifestyle.
f)Having regard to the father's lifestyle as described in the previous paragraph, [X] is exposed to "(at best) sub optimal parenting or (at worst) emotional and/or psychological harm" while in the father's care.
g)The mother has experienced "substance issues" in the past, but she now abstains from illicit drugs, and only drinks alcohol relatively infrequently. When she does drink alcohol, she drinks in moderation.
h)The mother's attitude towards substance use "displays insight and maturity, and she can be trusted to inculcate appropriate values in [X]". Regrettably, the court cannot be so confident about the father.
i)Even if it could be argued that the mother "acted improperly" in removing [X] from the father's care in October 2007, she did so because of her genuine concerns for [X]'s welfare.
j)[X] "loves, engages with and has a close bond and relationship with" [Y]. She would derive benefit from that sibling relationship "being fostered and strengthened to a greater extent than is currently possible having regard to her living arrangements".
k)The father's expressed refusal to move from [W] to [R] (in order to be closer to [X]) "is poorly reasoned and displays short-sightedness and lack of insight". On the other hand, the mother's reluctance to return to [W] is understandable when regard is had to her concerns about the lifestyle and peer group pressures is in that town.
Mr Brewer concluded WSF as follows:
Neither parent is without fault, both are good parents. The difference is to be found in the intellectual aspects of the case. On any view of the evidence, [X] is doing well, the father has structured his life in such a way that he is able to be fully involved in all aspects of [X]’s development, whereas the mother says that she is not equipped to be as involved in school, is not much of a reader and has no plan for the future.
The father, for all his faults, is dedicated to his child and his future, he is on the social ladder headed upwards as is the case with his industrial ambition. … If the court finds that it is in [X]'s best interests to live with the father, the guarantee is that [X] will have her relationship with her mother sponsored, promoted, protected and encouraged.
I accept that neither parent is without fault. I also accept that, generally speaking, [X] is "doing well". But the father's use of alcohol and cannabis, and his lifestyle in the broadest sense, raise issues that cannot be ignored. As I have indicated elsewhere in these reasons, an order to the effect that [X] live with a parent is not a reward for commitment or conscientious endeavour on the part of that parent. The simple fact that neither parent appears to be without fault serves to highlight the need to give consideration to each of the factors that impact on [X]'s best interests, and to weigh those considerations against each other. That [X] is "doing well" is to the father's credit; indeed, it is to both parties’ credit. In effect, it does no more than describe the status quo which, as I have explained, is a relevant consideration, but is not the sole or the determinative consideration. In this case, I have concluded that the status quo should be disturbed, and I have explained my reasons for reaching that conclusion.
In my opinion, and
a)bearing in mind that [X]’s best interests remain the overriding consideration;
b)taking into account the objects and principles set out in section 60B; and
c)having regard to my discussion of the section 60CC factors above,
I conclude that, in general terms, the mother’s and the ICL’s proposals are more likely to be in [X]'s best interests than the father's proposals.
Equal shared parental responsibility
It was not in dispute that the parties should retain equal shared parental responsibility for [X]. Indeed, final orders were made to that effect on 28 April 2008.
Leaving aside any relevant presumptions or assumptions, it was not in dispute that shared care was not a realistic option in the circumstances of the present case. On the other hand, it was agreed that the father should have as much contact with [X] as is practicable in all the circumstances.
Conclusion
I have borne firmly in mind, throughout my consideration of the parties’ competing applications, the various factors and considerations referred to under the heading of "The Law" above. I have also borne in mind the other legislative provisions or authorities referred to in these Reasons.
I have imposed no legal or other onus on any party, and have applied no presumptions of any sort (beyond those that the law requires me to consider and apply). I have deduced from the evidence, and from my assessment of the parties and the witnesses, the essence of the competing proposals ─ and I decide, having considered all the factors that I believe to be relevant, that the mother's (and the ICL’s) proposals are more likely than the father's proposals to advance [X]'s best interests (which comprise the paramount consideration in these proceedings).I will now hear counsel as to the orders that are necessary to give effect to these Reasons.
I certify that the preceding one-hundred and ninety (190) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate: Suzette De La Motte
Date: 31 March 2009