BARLEY & SANSOM

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARLEY & SANSOM

[2020] FCCA 720

Catchwords:
FAMILY LAW – PARENTING – Child aged 6 – where the child has lived with his father for most of his life – where the mother says that the father stole the child and seeks an order that the child live with her – where there are risk issues with both parties but where the child is strongly attached to his father and is being well cared for on a day to day basis – order made for the child to live with the father and spend time with the mother during school holidays.

Legislation:

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

Applicant:

MR BARLEY

Respondent:

MS SANSOM

File Number:

BRC 12529 of 2016

Judgment of:

Judge Terry

Hearing dates:

5 & 6 February 2020

Date of Last Submission:

6 February 2020

Delivered at:

Newcastle

Delivered on:

10 March 2020

REPRESENTATION

Counsel for the Applicant:

Mr Guyder

Solicitors for the Applicant:

Craney Family Solicitors

The Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Ms Ticehurst

Solicitors for the Independent Children’s Lawyer:

Harpers Legal

ORDERS

The father shall have sole parental responsibility for the child X born in 2014 (“the child”).
The child shall live with the father.
The child shall spend time with the mother at times as agreed between the parties, but failing agreement:
(a)During the school holidays at the conclusion of Terms 1, 2 and 3 from 2.00pm on the first Saturday of the school holidays until 2.00pm on the middle Saturday of the school holidays.
(b)During the school holidays at the conclusion of Term 4, as follows:
(i)In holidays commencing in even numbered years, from 2.00pm on the first Sunday of the school holidays until 2.00pm on the Saturday three weeks later.
(ii)In holidays commencing in odd numbered years, from 2.00pm on the fourth Saturday of the school holidays until 2.00pm on the last Saturday of the school holidays.
Changeover shall take place at the rest area at the Town A turn off unless otherwise agreed between the parties.
The mother is at liberty to have telephone communication with the child at all reasonable times and intervals.
Each party is restrained from denigrating the other party in the presence or hearing of the child.
Each party shall inform the other of any change in their residential address, landline telephone number and mobile telephone number within 48 hours of such change occurring.
Each party shall inform the other, as soon as practicable, in the event the child is:
(a)Seriously injured.
(b)Placed on any ongoing medication.
(c)Attends hospital.
Each party is at liberty to attend any school events, extra-curricular activity or religious activity to which parents are ordinarily invited.
Each party is authorised to utilise any mobile telephone or computer application provided by the school for parents, and obtain school reports, newsletters, photographs and the like from any school the child attends.
Each party is authorised to obtain information regarding the health of the child from any medical professional the child attends upon.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

BRC 12529 of 2016

MR BARLEY

Applicant

And

MS SANSOM

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
These proceedings concern X aged six. His parents separated when he was a baby and he has lived almost entirely with his father since then.
The parents are in dispute about whether that should continue or whether X should commence living with his mother.
The father wants it to continue. He says that the child is strongly bonded with him and would prefer to live with him and that he is looking after the child well on a day-to-day basis. He is critical of the mother’s parenting capacity including her history of parenting her older children and says that X would be best living with him.
The orders he proposes are that X live with him, that he have sole parental responsibility and that X spend time with the mother during the school holidays.
The parties live about six hours driving distance apart so time during the school holidays is all that is feasible whether X lives with the father or with the mother.
The mother wants X to live with her. She says that the father stole him when he was a baby. She says that the father has a significant drug use history and is living with a partner who is sometimes violent and that X has been exposed to that. The mother says that in contrast she has a stable home and is working and can provide well for X and he has siblings in her home.
The mother seeks orders that X live with her and spend the whole of the school holidays with the father. She also seeks an order for sole parental responsibility.
There are issues with both parents. The father has used drugs and while that is historical there are some entries in the police records which raise the spectre that he might be dealing drugs. His relationship with his partner Ms B raises a concern that the child may be at risk of being exposed to family violence.
The mother currently has all her older children in her care or living nearby but they have all spent time out of her care and the evidence raises some concerns about her parenting capacity. She also has a drug use history and the evidence raises some concerns about whether she might currently be using drugs.
At the end of the trial the Independent Children’s Lawyer supported the father’s proposal. She said that there was some future risk in relation to both parents but the court should place weight on the fact that the child was strongly attached to his father and the father was currently doing a very good job caring for him.

The evidence

In the father’s case evidence was given by the father and his partner Ms B.
In the mother’s case evidence was given by the mother and the maternal grandmother Ms C.
The mother was self-represented. I read both of the affidavits she has filed, one for the trial and one on 5 January 2018, but both her affidavits were very brief. However I have to do the best I can with what I have got.
A family report was prepared by Dr D, a Regulation 7 family consultant.
I have reservations about whether the evidence of any of the lay witnesses is entirely reliable in all its aspects.
I have concerns about whether the father’s evidence about drug use and possession is reliable. He said that he was arrested in 2000 for possessing one cannabis plant. The police said there were 15. He was found in possession of methamphetamine in Town E in 2018. He provided minimum information about that.
There have been issues between the father and his partner Ms B. He said that they now got along really well. Whether I can entirely rely on that I cannot be sure.
I have concerns about the evidence of Ms B who did not mention any of the incidents that had occurred between her and the father in Town E since they formed a relationship.
The mother was also an unreliable witness. She said in her affidavit that she had not used drugs since 2014 or 2013. However she was charged with drug driving in 2015.
The maternal grandmother filed an affidavit which was glowing in its praise of the mother but provided no information about previous court proceedings between her and the mother in which she sought an order that two of the mother’s children live with her.
The evidence of all of the parties left a lot to be desired but I have do the best I can with what I have, just as I have to do that in relation to the mother’s affidavits.

Background

The father is almost 39 and the mother 37. They commenced a relationship on the Region F in 2013 when they were both about 32.
Both parties have older children. The father had care of his daughters G and H for a good part of their life and I infer from his affidavit that they lived with the parties on the Region F during part of their relationship.
The mother’s youngest daughter J also seems to have lived with the parties but her three older children K, L and M were not living with her when she was living with the father on the Region F.
The father has family in Town E and the parties lived there for a while as well as living on the Region F. X was born in Town N in 2014 but after his birth the parties again returned to Queensland.
The father said that the parties separated in January 2015 when X was not quite one and that this arose out of the mother simply leaving the home where he and X were living and going off for a lengthy period of time. He said the mother went to attend court one day to answer some drug charges and did not return for weeks and subsequently formed another relationship. He said that he went to look for her and found that she was in the other relationship and in April 2015 relocated to Town E with X.
The mother on the other hand said that the parties separated in September 2015. She agreed that she was facing drug charges in early 2015 but denied that she left the child behind when she went to court or to form a new relationship. She said that the father retained the child and then would not let her spend unsupervised time with him. She repeated on several occasions during the trial that the father stole the child.
I cannot be sure where the truth lies about this but there is no doubt that the parties separated sometime in 2015, that X remained with the father after separation and that at some point during 2015 the father relocated to Town E with X.
The father said that he did not hear from the mother after he relocated to Town E, which he says was in April 2015, for the remainder of the year. He said that in about February 2016 he found her and negotiated for her to spend time with the child and travelled to the Region F for that to occur.
The mother on the other hand said that she did not know where the father was after he left Queensland and tried to find him. She agreed that the father travelled to the Region F with X although she said that it was in December 2015 and that she spent one week with the father and the child.
Again I cannot make any findings about where the truth lies about all of this.
However it does not appear to be in dispute that while the mother saw the child in either late 2015 or February 2016 whatever it may have been, she did not spend much time with him for most of the remainder of 2016.
On 14 December 2016 when X was nearly three and when even on the mother’s case he had been living with the father and spending very little time with her for over a year, the mother filed an application for parenting orders seeking an order that X live with her.
The mother said that she did not do this earlier because she was not in the right headspace and did not understand her options. I have trouble accepting that she did not understand the options because she was involved in court proceedings about K and L in 2005 so she must have known very well what the options were about starting court proceedings.
The mother commenced proceedings in Queensland and the matter was transferred to the Federal Circuit Court in Newcastle because the father and X were living in Town E.
In June 2017 interim orders were made for the child to spend supervised time with the mother in a park at Town E. The time was to be supervised by the father or his sister. The mother came down to spend time with the child and she said that there was an additional occasion when the father visited her with the child, in fact I think she said there was more than one occasion when the father visited. The father said that there was only one such occasion but that is another dispute I cannot make a finding about.
On any view for the second half of 2017 X lived with the father and spent some time with the mother but not a great amount.
The mother was then living on or near the Region F. The father had previously lived in Queensland and when the matter was in court during the second half of 2017 the father indicated that he was thinking of moving to the Region F with X.
However he did not move and in December 2017 when the matter was mentioned in Newcastle the father attended court and the mother did not and I made final orders in the mother’s absence that X live with the father, that the father have sole parental responsibility and that the child spend time with the mother as agreed between the parties.
The mother said that the father tricked her into not attending court but there was provision in the orders for the mother to apply to have the orders set aside and she did not do so.
No time took place between the mother and X for the first six months of 2018. There was a dispute about why. The father said that the mother did not contact him and ask for it. The mother said she tried to contact the father and even made tentative arrangements with him about seeing X but nothing happened.
That is another issue in dispute which comes down to “he said she said” but I will just observe that in recent times the father has always shown himself willing to facilitate X spending time with the mother. I tend to prefer the father’s version of events that time did not occur because the mother did not contact him but I cannot be certain and in any event nothing turns on it.
The parties eventually reached an agreement for the child to spend time with the mother in July 2018 for seven days. The mother was living in Town O and the child went up to spend time with her but at the end of the seven days she did not return the child to the father. The father said that he was only allowed to speak to the child once and that the mother made no arrangements for the child to spend time with him after she retained him.
In October 2018 the father filed an application for a recovery order and on 14 November 2018 I made an order that the child be returned to the father. I also made an order that he was to spend time with the mother during the school holidays.
The mother filed a response seeking an order that the child live with her so I then had a revived parenting dispute about where X should live.
I ordered the preparation of a family report. That was released but the matter did not settle and it was listed for trial.
Since X was returned to the father in November 2018 he has spent time regularly with the mother during the school holidays save for the October 2019 holidays when the mother elected not to have the child come up to see her.

The father’s case

X lives in Town E with the father and the father’s partner Ms B. They live in a three-bedroom home which is allocated to Ms B’s mother.
X has started school in Town E. He completed kindergarten in 2019 and he has just started year 1.
The father’s younger daughter H was born in 2004 and is about 16. She has previously lived with the father and he said and I have no reason to doubt that he had a good relationship with her but at present she is living in Town E with his sister P.
The father’s older daughter G is living on the Region F with her partner.
The father has suitable accommodation at the moment but he has historically had some difficulties maintaining accommodation. He also has a significant history of drug use. He has used heroin and he is currently on the methadone program.
Ms B has two children aged seven and five from a previous relationship. She was in a very violent relationship with those children’s father. For a significant period of those children’s lives, since Ms B separated from her partner, those children were living with their father. Their father then went to jail and they commenced living with their paternal grandmother. There are currently court proceedings on foot about where those children should live.
Ms B wants the children to live with her or at least wants a much more extensive involvement with them. The paternal family want different orders but there are orders in place at the moment for the children to spend alternate weekends with Ms B.
What may transpire in relation to those children I cannot say at the moment but there could be some additions to the father’s household in the future.
Ms B said in her affidavit that she was pregnant with the father’s child and that child is due in about the middle of the year so there is going to be that addition to the household at least.
Ms B, like the father, has used heroin and she is also on the methadone program.
The father said that X was settled and happy with him, that he had adequate accommodation for him and that he wanted X to remain living with him.

The mother’s case

The mother is living in Town Q which is about six hours from Town E. She has four older children: L who is 18, K who is 17, M who is sometimes apparently called M who is about 13 and J who is about 8.
L is living with a girlfriend but K, M and J are living with the mother at present.
The mother has established a business. It is very successful and she is very keen to maximise her income from that business. Fortunately for the mother but unfortunately for arrangements for X, it is busiest in holiday periods. When X spends time with the mother during the holidays he has to spend some time in day care so the mother can work.
The mother has suitable accommodation in Town Q for herself, the three older children who are living with her and X if he comes to live with her. She has had to put X into day care during holidays when she is working but that is the lot in life for some children.
The maternal grandmother is currently very supportive of the mother and filed an affidavit in her case. She lives in Town V, Qld which is at least two hours away from where the mother lives. She said that she could help out with childminding if needed although how practical that would be given the distance she lives from the mother I cannot be sure.
The mother can properly house X and he can go to school in that area and the mother is currently financially successful with her business and it is her case that X should live with her.

The child’s best interests

Any orders that I make about X must be orders determined by treating his best interests as the paramount consideration and s.60CC(2) and (3) of the Family Law Act 1975 contain the matters to which I must have regard in order to determine X’s best interests.
There are primary and additional considerations and as I often do I am going to start by making findings about the additional considerations and then come back to the primary considerations.
The first of the additional considerations is any views of the child and the weight the court should place on their views.
X has a very clear view about his future parenting arrangements. The family report writer said as follows:
X had a clear understanding of his family and his relationships reporting that he has a dad that he lives with, a mum that he spends time with, and Ms B his dad’s girlfriend. He also noted that he has brothers and sisters that he also likes to spend time with. X reported that he likes living with his dad and enjoys spending time with his mum. He noted that he loves everyone in his family. He reported that his mum and dad are friends however he was quick to include that his dad is his best friend.[1]
[1] Family Report paragraph 94
It is clear enough that X’s preference is to remain living with his father.
X was only 5 at the time of the interview and he is too young to understand what is best for him but his views arise out of a longstanding situation where he has lived with the father and had a very good relationship with the father. Given that background his views deserve some weight. However they do not determine the matter and I will have to take into account many other considerations.

The next consideration is the nature of the child’s relationship with each of his parents and any other relevant person
X has a very strong relationship with his father and that is apparent from many pieces of evidence in the case.
One of them is from the child’s end of semester one school report in 2019. It is noted by the teacher that X:
Loves to talk about his home life and especially about his Dad.
The mother agreed that when she retained X in 2018 he missed his father.
There is evidence in the family report about the strength of their relationship. The report writer said as follows:
X was observed interacting with the father. They were dressed in matching clothes with matching haircuts. The father appeared very proud when introducing the child to the Family Consultant and the child made strong and confident eye contact and greeted the Family Consultant warmly with a smile.
He interacted with the father with ease. They discussed a range of activities that they had engaged in at other times. The child pulled out a box of blocks and he and the father sat together and built a very detailed plane. The interaction was warm, loving and child focused. They were clearly comfortable in each other’s company.[2]
[2] Family Report paragraphs 96 & 96
X was also observed to have a friendly relationship with Ms B. The report writer said as follows:
The child told the mother that he had two mothers. He pointed to the mother and then referred to mother- Ms B. The mother replied that Ms B was not his mother she was his father’s girlfriend and that he only has one mother. The child responded in an argumentative way that he has two mothers. He stated that some children have two mothers. One of the siblings stated that this is only if one is a stepmother and the child then replied then Ms B is my stepmother.[3]
[3] Family Report paragraph 102
The family report writer observed X to have a satisfactory relationship with his mother but it was X’s warm and spontaneous than the relationship observed with the father. She said as follows:
The child was observed interacting with the mother. The mother entered the room and they greeted each other in a warm and confident manner. The child sat on the floor playing with blocks and the mother sat on the lounge next to him. The mother asked him questions about school and his new puppy. The child responded politely however was somewhat reserved. The mother made child focused attempts to engage with him. She tried to tickle him with her foot and hands. The child laughed however moved away slightly. The mother continued talking and engaging with child, she referred to him numerous times as “are you my lovely” and the child giggled. The child mentioned that he wanted to see his sister J and the mother indicated that she was outside in the waiting room. The child indicated that he can write his name which he did. He then stated that he can also write his dad’s name and proceeded to write this underneath noting that their names are identical.
…………..
The family moved on from this discussion and other child focussed topics were raised. The observation between the mother and half siblings and subject child was warm and child focused however more reserved than the interaction with the father and it did not appear to flow as easily. The child was clearly familiar with the family however he was not as comfortable in their presence as he was with the father and the interactions appeared more difficult to sustain.[4]
[4] Family Report paragraphs 99, 103
In her affidavit the maternal grandmother said that she had observed X to have a good relationship with his siblings when he was with them in the mother’s home but only some of them interacted with him at the family report interviews. They may be good with him but he has not spent much time with them. There is a significant age difference between X and most of those siblings.
I accept that X has a good relationship with his mother and the father is not wanting to stop him spending time with her. I accept that he also has a good relationship with his siblings. However his strongest relationship is with his father.
I must consider the extent to which each party supports the child.
The mother is assessed to pay child support. There is a dispute going on between the parents at the moment about the amount she should be paying but she has historically paid the amount she was assessed to pay and the issue of child support is not a determinative one in this case. I do not accept that the mother is making an application for X to live with her because of child support issues.
I must consider the likely effect of any change in the child’s circumstances.
The mother is proposing a significant change for X. He would cease living with the parent he has lived with throughout his own living memory and would move to live with the mother and he would have to adjust to that.
The mother said that she could offer X routine and consistency and that she considered that he would adjust to the change. She said that her other children had changed residence multiple times and had adjusted. She said that the change may have a short term impact on him but he would be fine and that she was his mother so he should be with her.
I have some concerns about the mother’s capacity to help X adjust. His strongest relationship is with his father. The mother said he missed his father when she retained him in 2018. He would miss his father if I ordered a change of residence and I do not accept that he would easily adjust to living with the mother.
Instead of being the main child in the household, which he is at the moment because Ms B’s children only visit and the new baby hasn’t been born, he would become the youngest of four children in the household and due to the distance he would not be able to see his father very frequently at all.
Whatever problems people like me might consider that there are with the father, X has no problems with him and in my view he would struggle with a change and struggle to understand why a change had been made.
I must consider the practical difficulty and expense of the child spending time with each of his parents.
There are practical difficulties and expense but there is nothing I can do about it.
One of the practical difficulties is that the parents live six hours apart and it is a 12 hour round trip between the homes which makes weekend time during the terms too onerous and difficult.
The parties have managed it for holidays but there have been issues. In January 2019 the mother said that she could not get the child back to the father due to work commitments. The father initially would not collect him. He eventually did but X missed the first two weeks of school as a result.
In March 2019 there was a dispute over the changeover location. The father eventually gave in.
After the family report interviews in July 2019 the mother took the child two days early but then insisted on returning him two days early and there was another dispute between the parents.
In October 2019 the mother did not take the child at all because of a practical difficulty arising from the fact that she had been assessed to pay more child support. She maintained that as a result she could not afford to pay for child care.
There have been some practical difficulties with changeovers between the parents. Nevertheless the time has taken place except for that occasion in October when the mother said she could not take him.
I was impressed by the fact that in the witness box the father said that as a result of doing a parenting course recently he had learned that he had to be sensitive to X’s needs. He said that if an issue arose in the future with the mother refusing to return the child or refusing to go to a particular place he would make the effort and go and collect the child.
So there is a practical difficulty and expense but I cannot change that and the parents more or X’s make it work and I am satisfied the father will bend over backwards to ensure that it works for X in the future.
The next issue I have to consider is the capacity of each parent to provide for the needs of the child including his intellectual, educational and emotional needs.
The father is doing a very good job caring for X on a day-to-day basis. X is doing very well at school and is very happy and well-adjusted. His attendance is good and he has no behavioural issues at school. The father is a full-time parent to him. He provides adequate accommodation for the child and he involves X in a range of activities, including fishing and sport. X idolises his father.
The father is strongly committed to maintaining his parenting role. The family report writer recommended that he do a parenting support course and a program to address his aggressive behaviour although I will discuss later whether the latter was necessary. He has done the parenting course and he told me at trial that he had enrolled in the anger management course. He is strongly committed to maintaining his role in X’s life and doing things that people recommend that he do.
He also shows some insight into the child’s needs. I was impressed with his evidence that as a result of what he had learned at the parenting course he would drive to pick X up if there were any difficulties about the mother dropping him back.
There are some problems with the father’s situation. He has a drug use history. He said he did not use drugs when he was young. He alleged he started using them when G and H began spending significant time with their mother. I am not usually terribly impressed with that sort of excuse and in due course the father began using heroin. He said that he ceased using heroin in April 2013 and that he was now on the methadone program. He said that his dosage was being reduced with the aid of his GP.
The father said that he had never used methamphetamine or ice and the hair follicle test he did on 28 November 2019 was negative for illicit drugs. However the father has come to the attention of the police in recent times in relation to drugs.
His car was stopped and searched in 2018 and a small quantity of crystal meth was found in his possession. He was convicted of that although he now says the drug was for someone else. There are some references in the police notes to them believing that the father is dealing drugs and it is not unknown for people to be methamphetamine dealers but not to use the drug themselves.
I have a little bit of concern about whether I am being told the entire truth about what is happening with the father but I note that although the police have raised a concern that the father might be dealing drugs there is nothing about his lifestyle to suggest that he is. He is not living in a flash house or driving a flash car. There have been no home invasions. There are none of those external indicia to suggest that he is involved in a drug lifestyle.
I cannot find on the balance of probabilities that the father is as the police suggest in a couple of places in their records dealing drugs.
The father has a criminal history. He was charged with assault in 1995 and 1997 and placed on a bond on both occasions. He has a conviction in Queensland in 2000 for possessing a prohibited plant. He was convicted of mid-range PCA in Town E in 2006 and also with common assault for which he was again placed on a bond. In 2010 and 2011 he was convicted of drive disqualified. In 2017 he had further convictions for possessing a prohibited drug and in 2017 and 2018 he had further driving charges.
The father’s last conviction was for possessing the crystal meth in 2018.
The father has had difficulty maintaining accommodation in Town E and on one occasion he was reported to be living in his van. He is currently living with Ms B but their home is leased to her mother and I cannot rule out the possibility of the father again facing some difficulties with accommodation.
There is material in the Department of Family and Community Services records which reflects adversely on the father’s parenting of his oldest daughter G. There is reference to homelessness and to the child being left to wander the street. However a lot of what was in the FACS reports is hearsay and I cannot make a finding about whether the information is true.
In any event the father’s situation seems to have stabilised. Whatever might have been the problems in the past he is currently doing an excellent job looking after his son.
The father’s partner Ms B also has a criminal record. She has convictions for common assault, destroy and damage property and shoplifting in 2013, destroy and damage property in 2014, possessing a prohibited drug on two occasions in 2016 and destroy and damage property on two occasions in that year and contravene an ADVO in 2017. Ms B has also been a heroin user and is on the methadone program.
Ms B is very young. I hope everything goes well for her in the future but I cannot be sure what the future might hold for her. However at the moment she is stable. She is fighting to get her two children back into her care. She is expecting the father’s child. She is a positive part of the father’s life as I sit here today.
I am going to refer to the family violence issue separately later on. It is a concern but I am not going to deal with it now.
X is not in the mother’s care and I need to consider the evidence about her care of her other children.
The maternal grandmother gave a glowing account in her affidavit of the mother’s parenting of her older children in 2019. However the mother does not have an unblemished parenting track record. She has used drugs and been engaged in criminal activity and has not always had her children in her care.
In 2005 a Family Court order was made which provided for L to live with the maternal grandmother and K to live with the mother. The mother subsequently went to jail for 8 months for an assault and K also came into the care of the maternal grandmother.
Those children subsequently returned to the mother’s care although the details of when and how that occurred are not clear to me.
M was removed from the mother’s care by the Department of Child Safety in Queensland when she was two. The mother said that happened because she was in the wrong place at the wrong time. She said the home she was staying in was raided. She said that when she got out of jail after the assault conviction M, then four, was returned to her care.
However the mother subsequently became involved in a violent relationship and M went to live with her father and she has only very recently returned to live with her mother.
The mother told the family report writer that J had been in her care for most of her life but agreed that she arranged for her to live with the maternal grandmother for a period of time. She was returned to the mother’s care when the mother commenced a relationship with the father in these proceedings.
I have a concern about the mother’s commitment to her children. During cross-examination she admitted that in the not too distant past she had considered moving to Western Australia to go prospecting and agreed that if she had done so she would have gone on her own and left her children in the care of others on the east coast.
The mother is to be commended for setting up her business and earning an income but I cannot be sure that she will not have parenting problems in the future.
There are issues with M. She is exhibiting school refusal and the maternal grandmother said in her affidavit that M’s behaviour was challenging at times. The mother broke down late in the trial and alleged that M had been sexually abused by the child’s father so M may pose some parenting difficulties for the mother in the future.
The mother has a drug use history. She was a regular cannabis user when she was younger. She said that she was in a relationship where she was physically assaulted and was using ice every week and then every two days.
The mother told the family report writer that she had not used any drugs since 2013 or 2014. Subpoena records show that is not accurate. She tested positive for amphetamine in a roadside drug test in 2015. There is also a report in the FACS records about M finding a white substance in a drawer at her home and the mother agreed that the amphetamine she used in 2015 was a white substance.
The mother denied that she had been in possession of a white substance and that it had been in her drawer and FACS material is not always accurate as I mentioned earlier and there can be malicious reports to FACS. I had that in my mind for a while but then the maternal grandmother said in cross-examination that M had told her that she had found a bag of white powder in the mother’s drawer.
I cannot be sure what all that means but given the mother’s drug use history and the fact that she was not a reliable witness about her historic drug use it does give rise to a concern.
The mother has some convictions in relation to drug use. She agreed that she was charged with trafficking and supply of drugs in Queensland and she was charged with assault in Queensland which resulted in her going to prison.
I cannot find on the balance of probabilities that the mother is using drugs at present and it may be that she is heavily involved in her business and that is occupying her time and there is no reason to be concerned but because of her history the risk of her using drugs again is a concern sitting there in the background.
I also have concerns about the mother’s insight into her children’s needs and her empathy for her children. She minimised why she went to jail for the assault charge. She said the charge was harsh and the sentence was harsh. She had no insight into the detrimental impact on her children of being removed from her care because she went to jail or the detrimental impact on them of changing primary carers and residences as frequently as all her older children have had to do, in fact she said that because her older children had changed residence so often and seemed to her to have adjusted to it that she thought X would adjust to a change of residence.
The mother showed no insight into the effect on X of retaining him in 2018. When she was asked in cross-examination, “Did you think about the impact of that on little X?” her answer was, “I’m his mother and he stole him off me.”
The mother’s lack of empathy for the children and particularly for X is a concern because it means is that she may not be able to relate to X and deal appropriately with his distress if he struggled with a change of residence.
I must consider the child’s maturity, sex and background.
That is not relevant as a separate consideration.
I must consider issues of family violence.
The mother told the family report writer that the father punched her on two occasions and that he frequently threatened her. However that is not in any of her affidavits and it was not fleshed out at trial.
I cannot make any findings about whether there is any truth in those allegations and what I consider relevant is that there have been many changeovers between these parents since proceedings commenced in late 2016. The father supervised the mother’s time at the park after orders were made in June 2017. There were no allegations that there had been any assaults or threats or that either parent feared to come into contact with the other.
The father has historic assault convictions and there is mention in a COPS record of him punching a former partner but I cannot make any findings about the mother’s allegations and I am not satisfied there is any current risk of family violence between the mother and the father.
There is no evidence that the father has been violent in his relationship with Ms B but there is reference in the police reports to some incidents involving Ms B.
She was charged with destroy and damage property after she threw a frying pan or something similar during an argument with the father. I think she said it wasn’t a frying pan but a saucepan but she threw something and it broke a window and she was charged with destroy and damage property.

The police were called to Ms B and the father’s home on another occasion when neighbours reported loud arguing. Ms B also has some previous convictions for offences of violence.
It is likely that little X was present on at least one of the occasions involving Ms B, and I think it may have been the broken window occasion although it could have been the argument one, and it is distressing and damaging for children to be present during incidents of family violence.
The father has enrolled in an anger management program because the family report writer recommended it but there is no evidence that Ms B has taken ownership of her behaviour and sought to do something about it and there is some concern in my mind that there could be further incidents of family violence in that home.
The father is not about to end his relationship with Ms B so that is simply a factor I will have to take into account in determining what I do with the matter.
I must have regard to the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents.
That is not relevant as a separate consideration.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
An order that X continues to live with the father is that order because the father is trying to be the best father he can be and is devoted to his son but there are problems with both parents which could mean the matter returns to court.
I must consider any other relevant matter.
I do not believe there are any that I have not referred to.
I now come back to the primary considerations and they are the benefit to the child of having a meaningful relationship with both of his parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
I will deal with the second one first.
I do not want to cause Ms B any distress. She is pregnant with the father’s child. She is a vulnerable person given her age and history. However there have been some issues involving her in the father’s household. I hope she will reflect on that and take ownership of it and try and do something about any issues she might have.
I cannot be 100 % certain that there will not be any issues in the father’s home in the future arising out of Ms B becoming upset and angry.
Exposure to abuse, neglect and family violence is not an issue in the mother’s home. In relation to the first primary consideration though, the benefit to the child of having a meaningful relationship with both of his parents, I am satisfied that if the child remains with the father he will certainly have the opportunity to have a meaningful relationship with both of his parents.
The father has facilitated X spending time with the mother throughout the time proceedings have been on foot. He does not bad-mouth the mother. He made some criticisms of her at trial but it was in the context of wanting to demonstrate that he did not think she would be a good primary carer for X. He does not have a malignant or a vitriolic view of her and I am satisfied that he would facilitate X having a relationship with her and comply with court orders if I made an order that the child continued to live with him.
The family report said this about both parents:
Both parents presented during the family assessment interview as being child focussed. They were not overly concerned with the transgressions of the other parent and remained focussed on discussing the best possible outcomes for the child. [5]
[5] Family Report paragraph 106
However the difference between the parties in terms of what might happen in the future is that since proceedings were commenced in late 2016 the father has always complied with orders for the child to spend time with the mother and I am satisfied that he will continue to do that in the future. The mother has not.
She retained the child in 2018 contrary to court orders and made no effort to arrange for him to see the father. She has demonstrated on a number of occasions that she can be quite stubborn about changeover arrangements. It is either her way or the highway and the father has to come and collect the child regardless of what the orders might say.
It is apparent from the evidence at trial that the mother has a very strong resentment about the father in her view “stealing her child.” I am concerned that she does not have a particularly strong capacity to promote a relationship between the father and the child and I am concerned that she might not comply with court orders if it did not suit her or she had some resentment bubbling away at the time.
I am confident that the child would spend time with the mother and that she would not be badmouthed if the child lived with the father. I have some concerns that this may not be the case as regards the father if the child lived with the mother.

Parental Responsibility

Pursuant to s.61DA of the Family Law Act 1975 there is a presumption that the parents should have equal shared parental responsibility for the child absent a finding that one of the parents has abused the child or committed acts of family violence or that a person living with them has done so.
Ms B is in court and I am very conscious of the fact that her background is troubled and that she is vulnerable but I have to make the findings that are available on the evidence and in my view the presumption is rebutted because of the incidents have occurred between the father and Ms B.
Even though the presumption is rebutted, I could still make an order for equal shared parental responsibility but both parents sought an order for sole parental responsibility and there are number of reasons why an order for sole parental responsibility is to be preferred.
The parents are living a good distance apart. They have been separated since the child was very young. They have no history of successfully co-parenting the child. There are periods when they each say the other one is non-contactable.
The mother bears considerable resentment towards the father and there is a risk that an order for equal shared parental responsibility would result in stress or in a decision not being made. The mother put it out there plainly when she said:
Me and X can’t agree on anything.
When the mother was asked about communication she said, “There is none.” She also sent a text message to the father at one time saying that she was going to Western Australia. When she was asked about that in cross-examination she denied that she really intended to do so at that time and when she was asked why then she sent the message she said she was “shit-stirring.”
These parents are not in a position to share parental responsibility. I agree with them, one of them is going to have to have sole parental responsibility and who that is will depend on the order I make about where the child lives.

The family report

A family report is an important piece of evidence. Report writers are skilled people who have normally prepared a number of reports. They are impartial and their opinions and recommendations deserve consideration.
The family report writer in this case was positive about both the parents in some respects. She mentioned that both parents raised historic concerns about the other but that neither of them wanted to be overly nasty about the other parent at the interviews.
There are positives and negatives about both parents. The family report writer set out the positives about the father as follows:
It is noted that the subject child has remained consistently in the father’s care and the father does appear to have provided him with more stability than he has been able to provide his previous children. [6]
[6] Family Report paragraph 111
After noting some concerns about the father she said as follows:
However, if the Court finds that the father is not using illegal drugs, if the father is willing to engage in parenting support and appropriate programs to address his aggressive behaviour, and if the Court finds that the child is not at risk of harm in the father’s care, then remaining living with the father is considered the best outcome for the child. The father’s proposal will result in the child remaining in the environment he is familiar with, he will remain enrolled in the school he has commenced at, and he will remain in the care of the father who has historically been the child’s primary carer and is currently the child’s most important relationship. The child will not be required to adapt to the significant change of relocating and he will avoid the distress that a change in primary carer will cause the child.
The father is willing to facilitate the child’s relationship with the mother and is proposing that the child have time with her during school holidays and at any other time the mother is available as long as it is practicable for the child. Therefore, the father’s proposal will also result in the child maintaining important relationships with the mother and siblings. [7]
[7] Family Report paragraphs 116 & 117
The family report writer considered the mother’s proposal and commented as follows:
It is unclear if the mother has developed adequate parenting capacity or not. She has historically not demonstrated an ability to prioritise her children over her own needs and if this continues then the child will likely be exposed to the potential for significant risk of harm in the mother’s care. However, it is noted that the mother has indicated that she is no longer using drugs and is now focussed on providing a stable environment for her children.
Even if there is no unacceptable risk of harm to the child in the mother’s care the impact on the child of changing primary carers remains considerable. The child has been in the primary care of the father since birth and he has developed and maintained a strong and important relationship with him. In contrast he has not lived with the mother consistently and has experienced significant periods of time where he has not had any contact with her. His relationship with the mother is therefore still developing. If the child changes primary carers it will likely be difficult for him to adjust and will interfere in the development of other important milestones as his resources will be utilised in adapting to the significant change and managing the anxiety and instability that he will likely experience. [8]
[8] Family Report paragraphs 119 & 120

Conclusion

The family report writer preferred the option of X living with the father but went on to make alternative recommendations depending on the findings the court might make about risk and other matters in the case and I have to make a decision based on all the evidence I have before me which includes but is not limited to the Family Report.
X is settled in the father’s care and wants to live with him and whatever the past issues might have been in relation to the father’s care of G and H the father is strongly committed to doing the right thing by X and is caring very well for him.
The police reports about drugs and the father concern to me but there is no evidence that the father is currently using drugs and no particular indications that he is dealing drugs. It is possible that he is a police target because of his history. However his history of drug use and drug possession is concerning because if he does step out of line he could be charged and that would be devastating for X.
The child has a close and loving relationship with Ms B; he regards her as his other mother, but Ms B’s volatility is an issue for me and she faces some challenges.
The fact that the father has historically had issues with accommodation and could do so again in the future is another concern for me.
This is not a simple case where there is one perfect solution. The child is settled with the father and strongly wants to live with him and the father is doing an excellent job caring for him on a day-to-day basis but nevertheless there are some concerns about the father sitting there in the background.
However the mother cannot offer X a better placement. She has a poor parenting history. Her older children have not always been in her care. She has been in trouble with the law on and off and has served a term of imprisonment. She also has a drug use history and I cannot be entirely sure that she will not relapse. She may face parenting challenges with M.
An order that X commence living with the mother would mean a huge change for X. He would not welcome it and the mother is not well-placed to empathise with him and help him adjust.
I would only consider moving X from the care of the father to the care of the mother if the situation with the father was so unsafe and so unsatisfactory that another placement had to be found for him and that is not the case.
Both parents have troubling background histories and there are risks for X in the care of either parent but the only order I can make is an order that X live with the father and having made that order I will make an order that the father have sole parental responsibility because these parents are simply not able to share parental responsibility in a way that is going to benefit X.
I then have to consider the order about X spending time with the mother. The father proposed half of the holidays and that is the order I will make. It is not ideal because the holidays are the mother’s busy time for work but given the distance the parents live apart and the fact that the child is at school nothing else is practical.
I finally want to say this. X is extremely happy and settled at the moment in the care of not only the father but Ms B who he regards as his other mother. I can only hope and pray that they each continue to prioritise him and do not get into any sort of trouble. X idolises his father. It would be devastating for him if the father got into further trouble with the law and it would be devastating for him if Ms B disappeared from his life because he is also strongly bonded with her.

I certify that the preceding one hundred and eighty-seven (187) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate:

Date: 30 March 2019

[2020] FCCA 720

10 March 2020

Key Legal Topics

Areas of Law

Family Law

Negligence & Tort