Bean and Blanchard

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEAN & BLANCHARD

[2017] FCCA 2632

Catchwords:
FAMILY LAW – Parenting dispute about 7 year old child – child living with father and 2 half siblings living with mother – both parents having troubled history– father addressing drug problems but mother not – mother’s partner not on affidavit and not called as witness – mother’s mental health questionable – child settled in father’s care – not in child’s best interests to live with mother.

Legislation:

Family Law Act 1975 (Cth) s.60CC

Goode v Goode [2006] FamCA 1346

Applicant:

MR BEAN

Respondent:

MS BLANCHARD

File Number:

DGC 2078 of 2014

Judgment of:

Judge Burchardt

Hearing date:

12 October 2017

Date of Last Submission:

29 October 2017

Delivered at:

Dandenong

Delivered on:

17 November 2017

REPRESENTATION

Counsel for the Applicant:

Mr E. Taghdir

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondent:

Ms Buchanan

Solicitors for the Respondent:

Macgregor Solicitors

Counsel for the Independent Children’s Lawyer:

Mr Goddard

Solicitors for the Independent Children’s Lawyer:

McCormack & Co

ORDERS

All previous parenting orders be discharged.
The Father have sole parental responsibility of the child [X] born (omitted) 2010 (“the child”).
The child live with the Father.
The child spend time with the Mother only as agreed between the parents in writing and the father be at liberty to impose conditions on such time as he considers necessary to ensure the child’s safety
The child communicate with the Mother as follows:
(a)By telephone, Skype or other audio-visual means by agreement between the parties from time to time with the father to facilitate such communication at least once per calendar month by agreement between the parents, or in default of agreement between 4.00pm and 5.00pm on the first Sunday of the month and on each of the following days:
(i)[X]’s birthday;
(ii)Mother’s Day; and
(iii)Christmas Day.
(b)By the exchange of cards, gifts and letters by agreement between the parties from time to time but at least once on each of:
(i)[X]’s birthday;
(ii)Mother’s Day; and
(iii)Christmas Day.
The Father be at liberty to monitor the telephone and audio visual communication pursuant to Order 4 and terminate it in the event it is not appropriate communication.
The Father be at liberty to withhold cards and gifts provided pursuant to Order 5 hereof in the event that they contain inappropriate content.
The parties keep each other advised of their current residential addresses and telephone numbers and notify the other of any change thereto within 24 hours of such change.
The appointment of the Independent Children’s Lawyer be discharged.
Pursuant to ss.65DA(2) and 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 Bean & Blanchard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2078 of 2014

MR BEAN

Applicant

And

MS BLANCHARD

Respondent

REASONS FOR JUDGMENT

Introductory

This is a parenting dispute about the best interests of a child, [X], born 7 November 2010. The father seeks that the child live with him and that he have sole parental responsibility and that [X] spends limited time with the mother. The mother’s position is the reverse. The Independent Children’s Lawyer supports the father. For the reasons that follow, the Court will order that the father have sole parental responsibility for [X], that he live with the father and spend time with the mother as agreed by the father.

Agreed Facts

For all the disputes in the case, there are quite a number of matters that are not subject of material disagreement. The father was born was on (omitted) 1974. He suffered a significant back injury on 20 February 2014 and has not worked since. The mother was born on (omitted) 1973 and likewise is not in paid employment.
The parents met and commenced a relationship in (omitted) 2010 and had separated by March 2010. Given that [X] was born in (omitted) 2010, it is apparent that he must have been conceived very late in the currency of what on any view was an extremely short relationship.
The mother has two other older sons, [C] and [D], whose ages are given in various places as 11 ([C]) and 12 ([D]). They now live with the mother and have done so from December 2016 onwards. Prior to that they were, for quite some time, in the care of the maternal grandmother.
[X] has been living with his father since the mother was incarcerated in 2015. I will return to these matters when I deal with the family report.
The father was for many years a drug user but has undertaken 17 tests, all of which have been clear. The mother on her own evidence continues to be a heavy user of cannabis and has driven while under the influence of cannabis effectively for all her adult life. This is so whether children are in the car with her or not.
The mother has spent supervised time with [X], supervised by (omitted family relationship centre), from March 2016 onwards. That time has however now been used up.
[C] and [D] were not only taken from the mother upon her incarceration in 2015, but were taken from her for two years on an earlier occasion. There has been very extensive Department of Health and Human Services involvement with her family.

The Family Report of Ms A

A number of matters are set out uncontroversially in the most recent family report, to which in the unusual circumstances of this case it is appropriate now to turn in detail.
Ms A’s report is dated 6 April 2017. She noted at paragraph 1 that [C] and [D] live primarily with the mother and spend no time with their father. [D] has been diagnosed with Autism Spectrum Disorder. Ms A noted that following separation of the parents in this case, [X] lived primarily with his mother and spent regular time with his father such that by March 2015 he was spending time with him each alternate weekend from Friday afternoon till Monday morning. At paragraphs 3 - 5 of the report, the following is uncontroversially recorded:
On May 17th, 2015 Mr Bean was called to (omitted) Police Station to collect [X] as Ms Blanchard had been arrested. This followed Ms Blanchard being taken into the Victorian Prison System on 18 May 2015, and then transferred on approximately 26th May 2015 to (omitted) Hospital under the Mental Health Act.
Both [C] and [D] lived with their maternal grandmother, Ms J, from May 2015 until December 2016, when they returned to Ms Blanchard’s care upon her release from her custodial sentence. During this time Mr Bean and Ms J arranged for the boys to visit regularly to maintain their relationship and also that between [X] and his grandmother.
In July 2015 orders were made for [X] to live with his father, and in September 2015 further orders provide for [X] to spend supervised time with his mother.
Having noted at paragraph 6 that the mother had been diagnosed as having “exhibited manic/psychotic/no insight/refuses medication/grandiose beliefs” while she was in (omitted) as earlier indicated, Ms A noted that the mother had been diagnosed with Bipolar Disorder. Ms A noted that the hospital itself had noted that the mother would not adhere to prescribed medication and will continue to use marijuana. The report noted “a history of illicit drug use and violence in Ms Blanchard’s house to which [X] has been exposed” (paragraph 7). Ms A noted that while the father admitted historical marijuana use his drug screens have been clear since July 2015. Ms A noted at paragraph 9 that [C] and [D] had ceased seeing their grandmother, Ms J, since they were returned to their mother.
The report went on to note the living arrangements for the parents, including the fact that the mother lives with her partner “Mr R” and her two older children. The mother claimed to have started her own gardening and cleaning business but could care for the children around her work hours.
Having noted the positions of the parties and that (page 8) the mother “displayed a limited capacity to promote a relationship between [X] and his father”, the report went on to canvass the records of the DHS. At paragraphs 16 and following, the report observed:
In summary, the Department of Health and Human Services assessment dated July 2015 indicated that they have significant concerns about Ms Blanchard’s capacity to provide adequate care and a safe environment for [X]. This assessment was based on Ms Blanchard’s long child protection history where she has demonstrated the limited capacity to provide positive and non-aggressive relationships with his family, friends, authority figures and community members.
As an example of Ms Blanchard’s documented aggressive behaviours, in September 2014 during an altercation between Ms Blanchard and her friend, Ms Blanchard attacked her friend’s car with a baseball bat. In relation to this incident, Ms Blanchard stated to police that she does not smash people’s cars with a baseball bat every day but “only when she needs to”.
Within his mother’s care [X] has been exposed to acts of violence, an unstable routine, unsuitable parenting practices, mental health issues, drug use and cumulative harm. Furthermore, Ms Blanchard has been assessed as presenting with limited understanding of the needs of a young child and limited insight into the harm caused by her lifestyle and parenting decisions.
The Department of Health and Human Services suggested that Mr Bean can provide stable, safe and appropriate care for [X] and ensure that [X] maintains his ongoing relationship with his half-siblings and his maternal grandmother as well as a positive relationship with the extended paternal family.
The report went on to paraphrase the meetings with the parties. The father noted the history already paraphrased above and alleged that the general improvement in [X]’s wellbeing was since he had been living with him. I note that (paragraph 29) the father was not opposed to [X] spending time with his mother and brothers. He had also maintained [X]’s relationship with the maternal grandmother, Ms J (with whom he has a congenial relationship). The father understood that [D] and [C] had not been permitted to spend time with the maternal grandmother since returned to the mother’s care. The father indicated (paragraph 32) that notwithstanding the mother’s violence and antisocial behaviours he was supportive of [X] spending short periods of daytime time with his mother to enable [X] and his brothers to engage in proactive activities together.
The mother’s interview is perhaps indicated by paragraphs 33 - 34 of the report which read:
Ms Blanchard presented as a loud spoken and agitated woman. She quickly expressed her displeasure regarding the reported negligence of the Family Court and the legal systems which support this organisation. She strongly advocated that [X] is returned to her primary care stating that he was removed as a consequence of her having a “breakdown” in June 2015, and she felt she was being discriminated against by professionals simply for having a mental illness.
Throughout her interview Ms Blanchard failed to take responsibility for any of her antisocial behaviours but rather advocated that Victoria Police had victimised her as had other authority figures emphasising the corruption inherent in government systems.
At paragraphs 36 - 38 the report noted:
During her interview, Ms Blanchard appeared to be in a heightened state of arousal and made many grandiose statements which were not challenged by the writer. For example, she reported that she had commenced a (omitted) business to support herself and given that her clients are “millionaires” she has grown a very profitable business and can lavish thousands of dollars upon the children.
Ms Blanchard also reported that she has returned to education and has completed “ten degrees and all the diplomas under these degrees, I have a law degree, a Social Work degree, an Environmental Science degree and others”. The writer was unsure whether Ms Blanchard was attempting to fabricate her level of success or whether she was suffering from deluded thoughts.
Ms Blanchard spoke negatively about Mr Bean throughout the entirety of her interview.
At paragraphs 39 – 40, the report continued:
Ms Blanchard reported that she will continue to fight for [X] to be removed from his father’s care as she could not identify any positive traits in Mr Bean and felt that “the system” had neglected [X] by placing him in the care of Mr Bean. Ms Blanchard stated that her older boys, [D] and [C], had been placed back into her primary care and she believed that this reinforced that she is a safe and appropriate carer. Ms Blanchard confirmed that she has subsequently severed [C] and [D]’s relationship with their maternal grandmother and indicated that once [X] is returned to her primary care that it is her intention to sever his relationship with his maternal grandmother also.
In outlining her views and wishes for the future, Ms Blanchard demonstrated limited insight into the impact [X] being removed from his father’s care and severing this relationship with his father and maternal grandmother would impact him.
At paragraph 46, the report noted:
In summary, Ms Blanchard spent the majority of her interview criticising the legal system and expressing her displeasure that [X] was still living in his father’s care. She seeks that [X] immediately return to her care to protect him from the negative influences of his father. In the event the Court returned [X] to her care; Ms Blanchard reinforced that she would be unable to say anything positive about Mr Bean in the presence of [X] stating “he is a joke.”
The report went on to record the interview with [X]. Relevantly, [X] stated that he enjoyed visits with his mother at (omitted family relationship centre). Living with his father for two years was good. He had bad memories of living with his mother and brothers before that. At paragraph 51 the report noted:
The writer indicated they were curious about what bad things he had remembered his mother’s house and [X] spent significant time discussing his experiences of violence, particularly around his mother’s ex-boyfriend Shannon. [X] recalled his mother smashing a car window with a bat and “bad people” coming into the home. It did not appear that [X]’s memories had been rehearsed.
Having noted that [X] would like to spend more time with his father which will enable him to go fishing (paragraph 52) and [X] believed that his mother wanted him to return to live with her the report noted at paragraphs 53 - 54:
[X] and provided further examples of violence within his mother’s home such as “a man kept coming throwing bottles at the car, the back window smashed and the glass hit me”. [X] also discussed being exposed to her mother yelling and using aggressive language (naughty words) towards her father [Mr R] (Mr R?) which made him feel scared.
[X] also remarked that his mother used naughty words about his Nan, his father and many other people. [X] is aware that his mother does not like him to be around his father as she does not like him. He expressed disappointment that his brothers have now returned to live with his mother as he used to enjoy spending time with his brothers at his Nan’s home.
The report then recorded [X]’s time with his mother which was loud and boisterous. By the end of the session [X] appeared fidgety and boisterous, something that the father indicated was common following spending time with his mother (paragraph 60). At paragraph 61 the report recorded:
The observation sessions between the parents highlighted [X]’s differing behaviours and emotional state. When he was brought in by his father in the morning, [X] was quietly spoken and calm. He was able to focus on questions asked of him by the writer and could discuss difficult topics in an open and genuine manner. However, after spending a short period with his mother, [X] appeared agitated, hyperactive, unfocused and after the hour’s session experienced difficulties in accepting direction from authority figures.
The matter is again encapsulated in part at paragraph 64 of the report as follows:
Ms Blanchard has two older children from a previous relationship, [C] and [D] aged 11 and 12 years who spend no time with their father. [X] was first notified the Department of Health and Human Services as an unborn baby report. This notification was due to Ms Blanchard’s extensive involvement with child protection about her older two children who were subject to a Supervised Custody Order resulting in them being removed from Ms Blanchard’s care for two years due to their exposure of family violence and substance misuse.
The report then traversed the father’s historical alcohol use (leading to an Interlock for a time) and the incident in May 2015 that led to [X] going to his father. I note that since [X] was living with his father (paragraphs 67 - 68):
Since this time information provided by Mr Bean and the Department of Health and Human Services indicated that [X] had made significant dramatic improvements in his overall presentation, skill development, fine motor skills and language development since he has been placed in his father’s care.
There has been a reported improvement in [X]’s regular attendance at kindergarten/school where he is now being toilet trained and has started to socialise with his peers. According to reports from [X]’s educational professionals, [X] was previously exposed to Ms Blanchard’s inappropriate conversations about Mr Bean, and they often observed Ms Blanchard presenting in an erratic and aggressive and irrational manner within the school environment.
Having noted at paragraph 69 significant behavioural differences in [X] during observation sessions with each parent, the report continued at paragraphs 70 - 73:
Ms Blanchard advocated that [X] is returned to her primary care and was critical of the legal systems which she believed wrongly removed him from her care. She advocated there had never been any safety concerns for [X] living primarily with her believing that the Court has discriminated against her due to her mental illness.
During her interview, Ms Blanchard demonstrated limited insight into the impact her historical violent and erratic behaviours have had upon [X]’s experiences of trauma and neglect. Ms Blanchard presented as highly aroused, agitated and she reported some deluded or grandiose beliefs.
Consistent with the report to the Federal Circuit Court made by the Department of Health and Human Services dated 15th July 2015 this assessment supports [X] living in the primary care of his father where he appears to have settled and is thriving in this emotionally secure environment.
The Court may need to consider the amount of time [X] spends with his mother and half-brothers to maintain his significant relationships and under what conditions. Ms Blanchard has a significant history of dependency on illicit substances which is likely to be detrimental upon her existing mental health issues. Notwithstanding this history, she announced that she was not going to comply with orders requiring her to complete supervised drug screens.
The report went on to note that all of the relevant information suggested it would be in [X]’s best interest to spend time with his mother in a supervised environment albeit a long-term useful contact facility would not be feasible. The report noted the father’s suggestion that the mother spend limited amounts of unsupervised time with [X], with his own mother and brothers. The report recommended sole parental responsibility to the father and primary residence with him also with [X] spending time with his mother during the first weekend of each month for a period of up to six hours.

It should be noted that Ms A’s references to the DHHS materials are, in my opinion, consistent with them.
It should also be noted that in her second affidavit the mother asserted that Ms A was not an independent professional because she knew her former husband. This assertion was not pursued in cross-examination.

The Parties’ Materials

The mother has filed only three affidavits in the proceeding. The father has filed far more. None of these materials in my view take the matter any further. They are in my view wholly adequately traversed by the history set out in Ms A’s family report. The mother had sufficient to say about the father’s alleged historical drug use and his alleged dependency on alcohol and a propensity to allege violence. The father likewise in reverse. It is not necessary for these purposes to say more than that but rather it is appropriate to move to the evidence given at Court. What follows is taken from my notes.

The Evidence of the Father

In evidence-in-chief the father adopted his affidavits as true and correct.

The Father Under Cross-Examination by Counsel for the Mother

The father was taken to paragraph 76 of the family report. He admitted that he had told Ms A that [X] might benefit from spending limited periods of unsupervised time with his mother and brothers to enable them to participate in active structured activities such as attending a movie, 10 pin bowling or the like. He said there were risks in the mother’s lifestyle but it was important that [X] have a relationship with [C] and [D]. [X] tells the father about their conduct. There was a past history with the mother’s partner and former husband and [X] says he does not feel comfortable with Mr R. He admitted he had himself a significant history involving prior use of alcohol and drugs but had now stopped. He lost his licence for what he described as a low range driving charge. He had to install an Interlock for six months. He has no medication for his back injury. He recently undertook a procedure which was described as being in the trial process which was initially painful for him. He is doing Pilates and is in pain.
When it was put to him that further supervision could not work and would lead to the mother spending no time with the child, the father said he understood this. He said the mother should undertake drug screens and address her family violence issues. (Omitted family contact centre) cannot continue supervision. When [X] returns from time with the mother he is often disgruntled and plays up and is confused and upset. The father said he was quiet but the mother was more boisterous. [X] was soft and gentle and shies away of people who are loud. The mother should see [X].

The Father Under Cross-Examination by Counsel for the Independent Children’s Lawyer

The father conceded that it was in [X]’s best interests to spend time with his mother and that he accepted that (omitted family relationship centre) could no longer continue. He was not sure who could supervise. He had not made any inquiries to any agencies. Supervised time is necessary. He had thought (omitted family relationship centre) could continue until the day of the Court hearing. He said [X] benefits from time with his mother. Unsupervised time could start after six months. He was aware the mother had returned two positive drug screens. He said the mother would not change. He said he could not talk to her. There had been Intervention Orders but there were none now. There were no prospects of good communication between him and the mother. He said there could be contact by email or it could be via text. He said originally the paternal grandmother had undertaken the contact with the mother. He had had no communications with the mother since 2014.
The father denied using cannabis. He said this had been the case for years. He said he had never dealt cannabis and stopped cannabis before he saw Ms S for the previous family report. He is a part-time (occupation omitted) working between 9.30am and 2.30pm and can take and does take [X] to and from school each day. His work is casual. [X] is in grade 1 at (location omitted) and doing well. He has friends and plays (omitted).
The father was cross-examined about his consumption of alcohol. He said he drinks light beer and might have four to five but not every day. He conceded he told Professor S he drank four to six cans of full strength beer. He said he certainly did. This was in April 2017. This might be five days a week in the evening. He says he has now changed and has better things to do with his life. He has lost interest in beer. He has never read any of the mother’s affidavits or at least not recently. He was not convicted of dangerous driving and has never taken intravenous drugs. He then qualified this assertion and said he had used in his late teens. He got hepatitis C from tattoos but had never been violent to the mother. He conceded some excess drinking during his relationship with the mother in 2010. He denied the allegation that he had urinated on her.
In re-examination, the father denied having any criminal history. This presumably excludes his drink driving record.

The Mother

In evidence-in-chief, the mother adopted her three affidavits as true and correct. She said that [D] and [C] were with her own mother when she was in jail. She recommenced supervised time with them when she was released. [C] was born on (omitted) 2004 and is 13 and [D] on (omitted) 2005 and is 12. The children came to her after they spent unsupervised time with her at a library. In the ultimate, they were returned fully to her care by 3 December 2016. The mother says she has not undertaken any drug screens, although DHHS had asked. She said this was against human rights. She referred to having been given genital warts by the father. There has been no recent DHHS involvement.

The Mother Under Cross-Examination by Counsel for the Father

The mother conceded there was a significant age gap between [D] and [X]. She admitted high levels of cannabis use every day in 2010. She said she smoked out of a bong a couple of times a day. She said it was joint use in 2010. She still continues to consume cannabis. She smokes on her own and with friends and with Mr R. She still uses one to two grams per day. She smokes in her bedroom.
The mother said that her mental health has changed since she was in jail. Smoking makes her healthier. When taken to paragraph 51 of Professor S’s report, which suggests that she had previously popped pills, she denied saying this and asserted that she did not believe in chemical pharmaceuticals. She had not told Professor S that she used to pop pills so everything would be all right. She said she did not see the relevance of drug screens. She has smoked dope both before and after the birth of [X].
Cross-examination as to her time in (omitted) was ceased on the concession of counsel for the mother that she was undergoing a psychotic episode. The mother said she was presently engaged with a psychologist and said she could give the address. She had a mental health plan in place.
There was an incident between her and her brother in 2013. She threw rocks at his car and was assaulted by her brother. All the children were there. She had baseball batted a friend’s car in November 2014. This was another assault in front of [X]. She still lives in the same house in (location omitted).
In May 2015, she had been visited by the DHHS but they did not come in. No order was made against her. She said it was a police conspiracy against her that had sent her to jail. She went to jail for the baseball bat incident and found this out when she left the jail.
The mother said there was no affidavit from her boyfriend, who lives with her. She wanted [X] to live with her. She said in relation to Mr R rhetorically, “What’s he got to do with it?”. Her other two children had been placed with her when Mr R was living with her. [X] had not visited her in jail because he was not allowed to. She takes no medicine for bipolarity.
Her business is going well. It made a loss this year because she bought a car. She cannot afford supervision. She is earning $75 per fortnight at the moment. She could afford supervision during the peak periods of her work when she earns hundreds of dollars per week.
The older two children were removed from her care while she was in jail and also in 2010. It is good that the children see the maternal grandmother. She did not accept that this was not what was recorded in the family report. She said [X] would not miss the maternal grandmother. [X] was programmed to receive bad memories. She could not say that [X] would remember an assault when he was three. She asserted [X] was programmed to remember things. [X] does not know who Mr R is. She showed him photographs of him in April 2017.

The Mother Under Cross-Examination by Counsel for the Independent Children's Lawyer

The mother said that marijuana is a great antidepressant. She has done her own research. The older boys know she uses cannabis. An appropriate age at which to start to consume cannabis would be adulthood.
The mother works three to four days per week, but makes her own hours. Mr R lives with her but does not work as he has a bulge in his back. She said cannabis never killed anyone. She keeps cannabis cookies. She has cannabis oil in the freezer. Her oldest son is not even into drinking yet.
She starts smoking in the morning and continues throughout the day. She wants [X] returned and has brought paintball tickets to this end. Her relationship with the father has been over for the last few years. It was not good at the start. She has the right to be in [X]’s life. She has had no communication with the father since 2014. She has no problems communicating with anyone. It is possible that there could be a shared care arrangement. She said she wanted her son’s life back. She is on a carer’s pension. She said she would work her butt off to pay for a supervisor, but would be paying for someone who is not needed. She would attend if the Court were to order six hour times and would bring the older boys. She would be under the influence of cannabis. She drives whilst stoned. She would have no qualms driving [X] while she was stoned. She has only undertaken two drug screens, both of which were positive. She felt sick during these screens. She accepted that there were 31 requests for such screens. She stopped access to [X] because the father put him at risk. She conceded breaching Court orders as to time, but said she was protecting her child. She said she could not say what would happen in relation to Court orders in the future, but would protect her child. She was unable to say anything positive about the father.
She was last at the (omitted) Magistrates Court the preceding month and was fined. Her Community Corrections Order was finished. She breached an Intervention Order, but could not say how. She ultimately accepted the police records which have been tendered. In relation to the incident with her friend, she baseball batted her car after the friend damaged her car. Her children were at home at the time and it was not good for them.
The relationship between the older boys and [X] changes every day. They could see [X] with her own mother, even if she herself was not there. There was no re-examination.

The Evidence of Ms A

Ms A adopted her family report as exhibit G1.
Under cross-examination by counsel for the Independent Children's Lawyer, Ms A confirmed that she had clarified the recommendations. The only reason she had recommended unsupervised time was because the father was comfortable with it. It would be appropriate to have supervised contact continue, but time as agreed also. But the time would have to be for acceptable activities with the siblings. This would be at the father’s discretion. There had been no communication between the mother and father since 2014.
Ms A accepted that [X] had had a good time with the mother since March 2016 but (omitted family relationship centre) would not continue. Time with the mother was important, and with the other two brothers. Ms A noted that contact could be otherwise than face to face such as, for example, by phone (or, as I would find, by Skype).
The mother was aggressive and showed a lack of insight. [X] had already seen a lot of conflict and was at risk. He was a sensitive child. [X] had good memories of his time with his mother when the time was supervised. [X] had not been coached before the interview. His enjoyment of time at (omitted family relationship centre) was not consistent with his having been alienated.
Under cross-examination for counsel for the father, Ms A said frequent short time with the mother was not necessary and would be harmful for [X]. Ms A was concerned that the mother would denigrate the father. The mother is clear that [X] should not be living with his father, and says [X] is unsafe with him. The mother would regard herself as acting proactively by withholding [X].
Under cross-examination by counsel for the mother, Ms A confirmed that the mother had showed [X] photographs. Ms A had not seen who they were and was not able to say if [X] knows who Mr R is. She said the mother had not functioned well when she saw her. She was erratic and agitated. This could be marijuana or could be a psychotic state or a mixture of the two. The older two children are now with the mother. Ms A would be concerned if the father blew .05 while the child was in his care. The father should engage in drug and alcohol counselling. Ms A would like [X] to see the other two children.

The Witnesses

The father was generally a good and careful witness who answered questions directly, even when they were overtly to his detriment. He did not seek to underplay his own past misdemeanours and his behaviour in the witness box was calm and creditworthy. I formed the clear impression he was a careful and honest witness.
I regret to say that the same cannot be said of the mother. Her answers were given in an exceptionally loud voice. The mother’s evidence was given in a highly agitated way and she was unrestrained in her tenor of voice and demeanour. The assertion that she went to jail because of a police conspiracy is perhaps a good exemplar of the somewhat outlandish nature of her answers on occasions. She was aggressive and argumentative and particularly dismissive of her own mother. A number of her answers were rambling and difficult to follow, particularly in relation to her communication skills. She has clearly breached past Court orders in 2015 and would plainly do so again, were the occasion to arise. Aspects of her evidence were completely delusional (as to her earnings and degrees, for example). She was a witness whose evidence must be approached with the very greatest caution.
Whilst Ms A’s report is clearly critical of the mother, and I have noted the not pursued allegation of possible bias, and while it is clear that Ms A formed an adverse view of the mother’s behaviour, I have to say that Ms A’s observations about the mother’s behaviour are entirely consistent with the mother’s behaviour in Court. Ms A was not moved in cross-examination and I should make it clear that I accept her evidence.

Findings on the facts

The parties had a brief relationship in 2010, which led to the birth of [X]. Both parents were significantly substance abusing at the time. The father has stopped and the mother has not only not stopped, but has no intention of doing so. She has used cannabis all her adult life, it would appear, and has every intention of doing so. Not only does she not hold it to be pernicious in any way, but rather she says it is beneficial. It would seem that every time she drives, she is under the influence of marijuana and has no concerns about driving the children while in this condition.
The mother’s life has been marked by significant incidents of family violence, some of which [X], as Ms A asserts and I accept, actually remembers.
Following separation, [X] lived with his mother until 2015. It seems that communication between the parents came to a near total, if not total, end in 2014. Neither of them foresee any capacity for this to improve.
All three of the mother’s children were removed from her in 2015, when she was jailed for a period of time. [X] has lived with his father ever since. While his half-siblings were in the care of the maternal grandmother until December 2016, [X] saw them frequently, but the mother has deliberately ceased that contact since. She has stopped the children spending any time with the grandmother. She proposes to cease [X]’s relationship with his grandmother, if he lives with her.
The mother is in a relationship with somebody called Mr R (spelt various ways), who has not been put on affidavit because the mother fails to see the need for it. The mother, according to [X], uses bad language to and about a number of other individuals, including his grandmother and his father.
[X] is well looked after by his father, and since the move to his father, his schooling and general wellbeing appear to have improved markedly. The father’s quieter style is plainly better suited to [X]’s sensitive personality, and it is no surprise, in the light of Ms A’s observations of [X] with his mother, that he is often difficult and unsettled when he returns from time with her. Notwithstanding all the difficulties, however, [X] does like seeing his mother and has enjoyed the supervised time he has spent at (omitted family relationship centre). That time has now ceased.
The mother says at one and the same time that she makes very large sums of money and that she cannot afford supervision. She has said words to the effect that she would work hard to try and ensure that supervised time occurred, but the impression I got of her lifestyle is that it is so chaotic that diligent application is likely to be at the very least difficult for her.
Having made these findings, I come to the statutory pathway. The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:
“Summary
[65]    In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).
7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)     the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)     days that do not fall on weekends and holidays; and
(b)     the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)     occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.     The child’s best interests remain the overriding consideration.”

Equal Shared Parental Responsibility

This is a case in which the presumption in favour of equal shared parental responsibility is clearly rebutted. There is an obvious and significant need to protect [X] from the risk of harm, both physical and psychological, in his mother’s care. Not only that, but the complete breakdown of interparental relations sounds strongly against the imposition of equal shared parental responsibility. The father is making, it would seem, a far better fist of bringing up [X] than his mother is capable of, and it is plain that [X]’s best interests would, in these circumstances, be met by giving the father sole parental responsibility. That is the position also of the Independent Children’s Lawyer, and I agree.

What Time Regime is in [X]’s Interests – The Primary Considerations

Everyone agrees in this case that it is of [X]’s benefit to have a good and meaningful relationship with each of his parents. The father’s concessions in this regard, in the face of the mother’s continued and unceasing denigration, do him great credit. Nonetheless, there is plainly a need to protect [X] from the risk of abuse, and this is a factor that requires greater weight (section 60CC(2A).

The Additional Considerations: Section 60CC(3)(a)

[X] clearly enjoys living with his father, and said that living there for the last two years was good (Ms A paragraph 50). Despite having bad memories of living with his mother before that, he enjoys spending time with her at (omitted family relationship centre).

Section 60CC(3)(b)

[X] obviously has a secure and established relationship with his father, and reasonably so also with his mother. For all her limitations, she has been his substantial carer during significant periods in his life. It is also clear that [X] enjoys time with his step siblings and with his grandparents.

Section 60CC(3)(c)

Both parties have chequered histories in this regard. The father presumably played little role in the making of decisions about the children when he was spending reduced time with him, but it is fair to say that he has sought to spend time with [X] and to communicate with him throughout his life. More particularly, since 2015 he has been the primary carer. The mother has, of course, been limited in her time with [X], both by her time in jail and subsequent Court orders. She still desires [X] to live with her.

Section 60CC(3)(ca)

The mother, conducting herself in such a fashion as to be sent to jail, plainly failed [X] on that occasion. The father’s conduct has been unobjectionable.

Section 60CC(3)(d)

It seems highly probable that [X]’s more stable regime with his father has been of benefit to him. Were he to be removed from his primary care, the effects are likely to be deleterious. If he goes to his mother, she will prevent him from having any relationship with his paternal grandmother, whom he loves. He would, however, of course, spend more time with [C] and [D]. He would also be spending time with the mother’s partner Mr R, about whom, to all effects and purposes, little or nothing is known.

Section 60CC(3)(e)

There is considerable practical difficulty associated with the expense of supervision. If time cannot be spent with the mother unsupervised, as I find, there will be no time with her at all. This will sunder his relationship with his mother and that with his half-siblings as well.

Section 60CC(3)(f)

The father has done very well. He has turned his life around and is now a good and capable carer of [X], well able to provide for his needs. The mother’s florid personality, and her utter lack of insight about the need to promote a relationship with the father, address her marijuana use, and her determination to sunder [X]’s relationship with his grandmother, suggest an insight-less incapacity to provide for the child’s needs, as opposed to prioritising her own. The incidents of violence to which she admits further suggest a real difficulty in providing a safe and controlled environment in which the children can live.

Section 60CC(3)(g)

In large part, this replicates the previous criterion. The father, as indicated, has got his act together and has a mature and sensible lifestyle. The mother does not, for the reasons given. It is important to remember the unchallenged evidence in Professor S’s report (at paragraphs 95 – 96), referred to in submissions of the Independent Children’s Lawyer at paragraph 12:
In my opinion, based on my assessment of the mother, there is ongoing impairment in the mother’s parental capacity and parenting ability due to the regular use of cannabis underpinned by the mother’s personality and psychological vulnerabilities and possibly psychiatric factors…..
Based on the history obtained, the findings on mental state examination of the mother and review of the supplied documents, the mother’s substance use (cannabis use disorder) and personality factors has limited, and does limit the mother’s parenting ability and long term parental capacity’

Section 60CC(3)(h)

This is not relevant.

Section 60CC(3)(i)

This is always an important subsection, but, as so often, it has already been addressed in the paragraphs above.

Section 60CC(3)(j)

There is all too much documented violence in the mother’s life. While she portrays herself entirely as the victim, it needs to be borne in mind that on her own admissions, she has committed acts of violence herself. Her assertions that her jail sentence was the subject of a police conspiracy, a matter already commented on more than once, perhaps gives some insight into the accuracy of her perceptions. Some of the incidents of family violence have taken place in [X]’s care, and this is a particularly concerning matter.

Section 60CC(3)(k)

There have, of course, been Intervention Orders in the past, but none are presently extant, and while important, they do not take the matter further.

Section 60 CC(3)(l)

It is plainly desirable to make final orders.

Section 60CC(3)(m)

The mother’s criminal record is concerning. On her own version of the events, her time in the courts has only just come to an end. This does not forebode well.

Conclusion

In the circumstances, it is beyond doubt that the child should live with his father. The mother’s time should be as indicated in the submissions of the Independent Children’s Lawyer, which are supported by the father.
I have drawn orders to give effect to these conclusions.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 17 November 2017

[2017] FCCA 2632

17 November 2017

Key Legal Topics

Areas of Law

Family Law