Cavill and Jessop

[2012] FMCAfam 784

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAVILL & JESSOP [2012] FMCAfam 784

FAMILY LAW – Relocation – child aged 8 years and 10 months – mother removes child from [P] district to [G] district – distance of about 260 kilometres or about 4 hours driving time – both parents suffering from mental health issues – father’s time with child obstructed by mother – poor communication between parents – best interests of child – change of residence warranted.

Family Law Act 1975 (Cth) – Part VII

D & SV [2003] 30 Fam LR 91; FLC 93-137
Pascale v Pascale (1999) FLC 92-878; 25 Fam LR 607
Goode & Goode [2006] FamCA1346; (2007) 36 Fam LR 422
Taylor & Barker [2007] FamCA1246; (2008) 37 Fam LR 461
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92, (2009) 41Fam LR 483
G & C [2006] FamCA 994
MRR v GR [2010] HCA 4; (2010) 42 Fam LR 531

Applicant: MR CAVILL

Respondent: MS JESSOP

File Number: NCC 2503 of 2010

Judgment of: Coakes FM

Hearing dates: 17, 18, 24 July 2012

Date of Last Submission: 24 July

Delivered at: Newcastle

Delivered on: 16 August 2012

REPRESENTATION

Solicitor for the Applicant: Mr M Lindeman

Solicitors for the Applicant: Lindeman Lawyers  

Solicitor for the Respondent: Ms C Kelly

Solicitors for the Respondent: Byrnes & Cox Lawyers

Solicitor for the Independent Children’s Lawyer: Ms T Flintoff   

Solicitors for the Independent Children's Lawyer: Flintoff Lawyers   

ORDERS

1. All previous parenting orders are discharged.

2. The parents have equally shared parental responsibility for the child [X] born [in] 2003 (“[X]”).

3. Each parent is to have sole parental responsibility for making decisions about [X]’s day to day care, welfare and development whilst she is in his or her care respectively.

4. The parents are to consult each other in relation to any long term issue affecting [X] and are to make a genuine effort to come to a joint decision about issues concerning her care, welfare and development of a long term nature which include (but are not limited to) issues of that nature about:

   (a)[X]’s education both current and future;

   (b)[X]’s religious and cultural upbringing;

   (c)[X]’s health;

   (d)[X]’s name;

   (e)Changes to living arrangements for [X] that make it significantly more difficult for [X] to spend time with either parent.

5. [X] live with the father.

6. [X] spend time with the mother as agreed between the parents but failing agreement as follows:

   (a)From 5.00pm on Friday to 3.00pm on Sunday every third weekend during school terms, commencing on the second Friday after the making of these orders;

   (b)For half of each of the NSW term 1, 2 and 3 school holidays, and for 2 non-consecutive weeks in the Christmas school holiday period as agreed but failing agreement for the 1^st and 4^th week of the Christmas school holidays;

   (c)From 5.00pm on Friday to 3.00pm on Sunday on Mother’s Day weekend.

7. The time in Order 6 is suspended if [X] is due to be with the mother for the Father ’s Day weekend in which case [X] is to spend time with the father from 5.00pm on Friday to 3.00pm on Sunday on Father’s Day weekend.

8. The changeover for the time in Order 6 shall occur at Interrelate Family Services, [C].

9. [X] is to have telephone communication with the mother once per week between 6.30pm and 7.00pm to be implemented by the mother telephoning the father on his landline or mobile telephone number at the mother’s expense and with the father to ensure that [X] is available to speak to her mother, and if by mobile telephone the father to ensure his mobile telephone is positioned such that it is able to receive telephone calls, is not otherwise being used or engaged, is not diverted to a telephone answering service and with the battery charged.

10. Each parent is to inform the other of any change of particulars of that parent’s residential address, landline telephone number, mobile telephone number, and if applicable, email address and facsimile telephone number and within twenty four (24) hours of any such change occurring.

11. Each parent is restrained from consuming alcohol or illicit substances for the period 12 hours prior to and during the time [X] is in the care respectively of either parent.

12. The mother is restrained from bringing [X] into contact with Mr N, and is further restrained from causing or permitting [X] to be in the same premises which Mr N may occupy or stay temporarily in from time to time.

13. During any time [X] is living with and spending time with the father he is restrained from taking [X] to any premises where the consumption of alcohol is permitted upon such premises and which are licensed for that purpose including but not limited to a hotel, motel, club, restaurant and wine bar.

14. Each parent is restrained from denigrating the other parent in the presence or hearing of [X] including making rude comments, making insulting comments, swearing at, shouting at and making obscene gestures and each parent is further restrained from causing or permitting any other person from engaging in such behaviour in the presence of [X].

15. Each parent is to notify the other parent as soon as possible by the best available means in the event of any of the following occurring:

    (a)[X] being seriously injured or falling seriously ill;

    (b)[X] requiring urgent medical treatment from a Doctor or Ambulance crew;

    (c)[X] being involved in an accident or admitted to hospital.

16. Not later than 14 September 2012 the father is to do all acts and things necessary to ensure that [X] attends upon a general practitioner to seek a referral to a psychologist under the GP Mental Health Care Plan Scheme to address any problems that [X] experiences in having a change in her residence, and the father is to ensure [X] attends all scheduled appointments for that purpose.

17. The parents must engage with and attend upon their respective treating general practitioners and if deemed necessary by that general practitioner, their treating psychiatrist for ongoing review of their mental health and each parent is required to take any medication for as long as is deemed necessary by such treating Doctor and Psychiatrist.

18. Each parent must notify the other parent as soon as reasonably practicable of their becoming mentally unwell including admission to a mental health ward on a voluntary or involuntary basis, and/or becoming subject to a community treatment order.

19. Not later than 14 September 2012 the parents must each seek a referral to a drug and alcohol counsellor and attend all sessions that the counsellor requires of them, including participating in any urinalysis drug testing that may be required of them, with a view to such counselling assisting the parents to abstain from drug and alcohol use and abuse.

20. The father is authorised to release a copy of the family reports of Mr P published on 20 June 2011 and 4 June 2012 to his drug and alcohol counsellor and GP and any other medical specialist he consults.

21. The father is to ensure that [X] has a 95% per school year school attendance rate and must provide the school with a reason for any absences.

22. Within 14 days the father is to do all acts and things necessary to seek a referral to the Brighter Futures Programme run by the Department of Family and Community Services or its delegate and engage in that programme so long as deemed necessary by the programme provider. In the event that Community Services or its delegate is unable to provide services within 2 months of the date of this order, the father is to do all acts and things necessary to seek a referral to [omitted] Family Support Service, [P]. The father must provide a copy of the Court order to Brighter Futures or its delegate, or Burnside.

23. Within 3 months of the making of these orders both parents are to provide the Independent Children's Lawyer with proof of their compliance with orders 16, 17, 19 and 22.

24. The Independent Children's Lawyer is appointed for a further 6 months to monitor compliance with these orders and has liberty to re-list the matter on 72 hours notice in the event of non-compliance by the parents with orders 22 and 23.

25. Both parents are to consult with a Family Dispute Resolution Practitioner at a Family Relationships Centre or elsewhere or such other Family Consultant who may be agreed between the parents to assist with;

    (a)Resolving any dispute between them as to the terms or operation of these Orders;

    (b)Reaching an agreement about any changes to be made to these Orders arising from any change in the needs or circumstances of [X] or either of the parents, in the event that any such dispute or disagreement arises concerning such changes.

26. Each parent is restrained from making an application to the Court for variation of these Orders arising from any of the matters referred to in Order 25(b) above without first having complied with Order 25 above in relation to such matters.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

NCC 2503 of 2010

MR CAVILL

Applicant

And

MS JESSOP

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parents of the one child of their relationship, [X] who is now 8 years and 10 months of age met in 2001 in the [omitted] Hospital, a Psychiatric hospital in Newcastle.

2. The parent’s relationship began in either 2001 or 2002 and they lived together, largely in the [P] district until separation in early 2009.

3. [X] was born [in] 2003 and is now 8 years and 10 months of age. She is now a pupil in Year 3 at [W] School near [M] near [G] to which the mother moved on 23 April 2012 without the consent of the father and without any prior consultation with him.

4. On the evidence before me, it is a journey of about 4 hours by road between [M] and [P] and is about 260 kilometres. Both parents have children by previous relationships and both parents suffer from different forms of mental illness.

The respective applications at the hearing

1. The father sought orders in accordance with his amended initiating application filed 3 April 2012, namely that [X] live with him and that she spend supervised time with her mother two hours each week at Interrelate.

2. The mother sought orders in accordance with her amended response filed 23 April 2012, in summary that [X] live with her at [M], in the [G] district, that she have sole parental responsibility for [X] and that the father spend supervised time each Saturday at Interrelate [C] for such periods as the contact centre offers, and that the father complete a parenting course and be restrained from consuming alcohol to excess during a period of 12 hours prior to spending any time with [X].

3. The Independent Children's Lawyer, upon the completion of the evidence prepared a draft minute of proposed orders to the effect that the parents have equally shared parental responsibility, that [X] live with the father and spend time with her mother, unsupervised, every third weekend during school terms and for half the school holidays with two weeks at Christmas with changeover to occur at Interrelate Family Services at [C].

4. The Independent Children's Lawyer also proposed weekly telephone communication and a number of other practical parenting orders and restraints that both parents not consume alcohol or illicit substances 12 hours before and during the time [X] was in the care of either of them and that the mother also be restrained from bringing [X] into contact with Mr N and also be restrained from permitting [X] to be in the same household occupied by Mr N from time to time.

5. The Independent Children's Lawyer also proposed a number of measures to ensure both parents continue to obtain appropriate medical assistance for their respective illnesses and that both be referred to a drug and alcohol counsellor for counselling.

Existing Orders

1. On 20 August 2010 interim consent orders were made in the Local Court at [P] pursuant to the father’s application for parenting orders filed 12 August 2010, to the effect that the parents have equal shared parental responsibly, [X] live with the mother and spend time with the father on the first Saturday of the month for two hours at MacDonald’s at [suburb omitted] (Western Sydney) in the presence of the mother’s brother, Mr J and for the father to spend further time with [X] when she returned to [P] from after school Friday until 4.00pm on the Sunday with the father to implement. At that time [X] was living temporarily with her maternal uncle while the mother was hospitalised.

2. On 20 July 2011, interim orders were made in this Court providing for the previous parenting orders to be set aside, for [X] to live with the mother and for her to spend supervised time with the father each weekend at Interrelate at [P] and with telephone communication on Tuesday and Thursday evenings and with the mother restrained from allowing Mr N to stay overnight at her home.

3. On 15 February 2012 orders were made in this Court suspending the orders of 20 July 2011 and providing for the father to spend unsupervised time with [X] each Saturday between 9.00am and 5.00pm and telephone communication Monday, Wednesday and Friday evenings and with the father’s time to be implemented by collecting her from her school at 9.00am and returning her to the mother at the same place at 5.00pm.

4. On 9 May 2012 interim consent orders were made in this Court that the father spend time with [X] at Interrelate on Thursday 10 May 2012 and Saturday 13 May 2012.

5. On 24 July 2012 at the conclusion of the hearing Orders were made by consent suspending the Orders made on 15 February 2012 that the father spend time each Saturday with [X] between 9.00am and 5.00pm which was to have been implemented at [L] School. Interim orders were made that pending delivery of judgment the father spend time with [X] each alternate weekend from 10.00am Saturday to 3.00pm Sunday, to be implemented on a rotating basis at Interrelate at [P] and Interrelate [C].

6. At the end of December 2011 a provisional Ex Parte apprehended violence order was made protecting [X] from the mother which on 23 January 2012 became an interim order.

7. On 13 February 2012 at [P] Local Court pursuant to the mother’s application an interim apprehended violence order was made in which the mother and [X] were the protected persons and the father was the defendant, and on 3 March 2012 the mother alleged that the father frightened [X] at change over contrary to the terms of the apprehended violence order.

8. On 23 April 2012 the Police withdrew the apprehended violence order application protecting [X] from the mother and the interim AVO order was revoked.

Background

1. The father is 42 years of age, is currently unemployed and relies upon disability benefits from Centrelink as his primary source of income.

2. The father rents a cabin at the [omitted] Holiday Park, [N] near [P].

3. The father has not repartnered.

4. The mother is 42 years of age and lives in rented accommodation at [M] to the east of [G] and on the coast.

5. The mother does not work but receives a carer’s pension from Centrelink for looking after Mr N who also receives disability benefits from Centrelink and lives at [omitted] Caravan Park, [location omitted] near [L], in the same district as [N] and where the mother also lived before she moved to [M] in April 2012.

6. It is an issue in the proceedings as to whether the mother has repartnered with Mr N.

7. The parties commenced their relationship in 2001 and separated in about March 2009 but the parties continued to occupy the same premises until April 2010 when both parents moved elsewhere. The parties did not marry.

8. [X] is the one child of the relationship.

9. The father was diagnosed with schizophrenia in about 1997 and in 1999 was admitted to the [P] psychiatric unit at the local hospital following an attempted suicide which in turn followed inappropriate use of medication and alcohol.

10. The mother suffers from a Bipolar disorder and was admitted to the [omitted] Hospital, a psychiatric division of the [omitted] Hospital in Newcastle in 2001, as was the father and which is where they met.

11. In 2007, the mother was admitted to the [omitted] Hospital mental health unit and in August 2010 the mother was admitted as an involuntary patient to the [P] mental health unit and remaining there until 1 September 2010.

12. In December 2010 the father was imprisoned for a drink driving offence for 4 months but reduced on appeal to 2 months leading to his release from prison in February 2011.

13. The father has four teenage children, two each from two separate relationships. His children [A] aged 16 years and [B] aged 14 years live in the [P] district and spend time with their father. There was little evidence before me concerning the father’s other children, [name omitted] aged 17 years and [name omitted] aged 12 years with the father telling Mr P that he did not spend much time with them whilst he was in a relationship with the mother in these proceedings[1].

    [1] Paragraph 22 of the first Family Report

14. The mother has three children of an earlier relationship of 14 years with Mr S, namely [name omitted] who is aged 21 years and a [occupation omitted], [Y] who is aged 20 years and lives in [P] looking for employment and [name omitted] aged 18 years who also lives in [P] and has occasional summer season employment locally.

The evidence

1. The father relied upon the following affidavits:

   a)His affidavit sworn and filed in [P] Local Court on 12 August 2010;

   b)His affidavit sworn 26 March and filed 3 April 2012;

2. The mother relied upon the following affidavits:

   a)Her affidavit sworn 12 June 2012 and e-filed 13 June 2012;

   b)Affidavit of Mr G, Psychologist sworn 4 June and e-filed 6 June 2012.

3. I also had the benefit of two Family Reports by Mr P, an experienced Regulation 7 Family Consultant, the first of which was published on 20 June 2011 following interviews with the parents and the child on 6 and 9 June 2011 and the second published on 4 June 2012 following interviews with the parents and the child on 21 May 2012.

4. Mr G gave evidence by telephone and was cross examined. Mr P gave evidence by telephone on the second day of the hearing and was cross examined.

5. I was able to listen closely to and observe both parents and Mr N as they gave their evidence both in chief and in cross examination. It was necessary for me to remind and warn the mother several times to answer questions being asked of her. The mother was often slow in responding to questions and I was left with the distinct impression that on some occasions she gave answers which she thought would assist her case but required further questioning to illicit a responsive answer.

The issues

1. It seems to me the issues are these:

   a)What are the appropriate parenting arrangements for [X] both in the short term and the long term, and in particular, should she remain living in [M] with her mother or in the [omitted] district with her father or her mother;

   b)What is the likely effect, both short term and long term for [X] if she remains living with her mother insofar as concerns her present relationship with her father;

   c)To what extent, if any, is the mother’s parenting ability affected adversely, if at all, by her bipolar disorder and her present state of health;

   d)To what extent, if any, is the father’s parenting ability affected adversely, if at all, by his schizophrenic disorder and his current state of health and in particular whether his health is affected adversely by the use of prohibited substances and inappropriate use of alcohol;

   e)If [X] lives with the father, whether the father is able to promote and implement [X]’s relationship with her mother;

   f)Whether the mother is in a relationship with Mr N and if so, the nature of that relationship and whether [X] is at risk in the presence of Mr N, and if so, the nature of such risk;

   g)To what extent is it relevant to consider both the mother’s ability to move closer to the father’s present place of residence or the father’s ability to move closer to the mother’s present place of residence;

   h)What are the advantages and disadvantages put forward by each of the parents;

   i)Given the respective proposals of each of the parents and the Independent Children's Lawyer should the Court endeavour to formulate different arrangements for the time [X] spends with each parent.

The relevant law

1. I have regard to Part VII of the Family Law Act and in particular the amendments which came into being following the Family Law Amendment (Shared Parental Responsibility) Act2006. The significant sections are, and to which I must have regard, s.60CA which provides that:

   “In deciding whether to make a particular parenting Order in relation to a child the Court must regard the best interests of the child as the paramount consideration.”

2. I must consider, in determining a child's best interests, the matters set out in s.60CC.  There are two primary considerations:

   “(2) The primary considerations are:

   a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

   b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”

3. There are a number of additional considerations in s.60CC(3) to which I must have regard insofar as they are relevant and I must also have regard to s.60CC(4). 

4. I must also have regard to s.60B which sets out the objects of Part VII and the principles underlying those objects.  I must have regard to s.61DA which provides for a presumption of equal shared parental responsibility when a parenting Order is made, save that the presumption does not apply when there are reasonable grounds to believe that there has been abuse of the child or family violence.  The presumption may also be rebutted if there is evidence to satisfy the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

5. The relevance of the presumption of shared parental responsibility where it does apply or is found to apply is that the Court is then obliged 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 best 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[2]. 

   [2] Section 65 DAA Family Law Act1975

6. It is also necessary for me to consider in the context of this case established case law in relation to relocation.  It has been held that relocation cases are not a special category of case.  The Family Law Act 1975 does not specifically mention relocation either in Part VII as it was or pursuant to the amending Act.  Cases involving relocation are best described as parenting cases where the proposal of one of the parties involves relocation[3]. 

   [3]  Pascale v Pascale (1999) FLC 92-878; 25 Fam LR 607 at para 40

7. I have regard to the High Court decision in U v U (2002)[4] in which the High Court said that:

   “Whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration of the welfare of the child if that were to be adversely affected by movement of a parent.”

   [4] U v U (2002) 211 CLR 238; (2002) FLC 93-112

8. In D v SV (2003)[5], the Full Court commented on the need to:

   “Evaluate all options to determine if the welfare of the children could fit into the mother's right to live where she pleased.”

   [5]D v SV (2003) 30 Fam LR 91 at 106; FLC 93-137 at 78290

9. The Full Court of the Family Court of Australia late in 2007 gave consideration as to the effect of the amending legislation upon relocation.[6] In that case Brewster FM permitted the mother to relocate with a 9 year old child to North Queensland from Canberra. The Full Court found that when considering the application of s.65DAA the matters which the Court has to consider under that section, being equal time or substantial and significant time, must initially be considered without regard to any relocation proposal which might also be before the Court.

   [6] Taylor & Barker [2007] FamCA 1246; (2007) 37 Fam LR 461

10. The Full Court went on to say that any relocation proposal will then have to be balanced against the option of equal time or of substantial and significant time if either of those options has been found to be in the child's best interests, with the outcome normally emerging from a consideration of whether such an arrangement was reasonably practicable.  The Full Court went on to say in paragraph 82:

    “We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter and that, at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child's living arrangements.”

11. At paragraph 83 the Full Court said this:

    “However, consistently with what the Full Court said in Goode, the options of the child spending equal time or substantial and significant time with each parent must now be given separate and real consideration notwithstanding that a relocation proposal may also have to be given subsequent consideration with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an equal time or substantial and significant time arrangement.  Not to approach a case involving a relocation proposal in this way would devalue the imperative imposed by the Act to consider whether it is in the best interests of the child in the case to spend equal time or substantial and significant time with each parent.”

12. It seems to me that there is a distinct shift toward the Court being required to consider in a much more practical manner how a child's development can be nurtured and promoted by being exposed to and enjoying in a beneficial sense all the aspects of living with each parent.  It seems to me that this requires an involvement in the whole of the ordinary household routine where it is appropriate.  See the Full Court decision of Goode v Goode[7]. 

    [7] Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422

13. I have considered also the decision in Mazorski and Albright [8], another case involving relocation where Her Honour Justice Brown after setting out the definition of “meaningful” and “meaning” said at paragraph 26:

    “What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.  I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.  It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.”

    [8] Mazorski & Albright (2007) 37 Fam LR 518; at 526

14. Section 60B (1)(a) in my view leaves no doubt as to the role to be played by either parent in having a meaningful relationship in the lives of their children.

15. In the Full Court decision of McCall & Clark[9] their Honours  Bryant CJ, Faulks and Boland concluded that there are three possible interpretations of Section 60CC(2)(a) finding that the preferred interpretation of the benefit to a child of a meaningful relationship is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant.[10]

    [9] [2009] Fam CAFC 92, (2009) 41 Fam LR 483

    [10] Paragraph 119

16. The Full Court rejected the notion that a Court should assume there is a benefit to all children in them having a meaningful relationship with both parents, finding that if the legislature had intended to elevate the benefit to a child of a meaningful relationship to a presumption, then it would have said so in clear and unambiguous language[11].

    [11] Paragraph 120

17. Her Honour Justice Bennett discussed the terminology in G & C[12] finding that the enquiry was a “prospective” one which requires the Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.

    [12] G & C [2006] FamCA 994

18. The Full Court accepted as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski (supra), and consistently with their conclusions also agreed with the reasoning of Bennett J in G & C (supra).

19. The Full Court also said:[13]

    “In reaching these conclusions, we also considered the legislation requires a Court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft Orders to foster a relationship with one parent if this would not be in the child’s best interests.”

    [13] Paragraph 122

20. I take into account also the judgment of the High Court in MRR v GR[14] and the requirement for the Court to consider the inherent difficulties for parents who live some distance apart and the consequent stress or other adverse impact which may affect either parent but more importantly the child and the reality of the situation required to be considered pursuant to Section 65 DAA(1).

    [14] [2010] HCA4; (2010) 42 Fam LR 231.

21. Consequently, I conclude that I am bound by the existing authorities, some of which I have referred to in the preceding paragraphs, and subject to the facts of this particular case.  It seems to me the amending legislation provides a new focus and emphasis on both parents being not only involved but substantially involved with the lives of their children except when it is or would be contrary to the child's best interests.

The Family Reports

The first family report

1. The author of the Family Reports was Mr P, a Regulation 7 Family Consultant with a number of years of experience. The first Family Report was published on 20 June 2011 with Mr P noting that [X] had continued to live in the primary care of the mother since the parents separation and with the father having spent only sporadic time with [X] in the preceding 12 months with the father asserting that the mother had not enabled [X] to spend time with him and with the mother asserting that the father had been disinterested.

2. At that time, the father told Mr P that he would like the interim orders of November 2010 to become final orders which would enable him to spend every fortnight weekend with [X] from Friday afternoon until Sunday afternoon as well as half of each school holiday period[15]. I infer the father meant the Orders of 20 August 2010.

   [15] Paragraph 10 of the first Family Report

3. The mother told Mr P that she required “clear and precise” orders to avoid any misunderstanding between the parents and expressing some concern as to whether [X] should spend overnight time with her father[16].

   [16] Paragraph 11 of the first Family Report

4. Mr P reported that as to the issues in dispute, it was reasonable to suggest that whilst both parents have had their own issues in relation to their respective health, and whilst each had sought appropriate interventions, there was a level of psychological fragility for each of them which was likely to impact on their long term parenting capacity[17].

   [17] Paragraph 15 of the first Family Report

5. Mr P observed that it remained incumbent on the parents to prioritise [X]’s psychosocial development which was only likely to be enhanced if both parents recognised the importance of maintaining non conflictual communication and with both parents ensuring that they met their legal commitments regarding the father’s future proposed time with [X].

6. Mr P also observed it was imperative that the mother did not take it upon herself to determine the father’s state of mental health at any point in the future unless [X] identified any legitimate risk of harm issues to the mother regarding the relationship between [X] and her father[18].

   [18] Paragraph 16 of the first Family Report

7. The evidence establishes, for reasons which follow that the parents have not been able to maintain non conflictual communication, and that the mother has failed in her obligation to ensure that [X] spends time with the father.

8. The father gave Mr P a history of his use of prohibited substances and alcohol and the medication for his schizophrenia. In his oral evidence at the hearing, he said that he continues to take Effexor with a daily dosage of 72mgs.

9. The mother gave Mr P a history of her mental illness with Mr P noting as is common with people who are diagnosed with Bipolar disorder, the mother did not believe that she suffered from such disorder[19].

   [19] Paragraph 34 of the first Family Report

10. Mr P noted that the mother was clear to say that her current treating Psychiatrist, Dr H was firmly of the view that she has Bipolar disorder.

11. The mother also gave Mr P a history of past use of prohibited substances including cannabis which she told Mr P intensified but then supposedly ceased prior to her admission to [P] mental health unit in August 2010.

12. Mr P noted that the mother admitted to the Clinical Psychologist who saw the mother in December 2010 that she had increased her cannabis usage to “30 – 40 cones daily” as well as her alcohol consumption to 20 standard drinks (but it is unknown over what period of time). The mother told Mr P that she then participated in drug and alcohol counselling for a 3 month period following her discharge from [P] hospital and that as at June 2011 she did not use cannabis and had not consumed alcohol every day but was “allowed to have one drink”[20].

    [20] Paragraph 36 of the first Family Report

13. Mr P made the observation that it was incumbent upon the mother, particularly given that she had the primary care of [X] that she not re-engage her use of cannabis and ensure that her alcohol consumption remained compliant with what had been told to her by the clinicians with whom she was involved[21].

    [21] Paragraph 36 of the first Family Report

14. Mr P made the observation that whilst it was reasonable to state that the mother had been [X]’s primary carer since birth it was reasonable to question the nature of the care that the mother had provided, and expressing the view that he could not have any great confidence in the mother’s ability to provide more appropriate parenting for [X] than the father at the time of the interviews (early June 2011)[22].

    [22] Paragraph 40 of the first Family Report

15. [X] told Mr P that her mother “screams” when she is angry and “occasionally” physically chastises her by hand[23].

    [23] Paragraph 43 of the first Family Report

16. [X] told Mr P that Mr N (later indentified as Mr N) and for whom the mother is the designated carer had been sleeping in the mother’s lounge room and whom [X] described as being “mum’s boyfriend”.

17. [X] told Mr P that Mr N “kicked mum in the bum once” whilst the mother and Mr N were having some verbal conflict. [X] also told Mr P that she had observed Mr N to be aggressive towards her mother adding “he doesn’t always take his pills but mum does”[24].

    [24] Paragraph 44 of the first Family Report

18. [X] told Mr P that she was aware that her father “had a sickness he can never get rid of” and that her mother and the Doctor had told her of this.

19. Mr P noted that [X] was categorical that her father had never harmed her and that she had previously “felt safe” with her father. [X] told

    
    

    Mr P that she would like to spend time with her father and in the past had slept over but because this had not occurred for a long time she might be a little nervous on the first occasion.

20. Mr P noted that it was clear that [X] would like to evolve a relationship with her father[25].

    [25] Paragraph 47 of the first Family Report

21. Mr P noted in the observation session with the father that [X] jumped into her father’s arms and told him she missed him, that they embraced and that the father engaged [X] in appropriate conversation about her life. Mr P said:

    “Mr Cavill was most appropriate in his questions and approach with [X] and indeed demonstrated a great deal of warmth with his daughter who clearly appeared relaxed and comfortable in her father’s presence[26]”.

    [26] Paragraph 58 of the first Family Report

22. Mr P heard [X] tell her father that Mr N (Mr N) was not happy that the father was present at the Family Report assessment with [X] telling

    
    

    Mr P that she defended her father to Mr N and clearly stated to him that she wanted to see her father.

23. Mr P noted that whilst the father did not engage [X] in any play, it had to be recognised that the father had not spent any significant time with [X] during 2011.

24. Mr P noted that during the observation with the mother [X] was animated and assertive in her interactions whilst the mother was generally warm with her.

25. In his evaluation, Mr P noted that whilst the mother had provided some stability for [X], clearly some of her behaviours in the past had exposed [X] to inappropriate situations, and that it appeared there was little doubt that the mother’s role as a carer to Mr N would need to be reviewed. Mr P considered that given [X]’s evidence, it was not in her best interests for Mr N to be present in the mother’s home whilst [X] was there, and given Mr N’s inability to care for [X] for a limited period of time during the Family Report interviews, this clearly suggested to Mr P that Mr N should not come into contact with [X] whatsoever. Mr P considered that it remained incumbent upon the mother to ensure that this was the case as she may put her daughter at some risk of harm in the future[27].

    [27] Paragraph 51 of the first Family Report

26. Mr P expressed the view that given that [X] had not spent any overnights with her father in 2011, it would appear to be important for her and to simultaneously lessen any anxiety for [X], that there be a graduated reintroduction of time spent with her father and that it was preferable for the parents not to interact at any future changeovers in [X]’s best interests[28].

    [28] Paragraph 53 of the first Family Report

27. Mr P made a number of recommendations[29] to the effect that [X] live with her mother and begin spending time with the father as soon as possible for one day per week, on the Saturday or the Sunday from 9.00am until 5.00pm for 6 weeks and then fortnightly from 9.00am Saturday until 5.00pm Sunday afternoon, and after a further period of 6 months for the fortnightly weekends to commence on the Friday afternoon and conclude on Monday morning and to commence and conclude at her school, and with half school holiday periods from the 2012 school year.

    [29] Paragraphs 54 -61 inclusive of the first Family Report

28. The evidence establishes that these recommendations were not implemented in this fashion and that [X] did not spend overnight time with her father.

The second family report

1. The second family report was published on 4 June 2012 following interviews on 1 May with Mr P noting that the issue to be considered was either [X]’s reluctance or the mother’s inability to enable [X] to spend time with the father.

2. The father told Mr P that he continued with his medication Effexor at the same daily dosage and that he had not suffered any relapse with his mental health[30].

   [30] Paragraph 16 of the second Family Report

3. The father told Mr P that he had consumed cannabis on 3 occasions during the previous 12 months with the last occasion being about 4 weeks previously. The father told Mr P that alcohol remained his crutch in stressful situations, especially relating to his difficulty spending time with [X].

4. Mr P reported that the father considered that [X] would benefit from spending time with him but Mr P noted that the father did not recognise the distress this may cause in [X]’s relationship with her mother given that she has historically been her primary caregiver[31].

   [31] Paragraph 20 of the second Family Report

1. Mr P considered that the father’s concerns as to the difficulty in maintaining a relationship with his daughter were legitimate and that there did not appear to be any overt rationale to oppose the father spending unsupervised time with [X] in the immediate future.

2. Mr P observed that it was incumbent upon the father to recognise the impact of his alcohol consumption, even when [X] was not in his care, and considered that Mr Cavill would require the assistance of a drug and alcohol counsellor to achieve this objective.

3. During his interview with the mother, the mother said that she had obtained an interim AVO against the father in February of this year on the basis that the father had been harassing her by “following her around”. The father had told Mr P that he did not harass, abuse or assault the mother. The father proposes to defend the hearing and it is listed for hearing in August in the Local Court.

4. The mother told Mr P that she continues her dosage of 500mgs Epilem twice a day for her Bipolar disorder which Mr P noted she appeared to accept at the present time[32]. The mother told Mr P that she no longer sees her previous psychiatrist but now sees a Mr G, a clinical psychologist whom [X] has also seen consequent upon the mother’s belief that [X] had experienced a high level of distress in relation to her father .

   [32] Paragraph 25 of the second Family Report

5. The mother told Mr P that her decision to relocate to [M] in late April 2012 was so that “we can live in peace” adding that the father’s ongoing threatening presence, combined with a better living environment and better educational opportunities for [X] were factors in her decision to relocate[33].

   [33] Paragraph 27 of the second Family Report

6. The mother acknowledged that she had not discussed the move with the father before relocating with Mr P observing that the mother did not present any reasonable rationale as to why she had not facilitated some of the prescribed periods of time pursuant to the orders which [X] was supposed to have spent with her father.

7. Mr P notes that the mother had recounted to him that [X] had told her, from her belief that “her father is lying” and that is the primary reason why the mother believes that [X] does not wish to spend any time with her father.  The mother emphasised to Mr P that [X] had directly expressed to her that she did not wish to spend time with the father[34].

   [34] Paragraph 28 of the second Family Report

8. The mother was unable to offer Mr P any specific instances when he asked her as to what the father was lying about.

9. The mother told Mr P that she consumed alcohol on a “minimal” basis and only on social occasions adding that she had not used cannabis during 2012 but may have consumed some cannabis during 2011.

10. Mr P reported that the mother did not leave him with the impression that she desired a cooperative parenting arrangement with the father. Mr P considered that based upon her statements and presentation that the mother presented a position which would allow her to manipulate future changeovers with the father.

11. [X] told Mr P that she was “fine” spending overnight time with her father on Christmas Day telling him that she “had fun” with her only negative comment being that he snored.

12. [X] told Mr P that she had moved from the [P] district to [M] in these words:

    “We moved so I can get on with my life.[35]”

    [35] Paragraph 33 of the second Family Report

13. Mr P expressed the view that such a statement was unlikely to be a statement made by [X] unless she had heard an adult use the same words.

14. [X] told Mr P that Mr N “stays sometimes” and when asked what that was like for her told Mr P:

    “He can get angry if he doesn’t have his pills.[36]”

    [36] Paragraph 34 of the second Family Report

15. In my view this is of particular significance given that [X] makes the same statement again some 11 months after her first interview. I find therefore it is likely to be true and a recurring incident to which [X] is exposed.

16. Mr P reported that it was [X]’s belief that Mr N will move in with her and her mother soon.

17. When talking about her father , [X] told Mr P that:

    “Dad wants to use me as a tool.”

    Mr P noted that [X] could not further elaborate on this and expressed the view that this would again suggest that in all probability this is a statement relayed to her by her mother and which would further alienate [X]’s relationship from her father.

18. [X] told Mr P that her mother has:

    “Told her stories about her father.”

    adding:

    “Mum said if he wasn’t fighting to see me then she’d let him see me.”

19. Mr P concluded that there appeared little doubt that [X] had been psychologically and emotionally damaged by comments that her mother had made to her about her father both as to her relationship with her father and her mother’s decision to relocate. Mr P noted that this caused him a great deal of concern about the mother’s parenting capacity and her ability to delineate what children need to hear and know about their other parent. Mr P made the observation that the mother ran the risk that if she continued with this behaviour toward [X] then it will have serious and long lasting deleterious implications for [X]’s emotional and psychological wellbeing[37].

    [37] Paragraph 36 of the second Family Report

20. The observation by Mr P of [X] with her father was markedly different from the same occasion almost twelve months previously.

21. On the second occasion Mr P noted that there was no initial affection from [X] toward her father, and that when her father asked [X] for the reason she said to him:

    “You lie a lot.”

22. When her father asked her as to what he had lied to her about Mr P noted that [X] was unable to be specific other than to say that her mother had told her this. [X] also told her father that her siblings (on her mother’s side) told her not to spend time with her father.

23. Mr P describes the father engaging [X] in play, [X] telling him why she had not been seeing him and with the father telling her that he would still like to spend time with her. Mr P noted that as the observation progressed, [X] warmed toward her father, eventually sitting very close to him, laughing and becoming somewhat affectionate with him[38].

    [38] Paragraph 37 of the second Family Report

24. Mr P observed that the father demonstrated appropriate play skills with [X] and remained focused on playing and interacting with her positively for the remainder of the observation period.

25. Similarly, Mr P noted that during the observation of the mother interacting with [X] that the mother engaged her in play and there were general positive interactions between them with the mother using humour in engaging [X][39].

    [39] Paragraph 38 of the second Family Report

26. Mr P spoke to Mr G, a clinical psychologist whom the mother and [X] had been seeing in April of this year.

27. Mr G told Mr P that [X] has expressed to him that she was “fearful” of seeing her father and, when asked to elaborate, indicated that her father continually makes excuses or lies. [X] is reported as telling Mr G that she gets nervous with regard to her father’s telephone calls but did not further validate this.

28. Mr P reported that [X] expressed to the psychologist that she does not wish to visit her father as she was concerned that he would not return her to her mother. Mr P reported that [X] had told Mr G that she wants her father to go to jail.

29. Again, Mr P expressed concern as to these statements as it would appear that the mother has made unacceptable statements to [X] regarding aspects of her relationship with her father[40].

    [40] Paragraph 40 of the second Family Report

30. In his evaluation[41], Mr P concluded that the mother clearly has unresolved issues toward the father, and that her views about him have clearly impacted upon [X]’s wellbeing with little doubt that the mother has not only denigrated the father to [X] but is part of the seeds of [X]’s psychological confusion regarding her relationship with her father.

    [41] Paragraphs 41 – 45 inclusive of the second Family Report

31. Mr P considered that it remained imperative that the father reflect upon his current alcohol usage and ensure that when he has [X] in his primary care that he not attend licensed premises and specifically not consume any alcohol prior to or during the time he spends with her.

32. Mr P considered that it remained incumbent upon both parents to confirm their drug free status and should participate in 2 drug urinalysis tests immediately.

33. Mr P expressed the view that the mother should return with [X] to the [P] area to live.

34. Mr P considered that whilst there is rationale to place [X] in the primary care of the father, it had to be acknowledged that [X]’s primary attachment remained with her mother, and whilst there may be some evidence of an anxious attachment between [X] and her mother it would appear not to be in [X]’s best interests to currently place her in the father’s primary care but cautioned that if the mother did not comply with future Court orders there would appear to be little option but to follow such course of action.

35. Irrespective of whether [X] returned to live in [P] with her mother, or not, Mr P expressed the view that she needs to spend a full day each Saturday or Sunday with her father for a 6 week period prior to commencing overnight time with her father each fortnight from Saturday morning until Sunday afternoon, and that if [X] was living in the [P] area, then by September 2012 she should spend fortnightly weekends with her father commencing Friday afternoon until Sunday afternoon.

36. Mr P made recommendations consistent with his evaluation and suggested also that the father seek some counselling in relation to his alcohol use with a report to be obtained from his drug and alcohol counsellor, and with the mother to obtain an updated clinical report from her psychiatrist or her general practitioner by September 2012.

37. I have referred to both Family Reports in some detail for the reason that the various observations made by Mr P of the parents both individually and together with [X] and his opinions based on such observations were not the subject of any challenge in cross examination or contradicted on any of the evidence before me. Equally his recommendations were not the subject of any challenge.

38. During cross examination by Ms Kelly, for the mother, Mr P said it could be a reasonable concern and significant if the mother was anxious as a consequence of the father drinking alcohol while spending time with [X].

39. Ms Kelly suggested to Mr P that the reason [X] has not spent any time with her father between Boxing Day 2011 and March 2012 was not as a consequence of the mother restraining or preventing her but [X] saying that she did not want to go. Mr P was told of the circumstances of changeover at [L] School[42].

    [42] See orders made on 15 February 2012.

40. Mr P made it clear that in his view changeovers should take place at Interrelate given the failure by the parents to cooperate. Mr P said further:

    “The view I formed was that the mother does not want the father to see the child. There is no doubt [X] has been aligned to the mother and that whilst the mother is the primary carer the mother has discussed inappropriate matters with [X]. I had an advantage over Mr G in that I saw [X] and the father.”

41. During cross examination by Ms Flintoff, the Independent Children's Lawyer, Mr P was asked whether the fact that neither parent had provided drug screens in response to his recommendations[43], raised any concern, which Mr P thought likely and could indicate that both parents are still using prohibited substances. Given that the father had conceded use of marijuana, Mr P thought that was a matter of some concern.

    [43] See paragraph 48 of the second Family Report

42. Given that the mother had claimed no use in the preceding 12 months, Mr P considered that failure to provide drug screens should be viewed with some degree of scepticism given the mother’s history of use. I share that concern.

43. As to the failure by the father to seek any drug and alcohol counselling, Mr P suggested this was concerning given that this has been a critical issue for the father and suggests it is likely he is not able to abstain. I share that concern.

44. As to [X]’s anxious attachment to her mother, Mr P told Ms Flintoff that in his view, [X] had probably been fed a lot of information by the mother and that her relationship with the mother did not amount to a healthy attachment for her.

45. When asked by Ms Flintoff whether [X] would be better off living with her father if it could be concluded that the mother was unlikely to comply with orders for [X] to spend time with him Mr P said:

    “Yes, on condition that the father deals with his alcohol problem and abstains from using cannabis.”

46. Mr P added that it was critical for the mother to encourage the relationship between [X] and the father which, if not done would cause [X] disturbance and impact upon her development during puberty and adolescence.

47. When asked by Mr Lindeman, for the father whether the mother’s evidence that Mr N stayed with her from time to time was of concern in relation to the mother’s relationship with [X], Mr P considered that whilst there may not be an immediate risk to [X], there was likely to be nothing positive for her.

The evidence of Mr G, Psychologist

1. In his affidavit sworn 4 June 2012 Mr G refers to his two interviews with [X] on 2 and 7 April 2012 in relation to her apparent unwillingness to spend time with the father. The request for the report was made by the mother’s Solicitors and Mr G was asked to report as to his understanding of [X]’s wishes and what in his opinion is in her best interests.

2. Mr G pointed out that he had provided psychological treatment for the mother in the past as part of a Mental Health Care Plan.

3. Mr G noted that the reason for the initial referral was that the mother was concerned about [X] experiencing night terrors the theme of which related to visions of her father killing her mother with the sleep disturbance having been ongoing since Christmas.

4. Mr G reported that the precipitating event appeared to centre around her father’s access visit on Christmas Day when [X] was not returned to the mother as arranged and the mother telephoned DOCS and the Police in her attempt to have [X] returned.

5. Mr G refers also in his report to difficulties with unpredictable telephone access and some confusion in relation to the father’s commitment and continuity of attending visits.

6. Mr G reports that [X] remains frightened during any contact with her father as she believes “he might kidnap me”.

7. Mr G found it very easy to engage and develop a rapport with [X] whom he believed to be a very pleasant and very insightful 8 year old presenting as having a strong attachment with her mother but also presenting as a fairly shy young child but demonstrating considerable interpersonal confidence when speaking with him.

8. Mr G reported as follows:

   “It is my opinion that [X]’s interview with me and her opinions have not been pre-orchestrated and influenced by her mother. Given [X]’s age and the potential for future conflict continuing between her parents around custody and access, I believe her wellbeing would best be served by allowing her to reside with her mother and encourage any continuity affording [X]’s ongoing stability. No doubt her views towards spending time with her father could shift with age and maturity.”

9. As to the existence of the night terrors, it is significant in my view that [X] did not see or spend any time with her father from Boxing Day 2011 until Saturday 3 March 2012 when an incident occurred at the prescribed point of changeover at [L] School. The mother deposed to [X] saying that she did not want to go with her father and was scared and the father grabbing [X]’s arm and pulling her against [X]’s resistance. When the mother told him to release her she grabbed hold of her mother who took [X] back to her car and then to [omitted] Police Station shortly followed by the father.

10. The father deposes differently to this event[44]. He deposes to [X] getting out of her mother’s car, reaching for his hand when the mother grabbed her and dragged her away saying words to the effect:

    [44] Paragraph 9 of the fathers affidavit sworn 26 March and filed 3 April 2012.

    “She does not want to see you she is scared of you.”

11. Both parties gave oral evidence about this incident. When I come to weigh the whole of the evidence, and on the balance of probabilities I prefer the father’s version of what occurred. It is more plausible for the reasons which follow.

12. It is established on the evidence that prior to 3 March [X] last saw her father on Christmas Day 2011 when, based on her account to Mr P, she had fun with her father overnight on Christmas Day and the only complaint was that her father snored.

13. It is very significant in my view that [X] makes no complaint at all to Mr P when she sees him on 21 May this year of night terrors or nightmares with visions of her father killing her mother. It seems to me on the balance of probabilities if [X] were experiencing such nightmares, which on one interpretation of the mother’s evidence causes her to be really scared she would have been very keen to tell

    
    

    Mr P. Similarly, if she had any fears that her father would not return her she would have expressed such a fear to Mr P.

14. As a consequence of the father not having spent any time with [X] since Christmas Day 2011 I made orders on 15 February to the effect that [X] spend each Saturday commencing 18 February with her father between 9.00am and 5.00pm to be implemented by the mother taking [X] or causing her to be taken to [L] School at 9.00am and by the father collecting [X] from the mother at the same place and by the father returning her to the mother at the same place at 5.00pm.

15. The parents give two very different accounts of what occurred following such orders on the two occasions when time should have taken place, that is 18 February and 25 February with the mother asserting that the father did not come on either occasion and the father asserting either that the mother did not show up or came with Mr N in the car and swore at him and drove off.

16. Consequently, there had been no incident prior to 3 March to warrant [X] refusing to go with her father on the morning changeover and behaving in the way the mother asserted.

17. I find on the balance of probabilities that the mother’s version is unreliable and in all probability incorrect. I do not accept the mother’s version of what occurred on the Saturday morning, 3 March.

18. Further, I find on the balance of probabilities that the mother did not intend that [X] spend time with her father on 3 March and, prior to that occasion had influenced [X] against her father with suggestions that he might kidnap her and had told lies.

19. The father’s version that [X] got out of the mother’s car and was reaching for his hand when the mother grabbed her and dragged her back to the car is entirely consistent with the mother resisting [X] spending any time or having a relationship with the father  and intending to influence [X] against her father when, as the father asserts, the mother said to [X]:

    “She does not want to see you, she is scared of you.”

20. In cross examination the mother said that since moving to [M], the night terrors have occurred twice and have not lasted as long. They occur for between ½ hour and 1 hour.

21. Previously when living in the [P] district the mother said she had night terrors three to four times per week manifested by [X] talking in her sleep, grinding her teeth and sometimes wetting the bed. Sometimes she would wake up.

22. When asked in cross examination why the mother did not wake her up when this was occurring she said [X] was often difficult to wake up.

23. It seems to me a better course for the mother would have been to awaken [X] when this was occurring both to relieve her from the nightmare and to comfort her rather than letting it continue for between ½ hour to 1 hour. I find also that the mother is likely to have exaggerated her evidence in this respect.

1. In his evidence in chief Mr G said that it would be quite devastating for [X] if she was removed from her mother’s care, and when asked to express a view as to [X]’s statement to Mr P during the interview for the second Family Report that “dad wants to use me as a tool” Mr G said that [X] had not told him that and it could be something she had overheard and that such a statement was not age appropriate for [X].

2. As to the mother, Mr G said that he got the distinct impression that the mother was quite genuine in the views she expressed concerning [X] and not vindictive but rather overwhelmed and tired of the Court proceedings.

3. Mr G said that it was not clear why the mother had moved to [M], and that as a consequence of matters which the mother had told him, he had gained the impression that [X] would not like a great deal of contact with her father.

4. In cross examination by Mr Lindeman and to the suggestion subpoenaed telephone records indicated that the father had not talked to [X] over the telephone between 13 January and late June 2012, Mr G said he would be surprised if that was the case given the mother’s comments to him concerning the unpredictability of telephone calls and [X]’s negative response when the father telephoned but conceded the mother could have been referring to 2011.

5. It is disappointing that Mr G did not clarify with the mother the period to which she was referring in relation to telephone calls.

6. Mr G agreed that [X] was aware of the Court proceedings. Mr G said that the nightmares experienced by [X] were recounted to him by the mother and not by [X].

7. Mr G was cross examined by Ms Flintoff, the Independent Children's Lawyer about the mother’s diagnosis that she suffers from Bipolar disorder and whether the mother accepted such diagnosis. Mr G thought she did not and said further that he did not believe that the mother was suffering from a Bipolar disorder. He said he had not told the mother as much but he had expressed such a view to the mother’s GP Dr A.

8. Ms Flintoff took Mr G to the number of [X]’s recorded absences from school which Mr G said concerned him, and when it was put to Mr G that [X] had told Mr P that she had enjoyed spending overnight time with her father on Christmas Day, he expressed some surprise and concluded that [X]’s subsequent behaviour could have been the subject of the mother’s influence.

Discussion

The father’s case

1. As to the Christmas Day incident 2011 the father gave oral evidence that at about 5.30pm he and [X] went to a friend’s home in [P] where there were some 7 or 8 other children. He was due to return [X] to the mother’s at 7.00pm. The mother asserted that [X] was to spend time with the father from 2.00pm to 6.00pm Christmas Day.

2. The father’s evidence was to the effect that [X] asked him if she could stay overnight, with which the mother agreed when he made contact with her but some 10 minutes later Mr N phoned and to use the father’s words “screamed” at him to bring her back, which he declined to do. It seems the father returned her at about lunchtime on Boxing Day.

3. It was put to the father in cross examination that he had not telephoned the mother Christmas Day to obtain her consent that [X] stay with him overnight but he reaffirmed that he had. I accept that evidence.

4. The father said that once the mother had said [X] could stay he had 1 or 2 drinks with his friends and was driven to a friend’s home. He denied being intoxicated.

5. In relation to the mother’s assertion that [X] told her when she was returned on Boxing Day:

   “Daddy was drinking alcohol. He took me to a pub. I didn’t like the people he was with.”

   It is not established on the evidence that this occurred.

6. The father denied smelling of alcohol when he returned [X] the next day, as asserted by the mother.

7. It is the father’s case that he had been having unsupervised time with [X], day time only since late 2011 following consistent 2 hour weekly supervised time at Interrelate pursuant to the orders 20 July 2011.

8. The evidence establishes that the father has spent minimal time with [X] since the Christmas Day incident at the end of 2011, and only on one or two occasions, and not overnight, even though orders were made on 15 February 2012.

9. On 9 May 2012, consequent upon the father not spending any time with [X], orders were made that [X] spend time with the father on Thursday 10 May 2012 and Saturday 13 May 2012 (sic) with changeovers to take place at Interrelate. The Thursday day time was to occur between 1.00pm and 5.00pm and serve as a reintroduction and the Saturday time was to occur between 9.0am and 5.00pm.

10. The father gave evidence that he spent the Thursday with [X] and with his daughter [B] he took [X] to MacDonald’s and the beach and spent time with her grandmother at [P].

11. The mother had moved to [M] in April. The evidence establishes time did not occur on the Saturday because the mother asserted [X] was ill.

12. The father gave evidence that he sees his daughter [B], in general terms, fortnightly in [P] as she is staying with her grandmother consequent upon her mother moving to Sydney. The father sees [A], on average, twice per week and sometimes he stays overnight.

13. The father gave detailed evidence of his rented cabin accommodation where he has lived for two years and which is self contained with one bedroom accommodating a double bunk in the single main bedroom.

14. It is the father’s evidence that if [X] is living with him she will occupy the main bedroom and he would sleep on the divan in the front section of the cabin.

15. The father hopes to find casual work in the near future as a [omitted] when he secures the return of his driving licence later this year. He is currently disqualified from holding or obtaining a driving licence as a consequence of a conviction on 6 December 2010 for driving with middle range PCA for which he received a sentence of 4 months imprisonment but reduced on appeal against severity to 2 months and with 7 months parole.

16. The father is hopeful that employment will provide him with a greater income than his current Centrelink benefit of $840.00 per fortnight and enable him to rent better accommodation. He currently pays rent of $170.00 per week and anticipates rent for a 3 bedroom home would cost him about $300.00 a week.

17. Whilst the present accommodation is less than ideal, I am satisfied on the evidence that it represents appropriate accommodation for [X] if she is living with her father.

18. There is no doubt on the evidence, and I find, that the father has had difficulties with the use of alcohol and his criminal record is unenviable[45]. He was convicted of a mid range PCA in November 1990 and lost his driving licence for 6 months, mid range PCA in December 1995 with disqualification for 8 months, high range PCA in July 1999 with disqualification for 3 years and a further high range PCA in 2001 with his disqualification extended to May 2004. He also has convictions for assault including an assault occasioning actual bodily harm in 1994 for which he was fined. He has some convictions for other criminal activity and a conviction in January 2003 for possessing a prohibited drug for which he was placed on a bond for 12 months. He has convictions for other motoring offences.

    [45] Exhibit F2

19. The father suffers from schizophrenia and for this reason receives disability benefits. I am satisfied from his evidence that he sees a specialist 3 times a year in [P] and sees his GP, Dr M at 4 weekly intervals. He is prescribed Effexor. In February 2011 Dr M reported that the father maintains adequate treatment for his mental problems, manifests no evidence of psychosis and is one of his most reliable patients in terms of taking his medication[46].

    [46] Exhibit F3

20. On the evidence before me, the father has not come to the notice of Police with regard to inappropriate or excessive use of alcohol or aberrant behaviour since discharge from prison in January 2011, and I take into account that his last alcohol related conviction was some 9 years earlier.

21. The father acknowledged in cross examination that on one of the Saturdays when he saw [X] just prior to Christmas 2011 he took [X] to a hotel restaurant for a meal when there was an altercation amongst other patrons witnessed by [X] and when one glass was smashed. It seems that [X] told the mother of this incident and that the mother assumed the father was responsible. The father conceded that he had drunk one beer at the restaurant on that occasion. There is no evidence he was affected adversely by alcohol or that his parenting ability was impaired on that occasion.

22. The father acknowledged in cross examination that it was reasonable for the mother to be concerned about his drinking of alcohol during times when [X] is with him. The father also acknowledged that there was little trust between he and the mother.

23. The evidence establishes, on the father’s own admission, that he continues to use marijuana and last used in mid June. The evidence establishes that the father uses marijuana infrequently, perhaps something in the order of once every 3 – 4 weeks.

24. The father was unable to explain why he had not taken any specific steps to engage with a drug and alcohol counsellor both in relation to marijuana and alcohol. This suggests the father is either unable or unwilling to obtain assistance to desist from the use of either. I accept his evidence that he has consulted his GP, Dr M and has entered into a programme to cease use of tobacco.

25. I find on the evidence that the father is committed to taking his medication for schizophrenia and which he told me he takes without fail for the reason that if he did not do so he would slip into a dark well of depression.

26. I am left with the impression that the father is aware of his failings and he will comply with an order to attend a counsellor, whether or not [X] is living with him.

27. When asked in cross examination what he thought the impact may be upon [X] if she were to live with him, the father showed little insight when he said that he did not think there would be any adverse impact, and that he would be able to look after her. When asked if he thought she would suffer any distress, he thought she would miss her mother at first but that he would provide regular time for her with her mother and frequent telephone communication. When asked what effect there may be of not seeing her half siblings the father said that he did not know to what extent she had been spending time with them and that they had not moved to [M].

28. When asked what he would do if [X] remained with the mother in [M] he said that he would propose travelling to [C] which would take about 3 hours. He would also consider moving to [T] a little to the south of [C] where he thought he could get employment in a [business omitted] where he had worked previously for 6 weeks as part of a TAFE programme he had taken up for 6 months in 2009.

29. The father considered that if he moved to [T] then his daughter [B] would most likely come with him and with her mother’s consent. He had looked at rental property on the internet with private rentals for between $280.00 and $300.00 per week for a two to three bed roomed unit. He thought he could earn about $350.00 per week from casual employment but retain his full disability benefits.

30. I was left with the distinct impression that whilst the father has no doubt considered this possibility the reality will be considerably different bearing in mind he has made no specific enquiry about employment and is not presently qualified for immediate employment.

31. The father was cross examined extensively by the Independent Children's Lawyer as to his current use of alcohol and to the effect that his consumption had decreased significantly since separation. However, the father admitted that on 3 days out of 7 he would drink 3 large bottles of VB per day and on some occasions could drink 6 large bottles but extended over the day.

32. When asked his view of Mr P’s comment[47] that it was imperative that the father cease cannabis use altogether and minimise his use of alcohol the father said:

    [47] Paragraph 17 of the second Family Report

    “Fair comment.”

33. The father conceded that he had not followed the recommendation of Mr P[48] to undergo two drug urine screen analysis tests immediately and claimed that whilst he had made an appointment for the first occasion he had gone to Sydney instead with his son [A]. There was no other explanation and which is clearly unsatisfactory.

    [48] Paragraph 43 of the second Family Report

34. I infer that the father not doing so suggests he well knew such analysis would show a presence of marijuana.

35. When asked how he would cope with caring for [X] if she was living with him he said his lifestyle would change and he would have more responsibility and “would toe the line”. He acknowledged that it was a bit of a gamble. He acknowledged that he would have to stop using alcohol when she was with him and he was 90% confident he could do so.

36. As to [X]’s education, the father acknowledged that he had taken little active interest in the past but that he would propose that she go to [L] School. He was not aware of her number of absences during the last three years.

37. As to the difficulties with telephone communication, the father said that he had bought [X] a pre-paid mobile telephone in mid February 2012 to enable telephone calls to be made pursuant to the orders made on 15 February, namely between 6.00pm and 6.30pm each Monday, Wednesday and Friday. The father said that he had been unable to make any telephone calls because it either went to message bank or there was no response and then he would send a text message but with no reply.

38. The mother’s evidence in cross examination was that the telephone the father had given [X] had been damaged when she fell off her bike and the phone was in her pocket. This happened in February this year.

39. The evidence does not establish that the mother informed the father that the telephone was broken.

The mother’s case

1. In relation to the mother’s health, the mother was admitted to [omitted] Hospital on 6 August 2010 where she remained as an inpatient until 3 September 2010. She had been taken to the hospital by her boyfriend, Mr N and another friend[49]. Initially, the mother’s admission was voluntary but she became aggressive and required sedation and was scheduled as an involuntary patient.

   [49] See report of Dr H of 2 December 2010 Exhibit ICL 6

2. It appears from the various medical reports that prior to her admission, the mother had not been sleeping as well as normal and was finding it difficult to keep up with everything. The mother told Ms E, a clinical psychologist with the [P] Drug and Alcohol Service that her manic type symptoms including thought disorder and emotional lability had been precipitated by increased personal life stressors with increasing use of cannabis, 30 - 40 cones daily and alcohol consumption in the order of 20 standard drinks daily with abrupt cessation of these substances 3 – 7 days prior to admission[50].

   [50] See Exhibit ICL 7

3. It was during this admission to hospital that the mother was diagnosed with Bipolar disorder by Dr H and advised to continue with mood stabilising medication.

4. The mother told Ms E, psychologist, that she was unconvinced that the diagnosis of Bipolar disorder during her admission to hospital was an appropriate diagnosis.

5. The medical records in relation to the mother’s 2010 admission to hospital establish that the mother was a full time carer to Mr N and that she is in a relationship with him and he is described as her boyfriend. The medical records also establish that the past chronic use of alcohol and marijuana, certainly as at 2010 represented a continuing health risk for her.

6. It is significant the mother was admitted to the [omitted] Hospital in [omitted] between 14 and 16 October 2007 as an involuntary patient after presenting herself to [omitted] Police Station following a period when she may have been spending time with her brother in [G].

7. When cross examined as to the reason for her admission the mother said that she did not believe that she had been drinking but the hospital records indicate very clearly she was suffering from alcohol intoxication and was in acute crisis as well as being incoherent with very aggressive behaviour[51].

   [51] Exhibit ICL 4

8. The mother was cross examined at length concerning [X]’s absence from school during 2010[52] when there were 52 whole absences and 9 partial absences. Of those, 38 can be explained in part by the mother’s admission to [omitted] Hospital. Those absences commence on Wednesday 4 August 2010 and continue until Friday 24 September 2010.

   [52] See Exhibit ICL 1

9. The mother’s evidence is that she decided to ask her brother to look after [X] in Sydney and it seems he arranged for her to attend [S] School at [G]where she is shown as being enrolled from Monday 23 August 2010 until Wednesday 22 September 2010. This does not explain where [X] was going to school, if at all during the earlier part of the mother’s admission to hospital. The mother decided to leave [X] with her brother to complete the end of the third term before coming back to [P].

10. Whilst some of the other absences both before and after the August/ September period are explained as a combination of sickness or medical treatment, there are a number of other absences for which the mother could not give any adequate explanation.

11. During the academic year during 2011 at [L] School, [X] had 31 whole absences and 20 partial absences[53]. Of these, 9 were said to be unjustified and the other absences are a combination of sickness, family reasons, sleeping in and Doctor’s appointments. The mother was unable to give any reason as to the unexplained absences and claimed in cross examination that she had telephoned the school. I do not accept that explanation given the detailed comments in the Absences Report.

    [53] See Exhibit ICL 2

12. In the Absences Report for 2012 for [L] School[54] [X] is shown as having 40 whole absences and 3 partial absences with the 3 partial absences shown as late arrivals. The majority of the whole absences are due to sickness and leave including a funeral but are otherwise unexplained.

    [54] See Exhibit ICL 3

13. As to her relationship with Mr N, it is clear on the evidence before me and I find that the mother is in a relationship with Mr N which she regards as significant.

14. The mother was cross examined as to her view concerning the recommendation made by Mr P in the first Family Report[55] that she ensure that Mr N should not come into contact with [X] and certainly not spend any overnights in the mother’s home whilst [X] was present. The mother said that she had not ignored that recommendation, but I find to the contrary on the evidence.

    [55] Paragraph 60 of the first Family Report

15. Of greater concern is that following the publication of the first Family Report orders were made by consent on 20 July 2011 in these terms:

    “The mother is restrained from allowing Mr N from staying overnight at the mothers residence.”

16. It seems the mother has been Mr N’s designated carer from some time prior to such order being made and for which she receives a Carer’s Benefit from Centrelink.

17. The mother said in cross examination that whilst Mr N continued to live in a caravan park at [omitted] he sometimes stays with her at [M].

18. During this part of her evidence, the mother was very cautious with her responses and avoided or attempted to avoid some questions concerning Mr N. It is significant in my view that Mr N gave evidence that he spends not more than 4 or 5 days per fortnight at [M] travelling to and from [P] by train.

19. Whilst Mr N denied an intimate relationship with the mother on the premise that he was gay I was left with the distinct impression, and find on the balance of probabilities that the relationship between the mother and Mr N is one of romantic attachment, mutual support and affection.

20. I was left with the distinct impression that the mother wished to avoid giving evidence as to the full nature of such relationship.

1. It is clear the mother has paid scant regard to the order that Mr N not stay overnight. It is clear from [X]’s statements to Mr P[56] that Mr N stays sometimes.

   [56] Paragraph 34 of the second Family Report

2. When it was suggested to the mother in cross examination that her mother, Ms J had told [P] hospital just before her discharge in early September that the mother’s other children and [X] did not like Mr N, the mother denied such a possibility. The mother denied Ms J’s other report to the hospital that [X] had seen Mr N punch the mother in the face[57].

   [57] Exhibit ICL 5

3. In further cross examination in relation to her relationship with Mr N, the mother said it was very difficult for her to be his carer when they were living apart and that she hopes he will move to [M].

4. The evidence establishes that on the evening of 28 December 2011 the mother and [X] were at the home of her son [Y] for an early New Years Eve party. There were a number of other adults present.

5. The mother conceded in cross examination that she and [Y] had an argument which resulted in the Police being called. The reporting Police were told[58] that the argument between the mother and [Y] had escalated and that the mother had started damaging property and had tried to slap [Y]’s face and missed, hitting [X] across the face with the mother, then realising what she had done, trying to pull [X] by her wrists which [X] found painful.

   [58] Exhibit F6  tab “X”

6. The visiting Police observed the mother to be extremely intoxicated, falling over, slurring her speech and smelling strongly of intoxicating liquor.

7. The Police arrested the mother for assaulting [X] and who is then described as becoming aggressive and resisting arrest which resulted in the Police restraining the mother by the arms and struggling with her as she was walked to the rear of a Police car. The mother refused to get into the Police vehicle when [Y] intervened and asked Police to desist with the arrest.

8. The Police had not observed any obvious injuries to [X], and as a consequence of the adult witnesses refusing to give statements Police discontinued the arrest and released the mother observing that [X] was then in the care of her older sister and her boyfriend who were not intoxicated and had been cooperative.

9. When cross examined, the mother denied hitting [X] across the face and denied pulling her by the wrists.

10. I was left with the distinct impression from the manner in which the mother gave her evidence that she could either not recall what had occurred or minimised the event.

11. The significance of the Police evidence, which is uncontradicted by the mother, except for the physical handling of [X], is that this was a further episode of aberrant behaviour by the mother as a consequence of excessive consumption of alcohol manifesting itself in violence toward two of her children.

12. The mother was cross examined about another incident which occurred on the evening of Saturday 18 June 2011 when the mother and [X] attended a house warming party being held by a friend at [omitted].

13. The evidence establishes that in the early hours of the next day, when [X] was in bed, the mother had attempted to leave by driving her motor car but was restrained by her friend and other guests which caused the mother to become very angry and hostile, yelling and screaming and being restrained from lashing out at the guests. The mother agreed in cross examination that she had bitten her friend on the right forearm causing a cut.

14. The mother conceded that her consumption of alcohol had contributed to her behaviour that evening and conceded that biting was an act of violence but claimed she was held in a headlock and was trying to release herself.

15. The mother was arrested by Police[59] and was described as yelling, swearing and continually kicking the seat of the caged area of the Police vehicle whilst being taken to the Police station, and behaved in a similar way whilst detained in a cell.

    [59] Exhibit F6 tab “Y”

16. During the customary search, Police found a quantity of cannabis in the mother’s handbag which some days later she admitted to Police was hers and was for her personal use, although denied in cross examination that it was for her personal use and could not explain how it ended up in her handbag.

17. The significance of this event is another instance of the mother consuming alcohol to excess, behaving in an aberrant and aggressive manner as a consequence of consuming alcohol. Whilst it seems clear on the evidence [X] was not exposed to the incident and she remained overnight at the friends premises while her mother was arrested, I find on the evidence it is indicative of the mother’s inability to make appropriate choices as to consumption of alcohol. This incident occurred approximately 6 months after seeing Ms E, the psychologist and Dr H, the psychiatrist, and the prescription of medication for her Bipolar disorder and a past history of use of cannabis and excessive use of alcohol during 2010 and earlier.

18. The mother conceded in cross examination that during an interview with Dr A, her GP on 16 August 2011 she told him that she still uses marijuana occasionally and continues to use it as she enjoys it but also understands it causes psychotic illness[60].

    [60] Exhibit F9

19. This is inconsistent with the mother’s statement to Mr P and at the interviews in June 2011 that “she now does not use cannabis[61]”.

    [61] Paragraph 36 of the first Family Report

20. It also suggests, and I find on the evidence that the mother has not benefited from drug and alcohol counselling.

21. When I come to weigh the whole of the evidence concerning the mother’s continued use of alcohol and marijuana I find on the balance of probabilities that there is little or no prospect of her being rehabilitated successfully from the use of either. It seems the mother has failed to appreciate the significance of the continued use of marijuana and alcohol given her medication and diagnosis of Bipolar disorder and episodes of aberrant behaviour.

22. I find on the evidence that this represents a very considerable risk to the mother’s continued ability to appropriately care for and parent [X].

23. When asked as to how she would promote [X]’s relationship with the father and whether she wanted [X] to have a relationship with him the mother said:

    “If [X] would like to.”

24. The mother said that she wanted [X] to be comfortable to have a relationship with her father. This evidence establishes the mother has no insight as to the obligation she has to promote, encourage and facilitate [X]’s relationship with her father.

25. When cross examined as to why the Saturday contact did not occur the mother repeated that [X] did not want to go and that she was scared of her father.

26. I do not accept this reasoning. There is no evidence before me adduced by the mother or indeed any other evidence at all which would cause me to conclude that [X] had any reason to be scared of her father, other than statements made to her by her mother.

27. The mother conceded during cross examination that she held the view the father did not take his medication and when asked again if she wanted [X] to have a relationship with the father she said:

    “No, because he is not medicated.”

28. This belief held by the mother is without any foundation and is contrary to the evidence. There is no rational basis on the evidence for the mother to hold such belief.

29. When asked what she would do if the Court ordered [X] to live with her father the mother said that she would comply and that she would stay in [M] for sure. Her present lease does not expire until September of this year and said that she hoped to find part time work.

30. The mother admitted in cross examination that she had not followed the recommendation made by Mr P in the second Family Report that she provide two drug urine screen analysis test immediately[62]. The mother asserted that she could not obtain bulk bill facilities where she lives and it was too expensive.

    [62] Paragraph 43 of the second Family Report

31. In relation to the orders of 9 May 2012 for the father to immediately resume spending time with [X], the mother agreed that [X] spent time with her father on 10 May but said it did not occur on the Saturday, 13 May (sic) because [X] was ill but she was not able to obtain any medical certificate because she could not get into a Doctor.

32. As to her continuing medical treatment, the mother said she decided in January 2012 not to see Dr H any further and preferred to see Mr G.

33. The mother said that she continues to drink alcohol including beer and premixed vodka.

34. It seems to me that it is appropriate to make an order that the mother attend upon drug and alcohol counselling and continue to attend until a counsellor considers it is no longer beneficial for her to do so.

35. Although Mr N had not sworn an affidavit it was appropriate that he give evidence and I gave leave accordingly.

36. Mr N described his disabilities as including arthritis, hepatitis C, hypertension, difficulty with his knees, chronic fatigue and restriction with walking.

37. Mr N confirmed that the mother is his carer. Mr N said that he had received a full disability pension from Centrelink since 1988.

38. Mr N has a number of convictions from 1989 related to use or possession or supply of prohibited substances, cultivation of cannabis but not since 1989 and motoring offences including mid range PCA in 1989, low range PCA in 1990, mid range PCA in 1998 and a further mid range PCA in 1999 against which he appealed but the conviction was confirmed with a reduced fine and with 3 years disqualification from holding or obtaining a driving licence.

39. In February 2011 Mr N confirmed that his caravan at [omitted] Caravan Park was broken into and the television screen severely scratched and his false teeth smashed up.

40. Mr N said in cross examination he was certain the damage had been caused by a person called Mr L who owed him some money. The Police did not make any arrest and concluded that the person responsible for the damage was motivated by hatred as opposed to theft.

41. Mr N denied in cross examination that he had supplied any marijuana to Mr L or indeed the mother and said further that whilst he did not know the mother used cannabis for enjoyment she would occasionally use cannabis and that they smoked together when they went to a party.

42. In response to questions by Ms Flintoff Mr N denied it would be more convenient for him to live closer to the mother as his carer and said that he enjoyed the train trip to [M].

43. When asked whether [X] was at the mother’s home when he was staying there, he said that she was at school.

44. Mr N said that if the Court ordered that the mother be restrained from bringing [X] into contact with him or being present when he was also present he said he would comply with such an order.

45. I was left with the impression from the manner in which Mr N gave his evidence he is reliant on the mother not only for the physical care and assistance she provides when they are together but also considerable emotional support.

46. It seems to me, on the balance of probabilities, that Mr N will move to [M] as soon as he is able to do so. Whilst he asserted that he needs to remain at [omitted] Caravan Park for the reason that he looks after his very sick and elderly mother and father who live in the [L] district, he would not be precluded from moving to [M] and visiting his parents.

Application of Section 60CC and the legal principles

1. As to Section 60CC I make the following findings:

   (2) The primary considerations are:

   a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

2. At first sight there is a very significant benefit for [X] to enjoy and benefit from a meaningful relationship with each of her parents. There is no doubt on the evidence before me that both parents love [X] but I find on the evidence that the nature of the mother’s relationship with her severely impedes the possibility of [X] being able to continue and benefit from a meaningful relationship with her.

3. The evidence establishes very clearly that [X]’s present relationship with her mother is not valuable to her in the sense that the mother has been obstructive as to [X] spending time with her father, lacks insight as to the effect of the damaging statements she has made to [X] about her father, has not complied with Court orders in relation to Mr N being absent from her home and has moved from the [P] district to [M] thus further obstructing the opportunity for the father to spend time with her, and with no good reason on the evidence to do so, and which I find the mother did deliberately to prevent [X] from spending time with her father.

4. These factors, when considered together, preclude [X] from benefitting from a meaningful relationship with her mother. In this context I find “meaningful relationship” includes the ability of each parent to foster a relationship with the other parent.

5. On the evidence before me there is clearly a benefit in [X] having a meaningful relationship with her father. There is nothing on the evidence before me to suggest that he is other than a fond and loving father, able to relate to [X] appropriately and foster her relationship with her mother.  

6. Having observed the father closely give evidence, I was not left with the impression that in spite of the frustration he has experienced in not being able to maintain a relationship with [X] that he would be vindictive toward the mother if [X] were to live with him and deny [X] a relationship with her.

   b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

7. There is clearly a need to protect [X] from these risks, especially psychological harm.

8. Mr P referred at length in his oral evidence to the view that he had formed that the mother does not want the father to see [X] and that there was no doubt in his mind that the mother had aligned [X] to her and had planted seeds in [X]’s mind causing her psychological confusion about her relationship with her father.

9. Whilst there was some evidence of exposure of [X] to arguments and possible minor assaults, it is the necessity to protect her from psychological harm which in my view is paramount.

10. I could not be satisfied on the evidence that the mother is either aware of the importance of doing so or is able to do so and I base this on the evidence of Mr P which is essentially unchallenged as to his conclusions, and the mother’s aberrant behaviour.

11. So far as concerns the father, there is no evidence that [X] is likely to be exposed to risks of this nature whether she is spending time with him or living with him.

12. I propose to order that any implementation of changeover, irrespective of with whom [X] is living, be effected in the absence of the parents so as to avoid the risk of exposure to argument or other inappropriate behaviour.

    (3)Additional considerations are:

    a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

13. I place little reliance on the evidence of the mother that [X] does not want to see her father or is fearful of him or that he would not return her.

14. I find on the evidence that the mother has deliberately set about denigrating the father to [X] and caused her psychological confusion about the relationship with her father in doing so.

15. I give considerable weight to the two observation sessions about which Mr P reported and which I find are more likely to reflect [X]’s wish to spend time with and relate to her father.

    b)the nature of the relationship of the child with:

    (i)each of the child's parents; and

16. There is no doubt that [X] loves her mother on the evidence before me but that it is likely to be an anxious attachment for the reasons which Mr P gave and which are unchallenged on the evidence.

17. The nature of [X]’s relationship with her father is reflected in the observation sessions to which I have referred earlier in these reasons.

    (ii)other persons (including any grandparent or other relative of the child);

18. There is little evidence before me as to the nature of [X]’s relationship with other persons. She is known to the mother’s older children and the father’s older children and in all probability, members of the extended family whom each of the parents see.

    c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

19. For reasons I have given, I am not satisfied on the evidence that the mother will ensure or facilitate and encourage [X]’s relationship with her father.

20. I am satisfied on the evidence that the father will facilitate, encourage and foster [X]’s relationship with her mother

    d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

    (i)     either of his or her parents; or

21. If [X] remains living with her mother in [M], there is likely to be an adverse effect on her relationship with her father given both the distance and the travel time involved and the mother’s unwillingness and inability to foster the relationship with the father.

22. If on the other hand [X] lives with her father it seems to me that there will be an initial period of disturbance for her and that she is likely to miss her mother significantly. It is likely that [X] is not yet of an age where her maturity will enable her to realise the full ramifications of her mother’s opposition to her spending time with her father.

23. In some respects, and because only little more than 3 months has elapsed since the mother moved to [M], it is likely that [X] will be able to resettle in her old school at [L] and become reacquainted with her old friends at the school.

24. Living with her father is an unknown quantity but I was left with the impression from the manner in which the father gave his evidence that he would step up to the task and assume the responsibility albeit he had little insight into [X]’s likely reaction on being removed from her mother’s care and had not cared for her as a full time residential parent since separation.

    (ii)   any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

25. The evidence does not enable me to establish the nature of [X]’s relationship with her older maternal half siblings nor indeed her older paternal half siblings.

    e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

26. This matter is a significant issue in the circumstances of this case in that it represents a practical difficulty for the mother if [X] is to remain living with her in [M] and the father spends time with her in [C]. Although the mother has a motor car, she is not working as I understand her evidence and relies upon Centrelink Benefits.

27. The father’s present financial circumstances are not strong and he is yet to obtain a driving licence.

28. The real difficulty lies in the travelling time to which I have referred earlier in these reasons for judgment.

29. Whether [X] lives in [M] or in the [omitted] district, the travelling time presents a real practical difficulty as does the cost.

    f) the capacity of:

    (i)    each of the child's parents;

    (ii)   any other person (including any grandparent or other relative of the child);

    to provide for the needs of the child, including emotional and intellectual needs;

30. For reasons which I have given earlier I find that the mother has limited capacity to provide for [X]’s emotional and intellectual needs. Whilst there has been no criticism of her capacity to meet [X]’s day to day physical needs, I take into account there is no evidence she has failed to do so.

1. The capacity for the father to provide for her day to day physical needs as well as her emotional and intellectual needs is largely unchallenged and I am unable to make any finding on the present evidence.

2. It is of concern that both parents have a history of mental illness and diagnosed disorders. In that respect, I am satisfied on the evidence that the father is more aware than the mother of the nature of his illness and the necessity for medication although his continued use of marijuana and alcohol is a concern.

3. On the other hand, the mother has relapsed on several occasions and with an extended admission to hospital in 2010 as an involuntary patient. I do not have the same degree of confidence that the mother is aware of the necessity to guard against relapses or that she can.

4. There is evidence before me that the mother has permitted [X] to be either late attending school or absent from school on a number of occasions which are unexplained and I could not be satisfied that the mother recognises the importance of her attendance at school or is able to ensure such attendance.

   g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

5. There is none.

   h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

6. This has no application on the evidence before me.

   i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

7. For the reasons given earlier, the mother has displayed a poor attitude toward her responsibility as a parent by making a unilateral decision to move [X] from the [P] district, by actively preventing her from spending time with the father, by promoting a poor image of the father in [X]’s mind and denigrating the father to her.

8. The evidence establishes that until the father commenced the present proceedings in August 2010 there were times when he did not spend time with [X] as much as he could but it is equally clear on the evidence that he has done all he can to foster and maintain a relationship with her.

9. It is indicative of his willingness to take on the responsibility of a residential parent that I am satisfied that the father is demonstrating an appropriate attitude to be a parent and against a background of what he perceives to be the mother’s failings as a parent and to which, to a large extent, are justified.

   j)any family violence involving the child or a member of the child's family;

10. There is currently before the Local Court in [P] an application by the mother for an AVO against the father in which she and the child are the protected persons and the father is the defendant. There is currently an interim order made 13 February 2012 in the standard order form 1(a) – (c) inclusive.

11. The basis of the mother’s application is less than clear but in general terms, the mother alleges the father threatened to kill her, shoot her and put her in a coffin and made similar threats to [X] but there is no sworn affidavit in the usual form. The father denies the allegations.

12. The matter has been adjourned to a date in August pending the completion of the Family Law proceedings.

    k)any family violence order that applies to the child or a member of the child's family, if:

    (i)the order is a final order; or

    (ii)the making of the order was contested by a person;

13. There is no family violence order in force currently.

    l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

14. I am conscious of the need to do this.

15. It is likely that if [X] lives with her mother and spends time with her father the mother will not comply and which will result in further contravention proceedings instituted by the father.

    m)any other fact or circumstance that the court thinks is relevant.

16. There is none.

    (4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

    (a)  has taken, or failed to take, the opportunity:

    (i)to participate in making decisions about major long‑term issues in relation to the child; and

    (ii)to spend time with the child; and

    (iii)to communicate with the child; and

    (b)   has facilitated, or failed to facilitate, the other parent:

    (i)participating in making decisions about major long term issues in relation to the child; and

    (ii)spending time with the child; and

    (iii)communicating with the child; and

    (c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

17. I have considered these matters at some length in these reasons and no further observation is necessary

Section 61DA

1. When making a parenting order the Court is required to apply a presumption that it is in the best interests of the child for the child’s parents to have equally shared parental responsibility for the child, subject to the presumption not applying or being rebutted in the circumstances provided in the section.

2. The father was silent as to this issue in his amended initiating application whereas the mother in her amended response sought sole parental responsibility in her favour.

3. I am not persuaded that it is appropriate for the mother to have sole parental responsibility for the long term decisions. Historically, the evidence establishes that the mother has made a number of unilateral decisions based upon the premise that [X] should not have a relationship with her father.

4. The father does not adduce any evidence to persuade me that she has attempted to discuss with or involve the father in any long term decisions, which I propose to define to avoid any misunderstanding as to what is required.

5. Whilst communication between the parents has been historically poor and I have no confidence that it is likely to improve without therapeutic intervention, I have some confidence that with the cessation of litigation and stability for [X], the parents will begin to recognise the importance of putting her interests first.

6. In my view, it would be contrary to [X]’s best interests to vest sole parental responsibility in her father, not for the reason that he would be malevolent toward the mother but for the reason that irrespective of my final decision, both parents will continue to have an involvement with [X] and practical matters such as education, cultural upbringing, health and changes to living arrangements, if any, should have input from both parents.

Section 65DAA

1. Consequent upon making an order for equal shared parental responsibility the Court must then consider making an order for a child to spend equal time or substantial and significant time with each parent in certain circumstances.

2. The Court must also consider whether the spending of equal time or substantial and significant time is in the best interests of the child and is reasonably practicable.

3. Sub section (5) of section 65DAA defines the matters to be taken into account in determining reasonable practicability including how far apart the parents live from each other, the parents current and future capacity to implement an arrangement for a child spending equal time or substantial and significant time, the parents current and future capacity to communicate with each other and resolve difficulties that may arise in implementing an arrangement of such kind and the impact an arrangement of that kind will have on the child.

4. I find on the evidence before me that whether [X] lives with her mother in [M] or her father in the [P] district then it is not in the best interests of [X] to spend equal time with each parent purely by reason alone of the geographical distance which separates the parents. It is not a realistic proposition.

5. It is however appropriate for [X] to spend as much time as is reasonably possible with the non residential parent.

The advantages and disadvantages if [X] remains in the [M] district

Advantages

1. [X] will remain living with her mother and continue at her present school, [W] School where she is in Year 3.

Disadvantages

1. It seems to me there are considerable disadvantages insofar as [X]’s relationship with her father are concerned and the difficulty of maintaining that relationship.

2. [X] will be exposed to Mr N.

The advantages and disadvantages if [X] returns to the [P] district

Advantages

1. This is on the premise that [X] will live with her father given the mother’s clear evidence that she has no immediate intention of returning to the [P] district. [X] will be able to return to her old school at [L], she will be able to maintain and develop her relationship with her father and return to an area with which she is familiar.

Disadvantages

1. The disadvantage is that she will be removed from her mother’s care with whom she has lived since separation and which will no doubt cause her some initial distress. Further, the geographical distance separating the two places of residence would prevent the mother from spending substantial and significant time with [X].

2. Whilst Mr P recommended in his second report that [X] live with the mother, preferably in the [P] area, the mother gave no evidence at all of any proposal on her part to adopt such recommendation and return to the [P] district.

Conclusion

1. I conclude on the whole of the evidence before me that [X] should live with her father and for two reasons. First, the evidence establishes it is the only way in which [X] will have the opportunity to benefit from a meaningful relationship with him and I am satisfied that such a benefit exists. Second, the mother’s obstruction to [X]’s relationship with her father would in the long term if permitted to continue cause [X] considerable psychological damage. That risk is not warranted. To that extent I give very considerable weight to the evidence of Mr P as to the mother’s alignment of the child.

2. I am also satisfied from such evidence of the mother’s alignment of [X] and her overt resistance to [X] having a relationship with her father that the mother’s attitude is most unlikely to change if [X] remains living with her.

3. The prospect of the father moving to [T] is remote and is not a viable proposition on the evidence before me even if [X] were to live with him in that district.

4. As to the mother’s health, I have no confidence that the mother is likely to abstain permanently from inappropriate use of alcohol or cannabis but I will order that she attend a drug and alcohol counsellor.

5. That is not to say that the father presents as the perfect parent. Far from it. The father has continued to rely upon the use of alcohol to some extent. For [X] to live with him as a full time parent is untested and will rely upon the father, in his own words, assuming the responsibility of caring for her and lifting his game.

6. In coming to this conclusion, I am well conscious of the risk of [X] living with her father but on balance I have little hesitation in concluding that of the two alternatives, that presents with the greater promise of [X] having a relationship with both her parents and growing up as an emotionally secure child.

7. There are however a number of injunctive measures that are appropriate, namely that both parents be restrained from consuming alcohol or prohibited substances during the period from 12 hours before and during the time [X] is in the presence of either of them.

8. The father is to arrange for [X] to see his General Practitioner and is to arrange for a referral to a psychologist or counsellor under the GP Mental Health Care Plan Scheme for assistance and support in relation to any problems [X] may experience in leaving her mother to live with her father.

9. Each of the parents is to obtain a referral to a drug and alcohol counsellor to assist with resolution of their present drug and alcohol abuse or addiction.

10. The father is to ensure that [X] attends school and is absent only for good reason as notified to the school and it seems to me that a 95% attendance rate nominated by the Independent Children's Lawyer is entirely appropriate.

11. I agree also with the proposal by the Independent Children's Lawyer that the father make contact with the Brighter Futures Programme as he will require some assistance in all probability coping with the role of full time residential parent. Similarly, I support the Independent Children's Lawyer’s proposal that if there is a delay in engaging in the Brighter Futures Programme then the father is to seek support from Burnside Family Support Services in [P].

12. I do not find on the whole of the evidence that it is necessary for the mother’s time with [X] to be supervised, as suggested by the father, but rather, changeovers are to take place at Interrelate at [C].

13. Given the geographic distance between the [P] district and [M], I find it is appropriate for [X] to spend time with her mother every third weekend during school terms and for half the school holidays at the end of the first, second and third terms and for periods of two separate weeks during the Christmas School holidays as suggested by the Independent Children's Lawyer.

14. In all other respects, I propose to adopt the draft minutes suggested by the Independent Children's Lawyer which I find are appropriate.

15. In coming to this conclusion, I find on the whole of the evidence before me when I come to consider the advantages and disadvantages, that the advantages of [X] living with her father in the [P] district far outweigh the alternative of living with her mother in [M] and which flows largely from the mother’s very poor attitude to her responsibility as a parent.

16. I anticipate that the mother will be disappointed with my decision but she will of course be able to maintain a relationship with her daughter.

17. I have taken into account the right of both parents to choose their place of residence and their freedom of movement.

18. It seems to me important that to ensure compliance by the parents with the orders I propose to make that I retain the appointment of the Independent Children's Lawyer for a period of 6 months.

19. I have also considered whether it is possible for the Court to formulate a different arrangement for [X] and conclude that it is not.

20. For these reasons I make the following orders.

I certify that the preceding three hundred and fifty-seven (357) paragraphs are a true copy of the reasons for judgment of Coakes FM

Associate: 

Date:  16 August 2012