CHABAN & ODELL

FAMILY COURT OF AUSTRALIA

CHABAN & ODELL

[2019] FamCA 378

FAMILY LAW – CHILDREN – Best interests of the child – where the parties agree that the child shall live with the father – where the father seeks orders for sole parental responsibility and that the child spend day time only with the mother – where the mother seeks orders that the parties share parental responsibility and that she spend substantial and significant time with her –where there is no expert in the proceedings – where both parties are self-represented litigants – where the mother has a history of mental health difficulties and alcohol abuse – where both parents have at times demonstrated a limited parental capacity – where the mother’s conduct towards the child amounts to psychological abuse and neglect –– where it is found that the mother poses a risk of abusing and neglecting to the child but that this risk is mitigated by her spending limited hours during the day with the child – where orders are made as sought by the father.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61B, 61C, 61DA, 69ZX(3)
Mental Health (Forensic Provisions)1990 (NSW) s 32

G & C [2006] FamCA 994
Godfrey & Sanders [2007] FamCA 102
Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT:

Ms Chaban

RESPONDENT:

Mr Odell

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta

FILE NUMBER:

PAC

390

2017

DATE DELIVERED:

3 May 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

6 November 2018, 18 December 2018

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Soliman

Orders

That the father have sole parental responsibility for Y born in 2004 (“the child”);
That during the school term the child spend time with the mother each alternate Sunday from 8am to 6pm and each Wednesday from after school to 7:30pm.
That the child spend additional time with the mother as agreed between the parties, but failing agreement as follows:
(a)       From 8am to 6pm on Mother’s Day;
(b)       For a period of four days from 8am to 6pm, during the short school holidays as agreed between the parties in writing;
(c)       For a period of ten days from 8am-6pm during the long summer holidays as agreed between the parties in writing;
(d)       On the child’s birthday, if such day falls on a school day, from after school until 6pm and if it falls on a weekend from 9am to 1pm that day;
(e)       At such other times as agreed by the parties.
That the father facilitate the child communicating by telephone with the mother whenever she expresses a wish to do so;
That the mother’s time with the child is suspended on Father’s Day;
That the mother’s time with the child pursuant to order 2 is suspended during school holiday periods;
That the mother or her nominee be responsible to deliver and collect the child from the child’s school or the father’s home to facilitate orders 2 and 3;
That each parent give all authorisation necessary for the other parent to receive copies of the child’s school reports, newsletters and school correspondence;
That the mother is entitled to attend all school functions that parents are ordinarily invited to attend and other extracurricular activities that involve the child;
That each parent is to provide current contact details including an address and telephone number to the other parent and advise of any changes within seven days of such a change occurring;
That in the event that the child has a medical emergency the other parent will be notified as soon as possible and both parents may visit the child in the event of hospitalisation;
That each parent be restrained from making any derogatory comments about the other parent or any other members of that parent’s household or extended family in the presence of the child;
That the mother be restrained from consuming alcohol for 48 hours prior, and at any time during, the period that the child is in her care pursuant to these orders;
That the child, Y, born in 2004, be hereby removed from the Airport Watch List.
That the father be permitted to remove the child from the Commonwealth of Australia for the purposes of travelling internationally;
That the father be required to provide to the mother not less than 14 days before the intended travel, information regarding:
(a)       The itinerary of the intended overseas travel;
(b)       A telephone number on which the mother may contact the child at all reasonable times while she is overseas;
(c)       Details of where the child shall be staying during her period of travel.
That the father will ensure that the child have make-up time with the mother to account for the time she misses spending with the mother in accordance with these orders;
That all current and expired Australian, Country G and Country C Passports of the child that are held by the Registrar of this Court be released to the father within five days of these orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 390 of 2017

Ms Chaban

Applicant

And

Mr Odell

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns the long term parenting arrangements for Y who is 14 (“the child”). Y is the only child of Ms Chaban (“the mother”) and Mr Odell (“the father”).
The mother who is from Country C and the father who has lived in Australia throughout his life lived together for a very short time when the mother was pregnant and separated shortly after the birth of the child.
The child has lived in various parenting arrangements with her mother or her father throughout her life.
When living with the mother the child has experienced the chaotic and at times frightening impact of the mother’s alcohol misuse and the mother’s erratic and violent behaviour which has resulted in police action. From time to time the mother has relinquished the care of the child to the father.
There had been a number of applications made to the Federal Circuit Court and in December 2013 that court made orders with the consent of the parties that they equally share parental responsibility for the child, that she live with the father and spend defined time with her mother each alternate weekend and half of school holidays and that the mother be restrained from consuming alcohol when caring for the child.
In January 2017 the mother initiated further proceedings in the Federal Circuit Court to revisit the parenting arrangements. A few months later the parties attempted to vary the orders by consent with a view to the child living with the mother and spending time with the father as agreed between the parties but the court declined to make orders in these terms. The parties nonetheless implemented this arrangement and the child returned to live with her mother. The mother continued to behave erratically and attempted to return the child to her father but he once again returned the child to the mother.
The mother subsequently sought to relocate with the child to the United Kingdom which was opposed by the father and the child’s name was placed on the Airport Watch List. At this stage an Independent Children’s Lawyer (“ICL”) was appointed and the proceedings were transferred to this court.
There was a further incident in October 2017 when the mother was intoxicated and made threats to harm various people including the child.
In November 2017 interim orders were made for the child to live with the father, that he have sole parental responsibility for her and that she spend limited time with the mother, each alternate Saturday afternoon. The child has remained living with the father and spending limited time with the mother since this date.
It is the father’s proposal that he continue to have sole parental responsibility for the child, that she live with him and spend time with the mother for a ten hour period during the daytime each alternate Sunday and on one afternoon after school and for a number of days (but no overnight time) during the holidays.
It is the mother’s proposal that orders be made for her to share parental responsibility for the child with the father and that the child spend time with her each alternate weekend from after school on Friday until Monday morning, one afternoon after school for a few hours and half of school holidays and on special days and that both parents be permitted to travel internationally with the child.
The ICL seeks orders that the father have sole parental responsibility for the child, that she live with him and spend time with the mother each alternate Sunday from 9am until the commencement of school on Monday, for a few hours after school one weekday and for a three consecutive nights in the short school holiday periods and ten consecutive nights in the long summer holiday period. As each of the parties and the ICL agreed that it is in the child’s best interests that she live with the father a final order has been made to this effect with the consent of the parties.
The outstanding issues for me to determine are whether it is in the child’s best interests for both her parents to hold equal shared parental responsibility for her or whether it is to be allocated to the father alone and what orders with respect to the child’s time with the mother are proper having regards to her best interests being the paramount consideration.

Background

The mother who is 47 and the father who is 52 met in 2000 in Country G where the mother was then living. They commenced a relationship in which they took holidays together once a year until 2004. In 2004 the mother became pregnant with the child and moved to Melbourne to live with the father.
In December 2004 the parties’ only child was born.
At the beginning of March 2005 the parties separated and the mother and the child moved to separate accommodation within the paternal grandparents’ home in Sydney. The mother claims that the father travelled to Sydney approximately three times a year to spend time with the child, though the father says that he spent regular time with the child on both weekends and holidays. This is not a matter of significance which requires resolution in the proceedings.
The father deposes that the mother has a long history of depression and alcohol misuse and that she neglected and subjected the child to physical and emotional abuse while in her care. These are significant matters in these proceedings to which I will return.
In March 2006 the mother began a relationship with a Mr F and she and the child moved to live with him. In December of that year Mr F rang the police and requested that they attend his home to remove the mother following a verbal argument.
In 2006 the father married his current partner (“the father’s wife”). They subsequently had two children- a son, born in 2007 and a daughter born in 2010 (“the father’s other children”).
At some time in 2010 the mother began a relationship with a Mr B. This relationship appears to have been characterised by violence. In one incident the mother was punched in the head and injured by Mr B. He was charged with assault and an interim Apprehended Domestic Violence Order (“ADVO”) was made against him for the protection of the mother.
In November 2011 the mother phoned the police stating that she was going to harm herself. She had delivered the child, then aged seven, to the home of the paternal grandparents and then attended her workplace. When the police arrived at the mother’s business they observed her to be vomiting, intoxicated and confused. She was then admitted to hospital.
The clinical notes related to the mother’s hospital admission record that the mother said “she doesn’t want her daughter back” and “she would like to return to Europe alone to resume her life there”. It is recorded that she was “ambivalent re daughter’s return but has made no firm decision”. It appears that despite these matters following this admission the mother resumed care of the child.
In June 2013 police were called to the mother’s home by her neighbours who complained about noise coming from her unit in the early hours of the morning. The police records indicate that when they attended the mother smelled of alcohol and appeared confused and accused the police of making the noises complained of. It is then recorded that she woke the child who was sleeping in her bedroom and began to yell, before the police asked her to put the child back to bed. A short time later the mother attended the police station with the child, placed the child on the counter and began walking away. The mother was stopped by police and she told them that she didn’t want to have the child with her that night. A friend of the mother’s then attended the police station to take care of the child for the night.
It is recorded by police that the mother then returned to her unit where she continued to make noises and behaved in a manner which intimidated her neighbours. The police were again called. When they attended they saw the mother using a key to scratch her neighbour’s car. When she was arrested in relation to this conduct, police records indicate that the mother said that she intended to throw the child onto a busy road so that a car would run over her and she could return to live in Country C. The mother was then scheduled under the Mental Health Act 2007 (NSW) and admitted to hospital. She was charged and found guilty of malicious damage and subsequently required to enter into a 12 month good behaviour bond.
In September 2013 the mother began a relationship with Mr B (“the mother’s current partner”) who is a British citizen and now resides in the United Kingdom.
On 9 November 2013 an incident occurred which precipitated the child being returned to the father’s primary care. On this date the child who was then aged nine reported to police that she and the mother had an argument in relation to the mother’s excessive drinking. The child had left the mother’s home and entered a restaurant where she spoke to the owner who called the police on her behalf. When police arrived at the restaurant the child was observed to be crying and shaken. The paternal grandparents who had also turned up took the child into their care. The police records indicate that they then attended the home of the mother with the assistance of the paternal grandfather. The mother appeared to be seriously intoxicated and had passed out on her bed, half dressed. The mother was unable to account for what had happened that night or tell the police where her daughter was. She became aggressive to police and the police left her home.
On 9 November 2013 the child returned to live with the father. He filed an Initiating Application on 18 November 2013 seeking urgent orders that the child live with him.
The child was enrolled in a school near the father’s home.
On 17 December 2013 final Orders were made with the consent of the parties for the child to live with the father, the parties to share parental responsibility and the child to spend time with the mother each alternate weekend and half of school holidays. It appears that the orders were complied with without incident for some time.
In August 2015 the mother claims to have been diagnosed with “stage four cancer” and commenced treatment. The mother also deposes that at some stage which is unclear she has been told by her oncologist that her cancer is in remission. No medical evidence has ever been adduced in relation to this contention.
The mother contends that in January 2017 the father proposed that the child live with her but she was of the view that given her mental and physical health problems she was unable to assume the child’s care. This contention is at odds with the orders she sought in an Initiating Application filed in the Federal Circuit Court on 31 January 2017 that the child live with her, and spend significant and substantial time with the father.
In February 2017 the mother was involved in an argument with a neighbour. It began as a verbal argument but the mother also picked up a mop handle and repeatedly struck the neighbour. When the police arrived at the mother’s home she attempted to assault them and spat on one of them. The mother was arrested and charged with assault, assault of a police officer and resisting arrest. She was dealt with under the s32 Mental Health (Forensic Provisions) Act 1990 (NSW), a provision which diverts mentally ill offenders into the mental health system rather than dealing with them under the criminal justice system. Under cross-examination the mother initially stated that she did not remember this incident and then said that she did recall the incident but denied ever assaulting her neighbour. She did however admit to assaulting a police officer and resisting arrest.
The mother contends that in March 2017 the father made the unilateral decision to return the child to live with her. She says he told the child to pack her bags and left her outside his house with her belongings and called the mother to pick the child up. The father does not agree entirely with the way in which this arrangement came about but does not dispute that the child returned to live with the mother at this stage.
On 18 April 2017 the parties agreed to an interim arrangement that provided for the parties to equally share parental responsibility for the child, for the child to live with the mother and spend time with the father as agreed between the parties. Orders in these terms were provided to a judge of the Federal Circuit Court in chambers, who refused to make them. Nonetheless the parties agreed to continue this arrangement and the child remained in the mother’s care, in a suburb of Sydney some distance from the father. The child was enrolled in a new school near the mother’s home.
It is the father’s contention that as soon as the child returned to live with the mother, the mother prevented him from communicating with or spending time with the child. The mother deposes that it was the child who was reluctant to communicate with or spend time with her father. There is no dispute that there was limited communication between the father and child for a couple of months.
On 6 June 2017 there was an incident in which the mother whilst intoxicated told the child that she was taking her to live with the father. The child became distressed and took herself to the home of the paternal grandparents, who called the father. The child spent the night with the father and then returned to the mother the following day.
In June 2017 the parties and the child attended upon a family consultant of the court for the purposes of a Child Inclusive Conference (“CIC”). Curiously the family consultant records that the parties reached an agreement at the CIC that the child would relocate with the mother to live in the Country D and could spend time with the father either in Australia or overseas as per her wishes. At the CIC one of the issues in dispute related to the child’s contact with the paternal grandparents. The father wished for them not to have any such contact to protect them from any further stress in having to deal with the mother and the mother sought that a relationship between the child and her paternal grandparents should be facilitated. At the CIC the father expressed ambivalence towards his relationship to the child and confirmed that “[the child] came second or third in ranking to his two children, while she was living with him”.

On 6 September 2017 interim orders were made which allowed the father to telephone the child between 7pm and 8pm every day, an ICL was appointed and the matter was transferred to the Family Court.
A few days later the father filed an Application in a Case seeking that the child’s name be placed on the Airport Watch List and that the mother surrender the child’s passports. The father contends that this order was sought because he feared that the child would be abducted by the mother and the mother’s current partner to live in the Country D. The Watch List order resulted in the mother cancelling a planned holiday for herself and the child to the Country D in October 2017.
The mother deposes in her affidavit that she never intended to relocate to the Country D with the child, but that her comments at the CIC related to her hope that in the future the child might pursue tertiary education in Europe. The mother has never sought an order that she be permitted to change the child’s residence to a location overseas.
On 3 October 2017 the mother who was intoxicated contacted the paternal grandmother by telephone and threatened to harm the child and the father’s other children. The mother acknowledges that she made these threats, as she was angry that the father had not paid child support. The father contacted police who attended at the mother’s home and found her in a highly intoxicated state. The child was located by the police safe at a friend’s house.
On 9 October 2017 the mother was intoxicated and very distressed about she and the child not being able to travel overseas. She took the child to a police station and dropped her there telling her to live with the father. Under cross-examination the mother stated that the child was very upset and that she left the child at the police station without saying a word to her. The father attended and the child again began living with him. The child’s school was again changed to a school near to the father’s home. The child has lived at the father’s home since this date.
In November 2017 interim orders were made for the child to live with the father and for him to have sole parental responsibility for the child and that she spend time with the mother each alternate Saturday from 5pm to 7pm at a restaurant.
On 20 March 2018 the parties were ordered to attend mediation and orders were made for the father to facilitate the child spending time with her paternal grandparents.
On 6 April 2018 an incident occurred between the mother, her neighbour and her neighbour’s child which resulted in the mother being charged with two counts of assault and stalking and intimidating the victim. The mother pleaded not guilty to these charges. The circumstances surrounding this incident are largely unknown. Under cross-examination the mother conceded only that she had called her neighbour a name.
On 6 November 2018 the final hearing commenced. The mother had been under cross examination for a short time when the proceedings had to be adjourned as the ICL had fallen ill. Both parties consented to an order on a final basis that the child live with the father.
On 18 December 2018 the final hearing was completed subject to one remaining issue in relation to outstanding criminal charges against the mother, arising from the April 2018 incident. Those proceedings were dealt with in February 2019 at a Local Court. At the conclusion of the hearing I indicated that I would request the file from the Local Court when the proceedings were completed and that if necessary the proceedings would be relisted. As the charges were withdrawn and dismissed it did not appear necessary for further hearing. Accordingly judgment was reserved on 25 March 2019.
At the completion of the final hearing the father was granted leave to travel with the child on a holiday to the United States in April 2019, but otherwise the child’s name was to remain on the Airport Watch List. The mother was ordered to bring the child’s passports to the Family Law Registry, where they would remain only to be released by order of the court.

The Areas of Dispute

The mother’s mental condition and alcohol use and whether it led to the abuse or neglect of the child

It is the father’s case that the mother’s history of mental illness and alcohol abuse impairs her parenting capacity to the extent that it is the child’s best interests to spend only limited day time hours with the mother.
The father deposes that the mother has suffered with mental health and alcohol abuse problems since the child was an infant and that these problems are ongoing.
It is the mother’s case that although in the past she used alcohol to manage her stress she never abused or physically assaulted the child. Further she contends that any difficulties associated with her mental health and/or alcohol abuse are in the past.
The mother in her trial affidavit acknowledges a history of mental illness and that she used alcohol in the past to deal with her stress. In an earlier affidavit, dated 6 November 2017, which she was given leave to rely upon the mother emphasised that her alcohol use was a method of self-medication when stressed. She deposes that she “suffered from post-natal depression and mental health issues” and that “unfortunately I used alcohol when I was overstressed” and “I only use alcohol as a stress relief”.
The mother deposes in her trial affidavit that she has undergone counselling at a drug and alcohol counselling service and that she has been treated for her mental illnesses by a psychiatrist and psychologist. Of her current mental health and alcohol use she deposes:
I accept I have mental health issues I honestly believe I’ve got on top of over the last 12 months [sic]. Physically I feel much better than I have for a long time (cancer free) and since closing my shop my daily stress levels have reduced significantly. I rarely drink alcohol other than socially.
There is little dispute that in the past the mother has been diagnosed with various mental illnesses or mental conditions and has misused alcohol which on a number of occasions has led to her being charged with criminal offences. The father also contends that the mother’s mental condition and alcohol use has led to her neglecting or abusing the child.
The father also contends that on a number of occasions when intoxicated the mother has expressed ideas of abandoning, hurting or killing the child and that on occasions that when intoxicated she has perpetrated acts of family violence.
The first incident of this kind according to the father occurred in 2005 when he deposes that the mother was intoxicated and punched him in the face and threatened to kill herself and the child who was then an infant. The mother is silent about this incident in her affidavit and was not cross-examined about it.
The father next alleges that in November 2011 the mother delivered the child to the home of the paternal grandparents when she was contemplating harming herself and was later found by police to be highly intoxicated. When admitted to hospital, she made comments expressing a wish to abandon the child so that she could return to Europe. The mother does not deny or provide an alternative account of this incident and hospital records corroborate that the mother presented to the emergency department at this time. Clinical notes produced on subpoena and admitted in the proceedings record that the mother was “expressing ideas that she doesn’t want her daughter back”.
Police records indicate that an incident occurred in December 2011 between the mother and her former partner in which the mother allegedly slapped the former partner twice and poured a glass of wine on his face. She had left his home by the time the police attended. When the mother returned to the former partner’s home, at approximately 3.00am, she was accompanied by child. The police records indicate that the mother was moderately intoxicated and told them that the child had been sleeping at her home alone. The mother provides no account of this incident in her affidavit.
In May 2012 an incident occurred in which the mother was sitting in her parked car continuously sounding the horn. The child became concerned and called an ambulance for her mother. When the ambulance attended the mother became uncooperative and the police were called. The police record that the mother became more and more erratic in the ambulance, uncontrollably laughing, squealing loudly and talking off topic. At hospital she had to be forcibly restrained to a hospital bed because she was striking, kicking and biting. The mother provides no denial of or alternative account for this incident. Hospital records corroborate the police records of this event and indicate that the mother had been drinking alcohol on the day.
The father alleges that in June 2012 the child contacted the paternal grandparents asking them to pick her up because the mother was having “another one of her episodes”. When they arrived the paternal grandparents found the child sitting outside the home in the dark. The mother provides no account of this incident, but does not deny that it occurred.
The father makes a further allegation that on 19 July 2012 the mother was arrested and charged with driving under the influence of alcohol. The mother rang the paternal grandparents to request that they check on the child who was at the mother’s home alone. The mother is silent as to this allegation. Police records confirm that the mother was charged with drink driving on this date.
Police records also indicate that an incident occurred in June 2013 in which the police responded to a noise complaint at the mother’s home. It is recorded that when they attended the mother’s home she smelled of alcohol, was argumentative and made little sense. The mother slammed the door to the police and woke the sleeping child, held her up to the window and said “see them, they are police”. The police record that the child became frightened and they asked the mother to put the child back to bed, which she did. In the early hours of the same morning, the mother took the child to a police station and left her there. It is recorded in police records that when she was interviewed by police the mother stated that she wanted to throw the child onto a busy road so that she could return to Country C and that she wished to return to live in Europe. The mother provides no denial or alternative account of this incident.
The mother was admitted to hospital under the Mental Health Act 2007 (NSW) following this incident. Hospital notes in relation to that admission record that the mother “reports daily alcohol intake of 2 glasses wine per day (appeared to be minimising), as well as reporting 2 bottles of wine at night multiple times during the week”.
In November 2013, when the child was only nine years old, she had an argument with the mother about her drinking problem, which resulted in the child leaving the mother’s home in distress and asking a restaurant to call the police on her behalf. On this occasion police records indicate that the mother called the paternal grandparents to meet the child at the restaurant. The father alleges that during this incident the mother called the child belittling names such as “little bitch” and “wimpy child” and threw a pair of shoes at the child, hitting her in the head. When the police attended the mother’s home they found her to be smelling of alcohol and only partially clothed. They requested that she dress herself but she refused. The mother was unresponsive to police questions and seemed to not understand or remember what had occurred. The mother is reported to have become aggressive towards the police. The police reported the incident to the Department of Community Services (“Community Services”) and the child came into the care of the father.
In February 2017 as referred to in the background, the mother was involved in an argument with the neighbour in which she picked up a mop handle and repeatedly struck the neighbour. According to police records, when police arrived at the mother’s home, she spat on a police officer. Her charges were dealt with by the Local Court magistrate under section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW).
For the purposes of the section 32 application, a clinical report dated 9 October 2017 was provided to the Local Court from the mother’s treating psychologist in relation to the mother’s history of mental health issues. In that report, the author recorded that the mother had sought treatment for “problem-solving stressors, treatment of anxiety and reduction of alcohol use” over 26 session from 2011-2014 and that she then re-engaged with treatment in May 2017.
The psychologist records a diagnosis of the mother’s mental health issues as:
Major Depression with Post-Partum onset, and Generalised Anxiety Disorder. She has reported a history that includes difficulty regulating her emotions when acutely stressed and using alcohol to cope with her emotions. In this context she has reported at times behaving in an irrational manner consistent with an Alcohol Abuse Disorder. [the mother] recalls these mental health problems as dating from the post-partum period (12 years ago) and precipitated by the stress of finding herself in a foreign country as a single mother. In addition on further assessment [the mother] has disclosed symptoms that are consistent with Post-traumatic Stress Disorder.
The psychological report also included a treatment plan for the mother which included that she attend regular psychological therapy sessions, group therapy sessions about emotional regulation, a referral to a drug and alcohol service for treatment and that her general practitioner undertake a review to ensure that her symptoms are being managed.
In October 2017, the mother’s charges were dismissed on the basis that she comply with a mental health plan which set out the treatment plan referred to by the psychologist. In dealing with the mother under these provisions, the magistrate was satisfied that the mother was then cognitively impaired, suffering from mental illness or suffering from a mental condition which is treatable at a hospital.
In October 2017 the mother concedes that she phoned the paternal grandmother and threatened to harm and kill the father’s other children and her child. While the mother concedes that she made these comments she deposes that she “just wanted to cause emotional pain (not physical harm) to ‘his kids’ and not to [the child]”.
I am satisfied on the basis of the foregoing matters that the mother has suffered from various mental health conditions including major depression for at least 14 years since the birth of the child and generalised anxiety. I am also satisfied that the mother has experienced difficulties regulating her emotions when acutely stressed for many years and has used alcohol to cope with her emotions. Her reported use of alcohol and well documented pattern of behaving in an irrational manner the psychologist records is also consistent with an alcohol abuse disorder. I am satisfied this has been a feature of the mother’s conduct and presentation for a lengthy period of time. In this regard I attach particular weight to the opinion of the psychologist which was also accepted by a Local Court when the mother was dealt with for various offences. The mother also does not challenge either through her affidavit or through cross-examination of the father his evidence concerning her aggressive and irrational behaviour on numerous occasions. Further police and hospital records where available corroborate the father’s version of events. The mother also conceded some matters under cross-examination.
A question then arises as to whether the mother currently has an alcohol abuse disorder/or mental health conditions that cause her difficulties in regulating her emotions and whether she still uses alcohol to cope with those emotions.
The mother does not depose in her affidavit to complying with the treatment plan upon which her charges were conditionally dismissed in October 2017 nor does she set out the details of any treatment that she has received.
Under cross-examination the mother gave evidence that she no longer has difficulties with alcohol use since attending treatment in City K in April 2018. However she does not adduce any evidence to support this contention or indicate the nature or extent of treatment she has undergone. She also stated that she is no longer stressed as she sold her shop and the child is no longer living with her and that she only drinks when she is stressed.
The mother’s most recent contact with police in April 2018 which resulted in her arrest for allegedly assaulting and stalking or intimidating a neighbour and the neighbour’s child does give rise to more recent concerns about her mental state, alcohol use and behaviour. Although the Local Court records indicate that charges were withdrawn and dismissed, the reasons for this are unknown and the dismissal is not determinative of the issue in these proceedings. However, the mother does not give any account of her conduct on that occasion and there is no evidence such as police records adduced in relation to this matter. Given the mother’s past history of alcohol fuelled violence perpetrated against her neighbours, in my view there remains a real risk that alcohol misuse and mental health difficulties resulting in erratic behaviour remain risk factors associated with the mother.
For these reasons I am satisfied on the balance of probabilities that the mother’s mental health difficulties and alcohol misuse are likely to continue to be ongoing. The mother has a long history of mental health challenges and alcohol misuse dating back to when the child was an infant. She has provided no evidence on which I can rely of the treatment she claims to have received in relation to her mental health or alcohol abuse or the effectiveness of such treatment. She deposes to only drinking when stressed and further states that she has no stress in her life. However, periods of stress in the future are inevitable and the court can have no confidence that the mother will not misuse alcohol when they do arise.

The Law & Discussion

The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations: s 60CC(2)

The primary considerations (under s 60CC(2)) 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.
I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[1] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[2] and has also agreed with the reasoning of Bennett J in G & C[3].
[1] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[2] (2007) Fam LR 518
[3] [2006] FamCA 994
Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
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”.
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
Each of the proposals of the parties and the ICL would see the child share a relationship which is meaningful with both parents. Although the father’s proposal does not involve the mother having overnight time which may at first blush suggest that the relationship may be too limited to be considered meaningful, in my view it accords with the Objects of Part VII which states that a child should have the benefit of parents having a meaningful involvement in her life to the maximum extent consistent with her best interests. Further, a meaningful relationship has not been interpreted as an optimal relationship.[4]
[4]Godfrey & Sanders [2007] FamCA 102 at 36
The second of the primary considerations is the most salient in these proceedings. The child has been subjected to abuse and neglect in the care of the mother in the past associated with her alcohol misuse and mental condition. There is a well-documented history of incidents occurring from time to time throughout much of the child’s life when the mother has become emotionally overwhelmed and has threatened to harm or abandon the child or has relinquished the child’s care to police, the father or other family members such as the paternal grandparents. The child has been found to be highly distressed on these occasions and it is likely that she has experienced psychological harm as a result.
On other occasions, the child has been neglected when the mother has been intoxicated in the sense that she has been provided with inadequate supervision and has had to fend for herself and seek assistance from the police, members of the community of members of her extended family. Further when the mother has been misusing alcohol and is in a poor state she has been emotionally unavailable to the child.
There have also been occasions on which the mother’s dysregulated behaviour and poor emotional control have been associated with her perpetrating family violence such as the occasion in 2005 when the mother punched the father and more recently in 2017 when the mother made threats to harm and kill the child and the father’s then children.
Although there was no expert evidence adduced in these proceedings concerning the potential harms to the child occasioned by the mother’s alcohol use, section 69ZX(3) of Act permits a court to adopt findings made in other court proceedings. In parenting proceedings before me in 2017 reported as Suarez & Turner[5], one of the significant factors related to a parent’s mental health difficulties and alcohol misuse. In those proceedings an expert opined that a parent’s mental health difficulties and alcohol use is likely to lead to a child in that parent’s care having a disrupted developmental path. I adopt that finding in these proceedings.
[5][2017] FamCA 935 at 141
Having regard to my assessment that it is more likely than not that the mother will continue to misuse alcohol particularly at times of stress, there remains a significant risk that she will make threats to harm the child, abandon or neglect the child or expose the child to her dysregulated and volatile conduct associated with her alcohol use and thereby harm the child.
It is the father’s case that, the appropriate way to mitigate the harms associated with the mother’s care of the child is to limit her time with the child to day time only.
Although the mother’s position in relation to any risk of harm posed by her is not entirely clear, I understand that she contends that there are no current issues in relation to her mental health and her alcohol use is no longer a problem as various stressors have been removed from her life. In light of the orders that she proposes, which include the child spending substantial and significant time with her, I take it that she contends that she does not pose a risk of the kind contemplated in this consideration to the child.
As I understand it, the ICL recognises that the mother does pose a risk of harm to the child on the basis that she may be subjected to abuse or neglect or exposed to family violence in the mother’s care but that the risk is not of such a magnitude that it precludes the mother from spending overnight time with the child. The ICL intends through the orders she proposes to give the benefit to the child of having a more meaningful and developed relationship with her mother through spending more time, including overnight time, while protecting the child from harm. While I accept the ICL’s position that the child will have a more meaningful relationship with her mother if she were to spend overnight time with her, I am required to attach greater weight to the need to protect the child from harm than to the benefit to her of having a meaningful relationship with both parents.
It is not in dispute between the parties that it is in the child’s best interests that she live with the father and a final order was made to this effect in December 2018. In making such an order I accepted the agreed position that it was in the child’s best interests to live with her father. In doing so I did not however accept that the father has not at any time posed any risk to the child. Rather, in my view, there have been some legitimate concerns in the past arising from the father on numerous occasions returning the child to the mother’s care when clearly there were serious risks in her household. In my view at some stages the father’s conduct almost amounted to abandoning the child. There can be in my view no doubt that his actions in returning the child to the mother’s care on two occasions in March 2017 and June 2017 were experienced as distressing and confusing for the child who described the father at this time as having “kicked [her] out of home.” As noted by the social worker who more recently interviewed the child in relation to her views, both parents displayed a complete lack of empathy for the child’s emotional wellbeing at this time.
Of particular concern also was the ambivalence that the father expressed to the family consultant in June 2017 about his relationship to the child and confirmation that she came “second or third in ranking” to his other children and his desire at that time to not permit the child to have contact with the paternal grandparents.
It appears that the incident in October 2017 when the mother left the child at a police station was a watershed moment for the father. The views of the family consultant in her Memorandum to the court that if both parents could not care for the child then Community Services should be invited to intervene was a wakeup call for him to take on appropriately his responsibilities for the child. Since 9 October 2017 when the father collected the child from the police station she has consistently lived with him. He has since this time demonstrated a high level of commitment to the child and provided her with a secure and stable home. He has also appropriately expressed regret concerning his previous behaviour to the child and there is no evidence from which I could be concerned that the child is currently neglected or subjected to psychological abuse in his care or that there is an unacceptable risk this will occur in the future.

Additional considerations: s 60CC(3)

Section 60CC(3) then sets out additional matters the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views of the child and factors underlying those views

The child who is 14, was interviewed by a social worker instructed by the ICL about her views concerning her future parenting arrangements. The social worker who prepared a report in relation to the child’s views was cross-examined in the proceedings.
In her report dated 8 March 2018 the social worker records that:
[The child] said she only sees her mother for a few hours every fortnight and is not happy with that arrangement; saying she would like to go back to seeing her mother overnight, as this had worked well in the past… [The child] said she enjoys spending time with her mother and would like to go back to overnight visits; suggesting a good arrangement would be to spend time with her mum from Sunday to Monday morning, every second weekend. [the child] did not think it would be a problem for her mum to get her to school on time on Monday mornings.
Of holiday time and communication the child said:
She would also like to spend time with her mother during school holidays, at least one week over the Christmas break and overnight contact during other school holidays… [The child] said she would like to be able to talk to her mother as well as text. But noted all mobile contact needed to be managed by her, so she would initiate all calls and text messages to her mother… [The child] said she needs to see her mum, this relationship is important to her and the purpose of contact was about making her happy not about making life easier for her dad.
Of her living with the father the child expressed the view to the social worker that:
She understands why her father and stepmother can provide her with a stable and safe home environment. [The child] said she enjoys a good relationship with her stepmother, [the father’s wife]. She accepts living with her father and [the father’s wife] is in her best interests and is happy to be back at her old high school.
The social worker opined that:
[The child] presented as an intelligent, insightful and resilient young woman who displayed an ability to interact and engage appropriately in the interview process… [The child] displays a maturity and resilience far beyond her chronological age of 14 years, she has a good appreciation and understanding of her current situation and is able to attach potential consequences for herself. What [the child] lacks is the resources to resolve the issue of contact on her terms. She has good problem solving skills and what she is seeking is to be supported to continue to develop her relationship with her mother in order to meet her needs rather than on what is easier for her father.
Given the child’s age and statements that appear to indicate a genuine yearning to spend more time with the mother I attach significant weight to these views.
The ICL’s proposal which is in line with the child’s expressed views clearly indicates that the ICL considers that significant weight should be attached to those views. While I do attach such weight to the child’s views for the reasons previously given I am of the view that they must not be elevated to being determinative in this dispute where the need to protect the child from harm is so great.
To date the child has demonstrated a clear capacity to act protectively for her own safety but as opined by the family consultant “she is still a child in need of protection and a child who needs to have safe and reliable adults who prioritise her needs and are available to her”. The family consultant opined that the child may not wish to involve police in order to protect herself as she has done in the past as she may consider this as getting the mother into trouble. In these circumstances I have some concern that if the child’s views are given too much weight they may effectively be prioritised over the need to protect her from harm which is the responsibility of adults in her life rather than a matter for which the child should be responsible.

Nature of the child’s relationship with each parent and other significant persons (including grandparents or other relatives)

The child has expressed views to the social worker which reflect that she has a strong relationship with both her parents. The parties have all agreed and an order has been made to that effect that the child will continue to live with the father as this will provide her with the most stable and safe home.
The child’s relationships with both of her parents has at times been fractured because of the high level of acrimony between the parents which has made them unable to place the child’s needs above their own. The social worker opines:
[The child] accepts her parents share an acrimonious relationship and it has been difficult at times to find her place within this often volatile situation. She does view her father’s behaviour towards her mother as punitive and her mother is vulnerable to irrational behaviour when under considerable stress or the influence of alcohol. In order to keep the peace she has withheld information as well as misinformed her father or mother at differing times. [The child] said she does not want to be the cause of ongoing stress and angry feelings between her parents. However she does want to spend time with her mum and continue to develop the mother/daughter relationship.
The mother has re-partnered, though her partner now resides in the Country D and did not give evidence in the proceedings. The family consultant reported that when interviewed in June 2017 the child stated she had a positive relationship with the mother’s partner. Otherwise very little is known about him and I can make no findings about that relationship.
The family consultant reported a fractured relationship between the child and the father in June 2017, but the relationship appears to have been significantly repaired since the child has lived with the father, stepmother and half siblings.
The father has re-married and has two young children with his wife. The father’s wife has stopped paid employment in order to care for all the children full time. The family consultant reported that the child expressed that her relationship with the father’s wife and her younger siblings is good. She confirmed in her interview with the social worker that her relationship with the father’s wife is a positive one. The father’s wife was an impressive witness and demonstrated that she has a child-focused relationship with the child and has been supportive of the child living with the father and her younger siblings.
The social worker also opined that the child’s relationship with her paternal grandparents is “important, special and should be encouraged” and that this relationship is a “protective resource” to her. At one stage in the proceedings the father sought to limit the child’s time with the paternal grandparents in a clumsy effort to protect the paternal grandparents from the mother’s negative behaviour. He was subsequently required under an order to facilitate and promote the child spending time with the paternal grandparents. I understand that these important relationships have developed and been sustained in the context of the child living with her father.

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child

Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child

Until 2017 the parents had shared parental responsibility for the child and she had lived in different arrangements with each of them for significant periods of time.
Each parent has at times abdicated parental responsibility of the child to the other parent, with disregard for the child’s best interests. In March 2017 the father made the unilateral decision for the child to move into the mother’s home, despite the mother having communicated to him that her mental state was such that she could not handle the child living with her and that she was then facing criminal charges. The child reported to the family consultant that she felt “hurt and sad” and “did not know why this decision was made”.
The mother effectively abandoned the child on a number of occasions including twice taking the child to a police station when she was intoxicated indicating that she did not want to care for her.
Both parents’ actions demonstrated a level of disregard for the child’s best interests and a lack of capacity to put her interests above their own.
The father has consistently met his obligations to support the child financially including paying for child support as assessed while the child was living in the mother’s care.

Likely effect of change in the child’s circumstances

Practical difficulty or significant expense involved in spending time with and communicating with the other parent

As agreement has been reached and an order made that the child live with the father at one level there will be little change in the child’s current circumstances. Further, under each of the proposals the child’s time with her mother will increase which is undoubtedly to her benefit. There is no suggestion that the child will experience any difficulty in a reduction of time with the father.
The proposal of the mother and ICL requires the mother to deliver the child to her school on a Monday morning. The mother’s home and the child’s school are in different suburbs of Sydney, a significant distance apart. It is unclear whether the mother will experience difficulties in managing the commute with the child early on a Monday to facilitate the child attending school on time.
The child has clearly expressed the view that she would like to spend more time with the mother including overnight time and the proposal of the ICL is most aligned with her stated views.
So long as the mother does not engage in drinking alcohol when the child is in her care and her mental health remains stable, the child will undoubtedly be benefited by the changed circumstances proposed by the ICL. However, for the reasons given, I have some significant misgivings about this arrangement and am of the view that it is more likely than not that the mother will return to drinking at times of stress in the future. The proposal of the ICL will need to be carefully weighed against the other factors.
The proposal of the mother goes further than the child’s wishes and will bring about a much more significant change in the child’s circumstances. It involves a return to the previous pattern of care whereby the child spends three nights with the mother each fortnight and half of the school holidays. This arrangement by definition involves greater risks than that of the ICL and the father without necessarily providing more benefit to the child particularly as she will be absent from the home in which she is provided with greater stability and predictability and spend more time with a parent who has had significant impairments in her parental capacity and poses greater risks to the child.

The father proposes orders in relation to the child’s holiday time with the mother which in my view are impracticable and not in the child’s best interests. The father seeks that the child spend four days in the short school holiday periods and ten days in the long summer holiday period with the mother, with these days to be agreed between the parties and failing agreement that they occur each Tuesday and Thursday of each week. This arrangement would effectively prevent the father and the child from enjoying a holiday of more than four consecutive days without the consent of the mother. It also fails to give the mother anyone weekend time over the holiday periods.
As the father was self-represented in the final hearing it is likely that he did not turn his mind to the practicalities of this order. I am of the view if orders are made as sought by the father they should be adjusted so that the mother spends time with the child for four days in the short school holiday periods and for ten days in the long summer holiday period as agreed between the parties in writing. This will allow for the parties to ensure that the child is able to attend family holidays with the father’s family and enjoy weekend holiday time with the mother if desired. The proposal that the child spend additional time with the mother as agreed between the parties allows flexibility and for the father to agree to an increase in the mother’s time in the event that he feels that the child’s wellbeing in her care is not at risk.

Capacity of each parent and any other person to provide for the child’s needs including emotional and intellectual needs

Both parents have at times shown shortcomings in their capacity to meet the child’s emotional needs.
The social worker reports that:
[the child] recalled specific events from last year [2017] that caused her a high degree of emotional distress, these occurred when in the care of her father as well as her mother. [The child] said her father arranged her move from his home back to the full time care of her mother in a way that did not take into consideration her feelings. This was managed in an abrupt and poorly planned manner, causing a high level of confusion and distress. [The child] said she felt she had been “kicked out of home”. Although [the child] does understand her mother is prone to stress and has poor coping skills; she was nonetheless traumatised when her mother decided to leave her at the Police station when she was no longer able to cope. In both situations both parents have displayed a complete lack of empathy and regard for their daughter’s emotional wellbeing.
Apart from the very regrettable circumstances in 2017 when the father twice returned the child to the care of the mother despite all of the risks present in that household and in disregard for the child’s emotional wellbeing, there is no evidence to suggest that conduct of this kind has been repeated since this time. For the last eighteen months the father has demonstrated an impressive capacity to otherwise meet the child’s needs including her physical, educational and material needs as well as her emotional and intellectual needs.
Although the mother has demonstrated an incapacity to meet the child’s needs on numerous occasions where she has effectively abandoned the child and expected the police or other family members to assume her responsibility, she has at least the capacity to meet the child’s needs on a day to day basis in a more limited sense such as for the periods of time as proposed by the father. Some concerns about her capacity arise when considering the ICL’s proposal which includes the child spending overnight time with the mother and being regularly delivered to school some distance from her home. Greater concerns arise in relation to the mother’s proposal which includes some significant periods of time caring for the child, such as in school holidays.

Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent

The mother was born in Country C and deposes to recognising Country C traditions. The orders she seeks would facilitate the child receiving the benefit of her Country C culture and traditions. In particular those orders would allow the child to spend religious event which occurs twice a year with the mother.
As the proposal of each of the parties will facilitate the child having a meaningful relationship with the mother, she will benefit from exposure to the mother’s Country C culture and traditions under each respective proposal.
Nothing is known of the particular heritage and cultural background of the father though it can be assumed from the orders he proposes that Christmas and Easter are significant to him.

Attitude to the child and responsibilities of parenthood demonstrated by each parent

I accept that both parents express a loving attitude towards the child. However, in many regards both parents have failed at times to prioritise the child’s needs and have not always demonstrated a committed attitude to the responsibilities of parenthood.
As has been discussed the mother has exposed the child to neglect and abuse while intoxicated on a number of occasions. She has at times found the responsibility of caring for the child on a full time basis overwhelmingly stressful and while intoxicated abandoned the child to the care of the father, by leaving her with Police. This is likely to have traumatised the child. However, the mother has recognised that she is unable to care for the child on a full time basis and consented to an order that the child live with the father. This demonstrates that she has gained some insight into the child’s needs.
The mother has to some extent taken responsibility for her excessive drinking and the effect it has had on her daughter. In her affidavit she deposes that she “is ashamed of and will never forgive myself and nor do I expect forgiveness from my daughter”. Under cross-examination by counsel for the ICL the mother acknowledged that her behaviour while under the influence of alcohol had a negative impact on the child.

Family violence relating to the child or a member of the child’s family

The mother’s alcohol misuse and poor emotional control has led to her perpetrating family violence on at least two occasions. In 2005 she punched the father and more recently in 2017 she made threats to harm the child and father’s other children.
The orders proposed by the father will reduce the risk of the child being exposed to family violence in the mother’s care as she will not be spending prolonged overnight periods with her. There is a greater risk of exposure to family violence under the proposals of the ICL and mother by virtue of the child spending more time in the mother’s care.

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

In my view the father’s proposed order with respect to parental responsibility is less likely to lead to the institution of further proceedings in relation to the child than the mother’s. The parents had a very brief relationship and separated shortly after the child was born. Since this time they both acknowledge that they have had a highly acrimonious relationship and have had many years of litigating their disputes in court.
The mother’s proposal for equal shared parental responsibility would require the parents to cooperate and communicate at a level for which they have no demonstrated capacity. The parties’ high level of conflict would make cooperating on parenting decisions practically unworkable and would likely lead to the initiation of further proceedings. Given that the dispute in relation to the child’s parenting arrangement was commenced six years ago some weight must be attached to this factor.

Any other relevant fact or circumstance

The orders proposed by the father and the ICL provide for the mother to facilitate the changeover of the child by taking her to the father’s residence at the commencement of her time and picking her up at the conclusion.
The mother proposes an order that the parties share the responsibility of driving to the other party’s residence to pick up or drop off the child.
The father’s wife has in the past been subjected to verbal abuse by the mother on a number of occasions when she has picked the child up from the mother’s home and this has occurred in the presence of the child and the child’s step-siblings. It is reasonable in my view that the father’s wife is not prepared to assist the father with changeover of the child at the mother’s home as she feels unsafe to do so.
As the father works full time and the mother is not currently in employment it is more practicable and appropriate that the mother be required to facilitate changeover by picking up and dropping off the child at the father’s residence.
The proposals of the father and ICL seek an order that the father only be permitted to travel with the child overseas without gaining the consent of the mother. An order in similar terms is not sought in relation to the mother. The mother proposes that both parents have liberty to travel internationally with the child. The mother’s proposal is consistent with her proposed order for equal shared parental responsibility. In my view the order sought by the ICL and father is consistent with the father having sole parental responsibility of the child. It will not prevent the mother from at some time in the future enjoying overseas travel with the child so long as the father provides his consent.

Conclusion

Parental responsibility

Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[6] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[6] (2006) FLC 93-286
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
In this matter the father seeks an order that he have sole parental responsibility of the child and the mother seeks an order that the parties share parental responsibility of the child.
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the father must mean that he would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the mother would have none of the duties, powers, responsibilities and authority with respect to the child.
Although the presumption of equal shared parental responsibility does not apply as I am satisfied that the mother has engaged in psychological abuse of the child and family violence, the mother does seek such an order, so consideration must be given as to whether it is in the best interests of the child for her parents to share parental responsibility.
The mother’s participation in decisions that fall within the ambit of parental responsibility would foster the child’s meaningful relationship with her. However, as noted previously, greater weight must be given to the need to protect the child from harm, including the harm arising from exposure to family violence.
The parents have had a very acrimonious and volatile relationship and at times this has erupted into violence or an inability to make decisions prioritising the child. The parents have not demonstrated any capacity for cooperative decision making except on the one occasion in January 2017 when they reached agreement about the future parenting arrangement for the child. However a judge of the Federal Circuit Court did not make orders in accordance with their proposal as it appears he did not agree that this arrangement was in the child’s best interests. At that stage it appeared that the parents were more concerned about reaching an agreement that met their own needs than prioritising the needs of the child.
In recent times, the father has shown a more committed attitude towards making responsible and child focussed decisions in exercise of sole parental responsibility which has been given to him on an interim basis for some time.
For the foregoing reasons and when considering each of the other best interest considerations including the irresponsible attitude shown by the mother in particular when intoxicated and the greater likelihood of further proceedings in respect of the child if the parents are required to jointly make decisions, I am of the view that it is in the child’s best interests for the father to continue to exercise sole parental responsibility for the balance of the child’s childhood.

The mother’s time

As indicated at the outset the only other matters to determine in these proceedings are orders in relation to the mother’s time with the child and relating to international travel.
In circumstances where a mature child has expressed clear and genuine views that she would like her time with her mother to be increased and where there is no doubt that the child receives a benefit from having a meaningful relationship with her mother, I must closely consider the ICL’s proposal carefully.
However, there are other factors which weigh in favour of the father’s proposal that the child spend less time with the mother than the child’s wishes or the mother’s proposal. In my view, the most weighty consideration is the need to protect the child from physical or psychological harm, from being subjected to abuse or neglect in the mother’s care when the mother is misusing alcohol or experiences difficulties with her mental health.
For similar reasons, I also must attach significant weight to the capacity of the mother to provide for the child’s needs under each of these proposals and the attitude to the child and responsibilities of parenthood demonstrated by each parent. Attaching weight to these matters in particular and also considering each of the foregoing matters, I am of the view that the risks posed by the mother and shortcomings in her parenting capacity and level of responsibility to the child outweigh those matters in favour of extending the child’s time with her as under her proposal and that of the ICL.
As discussed previously, the father’s proposal with respect to international travel, supported by the ICL, is consistent with him holding sole parental responsibility.
For these reasons I make orders as proposed by the father with the exception of the variation to his default proposal for holiday time which as explained is likely to be impractical when implemented.
The orders that I make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 3 May 2019.

Associate:

Date: 3 May 2019

[2019] FamCA 378

3 May 2019

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness