Chika & Ragnall
[2024] FedCFamC1F 296
•7 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Chika & Ragnall [2024] FedCFamC1F 296
File number: NCC 267 of 2022 Judgment of: AUSTIN J Date of judgment: 7 May 2024 Catchwords: FAMILY LAW – CHILDREN – Final parenting orders – Where the interim residence of the child was reversed from the mother to the father in November 2023 – Where the maternal grandparents joined the proceedings in February 2024 – Where the father and the maternal grandparents (“the grandparents”) respectively sought sole parental responsibility for and residence of the child – Where the mother endorsed the proposal of the grandparents – Where the grandparents contended the child is at risk of neglect by both parents, caused by their use of illicit drugs – Where the mother admitted the child should only spend time with her under the supervision of the grandparents – Where the father refuted the claim of neglect made against him by the grandparents – Where the suspicions and speculation of the grandparents are no substitute for probative evidence and valid inferences – Where the potential for harm to the child cannot be quantified as being unacceptably high on the state of the current evidence – Where the grandparents are no better equipped than the father to meet the child’s emotional and intellectual needs – Ordered the child live with the father and he have sole parental responsibility for the child – Ordered the child spend expansive amount of time with the grandparents – Ordered the mother spend restricted time with the child during the periods of time he spends in the grandparents’ care – Child’s time with the mother to be supervised by either grandparent Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61B, 61DA, 64B, 65D, 65AA, 65DAA, 68B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15
Cases cited: Aldridge & Keaton (2009) FLC 93-421; [2009] FamCAFC 229
Malcolm & Monroe & Anor (2011) FLC 93-460; [2011] FamCAFC 16
Maldera v Orbel (2014) FLC 93-602; [2014] FamCAFC 135
Valentine & Lacerra (2013) FLC 93-539; [2013] FamCAFC 53
Division: Division 1 First Instance Number of paragraphs: 93 Date of hearing: 22, 23 & 24 April 2024 Place: Newcastle Counsel for the Applicant: Ms Evelyn Solicitor for the Applicant: The Family Law Co Counsel for the First Respondent: Ms Beckett Solicitor for the First Respondent: Grace Family Law Solicitors Counsel for the Second and Third Respondent: Ms Van Oosterom Solicitor for the Second and Third Respondents: Charlestown Law Firm Counsel for the Independent Children's Lawyer: Mr Mooney Solicitor for the Independent Children's Lawyer: Foat Roberts Lawyers ORDERS
NCC 267 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CHIKA
Applicant
AND: MS RAGNALL
First Respondent
MS MINKIN
Second Respondent
MR B MINKIN
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
7 MAY 2024
THE COURT ORDERS THAT:
1.All former orders relating to the child X, born 2015, (“the child”) are discharged.
2.The applicant (“the father”) shall have sole parental responsibility for the child.
3.The child shall live with the father.
4.The parties shall take all reasonable steps to ensure the child spends time with the second and third respondents (“the maternal grandparents”) as follows:
(a)during public school terms, each alternate weekend from the conclusion of school on Friday (or 4.00 pm if not a school day) until the commencement of school on the following Monday (or 9.00 am if not a school day), commencing on the first Friday of each term;
(b)during the Autumn, Winter and Spring school holidays, for the first half of such holidays in every even numbered year and for the second half of such holidays in every odd numbered year;
(c)during the Summer school holidays, for two continuous weeks ending at 4.00 pm on the last Saturday before the new school term and beginning at 4.00 pm on the Saturday two weeks before..
5.For the purposes of implementation of these orders, the school holidays are deemed to commence at 4.00 pm on the last day of school term, the holidays are deemed to end at 4.00 pm on the last day preceding the day upon which the child is due to return to school, and the mid-point is the day halfway between those first and last days.
6.Orders 3 and 4 are suspended during the following periods:
(a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day and with the maternal grandparents from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in even numbered years, with the same arrangements in reverse in odd numbered years;
(b)between 10.00 am and 5.00 pm on each Mother’s Day and Father’s Day, during which periods the child shall spend time with the maternal grandparents on Mother’s Day and with the father on Father’s Day.
7.For the purposes of implementing Orders 3, 4 and 6, the father and the maternal grandparents shall exchange the child:
(a)at school whenever the exchange is due to occur on a school day, or
(b)at the maternal grandparents’ residence whenever the child is to begin spending time with them; or
(c)at the father’s residence whenever the child is to resume living with him.
8.The parties shall take all reasonable steps to ensure the child spends supervised time with the first respondent (“the mother”) as follows:
(a)from 10.00 am until 5.00 pm on each Saturday and Sunday the child spends time with the maternal grandparents pursuant to Order 4(a);
(b)from 10.00 am until 5.00 pm on each Saturday and Sunday the child spends time with the maternal grandparents pursuant to Order 4(b);
(c)from 10.00 am until 5.00 pm on each Saturday and Sunday the child spends time with the maternal grandparents pursuant to Order 4(c); and
(d)at times the child spends with the maternal grandparents pursuant to Order 6.
9.For the purpose of implementing Order 8, one of the maternal grandparents must supervise any time spent by the child with the mother.
10.Pursuant to s 68B of the Family Law Act 1975 (Cth), the parties are restrained from causing or allowing the child to come into physical or communicative contact with, or remain in the presence of, Mr D.
11.While the child is residing with the father, the parties shall take all reasonable steps to ensure the child is able to communicate with the maternal grandparents by telephone each Tuesday at 6.00 pm for 15 minutes.
12.While the child is residing with the father, the parties shall take all reasonable steps to ensure the child is able to communicate with the mother by telephone each Wednesday at 6.00 pm for 15 minutes.
13.While the child is spending time with the maternal grandparents pursuant to Orders 4(b) and 4(c), the parties shall take all reasonable steps to ensure the child is able to communicate with the father by telephone each Tuesday at 6.00 pm for 15 minutes.
14.Each party is restrained from denigrating any other party in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating another party.
15.Each party shall notify the others of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party and the father shall authorise any treating health professionals to communicate with the mother and maternal grandparents about the condition and treatment of the child.
16.The father shall authorise and request the principal of any school attended by the child to provide to the mother and the maternal grandparents, at their expense, copies of all school reports and school photograph order forms relating to the child.
17.Each party shall forthwith inform the others and keep the others informed, in writing, of their respective current residential address, mobile telephone number, and email address.
18.Leave is granted to the father to furnish to the child’s counsellor copies of the two Family Reports released in these proceedings.
19.The Independent Children’s Lawyer is discharged upon the latter of the determination of any appeal or the expiration of the applicable appeal period.
20.The Application in a Proceeding filed on 23 March 2024 is dismissed.
21.Costs are reserved for 28 days.
22.Otherwise, any and all other outstanding applications are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Chika & Ragnall has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
These proceedings are a contest between the father, the mother, the maternal grandparents, and the Independent Children’s Lawyer (“the ICL”) over the orders which should govern the care of a child under the provisions of Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
For the reasons which follow, the child will live with the father, but will spend expansive amounts of time with the maternal grandparents. The child will also be able to spend time with the mother for parts of the time he spends with the maternal grandparents, provided one of them supervises the child and the mother.
BACKGROUND
The parents commenced their relationship in 2011 and finally separated in February 2018.
Their child was born in 2015 and is now nearly nine years of age. After the parties’ separation in early 2018, the child spent no time at all with the father for some years. That was initially because the conditions of his probation precluded his contact with the mother, but latterly because the mother either ignored or rebuffed the father’s requests to see the child. As a consequence, the child did not see the father again until after he commenced these proceedings and interim orders were made in 2022.
After their separation, both parents re-partnered. The father had two more children with his current partner (“Ms C”). The mother had one more child and is now pregnant with another, both conceived with the same man (“Mr D”). The mother has been coy about the nature of her relationship with Mr D, but their sexual association has now endured for several years. Even if she severed her relationship with him in late 2023 after conceiving her current pregnancy, as she alleged, she will likely still have an ongoing parental relationship with him in respect of their two very young children.
In March 2022, shortly after the proceedings were commenced, the ICL was appointed and the parents were both ordered to submit to drug testing. Evidently, their propensity to use illicit drugs was a contentious issue from the very beginning of the litigation.
In November 2022, interim orders were made providing for, subject to the parents’ satisfaction of certain conditions, the mother to have parental responsibility for the child, the child to live with her, and the child to spend time with the father once per week under professional supervision. The conditions with which the parents had to comply included their submission to drug testing and their sobriety whilst around the child. In addition, the mother was restrained from bringing the child into contact with Mr D.
In May 2023, the proceedings were transferred by the Federal Circuit and Family Court of Australia (Division 2) to the Federal Circuit and Family Court of Australia (Division 1).
During the course of 2023, the father formed the view that the mother was disregarding the order restraining her from allowing the child to come into contact with Mr D, compliance with which restraint was a condition of the child’s continued residence with her. The father subsequently filed an interim application to vary the interim parenting orders, proposing that the child live with him instead. His application was supported by the ICL but opposed by the mother, even though she conceded some form of ongoing association with Mr D.
In November 2023, the interim dispute was heard and more interim orders were made. All former orders were discharged, though no substitute order was made allocating parental responsibility for the child. The child’s residence was reversed. He was ordered to live with the father and provision was made for him to spend time with the mother twice each week for a few hours after school and on each alternate Saturday during the day. The mother was again restrained from allowing the child to be in contact with Mr D and she was ordered to submit to drug testing.
The child has since lived with the father but, in an unresolved breach of the orders, it is common ground the child has not spent any time with the mother since January 2024. The father’s distrust of the mother’s and maternal grandmother’s compliance with the injunction precluding the child’s contact with Mr D is the principal reason for his non-compliance with the orders.
In February 2024, the maternal grandparents were consensually joined to the proceedings as parties. They had initially intended being only witnesses in the mother’s case, but decided to contest the proceedings themselves.
On 22 March 2024, the maternal grandparents lodged an Application in a Proceeding (sealed on 25 March 2024) seeking varied interim orders requiring the child to live with them. The application was listed on the first day of trial, being 22 April 2024, at which time the maternal grandparents acceded to it being put to one side and later dismissed if judgment was promptly delivered after the trial concluded.
PROPOSALS
As the trial approached, the proceedings were a tripartite contest over the child’s residence, the allocation of parental responsibility for him, and the conditions under which the child should spend time with the non-residential parties. However, all parties changed their respective positions immediately before the trial commenced.
The father revised his application for the orders set out in his Further Amended Initiating Application filed on 5 March 2024 and instead sought the orders within the minute of orders he tendered at the start of the trial.[1]
[1] Exhibit F1
He sought sole parental responsibility for the child, his retention of the child’s residence, and orders for the child to spend time with the maternal grandparents on no less than two individual days in eight-week cycles at times when the maternal grandfather is not working. No specific proposal was made for the child to spend time with the mother in the expectation that he would spend time with her at the same time he spends time with the maternal grandparents and they would supervise the mother and the child.
In final submissions, the father chose to endorse the ICL’s proposal and abandon his own.
The mother revised her application for the orders set out in her Amended Response to Initiating Application filed on 13 March 2024 and instead sought the orders within the minute of orders she tendered at the start of the trial.[2] Most significantly, she abandoned her application for the child to live with her.
[2] Exhibit M1
The mother proposed that the child live with the maternal grandparents, that they have parental responsibility for him, and that she and the child spend time together at the maternal grandparents’ home on alternate weekends during the day on both Saturday and Sunday. She proposed the child spend time with the father on the intervening alternate weekends from the conclusion of school on Friday until the commencement of school on Monday, thereby implying such visits would occur only during school terms because the proposal did not include school holiday periods or other special occasions. No conditions or restrictions were proposed as being necessary to regulate the child’s interaction with the father.
In final submissions, the mother chose to endorse the maternal grandparents’ proposal and abandon her own.
The maternal grandparents revised their application for the orders set out within their individual Responses to Initiating Application filed on 6 March 2024 and instead sought the orders within the minute of orders they tendered at the start of the trial.[3] They posited orders on two alternate bases.
[3] Exhibit R1
First and foremost, they sought that the child live with them and that they have parental responsibility for him. In that situation, they proposed the child spend substantial amounts of time with the father, including alternate weekends, half of school holiday periods and other special occasions, subject only to the father’s provision of a single hair follicle test showing a negative result for illicit drug use. Subject to the same condition, they proposed the child spend time with the mother on alternate weekends during the day on both Saturday and Sunday in the presence of either maternal grandparent.
Alternatively, if the child is to remain resident with the father, who is to have exclusive parental responsibility for the child, the maternal grandparents sought that he spend expansive amounts of time with them and that he communicate with them regularly. In that event, they still sought that they be appointed supervisors of any time spent by the child with the mother.
The ICL did not propose any suite of orders at the start of the trial, but foreshadowed her likely adoption of the court child expert’s recommendations, which were for the child to remain living with the father, but to spend time with both the maternal grandparents and the mother. Just before final submissions began, the ICL tendered a minute of the orders she proposed.[4]
[4] Exhibit ICL1
She proposed that the child live with the father, who should have sole parental responsibility. She also proposed that the child spend substantial time with the maternal grandparents, but confined to only the periods when the maternal grandfather was not away from home working, which he presently does on an alternating monthly basis. She proposed that the child spend time with the mother in line with the maternal grandparents’ proposal, subject to her supervision with the child by one of the maternal grandparents.
As can be seen, the contest collapsed into a bipartite contest between the father and the maternal grandparents for the child’s residence.
Significantly, common ground was reached in respect of several issues. First, parental responsibility for the child should be conferred exclusively upon the party or parties with whom he resides. Secondly, the child should not live with the mother. Thirdly, the child should only spend time with her under the supervision of one of the maternal grandparents. Fourthly, the supervised time spent by the child with the mother should not exceed a portion of the time the child spends with the maternal grandparents. Fifthly, all parties should be restrained from allowing the child to have any contact with Mr D.
EVIDENCE
The father relied upon:
(a)his affidavit filed on 15 March 2024;
(b)his affidavit filed on 16 April 2024; and
(c)the affidavit of Ms C, filed on 15 March 2024.
The mother relied upon her affidavit filed on 20 March 2024.
The maternal grandparents relied upon their affidavits filed on 4 April 2024, together with a second affidavit filed by the maternal grandmother on 19 April 2024.
All annexures to the affidavits were included, notwithstanding r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
The ICL relied upon:
(a)the Family Report dated 17 March 2023 (“the first Family Report”); and
(b)the Family Report dated 10 April 2024 (“the second Family Report”).
LEGAL PRINCIPLES
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D(1)), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B).
However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent or any other person, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
The trial was concluded before the Family Law Amendment Act 2023 (Cth) commenced operation on 6 May 2024, so the principles summarised above still apply.
Since the maternal grandparents are active parties to the proceedings, it is as well to state now that the Act does not import any presumption in favour of parents over non-parents in the determination of proper parenting orders (Maldera v Orbel (2014) FLC 93-602 at [79]–[81]; Valentine & Lacerra (2013) FLC 93-539 at [42]–[43]; Aldridge & Keaton (2009) FLC 93-421 at [59]–[61], [75]–[81] and [83]).
Where the provisions of s 60B and s 60CC of the Act refer specifically to “parents” in the context of objects, principles, and considerations relevant to the determination of a child’s best interests, the legislature does not intend those relevant factors to extend to parties or third parties who are not parents of the subject children (Aldridge & Keaton at [44]–[48], [65], [74], [109]–[112] and [119]).
Although some of the factors prescribed for consideration under s 60CC(3) of the Act refer only to parents, those factors insofar as they concern grandparents may still be considered under s 60CC(3)(m) of the Act and are relevant under whichever provision they are discussed (Aldridge & Keaton at [111]–[112] and [119]; Malcolm & Monroe & Anor (2011) FLC 93-460 at [94]–[100]; Valentine & Lacerra at [51]–[53]).
CHILD’S BEST INTERESTS – PRIMARY CONSIDERATIONS
Section 60CC(2)(a)
It was common ground the child would derive benefit from the retention and promotion of his meaningful relationships with both parents, so all parties proposed orders to achieve that objective.
Section 60CC(2)(b)
It was not contended the child needs any protection against the risk of either physical or psychological harm by reason of his subjection or exposure to either “abuse” or “family violence” by any party, save that it was common ground an injunction made under s 68B of the Act should bind and restrain the parties from allowing the child to be brought into contact with Mr D.
Rather, the maternal grandparents contended the child needs protection against the risk of physical or psychological harm by reason of his “neglect” by both parents, caused by their intoxication through use of illicit drugs. It was contended they could not properly care for or supervise the child if stupefied by drugs and, at least by inference, the child is liable to suffer emotional harm as he matures if he becomes conscious of his parents’ illicit drug use.
The mother did not expressly concede the proposition, but she did admit the child should only now spend time with her under the maternal grandparents’ supervision. Most likely she made the concession in full awareness of the concerns aroused in the maternal grandparents, the father, and the ICL by her past drug use and her continuing association with Mr D. There could be no other rational explanation.
The father refuted the claim of “neglect” made against him by the maternal grandparents. His rebuttal was consistent with: the absence of any evidence of his intoxication when spending time with the child during 2023; the absence of any evidence of his intoxication when the child has been in his direct care since beginning to live with him in November 2023; Ms C’s evidence about his abstinence from drug use in the children’s presence at their home; and the strong inference springing from the totality of the evidence that the child and the father’s other two children are thriving in the joint care of he and Ms C.
The father admitted his heavy past use of cannabis. Nonetheless, the extent of his admission must be approached cautiously because he recently admitted having earlier lied to the court child expert when he denied his use of an illicit drug in early 2024 when discussing his positive test result returned in March 2024. The maternal grandparents suspect the father used illicit drugs in the past more heavily and more widely than he actually admits and that, despite his alleged current abstinence, he still uses illicit drugs and will continue to do so. However, their suspicions and speculation are no substitute for probative evidence and valid inferences.
The father has a long history of cannabis use, but such use after September 2023 was prescribed by a doctor. The father stood by his claim that he ceased all use of cannabis in February 2024. Save for the positive test in March 2024 for his illicit drug use, there is no evidence to contradict his claims of only otherwise consuming cannabis for the last few years. Several drug urinalysis tests undertaken by the father in March and April 2024 corroborate his evidence to a limited degree. The March 2024 results are positive for cannabis, but only modestly so. The April 2024 result is negative for all drugs. Those results are consistent with the father’s claim of ceasing all cannabis use in February 2024, as the active cannabis intoxicant takes some time to leech from the body. While urinalysis tests do not have the longitudinal probative value of hair follicle tests, the father’s evidence is not contradicted by the scientific evidence.
The court child expert, who claimed qualifications and experience in health science specialising in alcohol and drug rehabilitation, said it was important to draw distinctions between addiction to, chronic dependence upon, and recreational use of, illicit drugs. She also sought to draw a distinction between the use of cannabis and pharmacological drugs. The concerns expressed by the maternal grandparents about the father and his capacity to provide residential care for the child tended to blur those distinctions and emphasise their suspicions of his extensive use of pharmacological drugs rather than the facts revealed by the evidence. The father’s long-term use of cannabis does not of itself deprive him of parenting capacity. The situation is more nuanced.
An obvious, though not necessarily critical, flaw in the maternal grandparents’ position with respect to the father is their inconsistent approach to the mother. While they contended the father poses a risk of harm to the child on account of his long-term use of cannabis, the depth of which concern necessitated their intervention as parties in the proceedings once the child began living with him, historically, while the child lived with the mother they tolerated her illicit drug use, which was equally long-term and apparently just as heavy. The deterioration of the mother’s parenting capacity, apparently on account of her drug use, was such that it attracted the attention of the State child welfare agency, for whom the mother refused to perform drug tests.[5] Such inconsistency on the part of the maternal grandparents tends to undermine the strength of their case because, if they were content to abide the mother’s cannabis use, why not now the father’s?
[5] First Family Report at [68]
As it transpired, behind the scenes, the maternal grandparents are seemingly less concerned about the father’s parenting capacity than they portrayed at trial. That is evident from a message the maternal grandfather sent to the father in late February 2024, almost immediately after the maternal grandparents intervened in the proceedings, offering to resolve the litigation by them agreeing to the father retaining the child’s residence on condition that he agreed to allow the child to spend one day per fortnight with them and to allow them frequent communication with the child. The message said, in part:
Don’t reply to this. I just want something in writing from your solicitor early next week that allows [the maternal grandmother] and I access with [the child]. 1 night a fortnight on the weekend and contact with him through messenger so he can text and call us when he wants…is that too much to ask for mate? Otherwise this is going to be a shit fight and the only loser here is [the child].
…
This is a genuine offer, I give you my word….
(Annexure U to the father’s affidavit filed 15 March 2024)
The maternal grandfather said he sent the message before they learned of the father’s positive drug test in early March 2024, but it is difficult to accept that single test would have caused a complete recalibration of their attitude, as he sought to imply.
Regardless of the extent to which the maternal grandparents are truly concerned about the father’s parenting capacity, their proposed solution to the problem posed by his alleged continuing drug use is hardly failsafe. According to their proposal, the father’s production of a single negative hair follicle test will be enough for the child to spend substantial amounts of unsupervised time with him for the remainder of the child’s minority. Supposing their proposal was implemented by orders, if the father resorts to illicit drug use after the production of the single negative hair follicle test then, short of fresh litigation to re-open the dispute, there would be no remedy to stop the child from continuing to spend the substantial amount of time with him as they propose now be ordered.
Of course, it reflects poorly upon the father that he chose to use illicit drugs when three children live with him and Ms C. Obviously enough, there is a chance he may use illicit drugs again in the future, there is a chance such drug use would compromise his parenting capacity, and there is a chance the child’s physical or emotional needs would then be neglected by him. However, while such risks exist, the potential for harm to the child cannot be quantified as being unacceptably high on the state of the current evidence.
Two considerations militate against the virulence of the asserted risk. First, the father seemed genuinely shaken by his realisation of how his illicit drug use jeopardised the chances of the child remaining in his residential care. Secondly, Ms C impressed as a stabilising influence on the father, just as she did to the court child expert.[6] She does not use illicit drugs, expressed her strong sentiments against their use, and confirmed that, to her knowledge, the father has ceased their use. Having heard her evidence, the father could be in little doubt he would risk foresaking his ongoing relationship with Ms C if he does not remain abstinent.
[6] Second Family Report at [117]
The evidence of the father’s past illicit drug use does not disqualify him as a viable candidate for the role of the child’s residential carer and does not require the child to instead live with the maternal grandparents to ensure his protection.
CHILD’S BEST INTERESTS – ADDITIONAL CONSIDERATIONS
Not all additional considerations prescribed by s 60CC(3) of the Act were engaged by the evidence adduced and the submissions made by the parties and the ICL. Only the relevant factors are now addressed.
Section 60CC(3)(a)
When interviewed by the court child expert, the child expressed the view that he wished to remain living with the father.[7] He expressed to both the court child expert and his counsellor some hesitation about the time he spends in the care of the mother and maternal grandparents.[8] The child is still only eight years old, so he lacks the maturity to warrant his views being given much weight, but they nonetheless remain influential.
[7] Second Family Report at [98]
[8] Second Family Report at [99]–[100], [103]; Exhibit R3
Section 60CC(3)(b)
Despite the mother’s apparent doubts and the relative recency of their relationship, the child has a close and loving relationship with the father.[9]
[9] First Family Report at [16], [17]; Second Family Report at [113]
The child was observed by the court child expert to enjoy a warm relationship with Ms C.[10] The parties seemed to readily accept the child loves his two half-siblings born to the father and Ms C.
[10] Second Family Report at [102], [113]
The child was observed to interact happily with the mother and her other child.[11] The parties also seemed to readily accept the child loves the mother and his maternal half-sibling.
[11] Second Family Report at [112]
The child has close and loving relationships with the maternal grandparents, developed over a long period of frequent interaction with them.[12]
[12] First Family Report at [39], [81], [93]; Second Family Report at [15], [112]
Section 60CC(3)(d)
After the parents’ separation in February 2018, the child lived predominantly with the mother but regularly spent time with the maternal grandparents.
By November 2023, the child’s residence with the mother had become unstable, if not chaotic, and interim orders were then made requiring the child to live with the father instead.
Acceding to the applications now made by the maternal grandparents and the mother, they would see the child’s primary residence changed again.
Even though the child is familiar with the maternal grandparents and their home, it is another change the child could well do without. The father described the child as being “sensitive” and the court child expert described him in cross-examination as “anxious”, suggesting he would be emotionally disturbed to some extent if the security of his home was again ruptured so soon after it last was, particularly when the change would be contrary to his expressed wish.
Sections 60CC(3)(f) and 60CC(3)(i)
Save for the way in which the father’s parenting capacity is liable to be impaired by illicit drug use, it was accepted he is able to meet the child’s physical and intellectual needs. Rather, the father was challenged about his capacity to meet the child’s emotional needs and his unsatisfactory attitude to the responsibilities of parenthood. More specifically, it was alleged he failed to promote the child’s relationships with the maternal grandparents and the mother.
It is true the father has breached the interim orders since January 2024 by depriving the child of contact with the mother, but his breach is not due to unmitigated belligerence. He refused to allow the child to spend time with the mother because he genuinely and reasonably believed she was deliberately flouting the injunction restraining her from allowing the child to come into contact with Mr D. Whether or not it is true, the father also genuinely and reasonably believed the maternal grandmother knew of and acquiesced to the mother’s breach of the injunction. The father believed he was acting protectively, which belief is vindicated to some extent by the mother and the maternal grandparents now accepting that the child cannot live with the mother and may only spend supervised time with her.
The father’s belief about the maternal grandmother’s sympathy for the mother’s apparent disdain for the injunction precluding the child’s contact with Mr D also has some objective basis. When speaking to the court child expert even as recently as early April 2024, the maternal grandmother “did not appear to have an opinion one way or another about [Mr D]”,[13] which ambivalence does not sit easily with either her knowledge of his criminal history, about which she learned in mid-2021 from officers of the State child welfare agency, or her professed acceptance at the trial of the danger he poses to the mother and the child.
[13] Second Family Report at [71]
Consequently, the maternal grandparents’ reasoning – that the father will not comply with orders made following the trial because he is not complying with the interim orders made in November 2023 – is a superficial analysis which does not withstand scrutiny. Orders made following the trial, after all of the evidence is thoroughly tested, will not leave any room for the father to make unilateral decisions and act otherwise than in strict compliance with them. They will be enforceable against him.
Nevertheless, the maternal grandparents harbour the belief that, because the father sees no value in the child’s relationships with them and the mother, eventually the child will resonate to those views and resist spending any time with them, even though orders may require the child to do so. In that event, they fear the father will prioritise the child’s expressed resistance over implementation of the court orders. That is unlikely because, first, the evidence does not prove the father sees no value in the child’s retention of relationships with members of the maternal family, and secondly, there is no sensible reason to reject the father’s evidence to the effect that he now fully understands his duty to obey the court orders.
It should be observed that, even though the interim orders made in November 2023 made no provision for the child to either spend time or communicate with the maternal grandparents, the father voluntarily facilitated it until he became alarmed by his belief about the maternal grandmother’s collusion with the mother in respect of her breach of the injunction concerning Mr D. Even then, on his instructions, his solicitor offered to restore the child’s contact on a supervised basis, to which offer there was apparently no response. By implication, the father was not intent on shutting the mother or maternal grandparents out of the child’s life.
The father spoke very positively about the maternal grandparents to the court child expert in March 2023[14] and, while he was more guarded about them at the second consultation in April 2024, he still affirmed the child’s need for relationships with them.[15] In cross-examination at the trial, the father said he thought it would be good for the child to spend time with the maternal grandparents and the mother and, furthermore, he would comply with the orders made by the Court, which evidence is accepted as being truthful.
[14] First Family Report at [76]
[15] Second Family Report at [88]
The apprehension the child has expressed to both the court child expert and his counsellor about the mother and the maternal grandmother is most likely the product of his awareness of being the focal point of a dispute between his separated parents and grandparents, not the result of the father intentionally or inadvertently impressing upon him adverse sentiments about them.
The father expressed the same apprehension about the mother and the maternal grandmother failing to support the child’s relationship with him if the child instead lives with the maternal grandparents. He similarly feels the child will be influenced by their adverse attitudes towards him. There is some evidence of both the mother and the maternal grandmother expressing their opposition to the child having any ongoing relationship with the father.[16] Yet, they too have demonstrated willingness to promote the child’s relationship with him, such as by allowing the child to spend time with him in 2023 more expansively than was required by the interim orders made in November 2022.
[16] First Family Report at [17], [44], [62], [73], [117]; Exhibits F2 and F3; Father’s first affidavit at [92]
As the child reported to the father, the mother and the maternal grandmother may have exerted some pressure upon him by discussing the adult conflict with him.[17] If that did occur as the child reported, it is most likely a reflection of their despair about his change of residence to live with the father and them not seeing him due to the father ceasing compliance with the interim orders, even though it manifests a concerning lack of their insight into the effect upon the child of involving him the conflict. It is unlikely to have been a deliberate strategy to enlist the child as an ally in a broader plan to undermine his relationship with the father.
[17] Second Family Report at [29]
Both the father and the maternal grandparents have adequate capacity to provide for the child’s important emotional need to maintain healthy relationships with all parties and to see them regularly, though there is some room for their respective criticism on account of their occasional failure to keep the child’s best interests at the forefront of their minds.
Sections 60CC(3)(j) and 60CC(3)(k)
Both parents were charged and convicted (or at least found guilty) of various criminal offences committed by them at around the time of their separation in early 2018, resulting in family violence orders for their respective protection.[18]
[18] First Family Report at [49]–[54]
Another interim family violence order was made against the father for the mother’s protection in early 2022, though the order was apparently later discharged because telephone records contradicted the mother’s complaint.[19]
[19] Father’s first affidavit at [71], [74]
As earlier indicated, the parties conducted the trial on the basis the child does not need any protection from exposure to family violence committed between them. The violent propensity of Mr D is another matter, which need not be discussed because of the common way the parties wanted that problem addressed by an injunction made under s 68B of the Act.
DISPOSITION
The presumption that the parents be conferred with equal shared parental responsibility for the child does not apply because there are reasonable grounds to believe that both parents engaged in family violence at or about the time of their separation (s 61DA(2)).
Even if the presumption applied, it would be rebutted by the evidence of the parents’ distrust of one another and their inability to reach consensus on important decisions concerning the child (s 61DA(4)).
The parties and the ICL conducted the trial on the basis that the party or parties with whom the child lives should be conferred with exclusive parental responsibility for the child, which mutual position enjoyed the support of the court child expert’s opinion.
The child should continue to live with the father, who should have exclusive parental responsibility for him, which decision is premised upon these considerations:
(a)the child is not at any material risk of suffering physical or psychological harm by reason of his neglect caused by the father’s continued use of illicit drugs;
(b)the father can adequately meet the child’s physical needs;
(c)the maternal grandparents are no better equipped than the father to meet the child’s emotional and intellectual needs;
(d)the child has expressed the wish to remain living with the father; and
(e)changing the child’s residence from the father to the maternal grandparents is liable to be emotionally disruptive for him, at least in the short-term.
The maternal grandparents enjoy superior financial circumstances to the father and are better placed to meet expenses associated with providing the child with experiences such as international travel, but that does not outweigh the considerations which favour the father retaining the child’s residence.
The child should spend plenty of time with the maternal grandparents. The alternate suite of orders they proposed are broadly suitable, as it enables their engagement with the child during school terms, over school holidays, and on special occasions. There is no need to curtail the child’s visits with the maternal grandmother while the maternal grandfather is away working each alternate month, as the ICL and the father proposed on the strength of recommendations made by the court child expert. The ICL and the father accept the maternal grandmother’s suitability as a supervisor of the mother, so them asserting she is unsuited to spending time alone with the child is curiously inconsistent, if not illogical.
As the parties all agreed, the child may spend restricted time with the mother under the supervision of either maternal grandparent during the periods of time he spends in their care, though the supervised time the child spends with the mother should not soak up the whole of the time the child spends with the maternal grandparents.
The child should be exchanged between the father and the maternal grandparents at his school whenever possible, but otherwise at their homes. The party delivering up the child to the other must undertake the travel to deliver him. By their actions, the parties will then demonstrate to the child that he must and should spend time with the others. The maternal grandparents did not give any evidence about why their proposal for the use of a public restaurant would be a better choice as a changeover venue.
Provision is made for the parties to communicate with the child by telephone on a reasonably regular basis. There is no need for the complexity or intricacy of the communication orders proposed by the ICL and the father, or to a lesser extent the maternal grandparents. If the parties later voluntarily agree to a different regime then they will render the communication orders redundant.
An injunction precluding the parties from allowing the child to have any contact with Mr D is made with the consent of them and the ICL. The injunction is not made in the same form proposed by the parties and the ICL, which purports to catch a wider class of persons, as it would then be too vague and unenforceable.
The orders restrain the parties from exposing the child to any denigration of one another and require them to keep one another informed about the child’s medical and scholastic progress. They must also keep each other informed of their contact details.
Permission is granted to the father to furnish the child’s counsellor with copies of the two Family Reports released in these proceedings, which order the parties and the ICL confirmed should be made.
Otherwise, numerous proposed orders are not made, either because they were abandoned or there was no evidence adduced or submission made to justify them.[20]
[20] Exhibit ICL1 Orders 15, 16, 19; Exhibit R1 Orders 10, 14, 16, 17, 18, 19
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 7 May 2024
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