Colton and Hunt
[2008] FMCAfam 644
•31 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COLTON & HUNT | [2008] FMCAfam 644 |
| FAMILY LAW – Parenting orders – mother was an alcoholic – mother crashed her car when she was drunk and when the child was in the car – child then lived predominantly with her father – whether in child’s best interests to have equal time with each parent – child not yet seven years old. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Shared Care and Children’s Best Interests In Conflicted Separation – A Cautionary Tale from Current Research by Jennifer McIntosh and Richard Chisholm, Australian Family Lawyer volume 20 number 1. |
| Applicant: | MR COLTON |
| Respondent: | MS HUNT |
| File Number: | DGC 4206 of 2007 |
| Judgment of: | Riley FM |
| Hearing dates: | 18, 19 & 20 June 2008 |
| Date of Last Submission: | 20 June 2008 |
| Delivered at: | Dandenong |
| Delivered on: | 31 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Wheeler |
| Solicitors for the Applicant: | McKinnon Jacobs Horton & Irving |
| Counsel for the Respondent: | Mr Williams |
| Solicitors for the Respondent: | Robin Harrison & Associates |
| Counsel for the Independent Children’s Lawyer: | Ms Agresta |
| Solicitors for the Independent Children’s Lawyer: | Victoria Legal Aid |
ORDERS
All existing parenting orders are discharged.
[B] born in 2001 (“[B]”) live with her father.
[B] spend time with her mother:
(a)during school term, from:
(i)after school each alternate Thursday to before school the following Monday;
(ii)after school on the Wednesday of the other week to before school on the following Thursday;
(b)for the first half of the school term holidays, unless otherwise agreed;
(c)for three blocks of one week in the long summer holidays, commencing on the last day of term, and alternating thereafter, unless otherwise agreed;
(d)on [B]’s birthday and the mother’s birthday:
(i)when they fall on a school day when [B] is not spending time with her mother, from after-school until 5.30 pm;
(ii)when they fall on a non-school day when [B] is not spending time with her mother, from 10.00 am until 2.00 pm unless otherwise agreed;
(e)from 2.00 pm on Christmas Eve 2008 until 2.00 pm on Christmas Day 2008 and each alternate year thereafter;
(f)from 2.00 pm on Christmas Day 2009 until 2.00 pm on Boxing Day in 2009 and each alternate year thereafter;
(g)such further and other times as agreed between the parties.
The time [B] spends with her mother be suspended as follows:
(a)on [B]’s birthday and the father’s birthday:
(i)when they fall on a school day when [B] is not spending time with her father, from after-school until 5.30 pm;
(ii)when they fall on a non-school day when [B] is not spending time with her father, from 10.00 am until 2.00 pm unless otherwise agreed;
Changeover occur at school on school days.
On non-school days, the father or his nominee deliver [B] to the mother’s home at the commencement of [B]’s time with her mother, and the mother return [B] to the father’s home at the conclusion of that time.
[B] communicate with her mother by telephone between 5.30 pm and 6.00 pm every Monday and on those Sundays that [B] is not spending with her mother, or otherwise as agreed.
[B] communicate with her father by telephone between 5.30 pm and 6.00 pm on those Fridays that [B] is spending with her mother, or otherwise as agreed.
The mother be restrained from consuming alcohol or any illicit substance for 24 hours prior to and during any time that the mother spends with [B].
The mother and the father be restrained from denigrating each other or each other’s partners and family in the presence or hearing of [B].
The mother obtain and make available for use by both parties a communication book which both parents shall use to communicate any information concerning [B] that the other parent needs to know, unless otherwise agreed.
Each parent advise the other of any change to his or her residential address or telephone number within 24 hours of the change occurring.
Subject to the school’s requirements and policies, the mother be entitled to receive, at her expense, and the father authorise in writing the child’s school to forward duplicate copies of all correspondence and information sheets from the school including [B]’s reports, and the mother shall be entitled to attend all school functions to which parents are invited including information nights, parent teacher interviews, sports days, curriculum presentations and excursions.
Each parent inform the other forthwith of any medical emergency in relation to [B] while [B] is in his or her care.
Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Colton & Hunt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 4206 of 2007
| MR COLTON |
Applicant
And
| MS HUNT |
Respondent
REASONS FOR JUDGMENT
Background
This is an application for parenting orders in respect of [B]. [B] was born in 2001 and is now 6¾ years old. [B]’s parents lived together from about 1997 until they separated in May 2004. During the relationship, the mother was [B]’s primary carer. From separation until January 2006, [B] lived with her mother and spent alternate weekends and each Wednesday evening with her father. In March or April 2005, the mother moved back to live with her parents.
On the evening of Sunday 29 January 2006, the mother crashed her car into a tree beside an on-ramp to the [omitted] arterial. [B] was in the car. The police took the mother to the [omitted] police station.
Her blood alcohol reading was 0.13%. Her licence was cancelled for
13 months. No one was injured.
The mother telephoned the father from the police station at about
11.00 pm. She asked the father to collect her and [B] and said they had been in a car accident. When the father arrived about 15 minutes later, [B] was wearing only a miniskirt and had no top and no shoes. The father gave evidence that, on the way home, the mother said she still had to go to [M]’s house. The father said, and I accept, that a person by the name of [M] had supplied the mother and the father with marijuana during the course of their relationship. The mother denied in oral evidence that she had been on her way to [M]’s place with [B] at the time of the accident.
However, I accept the father’s evidence that the mother had said that she still had to go to [M]’s place. I infer that, when the car accident occurred, the mother had gone out to buy marijuana and had taken [B] with her in a barely dressed state.
Overall, I prefer the father’s evidence to the mother’s where there is a conflict. The father presented as a considered and truthful witness.
The mother presented as warm and engaging, but also as a person who sought to cover up and deny some of the worst aspects of her behaviour. Her oral evidence tended to be very wordy and emotional and was sometimes unintelligible.
On the night of 29 January 2006, the mother asked the father to drop her and [B] at the bottom of the driveway so that the mother’s parents would not find out what had happened. However, the father insisted on going into the house and telling them. A physical and verbal altercation ensued. The mother hit the father repeatedly. Her father tried to restrain her. The father ultimately took [B] back to his place.
On 2 February 2006, the father filed the present application. He sought orders that [B] live with him and spend such time with the mother as the court deemed fit.
Pursuant to consent orders made on 17 February 2006, [B] remained living with her father and spent time with her mother on Saturdays from 1.00 pm until 6.00 pm and on Wednesdays from 5.30 pm until 8.00 pm under the supervision of one of her parents. Further consent orders were made on 3 July 2006, which provided for [B] to spend time with her mother from 5.30 pm to 8.00 pm on Tuesdays and Thursdays and on alternate weekends from 1.00 pm Saturday until 2.00 pm Sunday, with her parents continuing to supervise. On 8 August 2007, consent orders were made that, on condition that the mother provided three clear drug and alcohol screens, [B] could spend time with her mother unsupervised on alternate weekends from after-school Friday until 6.30 pm Sunday and on alternate Wednesdays from after-school until the commencement of school on Thursday morning and for half of the school term holidays. [B] began spending time with her mother in accordance with the orders, that is, unsupervised for three nights out of 14 during school terms.
Proposals
The mother’s present proposal is that [B] spend alternate weeks with her from Friday to Friday. The father’s present proposal is that [B] continues to live with him but increases her time with her mother to five nights a fortnight. The Independent Children’s Lawyer and the family report writer supported the father’s proposal.
There were initially some differences of opinion about the particular five nights that [B] should spend with her mother. Ultimately, however, the father and the Independent Children’s Lawyer agreed with the family report writer that [B] should spend Thursday, Friday, Saturday and Sunday nights with her mother in one week and Wednesday night in the other week.
[B]’s current living arrangements
[B] lives with her father, her father’s partner [K], and [K]’s son [J].
He was born in 2002 and is 5¾ years old. [B] and [J] both attend
[L] Primary School and after school care at [omitted] Day Care Centre. [J] spends alternate weekends and each Wednesday with his father but otherwise lives with his mother.
The mother is now living in her own house, not far from the father’s house. [B] has her own bedroom at her mother’s house. [B]’s bedroom is decorated suitably for a young girl.
The mother, the father and [K] all work full time but have some flexibility in their working hours to enable them to collect [B] from school or after-school care.
The mother's alcoholism
There is no doubt that the mother was an alcoholic at least until her car accident on 29 January 2006. She admitted drinking six cans of Jim Beam per day but denied drinking 12 cans. She admitted she had been both a regular drinker who drank every day and a binge drinker who drank to excess on occasion. She admitted that she had been an alcoholic and that alcoholism is a lifelong affliction. However, she said that it was possible to get past it.
There was some suggestion that her alcoholism might have been the result of a thyroid problem and the result of her belief that the father was having an affair with [K] before [B]’s birth. The father denied having an affair with [K] at that stage. Whether he was having an affair at that time or not, the fact remains that the mother became an alcoholic. As such, she was a danger to herself and others and particularly to [B].
There was some dispute about when the mother’s alcoholism began. The father said that when she was pregnant, the mother hid a glass of Scotch in the bottom drawer in the kitchen and would drink it while she was doing the dishes. The father also said that the mother drank excessively while breast-feeding [B]. The mother denied drinking during the pregnancy or whilst breast-feeding. For the reasons given above, I prefer the father’s evidence.
However, even on the mother’s own evidence, she had become an alcoholic while [B] was still a very young child. [B], as a baby and toddler, was vulnerable and totally dependent on her mother’s care.
The mother was incapable of properly caring for [B] whenever she was drunk.
The mother commenced counselling with the Salvation Army on
31 January 2006, just two days after the car accident. The mother attended counselling sessions on 31 January, 8 February, 15 February, 20 February, 1 March, 8 March, 17 March, 29 March, 5 April and 12 April 2006. There were a further six scheduled sessions but the mother attended only two. The Independent Children’s Lawyer suggested to the mother that much of the counselling did not focus on the mother’s alcoholism but on the mother losing custody of [B]. The mother said that as well as counselling she took Naltrexone for 12 months. The mother did not produce any medical evidence but said, presumably from her own experience, that Naltrexone “subside[s] all requirements for alcohol.” The mother also said that she had attended an accredited course. That seemed to be a reference to a course for drink drivers to get back their driver’s licences.
It was put to the mother that the Salvation Army had recommended that the mother have further counselling to deal with her alcoholism.
The mother was initially evasive but when shown the counsellor’s notes accepted that she had been advised to undertake further counselling. However, she did not follow that advice. She said that she did not need additional counselling because she felt emotionally more intact, changed her lifestyle, and had the benefit of Naltrexone.
The mother had been required by successive court orders to provide supervised urine screens within seven hours of a request from the Independent Children’s Lawyer. Nothing was produced to the court to indicate that the mother had failed to comply with those requests or had produced urine screens that showed any consumption of alcohol. Ultimately, the Independent Children’s Lawyer did not suggest that the mother was still drinking.
The father reported that [B] had mentioned to him being in a wine shop with her mother. The father took this as an indication that the mother was still drinking. The mother denied that she now drinks at all.
I accept the mother’s evidence on this matter. The father’s evidence was too meagre to overcome the mother’s vehement denials.
It is notoriously difficult for alcoholics to overcome their addiction. However, the mother has been very strongly motivated to give up alcohol because she has been permitted to have such limited time with [B]. I commend the mother for overcoming her addiction and trust that for her own sake, and for [B]’s sake, she will not in the future consume any alcohol at all.
The mother said in an affidavit that she had made “one terrible error of judgment”. The mother was asked at the trial what was wrong with that statement. She said that she “had made one terrible mistake that could have turned bad”. The mother seemed to think that her only error of judgment was driving the car on 29 January 2006 while she was drunk and while [B] was in the car. However, it is important that the mother appreciates for the future that if she is drunk she cannot properly care for [B]. Every drunken episode is a terrible error of judgment. Being drunk, by definition, impairs judgment and increases the likelihood of dangerous and destructive behaviour.
The sexual abuse allegation
The mother said that, on 10 August 2006, she was going to give [B] a hug. [B] backed off, seeming to be frightened, and said, “Daddy”.
The mother said to her, “Has Daddy come near you?” [B] replied, “Yes.” The mother then telephoned the father and accused him of “touching up” [B]. The father denied touching [B] in an inappropriate way.
The mother maintained that she no longer thinks that the father sexually abused [B]. However, the father said that the mother’s false accusation had further damaged his relationship with the mother.
The father’s reaction was entirely understandable.
The mother was asked at the hearing if she could think of any other interpretation for [B] recoiling from her and saying, “Daddy”.
The mother said [B] might have been feeling emotions about the separation. It was put to the mother that [B] might have simply wanted her father. The mother did not think that was what [B] was feeling, as she immediately crawled over to her mother and cuddled her.
The mother’s counsel submitted that the mother had in fact done the right thing in ringing the father about her concerns rather than ringing the police and the Department of Human Services and subjecting [B] to enquiries and interviews. It was submitted that the mother’s call to the father demonstrated that she was able to communicate with him.
It is certainly true that ringing the father in the circumstances of this case was vastly preferable to ringing the police and the Department of Human Services. However, I do not take the mother’s telephone call to the father as an indication that the mother is willing to communicate with the father in a reasonable way about matters affecting [B]. Rather, she telephoned him to make a completely unwarranted and very serious accusation. The mother leapt to a conclusion that was very damaging for her relationship with the father on the basis of extremely flimsy evidence. In fact, the mother’s interpretation of [B]’s actions and words was bizarre.
At the hearing, the mother denied that she continued to think that the father had sexually abused [B] but appeared to harbour some lingering doubts. It is very much in [B]’s best interests that her mother and father be able to trust each other and communicate with each other about matters affecting [B]. To try to restore a workable parenting relationship, the mother should immediately apologise to the father for her false accusation if she has not done so already.
The father’s new partner
The mother continues to be of the view that the father commenced a relationship with her former friend, [K], when the mother was pregnant with [B]. The father and [K] are now partners and commenced cohabitation in April 2007. Whether or not the father and [K] were actually having a sexual relationship when the mother was pregnant, it would seem fair to assume that there was at least a spark between the father and [K] that the mother noticed. She was understandably very distressed by the possibility that her partner, to whom she was pregnant, was having an affair with her friend.
Again, to try to restore a workable relationship with the mother, if the father did have any sort of sexual connection with [K] while the mother was pregnant, he should acknowledge it to the mother and apologise to her for it. Having said that, the role of the court is not to compensate adults for past injustices. The role of the court is to make orders that are in the best interests of the child.
At the present time, the effect of the mother’s belief that the father was having an affair with [K], when the mother was pregnant and subsequently, is that the mother has been unable to collect [B] from the father’s house when [K] is there and [K] has not collected [B] from the mother’s house. This is obviously unpleasant for [B]. It would be much better for her if the mother, father and [K] could all communicate with each other with civility. The mother said in oral evidence that she would soon be able to contemplate [K] collecting [B] from her house but there would need to be some more communication between them first.
The communication between the mother and the father
Partly because of the father’s relationship with [K], whenever it may have started, partly because of the mother’s misguided sexual abuse allegation against the father, and, no doubt partly for many other reasons, the mother and the father have somewhat poor communication.
The evidence contained numerous examples of discussions deteriorating into arguments. The father accepted in cross-examination that he sometimes raised issues with the mother in a way that made her feel criticised and she reacted defensively. On the other hand, the family report writer observed that on the day of the second interviews, the mother and father were able to communicate with each other politely and appropriately in front of [B]. This is certainly not a case where the parents engage in ongoing violence or scream at each other in front of the child.
In my view, the mother and father are capable of communicating with each other civilly in the presence of a person in authority, such as a family report writer. I also consider that they are both capable of communicating civilly with each other if they focus on [B]’s real needs rather than their own. However, in the past, they seem to have been more concerned about blame and recrimination. Neither of them has yet achieved the ability to discuss matters affecting [B] in a courteous and respectful manner.
The mother made no criticism of the father’s parenting of [B]. Indeed, it was implicit in the mother’s case that the father had provided very sound care for [B] since 29 January 2006. The father, on the other hand, was very critical of the mother. Some of those criticisms were justified, as explained below. However, it was very concerning that, when asked whether he could say anything positive about the mother, he said he could not.
The mother has many positive attributes. She loves [B] very much.
She has been able to control her alcoholism. She works full-time and is a valued employee. She has bought a house. In the view of the family report writer, the mother is outgoing, bubbly and spontaneous.
The father should be able to recognise these qualities in the mother and should be able to speak positively about her to [B]. It is very important for [B] that her father is able to honestly and openly acknowledge the strengths that [B]’s mother has. Of course, the mother should also acknowledge the father’s strengths when she is speaking to [B].
The mother’s involvement in [B]’s education
The mother did not attend [B]’s kindergarten graduation evening even though she was aware of the date. The mother did not attend [B]’s primary school open day prior to [B]’s commencement at [L] Primary School. The open day was an opportunity to visit the school and speak with teachers. The school ran a four-week initiation programme with each session lasting between 1½ and 3½ hours on a Tuesday.
The father attended each session but the mother did not. The mother has not attended any school functions or meetings.
The mother only became involved in the choice of primary school for [B] at the father’s behest. He drove the mother to the various schools in the area. The mother and father agreed that [L] Primary School would be suitable for [B].
The father gave evidence that the mother had promised to pay $5 to charity for each book [B] read in the MS Readathon. [B] read 20 books. The father said that the mother refused to pay the $100, saying she had only ever committed to pay [B] $5. The mother maintained that she and her mother and father had paid three lots of money. I accept the father’s evidence that the mother did not pay the promised amount for [B]’s Readathon. The father’s evidence was precise whereas the mother’s was vague and lacking in detail. I accept the father’s interpretation of these events to the effect that the mother had not properly read the Readathon form and did not take much interest in it.
The father claimed that the mother did not read with [B] or fill in [B]’s reading diary. The father did not produce the diary. He said that in recent times the mother had begun to sign the diary. However, [B] had told him that the mother signed the diary without actually listening to [B] read. The mother maintained that she did read with [B] and that she had many books in the house I prefer the father’s evidence. That is, I do not accept that the mother regularly listened to [B] read.
The Readathon incident suggests that the mother has little interest in reading and pays little attention to [B]’s need to learn to read.
Paragraph 8 of the consent orders made on 20 November 2007 provided that:
… subject to the school’s requirements and policies, the Mother be entitled to receive and the Father authorise in writing the child’s school to forward duplicate copies of all correspondence and information sheets from the school including the child’s reports, and shall be entitled to attend all school functions to which parents are invited including information nights, parent teacher interviews, sports days, curriculum presentations and excursions.
However, the mother since that time has not attended any school functions or excursions and has not obtained any of [B]’s school reports. The mother said that three months ago and one month ago she had attended the school and asked for information but was told that the school only provided one copy of documents which went home in [B]’s school bag. Counsel for the father suggested to the mother that she could give the school funds to provide a second copy for her.
She thanked counsel and said that she would try that idea. However, the mother then went on to explain that she felt that the court had made the father the main parent and therefore she had to step back emotionally.
The mother’s attitude in that regard is very unfortunate for [B].
It suggests that the mother is retreating from [B] and her life because she does not have equal time with the father. This is not a mature approach based on [B]’s needs. It is an immature approach based on the mother’s feeling that she has been rejected. It is in [B]’s best interests that her mother is as engaged as she can be in all aspects of [B]’s life, even if [B] does spend less time with her mother than with her father.
The father gave evidence that when [B] returns from her mother’s on Sunday afternoons, her school uniform is rarely washed and [B]’s lunch scraps from Friday have rarely been removed from her lunchbox. I accept that evidence.
The nits
The father said that on 10 November 2007 he discovered, 10 minutes before the mother was due to collect [B], that [B] had nits. The father said that he told the mother that she would need to put the appropriate treatment through [B]’s hair as soon as possible. The father said that the mother then turned to [B] and said, “Well, because of this we are not going to Luna Park today.” The father said further that the mother did not begin to apply the treatment until shortly before [B] was due to return to her father the following day. I accept the father’s evidence on these matters.
The mother was asked by the Independent Children’s Lawyer what might concern the court about this incident. The mother thought that the court might be concerned about the mother not taking proper care of her daughter. The Independent Children’s Lawyer submitted that the real issue was that the mother had caused [B] to feel responsible and guilty about having nits and had deprived her of an outing because of it.
The mother denied, in re-examination, that she had said that she and [B] would not be going to Luna Park because of the nits. However, I prefer the father’s evidence. The mother’s denial came after the problem with her comment had been emphasised to her.
The ear infection
The father gave evidence that on the afternoon of 25 November 2007, the mother telephoned him to say that [B] had an ear infection and the father must have known that [B] was sick before delivering her to the mother. The father said that the mother told him that he should take [B] to the doctor as he was [B]’s primary carer. The father said that he collected [B] and took her to the doctor where she was diagnosed with an ear infection and prescribed antibiotics. [B] was too sick to attend school the next day.
The mother said that [B] was crying, hitting the side of her face, and kept saying she had pain in the side of her ear. The mother said that she rang the father to confirm that [B] had an ear infection. The mother said that she did not need to take [B] to the doctor because she had put Audiclean in [B]’s ear and that immediately took the pain away. There was no medical evidence about what Audiclean does but the mother said it was something to do with [B]’s swimming.
I accept the father’s evidence that [B] did in fact have an ear infection and that it needed to be treated with antibiotics. It also seems quite obvious from the mother’s evidence that [B] did have an ear infection and the Audiclean at best provided temporary relief.
I also accept the father’s evidence that the mother had said that he should take [B] to the doctor as he was [B]’s primary carer.
This evidence is consistent with the mother’s attitude to [B]’s school reports and school activities. The mother, on her own evidence, did not take [B] to the doctor when she was clearly in considerable pain.
If a child needs medical attention, any adult who has the care and control of the child at the time has a responsibility to ensure that the child gets that medical attention as soon as possible. That is especially the case if the adult who has the care and control of the child is one of his or her parents. It is a complete abnegation of parental responsibility to suggest that only the primary carer should take a child to the doctor. I take this episode as an indication that the mother was not prepared on that occasion to fulfil the basic parental responsibility of attending to her child’s pressing health needs.
The birthday party
The father said that he told the mother a week in advance that [B] had been invited to a friend’s birthday party on the last day of school, being 21 December 2007, when [B] was due to be in the mother’s care.
The father said that the mother said that she could not take [B] to the party because she did not know the people. The father said that the mother signed [B] out from school in the early afternoon and did not take her to the party.
The mother said that she was told about the party only the day before. It was implicit in her evidence that she did not take [B] to the party.
I accept the father’s evidence on these matters. Even if the mother did get short notice, which I do not accept, she should have taken [B] to the party.
Children’s social activities with their peers are a very important part of their development. It is very important for children to participate in social activities with their school friends and neighbours. Whichever parent a child is with when he or she has a special social activity should ensure that the child is able to attend the activity. It is irrelevant that the activity occurs when the child is with the parent with whom they spend less time. The parent can interact with the child by sharing their excitement about the party, helping with the present and card, getting the child nicely dressed, taking the child to the party, meeting their child’s friends and their friends’ parents, collecting them from the party and hearing all about it from the child on the way home. In this way, the parent is able to be a part of fun events in their child’s life. Having said that, the mother now says that she will take [B] to birthday parties to which she is invited. I accept that she will do so.
School holiday time
The consent orders made on 20 November 2007 provided for [B] to spend two periods of one week with her mother over the 2007/2008 summer holidays. The mother did not seek to have that time with [B]. The mother suggested that she did not know that the orders provided for her to have two periods of one week with [B] over the summer holidays. That is very difficult to believe. The mother was represented on 20 November 2007. The mother acknowledged that she had seen the orders that she consented to. Notwithstanding her protestations, the only reasonable conclusion is that the mother did not wish to spend the two periods of one week with [B] over the summer holidays.
The father did not remind the mother that the court orders provided for [B] to spend that time with her mother. The consent orders were made on 20 November 2007 on the basis that they were in [B]’s best interests. That is, it was in [B]’s best interests that she spend two periods of one week with her mother during the 2007/2008 summer holidays. By not facilitating [B] to spend that time with her mother, the father did not act in [B]’s best interests as specified in court orders made by consent. He conceded that he knew what the orders said but that he opportunistically decided to have the additional time with [B] himself. The father’s answer was honest and his actions were understandable, but they were not in [B]’s best interests.
The rabbit
On about 3 February 2008, the mother bought [B] a rabbit. In early April 2008, the father went to the mother’s house to collect [B] and the mother invited him in to see her new house. The father said that there was rabbit urine and faeces all over the house and there was rabbit urine on the mother’s doona. The father said that [B] showed him where the rabbit had chewed through an electrical wire. On 27 April 2008, the father said that [B] had told him that the rabbit had been in the bath with her.
The mother denied that there was urine or faeces all over the house. She said that there may have been a little mess because the rabbit was being house trained. She said that she had not been aware that a rabbit would be that messy. She denied there was rabbit urine on her doona. The mother accepted that the rabbit had chewed through an electrical wire to a lamp. The mother said she had turned off the power and replaced the lamp. However, the rabbit chewed through the cord to the replacement lamp as well. The mother accepted that there had been an exposed wire at one stage but said there were none at the moment, and said that [B] had never been in danger of coming into contact with a live electrical wire. The mother did not deny the allegation that [B] had had a bath with the rabbit.
On this evidence, I consider that the mother did not keep a close eye on the rabbit while it was being house trained and did not clean up the rabbit’s urine and faeces immediately after they were deposited.
The result was that the house was messier than is generally considered to be acceptable. In view of [B]’s statements to the family report writer, I accept the father’s evidence that the rabbit urinated on the mother’s doona. I do not think it matters greatly that [B] had a bath with the rabbit. Although it was not particularly hygienic, it was probably a lot of fun and it is not suggested that any harm came of it. The exposed electrical wire on the other hand was potentially very dangerous. However, I accept the mother’s evidence that she turned off the power and [B] was never exposed to the danger of coming into contact with a live electrical wire.
Overall, pets are acknowledged as being good for children and a source of much delight for them. There is even a school of thought that exposure to pets’ germs helps to activate children’s immune systems and protect them from developing asthma and other allergic reactions. Be that as it may, there is a need for vigilance and prompt action during the house training process so that basic hygiene standards can be maintained. On the other hand, the father should not be undermining [B]’s joy in having a rabbit by making her feel it is a health hazard.
Child support
The mother said that she earns about $700 per week. The father’s evidence was that the mother had paid the father no child support in the 2007/2008 financial year. The father’s counsel conceded that the mother had paid child support of $109 and $100 when those amounts were intercepted by the Child Support Agency. Otherwise, she had not paid any child support for [B]. The mother disputed that claim.
She said that she had offered to pay half of [B]’s school fees but had not done so. No documentation was provided to the court indicating when the father applied for child support, how much child support the mother was required to pay and how much she had failed to pay. However, I accept that the mother had only made the payments mentioned above. I take this as an indication that the mother, for one reason or another, has not fulfilled her responsibility to support [B] financially.
The first family report
Joy Slattery prepared a family report dated 13 June 2006. She did not interview [B] given her young age but observed her with both her mother and her father. Ms Slattery noted that [B] presented as a friendly young child with a lovely smile. She was socially aware and several times went over to Ms Slattery to engage with her. Ms Slattery said that [B] was quite a confident child who is developing at an age appropriate level.
[B] appeared to be relaxed and comfortable with her father and chatted happily with him. At one point, [B] put her arm around her father and smiled. All of [B]’s interactions with her father appeared to be positive.
When [B] realised that her mother had arrived, she happily went out to greet her and they hugged. [B] and her mother chatted and played together during the session. [B] appeared confident, relaxed and comfortable with her mother. Overall, their interactions were positive. At the end of the session, [B] hugged and kissed her mother goodbye.
Ms Slattery’s conclusions included the following:
32. From my observations, [B] appeared to have developed warm and close relationships with both Ms Hunt and Mr Colton. [B] seemed to be confident being with Mr Colton and Ms Hunt. [B] demonstrated spontaneous warmth and affection with Ms Hunt as well as with Mr Colton. No concerns were raised from observing [B] with Mr Colton and Ms Hunt.
33. [B] has now been living with Mr Colton since 29 January 2006 and she appears to have managed this emotionally without suffering effects from being separated from Ms Hunt. It is my view that given the secure attachments [B] has developed with both Mr Colton and Ms Hunt they are both significant adults in her life and she is able to maintain some time away from either of them so long as she is in the care of the other.
34. There are no practical or any other difficulties that prevent [B] from having regular time with each parent. At the current time, [B] has contact with Ms Hunt twice each week and while this is supervised contact it is in a comfortable environment. Ms Hunt said she is close to her parents and they are supportive so there are no concerns about the supervised contact being strained.
35. I believe Mr Colton has demonstrated he is able to meet [B]’s emotional and intellectual needs. It is my view that Ms Hunt is able to meet [B]’s intellectual needs, however more time is needed to show that Ms Hunt is able to place [B]’s emotional needs and safety as a priority. In my view, it is still early days for Ms Hunt in her endeavour to change her substance abuse. From the accounts she has provided, it does seem that she is remorseful and is working very hard to overcome her need to use alcohol and marijuana, however there was one drug screen in April 2006 that showed positive for amphetamine use. While Ms Hunt blames the medication she is using as showing positive for amphetamines, I recommend there be an expert opinion obtained as to whether this medication would show positive as amphetamine use. It would be of concern if Ms Hunt has or is currently using illicit amphetamines.
36. Given that [B] appears to be in a safe environment living with Mr Colton and that his care is appropriate and acceptable and that [B] seems to be content and secure within her relationship with Mr Colton, and given that it is too early days for Ms Hunt to show she is able to maintain a substance abuse free lifestyle over a reasonable time, I recommend [B] continues to reside with Mr Colton. Until an expert has provided an opinion on the drug screen showing positive to amphetamines and whether it could have been as a result of the medication Ms Hunt claims it was, I recommend Ms Hunt continue to have the same supervised contact but with Saturday increased to a day. I recommend supervised contact continue until Ms Hunt provides a total of six months of clear drug and alcohol screens and that these screens be completed at the direction of the Child Representative.
The second family report
Ms Slattery provided an updated family report dated 2 July 2007.
It records similar observations to those made in the first report about the interactions between [B] and each of her parents. Ms Slattery described [B] as a friendly, calm and gentle child who was able to express her emotions quite confidently for a child of her age. When asked about her three wishes, [B] said that she wished that she could live with her mummy and that she wished that she could live with her daddy. When asked if there were any things about her father that were not so good, [B] said with a smile that sometimes he tricked her.
When asked if there were any things about her mother that were not so good, she said that her mother had had a car accident and [B] was going to hurt herself because the car landed on the grass. [B] also said that she had lost her pen because she was writing letters at the time.
When [B] was asked how she would feel if she continued to live with her father and see her mother as she did at that time, [B] said “Good”. When asked how she would feel if she lived with her mother and saw her father on weekends, [B] said, “Happy”. When asked if she would like to tell the judge anything, [B] said, “I am happy with my mummy and my daddy and I’m happy with my grandpa and I’m happy with my nanna”.
Ms Slattery described the father as rather conservative and very careful, particularly in regard to [B]’s welfare. Ms Slattery said that she considered the father to be very conscientious and said he worked hard to ensure that [B]’s needs were being met.
Ms Slattery described the mother as outgoing, bubbly and spontaneous. Ms Slattery considered that the marked differences between the personalities of the mother and the father would allow [B] to benefit quite differently from each parent.
Ms Slattery provided the following evaluation:
37. From my observations, [B] appeared to continue to have warm and close relationships with both Mr Colton and Ms Hunt. In my view, it is to the credit of Mr Colton and Ms Hunt that [B] has been able to continue having such significant relationships with Mr Colton and Ms Hunt. I believe both Mr Colton and Ms Hunt facilitate, encourage and support [B] to maintain her relationships with each of them and this is demonstrated by [B]’s apparent contentedness and her behaviour toward each of them while she is with them. In my view, it is also to the credit of [Mrs H] and [Mr H] that [B] is able to enjoy her relationships with Ms Hunt and also with Mr Colton, [Mrs H] and [Mr H] have sacrificed a great deal of their time and activities so that they are able to facilitate [B] spending time with Ms Hunt. There does not appear to be any animosity but to the contrary, [Mrs H] and [Mr H] are able to communicate with Mr Colton about [B], which seems to have assisted both Ms Hunt and Mr Colton.
38. It is my view that [B] is able to sustain time away from Ms Hunt and Mr Colton to be with the other one without suffering any undue effects.
39. It may be that the communication between Mr Colton and Ms Hunt has improved somewhat but there is still a way to go before they both feel they are able to trust each other as parents. Attending a post separation parenting course may assist them to learn some new strategies about developing a parenting relationship for the future.
40. From Ms Hunt’s accounts it appears she has been able to deal appropriately with her drinking dependency. It would be of assistance to have a short report from her doctor in regard to the treatment she has received and the outcome of this treatment. It would also be helpful if this report could include information about the recent urine drug screens that showed a low level of creatinine (which indicates the possibility of diluted urine) and the meaning of this for Ms Hunt. From [Mrs H’s] account, no concerns have been raised about Ms Hunt spending time with [B]. Ms Hunt’s urine drug screens indicate that there has been no illicit drug use since February 2006. Ms Hunt also said her place of employment is a non alcoholic work site and they have random testing. Ms Hunt said she received her licence back in May 2007 and prior to this she completed an accredited “Drink Driver Education Program” in September 2006.
41. It is my view that Mr Colton has the capacity to meet [B]’s intellectual and emotional needs and he has been doing this very conscientiously with [B]’s best interest as his priority. I believe that Ms Hunt appears to have worked hard to overcome the difficulties she faced with alcohol and drug issues and she may now be ready to meet [B]’s intellectual and emotional needs. I believe that [B] very much wants Ms Hunt to meet these needs and I believe that [B] misses Ms Hunt but at the same time, I believe [B] is content being with Mr Colton as he has been meeting her needs to a high standard.
42. It is my view that Mr Colton and Ms Hunt are now able to share parenting responsibilities for [B]. I believe that before a shared care arrangement is considered that there needs to be some time allowed for [B] to spend with Ms Hunt unsupervised and for Ms Hunt to show over time she is able to continue to care for [B] with [B]’s safety as her priority.
The second family report recommended that both parents attend an accredited post separation parenting course. By the time of trial, the father had recently completed such a course but the mother had not. The mother said that she had enrolled in one course but had to cancel it when a colleague was absent from work. She said that she had enrolled in another course and would be doing it soon. I consider that the fact that the mother had not managed to actually attend and complete a post separation parenting course 12 months after a family report writer had recommended it indicates that she is not particularly diligent in complying with the recommendations of experts made in the best interests of [B].
The third family report
Ms Slattery provided a further updated family report dated 2 June 2008. She observed [B] with her mother, her father, [K] and [J].
Ms Slattery also interviewed [B] for the third report. Ms Slattery reported that the mother and father were polite and appropriate towards each other in front of [B].
Ms Slattery noted that [B] continued to have a warm and close relationship with her father, who was very encouraging while [B] read from a book. [B] spent some time sitting on her father’s knee and seemed comfortable being physically close. [B] seemed relaxed and confident. Her father was appropriate and caring.
Ms Slattery noted that [B] and [J] both seemed to have gentle natures and got along very well together. [B] seemed confident and at ease being with [K] and [J]. [J] seemed confident being with the father and [B].
Ms Slattery noted that the mother presented as a friendly and cooperative person. Ms Slattery observed that [B] continued to have a warm and close relationship with her mother. [B] went to meet her mother when she arrived, gave her a hug and seemed pleased to see her. [B] seemed relaxed and comfortable, smiled easily and laughed at times. [B] seemed comfortable being physically close to her mother and seemed confident in her presence. Her mother was appropriate and caring towards her. They hugged and kissed each other goodbye.
At the interview, [B] presented as a friendly six year old girl with a lovely smile. She was dressed neatly and cleanly. She seemed relaxed during the interview and appeared to engage well. She seemed able to express her emotions confidently. [B] drew a picture of her family which consisted of herself, her father, [K] and [J]. When [B] was asked what three wishes she would like, she said, “A unicorn, and ice cream (flavoured strawberry) and that I can stay with my mummy more.”
[B] said the positive attributes of her father were that he is a good father to her and [J]. She said that the not so good aspect of her father was that he yells at [J] when he is naughty.
[B] said that the positive attributes of her mother were that she takes care of the rabbit and [B]. [B] said that the not so good aspect of her mother was when the rabbit “pees on my mummy’s bed and she yells at him.”
[B] said that the positive attributes about [K] were that she let [B] have apples and bananas and sandwiches and the not so good aspects of [K] were that she screams at [J] too sometimes. [B] said that she got on well with [J]. Sometimes he was naughty but he had been good this term.
Ms Slattery described the interview in so far as it concerned [B]’s future living arrangements as follows:
42. [B] was asked how she would feel if it was decided she lives with Mr Colton like she has been doing and she said, “Good”. [B] then said, “And good with my mummy too”. [B] was asked how she would feel if it was decided that she continues to see Ms Hunt on alternate weekends and alternate Wednesdays overnight and she said, “Good”.
43. The concept of living week about with each parent was explained in simple language to [B] and I showed her on a whiteboard how it would work week about. When [B] was asked how she would feel if was decided that this happens, she said, “Good”.
Ms Slattery considered that [B] did not have the maturity to be able to evaluate what is in her best interests and that other factors needed to be considered in addition to [B]’s preferences. Ms Slattery said that the mother seemed to be a fun and spontaneous person while the father seemed to be a more serious but secure person.
Ms Slattery considered that [B]’s parents had not yet established a working relationship as parents and that there was little trust between them. For that reason, Ms Slattery did not consider that a shared care arrangement would be in [B]’s best interests. Ms Slattery also expressed the view that in a shared care arrangement both parents need to demonstrate that they are able to take responsibility for the child while the child is in their care. Ms Slattery considered that the mother needed to demonstrate that she is taking responsibility for [B]’s well-being, including by reading the court orders that she had consented to and spending time with [B] over the school holidays.
Ms Slattery recommended that:
a)the mother and father have equal shared parental responsibility;
b)[B] live with her father;
c)[B] spend time with her mother from after school on Thursday to before school on Monday in alternate weeks and from after school on Wednesday to before school on Thursday in the other week;
d)[B] spend half school holidays and special occasions with her mother;
e)[B] have telephone communication with her mother twice a week; and
f)the mother and father use a communication book.
Ms Slattery’s oral evidence
The Independent Children’s Lawyer referred Ms Slattery to an article, Shared Care and Children's Best Interests in Conflicted Separation - A Cautionary Tale from Current Research by Jennifer McIntosh and Richard Chisholm, Australian Family Lawyer volume 20 number 1.
Ms Slattery said that she had taken a lot of notice of that research. The article said at page 9:
The research outlined here suggests that substantially shared care arrangements may entail risks for children's healthy emotional development in families that have the following specific factors, especially in combination:
Parent factors:
·Low levels of maturity and insight;
·A parent’s poor capacity for emotional availability to the child;
·Ongoing, high level conflict;
·Ongoing significant psychological acrimony between parents;
·Child is seen to be at risk in the care of one parent.
Child factors:
·Under 10 years of age;
·The child is not happy with a shared arrangement;
·The child experiences a parent to be poorly available to them.
The McIntosh-Chisholm article defines a substantially shared care arrangement as being one with a minimum of a 5:9 ratio. That is, at least five nights with one parent per fortnight. That is the minimum amount of time that it is proposed that [B] spend with her mother in this case.
When asked why she had not recommended an equal shared care arrangement, Ms Slattery said the mother and father in this case had not yet been able to develop a good working relationship, they had not attended a post separation parenting course and they did not both have a very child focused attitude. Ms Slattery said that for a shared care arrangement to work, both parents needed to have confidence in the other parent as a parent. The father, in the present case, clearly did not have confidence that the mother was a responsible parent, as indicated, for example, by the mother not taking [B] to the doctor when necessary.
Ms Slattery said that she would not describe the relationship between the mother and father as having a high level of conflict but considered that there was conflict between them. Ms Slattery considered that children are able to detect subtle conflict between their parents.
She said any level of conflict made it difficult for children to move smoothly between households and required them to tiptoe through the emotional landscape between their parents. Ms Slattery also considered that conflict between the parents created difficulties for children in terms of conflicted loyalty and guilt. Ms Slattery also considered that when the mother had been drinking to excess she was not emotionally available to [B].
Ms Slattery considered that until 12 months ago the mother was having difficulty in maturing and in meeting [B]’s needs or understanding [B]’s needs. Ms Slattery thought that the issue of the mother not being involved with [B]’s school until recently, the issue of the mother not seeking medical treatment for [B] and the issue of the mother not taking [B] to a children’s party during her time with [B] suggested that the mother lacked insight and maturity.
Ms Slattery considered that an equal shared care arrangement was not appropriate in the present case because the parents did not trust each other as parents. Additionally, [B] is still quite young. She has been through a lot emotionally in the last few years and needs time to settle into a routine. Ms Slattery thought that [B] should be given time to settle into a routine of five nights a fortnight with her mother.
Ms Slattery considered that children of [B]’s age become very tired at school. Ms Slattery thought that an equal shared care arrangement might be viable in a couple of years, after both parents had completed a post separation parenting course, established more trust in each other and learned to communicate easily with each other.
Ms Slattery was not overly concerned about [B]’s times with her mother coinciding with [J]’s times with his father. In fact, Ms Slattery considered that it might be better for [B] to have some time with her father when [J] was not there.
The mother challenged Ms Slattery’s report on the basis that
Ms Slattery had not sought the mother’s response to all allegations made by the father against the mother. The particular matters relied upon by the mother were the mother’s alleged lack of financial support for [B] and the mother’s alleged mishandling of [B]’s head lice.
Ms Slattery said that it was not her role to go back and forth between the parents and put allegations and counter allegations. She said further that it was for the court to resolve conflicts of evidence.
As it happens, I accept that the mother has made a minimal contribution to [B]’s financial support and I accept the father’s evidence that the mother did not treat the head lice until [B] was due to be returned to her father. Accordingly, the view taken by the family report writer about these allegations coincides with the court’s view.
Best interests of the child
Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part 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.
2.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).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
However, the best interests of the child are not the only consideration.
Section 60cc(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations. I will address those considerations in order.
2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
It is very clear that [B] benefits from having a meaningful relationship with both of her parents. She loves them both and they both love her. As the family report writer noted, [B]’s parents have quite different personalities and have quite different things to offer [B]. It is in [B]’s best interests that she is able to have substantial input from both of her parents.
2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There is no reason to suppose that [B] would be subjected to or exposed to abuse or family violence in the future. The mother’s sexual abuse allegation against the father was completely unfounded.
The mother did hit the father after the car accident on 29 January 2006, but there is no reason to suppose that she would do anything like that again. She said that on one occasion the father had pushed her in the kitchen. However, I consider that event was, at most, an isolated incident.
The mother would be unable to properly care for [B], and would neglect her, if the mother succumbed to her alcoholism while [B] was with her in the future. However, I consider that there is a relatively low risk that the mother would take up drinking again. I think that the mother is very highly motivated to spend as much time as she can with [B] and understands that any drunkenness will jeopardise their time together.
3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
In the third family report, [B] is recorded as saying that she wants to stay with her mummy more. When asked how she felt about continuing to live with her father as she had done, [B] said “Good”, and then spontaneously added, “And good with my mummy too.” It is clear that [B] wants to spend more time with her mother than she is under the existing orders. Those orders provide for [B] to spend three nights out of 14 with her mother during school term.
The father, the independent children’s lawyer and the family report writer all agree that [B] should in fact spend more time with her mother than the existing orders permit. They agree that [B] should spend five nights out of 14 with her mother during school term.
[B] is not yet seven years old. She does not have the maturity to understand the consequences for herself if her mother were to get drunk, or failed to take [B] to the doctor when she needed to be taken, or failed to supervise and encourage [B]’s reading and other schoolwork in years to come.
Having said that, I consider that some weight must be given to [B]’s clearly expressed wish to spend more time with her mother.
3(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
I consider that [B] has a very sound relationship with each of her parents. She is very happy and comfortable with both of them. She also seems to have a good relationship with her maternal grandparents although she is no longer living with them. [B] apparently has a good relationship with both [K] and [J]. The father said, and I accept, that [B] and [J] are like brother and sister. It is very valuable for a child to have that sort of bond with another child, whether they are biologically related or not.
3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
In broad terms, both parents have facilitated and encouraged a meaningful relationship between [B] and her other parent. Immediately after separation, [B] lived with her mother and spent time with her father. Since 29 January 2006, [B] has lived with her father and spent gradually increasing time with her mother. Ideally, the father would have reminded the mother that the court orders provided for [B] to have two periods of one week with her mother over the last summer holidays. However, on the whole, the father has over time consented to orders for [B] to spend more time with her mother. There have been no major contraventions of the orders.
The father in most respects has conscientiously fulfilled his parental responsibilities to [B]. He has taken her to the doctor as required, he has dealt with her nits as required, he has supervised and encouraged her reading, he took the mother to assess various primary schools for [B] and he organised her school enrolment.
On the other hand, the mother failed to spend time with [B] over the summer holidays in accordance with consent orders. The mother has failed to take [B] to the doctor when she needed medical attention.
The mother has failed to pay a proper level of child support for [B]. The mother has failed to properly supervise [B]’s reading. In these ways, the mother has failed in her responsibilities as a parent. More dramatically, the mother failed in her responsibility as a parent by exposing [B] to grave danger by driving her in a car when the mother had a blood alcohol level of 0.13%.
Notwithstanding all that, the mother and [B] have a very strong bond. The mother is clearly doing many things in relation to [B] very well.
3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The changes that are proposed are to increase [B]’s three nights a fortnight with her mother to five nights or seven nights. The proposed changes are a matter of degree and will not result in any complete separation of [B] from any of the significant people in her life.
The increase to five nights or seven nights a fortnight will no doubt strengthen [B]’s relationship with her mother.
3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
[B]’s parents live quite close to each other. There is no particular difficulty or expense in [B] spending time with either parent.
3(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
There is no doubt that the father is able to provide for [B]’s intellectual needs. In broad terms, he is able to provide for [B]’s emotional needs, except for her need to spend more time with her mother.
The mother certainly has the capacity to provide for [B]’s emotional and intellectual needs. However, there is a question about whether the mother has the willingness to provide for those needs in the sense that the mother has not yet been very much involved in [B]’s school and has not adequately supervised [B]’s reading.
[B] also has the need to be kept safe. That issue is discussed elsewhere.
3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The mother and father both had a lifestyle that included drug use and excessive alcohol consumption. The father says, and I accept, that he has matured and no longer indulges in drugs or excessive quantities of alcohol. The mother says, and I accept, that she has changed her lifestyle and is now very healthy.
However, I do have doubts about the mother’s emotional maturity.
Her failure to attend to the responsibilities of parenthood mentioned above and her inclination to blame others for her actions are indicative of immaturity. I trust, however, that the mother is gaining insight into these matters.
3(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor is not relevant in the present case.
3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
This matter has been discussed elsewhere.
3(j) any family violence involving the child or a member of the child’s family
There is no ongoing issue of family violence in this case. Such violence as has occurred was isolated and at the minor end of the scale.
3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
No such order has been made in this case.
3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In general, it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings. Litigation is stressful for all concerned. It obstructs the achievement of a good, working relationship between the parents.
In this case, there is a real possibility that if the court does not make orders for [B] to spend seven nights a fortnight with her mother, the mother will institute further proceedings in the future. One option in this case would be to make orders increasing [B]’s time with her mother to five days per fortnight for a time, and then increasing the time to six nights, and eventually to seven. However, it would only be proper to make such orders if the court were confident that they were in [B]’s best interests. That would involve a certain amount of prediction about how events might unfold in the future.
It seems to me that further proceedings are preferable to making orders based on the hope that the mother will continue to control her alcoholism and the hope that the mother will start to meet more of her parental responsibilities. If further proceedings were instituted when [B] is, say 10, the court could assess the matter on the basis of the events that had actually occurred between now and then.
3(m) any other fact or circumstance that the court thinks is relevant
There are no other facts or circumstances that are relevant.
Equal shared parental responsibility
Section 61da of the Act provides as follows:
1.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.
2.The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
3.When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
4.The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In this case, the parties agree that it would be in the best interests of [B] for her parents to have equal shared parental responsibility for her. I also consider that it is in the best interests of [B] for the parents to have equal shared parental responsibility. There will be an order accordingly.
Equal or substantial and significant time with each parent
Where the parents have equal joint parental responsibility, s.65daa of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent. It provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
4.Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
The mother through her counsel submitted that the question for the court in this case was a matter of degree, given that the mother sought seven nights a fortnight with [B] and the father, the Independent Children’s Lawyer and the family report writer proposed that [B] spend five nights a fortnight with her mother. The mother pointed out that she had been [B]’s primary carer for most of her life. The mother ceased to be [B]’s primary carer in January 2006, about 2½ years ago.
In terms of the McIntosh-Chisholm article, the mother submitted that the level of conflict between the parents in this case was almost non-existent. There was no shouting in front of the child and no family violence. At most, the mother submitted that there was slightly stressed communication between the parents. The family report writer did not consider that this was a high conflict family. However, she did consider that there was some conflict between them and they did still have issues to do with trust.
The mother submitted that the McIntosh-Chisholm article did not address a case such as the present where the choice was between five nights out of 14 as opposed to seven nights out of 14. Rather, the McIntosh-Chisholm article addressed those cases where the choice was between substantial care on the one hand and alternate weekends and one night midweek on the other hand. The McIntosh-Chisholm article concerned the adverse impact on children of substantially shared care arrangements which were defined to be five nights out of 14 or more. An alternate weekend and one night midweek arrangement can work out to be five nights a fortnight (Friday, Saturday, Sunday and two Wednesdays). However, I take the point that the McIntosh-Chisholm article did not address the detriment, if any, involved in increasing the time spent with one parent from five nights a fortnight to seven nights a fortnight.
The mother also submitted that it was of no significance that she had not yet completed a post separation parenting course because she was willing to move forward in terms of communication with the father and his new partner. However, the mother is yet to demonstrate that she is actually capable of moving forward in that regard. If she had completed a post separation parenting course in the six months after the recommendation was made on 2 July 2007, the communication between the parents might have demonstrably improved by the time of the trial. As things stand, the court is being asked to take it on trust that the communication between the parents will improve.
The mother submitted that [B]’s wish to stay with her mother more should be regarded as significant. The court would very rarely give determinative weight to the views of a child who is under seven years of age. However, the more important point is that [B] was not specifically asked whether she would like to spend seven nights a fortnight with her mother as opposed to five nights a fortnight. We do not know exactly how many nights a fortnight [B] had in mind when she said she wanted to spend more time with her mother. It may be that five nights a fortnight is exactly what she wants. She said that spending three nights a fortnight with her mother would be good but also indicated that it would be good to spend three nights a fortnight with her father. What is clear is that [B] wants to spend more time with her mother and five nights a fortnight is more time than [B] is spending with her mother under the existing orders. At the moment, [B] is spending three nights a fortnight with her mother.
The mother submitted that there had been no detriment in increasing the time that [B] spent with her mother to three nights a fortnight and there would be no detriment in increasing that time to seven nights a fortnight. On the contrary, it was submitted that it was in [B]’s best interests to have equal time with both of her parents to maximise her relationship with both parents.
Resolution
It is abundantly clear that [B] is a happy, confident, outgoing and generally delightful little girl. She is a credit to both of her parents.
Her mother was her primary carer until she was a little over four years old and her father has been her primary carer since. They have both done an admirable job, notwithstanding the mother’s alcoholism.
The McIntosh-Chisholm article does not address the detriments of a child spending seven nights a fortnight with one parent as opposed to five nights a fortnight. Moreover, it places particular emphasis on the detriments involved in shared care arrangements where the parents are involved in ongoing high-level conflict. Fortunately, for everyone concerned, the parents in this case are not involved in ongoing, high-level conflict. They argue. The father is inclined to criticise.
The mother is inclined to be defensive and has made one totally unwarranted accusation of sexual abuse. However, they are capable of speaking to each other civilly, particularly in the presence of people in authority. At worst, the parties are involved in occasional low-level conflict. That level of conflict is not generally regarded as a contraindication for a substantial shared care arrangement.
However, three of the other factors mentioned in the McIntosh-Chisholm article do arise in this case. The most clear is that [B] is under 10 years of age. The McIntosh-Chisholm article does not explain why being under 10 years of age contraindicates a shared care arrangement. However, Ms Slattery explained that children of [B]’s age get very tired and need to spend more time in one house or the other to give them a stable base. As they get older, children are more able to cope with living in two houses, as opposed to living in one and staying over in the other. Counsel for the Independent Children’s Lawyer also pointed out that children under 10 years of age are totally dependent on their parents, whereas older children are more able to look after themselves, at least to some extent.
The second relevant factor mentioned in the McIntosh-Chisholm article is that the father perceives [B] to be at risk in the care of her mother. Ms Slattery explained that shared care arrangements are dependent on each parent having confidence in the other parent’s skills as a parent. The father considers that the mother has been remiss in a number of matters.
The first matter is in relation to the rabbit. As indicated above, I do not consider there is any reason for ongoing concern in relation to [B]’s health or safety in connection with the rabbit. The second matter is in relation to the mother’s acceptance of her responsibility to take [B] to the doctor when necessary. I consider that the mother has not always done this in the past. However, I am confident that she now understands her responsibility in this regard and will fulfil it. The third matter is in relation to [B]’s education. I consider that the mother has not engaged fully with [B]’s school and reading requirements. However, I am confident that the mother will deal properly with these issues in the future. The fourth matter is in relation to the nits. The father’s complaint (as opposed to the Independent Children’s Lawyer’s) was that the mother did not treat the nits promptly or sufficiently frequently to eradicate them. Again, I consider that the mother will be more attentive to this problem in the future. The fifth matter is the mother failing to pay child support. However, it appears that the father did not seek child support until recently. I expect that the mother will pay child support as assessed in the future as the money will be taken directly from her salary. I consider that all of these matters are, in the overall scheme of things, fairly minor and they are unlikely to be problems in the future.
The sixth matter that is of concern to the father is the mother’s alcoholism. The father seems to think that the mother still drinks. There was no credible evidence that she does. However, given that controlling alcoholism is a lifelong battle, I accept that the father has a legitimate concern about this issue.
The third factor mentioned in the McIntosh-Chisholm article is a parent’s low level of maturity and insight. The mother has shown a lack of maturity in a number of ways. She has become an alcoholic and put the blame on her partner’s betrayal of her. She has exposed her daughter to grave danger by driving her in a car when the mother’s blood-alcohol content was 0.13%. She has failed to meet a number of her responsibilities as a parent. She has treated the father’s role as primary carer as a reason for not engaging in [B]’s school life and for not taking [B] to the doctor.
In total, the factors from the McIntosh-Chisholm article that suggest that an equal shared care arrangement would not be appropriate in this case are that [B] is not yet seven years old, the mother lacks maturity in certain respects and the father considers [B] to be at risk in the care of her mother for one reason that is a valid concern (her alcoholism) and a number of other reasons that are unlikely to be significant problems in the future. However, I acknowledge that the McIntosh-Chisholm article does not address the distinction between five nights per fortnight and seven nights per fortnight as both of those possibilities are treated as part of substantially shared care.
Taking into account all the relevant matters in this case, I do not consider that it would be in [B]’s best interests to spend equal time with each parent. [B] is still very young. I accept that she needs to live predominantly at one house rather than divide her time equally between two houses, at least for the next few years. I consider that the father has cared for [B] exceptionally well since January 2006 and that, for reasons of stability, it is in [B]’s best interests that she remains predominantly in his care. I accept the recommendation of the family report writer and the Independent Children’s Lawyer that it is in [B]’s best interests that she spends no more than five nights per fortnight with her mother during school term. That amounts to substantial and significant time within the meaning of the legislation.
I consider that it is in [B]’s best interests that she spends half of the school term holidays with her mother and three one week blocks with her mother during the summer holidays. I consider that, at [B]’s age, it is in her best interests to have no more than one week without seeing her other parent. Accordingly, I do not consider that [B] should spend more than a week at a time with either parent.
I considered the possibility of making orders to gradually increase the time that [B] spends with her mother from five nights per fortnight to seven nights per fortnight over a period of years. However, that course would require the court to make predictions about how people will behave and feel in the future. It is not appropriate for the court to make such predictions. It would be preferable for the court to revisit the matter in the future, if need be, and make appropriate orders at that time based on evidence about how the parties had actually conducted themselves and what [B]’s wishes were at the time.
I would also add that I consider that in many respects the mother has been a very good mother to [B]. Even with her alcoholism, the mother has shown better parenting skills and is a more devoted parent than many mothers who the court permits to have the predominant care of their children. However, in those cases, often the fathers have even worse parenting abilities than the mothers. The court must work out what is in the best interests of each particular child, given that child’s own history and family circumstances.
The mother said that she would consent to an order restraining her from using alcohol or any illicit substance while [B] is in her care.
I will make that order, as I consider it to be in [B]’s best interests.
I will order that the parents use a communication book until they agree otherwise. It seems to me that it will be helpful to get things on the right track. No one proposed therapeutic counselling. However, I would suggest that the parents give it some thought as it may help them to improve their communication and improve their care of [B] in the long term. There will also be orders for [B] to spend time on special occasions with each of her parents and other customary orders.
I certify that the preceding one hundred and forty-seven (147) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Catherine Wilson
Date: 31 July 2008
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