Denver and Croft

[2009] FamCA 498

FAMILY COURT OF AUSTRALIA

DENVER & CROFT [2009] FamCA 498

FAMILY LAW – CHILDREN – With whom a child lives – History of drug dependency of parents and consequent risk – Geographical separation of parents – Child’s views

Family Law Act 1975 (Cth)

DJ v VAJ (1998) 197 CLR 172
Miller v Harrington [2008] FamCAFC 150
Secretary Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218
U v U (2002) 211 CLR 238

APPLICANT: Mr Denver

RESPONDENT: Ms Croft

INDEPENDENT CHILDREN’S LAWYER: Mr Mylne

FILE NUMBER: SYC 1164 of 2008

DATE DELIVERED: 22 May 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 18 – 19 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Galloway

SOLICITOR FOR THE APPLICANT: RJ Thomas Solicitor

SOLICITOR FOR THE RESPONDENT: M Dwyer

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McLean-Williams

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mylne Lawyers

Orders

IT IS ORDERED THAT

1. The parties have equal shared parental responsibility for the child … born … May 2000 (“the child”).

2. The child live with the mother.

3. The child spend time with the father at all such times as might be agreed between the parties, and failing agreement:

   a.For half of all gazetted Queensland school holidays;

   b.At the father’s election, and upon two week’s notice, for not less than two weekends, incorporating at his election a Friday or a Monday in Sydney in each school term;

   c.On the Gold Coast between Friday after school and Monday before school, at the father’s election, upon two weeks’ notice given to the mother of that intention.

4. The fares between the Gold Coast and Sydney, associated with the time that the child spends with his father, be borne:

   a.Equally by the parties in respect of the time provided for in 3(b) of these orders; and

   b.By the father in respect of the time provided for in 3(c) of these orders.

5. The child spend time on the telephone with each parent on a free and liberal basis during periods when he is in the other parent’s care.

6. The father shall have the opportunity to attend at, and participate in, the child’s schooling, educational, spiritual, extracurricular, sporting and medical activities, whether during a period when the child is spending time with the father or not, including but not limited to, attending school concerts, parent and teacher nights, participating in taking the child to and from school, attending sporting events and the like.

7. The mother shall pass on to the father, as soon as reasonably practicable, copies of all school reports, school photos and other notices relating to the child upon receipt by her of those documents.

8. The mother shall provide such consent and/or authority that may be necessary or required by any school that the child may attend from time to time, so as to enable the father to receive reports, school photographs and other notices relating to the child, and to permit both parents to attend the school for special events involving the child and/or to speak to the child’s teachers confirming the child’s performance at school.

9. The Independent Children's Lawyer shall be discharged on 31 May 2012.

10. The Independent Children's Lawyer is granted liberty to relist this matter on the giving of two days notice in writing.

11. The mother undertake random urine, blood or other drug testing, with QML or similar appropriately resourced testing laboratory (hereafter “the laboratory”) in such manner, and within eight hours of a request being received from the Independent Children's Lawyer.

12. The mother authorises, by this order, the laboratory to speak to, and supply, the Independent Children's Lawyer with all documents and information as may be requested by him in relation to her drug tests.

13. When requesting a referral for any such drug test from her GP, and when completing the request for the laboratory to undertake the drug tests, the mother must:

    a.Specify that the test is for a medico-legal purpose;

    b.Supply a copy of this order to her requesting GP and to the laboratory;

    c.Advise the prescribing GP and the laboratory that, if the test results are positive for opiates for any other non-prescribed possible illicit drugs, then the laboratory is authorised to undertake such further tests, including a GCMS test, to identify the nature of the drug, and the quantity of the drug identified in the said drug test.

14. On two occasions nominated by the Independent Children's Lawyer between the date of this order and 1 May 2012, the mother shall submit to drug-testing involving the analysis of a hair follicle by the laboratory.

15. The mother shall bear her own costs of any drug tests undertaken pursuant to these orders.

IT IS NOTED THAT

(a)The parties agree that the child will travel to Queensland by air travel as an unaccompanied minor, to spend time with his father as agreed or ordered herein.

(b)It is respectfully requested that the Director of Legal Aid New South Wales give favourable consideration to funding the Independent Children's Lawyer for the purposes of the task required of him by these orders, in respect of the mother’s drug testing.

IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC 1164 of 2008

MR DENVER

Applicant Father

And

MS CROFT

Respondent Mother

REASONS FOR JUDGMENT

1. When the parents of the subject child separated in about September 2003 he was about 3½.  In the five and a half years since, he has spent differing periods of time with each of his parents.  The father lives in Sydney and the mother on the Gold Coast.

2. The primary dispute between the parents in these proceedings is with whom he should live.  Immediately after separation the child lived with his mother, predominantly in northern New South Wales, for nearly two years until about the middle of, or perhaps slightly later in, 2005.  His father visited him approximately monthly.  For about the next 12 months the child lived with his father in Sydney. 

3. In about July of 2006, when the child visited the mother who was then living on the Gold Coast, she retained him.  There were issues in her then accommodation which will be discussed in more detail later in these reasons, and, as a result, the mother contacted the father and the child returned to his father in Sydney for some time late in 2006.

4. In January of 2007 the mother was incarcerated (on remand) in respect of serious criminal offences to which she subsequently pleaded guilty.  Again, the circumstances surrounding this will be discussed further later in these reasons.  She was released from gaol five months later, in about May 2007.  Thte child remained living with his father during this time.

5. The child again visited his mother on the Gold Coast in the June/July holidays in 2007 and again the mother retained him.  He had been with his father then for about nine months.  The child has remained with his mother on the Gold Coast since that time.  That is, by the time of this hearing he had been living with his mother on the Gold Coast for about 20 months.

6. The mother conceived a child in late 2006 to a man who was not, and is not, part of her or the child's life.  That child, L, was born in August 2007.  The subject child also has an older sibling.  The mother's daughter, J, from a previous relationship is now aged about 15.  Each of L and J currently lives with the mother and the subject child on the Gold Coast.

7. By her own admission the mother has a significant history involving the use of illegal drugs, including heroin and amphetamines ("speed" as it was referred to).  By his own admission the father has been a long-term habitual cannabis user.  His partner is a regular user (about twice per week) of the same drug.  Further, the father admits to drinking every day, consuming, he says, an average of "two to three longnecks" (which he identified as containing "700 mls", later altered to "750 mls") of VB a day.

8. The mother asserts that she is now on a committed path to a drug-free lifestyle.  She is currently receiving counselling and is on a Suboxone program that involves her - to use her words - being "weaned off" a heroin substitute concluding in about three months.   (The exact nature of the prescribed drug was not explained but I gather it was a "Methadone-type" withdrawal treatment.  It certainly produced Methadone metabolites in the drug-screening undertaken by the mother.)

9. The father asserts that, about a month ago, he ceased his use of cannabis.  His partner makes no such assertion, continuing to use the drug in the same quantity earlier indicated. 

Issues, Considerations and Proposals

1. The central issues confronting this Court in the determination of the chil’ds best interests will already be clear, and find ready reflection in the Objects, Principles and Considerations mandated to be considered by the Family Law Act 1975. 

2. Mr Galloway, counsel for the applicant father, expressed his client's central position in summary form (in part) in words to the following effect:

   "Is the wrench of [the child] returning to his father's care something that [the child] should endure in his best interests because of concerns about his safety?"

3. In answering his rhetorical question in the affirmative, Mr Galloway submits centrally that the mother's past is the best predictor of her future.  He went on to say:

   "She is currently 'propped up' by a number of things and, as those props disappear, or as the stressors and exigencies of life intervene - as they invariably do - the risk of the mother 'relapsing' into her past habits and lifestyle involves a consequent risk of harm to [the child] that is unacceptable and, as a result, [the child] remaining in his mother's full-time care is not in his best interests".

4. Mr Galloway also submits, more generally, that the mother's history speaks of instability and lack of parental responsibility.

5. The father proposes then that the child should live with him.  He also proposes that the child should spend half of all holidays with his mother, time with his mother on two (long) weekends in Sydney during each school term, and additionally envisages participation by the mother at her election in his school and extracurricular activities in Sydney and/or time with him in that city.

6. The mother proposes what might be seen to be a mirror copy of those proposed orders but with the child living with her on the Gold Coast. 

7. Counsel for the Independent Children’s Lawyer (ICL) proposed orders essentially in conformity with the mother's proposal.  In addition, the ICL sought orders for each of the parties to be drug-tested into the future.  I will have more to say about this specific issue later in these reasons.

8. This Court is not bound by the proposals of the parties.  Indeed, the Court has a positive duty to consider (subject to procedural fairness considerations) proposals alternative to those put forward by the parties in circumstances where it is considered that those alternative proposals better meet the best interests of the subject child (see the decision of the High Court in U v U (2002) 211 CLR 238).

9. Here, a report from a single expert psychologist, Mr C, dated November 2008 recommends that interim orders be made; that the parties provide further random drug tests and that a further report be done in November 2009 (that is, I infer, 12 months after the first report).  Neither party nor the ICL actively agitated for interim orders, but I propose to consider proposals of the type contemplated on Mr C’s  recommendations.

Best Interests Generally

1. The Act mandates the consideration of specified matters in ascertaining the child's best interests.  As the Act reminds the Court more than once (eg s 60CA; s 65DAA) findings as to best interests are at the heart of the decision and the task is to arrive at orders which best promote the best interests of this particular child in his particular circumstances. 

2. That findings as to best interests lie at the heart of every parenting decision is reinforced by the Act providing that those findings are the servants of many masters within the Act, including masters that can be seen as central to Pt VII.  Indeed, a central component of the part, the statutory presumption of equal shared parental responsibility, is ultimately governed (in part) by an exception based on findings as to best interests.

3. Ultimate findings about best interests specific to the case before the Court rests on a fact-finding exercise performed within a mandatory statutory framework.  In particular, the Act prescribes the means by which best interests are to be determined; the heading to s 60CC is "How a Court Determines What is in a Child's Best Interests". Clearly enough, that section, together with complementary provisions of the Act, including the parts, objects, and principles are each central to the Court's role and the orders made by it.

4. It is, in my view, important to bear in mind that the Act's mandatory considerations (s 60CC) are, like their predecessor (s 68F(2)), not objective standards (see eg Secretary Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 at 270-2).

5. The s 60CC considerations are signposts or touchstones within which the broad inquiry as to best interests must be conducted.  That the inquiry remains a broad one is evident from the section itself (s 60CC(3)(m)).  Furthermore, ascertaining best interests by reference to those mandatory signposts and that broad inquiry must embrace the fact that:

   "It is a mistake to think that there is always one right answer to the question of what the best interests of the child require … Best interests are values, not facts (see DJ v VAJ (1998) 197 CLR 172 at 219)".

6. In my view, then, it is necessary to commence the application of the statutory process by examining and making findings about the issues specific to the best interests of the child arising from the proposals for his care put forward by the parties (as well as, as referred to above, an alternative proposal that arises from the evidence).  Those findings can then be used to inform the statutory requirements.

Parental Responsibility

1. First, though, I propose to discuss further issues and principles central to the determination of this case.  All parties in these proceedings seek an order that the parties have equal shared parental responsibility, although the specific terms of the Application and Response filed by the parties do not, use that expression.  Submissions made on behalf of each of the parties orally, make it clear, though, that that is the order that is sought.

2. Mr Galloway submits that, irrespective of the application of the presumption in this case, an order should nevertheless be made to that effect.  With respect, I agree.  Whilst the Act provides for the application of a presumption (s 61DA) the making of an order is a different matter.  Not only is that contemplated by s 61DA itself, it is reinforced, in my view, by other provisions within Pt VII. 

3. Section 61C provides that each party has parental responsibility (a defined term apparently different to the undefined "equal shared parental responsibility") unless an order provides otherwise.  Secondly, s 61D makes it clear that a parenting order alters that position only to the extent specifically provided for in an order.  Finally, s 65DAA provides for mandatory considerations to occur:

   "if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility … " [emphasis added]

4. Here, the care history of the child is somewhat chequered. Yet in the midst of it, the parties, by common agreement, urge that they have the willingness and ability to work together in respect of long-term issues for the child as the Act contemplates (see s 65DAC). Additionally, the parties' evidence and demeanour is consistent with the evidence of Mr C contained at paras 24-31 and 56 of his report, which evidence I accept. 

5. Accordingly, I will make an order that the parties have equal shared parental responsibility.

6. Having given that indication, it is now necessary for me to consider the matters prescribed by s 65DAA of the Act. 

7. Here, the parties agree (and it is in any event obvious) that their geographical separation (which will continue), and their respective financial circumstances, are such that neither an order for equal time or "substantial and significant time" (as that expression is defined in the Act) is reasonably practicable.

8. I move to consider, then, the care arrangements which the evidence points to being in the child’s best interests. 

9. An assessment of the primary considerations centres upon findings that might be made about risk, a topic to which I will return in detail later in these reasons. 

10. In addition, some mention is made of interpersonal violence in the material and oral evidence.  I consider that the evidence is accurately summarised by reference to what Mr C says at para 128 of his report:

    "There was no evidence of substantial violence in the family or that violence was a dynamic between [the father] and [the mother].  The parents confirmed that on one occasion in 2000 there was violence between them and affidavit and subpoenaed material supports this. Outside of this one event some eight years ago there were no other reported incidents of violence between the parents.  [The father] denied perpetrating any forms of violence to his partner, Ms [V]".

11. Earlier, Mr C also refers to this issue, and again I accept his statement as accurate on the evidence before me.  At para 87 Mr C says this:

    "In respect to family violence [the father] confirmed that on one occasion there was an altercation between he and [the mother] and the police were involved.  He reported that on other occasions there were arguments between he and [the mother] but there were never any forms of child abuse".

12. As earlier referred to, the outline of circumstances and issues given earlier in these reasons find clear reflection in the Additional Consideration which the Act mandates must be taken into account in arriving at a decision about the child’s best interests.

The Child’s Views

1. The child should be heard in these proceedings.  That is different to saying that the child’s wishes or views should determine the orders to be made, or, indeed, should be determinative of any findings made about any aspect of his best interests. 

2. The use by the legislature of the term "views" in s 60CC(3) is a different expression to that used in the pre-Reform Act version of the Act.  The word "wishes" is replaced by the word "views" by the Reform Act.  In my view, this indicates an intention on the part of the legislature to incorporate into the Considerations a much broader concept than that embodied by simply asking a child (even of mature years) what he or she might desire by way of specific outcomes to the proceedings. 

3. I consider that the views of children (particularly when seen in combination with other "Additional Considerations" outlined in s 60CC) encompasses a range of issues, including the psychological foundation for those views, how any such expressed views might be reflective of, for example, attachment to either or both parents and the child's relationship with each.  The factors that might be at play (or have been at play) informing the views of the children also have the potential to say a considerable amount about many of the Additional Considerations relevant to those children, including the responsibilities of parenthood.

1. Here, the evidence from the single expert, Mr C, is to the effect that the expression by the child of a preference to stay in his mother's care was uttered spontaneously in the course of conversations occurring in interviews conducted by him with the child.  At para 112 of his report Mr C says this:

   "[The child] reported that neither his mother nor father have spoken to him about their separation or him remaining living with his mother on the Gold Coast.  [The child] expressed his wish to remain living on the Gold Coast with his mother.  He cited the reasons for this decision were that the had more time with his brother, [L], and his sister, [J].  [The child] reported to enjoy having time with his father and reported that he would like to have time with his father over the holidays and see his father on specific weekends when he flew down to see him".

2. The child is now nearly 9.  The path that has led him to this point in his life has been chequered.  He suffers from ADHD.  He is not particularly mature in the sense used in s 60CC.  Those matters point to placing little reliance on his views as evidence of a considered position as to with whom he should live. 

3. Mr Galloway submits that, if views are, as I have found is intended by the Act, a concept much broader than simply the expression of a wish, and in that context might be indicative of deeper undercurrents, they are evidence here of the child’s attachment and it is an attachment to each of his parents.  Moreover, Mr Galloway submits that there may be other matters at play in the expression of those views about which it is not possible on the evidence to make findings.  For example, whether his "views" might be the product of divided loyalty. 

4. That may be true, yet it seems to me that, naive and immature though the child’s expressed views may be, they can nevertheless be used by me as a pointer to what he thinks about the matters I am charged by the Act to consider.

5. A number of examples emerge from Mr C’s reported conversation with the child.

   "120[The child] was articulate and expressed his wish to remain living with his mother on the Gold Coast.  He spoke explicitly about his relationship with his siblings, [L] and [J].  Other considerations supporting [the child’s] decision wishing to live with his mother was that living on the Gold Coast also provides him with access to his paternal grandmother, uncle, and aunt, and his paternal cousins.  Furthermore, living on the Gold Coast provides [the child] access to his maternal cousins and uncles and aunts.  These relationships appear to weigh towards [the child’s] wishes to remain living with his mother".

   121[The child\ reported a somewhat ambivalent relationship with his father's partner, Ms [V].  [The child] reported to have a close relationship with his brother, [L], and sister, [J], but [the mother] does not have a current partner and there were no other adults in his family which would influence his decision to stay living with his mother".

6. And again, at para 115 Mr C says:

   "[The child] reported that the advantages of having time with his mother was that they do things together, his mother takes him to the football and his mother always buys him what he requires.  He could not think of any disadvantages in living with his mother.  [The child] reported the same advantages apply to his father and again he could not think of any disadvantages.  However, [the child] reported that he was unsure about his relationship with his father's partner and stated "good sometimes, then not so good".

7. To his credit, the father also appeared to understand that the child had views which he (the father) could understand (albeit that they arose from what he saw as being the inherent unfairness of a position which he says was created by the mother). 

8. Mr C quotes the father at para 91 of his report as follows:

   "[The father] was asked to take [the child’s] perspective in relation to the current situation.  He believed that [the child] was nervous and stated: "I think he wants to stay here, he wants to come to my house but he has a choice, he might want to stay here."  [The father] continued: "He shouldn’t have had that choice."  Whilst [the father] appeared to have knowledge that [the child] wished to remain living on the Gold Coast he also believed that [the child] should not have been removed from his care by [the mother] refusing to return the child".

9. Whilst I am not inclined to place significant reliance on the child’s views as evidence of a considered position with whom he is to live, I nevertheless take account of what he has had to say (which on an intuitive level at least, the father appears to appreciate) as giving some indication of an underlying emotional attachment to his mother, his extended family, and, perhaps, other aspects of living on the Gold Coast.

Nature of Relationships

1. I find that the child has a close and loving relationship with each of his parents. 

2. The father has visited the child on the Gold Coast only during holidays since approximately May of 2008.  An attempt was made to criticise the father in that respect.  I found some of his answers, and one in particular, somewhat troubling in that respect.  He said: "I prefer not to come up to the Gold Coast". This is, it should be noted, despite the fact that both his mother and sister live in the Gold Coast area.  

3. Nevertheless, ultimately, I do not place significant weight on either that specific statement or the issue in general.  It is clear on the evidence that the father is established in Sydney, he has his own small business which, on his evidence, has become increasingly busy and remunerative in relatively recent times, and, of course, the other exigencies of life, finances, and the geographical distance between the parties impacts upon the capacity and ability of parties to spend time geographically remote from their place of residence.

4. Furthermore, in this particular case, it is clear that the child has spent significant periods of time in both geographical areas, and it seems to me that this, too, impacts upon the motivation of a party in attempting to see his child, particularly in circumstances where there are proceedings on foot seeking the return of that child to that party's city.

5. I note, also, in that respect that, despite the time with the father in recent times only being spent during holidays, the child nevertheless appears to have a close and well-bonded relationship with his father.  I have referred earlier to some parts of Mr C’s report which I accept in that respect, and in respect of the issue under discussion I accept Mr C’s evidence that:

   "[The child] reported to have a set routine living with his mother and chores to complete.  He named friends who were also nominated by his mother and reported that he was allowed to have sleepovers with these friends.  He spoke affectionately of his closest friend who is the son of one of [the mother’s] friends.  [The child] also reported that he is involved in team sport that includes touch football.  He spoke affectionately of the times that he had with his father and how they used to go to the beach and play cricket.  [The child] also reported that these same activities gave him a special form of attachment with his father.  He reports that living with his mother they play handball and they go to the beach together and this provides them with the opportunity for bonding".

6. Evidence given by the father in the witness-box is significant in the context of an examination of the nature of the relationship that the child has with each of his parents.  When asked why he did not bring proceedings in 2007 when the mother held on to the child after holiday time the father said in the witness-box: "I didn't want to rip my son out of there (referring to his mother's care)".

7. This shows, it seems to me, some insight on the part of the father with respect to the child’s needs.  It also, though, shows, as far as I am concerned, an intuitive appreciation by the father of the nature and degree of the attachment the child has with his mother and perhaps with friends and extended family in the Gold Coast area.

Willingness and Ability to Facilitate Time

1. Despite the serious concerns raised by the evidence in this matter, the current conflict resulting in contested proceedings in the Court, and the relatively chequered history of the child’s care that I have already referred to, it clearly emerges from the evidence, that the parties each has sufficient respect for the role of the other party and a capacity, despite those things, to predominate the child’s best interests when it comes to facilitating time between the child and his other parent.  As an example, when the father came to Queensland for the purposes of Mr C’s report the parties came up to Brisbane together with the child from the Gold Coast. 

2. Whatever their other differences, and the concerns that each has about aspects of the other’s respective lifestyles, it seems to me to clearly emerge from the evidence that they will each do such as they can to facilitate the child spending time with the other parent irrespective of the decision that is made in this case.

3. I find that each of the parties recognise the importance of the other to the child.  Further, I find that each of the parties recognises the importance of the child continuing to develop a healthy relationship with the other.  The father, again to his credit, even went so far as to say in the witness-box that: "If you take drugs out of the equation … she is a good mother … she is a different person". The mother, too, makes specific and significant acknowledgement, as I find, of the father's role in the child’s life. 

Changes

1. I consider this consideration to be a very important aspect of the decision in this matter. 

2. Mr Galloway submits that a change for the child to the father's care "is not a damaging event because it is a path that [the child] has trodden before".  Mr Galloway further submits that: "[the child’s] 'cohort of friends is the same … his sporting connections are the same' and the like".  Mr Galloway in those submissions acknowledges the connection that the child has with his extended family on the Gold Coast, but submits that that connection, and those relationships, are "sufficiently strong so as not to be lost". 

3. Be that as it may, I regard the change for the child from his mother's care, from his current school, from his current friends and peer support, from his sporting teams, and from his extended family (including relatives on his paternal side) in the Gold Coast area to be very significant.

4. Each of those matters is, in my view, a significant pointer against the child’s best interests incorporating a change to that existing situation. 

5. In that same respect I regard the child’s potential separation from his siblings, and in particular L, as being a very important matter in this case and also pointing away from there being a change to that situation.

6. In that respect I note the following evidence of Mr C from his report which I accept:

   "124If the Court were to decide to have [the child] live with his father in Sydney then one impact of this would be that he would be removed from the sibling support provided by his brother, [L], and sister, [J].  Furthermore, it would effectively remove [the child] from having time with his maternal and paternal family.  [The child] is also established in extracurricular activities and his school.  If he were to move he would be enrolling at the [N] Primary School in Sydney.  However, it would mean again another change in location and schooling.  In the longer term such changes could have a negative impact on [the child’s] education".

7. Further, at para 129 of his report Mr C says:

   "Given the changes that [the child] has experienced moving between his mother and father's house over a number of years and his parents' ambivalence in where the child should live it will be essential that stability be provided for [the child].  The parents both appear to have an established lifestyle living on the Gold Coast and in Sydney.  [The mother] reports to be on Suboxone treatment program and be having drug and alcohol counselling on the Gold Coast.  If, however, [the mother] were to relapse onto drugs then it would be anticipated that the Department of Child Safety would be involved.  Under such a circumstance I would be anticipating that the child would then be removed to live with his father in New South Wales.  Given the issues relevant to this family it could be beneficial to monitor the changes already in place and make recommendations for other interventions over an interim period".

Practical Difficulties and Expense

1. This issue has already been dealt with.  It is plainly obvious that the geographical separation between the parties and the fact that each of them are well-settled in their respective areas means that there will be practical difficulties and expense associated with the child spending time with the parent with whom he is not living. 

2. However, the findings earlier made by me with respect to the willingness and the capacity of the parties to facilitate that time will go, in my view, a long way towards alleviating such practical difficulties and expense.

Parental Capacity and Responsibilities of Parenthood

1. Speaking generally, and, in the mother's case, assuming that she remains free of non-prescribed drugs, it seems to me that the evidence discloses that each of the parties have an adequate capacity to provide for the basic day-to-day needs of the child, including his emotional and intellectual needs.

2. The father's drug-use arises as an issue in this respect.  The father's evidence was that he had discontinued his long-term cannabis use for a period of approximately a month preceding the trial.  His partner gave evidence that she continued to use the same drug on the same basis that she has always used it; namely on a "social" basis approximately twice per week. 

3. However, she indicated, in contrast to the evidence given by the father, that the last time that she had smoked cannabis with the father was approximately 10 days prior to the trial. 

4. I do not accept the evidence of the father that he has ceased his use of cannabis.  I find that it is highly likely, contrary to his assertion, that he continues to use cannabis with the same sort of regularity as he has always used it. 

5. In that respect, it needs to be observed that earlier interim orders made by this Court were to the effect that both parties should participate in drug-testing at the request of the Independent Children’s Lawyer. The mother did so.  The father did so on one occasion.  The father's test showed positive for cannabinoids, but the father thereafter refused to provide any further samples for testing.  When asked about this issue the father said that, despite there being a Court order to the effect that he should participate in those drug-tests, he considered he did not need to because he admitted, and had always admitted, that he was a regular long-term user of cannabis.

6. Furthermore, the father admits that he drinks every day.  He drinks, he says, two to three longnecks per day, and despite some initial confusion about precisely what quantity was involved in that he identified those longnecks as being initially 700 mls and later 750 mls. In circumstances where he admits to cannabis use of the frequency and extent to which he participated (and, as I find, continues to participate) in, it needs to be observed that that cannabis use was in conjunction with the consumption of that level of alcohol which he continues to imbibe.

7. I consider, then, that there is the potential for the father's capacity to parent in the broadest sense being impaired by extensive legal and illegal drug use.  However, I should also observe that, despite referring to some literature on the topic of cannabis use and its capacity to impact upon all forms of capacity, including parental capacity, Mr C observed that the personality structure of the user was also a significant matter.  In that respect, Mr C observed that the father's personality structure appeared to be such that there was not the apparent degree of impairment that one might expect with the nature and extent of the father's cannabis use. 

8. Notwithstanding Mr C’s evidence in that respect, it seems to me that the father's use of cannabis and alcohol in the manner just described is a matter of some concern with respect to his ongoing parental capacity and importantly, as it seems to me, the responsibilities of parenthood. 

9. It need hardly be said that where the mother's past use of illicit drugs has been of the nature and type which she, herself, admits, profound concerns existed about her capacity to parent at times when she is participating in the use of illicit drugs or in what might be described as "a drug lifestyle" or "the drug culture". 

10. Echoing what Mr C had to say about personality structure, I note, however in this context, the father's evidence that, in the absence of drugs, the mother is a "different person" and a person capable of providing good care to the child.

11. I have no difficulty in finding that, should the mother return to the use of illicit drugs, particularly drugs of the type previously used by her - namely heroin and "speed" - there would be likely to be a profound adverse impact on her capacity to parent. Additionally, the irresponsibility, in parenting terms, evidenced by that drug use is self-evident.

12. I mention in the context of parental capacity another issue.  The father's evidence is that he is increasingly busy in his business.  He says, broadly speaking, that he can arrange to work around his job commitments so that he is able to, for example, take the child to and from school and the like.  However, the father properly recognised that, as a subcontractor whose work involves a significant amount of work for the same contractor, he will go, and in effect in an economically realistic sense is obliged to go, where that employer sends him.  He gave as an example the necessity in recent times to travel to Bathurst for a period of time to undertake work in that city.

13. I hasten to say that a party who is prepared to work hard so as to provide financially for his relationship and for his child is not to be criticised.  However, it is simply a fact, as he himself acknowledged, that in circumstances such as those just mentioned, the whole of the day-to-day caring for the child, if he was to live with him, would fall to his partner.  His partner has no children and the comments made by the child about his partner have earlier been referred to. 

14. The corollary, is, though, that although engaged in some forms of work and having an intention to train to be an aged care assistant the mother is on a day-to-day level more available to provide for the child’s care. 

Attitude to the Child and the Responsibilities of Parenthood

1. I have already referred to an issue that was touched upon during cross-examination of the father; namely his not coming to the Gold Coast more frequently than on holiday periods in order to see his son.  As earlier indicated, I am reluctant to make adverse findings against the father in that respect by reason of the matters earlier identified.

2. The responsibilities of parenthood are, as I have earlier indicated, very much tied to the involvement by each of the parties in illicit drugs, and, in the mother's case, the involvement in a robbery and her parenting of J to which greater attention will be paid below when dealing with the issue of risk.

3. I am aware of the provisions of s 60CC(4) and s 60CC(4A) of the Act.  The historical primary care arrangements for the child earlier broadly outlined have come about as a result of a number of different events but, in sum, all contra-indicate the level of stability necessary for a young child.  So, too, the reasons behind, and the circumstances in which, facilitation of decisions by the other party and involvement by the other party with the child may have been significantly less than ideal. 

1. However, I am not satisfied that the evidence reveals that this consideration looms large in a determination of the best interests of the child as the circumstances now pertain, save to the extent that it is related to the issue of risk which was at the core of the trial and to which I now turn.

The Issue of Risk

1. To one degree or another, and in differing contexts, each of the parties assert that the proposals of the other involve a risk of harm to the child. 

2. The father asserts that there are risks to him resulting from the mother's potential to relapse into significant drug use or addiction with a resultant effective incapacity to provide for the child’s needs and, clearly enough, an abdication of the appropriate responsibilities of parenthood. 

3. So, too, the cannabis and alcohol use of the father, and, in the former respect, that of his partner, are said by the mother to constitute some risk to the child and, I infer, an abdication of the responsibilities of parenthood on his part. In a broader sense the mother asserts, I infer, that there is a risk of emotional harm to the child in being removed from what she asserts to be a settled and (now) stable environment for him - what Mr Galloway referred to as "a wrench". 

4. Writing extra curially (20AJFL 249 at 254-5) the Honourable John Fogarty AM says this about the notion of risk in a context different to the present. In my view, however, the comments are equally accurate and apposite to a case such as the present

   "… the reality is that all Courts deal with issues of 'risk' and degrees of risk (however described) in various situations and that concept is increasingly used in legislation.

   Risk is difficult to define in a way which is not ultimately circular, but it is an inevitable part of life at all its levels.  It is inherently risky to breathe, eat, drink, walk, drive, work, invest, and play.  The world is full of different risks and consequences and everyone is prone to dangers.  We confront varying levels of risk  every day.  People frequently face potentially dangerous situations; not many live at home in complete isolation to avoid getting in harm's way.  Most people try to avoid what they perceive to be risks; some willingly take on high-risk activities.

   Risk involves two components; the degree of 'likelihood' of the happening of an event, and the possible consequences (good or bad) if it does [cases and citations omitted].  Individuals in their assessment of some risks may focus more on one than the other of these components.

   But at some point it usually becomes necessary for that person to make a judgment of the risk and whether it can/should be taken.  Where the risk relates to a third person to whom one owes a responsibility it is likely in the nature of things that the estimate will be conservative.

   Risks are relative and usually involve trade-offs.  Crossing the road with oncoming traffic to catch the last connection to the airport involves the risk of being hit by a car or the risk of missing the plane.  Very much a balancing exercise of facts, experience, and intuition, but essentially which risk carries the greater detriment (usually the car).

   Then there is the common experience of a mother watching her child cross a road to go to school.  The risk is seen as greater (although it may not be) because the consequences may be death or injury to the child and because the responsibilities of the mother will be seen by her as greater than for herself or another adult…

   At times the Courts and the legislature have attempted to give an indication of the content of quality of the risk - otherwise 'risk may mean any risk, however small or unlikely.  Hence the use of adjectives such as 'serious', 'grave', 'real', 'appreciable' and 'unacceptable' ".

5. Here, the father's concerns about risk based on past conduct of the mother can be seen to be well-justified.  Indeed, the mother effectively admits as much in her evidence.  Moreover, and importantly, she has effectively admitted as much in the past by her conduct - facilitating a transfer of the child to his father at a time when she returned to drugs in 2005.

6. The issue is of course not whether risk can be eliminated because that is rarely, if ever, possible (if it was possible such a course of action would clearly be in any child's best interests).  Rather, the issue is whether orders which otherwise accommodate findings as to the child's best interests can be made but not expose the child to a risk which I consider is unacceptable.

7. I respectfully agree with the former Justice Fogarty's statement (at 261) which summarises matters I consider to be relevant to my determination in this case:

   "… unacceptable risk in the High Court's formulation [in M v M 166 CLR 69] requires two separate steps.  Is there a risk and is it unacceptable?  The concentration by the High Court is upon both the nature and the degree of risk in the particular case.  Its formulation is all about balance.  In some cases a risk is "acceptable" when balanced against other factors and other orders.  The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of "benefit to the child".  It is, as I suggested earlier, calibrated to its use in individual cases …"

8. Importantly, it ought not be thought, at least in my view, that a finding about risk can necessarily be reflected in orders about where and with whom a child should live or the nature and extent of time and communication with a party.  Findings about risk can also be accommodated with other orders.

9. In this case the recommendation of the report-writer (or some derivation of it), and orders about random drug-testing and the like, loom as orders that might reflect findings about "the nature and the degree of risk in the particular case".

Evidence and Findings about Risk

1. In my judgment, within the parameters of this case, the evidence points to a conclusion that it is in the child’s best interests to remain at the Gold Coast in his mother's care if the Court can be tolerably satisfied that the risk of relapse into illicit drug-use or a "drug lifestyle" or "drug culture" and the likely consequent harm to the child is within "acceptable" limits (as that expression is used in the cases). 

2. As earlier mentioned it is rarely, if ever, possible to find that a risk is non-existent or that a set of facts or factors can eliminate risk completely.  The questions in this case become in light of that fact, in my view:

   ·   "Is relapse probable?  If yes, the potential risks to the child emanating from the mother's resultant lack of parental capacity, abdication of the responsibilities of parenthood, the potential for destruction of a stable environment, and the potential for harm to come to him are such that those matters outweigh the findings otherwise earlier made.

   ·   If relapse is not probable is it possible?  The answer to that question clearly has to be yes.

   ·   The question then becomes is the possibility of relapse sufficiently unlikely so that the Court could be satisfied that final orders can be made placing the child in the mother's care with orders for time with his father?

   ·   If the answer to the preceding question is that the possibility of relapse is not sufficiently likely so as to permit of those orders can orders be made which nevertheless meet such possibility whilst otherwise embodying the central findings made as to best interests?"

3. It is first necessary then to look to the evidence in respect of risk.  Mr Galloway, in the case conducted on behalf of the father, placed particular emphasis on two incidents in the context of risk.  I agree, with respect, that each of those incidents have the potential to be significantly indicative of the issue of risk into the future.

4. Mr Galloway submits that the mother is "propped up" by various things, including, at the moment, drug counselling and “Methadone-type” therapy and a suspended sentence hanging over her head which has an operational period concluding in January 2011. Mr Galloway submits that it is very significant that the mother is, in that context, on a “Methadone program” as a means of dealing with her previous heroin and other drug use. 

5. The evidence reveals that the mother had been imprisoned for a period of approximately five months. She had been free of drugs, on her evidence, during that time. Shortly after her release she used illicit drugs despite the fact that she was under a suspended sentence and the use of those drugs could see the sentence being reactivated.

6. In particular, Mr Galloway points to what he submits is a particularly significant incident; that the mother had previously used, on her evidence, two tablets of Morphine obtained illegally on a total of about six occasions.  The specific incident to which Mr Galloway quite properly, in my respectful view, paid significant attention, though, was her use of "speed" at a time when she was 36 weeks pregnant with L. 

7. Having returned from a visit to the clinic where she is prescribed the Methadone-type treatment she is undertaking, the mother met a fellow patient on the bus, commenced talking to him about drugs, and bought from him some "speed".  She injected that drug.  The reaction was such that she immediately admitted herself to hospital and L was born as a result.  L was born not only premature, but with a narcotic dependency.

8. The mother does not, in evidence, seek to shrink from that incident.  She describes it as being "ridiculous" and, in effect, to be not capable of explanation given the other factors pertaining to it to which I have just made reference.  She says, though, that immediately she realised what she had done she self-admitted to hospital. 

9. Mr Galloway submits that I should be sceptical about that claim in the sense that if the reaction of her Methadone-type drug together with the speed may well have produced a physical reaction sufficient that there were physical concerns on the mother's part that provided the catalyst for her hospital visit.  There is no evidence to the latter effect.

10. Mr Galloway also asks: why is it necessary for the mother to be on an opiate substitute such as Suboxone in circumstances where, on her case, she was free of drugs in gaol for some period of time?  That is, at least inferentially, she had gone "cold turkey" in gaol which resulted in her being drug-free (on her evidence) only to, later, at a time when she alleges she is essentially drug-free, to undertake a Suboxone program.

11. The mother explains this by saying that undertaking that particular program is part of a broader appreciation by her of her previous drug lifestyle.  That evidence has the potential to be significant because of evidence from Mr C. He referred to a number of factors mitigating risk of relapse, specifically referring to the issue of risk and specifically in response to questions from Mr Galloway to the effect that the mother's past is the best indicator of the future. Mr C said that significant to whether a change might be effected by the mother, were things such as a change in the people she was associating with; whether there were other aspects of her life that had meaning (eg involvement in community activities); whether there was an appreciation by her of the nature and extent of her previous use and an acceptance by her that she would need to forever be drug-free.

12. The mother says that consequent upon the birth of L, each of those things are present.  She said, for example, in the witness-box: "I didn't understand back then."  That was 20 months ago.  She accepted in the witness-box that she was not acting as a responsible mother at the time, for example, that she injected the speed.  She said she could give no real reason why she did so, "It was the actions of an addict". 

13. She points, though, to a number of specific considerations which she says are indicative of a change and a permanent change.  She says, for example, that the counselling that she has been receiving in conjunction with her drug treatment has given her, for the first time, insight into her early behaviours. 

14. Secondly, she says that she is now part of a wider social group that has no connection whatsoever with drugs and is involved in community activities.  For example, she particularly points to her involvement in the child’s football team.  She says she is the manager of that team and is the uniform manager for the club.  She says that she has met a number of friends through that activity and is significantly involved in it.  She says that those activities have given her an insight into the enjoyment to be had from a lifestyle that does not involve drugs. 

15. The mother says that she is now training to be an aged care nurse and is enjoying that, and for the first time she can, in effect, see a future for herself without drugs.  She says, for example: "My complete lifestyle has changed."  She says again: "I have never really sought help before." 

16. That evidence, and those factors, are the foundation for her case that the risk of her relapse into drug-taking and drug behaviour has now been ameliorated, if not eliminated. 

17. A second major issue referred to by Mr Galloway is the incident that gave rise to the mother's incarceration.  That involved her involvement in a series of criminal offences committed on the one occasion, broadly described as a robbery with a subsequent police chase in which she was the driver. 

18. Mr Galloway submits that I should be significantly sceptical of her evidence about her involvement in that criminal activity.  At best he invites a finding that the best case for her is that she was engaged in that activity because (on her own admission) she was under the influence of a tablet taken by her whilst she was working at a bar on the Gold Coast.  She says she was "given a drug by a bouncer".  She thought it was "eccy" (which I took to be a reference to Ecstasy) but it was "speedier".

19. I should point out that, in the lead-up to this incident, the mother says that she was threatened by near neighbours in the block of units where she was living.  She described those near neighbours as "bikies".  Because of her concerns about those neighbours - and she gave a specific example of an incident involving a threat by one of the "bikies" to the child - she telephoned the father and placed the child, and at that time, J, into the care of the father as a result.  It was in the absence of the child that the incident being referred to occurred.

20. The gravamen of her case in respect of this incident is that she was prevailed upon by two women who formed part of this threatening household near her.  They prevailed upon her at a time when they were stealing handbags from passers-by.  They prevailed upon her to drive a vehicle, and in particular to drive them away from some victims of their crime who were pursuing them.

21. That version, I should add, is slightly at odds with a version given in an earlier affidavit by her, at least on the face of it.  I am concerned, however, not to draw an inference arising from that because I am not convinced that the affidavit material filed on behalf of the mother at that time was necessarily reflective of her precise instructions in that respect.

22. In any event, Mr Galloway submits that I would find her account inherently unlikely.  I think I should have some concerns about her account, or at least aspects of it. In particular, as Mr Galloway emphasises in submissions, her account of the circumstances in which the police chase occurred give rise to a degree of scepticism on my part. 

23. Nevertheless, I note that the mother's account is consistent with the sentencing remarks of the Judge of the District Court of Queensland who sentenced the mother.  Those sentencing remarks were exhibited to an affidavit by the mother and were in evidence before me  (See generally s 69ZX(3) of the Act).

24. On any version, the involvement of the mother in that activity speaks ill of her responsibilities of parenthood broadly described.  Moreover, the incident gives rise to concerns about her capacity to parent. 

25. In that latter respect Mr Galloway refers to the fact that J, the mother's oldest child, was placed into the care of the New South Wales Department of Community Services and was not released from care by that Department until such time as the relationship between the mother and the father existed and submits that speaks ill of her historical capacity to parent.

26. The evidence in respect of J’s upbringing certainly gives rise to concerns about the mother's then capacity to parent.  However, that is another manifestation of the central issue in this case which is, has the mother now acted, and will she in the future act, to effect significant changes in her behaviour with a positive benefit to her parenting?

27. I can be satisfied about the possibility of those positive effects if she remains drug-free because the father tells me so.  He says in evidence - again to his great credit - that if I take drugs out of the equation, the mother is a "good mother", she “is a different person".  That is consistent with what she would urge upon this Court. 

28. The mother has provided drug tests, or samples upon which drug tests have been based at the request of the Independent Children’s Lawyer.  As I will discuss in a moment, she has also undertaken to the Court to allow further significant drug-screening in respect of her behaviour. 

29. That, of itself, might be seen to act as not only a monitor in respect of her future behaviour, but also as an incentive which seeks to underpin both the suspended sentence which hangs over her head until January 2011 and also the drug counselling and therapy that she is receiving.  In my view, it also serves as a positive incentive to the maintenance of her current drug-free life and lifestyle.

30. It is in the context just described that the issue of interim orders mooted in the report of Mr C rears its head as an issue. 

31. The rationale for the making of interim orders can be readily enough understood.  As the father put it in his evidence, if drugs are taken out of the equation the mother is a good mother and a different person; the issue is, can I take drugs out of the equation?  One means of seeing whether drugs can be taken out of the equation is to keep the proceedings on foot so as to make that question a question in further proceedings.

32. In its "pure form" the interim orders would see a further hearing of this matter where the issue just described would be live.  Some advantages might be seen in that course of action in terms of a longitudinal assessment of the child’s best interests; the assessment of his best interests might be seen to have greater scope if that course of action was adopted.  It would perhaps allow some issues with respect to the child to become clearer.  As the child grew, there would be the opportunity for a greater longitudinal assessment of the stability, or otherwise, provided by the mother.  Such an interregnum may allow it to become more obvious how the mother and the child are fairing.

33. The disadvantage, as it seems to me, of such a course of action is that there is a significant risk of prolonging, and in a sense promoting, uncertainty between these parties, and, importantly, uncertainty for the child.  To make orders that, in effect, beg a re-agitation of issues in 12 months (or some other period of time) gives a future focus for potential conflict and is contraindicative of maintaining stability for the child.

34. I consider it axiomatic to the child’s best interests that as much stability as possible be maintained in his life.  I have concluded that, if risk is assessed as being within acceptable bounds, this will likely best occur if he is to be placed in the predominant care of his mother.  To make interim orders is, in my view, to derogate from the very stability I consider best for the child.

35. Ultimately, however, the decision is about, and guided by, the child’s best interests.  In my view, a decision about best interests in any case is arrived at by assessing the nature and value of the mooted relationship between the mooted carers and the subject child.  Time is how divisions in the co-parenting relationship and Court orders is expressed, but a decision about time, in my view, follows from a decision about the nature, extent, and parameters of the relationship between child and carer measured by its value (or potential for harm) to the child.

1. Here, I consider that those matters favour the child's best interests being met by living predominantly with his mother if the risk of relapse into drugs and a "drug lifestyle" does not occur.  I consider that the risk of that is not probable and is within tolerable (or "acceptable" limits).   That does not mean, though, that those findings ought not be bolstered by other orders.

2. In terms of the specific questions posed earlier I conclude as follows: that relapse is not probable; as earlier indicated, the evidence indicates that relapse is clearly possible; the possibility of relapse is, in my view, sufficiently unlikely such that I can be satisfied that I should make final orders placing the child in the mother's care with orders for time with his father.

3. Finally, though, whilst I have answered the last of the preceding questions in that manner, it seems to me that I should make additional orders so as to bolster the sense of security which I ought find is in the child’s best interests if he is to remain living with his mother.

4. In that respect I propose, for reasons about to be given, to order drug-testing for the mother and for that to be ongoing and monitored by the Independent Children’s Lawyer. 

5. I propose to order that continue for a period extending beyond that which is applicable to the suspended sentence that the mother is currently serving.  It seems to me that I should put that additional "safety net" in place for a period of approximately 12 months or so after that operative period concludes.  I have in mind, and I consider appropriate, that the period just described conclude on 31 May 2012 which is just after the child’s twelfth birthday.

6. In saying that, and having determined to make final orders because I consider that the disadvantages of interim orders outweigh any potential advantages, I concede the very high probability that should the mother "relapse" the father is likely to institute further parenting proceedings.  That may raise issues relating to what is frequently called "the rule in Rice v Asplund". 

7. In Miller v Harrington (2008) FamCAFC 150 at paras 98-101 the Full Court said:

   98"Before leaving this aspect of the appeal we consider it important to refer to a statement by Barry J in the opening paragraph of his Honour's discussion of the law to be applied that: "The general principles of cause of action estoppel in children's proceedings were laid down in Rice v Aspland.

   99With the greatest respect to his Honour we do not think it is correct to describe the "rule" as "cause of action estoppel" or, indeed, estoppel at all. 

   100The language of "issue estoppel" or "res judicata" is not appropriate because the judicial determination of what is in a child's best interests although bringing the then proceedings to an end does not dispose "once and for all" of that issue (see s 65D(2) and Mewling v Mole (1987) FLC 91-856 at 76,467 per Nygh J, Bartlett and Fogarty JJ agreeing).

   101The use of such expressions is apt to cause confusion in the application of the "rule" and its content.  As Warnick J held in SPS v PLS: 'At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the best interests principle' ".

8. There is a recognition there that parenting proceedings are, as it were, never closed in circumstances where an applicant for orders can establish that there is a material change of circumstances from those which existed at a time when a Court made an order.  I do not, of course, purport to bind a future Court in the future event/s contemplated, but I record in these reasons that a "relapse" into drugs or a "drug lifestyle" or "drug culture" is a significantly different set of circumstances than those upon which these orders are made.

Orders for Drug Testing

1. Orders are sought by the ICL compelling the parties to attend drug-screening.  The parties have each read the report of Mr C.  They are each legally represented.  They have each heard Mr C give evidence.  They have heard him specifically refer to the benefits to the child of each of them being drug free.

2. Orders for drug-testing are, on their face, somewhat draconian.  That is particularly so in light of findings made about the nature and degree of risk, but it is also particularly so in light of the mooted nature and extent of care proposed in the orders by each of the respective parties.

3. In the case of the father it seems to me that the evidence of Mr C is clearly to the effect that, despite what I have found is likely to be continued regular usage of the drug cannabis, the father's personality structure is such, and his care for the child is such, that the likely day-to-day impact upon his capacity to care for the child and the responsibilities of parenthood exercised on a day-to-day basis with respect to the child, is not likely to be affected dramatically so as to pose any significant risk to the child whilst he is in the father's care. 

4. I accept that evidence in light of the periods of time that the orders provide for the child to be in his father’s care. The nature and extent of the care undertaken by that party is for the most part going to be separated by significant periods of time. 

5. I am not persuaded that I should make an order that the father undergo drug-testing.

6. The mother, it seems to me, is in a different position.  She, herself, admits significant frailty.  She is yet to come off a heroin substitute treatment.  Currently, therefore, she is medicated with a significant and serious drug.  She has, on any view of it, a chequered past when it comes to her use of illicit substances.  She has fallen victim to temptation in the early days of her release from prison.  She asks to be taken at her word that she has changed completely her lifestyle and my findings are illustrative of the fact that I have for present purposes accepted that that is likely to be correct.

7. A long and involved drug history cannot be overcome overnight as the mother, herself, clearly recognises.  It is likely to be - again as I think the mother recognises - a lifelong challenge.  The mother, who is represented in these proceedings, freely indicates a willingness to undergo drug-testing in the future as a sign of her commitment to her children.  That willingness was given in the context of the possibility of further proceedings, as it were, hanging over her head.

8. The fact that the orders made in these proceedings are not interim will, in light of the comments earlier made by me, make little difference in that respect.  The mother well knows, and the father has clearly canvassed, that should she slip back into a lifestyle involving the use of illicit drugs, then she can readily expect parenting proceedings designed to remove the child from her care.

9. I should also indicate that, although there was no expert evidence at this point before me in the proceedings, it seemed to have been accepted by all parties during the course of the proceedings that what was described as a "hair follicle test", (which has, I take notice, received publicity recently in respect of a high-profile footballer) might be indicative of drug use that has occurred between random testing.  With that in mind, I propose to also order random hair follicle testing as part of the orders I intend to make.

10. There is little direct evidence before me with respect to the financial circumstances of the parties.  The mother seems to support herself with a combination of a pension and various forms of part-time work, including cleaning and the like.  The father indicated that he has a subcontracting business which in recent times has been doing quite well. 

11. In those circumstances, I have determined that in terms of holiday time the parents should share equally the costs of fares for the child between Brisbane and Sydney, and, in the weekend time that the orders contemplate, I will order that the father pay the fares associated with that time.

12. I order in accordance with the orders pronounced herewith.

I certify that the preceding one hundred and forty-nine (149) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:  L. McMurray

Date:  22 May 2009