Elkins and Debney

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELKINS & DEBNEY

[2018] FCCA 2266

Catchwords:
FAMILY LAW – Parenting dispute about 4 year old child – both parents young and immature – both parents having extremely difficult childhoods – mother being more prepared to foster the relationship between the child and the father – whether the child should be removed from primary care of mother and maternal grandmother – child’s attachments being to the grandmother, mother and then father – change of residence clearly not in child’s best interests – orders made as proposed by Independent Children’s Lawyer.

Legislation:

Family Law Act 1975

Goode v Goode [2006] FamCA 1346

Applicant:

MR ELKINS

Respondent:

MS DEBNEY

File Number:

MLC 10860 of 2015

Judgment of:

Judge Burchardt

Hearing dates:

19, 20 & 23 July 2018

Date of Last Submission:

23 July 2018

Delivered at:

Dandenong

Delivered on:

24 August 2018

REPRESENTATION

Counsel for the Applicant:

Ms Jardine

Solicitors for the Applicant:

Aboriginal Family Violence Protection & Legal Service

The Respondent

Counsel for the Independent Children’s Lawyer:

In person

Ms Stavrakakis

Solicitors for the Independent Children’s Lawyer:

Lampe Family Lawyers

ORDERS

That all previous parenting orders be discharged.
The Mother and Father have equal shared responsibility for the child [X] born 2014.
[X] live with the mother subject to Order 4 and Order 10 herein, so far as they relate to the Mother
[X] and the Mother reside with the Maternal Grandmother, Ms T.
In the event the Mother and Ms T are no longer residing with the Maternal Grandmother, the Mother will immediately notify the Father.
[X] spend time and communicate with the Father as follows:
(a)Each alternate weekend from 12.30 pm Friday until 4pm Sunday commencing Friday 27 July 2018 until [X] commences kindergarten.
(b)Thereafter each alternate weekend from 5pm Friday until 5pm Sunday.
(c)For 10 days in all Victorian Gazetted school term holidays commencing September 2018 from 5pm Friday on the last day of school until 5pm Sunday on the middle Sunday of such holidays.
(d)For half of all Christmas school holidays, such time to commence in 2018 at 5pm on the last day of the Victorian Gazetted school holidays and concluding at 5pm in the middle of such holidays.
(e)Each Father’s Day from 5pm Saturday until 5pm Sunday of such weekend.
(f)On [X]’s birthday from the conclusion of school until 6pm if a weekday (and the Father will be responsible for all changeovers on that day) and from 12 noon until 5pm if a weekend.
(g)In 2018 from 2pm Christmas Day until 2pm Boxing Day and each alternate year thereafter.
(h)In 2019 from 2pm Christmas Eve until 2pm on Christmas Day and each alternate year thereafter;
(i)As otherwise agreed between the parents in writing
The weekend time will be suspended during all school holidays and resume on the first weekend of each new school term.
On Mother’s Day weekend [X] will spend time with the Mother from 5pm Saturday until 5pm Sunday of such weekend.
All changeovers will occur at Berry Street Children’s Contact Centre for a period of 12 months and, thereafter, unless otherwise agreed the Father will collect [X] at the commencement of time from the front gate of the Mother’s residence, and the Mother will collect [X] from the front gate of the Father’s time at the conclusion of time.
When changeover is occurring at the parents’ residence there will be no communication between the parents as far as practicable, save for an exchange of greetings and farewell.
The parents will immediately do all things necessary to facilitate the said changeovers at Berry Street.
The Mother and Father will each attend upon a psychologist immediately for the purposes of intensive counselling to address the issues raised in:
(a)The Family Report dated 3 October 2017.
(b)The Addendum Family Report dated 8 December 2017.
(c)Dr S’s Psychological Evaluation and Assessment of both parents dated 20 December 2016 and 14 March 2017.
(d)The Department of Health and Human Services reports dated 20 December 2016 and 14 March 2017.
Each parent will provide their respective psychologists with copies of the reports referred to in Order 12 herein.
The Mother and Father immediately enrol, attend and successfully complete a Parenting Orders Program at Catholic Care, or their nominee, and the parents will provide Catholic Care with a copy of the Reports referred to in Order 12 herein.
The Father enrol, attend and successfully complete a men’s behaviour change program and an anger management program.
The Mother, Father and their servants and/or agents are hereby restrained from:
(a)Exposing [X] to any family violence;
(b)Exposing [X] to any parental conflict;
(c)Denigrating the other parent or parent’s family member (including partners) in the presence or hearing of [X];
(d)Discussing these family law proceedings in the presence or hearing of [X];
(e)Photographing [X] for the purpose of obtaining evidence in any future family law proceedings;
(f)Posting any information, details, photographs or anything whatsoever in relation to [X] on Facebook or any social media or social networking platform;
(g)Consuming any illicit drugs when [X] is in their respective care;
(h)Consuming alcohol such that the alcohol consumption exceeds a reading of .05 when [X] is in their care.
The Mother and Father be at liberty to attend all school and kindergarten functions, subject to the protocol of such education facilities, usually attended by parents.
The Father will advise the Mother of any changes to his residential address within 3 days of such change.
The Mother will register the Father as a contact person on any kindergarten or school enrolment forms [X] attends.
The mother will authorise any childcare, kindergarten or school [X] attends to forward to the father, at his expense, if any, copies of all school reports, photographs, notices and any documentation usually forwarded to parents.
The Mother and Father will notify each other, as soon as practicable, of any medical emergency or serious illness affecting [X] whilst in their respective care.
The Order appointing the Independent Children’s Lawyer dated 14 December 2016 be discharged.
All extant applications be otherwise dismissed.
Pursuant to Rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 10860 of 2015

MR ELKINS

Applicant

And

MS DEBNEY

Respondent

REASONS FOR JUDGMENT

Introductory

This is a parenting dispute about the best interests of a young child, [X], born on 2014. The mother seeks that the child live with her and spend alternate weekend time with the father. This position appears to be largely supported by the Independent Children's Lawyer, although there are some differences. The father seeks that the child live with him and spend limited time with the mother subject to conditions.
For the reasons that follow, I propose to make the orders sought by the Independent Children's Lawyer.

Agreed or Uncontroversial Facts

The mother was born on 1997 and the father on 1995. They met in 2013, and the mother became pregnant shortly thereafter. There was Department of Health and Human Services involvement even before birth. It is apparent that the parents separated shortly after the child was conceived, albeit that the parties put different dates as to these matters in their affidavits.
There have been two instances in which the father has overheld the child, but on each occasion she has been returned to her mother. The mother lives with her own mother, born 1979, in a two bedroom unit, which is apparently satisfactory in terms of living space. The father lives with his partner, Ms P, who was born on 1999, in a shed on property owned by his mother. There is some issue as to whether it is appropriate for the child’s accommodation. The relationship with Ms P commenced in 2014 at a point when the father was already 18. It is immediately apparent, given the commencement of sexual intimacy at such a young age on the part of Ms P, that the father committed a number of criminal offences in having sexual relations with her until she turned 18. They have been cohabiting, it would seem, since May 2018.

The Parties’ Affidavit Material

I have read the parties’ affidavit material as filed. This is so, notwithstanding the purported filing of a trial affidavit by the father. I notice that in paragraph 20 of his affidavit filed on 26 November 2015, in earlier proceedings that led to final orders by consent before myself on 24 May 2016, the father had adamantly denied any drug use. This was plainly untrue, as he has subsequently admitted drug use on various occasions to independent persons.

The Report of Dr S

The parties had been assessed by Dr S. It is sufficient to say that he assessed both parents as having significant difficulties, and, indeed, it is not possible to review his report and the affidavit material without having a measure of sympathy for both the father and the mother. They have both been the subject of family violence in their childhoods, and at least in the mother’s case she has been, as she would put it, raped relatively recently. Both have had significant difficulty with drugs from time to time.
There are numerous Intervention Orders between almost all the relevant parties to this proceeding.
Against this somewhat dispiriting background, it is appropriate to move to the matters asserted at Court. What follows is taken from my notes, it is not of course a transcript, but records matters I found of significance.

The Submissions and Evidence of the Father

The father was self-represented. He had various criticisms of the mother to make in his opening. He said that the mother was out clubbing while the grandmother looks after [X]. He asserted the mother has a party lifestyle. He wants to have a stable life. He has been assaulted five times. He wanted the Court to see where he was coming from and wanted changeover at a police station. He complained of the late arrival of the mother to changeover and the subsequent disappointment to [X]. He wanted [X] to live with him and the mother’s time supervised by her mother. He said that the mother was out clubbing every second night.
The father was called and adopted his affidavits as true and correct. Under cross-examination by counsel for the mother, he admitted that he had not disclosed his receipt of benefits from the Transport Accident Commission (“TAC”). He did not think they were relevant. When taxed with his criminal record, he said he was only aware of two matters when he was over the age of 18. He admitted an offence relating to possession of cannabis in 2015. He admitted an attempted theft and other matters likewise in 2015 but said this was before he started working. He admitted unlawful assault and insulting words in 2012. He admitted driving whilst suspended and using indecent language in 2016. He said he had wished to challenge a charge of assault in 2016. When asked about a dispute over a sun loungers at a swimming pool, he said he had not started the attack. When questioned about a dispute in relation to sunglasses and a related assault, he said he was 16 years old at the time. Much of this evidence was given under pressure of speech.
The father confirmed he had not undertaken a men’s behavioural change course. He had done the Great Dads program and was thinking of undertaking a men’s behavioural change course. He sees a counsellor, Mr T from Health Care. He has been referred to Dr C. He sees somebody about TAC and about stress in his life. He has also seen Ms C at Headspace. He sees a specialist but has not seen them for a month. This is Dr M at Health Care. He has also seen a Dr B at Clinic and has been diagnosed for anxiety and depression. He had a car accident on 14 November 2016 and was diagnosed with anxiety a week thereafter. He has nonspecific chronic pain. One day it is in his fingers and next it is his in his bum. He has not seen Dr B for eight months and now sees Dr C. He has been diagnosed with post-traumatic stress disorder. There are no court proceedings yet on foot arising out of his car accident. He is trying to return to work. It is hard because of the stress about [X]. He has undertaken a course but cannot do (employment omitted) work. He used to work on 50 to 100 hours, but the only work he has ever done has been hard labour. He left school after year 8. He can read pretty well and is improving. At the moment he is only taking one drug, Clofen. This does not give much relief. He said “it sort of sucks”. He said he has a lot of support. The nonspecific chronic pain is in his back.
When cross-examined about his consumption of marijuana, he said that his maximum is three bongs a day. He does not smoke when [X] is in his care. If [X] is in his care, he will try to deal with this issue. He is waiting for medicinal marijuana to be legalised. He mainly takes marijuana for his back. He said he had problems peeing for drug tests. He lives in a self-contained unit, but it does not have a toilet, which is 10 metres away. There is a potty for [X]. It is a bungalow with cement sheets and is insulated. It is very nice and cosy. He was only going to be there for the next month or two. He overheld [X] in November 2016, following which a recovery order was made.
The father denied using ice. The last time he took it was when he was with Ms Debney. He has not been ordered to undertake drug counselling but received just a good behaviour bond. He denied sitting on train tracks and threatening suicide and said this had not happened. He said the child was given to him in November 2016 after a dispute between the mother and grandmother. He said the mother had given [X] to him a lot more than the Court ordered. He had asked for extra time once or twice. [X] starts to get upset if the mother is late. He has to return home. He had nothing good to say about the mother.
When cross-examined about [X]’s eczema in her ear, the father’s answers were difficult to follow. He did not accept that [X] did not have to be treated for her eczema. She had spots all over her body.
At this point, and by consent, Mr S was interposed.

The Evidence of Dr S

When questioned by counsel for the Independent Children's Lawyer, Dr S confirmed that he had not seen Mr Elkins’ affidavit from January 2018. He had, however, seen the photographs referred to in that affidavit. He said the photographs of the child might be viewed sexually. It raised the issue as to whether the mother had reasonable judgment. Most people would not publish such photographs. There was a high risk that these photographs would be transmitted to child pornography sites. The mother’s risk level was moderate to high. There was a risk of emotional abuse and physical abuse and neglect. In this case, there was no physical abuse, but there was psychological neglect. He had not read the subpoenaed material. The father was low to moderate risk. Both parents had considerable vulnerabilities. Both had impulsivity issues and drug issues. Neither party had collaborated with drug screens and the ICL had given up. When asked about the mother’s self-harming, Dr S said this was concerning but no more than the other characteristics. Men act out and women act in. The mother was not old enough to diagnose personality disorders. It is possible that she should be under the care of the Department of Health and Human Services. Both parents had problems. There would be concerns if the mother continued to use drugs and this may lead to psychiatric symptoms. He had made no conclusion. It was a one-off assessment and the assessments were fuzzy.
When it was put to him that the father uses up to three bongs of marijuana per night, Dr S said he was relatively unconvinced that the father’s account was accurate. Cannabis is a depressant. Withdrawal is the major risk so far as parenting is concerned. There would be problems in parenting if there was regular cannabis use. The father’s pain management was not well managed. Marijuana use was not pain management and this was nonsense. The father is marijuana addicted. Treatment would take one to three years and he would need to get off drugs first.
Under cross-examination by counsel for the mother, Dr S said that the father did not tell him that there was nonspecific pain syndrome, anxiety or depression. These matters raise questions as to the father’s veracity. When counsel put it to him that the father had nothing good to say about the mother, he said this inevitably affects the child. The father presented with two sides. He wanted to present as unwell with pain and difficulties working. At the same time, he was minimising the issues in his life.
Under cross-examination by the father, Dr S confirmed that he had read the addendum report by Ms C. The mother utilising alcohol puts her at risk. It is a depressant and will likely increase mood fluctuations. This might lead to disinhibitory and inappropriate behaviour. If the mother was using alcohol in clubs, there was the potential risk she could not protect herself. He felt by and large each of the parents were equally bad.

The Cross-Examination of the Father by Counsel for the Mother (Continued)

The father confirmed that he had returned [X] to the mother the previous weekend. He said there was a 10 year Intervention Order taken out by his partner, Ms P, against the mother. The previous weekend, he had driven to the mother’s house with Ms P. It was agreed he would drop her off four hours early. The mother messaged him. It was his normal weekend the previous weekend. Usually it was the weekend where the mother gets her dole, but it was changed to suit the mother. He said the mother is sick a lot of the time and has asked him to have the child once. He has [X] for a week or four or five days. [X] had grown up and asked to see him. He thought the mother wanted to go clubbing. He changes pickups and drop offs. He overheld [X] on 21 May. The mother was taking [X] to South Australia. He gave her back because of the possibility of police intervention. He would allow the mother to see the child in the event that she lived with him. But she would have to address her psychiatric problems.
Under cross-examination by counsel for the Independent Children's Lawyer, the father confirmed that he would like to make decisions about schooling. It would be good to have both parents involved. He conceded that [X] had seen conflict. There had been multiple assaults. On one occasion [X] had been tipped over while in a stroller. Violence should stop. He was prepared to undertake a parenting orders program and any course that the Court might order. It was important that [X] have a relationship with her mother. She’s a little girl. She likes having her nails done. Final orders were made in 2016 by consent. He had the same concerns then that he has now but they are stronger. Some days they can talk. He believes he has Aboriginal blood but did not believe this until his father died in 2016. If [X] lived with him, he would have concerns about psychiatric issues with the mother. When it was put to him that Dr S did not say the mother’s time should be supervised, he said he still thought time should start off slow. [X] has always lived with her mother. He accepted that [X] loved both parents. He said that the maternal grandmother does a lot of looking after [X] and said she was a drug user as well. When it was put to him that threats to withhold [X] were not good, he agreed, but he said the mother had lied when she went to Adelaide. The three times he had not given [X] back, he had encouraged [X] to call the mother. He would like to have changeover at Berry Street. He had [X] for three weeks last Christmas and it went well. The mother rang to speak to him. There were problems staying with his partner. The mother did not know where [X] was and had concerns [X] was in a tent.

He has anxiety, depression and chronic pain which are now managed and he is treating himself. The only thing he struggled with was their heavy pram, which weighed 20 kilos. He is seeing a psychologist, which helps. He could give Dr S and the family reports to the psychologist who is treating him. He is presently living in a bungalow which was the size of the courtroom. There are two heaters in his room. He is saving up to move and has just got a deposit. He would like to rent for six months in a unit and then buy a house in Town A. He has a lot of support in the Town A area. His mother is a great support, and both grandmothers are in [X]’s life. He had never encouraged [X] to call his partner mum. She in not his mum. She calls her Ms P.
When taken to the photographs he has taken of the child, he was asked what he said to [X]. He had said, “Do you mind if I take a photo to show mummy?” He would not take it if a child was troubled. He is receiving TAC payments in the sum of some $700 a week and has been approved for another 18 months. He is doing an (omitted) course. His child support is based on TAC payments. When he had [X] for three weeks, he tried to reduce child support. He now pays $75. He does not know about childcare. He said he had picked [X] up once from childcare. The mother has asked him to pay for childcare but he cannot afford it. When asked about a case plan for [X]’s ear and not giving the mother the cream for it, he said he sent it to the mother but it was never returned. He had to keep buying it. He would like to work. This would be two hours per day for three days a week. If he had [X] full-time, [X] would be in day care.

The Evidence of Ms L, the Paternal Grandmother

Ms L adopted her affidavit as true and correct. She said she was concerned about [X]’s development and concerned that the mother would not step up. She was concerned about the stepfather, Mr J. She said that Ms T smokes marijuana. [X] should be in kinder and have a routine.
Under cross-examination by counsel for the mother, Ms L asserted that she has seen the maternal grandmother smoke marijuana before [X] was born and one year after. She had not seen this otherwise. She knew her son smokes marijuana. They had spoken about it. It was purely pain management. He does not do so inside and nowhere near [X]. It was out of hand a few years ago, but he tried to give up. Two pipes a night is low. She prefers marijuana to prescription medicine because he cannot function. The prescription drugs are addictive. Her son does suffer from anxiety and depression and post-traumatic stress disorder and cannot work. The bungalow has a potty, but they will move out. It does have a kitchenette. She visited the mother’s household for a few years. [X] speaks to her about Mr J.
Under cross-examination by counsel for The Independent Children's lawyer, Ms L confirmed that her son used to smoke a lot more. He smokes when [X] is in his care.

The Evidence of Ms P

Ms P adopted her affidavit as true and correct. She has an Intervention Order against the mother. There was an assault at drop off where she punched her and made a threat to kill.
Under cross-examination by counsel for the mother, Ms P confirmed that the Intervention Order was taken out for 10 years in March of last year. On the previous Sunday, they had returned [X], but she stayed in the car. [X] is a happy child. It is hard to get her to eat sometimes. Ms P is undertaking an apprenticeship in Town B from Wednesday till Saturday with (course) on Tuesday. The father does a lot of cooking. He does the food for [X]. It is a good routine at home and [X] is toilet trained. [X] does not have nightmares and uses the potty which is in their bedroom. She does not smoke marijuana. She said that the father smokes in one of the sheds but does not do so while [X] is there. She has younger brothers aged 15 and 13. She works about 36 hours per week, leaving home at 7.20 am and sometimes 8.30 to 9 am. She has been to some changeovers. There is heating in the bungalow. She does not pay the bills but pays board. She is not concerned about the father’s use of alcohol.
Under cross-examination by the Independent Children's Lawyer’s counsel, Ms P confirmed the events leading up to the intervention order. The mother had grabbed her phone and smashed it. She had said that she would kill any children that the father and Ms P had. She picked up [X] and left. Ms P went straight to the police and the matter went to Court. She is looking for housing closer to her work.

The Evidence of the Mother

The mother adopted her affidavits as true and correct, save that she now admits taking [X] with her to Adelaide in February or March of 2018. She did not tell the father. She was scared to tell him as she did not want to argue. The father had asked if he could stay at a caravan on two occasions but all other occasions were not with her consent or knowledge.
Under cross-examination by counsel for the Independent Children's Lawyer, the mother said that [X] needs her relationship with the father. She had never had a father and would love to have had one. Every time she calls [X] when she is with the father, she is happy. She loves her time there.
When cross-examined about the photographs of [X] and the accompanying texts, she agreed that these were inappropriate. She had thought she was in the right but deleted the photographs within five hours. She regrets them. The flower in the photograph was a sticker. All she can do is apologise. She conceded that if [X] sees these photographs in the future they would be likely to upset her.
She also conceded that the photographs she had posted of herself would upset [X] if [X] sees them. No one likes to see sexualised photographs of a parent. These were taken in 2016 and have all been deleted.
She was prepared to undertake a parenting orders program. When asked if she would agree that there be no photographs placed on Facebook, she replied that she uses Facebook to contact her grandfather. She asked rhetorically, “What parent wouldn’t want to post a photo of their gorgeous child?” Her grandfather lives in Victoria and the mother conceded that photographs of [X] can be posted to him.
The mother conceded that she never spoken to a drug and alcohol counsellor and had failed to take drug tests required by the Independent Children's Lawyer. She has self-harmed in the past and has had involvement with the Department of Health and Human Services.
When questioned about an alleged assault upon her own mother, the mother said she threw something through a window. The grandmother called police. She asked the father to have [X] for one night.
The mother conceded that she had punched the father’s partner, Ms P, in the face. The father was violent to her and her own mother. This was in [X]’s presence. [X] is a really well mannered child but has been affected by the violence. She agreed it would be appropriate to see a psychologist. [X] is not in childcare. This stopped this year because the mother could not pay for it and the father refused to help. She can start kindergarten next year. She called the father to tell him, and he said it was not good enough and that [X] should be in kinder this year. This led to an argument. She was prepared to put the father’s name on kindergarten enrolment forms.
The mother has contacted Local Council about matters relating to her Aboriginal heritage. She has never been diagnosed as unwell. She was referred to SECASA as a result of a sexual assault last year.
Ms P comes to drop off, but there is no contact between her and Ms P. There is a good distance between the parties’ homes. It is not much of a problem. [X] has a good relationship with her grandmother. The mother is prepared to go on living with her mother and was happy with that. She would consent to an order that she not inflict family violence on the grandmother.
[X] spent time with the father at Christmas and half the school holidays because the mother did not want trouble. The father has been paying child support for four months. The Child Support Agency told her to claim it. She gets a single mother’s pension. Changeover at police stations is not good.
When questioned as to whether she had applied to Berry Street, the mother said she had tried on multiple occasions to do so, but she could not get through on the phone and gave up.
The mother expressed concerns about the father’s property. Some neighbours had shot his dog. These are big dogs which had been stolen. Her child could be stolen. This somewhat excessive concern was nonetheless expressed with considerable emotion.
When questioned by the father, the mother confirmed that she had been to South Australia. She had been there for four visits since Christmas and took [X] on one of them. [X] was begging to go on holidays with her. When she tried to tell the father, he would rage. She was scared of him. She has had disagreements with her own mother. She has been clubbing once this year for a friend’s 18^th birthday.

Evidence of the Maternal Grandmother, Ms T

Ms T adopted her affidavit as true and correct.
Under cross-examination by counsel for the Independent Children's Lawyer, the grandmother said she was aware that the mother did not undertake the requested drug screens. If she comes in at 3 am, she bangs on the door. [X] is not at home on these occasions. She is happy to have her daughter live with her. She has seen the photographs of [X] in the pool. This led to an argument. The mother showed her the photographs, and she told her to take them down. [X] was splashing about and the mother was taking photographs. The child was just rolling around. None of the photographs were posed.
She had recently seen the photographs of her daughter. This was a couple of months ago. She was not impressed. The photographs were rude and suggestive. The mother said to her that these were posted on a private social media account, but she had told her that this was a mistake. They were then taken down.
Ms T has no relationship with the paternal grandmother. This was the case straight away. They had an argument and that was it. She had a good relationship with the father at the start. Things were generally civil between her and the father. She said there was no truth in allegations that she uses marijuana.
Under cross-examination by the father, Ms T said that she had quit smoking marijuana in 2013. She has quit tobacco also, in 2018.
When questioned about police intervention in 2016, she said [X] was in the dining room or out front. The mother threw a clock radio out the front window. The mother rang the father to pick up [X], and he said he was at work and could not come. The police did attend. She confirmed a recent conversation with the father about a visit to the circus.

The evidence of Ms C

Ms C adopted her report and addendum report which were tendered as exhibits C1 and C2.
Under cross-examination by counsel for the Independent Children's Lawyer, Ms C confirmed that the father had a traumatic background. He abused drugs before his accident. Both parents used methamphetamines. There was an assault in 2016 in the presence of children. The father needs counselling, as does the mother. Both parents had matters that needed to be addressed.
The mother had mentioned the photographs of the child. She denied any suggestive intention. The mother is young and immature and regretted her action. They will both grow more mature with age. Ms C agreed that a prohibition on Facebook photographs would be in [X]’s best interests.
Ms C thought that [X]’s most secure relationship was with the maternal grandmother, then the mother and then the father. The father repeatedly defaulted to criticise the mother in his interview with her. He expressed anger at her. His attitude suggested he would not promote a relationship with the mother. [X] would suffer significant grief if she was separated from the mother. The mother’s living circumstances are somewhat rough and ready. He lives in a shed and [X] does not have a proper bed. She had concerns about the father’s anger. The mother will promote a relationship between [X] and the father.
Ms C suggested that [X] spending two out of three weekends with the father might be okay.
Under cross-examination by counsel for the mother, Ms C confirmed that the father is still extremely critical of the mother. He may pressure [X] to choose. The father’s attitude will leak out. If he attends the psychologist, he may change, but it would take at least 18 months of hard work for this to happen.
Notwithstanding her earlier answer to counsel for the Independent Children's Lawyer, Ms C confirmed that she stuck by the recommendations she had made for the father’s time (which is essentially each alternate weekend).
The father did not elect to put any questions to Ms C.

The Submissions of Counsel for the Independent Children's Lawyer

Counsel submitted that there should be equal shared parental responsibility, that the mother should live with the grandmother, the parties should undertake a parenting orders program and that changeover should be at Berry Street for 12 months, following which it should be between each party’s home.
Counsel submitted that there was no question that there had been family violence. On one occasion, [X] had fallen out of the stroller. Nonetheless, it was submitted that it would not be good if one parent made all the decisions. The issue was whether the parties would promote a relationship on the part of the other with the other parent. The father is very critical of the mother. He said he had nothing good to say about her in response to Ms Jardine’s question. He did slightly better under cross-examination by counsel for the Independent Children's Lawyer. The mother would promote a relationship if the child lived with her and her mother. The mother has made [X] available over and above the ordered weekend time. The father wants supervised time with the mother if [X] lives with him. Both parents have indicated a preparedness to undertake a parenting orders program.
[X] needs a relationship with both her mother and father. The mother is the primary carer. Indeed, nothing much has changed since final orders in 2016, except that the father’s concerns have increased. The Independent Children's Lawyer was very concerned about the photographs of [X], which had not been shown to Dr S. The Independent Children's Lawyer remained concerned about the photographs, as is the father. The father is concerned that [X] is not at kinder and is not undertaking any Aboriginal program.
Counsel submitted that a meaningful relationship is qualitative and not quantitative. Ms C had said that the primary attachment was to the maternal grandmother, then the mother and the father third. It is not in the child’s best interests to change to living primarily with the father.
Dr S is an expert, and he was of the view that the photographs of [X] did not amount to grooming. They were highly inappropriate. They would be offensive to [X]. But Dr S said these were not sexual in their nature. It is to be hoped that the mother now understands the inappropriateness of the photographs, and it is noted that the photographs were removed. Dr S assessed the risk to the mother as moderate to high. The mother has to attend a psychologist. Her self-harm requires this. She had a difficult childhood and has past drug use and had not undertaken drug screens. The maternal grandmother is very important. She called the police after arguments which became physical. The mother rang the father only because she thought she would be homeless on that occasion.
The father’s affidavit concentrates on problems at changeover. This is the least problem. The father has had an accident and suffers chronic pain. His affidavit said he smoked one gram of marijuana per week. Headspace said up to three bongs per night. The paternal grandmother said the father smokes when [X] is there. The paternal grandmother said the father does not function when he is high. The paternal grandmother did not, however, elaborate as to what this meant. The father has been using marijuana for a long time. There has been trauma in his life. Given these concerns, it was better that [X] stay with her mother.
Counsel said there was no doubt that the father adores [X]. He is, however, always critical of the mother and does not address his own issues. [X] has a secure relationship with her father and also the mother. Her main attachment is to the grandmother. [X] has been upset when her mother does not attend for time. A change of residence is not appropriate.
Both parents, it was submitted, can care for [X]. The father had indicated he might change residence. His affidavits were silent about kindergartens and schooling. He wants to obtain employment.
Counsel noted that [X]’s kindergarten is linked to Aboriginal services and that the father is likely to promote her Aboriginal heritage to her.
So far as the attitude to the other parent is concerned, both have problems. The mother is able to promote a relationship but the father is not. The mother accepts that [X] really enjoys her time with the father. Notwithstanding this, counsel submitted that two out of three weekends with the father would not work. There will still be conflict. [X] should spend 10 days in the term holidays and half the long school holidays, noting that this had already happened the previous year. Counsel submitted that violence has abated and that finality was important.
Counsel for the mother’s submissions essentially supported those of the Independent Children's Lawyer. [X] should live with the mother and grandmother, and if there was to be any change, mediation would be necessary. The father’s time should start on 3 August 2018, a date linked to the mother’s Centrelink payments. Christmas time should be as proposed in her draft minute. Berry Street could effect changeover on Sundays for a $5 fee.
Counsel pointed out that at the last changeover the father attended with Ms P and submitted that this should not occur. Contact between Ms P and the mother was inappropriate. Counsel sought that the father undertake a men’s behaviour change course and an anger management course. Counsel noted that the mother still promotes the relationship between [X] and the father, but the father is silent.
Mr Elkins commenced his submissions by saying that he would like [X] to live with him. He said “it’s a grouse place to bring up a child.” He said he had not read the psychiatric report very well. He would love [X] to have a good relationship with her mother. There is more support where he is. There are awesome schools which his brother and sister attend. It is a more stable home. It comes down to the mother’s party life. Overnight could happen during the week until [X] is at school and then perhaps two to three weekends per month. The father indicated he was prepared to undertake the courses proposed.

Brief Remarks About the Credit of the Witnesses

The father’s evidence was marked by considerable pressure of speech at times. He also became labile at various points. Some of his evidence, for example, the amount of time [X] had spent with him, struck me as exaggerated and unbelievable. Further, he was at times unresponsive to questions that he appeared to dislike. I note that he had nothing good to say about the mother. I note that Dr S felt that the father had engaged in impression management during the interview with him.
In the main, I found the father essentially immature and self-focused. His answers about his criminal record, most particularly his emphasis on the fact that he might have been under 18 when he committed the offences, was unimpressive. He strikes me as a person markedly lacking in insight.
The paternal grandmother struck me as being partisan, scarcely something surprising given that she was giving evidence on behalf of her son. I note, however, her very honest answer that the father smokes when [X] is in his care. This buttresses the impression I had generally that she was a witness of truth.

The evidence of the mother struck me as being candidly given. She readily conceded that she had punched Ms P in the face. As with the father, she struck me as immature, scarcely surprisingly given her age. Her lack of insight about the risks of placing photographs of her child on Facebook speaks for itself.
The maternal grandmother, once again, struck me as an essentially truthful witness. She was unable to conceal certain hostility towards the paternal grandmother.
Neither Dr S nor Ms C were meaningfully challenged in cross-examination. They were giving evidence within their areas of professional competence, and I fully accept their evidence.
At this point it is appropriate to turn to the statutory pathway: The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:
“Summary
[65]    In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).
7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(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 and 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.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.     The child’s best interests remain the overriding consideration.”

Parental Responsibility

The Independent Children's Lawyer is correct to submit that there has been family violence in this case. This means that the presumption of the application of equal shared parental responsibility in section 61DA(1) is displaced. Nonetheless, not only does the mother support an order for equal shared parental responsibility (the father did not address the Court in terms about this matter) but the Independent Children's Lawyer’s submissions, in my opinion, have force. Given the volatility of the relationship between the parents and their associated general immaturity, it is plainly not in [X]’s best interests that one parent have the sole part in making decisions about major issues in [X]’s life. I will make an order for equal shared parental responsibility.
The making of this order leads to the requirement to consider equal time. In this case, neither party seeks it and the Independent Children's Lawyer does not suggest it is appropriate either. Given the difficulties in communication and interrelationship between [X]’s parents, and her young age and primary attachments, it is plainly inappropriate that there be an order for equal shared time. The submission of counsel for the Independent Children's Lawyer that the spend time regime is about quality of time rather than quantity of time is, in my view, correct.
This means that the Court has to consider those orders that are in [X]’s best interests by reference to the matters in section 60CC.

The Primary Considerations

The Independent Children's Lawyer submits that it is in [X]’s best interests to have a meaningful relationship with both parents. The mother not only in submissions through counsel but in her direct evidence, which I accept, clearly accepts that it is in [X]’s best interests to have a meaningful relationship with her father. I will return to this matter under the additional considerations.
The father’s position is unquestionably at best somewhat opaque. He did say at one point in his final address that it would be great for [X] to have a relationship with the mother, but, as in his discussions with Ms C at the family report interview, his underlying and virulent criticisms of the mother are never far away. It is, however, plain, despite the father’s opposition, that [X] should have a meaningful relationship with her mother.
There is a need to pay regard to the tendency of both of these adults to violence. The need to protect [X] from physical or psychological harm from being subjected to abuse, neglect or family violence is plainly present. As counsel for the Independent Children's Lawyer has pointed out, on one occasion [X] was spilled from the pram during an altercation between her parents.
Nonetheless, once again, I accept the Independent Children's Lawyer’s submission that the comprehensive set of courses and measures designed to assist the parents, in effect, to behave more responsibly and in a more child-focused way are sufficiently detailed and appropriate that the Court should foment a relationship between [X] and each of her parents.

The Additional Considerations, Subsection 60CC(3)(a)

[X] has not really expressed any views, unsurprisingly given her age. Nonetheless, the Court is comfortably satisfied from the observations and evidence of Ms C that [X] has her strongest and most secure attachment with the maternal grandmother, followed by the mother and then the father.

Subsection 60CC(3)(b)

In one sense this has been addressed in the immediate sentence above. Nonetheless, it is important to note that while [X]’s attachments are as I have just described them, this does not mean that she has anything other than an excellent relationship not only with the maternal grandmother, but with the father and mother as well. The mother’s evidence, which I accept, is that [X] always enjoys her time with her father.
Ms P struck me as being very young (she is after all only 19) but there is nothing in either her evidence or that of the paternal grandmother to suggest that they do not love [X] and that she does not have a satisfactory relationship with them.

Subsection 60CC(3)(c)

Each of these parents has prosecuted their case to judgment. They both clearly love [X] and wish to spend time in her life. It might be more accurate to describe the father in particular as seeing the child spending time in his life rather than the other way around, but clearly they both wish to participate in making decisions about her long-term development, a matter perhaps most clearly expressed by both parents in relation to making [X] appropriately aware of her Aboriginal heritage.

Subsection 60CC(3)(ca)

The mother has, with the assistance of her own mother, been the primary carer of this child throughout her life. Plainly they provide in a material way for her. The father has, of course, looked after [X] for some relatively extensive periods of time when he has overheld her. I note that he is now paying child support as assessed, although it would appear that this is not something that he in any sense caused to occur.

Subsection 60CC(3)(d)

The evidence is clear. [X] would suffer severe grief if removed from her mother’s care according to Ms C, whose evidence I accept. She has lived with her mother as her primary carer all her life apart from those occasions when she has been overheld. It is clear that to remove [X] from her grandmother’s household would be extremely difficult for her.
Although it is not a matter to which I give any great weight, I note and accept Ms C’s description of the father’s living arrangements as being somewhat rough and ready. She has to use a potty which is kept in her father’s and Ms P’s bedroom because there is no toilet or bathroom in the shed in which she lives. The bedding arrangements are, it appears, also somewhat rudimentary. These matters, however, should not be given any excessive weight. [X] on the mother’s evidence still really enjoys her time with her father.
It should also be noted that to remove [X] from the mother’s primary residence would, of course, remove her from her maternal grandmother to whom she is more attached than anyone else.

Subsection 60CC(3)(e)

There is no practical difficulty or expense associated with [X] spending time with either parent, save to the extent that the parents’ immaturity has led in the past to violence at changeover. It is to be hoped that the proposed orders will dissipate this difficulty.

Subsection 60CC(3)(f)

Both of these parents, as counsel for the Independent Children's Lawyer submitted, have their deficiencies. They are immature, even for their young years, they both to an extent lack insight and to an extent struggle with life generally. The mother’s suggestion that it would be appropriate to put photographs of the child on the internet are one example. The father’s continuing drug use while [X] is in his care is another. Nonetheless, these are the parents that [X] has. It is to be hoped both at the end of this litigation, the remedial steps envisaged and, hopefully not too aspirationally, the sheer passage of time as the parents grow into greater maturity will assist them better to provide for [X]’s needs.

Subsection 60CC(3)(g)

Both of these parents have had very difficult lives. It is not necessary to re-rehearse the various problems they have had in any detail. Both have significant instances of drug use. They both became sexually active at a very young age. The mother has had Department of Health and Human Services involvement in her life as a younger child. The father has a number of criminal convictions. I do not accept his endeavours to explain those convictions away for a moment. The father continues to use drugs, despite his denials, and even while [X] is in his care.

Subsection 60CC(3)(h)

This child is of Aboriginal descent on both sides. The mother and father both, in my view, have commendable and genuine intentions to ensure that [X] receives the benefit of enjoying her Aboriginal culture and heritage.

Subsection 60CC(3)(i)

This subsection, while always important, has, as is indeed often the case where these matters are dealt with seriatim, already been sufficiently dealt with above. The father’s attitude to the child and responsibilities of parenthood is seriously inadequate in a number of ways. His denigration of the mother, his drug use and his tendency to have relations with women considerably younger than himself (Ms P was, it would seem, 14 and the father 18 when their intimate relationship commenced – clearly something in breach of the Criminal Code in Victoria) speak for themselves. The mother has done some very stupid things in the past. Posting indecent photographs, or at the very least photographs a third party might find indecent, of [X] on the net, once again, is a sufficient example. Nonetheless, and to her credit, she now at least sees the inappropriateness of her conduct.

Subsection 60CC(3)(j)

This is a case where there is all too much family violence. The father has committed acts of violence on the mother during the relationship, and the mother on her own version of events has behaved violently in the presence of her own mother, causing the police to be called. She has also violently assaulted Ms P so that she is now subject to a 10 year Intervention Order. Notwithstanding this lamentable history, however, the reality is, to repeat myself, these are the two parents that [X] has, and I accept the submission of the Independent Children’s Lawyer that the violence has, at least, abated.

Subsection 60CC(3)(k)

I have already referred in passing to the history of violence which is reflected in multiple Intervention Orders here and there. Serious as these matters are, they do not take this matter any further.

Subsection 60CC(3)(l)

It is plainly desirable to make final orders and bring this conflict between the parents to an end.

Subsection 60CC(3)(m)

The relevant considerations here are the various forms of intervention that have been proposed by both the Independent Children's Lawyer and counsel for the mother and which are not opposed by any of the parties. In truth, as I have said more than once, the best optimal outcome for [X] will occur if her parents grow up. To an extent, they will grow up. I note that Dr S was of the view that the mother was insufficiently old to make a diagnosis about borderline personality disorder. Given her age and the difficulty of her childhood and youth, it is to be hoped that she will mature as time goes by. Indeed, the mother impressed me as being substantially more mature and insightful than the father, even though he is somewhat older. The father is immature and prone to outbursts (he was not really fully in control of his emotions even in Court) and, once again, it is to be hoped that the courses he will undertake will ameliorate his difficulties.

Conclusion

The primary burden of this decision is that [X] will continue to live with her mother, who will be ordered to continue to live with her own mother, and not placed in the primary care of the father, as he seeks.
There are some differences of time regime as between the Independent Children's Lawyer and the mother. In my view, while these are minor, the orders proposed by the Independent Children's Lawyer seem more appropriate. I have drawn orders consistent with the Independent Children's Lawyer’s minute to which I have added the men’s behaviour group and anger management courses proposed by the mother and not the subject of disagreement by the father.

I certify that the preceding one-hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 24 August 2018

[2018] FCCA 2266

24 August 2018

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Family Law

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