Fairbank & Dake
[2021] FedCFamC2F 568
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fairbank & Dake [2021] FedCFamC2F 568
File number(s): DGC 1346 of 2020 Judgment of: JUDGE BURCHARDT Date of judgment: 17 December 2021 Catchwords: FAMILY LAW – Parenting dispute – both parents seeking primary residence of 5-year-old child – mother historically the primary carer – mother having very significant alcohol dependency – mother lying on oath about alcohol consumption – Independent Children’s Lawyer supporting primary residence with father and child spending 5 nights per fortnight with mother – Independent Children’s Lawyer seeking significant safeguards when child in mother’s care – risks of mother’s alcohol dependency decisive– orders made as sought by Independent Children’s Lawyer Legislation: Family Law Act 1975 (Cth) Cases cited: Goode v Goode [2006] FamCA 1346 Division: Division 2 Family Law Date of last submission/s: 12 November 2021 Date of hearing: 12 November 2021 Place: Dandenong Number of paragraphs: 65 Counsel for the Applicant: Ms McCreadie Solicitor for the Applicant: Quintessential Lawyers Counsel for the Respondent: Mr Howe Solicitor for the Respondent: Hartleys Lawyers Advocate for the Independent Children's Lawyer: Mr Cynch Solicitor for the Independent Children's Lawyer: Peter Lynch ORDERS
DGC 1346 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR FAIRBANK
Applicant
AND: MS DAKE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
17 DECEMBER 2021
THE COURT ORDERS THAT:
1.All previous parenting orders regarding the child X born in 2015 be dismissed.
2.The mother and father have equal shared responsibility for the child X.
3.The mother and father communicate via “AppClose” or other parental communication app as agreed in writing and if unable to use an app then communication be via text message.
4.The child live with the father.
5.The child spend time with the Mother:-
(a)Every second weekend from after school Thursday to before school Monday.
(b)Every alternate week from paragraph (a) above, from after school Thursday to before school Friday.
(c)Half of all school term holidays, by agreement and if no agreement the mother have first half commencing the conclusion of school on the last day of term and concluding on the middle Saturday of the school term holiday period.
(d)For the long summer vacation at times agreed in writing and failing agreement on a week about basis with the mother’s time commencing the conclusion of school on the last day for a period of 7 days.
6.The mother spend time with the child on special days as follows, unless otherwise agreed between the parties in writing:
(a)The mother spend time with the child each alternate year commencing 2022 from 5.00 pm on 25 December 2022 until 5.00 pm on 27 December 2022.
(b)The mother spend time with the child each alternate year commencing 2021 from 5.00 pm on 23 December 2021 until 5.00 pm on 25 December 2021.
(c)The child spend Father’s Day and Mother’s Day with the relevant parent from 5.00 pm the evening prior to the Father’s/Mother’s Day until the commencement of school on the Monday.
7.The child communicate with the mother each Tuesday at 5.00 pm and any other times as directed by the Court or as agreed between the parties in writing.
8.Unless otherwise agreed between the parties in writing, that the mother's time pursuant to these Orders shall be subject to her using the BACtrack technology, on the following conditions:
Purchase of the Device and Ongoing Monitoring Fees
(a)Within 14 days of these Orders the mother order the BACtrack device from an authorised retailer as nominated by the father.
(b)The costs of the purchase and the ongoing monitoring are to be shared equally between the mother and the father with the mother to pay the fees and the father to deposit half the monitoring fees on the first day of each month to a bank account nominated by the mother and half the purchase cost within 7 days of this Order.
(c)The mother provide the father with confirmation of payment being made for the monitoring and purchase fees as soon as reasonably practicable after having paid the same.
Duration and use
(d)The mother be subject to the usage of the BACtrack device, or agreed substituted device, for a period of 12 months from the date of this Order.
(e)The mother self-administer a breathalyser on the BACtrack device at least 1 hour prior to the commencement of time and between 7:00 pm and 8:00 pm on each night that the child is in the care of the mother.
(f)That the results be forwarded to the Father on each occasion directly from the BACtracker program and if not possible, by the Mother forthwith after completing the testing.
(g)If the results are positive for a detection of alcohol, the father be at liberty to request from the mother that the child be returned to his care and the mother comply with such request.
(h)In circumstances where the father has not received results from the mother in accordance with this Order, then:
(i)by 8:15 pm, the father notify the mother that he has not received the results and the mother ensure the results have been sent; and
(ii)if the father has still not received any results from the mother by 8:30 pm, the father be liberty to request from the mother that the child be return to his care and the mother comply with such request.
(i)Should the father request the child be returned to his care pursuant to the above clause, the mother's spend time arrangements be suspended until the next spend time occasion pursuant to these Orders.
9.In circumstances where the BACtrack has not yet arrived or at the agreement of the parties in writing an alternative breathalyser device, appropriately calibrated, may be substituted for the BACtrack device nominated in these Orders.
10.In circumstances where the maternal grandmother, Ms B or the maternal uncle, Mr C, or such other person as agreed between the parties in writing, have completed and filed an undertaking with this Court, that they will do the monitoring in accordance with Order 8 herein in substitute of the father, and notify the father in circumstances where no results are received by 8:00 pm, and/or a positive reading for the detection of alcohol is given, and a copy of these Orders shall be provided to the person undertaking the monitoring.
11.If the maternal grandmother, maternal uncle or such other agreed person, is unwilling to continue with monitoring the mother's readings, then they will notify the mother and the father immediately and the monitoring will revert to the father.
12.The mother be restrained from using alcohol for 24 hours prior to and during time with the child.
13.The mother continue to attend D Centre and accept their reasonable directions for a period of 12 months.
14.Changeover be at X’s school, or if unavailable at Suburb E police station.
15.The father be restrained from requesting the mother to undergo a breathalyzer test or other form of drug and or alcohol testing other than referred to in Order 8 above.
16.The child continue to attend F School unless agreed to in writing by the parents.
17.The mother and father be restrained from denigrating or allowing others to denigrate the other parent to or in the presence of the child.
18.The matter be adjourned to this Court for mention before Judge Burchardt on 11 February 2022 at 9.30 am.
THE COURT NOTES THAT
A.It is the intention of the parties that there will be no suspension of the mother's time except as provided for as per these orders.
B.The parties agreed that the father will give the mother his breathlyser which will be used until such time as the BACtrack arrives, so that time can commence immediately pursuant to these orders.
C.The father will have his breathlyser calibrated before providing the breathlyser to the mother.
D.The 2021 summer school holidays have commenced this day and it is agreed that the father will have the first week of the school holidays with changeover to occur at 5:00 pm on Christmas Day.
E.The first alcohol test the mother undertakes will occur between 7:00 pm and 8:00 pm on 25 December 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Fairbank & Dake has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY
This is a keenly fought parenting dispute about the best interests of a young child, X, who was born in 2015. The parties’ positions have waxed and waned somewhat during the currency of the proceeding, but in the ultimate the father and the Independent Children’s Lawyer seek that there be equal shared parental responsibility, that the child live with the father and spend time with the mother in a configuration of five nights per fortnight with shared school holidays. The mother’s position is that X should live predominantly with her, that X spend time with the father on a 10-4 arrangement.
Much of the debate in this case has centred around the mother’s alleged alcohol addiction/abuse, something that the mother has put vividly in issue from time to time. For the reasons that follow I proposed to make the orders sought by the Independent Children’s Lawyer.
AGREED OR UNCONTROVERSIAL MATTERS.
The father was born in 1966 and the mother was born in 1980. They were in an on again off again relationship only from early 2013 until November 2015. As earlier indicated, X was born in 2015. Protracted proceedings were concluded by final orders made on 18 November 2016, but things did not go by any means smoothly. The child was overheld on a number of occasions by the father.
The father lives in a home with an adult son (not of this relationship) and a daughter who is studying but sometimes returns. The mother lives on her own. Her mother (who has supervised from time to time) lives in a large house with her son by another relationship and his partner.
The father works full-time from 7.00 am onwards and X is ordinarily put into pre-school care from 7.00 am to 9.00 am accordingly. The mother is studying a Bachelor degree and self-evidently has a lesser income than the father.
THE PARTIES AFFIDAVITS.
Because of the unusual way in which this case devolved, it is not necessary or appropriate to traverse the parties all-too voluminous affidavits. It is not unfair, in my opinion, to describe the affidavits of the father as being one unremitting series of criticisms about the mother and, in particular, her incapacity as alleged by him to refrain from drinking to excess. His affidavits return again and again (often over the same ground) to this topic. In his affidavits he also details the allegedly very considerable gains that X has made since moving into his full-time care in March 2020. He denies or minimises the mother’s allegations of family violence.
The mother’s affidavit material is full of responses to the alcohol allegations. She maintains that the father has grossly exaggerated and distorted the extent of her alcohol use, which she diminishes. She has deposed on a number of occasions to having been clear of alcohol from August 2020 onwards, something she also told to the family report writer. She makes serious allegations of family violence against the father, whom it should be noted has multiple convictions for assault or breaches of intervention order and the like.
Perhaps the other salient point in all the affidavits (and I should emphasise that I have read it all carefully and have regard to it) is that most recently the father filed an affidavit by the mother’s adult daughter, Ms G, in which, to use Ms G’s own words, she dobbed her mother in about alcohol use and a failure to abide by orders for supervised time.
THE FAMILY REPORT OF MS H.
Ms H’s family report is lengthy and detailed and traverses the party’s concerns, which, unsurprisingly, are relatively congruent with the affidavit material. The report noted the “warm and affectionate relationship” between X and her mother (paragraph 63). The report noted that the two significant issues in the matter were the family violence and alcohol use disorder alleged. Ms H opined, “there is little support for the belief that Ms Dake has an alcohol use disorder” (paragraph 70). The report was sceptical of the father’s engagement with the Men’s Behaviour Change group (paragraph 72) and his significant lack of recall for his criminal violent offences and tendency to minimise them (paragraph 73). Indeed, Ms H went so far as to say, “There is low confidence about Mr Fairbank’s truthfulness at interview” (paragraph 74). I note that X informed Ms H that she had a bedroom and a bed at her father’s home, but she had never slept in it, as she sleeps in her father’s bed (paragraph 56).
Ms H made a strong recommendation that if the Court was satisfied there was insufficient evidence to suggest that the mother had an alcohol use disorder and that she was on a pathway of recovery from violence then the child, X, should live with her as soon as possible. She recommended time with the father from after school Friday until return to school Monday, provided that he has suitable bed accommodation for X.
THE EVIDENCE GIVEN IN JULY 2021
The matter proceeded over two days in July and the Court heard extensive evidence from the parties and their supporting witnesses. The matter would ordinarily have concluded at that time, but Ms H was unwell and unable to give evidence so the matter had to be adjourned, ultimately until November. I do not propose to traverse the evidence given in July in any detail. The reasons for this will, I hope, become self-evident.
It is sufficient to say that both witnesses had obvious deficiencies. The father was closely cross-examined about two breaches of intervention order and unlawful assault charges in May and August 2016. His answers were prevaricatory and evasive and showed a clear tendency to minimise what were obviously assaults he had committed.
The mother’s evidence about her alcohol use was on occasions evasive and non-responsive. It is important to note, however, that she roundly denied having consumed alcohol since August 2020 until it became apparent that the Court was likely to order a hair follicle test. At that point she was recalled to the witness box and admitted in further evidence in chief that she had been out in twice in May 2021 and had two glasses of wine on each occasion. Under cross-examination by Counsel for the father, Ms Dake admitted that she had told Ms H that she had been abstinent and that she would not have told the Court about her drinking without the threat of the hair follicle test.
THE EVIDENCE GIVEN AND SUBMISSIONS MADE IN NOVEMBER 2021
At this point, I do propose to traverse, albeit by way of paraphrase from my notes, what was said when the matter returned to Court. I appreciate that there are some who find this unhelpful, but as I have said before, I find it assists me in formulating my views about the matter in a timely way.
The Further Evidence of the Father
The father adopted his affidavits from 10 August 2021, 1 October 2021 and 9 November 2021 as true and correct. Under cross-examination the father was asked what he said when X had told him that she did not want to go to her mother’s ever again. He said he tries to move the conversation to something else. There is no reason for X to say this. She enjoys herself and is happy to go to her mother’s. He had read the family report and its observation that the mother was X’s primary attachment. He did not agree. He said he knew what his daughter does and does not want.
He was asked about an incident on 29 September 2021 observed by Ms G. When it was put that the police said that the mother was fine, the father said he did not disbelieve them. He did not get in the middle of the dispute. He would be surprised if a hair follicle test was clear and would need to speak to his solicitor. He would need to see it before he would accept it. He denied that he did not want X to have a relationship with the mother. When asked why he had not offered time with the mother taking breathalyser tests, he said he did not want to antagonise her. Also he had said he had offered other forms of breath analysis. He said that after the incident in April 2021 there was no way he would offer handheld breathalysers to the mother again. It was put that his withholding the child from the mother was controlling family violence. He denied this. He said, “Absolutely not”, and said he took offence at the suggestion.
Under cross-examination by the Independent Children’s Lawyer the father said his intervention order is going back to Court on 13 December and he will definitely contest it. It was put that he was preoccupied with the mother’s alcohol use, but he said he was preoccupied with his daughter’s safety. The only evidence about alcohol abuse since 1 July was from Ms G. He confirmed that the mother had not appeared affected by alcohol at changeover.
He was asked about X’s arrangements at his home. She lives with him and his son. X has her own room and he takes her to school at 20 to 9. She is at school at about 8.30 to 8.40 am and there is no before or after school. She had been home schooled Monday to Thursday during COVID. He is presently off work with an ankle injury and has not worked since July. When asked what his proposal for X to spend time with the mother was, he said he does not have a formal proposal. He was happy with night time under supervision. When asked, he said that X was not getting enough time with her mother, but when asked what more time X should have, he said he did not know what else to do. The mother has not adhered to conditions. The supervisors fail and do not want to do it. The maternal grandmother and her brother do not want to supervise. He agreed that overnight time was desirable. He was happy with equal shared parental responsibility.
In re-examination the father confirmed that there was a thing called a BACtrack device which could be related to an app. He would be happy to help pay for such a device. It would give him comfort if this was to be tested at the start and the end of time. He would be happy if the maternal grandmother and brother would monitor it. He could afford a couple of hundred dollars for the BACtrack, but a couple of thousand would be too much. He was happy to help.
The Evidence of Ms G.
Ms G adopted her affidavit as true and correct. As indicated, it was essentially supportive of the father’s criticisms of the mother’s alcohol abuse and, in particular, related to 29 September 2021. She was asked about counter-allegations of drug use made by her own mother against her. She said she had used drugs two or three years ago and was smoking marijuana.
Under cross-examination by Counsel for the mother, Ms G detailed occasions when her mother had sought to take her own life, once when she was 11 and again when she was 14 or 15. She remembered the one about when she was 11, because her mother crashed her car and had told her it was an attempt to kill herself. She had seen her mother drinking and neglect X. She would sit outside and chain smoke and leave X alone. Her mother had done the same things with her.
She said the wine she had seen in the cupboard had been hidden behind the mother’s clothes. She had asked her mother if she was drinking on 29 September. She asked, “Have you been drinking?” She had accidentally left some things out of her affidavit. She asked her mother if she could stop and she said no. She had seen her drinking. She admitted it and it was obvious. She had not made it up. It did happen. She had spent the last few years asking her mother for money, but she refuses. She is not getting back at her mother. The bottles in the cupboard were half-empty.
The Independent Children’s Lawyer asked further questions about the bottles in the cupboard. It was a closed cupboard and not locked. She looked in and they were on the floor at the back. She opened the cupboard and X came out and said, “Boo”, and she turned and saw it. X said, “Mum, you shouldn’t be drinking”. One bottle was half empty and it was red wine. That is what the mother drinks.
Ms G agreed that her mother had invited her over. It was put that she does not have a good relationship with her mother and she said, “Not overly. It changes”. She had not seen her for some months before September and nor has she seen her since. She has not taken her father’s side, but has taken X’s side. It was put that X has a close and loving relationship with her mother. X loves her mother, but she does not think it is safe.
The Evidence of the Mother
The mother was called. She is on Centrelink. She was happy to do the BACtrack, which costs about $160, if the results go to her mother or brother.
Cross-examination by Counsel for the father commenced with questions as to failure to answer a list of specific questions. The mother said she was often hounded by emails. She was aware of the issues the father is concerned about. She has not addressed these issues. She conceded that she had lied in July about her alcohol use. She was cross-examined about the recent visit of Ms G. She said that Ms G had taken MDMA the night before and was fighting monsters. She took the photograph (part of Annexure -35 to the most recent affidavit). The tissues in her mouth were because she was grinding her teeth. She is proud of Ms G, but does not know much about her finances.
Ms G had not raised the issue of her drinking. She did not ask her to stop drinking and she did not refuse to do so. When asked why she had not responded for some 10 days to a request for an alcohol test, the mother said she was not sure. Her father had died during this period. She agreed that the father had allowed X to spend time with her despite her lies. When it was put that she agreed that the father says that X loved her the mother said, “You have to ask him that”. It was put that he tries to arrange time but the mother said, “It’s possible because he has to obey orders”.
The mother denied the proposition that she had only come clean about her alcohol use when she was caught out. When asked what time should be spent with the father if X was living with her, she said it should go back to the original orders. Each Wednesday and alternate weekends with changeovers at school. She conceded that X had been living with her father for 20 months. If X was living with her father she would seek as much time as possible. When asked if she could say anything positive about the father, she said, “No comment”.
Under cross-examination by Counsel for the Independent Children’s Lawyer, the mother denied drinking on 29 September. She said, “All three bottles in the cupboard were empty. They were white wine, not red”. She stores things at the end of the wardrobe and uses bottles for plants or something. She conceded drinking in May, but denied drinking since 2 July. When asked about the future she said she did not intend to drink. She would agree to a condition that she not consume alcohol at all, but when asked what reason there was why she would not drink, she said, “To satisfy the Court”.
She still goes to D Centre and the last time was 26 September. She was planning to go the following week and this should be ongoing. D Centre is done by Zoom run by EACH. It goes for one and a half hours at a time. She would agree to an order that this continue. She is not taking any other treatment, because she does not need it. She had not undertaken the CDT test in October because of her father’s funeral and the cost of $150. She had done one hair follicle test. It will be available after 10 days and had been paid for by Legal Aid. She was prepared to undertake hair follicle testing, CDT testing and BACtrack testing if the father paid. She indicated she proposes to pursue the intervention order at the hearing in December 2021. She has an interim intervention order following an incident at changeover. The mother confirmed that she would prefer sole parental responsibility, because there is a lot of coercion and control in there.
The Evidence of Ms H
Ms H adopted her family report as exhibit C1. She had received and read the father and Ms G’s affidavits. She had also read the mother’s affidavits from June and August 2021. She was aware that the mother had told her that she had had no alcohol since August 2020, both in her trial affidavit and in the witness box as well as to her. She had lied. Counsel detailed the failure of supervision which had been found out by Ms G’s visit of 29 September.
Given that the mother lied and there is substantial issues about the mother’s lying on other matters, Ms H would be concerned. There was a level of manipulation. Counsel traversed the history of the mother’s blood alcohol readings in early 2020 and earlier subpoenaed material from J Hospital. Ms H said that she had not seen subpoenaed material before she wrote her report. The alcohol problem was much longer and more serious than the mother had said to her.
The mother had not raised the question of any suicidal ideation with her. Ms H said that the mother was minimising her drinking. Counsel traversed a number of matters, none of which had been revealed by the mother. She had mentioned a visit by the police when she had been drinking, but X was not in her care. In response to a direct question whether the mother had an alcohol use disorder, Ms H said, “Yes, she does”.
Ms H confirmed that the father’s proposal for time with the mother was enough for X’s relationship to be maintained and flourished. It was in her best interest to remain at her current primary school.
When questioned by Counsel for the mother, Ms H confirmed that X could not be open with her father about everything that she thinks about him. She was aware that the interlock has to be clean for six months to be removed (as has occurred).
When asked about the two glasses of wine in May 2021, Ms H said there were two approaches. One is sobriety and the other is harm minimisation. The healthy limit is one standard drink five nights per week for a woman. When it was put that the mother’s hair follicle tests had been clear, Ms H said she was concerned about the minimisation by the mother. The mother was using a lot more than she was telling her.
Counsel cross-examined about the father’s truthfulness in paragraph 74 of the report. Ms H said this was the response about the weapon (charged in 2004). It seemed like an excuse for having a weapon that did not sound truthful. She is ex-public service and training about weapons is very serious. There is security training.
It was clear X missed her mother and enjoyed her time with her. She has been the primary attachment for most of X’s life. The father was not as affectionate. Children have ways of saying when their needs are not being met.
Under questioning by the Independent Children’s Lawyer Ms H said X should spend as much time with the mother as possible, subject to risk. The mother’s alcohol use disorder might be in remission, but alcohol use disorder was possible. The D Centre is specialist drug and counselling service. What she has at the moment is sufficient provided the mother continues. She had no great confidence, unless the mother was abstinent for over a year, and it was easy to relapse. She had not been made aware of the BACtrack until this day. Before and after would be helpful, but it was not necessary for the father to get all of the information. There would be problems if the BACtrack went on for too long. And use of a breathalyser should be prevented.
Final submissions by the Independent Children’s Lawyer
Counsel submitted there were four findings the Court needed to make. First, the child has a very close and loving relationship with the mother, and it is in her best interests to spend as much time as possible with her, subject to risks. Secondly, the father was less risky as the main carer. Thirdly, the mother’s false evidence required caution. Fourth, testing must be specific and have specific consequences. There should be no discretion for the father to make demands. The presumption of equal shared parental responsibility was applicable, unless rebutted by violence and the lack of communication between the parties. Counsel submitted that equal shared parental responsibility was appropriate. The child should live primarily with the father and spend time in the daytime, subject to alcohol issues. Time should progress to a five-nine arrangement and school holidays, subject to use of the BACtrack, CDT and hair follicle testing. The mother should be required not to drink for 12 months. This would be at D Centre. If time was spent subject to testing with the BACtrack, this would be best and the father should pay. The father should be restrained from using the breathalyser. The child should remain at K School. Counsel noted the hair follicle test was to be received.
Final Submissions by Counsel for the Mother
Counsel conceded that there were credit questions about his client. This was, however, a two-way street. The father’s story about the gun in the dog food was risible. He had expressed no contrition about the assaults or any remorse. There were serious questions about family violence. He had withheld the child for 18 days after the incident on 29 September. The father had little insight as to parenting over the five years of the child’s life and he says that the child expert is wrong about the child’s primary attachment. The family report writer says it appears that the mother’s alcohol abuse disorder is in remission and she is prepared to undertake the BACtrack testing. There would be risks if the child lived with the mother, but these are overborne by the BACtrack. This is all agreed by the father, except the question as to who was the primary attachment. The mother says that there has been family violence and the child is not necessarily safe in the father’s care. She seeks sole parental responsibility and the child live with her in accordance with the orders in the case outline.
Final Submissions by Counsel for the Father.
Counsel supported the Independent Children’s Lawyer orders. Equal shared parental responsibility was practicable. The communication issues were softened by the use of the app, which was similar to My Family Wizard. Special occasions should be shared and there should be half school holidays, subject to use of the BACtrack, with which the father would help. The costs should be shared so that both parties had skin in the game and the results should be sent to the maternal grandmother or Uncle Mr C. It was submitted Mr C was a truthful witness (I have not seen it necessary to traverse Mr C’s oral evidence, but I agree that he was a truthful witness).
The mother is to engage with D Centre and be restrained from alcohol while the child is in her care for 24 hours beforehand and during the time. The mother had lied twice on substantial issues and the father’s evidence should be preferred. The mother had been caught out and had only came clean after this. In her August affidavit she said that Mr C was in substantial attendance, which was also a lie, only discovered through Ms G. The family violence by the father was denied. He pushed the mother away in April to take X. The father recognises the mother loves the child but is concerned about risks. Ms H has said five-nine is enough to maintain the relationship. The father was prepared to undertake the Tuning into Kids program.
THE STATUTORY PATHWAY
The statutory pathway is described by the Full Court in Goode v Goode [2006] FamCA 1346 at [65].
In summary, the amendments to Part 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 s 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 s 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” (ss 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 and the father both support an order for equal shared parental responsibility. The mother’s position, as indicated in the notes above was more nuanced, but I think formally she seeks sole parental responsibility in her favour. This, however, is clearly presaged on the basis that the child live primarily in her care. Since I am not going to make orders to that effect, it is immediately apparent that there should be equal shared parental responsibility. The presumption would be capable of being rebutted by the family violence that I have no doubt at all the father inflicted upon the mother from time to time, but as a matter of practical politics, since she will be living predominantly with her father, it is clear that the parties must share the responsibilities. The father has shown something of a tendency to cut the mother out of the child’s life at the drop of a hat, albeit for reasons that he thinks are justified. It is important that the mother, who is the child’s primary attachment, have an active role in her future, notwithstanding the difficulties that these parties have in communicating with one another. I note, however, that their communication in future will be diffused through the use of an app, which will doubtless assist them to communicate in a more effective way.
THE SPEND TIME AND COMMUNICATION REGIME - THE PRIMARY CONSIDERATIONS
Everybody, at least superficially, agrees that it is in X’s best interest to have a meaningful relationship with each parent. The father’s protestations that he is eager for X to have a good relationship with her mother must be approached with caution. The reams of criticism in his affidavits, together with what he said and the way that he said it in the witness box, suggest that his concentration on the mother’s perfidious use of alcohol is almost obsessive, even though it is, at least in a significant part, objectively reasonable. The mother, by way of contrast, was not able to offer any favourable comment about the father when asked if she could do so. These parents obviously distrust and dislike each other considerably. Nonetheless, and this is to their joint credit, each of them concedes that a relationship with the other parent is important, despite the strongly held views they have about one another.
There are vague suggestions in the mother’s materials, not really pressed in any significant way during the trial, that the child might be at risk through inadequate parenting skills while in the father’s care. The burden of Ms H’s evidence is that X may struggle to fully express herself when she’s in her father’s care, and I note that his parenting style appears to be more rigid and less warm and empathetic. Nonetheless, there is no meaningful suggestion that X is at any risk in her father’s care and, indeed, she made it clear to Ms H that she was not scared of either parent.
There has been family violence, a matter to which I shall return in due course, but putting the matter shortly, I repeat, there is no suggestion that X is scared of her father or at risk of violence from him.
The mother does present as having deficiencies as a result of her difficulties with alcohol. I accept Ms G’s evidence that on occasions her mother has not properly cared for X in as appropriate a fashion as she should have done. Nonetheless, even the father’s position is one, subject to various safeguards, that X should spend five nights per fortnight with her mother, and this puts his concerns and those of the Independent Children’s Lawyer into perspective.
The Additional Considerations - Section 60CC(3)(a)
X is obviously too young to have expressed very well considered and developed opinions as to what she wants. X has become somewhat confused about which of her parents is telling the truth (Ms H at paragraph 58), but what she had to say to Ms H was assessed by Ms H as having been influenced by what her father had already discussed with her. It is not possible to give any great weight to anything X said in this regard.
Section 60CC(3)(b)
Notwithstanding the force of the remark just made, it is absolutely apparent that X has been in the primary care of her mother for most of her life and regards her as her primary attachment. That was Ms H’s observation and it is consistent with the history of the matter, in any event, together with the father’s slightly less empathetic style. Nonetheless, it seems fairly clear that X also has a secure and well-grounded relationship with her father, with whom she has been living now for over a year and a half and in whose care, at least so far as school and the like are concerned, she appears to be thriving.
X would also appear to have a good relationship with the maternal grandmother and her Uncle Mr C and his partner, and there is nothing to suggest that her relationship with other family members is anything other than unremarkable.
Section 60CC(3)(c)
Both of these parents have sought to participate in making decisions about major long term issues in respect of X and to spend time and communicate with her. They have litigated this case to finality with energy and determination, which speaks for itself.
Section 60CC(3)(ca)
Neither party has made much of this criterion. The father, plainly, since X has been in his care, has looked after her. This has involved some difficulty prior to the COVID emergency, because he had to leave X at school very early. He is not now not working as a result of what appears to be a significant injury to his foot and he home schooled X during COVID. He has plainly stepped up to the mark as best he is possibly able. There is no reasons to assume that he will not continue to do so. The mother has likewise fulfilled her obligations to maintain X, albeit that her capacity to contribute financially is limited by her reliance upon statutory benefits.
Section 60CC(3)(d)
X has been in her current spend time regime for quite some time. It is now approaching a third of her life. The increases proposed, in effect, by the Independent Children’s Lawyer and father reflect X’s very strong attachment to her mother and desire to spend more time with her, while factoring in the risk difficulties that the mother’s history must necessarily be accepted as demonstrating.
Section 60CC(3)(e)
The parents in this matter do not live far apart and the driving time between them is short. There is no practical or expense-related difficulty in either side’s proposed spend time regime.
Section 60CC(3)(f)
The father, as I have already said, has stepped up to the mark when required to do so. It is a matter of concern that he is insufficiently insightful to appreciate that the mother is X’s primary attachment, even though that is the expert evidence of Ms H. It appears that his parenting style is more rigid and fixed, but he loves his daughter and will do his best. The mother’s capacity to provide for X’s needs is greater, in the sense that she is more empathetic and closely bonded with her. It is, however, compromised by her ongoing and mendaciously concealed difficulties with alcohol.
Section 60CC(3)(g)
The father’s lifestyle and background appears to be relatively unremarkable. He presently has an injury, which it is to be hoped will resolve (little has been said about it), but he appears to have secure accommodation and a capacity to pay his way. The mother is, commendably, pursuing tertiary education and it is to be hoped that she successfully completes this and obtains the concomitant financial potential rewards. Her accommodation appears to be adequate. That of the father is barely so. The father’s photographs that were tendered as exhibit A1 show a room small in size and shared from time to time, at least, with another sibling. Except, of course, that X has never actually slept in it, but sleeps in her father’s bed. X’s age is such that this is surely something that must come to a halt reasonably soon. It is not healthy for her to continue to share her father’s bed as she gets older.
Section 60CC(3)(g)
Much of what has been said in the immediately preceding paragraph applies to this criterion, as well. What must be faced, however, and given emphasis is the mother’s difficulties with alcohol. The fact is that the mother has lied repeatedly, and on her oath, in her endeavours to minimise her difficulties. She would not have owned up to drinking in May 2021 if she had not been caught out. She lied to Ms H. Her evidence must be approached with the caution that flows from this kind of blatant untruthfulness. She has, obviously, had a long term and very significant alcohol use disorder, and this has undoubtedly, on occasions, either placed X at some, as in 2015, and at the very least, as Ms G said, led to X being left unattended while the mother consumed alcohol. This is a most unfortunate deficiency which should impel sympathy rather than criticism, but it cannot be ignored.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
The attitudes of both of these parents to X are, essentially, those of loving parents, despite their mutual deficiencies.
Section 60CC(3)(j)
I have said I will return to family violence, and this is the point at which to address it. I have no doubt that the father has indeed assaulted the mother in the past. His suggestions that he pleaded guilty just to get rid of the matters in 2016 is utterly unbelievable and, although it is now a very long time ago, his explanation about the incident with a gun in 2004 was indeed, as Counsel for the mother submitted, risible. Ms H’ evidence about gun control and gun safety was given with considerable conviction and is obviously true. The father undoubtedly assaulted the mother on a number of occasions and his denials are simply ones I do not accept. Not only do they not sit with the objective criminal law results, but I have heard and see him give this evidence and I do not believe it. Likewise, I do not accept his assertions that the mother assaulted him. Once again, I have seen and heard his and her evidence and I simply do not accept his assertions.
Section 60CC(3)(k)
There is an intervention order in place on an interim basis, which will be the subject of further hearing shortly, if it has not already occurred. In the context of this case all it proves is that the father is still having difficulties controlling his behaviour at changeover. Having said that, however, it is unnecessary for me to make a final finding as to the competing assertions about this matter. It will play out in the State Courts.
Section 60CC(3)(l)
Everybody agrees it is appropriate to make final orders.
Section 60CC(3)(m)
Perhaps the most critical aspect of this case, which has been touched upon admittedly already in part, is the difficulties with the mother’s alcohol consumption. In the end, there are two things that in my opinion decisively militate in favour of making the orders sought by the Independent Children’s Lawyer and father. First is the mother’s risk of alcohol abuse. In the face of this long term alcohol use disorder, as described by Ms H, and the mother’s dishonest evidence, it is simply not possible to accept her assurances that all will be well from now on. I have been forwarded the mother’s recent hair follicle test, which is negative for alcohol. None of the parties have forwarded any further submissions arising from it. It does of course reflect well on the mother but in the face of the mother’s history it cannot be taken to be a determinative indicator of the future. The risks associated with her difficulties strongly suggest that X’s best interests will be met by having her live primarily with her father. That is only further added to by the practical reality to which I have already referred, namely, that the current spend time regime has been in place for what, in the scheme of X’s life to date, is a relatively substantial period. In the end, making the orders proposed by the Independent Children’s Lawyer represents a balancing and calibration of the competing risks and matters that I have addressed above, and those orders are the orders that I think are in X’s best interest.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 17 December 2021
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