Fairburn & Naeve
[2021] FedCFamC2F 615
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fairburn & Naeve [2021] FedCFamC2F 615
File number(s): PAC 1261 of 2020 Judgment of: JUDGE BECKHOUSE Date of judgment: 22 December 2021 Catchwords: FAMILY LAW – PARENTING – Equal shared parental responsibility – live with the father. Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65AA, 65DAA, 65DAC Cases cited: Mazorski & Albright [2007] FamCA 520 Division: Division 2 Family Law Number of paragraphs: 116 Date of hearing: 13- 15 December 2021 Place: Sydney Counsel for the Applicant: Mr Cairns Solicitor for the Applicant: Barry F Cosier & Associates Counsel for the Respondent: Mr Jauncey Solicitor for the Respondent: Mertens Lawyers Pty Ltd Counsel for the Independent Children's Lawyer: Mr Lawrence Solicitor for the Independent Children's Lawyer: Osborne Legal ORDERS
PAC 1261 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS FAIRBURN
Applicant
AND: MR NAEVE
Respondent
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
22 DECEMBER 2021
ON A FINAL BASIS THE COURT ORDERS THAT:
1.All prior parenting Orders are discharged.
2.The mother and the father have equal shared parental responsibility for the child X born in 2016 (“X”).
3.X shall live with the father.
4.X shall spend time with the mother as agreed between the parties and failing agreement as follows:
(a)During school terms:
(i)In Term 1, Term 3 and Term 4, on the 3rd and 6th weekend, from 6pm Friday until 4pm Sunday;
(ii)In Term 2, on the 3rd weekend from 6pm Friday until 4pm Sunday and on the June Long weekend, from 6pm Friday until 4pm Monday; and
(iii)Provided further that if necessary the weekend will be adjusted to ensure that X spends Mother’s Day weekend with the mother and Father’s Day weekend with the father.
(b)In school holiday periods:
(i)In each of the school holiday periods at the end of Term 1, Term 2 and Term 3, from 6pm on the last Friday of the school term, until 4pm on the second Thursday of the school holiday period.
(c)For half of the school holiday period at the end of Term 4, being the first half in odd numbered years and the second half in even numbered years.
5.While the mother remains living in the Town B area changeover shall occur at the Caltex Service Station in Town C.
6.In the event the mother relocates to the Town D area, changeover shall occur at an agreed midpoint between Town D and Town E.
7.X shall have telephone communication with the parent that she is not residing with as follows:
(a)Each Sunday, Tuesday and Thursday between 5.30pm and 7.30pm;
(b)On Christmas Day between 8am and 10am;
(c)On X’s birthday between 8am and 10am and between 5.30pm and 7.30pm;
(d)On the birthday of any sibling between 8am and 10am; and
(e)On each parent’s birthday (if X is not in there care) between 8am and 10am.
8.The telephone communication shall occur by the parent wishing to speak with X initiating the call, and the parent in whose care X is in, shall ensure that X answers the call and that she is afforded privacy for the duration of the call.
9.The mother and the father are each restrained by injunction as follows:
(a)Consuming alcohol while X is in their care and for a period of 12 hours leading up to X being in their care;
(b)From using illicit drugs while X is in their care and for a period of 12 hours leading up to X being in their care;
(c)From permitting X from coming into contact with any third party who is affected by illicit drugs or alcohol;
(d)From discussing these proceedings with X or showing her any documentation produced for or in relation to these proceedings; and
(e)From denigrating the other parent or member of the other parent’s family in X’s presence or within X’s hearing.
10.The mother is restrained from permitting X to have any communication or contact of any kind, with Mr F.
11.The parties will ensure that each parent is listed on X’s school enrolment form as a parent and emergency contact.
12.These Orders are sufficient authority for each parent to be provided with copies of all day-care/school reports, school photography order forms, notices and advices concerning X and any activities involving X.
13.Each parent notify the other in writing of any changes to contact/residential details at least 2 weeks prior to any such change occurring.
14.The parties are each restrained from relocating the permanent residence of X to an alternate town/or city without the written consent of the other party or an Order of this Court.
15.Each parent notify the other if X receives medical attention or is seriously injured or requires hospitalisation or in the event of an emergency, as soon as is practicably possible after such event.
16.For the purpose of communication of information between the parties, the mother and father shall:
(a)Communicate by telephone in an emergency situation; and
(b)Communicate by text message or email about day to day matters including arrangements for each party to spend time with X or all other matters relating to the parenting of X.
17.These Orders are sufficient authority for each parent to contact and speak to X’s treating health care professionals and obtain medical information, reports and the like regarding X.
18.The first half of the Christmas school holiday period shall commence at 6pm on the last day of required attendance and shall end at 12noon on the day closest to the midpoint having regard to the total number of nights (“the midpoint”) and the second half shall commence at 12noon on the day closest to the midpoint and shall conclude at 4pm on the day prior to the commencement of school on the first day of required attendance in the new school term.
19.Upon the Independent Children’s Lawyer (ICL) meeting with X to explain these Orders to her, the ICL is discharged.
20.No order be made as to the ICL’s costs.
THE COURT NOTES THAT:
A.All Orders BUT FOR Order 3 are made by consent.
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 Fairburn & Naeve has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The parties are the parents of X who was born in 2016 and is currently 5 years old.
ISSUES IN DISPUTE
The parties are in dispute as to which parent X should live we.
At the final hearing, the parties agreed to a range of parenting orders.
EVIDENCE
Each of the parties filed Case Outline documents setting out the material relied upon. During the hearing counsel for both the mother and the father indicated that their Case Outlines contained typographical errors and confirmed that they were relying upon the most recent affidavit material filed in November 2021.
The mother relied upon:
(a)Amended Initiating Application filed 17 April 2020
(b)Notice of Risk filed 12 March 2020
(c)Affidavit of Ms Fairburn filed 18 November 2021
(d)Child Dispute Conference Memorandum prepared by Ms G dated 15 April 2020
The father relied upon:
(a)Response to Initiating Application filed 31 March 2020
(b)Notice of Risk filed 31 March 2020
(c)Affidavit of Mr Naeve filed 8 November 2021
(d)Affidavit of Ms H filed 8 November 2021
The Independent Children’s Lawyer (ICL) relied upon:
(a)Single Expert Report prepared by Dr J dated 30 June 2021
Both parties were legally represented.
The parties were called to give evidence. Additionally, the father’s aunt Ms H was cross-examined, as was the Single Expert, Dr J.
I have also had regard to the voluminous material tendered and marked as exhibits.
Findings of fact are made on the balance of probabilities, having regard to the evidence. Any statements of fact constitute findings of fact.
BACKGROUND
Before considering the proposals and the law it is useful to capture the relevant facts.
The mother, Ms Fairburn was born in 1991 and is 30 years old.
She has one child from a subsequent relationship, K born in 2019, aged 2 years.
The father, Mr Naeve was born in 1992 and is 28 years old. He identifies as Aboriginal and his tribe originates from the Region L area.
The father has two children from a previous relationship, M, aged 10 and N, aged 8.
The parties commenced a relationship in 2014.
In February 2016, the father was arrested and taken into custody for assaulting the mother and damaging property. The mother was 32 weeks pregnant with X at the time of the incident.
X was born in 2016.
On 22 July 2016 an Apprehended Domestic Violence Order (ADVO) was made for the protection of the mother against the father for a period of 12 months.
The parties briefly resumed cohabitation upon the father’s release from custody in August 2016.
The parties separated on a final basis in late 2016.
Between January and June 2017 the mother alleges a series of incidences of family violence perpetrated by the father.
In April 2017, the mother alleges that the father picked up X and threatened her. With the assistance of a friend X was returned back to her care.
On 16 June 2017, the parties met at Coles in Town B for the father to spend time with X. The father refused to return X. The mother contacted Town B Police who located X and the father and arranged for her return.
In late 2017, the father was taken into custody and served a 12 month prison sentence for assaulting a police officer. Since his release in February 2019 he has resided in Town E.
The mother commenced a relationship with Mr F sometime after she separated from the father. There is one child of the relationship, K who is 2 years old.
Mr F is currently incarcerated for assault occasioning actual bodily harm, contravening an ADVO and damage to property. He is due for release on 7 January 2022.
The father spent time with X in Town E in February 2020. He did not return X to the mother. He alleged that X would be at risk of serious harm in the mother’s care as a result of being exposed to family violence in the mother’s household.
The mother commenced proceedings on 12 March 2020 seeking a recovery order for X from the father.
The matter was set down for a three day final hearing which proceeded on 13, 14 and 15 December 2021.
As at the date of the final hearing:
(a)The mother is living with her daughter K in Town Q NSW in accommodation provided by the Department of Housing. However, during cross-examination the mother stated that she has made an application for her housing to be transferred to Town D NSW.
(b)The father is living in Town E NSW in a house owned by his paternal aunt and uncle Ms H and Mr R.
(c)The father is permanently employed full time as a factory worker at Employer S.
(d)Neither party had re-partnered at the time of the hearing.
PROPOSALS
The mother proposes that X live with her.
The father proposes that X live with him.
The ICL, after hearing all of the evidence, supported an order that X live with her father.
THE LAW
The principles governing the determination of competing parenting applications are set out in Part VII, Family Law Act 1975 (Cth) (“the Act”).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
As for the primary considerations, in the leading authority of Mazorski & Albright [2007] FamCA 520 (“Mazorski & Albright”), Justice Brown refers at [3] to such considerations as the “twin pillars” where:
(a)The first pillar is the importance of a child to have a meaningful relationship with both parents; and
(b)The second pillar is the need to protect children from physical and emotional harm.
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). If the child is subject to an equal shared parental responsibility order, then whether the child should spend equal or substantial and significant time with the non-resident parent, if reasonably practical, must also be considered.
X
Before applying the law, information as to X needs to be captured.
X is 5 years old. She is of Aboriginal descent and is due to start primary school in 2022.
X currently attends T Street Preschool in Town E during the week that she is in the father’s care.
X is enrolled in weekly dance lessons and is learning to swim.
The mother describes X as an “amazingly smart and intelligent child” who likes animals, singing and dancing.[1]
[1] Single Expert Report dated 30 June 2021, paragraph 99 (“Single Expert Report”).
The father describes X as a “strong willed and determined child who has her own personality.”[2]
[2] Single Expert Report, paragraph 86.
Both parents reported to the Single Expert that at times X can be difficult and oppositional.[3]
[3] Single Expert Report, paragraphs 87 and 100.
The Single Expert attempted to interview X, however she was reluctant to separate from her father and only agreed to be interviewed if her father could remain with her.
The Single Expert observed X to be “relaxed and at ease” in her interactions with her mother and half-sister K.[4] During the observation X “initiated affectionate physical contact with her mother” and also “invited K to hug her and they embraced warmly.”[5]
[4] Single Expert Report, paragraph 105.
[5] Single Expert Report, paragraph 105.
The Single Expert similarly observed X’s interaction with her father to be “relaxed and at ease.”[6] They engaged in “free flowing” conversation and laughed together.[7]
[6] Single Expert Report, paragraph 109.
[7] Single Expert Report, paragraph 109.
X presented to the Single Expert as a “playful, active, spontaneous and expressive child” who “seems to have achieved the physical, cognitive and social milestones expected for a child her age.”[8]
[8] Single Expert Report, paragraph 102.
PARENTAL RESPONSIBILITY
The parents ask me to make an order that they have equal shared parental responsibility for X.
Pursuant to s 65DAC of the Act, an order for equal shared parental responsibility requires the parents to make together (and jointly) decisions about major long-term issues affecting the child. I am confident that the parents will continue to do so.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the court is then obliged to consider both the advisability and practicability of the child spending equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
This is not a matter where it is reasonably practicable for X to spend her time equally between the parents. The father lives in Town E and the mother in Town Q. This requires X to travel five hours each way. Indeed the parties have agreed upon the arrangements for X to spend time with the parent that she is not living with.
PRIMARY CONSIDERATIONS PURSUANT TO SECTION 60CC
The court must balance the benefit to X having a meaningful relationship with her parents with the primary consideration of protecting her from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.
The concept of “a meaningful relationship” has been discussed in many authorities, most significantly in the decision of Justice Brown in Mazorski & Albright. Those authorities establish that “a meaningful relationship” is a qualitative concept. The relationship is not measured simply by the amount of time the child is spending with each parent, but the quality of the relationship that exists between the child and parent.
It was not in dispute that X has meaningful relationships with both her parents.
The mother’s proposal acknowledged the father’s continuing importance in X’s life. Their meaningful relationships with her will survive whatever orders are now made.
This is a matter where the parties have each raised concerns about a range of risks that X may potentially be exposed to in each household. However, neither argues that the risks they identify are unacceptable risks.
RISKS IDENTIFIED ABOUT THE MOTHER
As was observed by the Single Expert “this is a matter where the safety issues for… X need to be considered paramount. The court will ultimately need to determine which of the living arrangements is most likely to provide X protection.”[9]
[9] Single Expert Report, paragraph 132.
The father’s concerns about the risks to X in the mother’s household are:
(a)That X may be at risk of abuse or family violence should she be exposed to unsuitable people in the mother’s household (such as her former partner Mr F); and
(b)That X might be neglected by the mother on occasions when she is under the influence of drugs.
I find that X has been exposed to family violence in the mother’s household. That family violence has been perpetrated by the father and later by Mr F. The question for the Court is the likelihood it will occur again and the mother’s ability to take protective measures to prevent X’s exposure to it.
The Court cannot be left with great confidence that the mother will in the future act protectively to ensure that X is not exposed to family violence in her home. The mother has made poor choices in her past relationships. Whilst she has the support of her domestic violence counsellor Ms U, her ongoing contact with Mr F is of great concern.
There are some protective steps that the mother identified she both has and would put in place to ensure that X does not come into contact with Mr F. These steps include:
(a)Ending their relationship;
(b)Notifying Corrective Services about his use of an illegal phone in jail;
(c)Seeking further protection by extending the ADVO when it expires; and
(d)Agreeing to an order that Mr F does not come into contact with or communicate with X.
The mother’s willingness to comply with court orders has to be viewed in the context of her past conduct. On 1 June 2020 the parties entered into interim consent orders. Order 19(c) of those orders provided that “the Mother ensure [that the] child is not to be in the company or care of the person Mr F at any time”.
The mother was not frank in her affidavit material and the evidence she gave about her relationship with Mr F. She admitted to the Court on day two of the hearing that she had misled (and downplayed) to the Single Expert her ongoing contact with Mr F.
I find that the mother has acted in breach of the 1 June 2020 Orders and that the mother has had continuing regular visits and telephone calls in X’s presence with Mr F whilst he has been incarcerated. This is evidenced by both the Corrective Service visitor and telephone records, and X’s disclosures.
I am also not confident that the mother will be in a position to restrain Mr F from coming in contact with X in the future. He is the father of K and lives in the same small community as the mother. He would also appear to be a violent and dangerous man who has little regard for the law. This was conceded by the mother under cross-examination when she was questioned about Mr F’s assault of the father in 2017. She accepted that she continued her relationship with Mr F notwithstanding the vicious nature of the attack on X’s father.
There is also a risk that X might be neglected by the mother on occasions when she is under the influence of drugs.
The mother is a long time cannabis user although has never faced criminal charges for drug-related offences. During the proceedings the mother complied with requests for drug testing and she relapsed between July and September 2021. She says that at the time she was struggling with the death of her father and processing the contents of the Single Expert Report. She has since provided hair follicle testing which was negative for any substances.
While the mother disclosed her relapse to her domestic violence counsellor Ms U, she did not seek a referral for drug and alcohol counselling. This is likely because she holds the view that her cannabis usage has limited impact on her capacity to parent. In her affidavit and when giving evidence, the mother displayed a lack of insight into the impact of her drug use on her ability to parent. The Single Expert opined that drug use while children are in the care of a parent is a significant risk factor as it compromises the emotional and physical availability of children.
Before the Court was a letter from Ms V (dated 30 April 2020) an intensive community-based drug and alcohol treatment program in Town W. The mother had completed an intake and assessment process to participate in an intensive drug and alcohol treatment program. In 2019 the Department of Communities and Justice (DCJ) also referred the mother to the Brighter Futures program in Town B. The program is a voluntary one to support parenting techniques. The mother exited that program after three months at her own request. The Court is left with a concern that the mother has not engaged to the full extent possible to deal with her capacity to protect X in the future. This is particularly disappointing in light of the recommendations of the Single Expert Report.
I am not confident that the mother will remain drug-free. It is possible that in the future she will again turn to cannabis as a crutch for a problem given that she continues to hold the view that cannabis usage has little impact on her ability to parent.
RISKS IDENTIFIED ABOUT THE FATHER
The mother alleged X is at risk because:
(a)She may be exposed to family violence in the father’s household because he has unresolved anger management issues and was extremely violent towards the mother during their relationship.
(b)She might be neglected by the father if he is unable to maintain sobriety or suffers from a mental health episode.
The father admitted to a troubled past. From an early age he regularly consumed illicit substances. While he disagreed with some of the allegations made against him by the mother, he agreed that he had been physically and verbally abusive towards her throughout the relationship, often in the presence of X.
During his last period of incarceration he attended sessions with a drug and alcohol counsellor and a psychologist for anger management strategies. He says he has been drug-free since being jailed in late 2017. He attends upon his general practitioner for medical advice and participates in a group for single fathers. He has been consistently employed for over two years and appears to lead a healthy life with the support of his community.
Counsel for the mother raised concerns about the father’s mental health status. Peppered throughout a number of the Corrective Services records was reference to the father having a diagnosis of schizophrenia, depression and/or bipolar disorder. It led the mother’s counsel to submit that such a serious issue needs expert medical evidence before the Court could be satisfied that it is not a real and present risk for X. The father dismissed these concerns on the basis that he had received advice that the conditions were drug induced. Provided he remains drug free, he says he is not at risk of experiencing these mental health conditions.
The father’s rehabilitation is in part thanks to the support he received (and continues to receive) from his aunty Ms H and her husband Mr R. Ms H was once employed as a public servant and health care worker.
Ms H was an impressive witness and an important support figure for X. She has lived with the father for two years and has seen no signs of relapse. As a health care worker she is a mandatory reporter and indicated that she would not hesitate to take steps to protect X if she felt that she was at risk of harm.
The Single Expert was impressed by the father’s “self care”. She observed that his focus on things like diet, exercise and work were important. But she also opined that the father’s regular contact with his GP and his close family ties would ensure that if there is any relapse those around him will intervene quickly to help him get back on track.
Having regard for the evidence before the Court, while the father is always at risk of a relapse, the Court was confident that the risks raised by the mother were not current risks. The likelihood of relapse for the father is low and if it were to happen, I am confident that his family and community would take appropriate steps to remove X from exposure to any risk.
ADDITIONAL CONSIDERATIONS PURSUANT TO SECTION 60CC(3)
Section 60CC(3) of the Act sets out additional considerations, and reference is now made to those that are relevant.
X is five years old and is yet to commence school. Both parents depose that she has expressed an affection for them and a desire to spend more time with them. Given her age, limited weight can be placed on her views.
The Single Expert observed that X has a warm and loving relationship with both of her parents.[10]
[10] Single Expert Report, paragraph 120.
The mother has been her primary caregiver until she was retained by the father on 24 February 2020. X was only in the father’s full-time care for six months until orders were made on 1 June 2020 which put in place a fortnight about shared care arrangement.
X also enjoys a close and loving relationship with her sister P who lives with her mother. At the time the Single Expert Report was being prepared, it was observed that during the father’s interviews X chose to stay with her mother and P.
X spent limited time with her father in her earlier years and this was interrupted by periods of incarceration and parental separation. He was taken into custody on 18 February 2016, a month before X’s birth. He was not released until 17 August 2016. The period between 2016 and 2018 was a tumultuous one for the parties. The father engaged in violence and criminal behaviour and was addicted to illicit substances. It is difficult to imagine that he was a positive role model for X or that she developed a secure attachment to him. His final period of incarceration commenced on 1 March 2018 and he was released on 28 January 2019. Upon his release he moved to Town E which is a five hour drive from the mother’s residence.
The Single Expert observed that whilst the father was relatively absent for the first three years of X’s life, he has since early 2019 been a consistent and regular parental figure.
She also observes that the father’s paternal grandparents have been a constant in the father’s life and “in the past two years have been highly supportive of him and have assisted in facilitating X spending time with him”.[11] X has been well supported throughout her life by Ms H. Ms H and her husband provide practical assistance to the father with raising X. For example, when he has an early work shift one of them will stay overnight and in the morning wake X, dress and feed her and deliver her to pre-school. They will continue to play this support role for the father and X.
[11] Single Expert Report, paragraph 120.
The father’s children from a previous relationship, M and N are aged 10 and 8 years and also live in Town E. They appear to enjoy a close and positive relationship with X. The Single Expert also observed that the father benefits from the support of a broader community which extends to the mother of M and N, his work colleagues and the father’s group he is involved in.
As was observed by the Single Expert, prior to 2019 the parties experienced considerable difficulty facilitating X having a meaningful relationship with both of them. Their parenting was no doubt compromised by a tumultuous period characterised by drug use, criminal activity, poor relationship choices and family violence.
To the mother’s credit, even whilst the father was incarcerated for offences arising from family violence perpetrated by him on her, she allowed the father to communicate with X and to spend time with X after his release from jail.
Pleasingly in the past two years, the parties appear to have matured in their capacity to facilitate X’s relationship with the other parent. The father positively encourages X’s relationship with her mother and examples of this include ensuring X had a gift for her mother on her birthday and for Mother’s Day.
Even though the parties live five hours from each other, since June 2020 X has spent equal time with each parent. She will however start school in 2022 and the parties agree that X will need to primarily live in one household at this time.
The mother proposes that X live with her (and P) in Town Q. She will enrol her in Town Q Public School. She has obtained Department of Housing accommodation there but has also applied for housing in Town B (a 15 minute drive from her home town) and applied to transfer her housing to Town D.
The mother’s parents are both deceased. While she has a sister and brother in Town B, she concedes that the relationships are strained. She is close to another brother who is incarcerated. She has a few friends in Town B who she can rely upon for support. She also is supported by Ms U, a domestic violence counsellor. She does not work and is therefore able to devote herself to the care of X and her sister.
The father rents a house in Town E from Ms H and her husband Mr R. He intends to continue residing there with X. He has been employed on a full-time permanent basis for almost two years by Employer S and is training to work as a supervisor.
X has been attending T Street Pre-School in Town E five days each week when she is in the father’s care. She has also been enrolled in the transition program to Town E Public School. X’s two older brothers and step sister attend Town E Public School and the father would like X to join them there.
The father has been teaching X to swim at the local swimming pool and she is also enrolled at the dance studio in Town E and he proposes that this continue.
The father identifies as Aboriginal. He enrolled X in T Street Pre-School due to its specific program teaching about aboriginal culture, language and connection to country. The father deposes in his affidavit a desire to ensure that X is raised to share and enjoy her Aboriginal culture with him. The mother was a little more dismissive of X’s Aboriginality and the Court is not confident that she would encourage her cultural awareness.
The parties demonstrated attitudes to parenthood have evolved. For the early years of X’s life, their parenting was problematic and they came to the attention of DCJ and the police on numerous occasions.
Since orders were made for the care of X to be shared between them, their approaches have been quite different and ultimately are an important determinant to the Court’s decision as to with which parent X should live with.
Evidence was heard about the school preparations for X. The mother has not sent X to pre-school since May 2021. X has attended two out of the five school preparation days in Town Q.
In Town E, she attends pre-school five days a fortnight and has also attended school preparation. The father obtained a school transition report which indicated pleasing progress for X and confirmed her school readiness. It indicates she has made good friends in Town E and if she attends school there, she will transition to school with her pre-school cohort.
The school preparations put in place by the father in Town E were complimented by the Single Expert who felt that he had set X up well to progress to school because pre-school provides a structure to a day which then becomes a template for kindergarten. The transition to school will be more difficult for X in Town B. She does not have the same links to a cohort of friends there or an established structure for school attendance. The mother’s ability to transition into a regular daily arrangement which would involve having X dressed, fed and lunches packed and delivered to school on time is also untested.
Furthermore, the mother gave evidence that she would prefer to move away from the Town B area in the future. She had applied for a transfer to Town D. I am not prepared to criticise the mother for her decision. There are clear risks for her and the children should she remain living in Town B, and a move has the added advantage of making herself less accessible to Mr F. However, the plans were not well advanced and it does leave a question mark over her living arrangements and the possibility of X having to change schools in the future if she were to reside with her mother.
The mother’s proposed move also highlights the lack of support she enjoys within her community, especially when compared to the supports available to the father and X in Town E. As was observed by the Single Expert:
In circumstances such as the family where both parties have limited capacities, it is important to consider the community support which exists for a child. That includes strong family support who can scaffold the care provided by parents and provide positive role models, daycare, school and teacher support, input from sports coaches, contact with indigenous leaders and services available for indigenous children and willingness to engage consistently with monitoring bodies including DCJ.[12]
[12] Single Expert Report, paragraph 141.
CONCLUSIONS AND ORDERS
The parties and the ICL all sought the allocation of equal shared parental responsibility for X. An order to that effect was also recommended by the Single Expert.[13]
[13] Single Expert Report, paragraph 163.
An order that the parties have equal shared parental responsibility engages s 65DAA of the Act. Neither party nor the ICL contended X should live with the parties for equal time (s 65DAA(1)). The distance between their homes makes such an arrangement impracticable in the long-term and X must primarily live with one party.
X will live with the father.
The father was the parent who for the past two years has best demonstrated his ability to parent X appropriately and protect her from harm. When the Single Expert Report was released it was recommended that:
the parent with whom X lives be determined by the trajectory of the parties between now and when the matter is heard and their proposals at that time as well as their capacity to protect themselves from relationships punctuated by family violence, maintain stability including work continuity and healthy lifestyle, self-regulate, place X’s needs first, maintain sobriety and not relapse into drug use and refrain from association with criminal activity.[14]
[14] Single Expert Report, paragraph 164.
The father was the parent best able to demonstrate to the Court his commitment to this recommendation.
In summary, the considerations which militate in favour of X living with the father are:
(a)The father has in recent times demonstrated a greater capacity than the mother to ensure that X’s physical and intellectual needs are met. This was evidenced by her consistent attendance at pre-school in Town E and the progress she had made since coming into the father’s care, as evidenced by school transitioning report dated 19 November 2021.
(b)X’s residence with the father is stable and secure especially when compared to the mother’s future plans.
(c)In the event that the father relapses into drug use, experiences a mental health event or exposes X to aggressive or violent behaviour, I am satisfied that X and the father will be well supported within their community and appropriate steps will be taken to ensure that X is protected.
(d)The father will ensure that X learns about her aboriginal culture, language and that she is given the opportunity to develop a connection to country.
(e)The father is more likely than the mother to ensure that X is encouraged to enjoy a positive relationship with the other parent.
(f)The father displayed better insight into X’s needs.
(g)Living with the father provides X with more protection from harm than if she were to live with her mother.
It was uniformly considered that X should spend regular time with the mother (s 65DAA(2)) but that due to the distance between the parties, this could not happen as frequently during school term time. However, the parties were in agreement about the frequency of the spend time with arrangements and indeed, all other orders are made by consent.
The mother herself has had a difficult life and endured the trauma of familial separation. I appreciate that the mother will be bitterly disappointed by this outcome. She fought hard in this case to show X that she wanted her to remain in her full-time care. This outcome does not end her relationship with X. The Orders allow X to spend regular time with the mother and her sister P. I am confident their bond will remain strong.
I wish X the very best for the future and thank you all for taking the time to ensure that the Orders made by this Court best support her and keep her as healthy and safe as she can possibly be in the future.
I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 22 December 2021
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