FISHER & POULIN

[2015] FCCA 1925

FEDERAL CIRCUIT COURT OF AUSTRALIA

FISHER & POULIN [2015] FCCA 1925

Catchwords:
FAMILY LAW – Parenting arrangements for young girl – where mother and father agree on proposed orders but Independent Children’s Lawyer opposes arrangement for changeover.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 65AA, 60CC,60B(1), 60B(2), 60B(3), 61DA(1), 61DA(2), 61DA(4), 65DAA(1), 65DAA(2), 65DAA(3), 61DAA, 60CC(2)(a), 60CC (3)

Collu & Rinaldo [2010] FamCAFC 53
Tait & Densmore [2007] Fam CA 1383
Champness & Hanson [2009] FamCAFC 96
Mazorski & Allbright [2007] FamCA 520
Godfrey & Sanders [2007] FamCA 102
MRR & GR [2010] HCA 4

Applicant: MS FISHER

Respondent: MR POULIN

File Number: MLC 1836 of 2013

Judgment of: Judge Jones

Hearing dates: 18 & 19 May 2015

Date of Last Submission: 19 May 2015

Delivered at: Dandenong

Delivered on: 30 July 2015

REPRESENTATION

Solicitors for the Applicant: Self Represented

Solicitors for the Respondent: Self Represented

Counsel for the Independent Children's Lawyer: Mr Tesoriero

Solicitors for the Independent Children's Lawyer: T J Mulvany & Co

ORDERS

1. That all previous parenting orders are discharged.

2. That the mother and the father have equal shared parental responsibility for [X], born [omitted] 2007 (“the child”).

3. That the child live with the father.

4. That the child spend time and communicate with the mother as follows:

   (a)during school term, every third weekend commencing 1 August 2015, after school on Friday to 5.00pm Sunday for three weekends;

   (b)during school term, commencing 26 September 2015, each alternate weekend from after school on Friday to 5.00pm Sunday;

   (c)for half the short term holidays by agreement and in default of agreement the first half in 2015; commencing in the Term 3 holidays in 2015 and each alternate year thereafter and the second half in 2016 and each alternate year thereafter;

   (d)for two weeks of the long summer holidays by agreement and in default of agreement the second and third weeks of the holidays. Noting that the normal school term arrangements shall be suspended during the school holiday period; and

   (e)at any other times as may be agreed between the parties in writing.

5. That in addition to 4 above, the child spend time with the mother as follows:

   (a)on the child’s birthday, if it falls during the father’s time with the child at times to be agreed, or in default of agreements:

   (i)if the child’s birthday falls on a school day, from after school until 7.30pm that day;

   (ii)if the child’s birthday falls on a non-school day, from 10.00am until 3.00pm;

   (b)on the mother’s birthday, if it falls during the father’s time with the child, at times to be agreed, or in default of agreement:

   (i)if the mother’s birthday falls on a school day, from after school until 7.30pm that day;

   (ii)if the mother’s birthday falls on a non-school day, from 10.00am until 3.00pm;

   (c)each Mother’s Day at times to be agreed or, in default of agreement;

   (i)from 3.00pm the Saturday before Mother’s Day until 5.00pm Mother’s Day;

   (d)Each Christmas at times to be agreed or, in default of agreement, as follows:

   (i)from 4.00pm Christmas Day until 4.00pm Boxing Day in each odd-numbered year;

   (ii)from 4.00pm Christmas Eve until 4.00pm Christmas Day in each even-numbered year;

   Noting that the child’s usual time with the mother is suspended over the Christmas period.

   (e)each Easter at times to be agreed or, in default of agreement, as follows:

   (i)from 3.00pm Good Friday until 3.00pm Easter Saturday in each even-numbered year;

   (ii)from 3.00pm Easter Saturday until 3.00pm Easter Sunday in each odd-numbered year; and

   (f)at any other times as agreed between the parties in writing.

6. That if the child’s birthday, the father’s birthday or Father’s Day falls on a day that the child is spending time with the mother, the mother’s time will be suspended and the child will spend time with the father as follows:

   (a)on the child’s birthday at times to be agreed or, in default of agreement, from 10.00am until 3.00pm;

   (b)on the father’s birthday at times to be agreed or, in default of agreement, from 10.00am until 3.00pm; and

   (c)each Father’s Day at times to be agreed or, in default of agreement, from 3.00pm the Saturday before Father’s Day.

7. That the mother, communicate with the child (on the child’s mobile phone) at 6.30pm each Wednesday. The father shall ensure that the child is in a private area for the purposes of the phone call.

8. That all communication regarding issues relating to the child shall be directly between the mother and father only.

9. That changeover shall occur as follows:

   (a)on a school day, by the mother collecting the child after school from the child’s school; and

   (b)on a non-school day, at the BP Service Station, [omitted].

10. That the parties are restrained from allowing their partners or any other agent attending at changeover.

11. In the event that during the course of these orders through no fault of the father, the mother without reasonable explanation and independent corroboration of the same, fails on three consecutive occasions to spend time with the child (including term, holiday and celebratory occasions), the father shall be entitled, on not less than seven days’ notice to the mother to suspend all spend time provisions pursuant to these orders until the mother provides the father with the following:

    (a)results of a supervised drug screen occurring no earlier than 21 days prior to her communication showing no illicit substances consumed; and

    (b)specific details of the spend time resumption pursuant to these orders.

12. That each parent shall, as soon as practicable, inform the other of any illness or injury sustained by the child whilst in their care (including, but not limited to, medical, dental and optical issues) and further, provide any particulars of any treatment received by the child together with the name and address of the treatment provider and/or location at which the child is a patient and shall also inform the other party of any necessary follow up treatment. Such parent shall also ensure that such treatment provider is specifically authorised to discuss the child’s illness, injury, treatment, and like matters with the other parent and subject to the directions of any relevant health professional of the child at the time that the child is a patient in hospital each parent shall be able to visit the child so being treated in hospital.

13. That both parties keep the other party advised of their mobile telephone number and both parties are to notify the other within 24 hours of such change.

14. That both parents be permitted to liaise with the child’s school to obtain information about the child’s progress and obtain from the school copies of the child’s reports, newsletters and other documents ordinarily provided to parents (at their own expense) and that these Orders shall act as an authority for same.

15. That both parents be permitted to attend any school or extra-curricular activity to which parents are ordinarily invited, including but not limited to parent teacher interviews, school concerts, sporting events and the like.

16. That if either parent intends to take the child on a holiday interstate or overseas, then that parent shall provide the other parent with written notice of the intended travel at least 4 weeks prior to the departure date and also a full itinerary including dates of travel, a copy of tickets for travel and contact details during the holiday.

17. That the parties, their servants and agents be and are hereby restrained from:

    (a)abusing, insulting, belittling, rebuking or otherwise denigrating each other and their families;

    (b)discussing these proceedings; and

    (c)exposing the child to any conflict between the parties and their families to or in the presence or hearing of the child and permitting any other person to do so.

18. That the parties be restrained by injunction from ingesting, consuming or using, or otherwise being under the influence of any illegal drug or substance 48 hours before and during time spent with the child.

19. That both parties, their servants and agents (with such servants and agents to include but not limited to their spouse and/or partners) be and hereby restrained from physically disciplining the child.

20. That each party shall inform the other of any criminal charges (including traffic infringements where the probable outcome will be loss of licence) relating to any person, including the parties themselves, staying at the household of the parents whether on a permanent or temporary basis including the date and location of any court hearings.

21. That each party shall ensure that the child has her own bed to sleep in when she stays at the parent’s home.

22. The Independent Children’s Lawyer shall read to the father the contents of these orders.

23. The order for the appointment of the Independent Children’s Lawyer be discharged, upon them giving effect to order 22 above.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 1836 of 2013

MS FISHER

Applicant

And

MR POULIN

Respondent

REASONS FOR JUDGMENT

Introduction 

1. This decision concerns the future living arrangements for [X] born [omitted] 2007 ([X]). Her parents are Ms Fisher (the mother) and Mr Poulin (the father).

2. To the parents’ credit, during the course of the two-day hearing, they had reached agreement on all aspects of a proposed parenting order. In essence, both parents agreed that they should have equal shared parental responsibility for [X], that [X] live with the father and that the mother spend time with her daughter as follows:

   a)during the school term, every third weekend on three occasions from after school to 5.00pm Sunday and subsequently, each alternate weekend from after school on Friday to 5.00pm Sunday;

   b)for half of school holidays; and

   c)changeover, other than at [X]’s school, should occur at BP Service Station, [omitted].

3. The parties have agreed to the usual orders relating to special occasions, non-denigration, the provision of information from [X]’s school and medical health issues. There are also specific orders which are appropriate in the circumstances of this case and to which I will come to shortly.

4. The Independent Children’s Lawyer (ICL), however, whilst not opposing the time spend proposals agreed between the mother and father continues to press for an alternative order in relation to changeover. For reasons which will become apparent in this decision, I have decided that the proposals agreed to by the parents are ones which are in the best interests of [X].

Background and History of Proceedings

1. The mother was born on [omitted] 1987. She is engaged in home duties and lives with her partner, Mr L, with whom she has three children, [A] (four years old), [B] (one year old) and [C] (around six weeks old). They live in [T]. The mother said that she has a three-bedroom house. [X] will have her own bedroom although she will ultimately be sharing a bedroom with [B].

2. The father was born on [omitted] 1983 and is employed as a [omitted]. He lives with his wife Ms P in [M]. [X] has lived with her father since in or around June 2011.

3. The parties live some distance from each other which involves, it seems, at least 2 ½ hours travel by car.

4. The parties commenced living together in early 2004. [Y] was born on [omitted] 2006. [X] was born on [omitted] 2007. The parties separated on a final basis in November 2009. [Y] remained living with the father and sadly passed away on [date omitted] 2012. [X] lived with her mother.

5. In mid-2011 a protection application was issued by the Department of Human Services, as it was then known (DHS) with respect to [X] and [A]. [X] and [A] were initially placed in the care of the maternal grandfather. In June 2011, [X] was placed in the care of her father. By late 2012 [A] was returned to the care of his parents.

6. Although subpoenas were issued to the DHS by the ICL, none of the documents produced were tendered by the ICL to the Court, consequently I rely on the record prepared by Family Consultant,

   
   

   Ms C in her Family Report, dated 2 November 2014, regarding her inspection of the subpoenaed documents from DHS. Ms C reported:

   “[57] There were 5 notifications to DHS in relation to [X]. Intakes in 2009, August 2010 and April 2011 resulted in case closed. The May 2011 notification resulted a Protective Intervention when both [X] and [A] were removed to the care of family. It was following this order that [X] was put in her father’s care. There was a further notification on 31 January 2103 of harsh discipline by the Poulin’s towards [X]. It was assessed as harsh discipline rather than ongoing physical abuse.

   [58] [A] was ordered into the care of DHS and had been in the care of the maternal grandparents since 12 months of age. There were concerns Ms Fisher was homeless and that both she and the father Mr L were allegedly using illicit substances. They were both also required to be psychiatrically assessed. They engaged in counselling with St Lukes. [A] was found to be meeting developmental milestones. In September 2012 a reunification plan was developed for [A] to be returned on a graduated plan to his parents care.
   [59] Observations in DHS notes (some by the Queen Elizabeth Centre (“QEC”) staff) of Ms Fisher and [X] were that Ms Fisher was verbally abusive to [X] and seemed to have little or no comprehension of how damaging that could be.  However there were no reports of physical abuse.”

1. The mother has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Anxiety and Depression. In relation to the diagnosis of ADHD she is under the care of her paediatrician, Dr W. She was initially prescribed Dexamphetamine and later prescribed Concertin, which the mother believes has assisted her in managing her behaviour, including her anger. She said that, with the medication, she found that rather than respond to stressful situations with angry and impulsive behaviour, she is more relaxed and does not get as worked up as she did in the past. She is under the care of Dr D for her Anxiety and Depression, which she says she has been suffering from since 15 years of age.

2. The mother filed an Initiating Application on 14 March 2013 in which she sought orders that [X] live with the father and spend time with her on a fortnightly basis. Interim orders were made on 2 December 2013 which provided that the mother spend supervised time with [X] at a contact centre. It appears that the mother spent limited time with [X] at the contact centre. However, she and the father had a private arrangement where the mother would stay at his house on the weekend every two or three weeks and spend time with [X].

3. Interim orders were made on 23 June 2014 which provided that the mother spend overnight time with [X], every third weekend and on special occasions. Between June 2014 and November 2014, the mother spent limited time with [X]. Following an incident on Christmas Day 2014 at changeover, which largely appears to have been as a result of verbal interaction between the mother’s partner and the father’s wife, the mother’s time with [X] ceased as a consequence of the father deciding that [X] was not safe in the mother’s care.

4. At the date of hearing, the mother still had not spent time with [X].

5. The hearing commenced with a somewhat shaky start. The mother initially attended the Melbourne Registry rather than the Dandenong Registry of this Court. When the hearing commenced at the Dandenong Registry and upon becoming aware that the father’s wife had been making comments to the mother which were designed to provoke and antagonise her, I determined that, in the administration of justice, Ms P (who is not a party to these proceedings) should remove herself from the Court room and from the premises of the Court for the remainder of the hearing. I made an order to that effect.

6. During the course of the proceedings, Counsel for the ICL made reference to what he said was an unfortunate altercation outside the Court between the mother’s partner and either the father or Ms P. However, as there was no sworn affidavit regarding this alleged incident outside the Court room, I am not prepared to give any weight to the submissions of the ICL on this point. Suffice to say, when the matter continued the next day (without the presence of either Ms P or the mother’s partner), the proceedings went smoothly. The rancour that was apparent the preceding day dissipated and the mother and father engaged in a courteous and civil way towards each other and were able to adopt a mature and considered approach, with the resultant reaching of agreement on parenting orders for [X].

7. The father relied on his affidavits filed 18 November 2013, 18 November 2014 and 1 May 2015 together with his Case Outline and Summary filed 11 May 2015. The mother relied on her affidavits filed 21 June 2013, 29 August 2013 and 2 September 2013. The mother and father were cross-examined. Affidavits were not filed by either of the parents’ partners. Ms C was not called for cross-examination.

8. The ICL filed an affidavit of Mr W, Consultant Psychiatrist on 15 May 2015. Mr W was not called for cross-examination. In his psychiatric report dated 14 October 2014 of the father, he stated he was unable to make a diagnosis of any psychiatric disorders. In his psychiatric report of the mother, Mr W stated he was unable to be certain about the mother’s psychiatric diagnosis in the past.

9. The ICL relied on its Outline of Case document filed 13 May 2015 and the Family Report dated 6 November 2014.

Issues to consider

1. Having considered the evidence before me (including the Family Report), I am satisfied that the following issues are relevant in determining the future parenting arrangements for [X]:

   a)the capacity of the mother to care for [X] on a consistent basis;

   b)the toxicity between the father and mother’s households;

   c)the father’s capacity to actively engage in the care of [X];

   d)[X]’s school attendance ; and

   e)the physical discipline of [X] in the father’s household.

The mother’s capacity to care consistently

1. There is no doubt that the mother was [X]’s primary attachment figure for the first four years of her life and lived with her following separation in November 2009 until around June 2011. After June 2011, however, she has only spent time with [X] intermittently. Clearly, when the DHS intervened in 2011, there were serious concerns with her capacity to care for [X], as well as [A].

2. The mother says that, up until the intervention of the DHS, she did smoke cannabis but she ceased thereafter. She conceded that she had not complied with requests from the ICL for random drug screens and that she had no excuse for that. However, she stated that when the DHS were involved she was required to undergo regular drug screens and by the time DHS’s involvement ceased she had been providing clean regular drug screens for 12 months. She also reported that DHS had not been involved with her family for about 12 months.

3. A concern with the mother’s capacity to care for [X] is her ability to manage her behaviour, including yelling and outbursts which seem to be symptomatic of her diagnosis of ADHD. Ms C observed in her Family Report that (at [20]):

   “[20] Regardless of the source of her behaviour, it is noted that the effect on [X] would most likely have been fear when she was a young child and had witnessed her mother’s behaviour which was erratic and frightening.  Ms Fisher still does not seem to have insight that her un-medicated behaviour most likely affected [X] in a negative way. She believes that [X] is similar to herself in so far as she gets frightened when people yell at her, and that her response is to be oppositional. This comment was quite insightful both about her own responses when others express either aggression or perhaps even mild disapproval of her, but significantly about [X]’s likely response to yelling and physical abuse. Ms Fisher alleged that Ms P yells at [X] and that she believes [X]’s behaviour is exacerbated by the kind of discipline she and
   Mr Poulin give.”    

1. Ms C also reported, however, that the mother “appeared to be open and reflective about her past behaviour. She was not inclined to blame Mr Poulin for the past relationship issues. She believed there had been mutual violence and described him as aggravating. She was cooperative and was oriented to person place and time. She appeared to have no observable thought disorder” (at [12]). Ms C also reported (at [13]):

   “[13] Ms Fisher impressed as being able to orient to [X]’s best interests and to reorient to her after discussing Mr Poulin and Ms P. In that sense she appeared to be the more focussed on the child’s best interest, of the parents.”     

1. The mother candidly conceded in cross examination that she does struggle in maintaining consistency of time with [X]. She stated that she believed she could cope with support and had reported to Ms C that she had received counselling whilst her family was involved with the DHS. The mother also said that the maternal grandfather, who lives in [T], supports her. He assists with the care of [A] and lends her his car when hers is not in service.

2. The mother’s evidence was that the difficulties she had had in maintaining continuity in her care often arose because of the fact that the father had handed over all responsibility of the care for [X] to

   
   

   Ms P. The mother said she experienced Ms P as manipulative and provocative. It was her view that Ms P was determined to exclude her from [X]’s life and to assume the role completely as [X]’s mother. As will be seen below, there is some truth to the mother’s belief about the somewhat destructive role Ms P has thus far played in the father’s household. It seems to me that a critical part of facilitating the mother’s more consistent role in [X]’s life will be to ensure that, to the extent possible, the father assumes an active engagement in [X]’s life and the parents communicate with each other and not through their partners. The mother is rightly concerned that [X] refers to Ms P as “Mum” and that this behaviour has not been discouraged by the father.

3. The mother does present as larger-than-life. I observed that she tends to commence each sentence somewhat loudly and then the volume level moderates. I have no doubt that she experienced the proceedings as stressful but demonstrated, at least in the Court room, that she was able to manage reasonably her responses and behaviour. She stated at one point that, although she had recently reduced the level of her Concertin, she was considering increasing the dosage to assist her to manage the more recent stresses and strains. I formed the view that this revealed a person who was very much aware of her behaviour and its impact and the importance of managing it through medication.

4. The mother explained in cross examination that she believed with regular alternate weekend time, she would be better placed to consistently maintain spending time with [X]. She said that she managed better with a regular structure rather than what she saw as irregular time every third weekend. She was cross examined in some detail about how she would manage the costs of travelling from her residence to collect [X] and return her. The mother is dependent on Centrelink benefits and the cost in petrol will be significant.

5. The mother gave evidence that she would be better able to manage an alternate weekend contact than contact every third weekend as she would be in a better position to ensure a portion of her Centrelink benefits, which are paid each alternate week, is available for the travel costs.  It is clear that the ICL was somewhat sceptical of the logic in the mother’s evidence that she would be in a better position to manage the costs of travel in alternate weekends than every third weekend. I am, however, prepared to accept the mother’s explanation regarding the manner in which she manages her finances.

6. Ms C’s observation of the mother and [X] was of a warm and positive engagement. Ms C observed that when it was time for her mother to leave, [X] seemed disappointed and appeared that she would have liked to spend more time with her mother Ms C did report that, at the commencement of the observation, [X] appeared to be quite unnatural at first with a fixed smile and lacking spontaneity. However, Ms C stated this was no different from her behaviour with all adults at interview including her father and his wife (at [47 to [48]).

7. In her evaluation, Ms C stated that (at [70]):

   “…. Ms Fisher appeared to be the more child focused of the parents. She seemed able to consider what would work for [X] in adjusting to spending time and then perhaps in being more able to live with her mother. She appeared to be more open and admitted that she had needed to get a life together in the past. She seemed convinced that she had probably been receiving the wrong medication and that since the change in medication she was much more able to regulate her behaviour and emotions.”

8. Ms C reported that the mother’s presentation during observations and interview was in conflict with the early reports by the DHS and staff at QEC regarding her aggressive behaviour. Ms C stated that “she appeared to have a better understanding of what [X] needs in terms of understanding and time to calm down before talking about behaviour which might need to be changed” (at [77]). Ms C opined at [78] that:

   “….. The question is rather whether Ms Fisher’s previous tendency to call [X] names when frustrated or angry remains. She was able to describe a different approach, partially as a result of own self understanding and partially as a result of more effective medication. It also appears DHS now regards her as a good enough parent to have the two younger children in her care with Mr L.”

Relationship between father and mother’s household

1. There is no doubt that the relationship between the father and mother has been difficult for some time and that this can, in my view, be attributed largely to the conduct of the parties’ partners. There is no doubt there have been episodes of anger and unpleasant conflict, in front of [X], with the partners involved.

2. Mr L was not interviewed for the purpose of the preparation of the Family Report, however, Ms P was. The observations and evaluation by Ms C of Ms P, are illuminating. Ms C commenced her report in relation to Ms P as follows (at [34]):

   “[34] …. Ms P impressed as having difficulty remaining focused on [X]’s best interests preferring to make comparisons between her opinion about Ms Fisher’s parenting and her opinion about her own parenting. She appeared to have an overestimated view of her role and while she overtly agreed that Ms Fisher is [X]’s mother, she made statements indicating that she effectively regarded herself as [X]’s mother….”

3. At [39] Ms C stated:

   “[39] Ms P then elaborated that it was painful to her that she probably could not have children and that “I always wanted to be a young Mum”. She then advised that “[X] calls me Mum”….. “she told me she wanted to call me Mum. I am the one who has cared for her from the time she came to live with us.” Ms P claimed that she is aware
   Ms Fisher is [X]’s mother and seemed unaware there might be an issue with [X] calling her Mum and not her biological mother. She seemed unaware that she might have a role to play in encouraging [X] to maintain her connection with her mother by calling her Mum and not Ms P. [X]’s development seemed so delayed that it appeared unlikely she would have voluntarily wanted to call Ms P Mum.”

1. With respect of her observation of Ms P with [X], Ms C stated (at [53]):

   “[53] Ms P asked on several occasions things like “Do you know how to make that?”, “Do you have that there?” She also laughed frequently in a manner which seemed perjorative and about [X], rather shared humour with [X]. [X] appeared to be disconcerted when Ms P asked her a question. She seemed confused and then withdrew from the interaction to do something else. It appeared that Ms P’s questions had a demanding rather than cooperative tone and that [X]’s response was to freeze. This added some weight to Ms Fisher’s allegation that [X] is “scared of [Ms P].” [X] appeared to become somewhat anxious as the time progressed with the Poulin’s and to display less confidence than she had when playing with her mother.” 

2. In light of the behaviour of Ms P at Court and observations of Ms C in her Family Report, I am prepared to accept that Ms P has engaged in conduct characterised by denigration and provocation towards the mother.  The father agreed in cross-examination, that his wife had occasionally engaged in this behaviour. I am also prepared to accept that the involvement of Mr L at changeovers is more likely than not to have made any tense situation or conflict worse. I have taken account of this factor and will include in any orders I make, restraints on the partners of the parents attending at changeover and a direction that communication in relation to [X] only occurs directly between the mother and father.

The father’s capacity to actively engage in the care of [X]

1. Based on her observations of the father and Ms P with [X], Ms C stated that it was unlikely [X] had experienced playing with either of the adults. In her evaluation Ms C stated (at [71]):

   “Mr Poulin seemed to lack warmth in his relationship with [X]. There was little indication that he would play with her and even when he seemed to be engaging in play with [X], Ms P overrode him and dominated the talk.”

   At [75] Ms C stated:

   “Ms P seemed overly invested in being acknowledged as [X]’s mother despite her assertion she is not….”

2. During cross examination, the father became confused as to which person was being referred to when the ICL said “the mother”. I found it necessary to clarify with the father that any reference to

   
   “the mother”

   was a reference to Ms Fisher and that if there was a reference to his wife she would be referred to as Ms P. This confusion by the father is concerning as it suggests that he may well (whether passively or actively) contribute to Ms P’s view of herself as [X]’s mother. The father conceded that he had delegated responsibility to his wife in relation to educational responsibilities for [X]. Partly this is because he is not literate and relies on Ms P to relay the information in the documents produced by the school and partly, this is because he works full-time. However, it is clearly unsatisfactory that he has completely abrogated this role.

3. The father’s evidence is that in recent times he has commenced to play a more active role in [X]’s life. He gave evidence that the Good Shepherd had been involved with him for a period of 12 months during which they had advised him to become more involved in parenting. He says that he now takes and collect’s [X] to and from school. He goes away on weekends with [X] without his wife, [X] helps him cook dinner at night and he has, recently, organised counselling for [X] through the school. The father is to be commended for this. He specifically disagreed with the view of Ms P expressed to Ms C that [X] had a disability and should be in a special school.

4. The father said that when he communicates with the mother by SMS text, as he cannot read or write very well, he requests Ms P to communicate with the mother. This may not be a problem where there is a neutral or respectful relationship between Ms P and the mother, however, in circumstances where there is not, this clearly is an inappropriate way of communication between the father and mother. Because I have formed the view that there is a high level of conflict between Ms P and the mother which clearly impacts on the relationship of the mother with her daughter, I will make orders that the communication regarding [X] only occur as between father and mother. If it is necessary, this communication be by telephone. I am satisfied that the mother and father are able to engage in appropriate neutral communication over the telephone.

[X]’s school attendance

1. Both the mother and Ms C raised concerns about [X]’s significant absences from her school. Ms C reported that the advice from [X]’s school in 2013 was that there were 69 absences noted in the first half of 2013, mostly without explanation (at [32]).

2. [X] commenced at a new school, [E] Primary School in 2015. I am satisfied from the father’s evidence that, now that he takes [X] to and collects her from school, her attendance is appropriately regular.

Physical discipline of [X] in the father’s household

1. This issue arises as a consequence of the statements made by [X] during the course of the interview with Ms C. Ms C recorded her interview with [X] in relation to discipline in both parents household as follows (at [44] and [45]):

   “[44] When asked what happens if she does something naughty at her mother’s place she said “if she doesn’t even yell at me….she wouldn’t talk to me for an hour.” This somewhat reflected what her mother (Ms Fisher) said about telling [X] that if she cannot speak properly then she needs to go away and calm down and then when she can talk, they would discuss what happened. 

   [45] [X]’s response to what happens when she is in trouble at her father’s place was “Yells, Mum…sometimes.” She calls [Ms P] “Mum”. When asked how she feels when that happens she said “really sad and scared.” She then offered voluntarily and in regressed baby talk, “Smack- no belts. Smacking hard and bot and forehead, smacky, smacky everywhere.” She then said “[Mr Poulin] get up. That’s my Dad. Smacked by Dad in his hand. Cried a lot.” [X] seemed to be relating that she gets smacked often and in many places on her body and that Mr Poulin is told by [Ms P] to smack her too. It was concerning that she had mentioned spontaneously the use of belts and it appeared she most likely was coached to deny the use of belts.”

2. The father denies that he or Ms P discipline [X] by smacking her or that they have used the belt on her. He stated that they disciplined [X] if she was naughty by taking her phone or sending her to the bedroom. He said in cross examination, “if you smack her, she will laugh at you.” This statement rather suggests that she is smacked but smacking is ineffectual. In any event, I am satisfied that from the disclosures made by [X] to Ms C during the interview, which were made voluntarily and apparently with a level of anxiety by the child, that the father and Ms P have utilised physical discipline of [X], which amounts to an abuse of the child.

APPLICABLE LAW

1. The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s.60B of the Act.

3. In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (s.60CA and s.65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests. In Collu & Rinaldo [2010] FamCAFC 53, the Full Court held that a Court’s task, informed by the objects expressed in s.60B(1) and the principles underlying those objects in s.60B(2) (and where relevant s.60B(3)), is to undertake consideration of and make findings about each of the “best interests” considerations set out in s.60CC having regard to the parties’ respective proposals.

4. Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply if there are reasonable grounds to believe that a parent of the child (or person that lives with the parent or child) has engaged in abuse of the child or another child who was a member of the parent’s family or family violence: s.61DA(2). Moreover, the presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child: S.61DA(4). It is to be noted that where the presumption does not apply, in circumstances where the Court has reasonable ground to suspect abuse of the child or family violence has occurred, the Court nonetheless retains the discretion to order equal shared parental responsibility.

5. All parties agree that the mother and father have equal shared parental responsibility for [X]. Whilst there is evidence of emotional abuse by the mother as a consequence of her outbursts and yelling, prior to the child being removed from her care in  2011, and evidence that the father and Ms P have engaged in physical abuse by smacking, I nevertheless am satisfied that the presumption of equal shared parental responsibility should apply. This is because I am confident that the mother is committed to continuing with appropriate medication to assist her in managing her ADHD and that the father and Ms P will comply with an order that they be restrained from engaging in physical discipline of [X].

6. Where a parenting order provides that the parents are to have equal shared parental responsibility for the child, the Court must first consider whether it is in the best interest of the child and is reasonably practicable for the child to spend equal time with both parents and, if so, whether an order for equal time should be made: s.65DAA(1). Where the Court decides that it should not make an order for each parent to spend equal time with the child, it must then consider whether it is in the best interest of the child and is reasonably practicable for the child to spend substantial and significant time with each parent and, if so, whether an order for substantial and significant time should be made: s.65DAA(2). The meaning of substantial and significant time is set out in s.65DAA(3).

7. Before considering s.61DA and the legal pathway mandated where the presumption of equal shared parental responsibility applies, it is appropriate to consider s.60CC. Section 60CC(1) provides that in determining what is in the best interests of a child the Court must consider the matters set out in subsections (2) and (3).

   
   

   Section 60CC(2)(a) specifies what are described as the primary considerations and s.60CC(3) sets out what are described as additional considerations. I have had regard to all of the matters under sections 60 CC(2) and (3). I will refer only to those which are relevant in this matter.

S.60CC – Best Interest of the Children

Primary considerations

Section 60CC(2)(a) – benefit to the child of having a meaningful relationship with both of the child’s parents

1. The concept of “meaningful” was described by Cronin J in Tait & Densmore [2007] FamCA 1383:

   “To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship. The responsibilities of parents are to give the children a chance to be part of a family albeit in two households where they can have a feeling of being wanted and appreciated.”

2. The enquiry in relation to s.60CC(2)(a) is a prospective one requiring the Court to :

   “…evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to B into the future.”: G & C [2006] FamCA 994 at [72]

3. Whilst the Court must consider the best interests of the child of having a meaningful relationship with each parent, this benefit must be weighed against all other factors, in determining orders which have the children’s best interests as the paramount consideration: Champness & Hanson [2009] FamCAFC 96 at [103].

1. There is no doubt that the father has been the primary care giver for [X] since mid-2011. I am not confident, however, that it could be said that over the last four years he has established a meaningful relationship with his daughter in a qualitative sense. It seems to me that he has permitted his wife to take over the active engagement in his daughter’s life. The father says that Good Shepherd has been involved with the family and that as a consequence he has taken a more active part in his daughter’s upbringing, including spending quality time with her alone.

2. The father denied that he and his wife had engaged in physical discipline of [X]. However, having read the record of [X]’s statements to the Family Consultant (who was not called to be cross examined), I am satisfied that he and particularly his wife have indeed regularly smacked [X] with their hands and on occasion used a belt. This is a serious safety concern and the father and Ms P need to immediately desist from such abusive behaviour. I have given weight to this factor in determining that there should be included in any order a restraint on the parents and/or agents using physical discipline towards [X].

3. I am, however, satisfied that there is of course a benefit to [X] in having a meaningful relationship with her father, provided he continues to engage actively in the care of [X] and assists and ensures his wife desists from physical discipline.

4. I am satisfied that there is a benefit to [X] in having a meaningful relationship with her mother provided the mother ensures that she is consistently involved in her daughter’s life. Without such consistency, her daughter can only experience anxiety and sadness.

5. Having considered the extracts from the Family Report in relation to Ms P, I am concerned that, unless the father takes an active role in engaging both with his daughter and facilitating his daughter’s relationship with her mother, his household (by which I mean the influence of his wife) may very well not encourage a meaningful relationship between the mother and [X]. Whilst the adjective “meaningful” is seen by the Courts[1] as more about the quality of time the parent spends with their child, in these circumstances, the parents agreed proposal which is that after three occasions, [X] spend alternate weekends with her mother is more likely to promote the meaningful relationship than [X] spending every third weekend with her mother (as was proposed by the ICL).

Section 60CC(2)(b) – the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence

[1]Mazorski & Allbright [2007] FamCA 520 at [26]; Godfrey & Sanders [2007] FamCA 102 at [36].

1. I have earlier dealt with the safety concerns. They are on the mother’s side, a continuation of her intermittent involvement in [X]’s life and an inability to manage her ADHD. From the father’s side, they are the use of physical discipline by him and his partner of [X].

2. As I have indicated, I am satisfied that the parents will ensure that these risks are avoided.

Additional considerations

Section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. [X] is, of course, too young to express a view which the Court would give weight to. I note that the observations of Ms C that the time spent by the mother with [X] was positive and warm. I am satisfied, therefore, that the parties’ proposal for the mother to spend regular time with [X] is appropriate and likely in accordance with her wishes.

Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

1. [X] has had a fractured relationship with her mother, as a consequence of two factors. First, the incapacity of the mother in the period leading up to mid-2011, to provide [X] with a safe and secure home environment. The intervention of DHS in removing [X] from her care speaks for itself. Although the child [A] has been returned to the mother’s care following the mother taking appropriate steps to manage her behaviour, control her substance abuse and provide suitable accommodation, her relationship with [X] remained intermittent. Whilst I do not accept that all of the blame is to be placed on the role of Ms P for the mother’s intermittent role in [X]’s life after June 2011, I am satisfied that the mother’s ability to maintain contact on a regular basis with her daughter, was made difficult by Ms P’s role in the family dynamics.

2. [X] has had a consistent relationship with her father (and Ms P since they have lived together). It seems, however, that until recently, the relationship between [X] and the father has been somewhat remote. As I have said earlier, I am however satisfied that he is now taking appropriate and active steps to be an active carer and positive influence in her life.

3. The ICL, understandably, given the evidence regarding the delegation of the parenting of [X] to his wife, has proposed orders restraining the father from doing so. Having heard the father’s evidence about his more active role and in circumstances where I propose that communication regarding [X] only be between the mother and father, I am satisfied such an order is unnecessary.

4. The agreed proposed spend time arrangements between the mother and [X] as agreed between the mother and father, will, I am satisfied, promote the relationship of mother and daughter.

Section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about long term issues in relation to the child and to spend time with the child and to communicate with the child

1. There is little evidence before the Court about the mother’s participation in making decisions about long term issues affecting [X]. It appears, however, that the decision to change [X]’s school in 2015 was made by the father without discussion with the mother.

2. The ICL is, correctly concerned, about the possibility that [X] would be moved to a special school on the basis of the expressed views of Ms P during the interview for the preparation of the Family Report.

3. The ICL proposes an order that provides that “[X] remain at [E] Primary School unless otherwise agreed by the parties or subject to orders.” The father gave evidence that he disagreed with the view of Ms P that [X] had a disability and needed to attend a special school. I have had regard to the father’s evidence that he has now become more actively involved in the care of [X]. Consequently, I am satisfied it is not necessary to include an order in the terms proposed by the ICL.

Section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain their child

1. It is evident from the fact that [X] has lived with her father since June 2011 and, in circumstances where the mother relies on Centrelink benefits, that it is the father who has discharged the obligation to financially maintain [X]. I note here that the mother has readily conceded that the father has been the provider for the family.

Section 60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including grandparent or other relative of the child), with whom he or she has been living

1. This is not a relevant factor having regard to the parties’ proposals. I do note however that with regular alternate weekend time with her mother, [X] will be in a position to spend time with and develop a relationship with her half – siblings [A], [B] and [C].

Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. This is a significant issue in this case in circumstances where the parents live a significant distance from each other in Victoria. Under the parents proposal, [X] will be collected from her school each alternate Friday and on the Sunday, the mother and father will meet halfway at a service station, for changeover at the end of the mother’s spend time.

2. The ICL’s proposal is that changeover is effected at a contact centre in a suburb near the father’s residence. The ICL submitted that this proposal is necessary because of the behaviour of the parents outside Court during the proceedings. As I have earlier stated, in the absence of a sworn affidavit, I am not prepared to give weight to the evidence given from the bar table. Moreover, once the partners of the mother and father were absent from the proceedings, the mother and father proved to be quite capable of engaging with each other in a civil and courteous manner. Consequently, I am not satisfied that it is necessary, in [X]’s best interests, for changeover to take place at a contact centre.

3. Of course any conflict engaged in, in front of [X] is not in her best interests. However, I am satisfied that with an order restraining the partners of the parents from being present at changeover, [X] will not be exposed to conflict. There is a further issue with the ICL’s proposal. This is that the father gave evidence that he would not have time after work to collect [X] from after school and then transport her to the contact centre before the contact centre’s closing time.

4. The provision for [X] to be collected from school during school term both removes the risk of conflict and provides a practical arrangement from the father’s point of view.

5. The next issue is the inevitable cost involved to the mother, in particular, from collecting [X] from school and delivering her halfway on the Sunday of each alternate weekend. The fact the father will incur additional costs from collecting [X] each alternate Sunday at a place that is halfway between the mother and his residence is also a consideration given he bears the financial responsibility for [X]. As I have earlier stated, I accept the mother’s evidence that notwithstanding her meagre financial circumstances, she will be in a position to manage the expense of the transport.

6. Another issue raised by the ICL is the additional travelling time that [X] will be engaged in each alternate weekend, this being around five hours in total. I accept that this is reasonably significant travel for a young girl. However, on the Friday she will be at her mother’s house by around 5.00pm and on Sunday will be back at her father’s house by around 6.00pm. I am satisfied she will have sufficient time to catch up and rest both at her mother’s place and at her father’s house in time for school the next day.

Section 60CC(3)(f) – the capacity of each of the child‘s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

1. I have dealt with the capacity of the parents to attend to [X]’s intellectual and emotional needs earlier. Both parents have demonstrated a lack of capacity in different ways. However, I am satisfied that they are able to and will improve their capacity to provide for [X]’s emotional and intellectual needs.

Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant

1. The matters raised under this subsection have earlier been dealt with.

2. Section 60CC(3)(h) is not relevant to these proceedings

Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. The matters raised under this subsection have earlier been dealt with

Section 60CC(3)(j) – any family violence involving the child or
a member of the child’s family; and Section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the Court in, or in proceedings for, the order, and any other relevant matter

1. There has been a history of family violence during the relationship and incidents of abuse in front of the child post separation. Further, both parties have been respondents to intervention orders. I am satisfied that these are a matter of history and are not matters I need to give weight to in determining parenting orders for [X], save to say the desirability of removing the parents’ partners from changeover and communication between the parties.

Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

1. The inclusion of this matter reflects the legislature’s view that the continuation and institution of further litigation is not generally in the best interests of the child. Of course, over time, the child and the parents’ circumstances alter and parenting orders cannot be expected to anticipate each shift that occurs in the child’s development and parents’ circumstances. Accepting this, it is important to craft orders that, to the extent possible, will avoid the institution of further proceedings.

2. In the circumstances of this case, an event which may give rise to the institution of further proceedings is the failure or incapacity of the mother to spend time with [X] in accordance with the orders. The ICL has proposed orders which provide that, where the mother (without reasonable explanation and independent corroboration of the explanation), fails on three occasions to spend time with [X] the father shall be entitled, with the provision of seven days notice to the mother, to suspend all spend time provisions until the mother provides the father with results of supervised drug screens and details of the resumption of spend time. The mother understands the basis for this proposal and has agreed to them. The ICL has further proposed orders that each parent shall inform each other of any criminal charges relating to any person residing at the household of each party. Both parents have agreed to this proposed order. I am satisfied that these two proposed orders are of assistance in framing parenting orders that are least likely to lead to further institution of proceedings and will include in my orders.

Section 60CC(3)(m) -any other fact or circumstance that the Court thinks is relevant.

1. There are no other facts or circumstances that are relevant to this matter.

S.61DA andS.65DAA

1. Both parties agree that the orders should provide for equal shared parental responsibility. I am satisfied that this presumption should apply.

2. I am now required to consider firstly whether under whether it is in the best interest of the child and is reasonably practicable for the child to spend equal time with both parents and, if so, whether an order for equal time should be made: s.65DAA(1).

3. The matters to be taken into account in determining what is “reasonably practicable” and the interplay of best interests and reasonably practicable was considered by the High Court in MRR & GR[2] where the Court said:

   “Each of subsections 1(b) and 2(d) of section 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Subsection (5) provides in that respect that the Court must have regard to certain matters such as how far apart the parents live from each other, the capacity to implement the arrangement in question and such other matters as the Court considers relevant in determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parent.”

   [2] [2010] HCA 4.

4. The High Court went on to say that s.65DAA(1) is expressed in imperative terms and obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each parent or significant substantial time and whether it is reasonably practicable for either order to be made and it is only where both questions are answered in the affirmative that consideration may be given, under paragraph (a), to the making of an order for equal time or significant and substantial time.

5. Given the length of time that the mother has not seen [X] and the desirability of her establishing over the medium term that she can maintain a stable and consistent routine, I find that an equal time arrangement would not presently be in the interests of [X]. Further, given the distance between the parties’ residence and the fact that [X] attends [E] Primary School in [suburb omitted], it would not be reasonably practicable for [X] to spend equal time with each parent.

6. Having found that an equal time arrangement should not be made, I am now required to consider whether it is in the best interest of the child and is reasonably practicable for the child to spend substantial and significant time with each parent and, if so, whether an order for substantial and significant time should be made: s.65DAA(2). Substantial and significant time is defined in s.65DAA(3) as:

   (3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

   (a) the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii) days that do not fall on weekends or holidays; and

   (b) the time the child spends with the parent allows the parent to be involved in:

   (i) the child's daily routine; and

   (ii) occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent

7. I am satisfied that it would be in [X]’s interests, after a period of time spending alternate weekends with her mother to spend substantial and significant time with the mother. It would be in [X]’s best interests for the mother to be able to engage in a small part in her daily routine. However, given the distance between the parents residence a substantial and significant time arrangement would not be reasonably practicable.

8. I am satisfied that the orders which provide for [X] to spend alternate weekends with her mother and half school holidays are in [X]’s best interests and reasonably practicable and I will so order.

Conclusion

1. For the reasons set out in this judgment make the orders set out above.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date: 30 July 2015