FRENCH & FRENCH

[2017] FCCA 1288

FEDERAL CIRCUIT COURT OF AUSTRALIA

FRENCH & FRENCH [2017] FCCA 1288

Catchwords:
FAMILY LAW – Parenting – one child aged 4 – allegations of family violence committed by the father – allegations of excessive alcohol consumption and drug use by the mother – sibling with behavioural difficulties in mother’s household – shared care arrangements are contraindicated.

Legislation:

Family Law Act 1975 (Cth), Pt VII

Cases cited:

Goode & Goode [2006] FamCA 1346

Hall & Hall (1979) FLC 90–713

M v M (1988) 166 CLR 69

Marvel & Marvel (No.2) [2010] FamCAFC 101

Mazorski & Albright [2007] FamCA 520

MRR v GR [2010] HCA 4

SS & AH [2010] FamCAFC 13
U v U (2002) FLC 93-112

Applicant: MS FRENCH

Respondent: MR FRENCH

File Number: NCC 817 of 2017

Judgment of: Judge Middleton

Hearing date: 2 June 2017

Date of Last Submission: 2 June 2017

Delivered at: Newcastle

Delivered on: 29 June 2017

REPRESENTATION

Counsel for the Applicant: Ms Carty

Solicitors for the Applicant: Galloway Family Law

Counsel for the Respondent: N/A

Solicitors for the Respondent: Hannaway Lawyers

THE COURT ORDERS ON AN INTERIM BASIS THAT:

1. The parents have equal shared parental responsibility for the child X born (omitted) 2013 (“the child”).

2. The child shall live with the mother.

3. The child spend time with the father as agreed between the parents and failing agreement:

   (a)each alternate weekend from 5.00pm on Friday until 8:30am on Monday, commencing Friday, 7 July 2017 and each alternate week thereafter; and

   (b)in the other week from 8.00am Monday until 8.00am Tuesday, commencing Monday, 17 July 2017 and each alternate week thereafter.

4. For the purpose of changeover:

   (a)on a Friday the father shall collect the child from (omitted) Child Care and Education Centre;

   (b)on a Monday the father shall deliver the child to the mother or her nominee at the mother's residence;

   (c)on a Monday the mother shall deliver the child to the father or his nominee at the residence of the paternal grandmother;

   (d)on a Tuesday the father shall deliver the child to the mother or her nominee at the residence of the mother.

5. Each parent shall be and is hereby restrained from:

   (a)consuming any illicit substance;

   (b)consuming alcohol to an extent that he or she is unable legally to drive a motor vehicle at any time the child is in his or her care;

   (c)permitting the child to remain in the presence of any person under the age of 18 years, unless supervised by an adult;

   (d)videotaping or sound recording the child for the purpose of gathering evidence in these proceedings;

   (e)denigrating the other parent or any other member of the family in the presence of or within the hearing of the child;

   (f)permitting the child to remain in the presence or within the hearing of any other person denigrating the other parent or any member of their family.

6. Without admission the mother shall be and is hereby restrained from leaving X in the presence of A unless there is adult supervision at all times.

7. The parent who is caring for X shall ensure that X is able to speak by telephone with the other parent between 5.00pm and 6.00pm on any second consecutive day that X spends with the parent, and shall place a call to the other parent or encourage X to converse with the other parent.

8. The matter is adjourned to 9.30am on 7 December 2017 at Wauchope for directions hearing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 817 of 2017

MS FRENCH

Applicant

And

MR FRENCH

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter involves an interim hearing concerning parenting orders for a child, X born (omitted) 2013.

2. X has a half sibling, A born (omitted) 2008. A lives with the Applicant mother.

3. The mother Ms French (nee (omitted)), 33, commenced proceedings on 21 March 2017.

4. At the time the mother commenced proceedings the father had retained the child for a period of approximately three weeks.

5. The father, Mr French, 36, filed his response on 26 April 2017.

6. The matter came before me on 9 May 2017 and on that occasion the father agreed to return the child to the mother's care and the parties agreed to continue the shared care arrangement that had otherwise been in place.

7. On 9 May 2017 I ordered that the parties attend a Child Dispute Conference pursuant to Section 11F(1) and adjourned the matter for interim hearing on 2 June 2017.

8. The parties commenced their relationship in late 2012/early 2013, married on 18 September 2014 and separated on 8 March 2017.

Material relied upon

1. The mother relied upon:

   (a)her initiating application filed 21 March 2017;

   (b)her notice of risk filed 21 March 2017;

   (c)her affidavits filed 21 March 2017 and 31 May 2017;

   (d)the Child Dispute Conference Memorandum dated 9 May 2017.

2. The father relied upon:

   (a)his response filed 26 April 2017;

   (b)his notice of risk filed 26 April 2017;

   (c)his affidavits filed 26 April 2017 and 27 May 2017;

   (d)his thirty-one page written submissions.

Issues

1. The issues in my determination are as follows:

   (1)whether the shared care arrangement should continue;

   (2)whether X is at risk of harm in the mother's care due to:

   (a)the mother's alleged alcohol consumption;

   (b)the mother's alleged recreational drug use;

   (c)potential harm from the half sibling A.

   (3)whether the father poses a risk due to family violence or exposure to family violence.

The law

1. Guided by the objects and principles contained in Section 60B I must make orders that are in the best interests of the child. The child's best interests are my paramount concern (Section 60CA).

2. In determining what is in the child's best interests I must have regard to the matters set out in Section 60CC (2) and (3).

3. I am asked to make an order in relation to parental responsibility. Pursuant to Section 61DA(3) the presumption set out in Section 61DA(1) applies unless I consider that it would not be appropriate in the circumstances.

4. If I make an order for equal shared parental responsibility the provisions of Section 65DAA apply. The section is expressed in imperative terms.

5. In MRR v GR[1] the High Court said, with reference to Section 65DAA:

   “It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents… and the question whether it is reasonably practicable that the child spend equal time with each of them… It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order… If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”[2]

   [1] [2010] HCA 4.

   [2] MRR v GR [2010] HCA 4 [13].

6. In Goode & Goode[3] the Full Court set out the manner in which a Court might decide an interim proceeding at paragraph 82. I will follow that pathway.

   [3] [2006] FamCA 1346.

7. In Marvel & Marvel (No.2)[4], the Full Court said:

   “As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders.  Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted.”[5]

   [4] [2010] FamCAFC 101.

   [5]  Marvel & Marvel (No.2) [2010] FamCAFC 101 [120].

8. In SS & AH[6] the Full Court said:

   “Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”[7]

   [6] [2010] FamCAFC 13.

   [7]  SS & AH [2010] FamCAFC 13 [100].

Orders sought

1. The mother seeks orders in accordance with Exhibit 1 in these proceedings.

2. The father seeks orders as set out at page 27 of his written submissions.

The evidence

1. The mother sets out in her affidavit of 21 March 2017 her concerns regarding family violence alleged to have been committed by the Respondent father.

2. The mother sets out incidents involving the alleged physical violence perpetrated upon her son A by the Respondent father. The mother says that the father used excessive force in disciplining A and also used unlawful force in disciplining A, for example twisting A’s ear until it became bruised.

3. The mother sets out in her affidavit that A became increasingly scared of the Respondent and told his mother and his father that he was scared.

4. The mother sets out that the Respondent father on 6 March 2017 questioned A, who at the time was 8 years old, by recording the child whilst interviewing him.

5. The mother says she told the Respondent father to stop as it was making A very anxious and intimidated, however the Respondent father refused.

6. The mother makes further allegations of the father’s jealous and controlling behaviour. The mother says the father hacked her phone, installed tracking devices on the phone at various times and installed location apps on her phone.

7. The mother says that his monitoring of her became worse after she found out about his long-running affair with a work colleague in June 2015.

8. The mother provides evidence that in 2015 the father became physically aggressive with her causing a lounge, which she was laying on, to be upturned and landing on her. The mother says on that occasion she waited until the Respondent father went to bed and she then ran to her sister's house.

9. The mother alleges that the father would often yell at her, call her abusive names and that he would do this in the presence of X. The mother says she has witnesses who can support her allegations.

10. The mother raises a further concern that the Respondent father has been recording X when X is in his care.

11. At paragraph 29 of the Respondent father's affidavit filed 27 May 2017 he says:

    “X has recently been making comments about A and people dying. On 12 May 2017 I was playing with X and recording her interactions with me. It was my intention to obtain some video footage to show that she was very happy and comfortable with me. The conversation went as follows. I have the video and I would like to show the video at court on Friday, 29 May 2017.”

12. The father thereafter sets out the conversation he says he recorded between X and himself.

13. The Respondent father made allegations of the mother's alleged alcohol and drug abuse.

14. Accordingly the mother in her affidavit filed 31 May 2017 addresses those concerns. The mother admits to drinking alcohol with the father. She denies excessive alcohol use.

15. The mother and father both agree that they used cocaine. The father alleges the mother's use of cocaine is problematic, however denies that he has any problem with illicit drugs.

16. The mother again raised increasing behaviours concerning family violence in that she alleges the father placed a number of cameras in separate rooms within the house.

17. She claims that the Respondent father has contacted friends and associates and discussed not only these proceedings with them but also has made it known to them of his allegations about her.

18. The mother says that she received a letter from the University after completing a (qualifications omitted) course where an unknown person has made an allegation that there was indirect plagiarism in one specific project in the course. The mother is concerned that it is the Respondent father who is making those allegations.

19. The mother says that only the Respondent father has access to her academic work as he has retained textbooks, notes, computer records of the course work and has refused the mother's requests to collect those items since she left the home on 8 March 2017.

20. The mother also raises an allegation that the father has contacted local real estate agents and made allegations that the mother is a drug addict.

21. The mother annexed a certificate from Dr R. This certificate is evidence that tests were conducted including urine drug screen and liver function tests.

22. The tests, according to Dr R do not support allegations of drug use or alcohol abuse in the recent past. That certificate was dated 23 March 2017.

23. Annexure C to the affidavit of the mother dated 31 May 2017 is a further medical certificate dated 3 April 2017. Once again the test results did not support allegations of drug or alcohol abuse in the recent past. The certificate is under the hand of Dr H.

24. Annexure D is a further medical certificate from Dr G. The certificate relates to a liver function test. In the doctor’s opinion the test results “make it highly unlikely that she is a heavy drinker of alcohol as this result indicates low usage.”

25. Annexure E-2 of the mother's affidavit filed 31 May 2017 is a toxicology report from Ms H, Senior Forensic Scientist with the Government of South Australia. The hair follicle test results reveal that there were no drugs detected. The sample of hair analysed cover a period from 0 to 6 months prior to sampling.

26. The father alleges that the mother was drinking alcohol on a regular basis most nights each week. He says that this occurred from approximately December 2015 and steadily increased to the point where she was drinking “at least one bottle of wine each night, and sometimes two bottles of alcohol a night until she was paralytic.”

27. The father alleges the mother was using cocaine occasionally. The father alleges that the last time the mother used cocaine was 22 February 2017. The father says that the mother has “chosen alcohol and cocaine above her marriage and keeping the children safe.”

28. The father provides evidence that there has been a shared care parenting plan in place since 7 April 2017. That is not contested.

29. The father agrees that the mother stayed at home for the first 12 months of X’s life. Thereafter she returned to work part-time for 3 months and then returned to full-time work when X was approximately 15 months old. The father says that since the child was 15 months old the parents shared equally in the care of X.

30. It is the father's case that the child has two primary attachments.

31. The Respondent father raises concerns about A's behavioural difficulties. The father says that the child is aggressive and has been aggressive towards X. The father says he has assaulted her on at least a dozen occasions that he knows of.

32. He says he has seen the child A hit, kick and punch X. The father says that X will openly say that A hurts her.

33. The father holds strong concerns for X's welfare because he says the mother in the past has been unable to manage A effectively on her own and protect X.

34. The father also says that A acts out with sexual aggression.

35. The father relies upon a number of exhibits.

36. Exhibit 5 is a report from Dr M. The report indicates that A has shown behaviours that are “mainly oppositional and aggressive.”

37. Exhibit 4 is a report from Dr J. That report notes that both the Applicant and Respondent had reported escalating behavioural issues.

38. The issues included verbal and physical aggression, hyperactivity, inability to concentrate, defiant attitude, anxiety, difficulty socialising and frequent emotional outbursts involving screaming, kicking and throwing objects.

39. The doctor formed the view that the problems were adversely affecting A's academic performance and that A is primarily affected at school, but noted that his parents also note issues at home with attention span, following instructions, socialising, interrupting, and an inability to wait for his turn.

40. Dr J noted that A was receiving support at school and outside of school from an occupational therapist, a paediatrician and a clinical psychiatrist. Dr J prescribed Ritalin and referred A to Ms V for management of nocturnal enuresis.

41. Exhibit 3 is a further report from Dr J. The report is dated 28 April 2017 and notes the main event since Dr J last saw A was the separation of the Applicant mother and Respondent father. It is noted that the Respondent father was having no time with A.

42. Dr J prescribed a slight increase in the Ritalin so as to further assist A's behaviour at school. He also noted that A had started seeing the psychologist Ms T again after the separation. It was noted in the report that the significant problem was the “meltdowns at bedtime” that A was having.

43. Exhibit E to the father's affidavit filed 26 April 2017 is a letter from Dr F. That letter reports that the mother was concerned about A's behaviour and aggressiveness towards other children.

44. The mother reported that A was frequently emotionless and detached from his behaviour and how it might impact on others.

45. It is noted that although medication had been suggested at that time, that is 2 April 2015, both the mother and the Respondent father were reluctant to place A on medication.

46. Exhibit F to the father's affidavit is a letter dated 21 July 2015 from Dr F. Dr F lists the behaviours that were at that time reported as follows:

    (a)difficulty relating to other children – A was often aggressive and intimidating in order to control his peers and wanted to be the centre of attention;

    (b)cruelty – A hurt a dog deliberately and he found humour in others suffering. He became excited and laughed when his sister was hurt. It was noticed A could be sneaky in doing harmful things when he thought he was not being observed;

    (c)aggression - there was overt aggression at school. A kicked furniture and put his hands around a child's throat, punched and bit. The outburst was a protest at not getting what he wanted or as intimidation to coerce others to give into his demands;

    (d)demanding – A exhibited signs of being relentless and selfish in pursuit of whatever he wants;

    (e)no remorse – when confronted by authority A could express regret and he could outline alternative strategies and make undertakings. It was noted that whilst his sincerity was not in doubt and he was plausible, subsequent behaviour was unchanged;

    (f)fearfulness - both the Applicant mother and the Respondent father informed the doctor that A sees danger everywhere. It was noted that the problem behaviours occurred at home and at school and that A was usually very pleasant one-to-one.

47. It was the opinion of the doctor at that time that A was “sad and angry.” It was noted that whilst there was parental separation, separation between the Applicant mother and A's father, it could not account for the full extent of A’s symptoms. It was noted that A may have copied the use of intimidation to get his own way.

48. In terms of recommendations it was noted that the prognosis for children with callous unemotional traits, such as A, could be good when treated early. It was noted that Ritalin could be effective but immediate use was not recommended at that time.

49. Exhibit F of the father's affidavit is a report dated 30 March 2017 from Dr F. The report indicates that the mother was exacerbated with A, concerned about X’s safety and committed to the children's care.

50. The father sets out the allegations regarding the mother's alcohol and drug use from paragraph 63 through to paragraph 99.

51. In short the father alleges that the mother is out of control with her drug and alcohol abuse.

1. Curiously the father includes a paragraph that suggests the mother and her friend “Ms C” have kissed passionately on two occasions. I am unsure as to why the father would include that information in his affidavit other than to potentially embarrass the mother.

2. The father denies that he was able to flip a lounge onto the mother as alleged by the mother.

3. The father raises a concern about the mother's brother Mr B who he believes is a convicted rapist. No other evidence regarding Mr B is offered.

4. The father alleges that the mother's sister is a thief. No further evidence is offered in relation to this allegation.

5. The father makes an allegation that the mother deliberately caused the father of A to commit acts of family violence so that she could live with him in (omitted).

6. The Respondent alleges that any family violence was a direct response to the Applicant mother's provocation. He complains that her actions impacted on his relationship with A's father.

7. The father says that the mother did those things to A's father so as to prevent A's father from having a relationship with A and he now has concerns that the mother will do the same things to him to prevent him from having a meaningful relationship with A.

8. That evidence of the father is very concerning in my view.

9. The father denies any abuse of A and says that he did not twist A’s ear nor did he record A.

10. The father then alleges that the Applicant mother was attempting to set him up to obtain an Apprehended Violence Order as “she had done the same thing with Mr A” when the mother after separation stated that she wanted all communication to go through her solicitor.

11. The father denies hacking into the mother's Facebook or phone, and denies installing any apps on her phone.

12. The father denies any abuse of the mother.

13. The father includes pages and pages of photographs of he and the children in “happy poses.”

14. In the father's affidavit filed 27 May 2017 the father attempts to discredit the hair follicle test performed by the mother and attempts to prove the mother's alcohol abuse by showing numerous purchases of alcohol from various sellers from September 2016 until Christmas Eve 2016.

15. The father says that during the three month period referred to above 146 bottles of wine were purchased and that the mother consumed “most of them.”

Child Dispute Conference Memorandum

1. One of the most senior family consultants, Ms L, provided a memorandum to the court dated 9 May 2017.

2. Ms L sets out the risk factors as:

   (a)family violence;

   (b)drug and alcohol issues;

   (c)A’s behaviour;

   (d)Co-parenting relationship.

3. In relation to family violence Ms L sets out the mother's allegation and notes that the father denies those.

4. In relation to drug and alcohol issues, Ms L sets out the allegations of the father and notes that he is of the view that X is at risk in the mother's care.

5. She points out that the mother denies excessive alcohol use, admits to some alcohol use and had indicated that she had performed a liver function test. 

6. She notes that the mother initially refused to agree to any undertaking about drug and alcohol use as she did not believe it was an issue and felt it was part of a pattern of control by the father.

7. Ms L says that the mother told her that she signed the parenting plan of 7 April 2016 under duress because she felt she had no choice so that she could see X again having had no time for approximately three weeks. The mother was of the view that a shared care arrangement was not in X's interests at all.

8. Ms L provides evidence that both the mother and father acknowledged use of cocaine. The mother said it was on six occasions with the father and the father said that he used cocaine on four occasions and claimed the mother used on other occasions.

9. Both parents admitted cannabis use in their teens and the father admitted to using ecstasy a couple of times. The father also admitted to regular alcohol use but claimed he drank one glass a night whereas the mother drank one and sometimes two bottles of white wine a night.

10. The mother denied that level of use.

11. With respect to A, the father alleged that A posed a risk to X. The mother adamantly denied that and states that A does have behavioural issues, most properly now felt to be ADD, that A is regularly seen by a paediatrician and is now medicated with Ritalin.

12. The mother informed Ms L that A had told her that the father used to hurt him by twisting his ears and smacking him.

13. The mother also alleged the father would emotionally abuse A by telling him when he misbehaved he would be sent to a boarding school and would not see his parents.

14. Ms L provided evidence that currently there was a poor co-parenting relationship with minimal communication.

15. It was the father's view that he attempted to communicate with the mother but that she would not respond.

16. The mother informed Ms L that she is upset at the father's allegations and sees his post separation behaviour as a further attempt to control her, for example by him retaining X in his care for three weeks and not allowing her to see X initially until she agreed not to drink or use illicit drugs and then until she signed the co-parenting plan.

17. It was the view of Ms L that the co-parenting relationship is unlikely to improve in the short term as emotions are running high and the parent’s separation is very recent.

18. In terms of issues for the child Ms L was of the opinion that X was at a developmental stage where she required a parenting arrangement that prioritises her relationship with her primary carer and that she spends regular and frequent time with the other parent.

19. Ms L pointed out that the mother had twelve months off work then worked part-time for three months. Ms L further pointed out that the father has a job that requires him to be away six nights a month from October to December 2016 and that during that time he was working three nights a week in the (omitted) area.

20. Based upon that history, which is agreed by both parties, Ms L was of the view that the care arrangements would seem to indicate that the mother is “likely to have been the primary carer.”

21. Ms L pointed out that it was of concern to her that the father withheld X for three weeks and could not identify any negative impacts on X due to this.

22. The mother informed Ms L that since returning to the mother's care, albeit on a shared care arrangement, X had become “unbelievably clingy” and upset when the mother leaves the room.

23. Ms L was of the view that those behaviours indicate that the mother is X’s closest attachment figure and the three weeks of separation from her caused her significant distress.

24. Ms L was of the view that X would have a close and loving relationship with her father and the father indicated that at present he had noticed no real change in X’s care.

25. It was Ms L’s view that it is also likely that the current shared care arrangement is not in X's best interests, particularly given her current clingy and upset behaviour. Ms L continued:

    “X needs a stable and secure situation so she can settle back into a familiar and predictable routine without too many changeovers.”

26. Ms L noted that the mother had reduced her working arrangements so that she worked four days a week with one of those days as working from home.

27. Ms L was of the view that as the mother had reduced her working hours that would hopefully mean a smaller number of care arrangements being required for X.

28. Ms L noted that the father's proposal involves care by him, the mother, the paternal grandmother, maternal grandmother and day care.

Assessment of the evidence

1. As is often the case there is much in dispute between these parents.

2. In those circumstances, particularly at interim hearings, independent evidence assists the court greatly in assessing the probabilities of competing claims and the likely impact on children. I have referred to the independent evidence above.

3. Submissions on behalf of the father were to the extent that I should not rely upon the memorandum of the family consultant.

4. Solicitor for the Respondent father quoted Hall & Hall (1979) FLC 90–713. Submissions were to the effect that there “is no magic in a family report.” It was submitted, arguably, that proposition applies with greater force at an interim hearing where evidence is usually untested.

5. Of course, the court said in Hall & Hall[8] that reports are meant to be, and usually are, valuable material to assist the Court in informing ultimate conclusions.

   [8] (1979) FLC 90-713.

6. The evidence of Ms L is untested. However, much of her report and the recommendations based therein are based on agreed facts. Particularly having regard to the care arrangements for X. It is in relation to the care arrangements moving forward that I am most interested in.

7. It was submitted that Ms L placed too much emphasis on the mother's assertion that the child was clingy.

8. Ms L was careful to point out the reasons why she believed X was primarily attached to the mother.

9. It was as a result of her very young age, and the fact that she had been predominantly cared for by the mother in her early years and notwithstanding that the child is “cared for” by both parents now, as she has been since she was approximately 15 months old, the father was required to work away from home during that time and the care in the father’s home involves care provided by many others.

10. It was in those circumstances, all of which were agreed circumstances, that Ms L formed the view that the “care arrangements would seem to indicate that the mother is likely to have been the primary carer.”

11. In those circumstances I am of the view that I can place some reliance on that independent evidence.

Section 60CC(2)(a)

1. The evidence establishes that X would benefit from having a meaningful relationship with both of her parents. X has been cared for by both of her parents and others for a considerable period of time.

2. In Mazorski & Albright,[9] after setting out the definition of ‘meaningful’ and ‘meaning’ Brown J said:

   “What these definitions convey is that ‘meaningful’ when used in the context of ‘meaningful relationships’, is synonymous with ‘significant’ which, in turn, is generally used as a synonym for ‘important’ or ‘of consequence’… a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one.”[10]

   [9] [2007] FamCA 520.

   [10] Mazorski & Albright [2007] FamCA 520 [26].

3. It follows therefore in my view that the child can have a meaningful relationship with both parents notwithstanding that the child does not spend equal time with each parent.

Section 60CC(2)(b)

1. The father sets out the risks in the mother's home as follows:

   (a)alcohol consumption;

   (b)recreational drug use; and

   (c)risk of A's behaviours.

2. Despite other risks being referred to in the fathers affidavit material, submissions by the father pointed out the above issues only.

The mother’s alcohol consumption

1. The fathers reporting of the mother's alcohol use, if indeed it were to that extent, would surely result in negative findings in liver function tests and urinalysis tests. The simple fact is that the independent evidence relating to the mother’s alcohol consumption does not support the father’s concerns.

Recreational drug use

1. Once again the independent evidence does not support the father’s concerns regarding the mother's drug use. In fact it seems disingenuous that the father raises the mother’s cocaine use in circumstances where he admits to cocaine use, marijuana use and the use of ecstasy.

2. In short the independent evidence does not support an allegation that the mother places the child at risk due to her drug use.

A

1. It is submitted on behalf of the Respondent father that A has behaviours descriptive of those of a psychopath. There is absolutely no evidence to be found in any of the independent reports relied on by the father to support that submission.

2. It is submitted on behalf of the father that the mother has not addressed the risk posed by A. Once again that submission is not supported at all by any of the reports relied upon by the father.

3. Indeed all of the reports relied upon by the father prove that both he and the mother have been working with relevant qualified professionals in addressing the risk of A's behaviours.

4. The independent evidence supports a finding that A's behaviours have been challenging and at times alarming. They further support a finding that both the mother and father have appropriately addressed those behaviours by seeking professional help.

5. The father relies heavily on a report from 2015 and makes no real reference to the subsequent findings in 2017. The totality of the reports reveal that A's behaviours were initially managed with the assistance of an occupational therapist, a counsellor, a psychologist, a psychiatrist, and urologist.

6. Over a period of time the management of A's behaviours have included the use of medication such that now A is medicated with Ritalin.

7. The reports show that A's behaviours have become settled with the use of Ritalin. Indeed, since separation the prescription of Ritalin has increased due to a spike in A's behaviours.

8. The father alleges that X has been harmed by A. The mother denies this. There is no independent evidence of any harm to X.

9. The father relies on the case of M v M (1988) 166 CLR 69 and says that the two-part test therein has been made out. I do not agree.

10. In any event the father submits that the risks can be ameliorated if the mother agrees to not consume alcohol or cocaine, continues to live with her parents and does not leave A unsupervised with X.

11. The mother consents to an order that both parties refrain from the consumption of alcohol and illicit drugs whilst caring for X and in the period twelve hours before and that she will ensure that the child is supervised by a responsible adult at all times and not left alone in the company of A.

12. The mother does not agree to a requirement that she must live with her parents.

13. I can see no reason why the mother should live with her parents.

Family violence

1. The mother alleges family violence perpetrated by the father. The father denies those allegations. Until such time as the evidence surrounding the allegations can be properly weighed and tested it is unsafe for me to make findings with regards to family violence.

2. I have no doubt that X will not be a victim of physical violence in the father’s care.

3. Having regard to those findings, I am not satisfied that the child is in need of protection in either home.

Relevant section 60CC(3) matters

Section 60CC(3)(b)

1. The father says that the child is primarily attached to both he and the mother. The mother says that she is the child's primary attachment.

2. The family consultant, mostly based upon the uncontested facts, is of the view that the child is most likely to have a primary attachment to the mother.

3. In weighing the probabilities of the competing claims of the parties, I am of the view that it is more probable that the child is primarily attached to the mother based upon the evidence currently before me.

4. The evidence also establishes that the child would have strong connections with both maternal and paternal external family members.

Section 60CC(3)(d)

1. It is the father's case that the present care arrangements remain in place unless I am satisfied that there is an unacceptable risk of harm in the mother's care.

2. It is the mother's case that the child should live primarily with her and spend time with the father.

3. If I make no change to the child's current arrangements, it is the view of the very senior family consultant that it is “likely that the current shared care arrangement is not in X’s best interests.” It is the family consultant's view that X needs a stable and secure situation.

4. The evidence, and indeed the way in which the matter presented before me, clearly indicates that the co-parenting relationship between these parents is very fractured at this time.

5. The allegations raised by the father are serious and he persists with those allegations, trying to find fault in scientific investigations and attempting to prove his assertions by providing evidence of transactions from bottle shops.

6. It is not surprising that the mother finds this persistence and these allegations confronting and upsetting. It is not surprising in those circumstances that there is currently minimal communication between the parents and currently a poor co-parenting relationship.

7. Despite anything else, shared care arrangements are contraindicated in circumstances where there is dysfunction in the co-parenting relationship and very poor communication between parents. Shared care arrangements require flexibility, communication, and a consistent approach to parenting by both parents. Shared parenting arrangements require trust, acceptance of each other's appropriate care and a common focus on the best interests of the child.

8. The evidence as it presented before me was not indicative of a finding that these parents can appropriately, in the best interests of their child, maintain a shared care arrangement.

9. In those circumstances there must be a change to this child's care arrangements.

10. There will no doubt initially be some unsettling for the child as a result of this change. That disadvantage must be weighed against the advantage of having a settled routine in one of the parent’s homes.

Section 60CC(3)(e)

1. Both parents live in the (omitted) area. Both parents will have no difficulty in terms of expense or practical difficulty in spending time with the child.

Section 60CC(3)(f)

1. The father retained the child for three weeks. The father can find no disadvantageous effect in the child as a result of this. This raises concerns about the father’s capacity to meet the emotional needs of the child.

2. It seems to me that the father used the child as a tool to ensure that the mother entered into a parenting arrangement that suited him. This is most inappropriate.

3. The mother too, at times, has created distance between the child and the father. This shows that at times she cannot properly meet the emotional needs of the child.

4. Both parents need to refrain from focusing on each other's faults and begin to focus on the child's needs. The harm caused by ongoing conflict to this child has the potential to cause disastrous effects for her psychological well-being. Both parents need to be mindful of this fact.

5. Nothing turns in relation to the other subparagraphs of Section 60CC(3). There can be at this stage no findings as to family violence, however as I previously stated, I am certain that the child is not at risk to exposure to physical violence in the father’s home. I am also convinced that the child is not at risk of physical violence in the mother's home.

Parental responsibility

1. Section 61DA(3) provides that the presumption applies unless I consider it would not be appropriate in the circumstances for the presumption to be applied.

2. Whilst these parents have a dysfunctional relationship at this time, there is no evidence currently before me that could satisfy me that the child's welfare is being put at risk as a result of that dysfunction.

3. That is, there is nothing before me that could indicate that X is missing out on appropriate medical care, day care or supervisory care in either parent’s home.

4. For those reasons the presumption is to be applied.

Section 65DAA

1. I have already set out why I am of the view that a shared care arrangement is not in the best interests of the child. It is currently contraindicated due to the parent’s behaviours in this matter.

2. It may be that in the fullness of time should the co-parenting relationship improve that an equal time arrangement might be in the best interests of X. Only time can tell. It is now up to the parents to put their child's best interests first.

3. It is the mother's proposal that the child spend time with the father for three nights a fortnight. That does not amount to substantial or significant time.

4. I am of the view that there should be substantial and significant time for X as it is in her best interests based upon her care provided by these parties throughout her life.

1. I am not bound by either party's proposal (U v U (2002) FLC 93-112). I intend to make an order for substantial and significant time as I am of the view that it is both in the child's best interests and reasonably practicable based upon the evidence that I have referred to previously.

2. For the reasons set out above, I am satisfied that the orders I make are in the best interests of the child.

I certify that the preceding one-hundred and eighty (180) paragraphs are a true copy of the reasons for judgment of Judge Middleton

Date:  29 June 2017