FSR and FPM - [2002] FMCAfam 342

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FSR & FPM

[2002] FMCAfam 342

FAMILY LAW – Children – interim residence – application of principles in Cowling (1998) FamCA 19 – non-compliance with orders for drug testing – discharge of previous interim parenting orders – meaning of “environment in which child is well settled”.

Applicant:

FSR

Respondent:

FPM

File No:

(P)MLM 3198 of 2002

Delivered on:

1 October 2002

Delivered at:

Melbourne

Hearing Date:

24 & 25 September 2002

Judgment of:

Walters FM

REPRESENTATION

Counsel for the Applicant:

Mr Strum

Solicitors for the Applicant:

Taussig Cherrie & Associates

Counsel for the Respondent:

Mr Epstein

Solicitors for the Respondent:

Samantha Ward Pty

Counsel for the Child Representative:

Ms Dellidis

Solicitors for the Child Representative:

Hale & Wakeling

ORDERS

The matter be adjourned to 7 November 2002 at 9.30 a.m. (for mention only).
There otherwise be orders, in terms of the Minute of Orders designed to give effect to the ex tempore Judgment delivered this day (“the Minute”).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

(P)MLM 3198 of 2002

FSR

Applicant

And

FPM

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

The Reasons that I am about to deliver are being delivered on an ex tempore basis some days after the completion of the hearing which took place before me on 24 September 2002. I apologise to the parties for my inability to reduce the Reasons to writing prior to the present time. That is due to my absence from this State between 24 September and yesterday. But I have had the opportunity, as I indicated to counsel, to re-read the material that was before the Court at the time of the argument. That material is now fresh in my mind.
The application before the Court was initially the application of the husband (which is undated but apparently presented to Court on or about 12 September 2002), in which he seeks orders altering the then existing arrangement for the care of the child of the relationship, E, born 24 August 1998. E is aged just four years. That application was amended by the husband by a document filed on 24 September 2002.

I will not repeat the orders sought by the husband in the initial application or in the amended application, but I incorporate those orders in these Reasons.
The difference between the original application and the amended application is the inclusion of orders relating to the location and recovery of E subsequent to events which are set out by the husband in the second affidavit sworn by him in support of his applications.
The material relied upon by the husband in support of his applications are: his affidavit sworn on 10 September 2002, his affidavit sworn on 23 September 2002, and the affidavits of two witnesses — being C (sworn on 9 September 2002) and A (sworn on 9 September 2002). For her part, the wife filed a response to the husband’s initial application on 24 September 2002. The only order sought by the wife was that the husband’s application be dismissed. In support of that short document, the wife swore an affidavit on 23 September 2002.
It became clear during the course of the hearing that the second affidavit of the husband and the affidavit of the wife had been prepared at a time when the deponents were not aware of the existence of the other party’s affidavit sworn on the same day. Therefore, the parties do not directly address the issues raised in each other’s affidavits. The situation is, however, that the wife had in her possession — on

23 September 2002, when she swore her affidavit — the material filed by the husband in support of his initial application, including the affidavits of the two witnesses.
During the course of the hearing which took place on 24 and 25 September, and unusually on an interim application of this nature, the oral evidence of Dr Dennis Shum was presented to the Court. Because of events which are of little relevance at this point in time,

I determined that it was appropriate that the Court should call Dr Dennis Shum and allow the parties to cross-examine him. Accordingly, counsel for each of the parties was given the opportunity to cross‑examine Dr Shum when his evidence was provided to the Court.
A rough and possibly incomplete history of the proceedings is contained in the early paragraphs of the affidavit of the husband filed 12 September 2002. That history reflects that in February 2002 the husband had commenced proceedings seeking property and parenting orders. On 12 March 2002 certain orders were made by consent to the effect, amongst other things, that until further order E was to reside with the wife and that the husband was to have contact with her each Wednesday from 5.00 p.m. until the commencement of kindergarten on the next morning, and in addition, each Sunday from 9.00 a.m. to 5.00 p.m.
In early June 2002, the husband filed an application seeking, inter alia, an order that E reside with him on an interim basis. According to the husband’s affidavit sworn on 12 September 2002, he had said in affidavits in support of the June application that he had concerns regarding the wife’s continuing drug use and the fact that she was caring for E at her place of employment — which was a workshop in what is described as an industrial area in North Geelong.
The application filed by the husband in early June 2002 came on for hearing before me on 17 and 18 June 2002. I made certain comments to both counsel during the course of that hearing. A transcript of the hearing on both days has been provided to the Court by counsel for the husband. It is fair to say that I was somewhat critical of the husband for what I perceived to be an attempt on his part to manipulate a situation in which E had remained in his care for a period of some weeks. The husband had endeavoured to argue through his counsel that a status quo had been established — which status quo should continue until the matter could be dealt with at a contested hearing and on a final basis.
As a result — partially, I think, of certain comments that I made — the husband sought and was granted leave to withdraw his application as it related to interim residence. But the husband maintained his prayer for orders restraining the wife from taking E to her place of employment and from consuming drugs, and requiring that the wife partake in a supervised drug testing program. Those orders were opposed by the wife. After argument and reconsideration by the wife on 18 June 2002

I made certain orders. One of those orders was to the following effect, and I quote paragraph 5(a) of the orders:
That until further order, the wife not consume by any means or otherwise be under the influence of any drug, save and except for any legal medication prescribed by a registered medical practitioner and taken in accordance with such prescription.
I emphasis those words “taken in accordance with such prescription”. In addition to that order — which was, as I have indicated, made by consent — certain other orders were made not by consent. Those orders include the following, and I incorporate in my Judgment the terms of paragraph 5(b) of the orders that were made on 18 June 2002 — that is, the order relating to supervised urine testing by an appropriately qualified pathology laboratory.
In the husband’s affidavit filed on 12 September 2002, he deals with concerns that he has regarding drug testing procedures, and — in the paragraphs commencing at paragraph 7 — traces through the events that took place from 19 June onwards. On 19 June the husband’s solicitors sought to be advised once the wife had attended for testing on 1 July 2002. As events unfolded, and as they are set out in the affidavit of the husband, it is readily apparent that the wife did not comply fully with the terms of the orders that were regarding the supervised drug testing.
It may well be the case that the wife was ill at the end of June or immediately prior to 1 July. But, in my view, the wife has provided no adequate explanation as to why it took her so long — that is, until 9 July 2002 — to undertake the testing that the orders required her to undertake. More importantly, there has been no explanation provided to the Court at all in relation to the late testing on 9 August 2002.
The affidavits filed by the parties — given that they are affidavits filed in interim proceedings — do not necessarily deal with all the issues that may be relevant in the proceedings. That is the nature of affidavit material for proceedings such as those now before the Court. An example, it seems to me, is the fact that the husband’s affidavit makes no mention of the incident referred to in the wife’s affidavit as occurring on E’s birthday, 24 August 2002. True it is that counsel for the husband advised the Court during the course of the hearing that the husband joins issue (in effect) with the matters contained in the wife’s affidavit, but it is clear to me that some incident occurred on that day. It is not to the credit of the husband that he simply ignored that incident in the otherwise rather comprehensive affidavit material that he placed before the Court.
Of concern, as well, when one re-reads the material is the ongoing contact between these parties. I commented in relation to the application that I dealt with in mid-June 2002 that the husband has the capacity to manipulate a given situation. In particular, he has the capacity to manipulate a situation where E is concerned. But, having made those remarks, it is fair to say that many of the omissions on the wife’s part are extraordinary. It would appear on the basis of certain of the evidence before the Court that, not only has the wife omitted reference to certain events, but she may also have endeavoured to mislead the Court about at least one other incident. I shall make reference to that matter a little later.
In the wife’s affidavit material, she does not condescend to inform the Court of the fact that contact was apparently denied from or about 11 September 2002 right up to the time when this matter came on for hearing before me — save for one occasion only (which is referred to in the husband’s second affidavit and which involved a visit by the husband to the home formerly occupied by the wife and an offer by the wife to allow the husband to have contact with E for a period of approximately one hour in the backyard of the house). I note that that proposal was clearly contrary to the terms of the contact orders to which the wife had previously agreed.
The wife also made no mention of problems that had arisen in her relationship with R. That, in my view, was an important omission. As well, the wife seems to be confused about certain important issues.

A small example of that confusion is contained in paragraph 2.12 of the wife’s affidavit. She deposes in that paragraph to her belief that no incidents occurred on 1 July 2002. The wife says that 1 July 2002 was a normal school day and she could not see why the children were off school on that occasion. It would appear, however, that Monday, 1 July 2002 was in fact the first Monday of the school holiday period, and that R’s children had spent an overnight contact period with the wife and R on the previous evening. That the wife could have been so confused about the events of that particular weekend is a cause for concern as far as the Court is concerned.
In her affidavit, and as part of her explanation for her failure to attend for the urine analysis on 1 July 2002, the wife asserts that she attended a general practitioner on 30 June 2002 with stomach problems. Attached to the wife’s affidavit is a medical report dated 30 June 2002 — purportedly prepared by a doctor. The report simply reads:
This is to certify that (the wife) and E attended here today for medical problems.
No particularisation of those problems appears from that report. The wife also attached to her affidavit a pathology request form. Contained within that request, under the heading “Clinical Notes”, are words that are almost incomprehensible — but the words “query food poisoning and fever” can be read. It appears that a faeces test was requested to determine the cause of the problems for which the wife purportedly attended the medical practitioner.
The wife has not produced to the Court the results of the pathology test that her GP suggested that she undergo. The medical report itself does not state what the nature of the medical problems might be, or any diagnosis or prognosis. In any event, there is no explanation of any nature for the wife’s failure to undergo the test on 1 August 2002 on time and in accordance with the orders.
The presence of amphetamines in the tests undertaken by the wife is clearly a matter of concern. During the course of the hearing in June 2002, the Court was advised that the tests may well reveal the presence of cannabinoids — given that the wife was self-medicating using cannabis to alleviate certain medical symptoms that she asserted she was then experiencing. All parties anticipated the presence of cannabinoids in the first test. Such a result would not have surprised anyone. But at no time during the previous hearing, and in none of the material filed on behalf of the wife for the previous proceedings (so I am informed, and as was conceded by counsel for the wife), did the wife make mention of her requiring or otherwise ingesting medication that might result in a positive test for amphetamines.
The evidence of Dr Shum is that he first saw the wife on 10 July 2002 and that he prescribed dexamphetamines for her on that day. It was abundantly clear from the evidence before the Court that if amphetamines were in the wife’s system on 9 July 2002, then they could not have been there as a result of prescribed medication and certainly not as a result of medication prescribed by Dr Shum. Notwithstanding that fact, the wife refers to the presence of amphetamines in her system in certain paragraphs of her affidavit. In paragraph 2.17 the wife says:
I say that it is clear on the information given to me by Dr Shum and Dr Ward that the positive results of amphetamines is solely due to those that have been prescribed for me. I deny that at any stage during the course of cohabitation I used amphetamines. I agree I used cannabis. I agree that I have from time to time continued to use cannabis.
I pause here to record that during the course of the hearing in June 2002, I specifically made reference to the wife’s use of marijuana and emphasised that the Court would take a dim view of the wife continuing to use marijuana — for reasons which were expressed during the course of that hearing. I indicated to counsel for the wife at that time and in the presence of the wife that if the wife was going to self-medicate by the use of marijuana, then it would be necessary for her to obtain medical evidence to support the use of that illegal substance. No such evidence was presented to the Court during the course of the current round of proceedings. It is apparent that the wife has simply ignored the comments that were made from the bench during the course of the previous hearing regarding her use of marijuana, and the terms of the injunctions that were granted on 18 June 2002 (to which the wife consented).
In paragraph 2.21 of the wife’s affidavit the wife says:
I note that the husband now admits to using amphetamines, but I deny that I ever did so, except for those prescribed for me.
Clearly, that is a false statement on the part of the wife.
In paragraph 2.25 the wife says:
I deny that I have adopted an uncooperative stance. Although I concede that I have not had the drug tests on the days specified, I have always had drug tests and have not attempted to hide the fact that I have been prescribed amphetamines and that I have on occasions used cannabis.
The wife goes on to say:
I have not in any way ever attempted to disguise the fact or avoid the issue that I have been prescribed amphetamines and that I have from time to time taken cannabis.
During the course of the proceedings, certain documents were tendered in evidence. Those documents included a letter from the wife’s general practitioner, Dr Ward, to a psychiatrist, Dr Janette Mohr. I do not propose to read out that letter, but it is apparent from its terms that the wife’s purpose in seeking a referral to a psychiatrist was so that she could be prescribed dexamphetamines. She had apparently obtained that medication from her partner R prior to that time and had used it, she says with some success, to alleviate certain symptoms that are described in the letter.
Also tendered in evidence was a letter from Dr Mohr back to Dr Ward, which letter is dated 10 July 2002. That letter indicates that the wife telephoned Dr Mohr seeking an appointment, but that after the wife was advised by Dr Mohr that Dr Mohr was not prepared to prescribe dexamphetamines for the wife, the wife elected not to follow through with the appointment. It would appear that the contact that the wife made with Dr Mohr was between 24 June 2002 and 27 June 2002, because, on 27 June 2002 Dr Ward sent to Dr Shum the identical letter that he had sent to Dr Mohr. Dr Shum, as has been indicated, was not so reluctant to prescribe amphetamines for the wife.
Also tendered during the course of the proceedings was a document prepared by Dr Shum headed “Initial Assessment Summary”. I take the terms of that summary into account in these proceedings. It is abundantly clear to me that the reason why the wife requested referral to a psychiatrist was to obtain a prescription for dexamphetamines, and it is a fair inference from all the evidence before me that the wife wished to obtain a prescription for amphetamines because of the fact that she was previously using unprescribed amphetamines in one form or another, and she wished to legitimise the use of that drug for the purposes of the current proceedings.
The problem does not end there. Dr Shum gave evidence regarding the dexamphetamines that he had prescribed for the wife. The first prescription was on 10 July 2002. Dr Shum prescribed 200 five milligram tablets for the wife, and she was to take two tablets three times per day. Ordinarily, that prescription should have lasted the wife approximately one month. On 18 July 2002, that is, eight days later — Dr Shum saw the wife again, and again prescribed dexamphetamines for her. This time he prescribed 300 tablets, which were to be taken by her at the rate of three tablets, three times per day. That prescription should also have lasted approximately one month.
On 30 July 2002 — that is, 20 days after the initial prescription and 12 days after the second prescription — the wife was prescribed a further 300 tablets to be taken at the rate of three tablets, three times per day, and a repeat. As a result, and as was pointed out to the Court, the wife had access (or could have had access) to a total of 1100 dexamphetamine tablets within the space of approximately three weeks.
I gave counsel for the wife every opportunity to obtain instructions as to the fate of those 1100 tablets, and to advise the Court of what had occurred. Indeed, I raised the issue directly with counsel for the wife. Both counsel were aware that the Court was willing to hear oral evidence, because Dr Shum had been called. Notwithstanding comments made from the bench and forceful and, in my view, effective submissions on the part of counsel for the husband, a decision was made — no doubt on instructions — to leave the Court with no explanation as to the fate of the tablets that had been prescribed for the wife.
I feel that I have no alternative but to draw an inference to the effect that the wife has obtained all the medication to which I have referred and that she has not used it in accordance with the prescriptions that were provided to her. That in itself is a breach of the orders that were made on 18 June.
During the course of the evidence of Dr Shum it was made clear that symptoms of ADD — Attention Deficit Disorder, which is the complaint for which the wife purportedly presented to Dr Shum — include poor attention span, impulsivity and hyperactivity.

I asked Dr Shum about the effect of dexamphetamines on a person who suffers from ADD and upon a person who does not suffer from ADD. Paradoxically, and according to the evidence of Dr Shum, the position is that a person with ADD is calmed by the ingestion of a drug such as dexamphetamine — if the drug is ingested in accordance with the prescription pursuant to which it is obtained. But a person who does not suffer from ADD will be affected in the opposite way. Dr Shum conceded that a person who does not suffer from ADD and who takes medication such as dexamphetamine may suffer from poor attention, impulsivity and hyperactivity. There are other adverse reactions to amphetamines, apart from those to which I have referred. They include depression, and the person who is taking the drug suffering from paranoid ideation.
Counsel for the husband submitted that Dr Shum’s actions in seeing the wife as he had and prescribing the drugs that he had and in the quantities that he had should themselves be a cause for concern — and that, as a result, the Court might be minded to give little weight to Dr Shum’s views. That is a submission that I am inclined to accept at this point in time. I have grave concerns regarding Dr Shum’s actions in this matter — but, at the end of the day, it seems to me that all that is relevant is the fact that the wife attended upon him in the circumstances to which I have referred, in preference to Dr Mohr, that she obtained the prescriptions that she did, and that the fate of the 1100 tablets is unexplained.
Dr Shum conceded that he could not rule out that the wife had "faked" symptoms and that he could be "duped". But it was his view, on the balance of probabilities, that the wife was indeed suffering from symptoms which required the drug therapy that she was prescribed. It is not for this Court to conclude, at this point in time, that the wife does or does not have Attention Deficit Disorder, or any other ailment that may warrant the prescription of dexamphetamines. That is a conclusion that may have to await the final hearing. But, prima facie, and on the basis of the other material currently before the Court, I draw the inference that it is highly unlikely that the wife was genuinely in need of the drug for which she obtained the prescriptions from Dr Shum.
There are other matters, apart from the drug usage, which concern the Court at this point in the proceedings. In the affidavit material filed on behalf of the husband (and, relevantly, in the affidavits of C and A) there is set out an allegation to the effect that the wife asked R’s 16-year-old daughter to provide a urine sample — presumably for the test that was due to occur on the following day. The evidence is that the request for the urine sample was made on 30 June 2002. Although the wife responded to the affidavits of C and A in her affidavit in these proceedings, she made no attempt to deny that particular allegation.
I say that the wife responded to those affidavits because in paragraph 3 of her affidavit she refers to both of the affidavits of the witnesses. In paragraph 4 she responds to an event which is described in the affidavit of C and in paragraph 5 she makes reference to the child B attending at the factory workshop premises. That event is referred to in the affidavit of A. It is telling, it seems to me, that the wife did not seek to respond to many of the matters contained in those two affidavits. In any event, the incident described by the wife in paragraph 4 of her affidavit is of grave concern, particularly when regard is had to the fact that E was present at the time that the events described by the wife allegedly occurred. Although the wife obtained a medical report in relation to the lateness of the first urine test, I note that the wife presented no medical evidence regarding what, according to her, was a serious assault on the occasion referred to in paragraph 4.
In the husband’s second affidavit he makes reference to conversations that he had with the wife’s partner, R. The reference to those conversations (which, according to the husband, occurred on 16 and 19 September), are at paragraphs 13 and 22 of the husband’s second affidavit. They reveal that there was an altercation between the wife and R — or, if not an altercation, then a serious difference of opinion — and that the wife was apparently separated from R at the time that she swore her affidavit. If she had reconciled with R by that time, then she certainly made no reference to the fact that she had spent some time away from him.
The impression that I gain from the totality of the material before the Court is that the wife has moved into a period of significant instability. That may be due to the interference of the husband in her life. From the affidavit material, that is what the wife would want the Court to believe and accept. I am mindful, however, of the evidence given by Dr Shum, and I refer as well to paragraph 32 of the husband’s first affidavit. In that paragraph the husband said:
It has been my observation that when the wife consumes amphetamines she is moody, violent and aggressive and her behaviour is unpredictable and hyperactive irrespective of E’s presence. The wife’s conduct is volatile in that she can be aggressive one minute and tearful the next. I have observed that when the wife consumes marijuana she is moody, lethargic and confused.
The material before me would suggest that, if the wife indeed suffers from ADD, then it would appear to be inadequately or improperly managed at the present time. Alternatively, if the wife does not suffer from ADD, then the wife’s recent behaviour would appear to be consistent with the husband’s description of her behaviour when she is using amphetamines. It is abundantly clear, as I indicated earlier, that the wife has had access to significant quantities of dexamphetamines through Dr Shum. Doing the best that I can with the material before me, I infer that the wife’s recent period of instability is due in large part to the drugs that she is ingesting.
I do not doubt that the interference of the husband in her life and his persistence, as described in his affidavit, has placed significant pressure on her. But the appropriate course of action was for the wife to return to this Court to seek orders preventing the husband from having contact with her in the way that he had in the past, or, as she appears to have done, to obtain suitable redress from a State Magistrates Court. For all that, the problem from the Court’s point of view is that the wife appears to have taken a number of steps that are inadequately explained. For example, the wife has removed E from her kindergarten and is now living with E at an undisclosed location.
I accept that the wife has made reference to her intention to relocate to a town or place near Ballarat, and that the wife has described in her affidavit the sort of accommodation that will be available. In paragraph 2.28 of the wife’s affidavit she states that her parents have purchased a property (at Mount Doran).
The property is approximately 40 minutes from the Geelong area, but closer to where the husband lives than my former residence at Chisholm Close. The husband is well aware of this and has signed a note agreeing for me to live at that property.
The husband acknowledged in his first affidavit that the wife may well be relocating to this area. He has not endeavoured to mislead the Court in any way in that regard.
The wife describes the property in paragraph 2.29 — but she does not actually state in her affidavit that that is where she is residing. The Court is left with no explanation from the wife as to where she has been residing and the arrangements that have been made for the care of E since the time that the wife, through her solicitors, advised the husband that she was going “on holiday”.
The question of interim residence was dealt with by the Full Court in the decision of Cowling (1998) FamCA 19. The relevant passages from Cowling are paragraphs 18 to 25. I incorporate those passages in this Judgment:
18.The Family Law Act does not draw any distinction between the principles to be applied in determining residence in interim and final proceedings. The essential difference between them is one of procedure. Interlocutory proceedings do not determine the long term rights and obligations of the parties and their children. The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties. Accordingly, in determining what orders should be made, the Court traditionally looks to the less contentious matters, such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and their children and the parties' respective proposals for the future. In some cases, it may also be necessary to consider child protection issues.
19.Having regard to the earlier authorities of the Court to which we have referred and to the current provisions of the Act C:\au\legis\cth\consol_act\fla1975114\, we would summarise the relevant criteria for the determination of interim proceedings for residence and contact as follows:-
20.Firstly, having regard to the provisions of s.65E, in determining what interim parenting order should be made, the Court must regard the best interests of the child as the paramount consideration.
21.Secondly, given the mode by which interlocutory proceedings are conducted, those interests will normally best be met by ensuring stability in the life of the child pending a full hearing of all relevant issues. Accordingly, as a general rule, any interlocutory order made should promote that stability.
22.Thirdly, where the evidence clearly establishes that, at the date of hearing, the child is living in an environment in which he or she is well settled, the child's stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing for final orders, unless there are strong or overriding indications relevant to the child's welfare to the contrary. Such indications would include but are not limited to convincing proof that the child's welfare would be really endangered by his/her remaining in that environment.
23.Fourthly, the Court is entitled to place such weight upon the importance of retaining the child's current living arrangements as it sees fit in all the circumstances. In determining what weight to place upon that factor, it is appropriate for the Court to take account of the circumstances giving rise to the current status quo. In particular, the Court may examine the following issues:
·    whether the current circumstances have arisen by virtue of some agreement between the parties or as a result of acquiescence.
·    whether the current arrangements have been unilaterally imposed by one party upon the other.
·    the duration of the current arrangements and whether there has been any undue delay in instituting proceedings or in the proceedings being listed for hearing.
24.Fifthly, where the evidence does not establish that at the date of the hearing the child is living in an environment in which he or she is well settled, some limited evaluation of the relevant matters referred to in s.68F(2) needs to be undertaken to ensure that the result embodied in the order promotes the child's best interests. In undertaking that evaluation, regard must be had to the interim nature of the proceedings and the procedure referred to in C and C (supra).
25.Finally, in determining whether, at the date of hearing, a child is living in a settled environment, consideration should be given, inter alia, to the following:
·    the wishes, age and level of maturity of the child.
·    the current and proposed arrangements for the day to day care of the child.
·    the period during which the child has lived in the environment.
·    whether the child has any siblings and where they reside.
·    the nature of the relationship between the child, each parent, any other significant adult and his or her siblings.
·    the educational needs of the child.
The Court is required to have regard to the provisions of section 65E in determining what interim parenting orders should be made. That provision requires the Court to regard E’s best interests as the paramount consideration. I say now, for the sake of the record, and for the sake of the parties who are present in Court, that I have uppermost in my mind the best interests of E when I consider what orders should be made in these proceedings.
I am also aware that this is — in essence — the third time that interim parenting orders have had to be considered by the Court. On the first occasion, consent orders were made. That was in March 2002. On the second occasion, in June 2002, the husband withdrew his application and the pre-existing arrangements remained in force.
The Court is advised in paragraph 21 of Cowling that, given the mode by which interlocutory proceedings are conducted, the best interests of the child will normally best be met by ensuring stability in her life pending a full hearing of all relevant issues. Accordingly, and as a general rule, any interlocutory order should promote that stability.

I take into account that factor and will seek to provide a stable environment for E. The difficulty is that I am unaware of the current environment for E as provided by the wife — although she has described what that environment may be at some time in the future. Significantly, the wife has not advised the Court whether R is or is not to be a part of that environment.
In paragraph 22 of Cowling the Full Court said:
Where the evidence clearly establishes that at the date of hearing the child is living in an environment in which he or she is well-settled, the child’s stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing for final orders.
It was submitted to me by counsel for the husband that the evidence did not clearly establish that E is living in an environment in which she is well settled. That is a submission that, in my view, has considerable force. I accept Mr Strum’s submissions in that regard. Clearly over the period of the last month or so it cannot be said that E is living in an environment in which she is well settled. True it is that she has been living in the care of the wife, or largely in the care of the wife (although even that is unclear insofar as the recent period is concerned) and that the wife has been the principal caregiver for her, by consent, for a long period of time. But “environment” means more than the identity of the primary caregiver.
In any event, even if the evidence were to establish that E is living in an environment in which she is well settled, that consideration is not determinative. The Full Court indicates that matters of relevance include, but are not limited to, convincing proof that the child’s welfare would be really endangered by her remaining in the present environment. I have to say that the evidence currently before the Court does not lead me to conclude that there exists “convincing proof” that E’s welfare would be “really endangered” by her remaining in the care of her mother. But that is not the sole consideration in this case.
The next factor for the Court to determine is the following: I quote from paragraph 23 of Cowling:
The Court is entitled to place such weight upon the importance of retaining the child’s current living arrangements as it sees fit in all the circumstances. In determining what weight to place upon that factor it is appropriate for the Court to take account of the circumstances giving rise to the current status quo. In particular, the Court may examine the following issues: firstly, whether the current circumstances have arisen by virtue of some agreement between the parties or as a result of acquiescence.
The husband originally agreed, and later acquiesced, to the wife being the principal caregiver for E, but that was always on the condition that the wife did not abuse drugs in any way — and, of course, on the condition that the wife behaved in a stable, sensible and responsible manner. From 11 September 2002 or thereabouts, it is very difficult to know what the current circumstances are for the care of E, who is living with her and where she is living.
The next factor was whether the current arrangements have been unilaterally imposed by one party upon the other. That does not appear to be a relevant consideration in this case, except to the extent that the wife unilaterally stopped contact from 11 September 2002 until this matter came on for hearing before me — when I ordered E to be delivered into the care of the husband for the brief time between the completion of the hearing and the delivery of these Reasons.
The next consideration is the duration of the current arrangements and whether there has been any undue delay in instituting proceedings or in the proceedings being listed for hearing. In this case, there has been no undue delay in instituting proceedings on the part of the husband.

I have read his affidavit material and, in my view, every attempt was made to seek relevant clarification from the wife prior to the commencement of proceedings. Every opportunity was given to her to ameliorate the situation and to allay the husband’s reasonable concerns.
The duration of the current arrangements is difficult to identify. Clearly, the child has been in the care of the wife for a lengthy period of time. She has been the principal caregiver since the time of separation. I take that factor into account, but it is for me to place such weight upon the importance of retaining the current living arrangements as I see fit in all the circumstances.
Paragraph 24 of Cowling requires the Court — where the evidence does not establish that at the date of hearing the child is living in an environment in which she is well settled— to undertake some limited evaluation of the relevant matters set out in section 68F(2).
E is a very young child. I have been provided with evidence from the husband as to the current and proposed arrangements for her day-to-day care. It is of concern to me that the husband works very long hours and that E is cared for by someone other than him. But it was apparent at the last hearing and is referred to in the transcript that E knows and would appear to have a good relationship with the husband’s present partner and the mother of his present partner.
I do not propose at this point in time to go through the provisions of section 68F(2) of the Family Law Act in detail, but I take those matters into account.
I recognise that E has a close and loving relationship with both of her parents, and it is not suggested by either parent that that is not the case. I do not propose to go further through the provisions of section 68F(2) at this time simply because I was due in a duty list some 50 minutes ago and the time has now arrived for me to make the appropriate orders in this case and, in my view, the orders that I propose making are the only orders that I can make in all the circumstances in order to ensure stability in the life of this little girl until this matter proceeds to trial.
I am not unaware of the fact that the wife has been the principal caregiver for E, but in my view the wife has lost control of her life for reasons which may or may not be of her own making. In my view, it is in E’s best interests to remain in a stable environment until the matter can proceed to trial. Of the options available to the Court — and it only has two options — the one provided by the husband seems to me to be the most suitable. I have confidence that the husband will provide E with a stable environment and a safe environment until such time as this matter can be dealt with at trial. I am concerned, however, that the contact proposals provided by the husband do not allow for adequate contact between E and the person who has been her principal caregiver for all of her life.

I propose to hear counsel later in the day, therefore, as to the precise contact arrangements that will adhere. I will say, however, that the order that I propose to make will be an order that provides for E to be in the care of the husband for no more than five days per week and to have contact with the wife on no less than two days per week. As to how that can be arranged is a matter for counsel to consider.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Walters FM

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