FSR and FPM (No.2)

[2003] FMCAfam 501

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FSR & FPM (No.2) [2003] FMCAfam 501

FAMILY LAW – Children – residence – weight to be given to recommendation contained in family report – issues relating to wife’s stability – effect of parties’ past and present drug use – weight to be given to factor that child’s “primary attachment” is to wife – weight to be given to evidence that wife available to act as full time caregiver for child – need to protect child from risk of exposure to inappropriate or irresponsible behaviour – alteration of status quo.

Family Law Act 1975

B & B: Family Law Reform Act 1975 (1997) 21 FamLR 676
Smith (1994) 18 FamLR 55
Paskandy (1999) 25 FamLR 607
Burton (1978) 4 FamLR 783
Re: G: Children’s Schooling (2000) 26 FamLR
A v A: Relocation Approach (2000) 26 FamLR  382
Findlay and Boniface [2000] FamCA 676 (unreported)
U v U (2002) 29 FamLR 74
Re: David (1997) 22 FamLR 489
Jones v Dunkel (1959) 101 CLR 298

Applicant: FSR

Respondent: FPM

File No: MLM 3198 of 2002

Delivered on: 9 December 2003

Delivered at: Melbourne

Hearing dates: 2 – 4 July 2003, 31 July 2003, 1 August 2003 and 11 August 2003

Judgment of: Walters FM

REPRESENTATION

Counsel for the Applicant: Mr Strum

Solicitors for the Applicant: Taussig Cherrie & Associates

Counsel for the Respondent: Mr Grigg

Solicitors for the Respondent: Rhonda Wilkinson

Counsel for the Child Representative: Mr Meehan

Solicitors for the Child Representative: Hale & Wakeling

ORDERS

(1)The husband and the wife have joint responsibility for making decisions in relation to the long term care, welfare and development of E.

(2)The husband and the wife each have sole responsibility for making decisions in relation to E’s day to day care, welfare and development for the periods she is in their respective care.

(3)That pending the commencement of E at primary school in January 2004:

(a)E do reside with the wife from 12.30 p.m. on Tuesday to 5.00 p.m. on Friday of each week, with the wife to collect E at the commencement of contact at Riverdene Kindergarten and deliver E to the husband at the front gate of her residence at the conclusion of contact.

(b)E do reside with the wife during the 2003/2004 long summer vacation as follows:

(i)from 3.00 p.m. on 25 December 2003 to 5.00 p.m. on 2 January 2004;

(ii)from 5.00 p.m. on 9 January 2004 to 5.00 p.m. on 16 January 2004; and

(iii)from 5.00 p.m. on 23 January 2004 to 5.00 p.m. on 27 January 2004.

(c)E do reside with the husband at all other times.

(4)When E commences primary school in January 2004:

(a)She reside with the husband.

(b)She have contact with the wife as follows:

(i)during school term, for the first two of every three weekends from the cessation of school on Friday to 6.00 p.m. on Sunday;

(ii)during school term, each alternate Wednesday from the conclusion of school to 7.30 p.m., with the wife to deliver E to the front gate of the husband’s residence at the conclusion of contact;

(iii)for the entirety of term two school holidays in each year; and

(iv)for one half of the term one, term three and long summer vacations in each year as follows:

A.      for the first half in 2005/2006 and each alternate year thereafter; and

B.      for the second half in 2004/2005 and each alternate year thereafter.

(c)In the event that Mother’s Day falls on a non contact weekend, the wife have contact with E from 6.00 p.m. on Saturday to 6.00 p.m. on Mother’s Day.

(d)In the event that Father’s Day falls on the wife’s contact weekend, the wife’s contact with E be suspended at 5.00 p.m. on Saturday evening with the husband to collect E from the front gate of the wife’s residence.

(e)At such other times as may be agreed.

(5)Save as otherwise specified herein, for the purposes of the wife’s contact, the wife collect E from school at the commencement of contact and the husband collect E from the front gate of the wife’s residence at the cessation of contact.

(6)Whilst E is in their respective care, the husband and the wife each encourage and facilitate regular telephone contact between E and the other parent.

(7)The wife attend upon such psychiatrist or psychologist and/or drug counsellor as may be agreed between herself and the Child Representative, and undergo any recommended counselling and/or treatment.

(8)The Child Representative provide to the wife’s treating psychiatrist or psychologist a copy of:

(a)Professor Ball’s affidavit filed herein annexing reports;

(b)a copy of the family report prepared by Ms Clayton; and

(c)copies of the Court’s Judgments in this matter.

(9)The husband forthwith arrange for E to attend upon a child psychologist as agreed between him and the Child Representative and the Child Representative provide to the said child psychologist copies of the documents referred to in paragraph 8 above.

(10)The husband and the wife cooperate and facilitate any therapy, treatment or referral recommended for the child by the child psychologist.

(11)The wife undertake supervised drug screen testing:

(a)each Monday for a period of 3 months, at a pathology centre to be approved by the Child Representative; and

(b)randomly every two weeks (with 24 hours notice from the Child Representative), for a further period of 3 months.

(c)the results of all drug screens be forwarded to the Child Representative, with copies to be forwarded to the husband’s solicitors.

(12)The order for the appointment of the child representative herein be discharged 6 months after the date of the making of this order.

(13)Pursuant to s. 65L(a) of the Family Law Act 1975, the Director of Court Counselling in the Melbourne Registry of the Family Court of Australia do appoint a counsellor for a period of 12 months to:

(a)supervise compliance with these orders; and

(b)assist the parties in relation to compliance and the carrying out of these orders.

IT IS DIRECTED THAT:

(14)The proceedings be removed from the list of cases awaiting final determination.

AND THE COURT NOTES THAT:

(15)Pursuant to s 65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 3198 of 2002

FSR

Applicant

And

FPM

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court are the parents’ competing applications relating to parental responsibility for their daughter, E. E is 5 years old. She was born in August 1998.

2. The parties to the proceedings are the wife, the husband and the child representative.

3. The husband lives in Tarneit (near Hoppers Crossing). The wife lives on a rural property at Mount Doran, not far from Ballarat.

4. Both parties have re-partnered. The husband’s partner is Ms P. The wife’s partner is Mr R.

5. In the broadest of terms, the wife proposes that E live with her and that the husband have certain defined contact with E. The husband proposes that E live with him, and that the wife have certain defined contact.

Documents Relied Upon

1. The husband relied upon the following documents:

   a)his affidavit of evidence in chief filed 4 June 2003;

   b)affidavit of the husband filed 4 June 2003;

   c)affidavit of Gayle B filed 4 June 2003;

   d)affidavit of Ms P filed 4 June 2003;

   e)affidavit of Maureen P filed 4 June 2003;

   f)affidavit of Fiona P filed 4 June 2003;

   g)affidavit of Margaret P filed 4 June 2003; and

   h)affidavit of Professor Richard Ball filed 1 July 2003.

2. The wife relied upon the following documents:

   a)      her affidavit sworn 27 June 2003; and

   b)      affidavit of Mr R sworn 26 June 2003.

3. The child representative relied upon a family report prepared by Ms Chris Clayton of the Family Court Counselling Service — which report is dated 12 June 2003. The report was prepared pursuant to an order made in this Court on 25 September 2002.

4. All parties filed an Outline of Case document.

5. All parties provided the court with written submissions at the conclusion of the trial. The first to file submissions was the child representative, followed by the wife (being the respondent in the proceedings) and the husband (being the applicant in the proceedings).

6. The orders sought by the parties are incorporated or referred to within their written submissions.

7. The husband and the wife gave oral evidence, and were cross-examined.

8. Professor Ball also gave oral evidence, and was cross-examined. Neither the wife nor the child representative (through their respective counsel) sought to cross-examine the other witnesses who swore affidavits in support of the husband’s case.

9. Mr R gave oral evidence, and was cross-examined.

10. Ms Clayton also gave oral evidence, and was cross-examined.

11. Two further witnesses gave evidence. Lisa Trowell was called by Mr Strum (counsel for the husband). Ms Trowell is the Principal of Glen Devon Primary School, which is very close to Tarneit. She was briefly cross-examined by Mr Grigg (counsel for the wife) and Mr Meehan (counsel for the child representative).

12. Ms R was called by Mr Meehan. Ms R is Mr R’s former wife. She was cross-examined by Mr Grigg and Mr Strum.

Background

1. The husband was born in December 1967. He is now aged 35 years. The wife was born in October 1971. She is now aged 32.

2. The parties met and commenced cohabitation in 1993 or 1994. They married in December 1997, and E was born in August 1998.

3. This was each party’s second marriage. Neither has any other children.

4. They separated in July 2001.

5. The parties were living in Wagga Wagga at the time of their marriage. They moved to Geelong in December 2000, and bought a house in Chisholm Close, Wandana Heights. They were living in Chisholm Close when separation occurred in July 2001.

6. The wife continued to live in Chisholm Close, with E, after separation. The husband moved out of the house. He obtained shared accommodation in Lara, approximately 30 minutes drive from Chisholm Close.

7. The separation in July 2001 was not the parties’ first separation. They had lived apart for a period of approximately 3 months towards the end of 1999.

8. The wife commenced a relationship with Mr H in or about August 2001. At some stage they lived together in Chisholm Close. The relationship did not last, however, and by April or May 2002 (or thereabouts) the wife had commenced a relationship with Mr R.

9. The precise nature of the wife’s relationship with Mr H is unclear. The wife described him as “a boarder” — with whom she “had sexual contact on a couple of occasions”. He lived with her for approximately 3 months. The relationship ended after Mr H assaulted the wife, causing her to sustain bruising on her chest, arm and hand. The wife could not recall whether or not the assault took place in E’s presence.

10. Mr R and the wife started to live together in or about June 2002. In or about October 2002, they moved to the property in Mount Doran — which had been purchased for the wife by her parents.

11. The husband met and commenced a relationship with Ms P in or about October 2001. They started to live together (at a property owned by Ms P’s mother in Tarneit) in or about April 2002. They moved to their present home (also in Tarneit) in October 2002.

12. On 22 February 2002, the husband commenced proceedings in this Court seeking interim and final orders with respect to parenting issues and property settlement. The issue of property settlement was resolved at the commencement of the trial before me, and I do not propose to deal with it further in these Reasons.

13. The history of the proceedings is summarised in the Case Outline documents filed by all parties. I do not propose to do more — in these Reasons — than highlight certain aspects of that history.

14. On 12 March 2002, interim orders were made — by consent — to the effect that E reside with the wife until further order. It was also ordered that the husband have contact with E from Wednesday evening until Thursday morning each week, and from 9.00 a.m. to 5.00 p.m. on Sunday in each week.

15. Consent orders were made on 18 March 2002 providing for the husband to have additional contact with E — for the purpose of enabling him to take E to his sister’s wedding in New South Wales.

16. On 6 June 2002, the husband filed an application seeking, amongst other things, an order that E reside with him on an interim basis. This application was opposed by the wife.

17. The husband’s application came on for hearing before me on 17 and 18 June 2002. A transcript of that hearing has been made available to all parties. It is fair to say that I was somewhat critical of the husband during the course of the hearing for what I perceived to be an attempt on his part to manipulate a situation in which E had remained in the husband’s care for a period of some weeks. The husband endeavoured to argue through his Counsel that a status quo had been established — and that that arrangement should continue until the matter could be dealt with at a contested hearing.

18. The husband later sought and was granted leave to withdraw his application as it related to interim residence. But he continued to argue for various other orders — including orders restraining the wife from consuming drugs, and from taking E to the wife’s then place of employment. The husband also sought orders compelling the wife to involve herself in a supervised drug testing program. Those orders were opposed by the wife. After some argument, and a certain amount of reconsideration by the wife, comprehensive orders were made on 18 June 2002.

19. Paragraph 5(a) of the orders made on 18 June 2002 was made by consent. It reads:

    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)…

20. Paragraph 5(b) of the orders was not made by consent. It reads:

    The wife undergo supervised urine testing by an appropriately qualified pathology laboratory…on a calendar monthly basis commencing Monday, 1 July 2002 and the first day of each month thereafter or, if on a weekend, the closet working day thereto for the purposes of ascertaining the presence of any drugs and the wife do authorise and direct the said laboratory to provide the results of each such test within 24 hours of becoming available to the husband’s solicitors…and that the husband reimburse the wife any gap between the fee charged and the Medicare rebate upon presentation of a receipt therefor by the wife.

21. E lived with the wife from the date of separation until mid May 2002. Between mid May 2002 and mid June 2002, E was cared for by the husband and Ms P. She was also cared for by Ms P’s mother for a short time, and by the husband’s father in New South Wales for a period of about a week whilst the husband and Ms P travelled overseas for a holiday.

22. As I observed during the hearing before me on 17 and 18 June 2002, and as I reiterated on a number of occasions during the course of these proceedings, I do not accept that the wife ever agreed to, or acquiesced in, the arrangements which resulted in E living with the husband and others during that period.

23. Pursuant to orders made by Federal Magistrate Connolly on 14 June 2002, E was returned to the care of the wife on that day.

24. The contact arrangements reflected in the orders of March 2002 remained in force — and E continued to live with the wife — until September 2002.

25. Certain events occurred between June and September 2002, which events culminated in a contested interim hearing that took place before me on 24 and 25 September 2002.

26. I made various orders on 25 September 2002 including an order for the appointment of a child representative. I also ordered that the husband have contact with E from that day (25 September 2002) to 1 October 2002 (on which day I proposed to deliver my Reasons for Decision).

27. The Reasons for Decision were delivered on 1 October 2002 (“the October Reasons”). They have been made available to the parties, and — to the extent that it may be necessary for me to do so — I now record that I confirm and adhere to the October Reasons.

28. Following upon the October Reasons, I ordered (amongst other things) that, until further order, E live with the wife from 5.00 p.m. on Tuesday until 9.00 a.m. on Friday in each week commencing 8 October 2002, and with the husband at all other times. I also ordered that the wife continue to provide supervised urine testing results and that she provide to the husband and the child representative a psychiatric report from her treating psychiatrist. The psychiatric report was to be supplied by not later than 7 days prior to the next mention date on 7 November 2002.

29. The wife did not supply the required psychiatric report in accordance with the order made on 1 October 2002, and on 7 November 2002 I ordered that she attend upon such psychiatrist as the husband may nominate for the preparation of a report. The trial (which had been listed to commence on 7 November 2002, but had been vacated pursuant to the orders made on 1 October 2002) was re-listed to commence on 2 July 2003.

30. In late November 2002, the parties agreed to alter changeover times from 5.00 p.m. on Tuesdays to 3.00 p.m. on Tuesdays, and from 9.00 a.m. on Fridays to 9.45 a.m. on Fridays.

31. E commenced four year old Kindergarten in early February 2003. She started attending Riverdene Kindergarten on Mondays and Tuesdays. She also commenced attending a Day Care Centre on Fridays.

32. The wife saw Professor Richard Ball, psychiatrist, in January and February 2003. Professor Ball’s report became available in late March 2003. A supplementary report was sought by the husband’s solicitors, and was supplied in late May 2003.

33. In early June 2003, the parties attended the Family Court Counselling section for the preparation of a family report. The report was duly prepared, and is dated 12 June 2003.

34. The trial took place on 2, 3 and 4 July 2003, and continued on 31 July and 1 and 11 August 2003.

The Law

1. Residence and contact orders are parenting orders. They arise in proceedings conducted under part VII of the Family Law Act. Section 60B sets out the object of part VII and the principles which underlie that object. Residence and contact orders are subject to section 65E in that, in determining the outcome, the best interests of the child comprise the paramount consideration.

2. The importance of the section 60B principles varies from case to case. Where there are no countervailing factors, the section 60B principles may be decisive — not only because they are contained in section 60B, but also because they accord with what is generally accepted to be in the best interests of children[1].

   [1] See B & B: Family Law Reform Act1995 (1997) 21 FamLR 676 at 734

3. In deciding the residence and contact arrangements that will promote the best interests of a child, the Court must consider the various matters set out in section 68F(2).

4. Section 60B is in the following terms:

   60B Object of Part and principles underlying it

   (1)     The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)     The principles underlying these objects are that, except when it is or would be contrary to a child's best interests:

   (a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)     children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and

   (c)     parents share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)     parents should agree about the future parenting of their children.

1. The Full Court discussed the effect of section 60B in B & B: Family Law Reform Act 1975 (1997) 21 FamLR 676 as follows:

   9.6Section 60B(1) provides an optimum set of values for children of separated parents and is the goal to which the parents, society and the courts should aim, namely, that children receive "adequate and proper parenting to help them achieve their full potential" and that parents "fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children".

   9.8In relation to sub-s.(2), the following matters may be noted:-

   -   It sets out the principles "underlying" the object contained in sub-s.(1) and consequently is to be read as directed to effectuating that object.

   -   It is expressly made subject to the child's best interests.

   -   It cannot be regarded as an exhaustive list of principles which underlie the object in s.60B(1) or the child's best interests. There are a number of other matters which may in particular cases be equally or more important but which are not expressly contained in sub-s.(2), such as the wishes of children and their right to be protected from abuse. Those two matters, together with a number of other important considerations are set out in s.68F(2) as matters which the Court must consider in determining the best interests of the child. It is this circumstance which makes the inter-relationship between s.68F(2) and s.60B difficult to precisely define. The matters in the two sections vary but overlap. Neither purports to be exclusive or exhaustive. We will return to those aspects later.

   9.9Dealing more specifically with the principles listed in s.60B(2), we would make the following comments:

   9.10Paragraph (a) emphasises two matters, namely, the rights of a child to "know" both parents and to be "cared for" by both parents. These rights apply "regardless" of whether the parents are married, separated, have never been married or have never lived together.

   9.11The first of those matters, including the broad issue of a child's psychological identity, has always been recognised as a fundamental consideration and it is unlikely that orders made under Part VII would interfere with that other than in the most exceptional of circumstances. The right to be "cared for" by both parents has to be read in the context that typically the parents of whom the paragraph speaks are separated and that is likely to involve different degrees of care by the individual parents, a matter which is largely addressed by the categories of parenting orders which the Court may make or the parties may agree upon.

   9.12Paragraph (b) is the critical one in this appeal and that is likely to be so in most proceedings under Part VII. It provides, in effect, that children have a "right of contact, on a regular basis, with both their parents" and other people significant to their care, welfare and development. In that latter respect, the right of a child to have contact with, for example, a grandparent or other siblings, is provided for by s.65C which enables "any other person concerned with the care, welfare or development of the child" to apply for a parenting order…

   9.13It is now well accepted that in most cases meaningful contact by children with both their parents is important to their welfare both in the short and long-term. That principle has been well established in Australia and in comparable overseas countries for many years…

   9.14But it is equally recognised that there may be cases where the best interests of the children require that contact with one and on some occasions both parents be curtailed or even terminated. If the facts dictate that such an outcome is the appropriate one in the children's best interests there is nothing in s.60B which suggests or requires any different outcome…

   9.15Paragraph (b) refers to the right of contact "on a regular basis"…

   9.16In considering this aspect the Court must make the order which it considers to be in the best interests of the child. The nature and degree of contact is ultimately influenced by that, par.(b) providing guidance in that respect. This Court has in the past consistently attempted to make orders for contact which are practical and maintain as much direct and indirect contact between the children and the contact parent as is appropriate in the circumstances of that case. That remains the approach…The object in s.60B(1) would not be likely to be achieved in most cases by providing only for contact which was regular but infrequent. Consequently, having regard to the previous approach of this Court and the requirements of the best interests of the children, par. (b) should not be narrowly interpreted. Fundamentally it emphasises the desirability of contact, and "regular" carries with it a clear understanding that it should also be as frequent as is appropriate and by the various means which are considered to be in the children's best interests.

2. The Full Court in B & B continued:

   9.53…the Court "must consider" the various matters set out in (a)-(l) of (section 68F(2)). That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge…The list is not intended to be exhaustive. That is made clear by par.(l) "any other fact or circumstance that the court thinks is relevant". This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.

   9.54Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s.65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub-section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court's consideration of the matters in s.68F(2) and to the overall requirement of s.65E. The matters in s.68F(2) are to be considered in the context of the matters in s.60B which are relevant in that case. But s.65E defines the essential issue.

   9.55Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case… 

3. In Smith (1994) 18 FamLR 55, the Full Court, referring to the manner in which the Court should discharge its obligation under the Family Law Act in coming to a decision relating to the custody, guardianship or welfare of or access to a child said:

   …the preferable approach to be adopted is to consider each of the matters referred to in the section (being the equivalent of section 68F(2)) separately and, having regard to the evidence upon each of those matters, make findings in relation to them. In the course of this exercise, the trial judge should consider, weigh and assess the evidence touching upon each of the relevant matters adduced on behalf of the parties. After a consideration of all those matters, a trial Judge should then indicate to which of those matters he or she attaches greater significance and how all of those matters balance out.

4. In Paskandy (1999) 25 FamLR 607, the Full Court said (at page 618):

   The Judgment of the Full Court in Smith (above) was delivered before the amendments to the Family Law Act made as a result of the Family Law Reform Act 1995 (Cth). However, the comments referred to remain apposite.

5. in Burton (1978) 4 FamLR 783, the Full Court said (at page 786):

   …we are of the view that no legal onus rests upon a party with whom a child is residing to show that a change would be detrimental to the child and no legal onus rests upon a party seeking a change to justify the change either by establishing that a change would be positively advantageous to the child or in any other way. An existing status quo is but one factor to be weighed with all other relevant factors in determining a particular case. When weighing that factor, the quality of the status quo would require examination — and if a long standing status quo is disturbed, then the factors which influence the Court to come to that conclusion should be clearly identified.

6. The Full Court’s remarks in Burton (above) were recently re-affirmed by the Full Court in Re: G: Children’s Schooling (2000) 26 FamLR 143 at 154[2].

   [2] See also A v A: Relocation Approach (2000) 26 FamLR 382 at 405-6

7. In Re: David (1997) 22 FamLR 489, the Full Court said (at page 505):

   While it is obviously a very serious step to alter a residence order in respect of a young child which has the effect of removing him from his principal care giver, there are some situations…where the Court has no option but to do so.

Discussion/Preamble

1. I have re-read, and now remind myself of the object of, Part VII of the Family Law Act, and the principles underlying that object — as set out in section 60B. I keep that object, and those principles, firmly in mind as I consider the matters set out in section 68F(2) and all other relevant matters. Indeed, I have borne that object and those principles in mind at all times during the preparation of this Judgment.

2. I am conscious of all of the following matters:

   a)The welfare or best interests of E comprise the paramount consideration in this case.

   b)I understand that it is necessary to evaluate each of the proposals advanced by the parties, and will do so (or have already done so) — directly or indirectly — in these Reasons.

   c)I understand that the evaluation of the parties’ competing proposals must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for E (and for her best interests). I have performed that evaluation (or will perform it) — directly or indirectly — in these Reasons.

   d)I understand that it is necessary to follow the legislative directions set out in sections 60B and 68F of the Family Law Act, and that I must consider the various matters set out in section 68F(2).

   e)I understand that neither of the parties to these proceedings bears an onus to establish that a proposed change to an existing situation, or a continuation of an existing situation, will best promote E’s interests. I have taken into account the whole of the evidence which I consider to be relevant to E’s best interests.

3. Before proceeding further with these Reasons, I refer to paragraph 74 of the Full Court’s decision in A v A: Relocation Approach (2000) 26 FamLR 382:

   In our view, the use of a structured series of analytical steps is an aid to the decision-making transparency and minimises the risks of a court falling into appealable error… In weighing the advantages and disadvantages of the proposal, we agree with the recent observations made by a differently constituted Full Court in Findlay and Boniface [2000] FamCA 676 (unreported). In dismissing a ground of appeal that challenged the adequacy and clarity of the steps taken by a trial Judge in reaching her decision in a parenting order case, the Full Court said...:

   Her Honour’s obligation was not to laboriously and exhaustively set out each and every advantage and disadvantage which she saw in each proposal put forward by the parties for the residence of/contact with their child. Her obligation was to deduce, from the evidence, and from her assessment of the parties and their witnesses, the essence of their competing proposals, and to decide, having considered the relevant matters referred to in s 68F(2) … which of those proposals would be more likely to advance the child’s best interests, which she was required to regard as the paramount consideration. Her further obligation was to give adequate reasons to enable the parties, and any appellate court called upon to review her decision, to understand how she arrived at her decision and to demonstrate that in arriving at it she did indeed regard the child’s best interests as paramount and did consider the relevant matters arising under s 68F(2).

4. I bear in mind all the principles and dicta to which I have referred and remind myself that the Full Court’s occasionally stated direction to itself to avoid “an overly critical, or pernickety, analysis” of Reasons such as these necessarily recognises the “large element of judgment, discretion and intuition” involved in the decision making process[3]. I interpret these comments as inferring that a Judicial Officer should not “lose sight of the wood for the trees” (as it were). The principles and dicta to which I have referred form the foundation upon which these Reasons are constructed (and have structured the thought process that I have employed). I understand them and the need to apply them.

   [3] See U v U (2002) 29 FamLR 74 at 101, A v A: Relocation Approach (2000) 26 FamLR 382 at 410 and Re G: Children’s Schooling (2000) 26 FamLR 143 at 150

Credibility — General Observations

1. I observed both parties carefully as they gave their evidence. The wife was calm at times. At other times she was agitated. She was frequently voluble — and occasionally volatile. There were occasions when her speech appeared pressured. Sometimes she was articulate and forceful in her responses to questioning. Sometimes she was vague, and appeared confused. And sometimes I was simply unable to make sense of her answers to questions. I did not believe much of what she said. I find that she is not a witness of truth and (unless I have stated otherwise) I am not prepared to accept her evidence unless it is specifically admitted (where relevant) or directly corroborated by a wholly independent source.

2. I find that the husband is a witness of truth. He responded to questions in a measured and appropriate way. Generally speaking, he was willing to give credit where it was due, and he frequently made realistic concessions.

3. Unless I specifically state otherwise, where the parties evidence is in conflict I prefer that of the husband.

The Parties’ Submissions

1. Each of the parties filed written submissions. The child representative’s submissions focus on the section 68F(2) factors, and discuss various aspects of the evidence as they relate to each of those factors. The husband’s submissions summarise certain of the evidence given by each of the parties and the other witnesses, and then deal with the section 68F(2) factors. The wife’s submissions commence with a summary of the wife’s case, and then respond to the chid representative’s submissions. They then deal with certain specific subjects, and conclude by referring to the section 68F(2) factors.

2. Having regard to the conclusions that I have reached in relation to this matter, I have decided to structure this judgment in accordance (more or less) with the approach taken in the wife’s submissions.

Summary of Wife’s Argument

1. The wife argues that:

   a)E’s primary attachment is to the wife;

   b)the wife has historically been the primary caregiver for E;

   c)the wife’s use of drugs ceased in October 2002;

   d)there is no risk to E by virtue of any drug use by the wife or, alternatively, if there is any such risk, then it can be adequately dealt with by way of safeguards;

   e)if the wife has a cyclothymic personality and/or paranoid ideation, then these conditions present no risk to E or, alternatively, any risk to E can be adequately dealt with by way of safeguards;

   f)historical evidence of a party’s drug use and mental stability is relevant only insofar as it bears upon the party’s current abilities to meet the best interests of E;

   g)the wife has done all that is reasonably necessary to deal with her drug usage;

   h)the wife has done all that is reasonably necessary to deal with any issues of her mental stability;

   i)the wife is well equipped to meet the emotional needs of E, and is motivated to do so;

   j)the husband is not equipped to deal with E’s emotional needs, and is not motivated to do so;

   k)under the husband’s proposals E will be principally cared for by third parties, and not by the husband; and

   l)under the wife’s proposals E will be principally cared for by the wife, and not by third parties.

Summary of the Husband’s Argument

1. The husband’s case (as summarised in his submissions) is as follows:

   a)He provides E with ongoing stability in a loving, safe and structured family environment.

   b)The wife’s life is characterised by instability and disorganisation.

   c)She is in a relationship characterised by volatility and incidents of violence, both verbal and physical.

   d)The husband has not used drugs since 2001, and alcohol since 1999. He voluntarily sought and abided by appropriate treatment. His abstention was not motivated by these proceedings.

   e)There remains a very serious doubt about the wife’s use of drugs.

   f)Neither the wife nor her partner have sought any treatment for their drug abuse.

   g)The wife failed to attend for regular weekly testing on a number of occasions without any or adequate explanation.

   h)The husband and Ms P are in a stable, loving and supportive long-term relationship, and they each have a loving and affectionate relationship with E — who is bonded to each of them.

   i)The husband has made specific arrangements and put forward considered proposals for E’s daily care.

   j)Professor Ball has raised concerns about the wife’s psychological state. He suggested that she undergo treatment, but she disregarded that suggestion.

The Wife’s Submissions — Preamble

1. As is so often the case in proceedings such as these, certain factors or considerations — or various elements of such factors or considerations — can favour, or can be perceived as favouring, one party over the other. Not unnaturally, each party has placed emphasis in his/her submissions upon those factors or elements which may be regarded as supportive of his/her case.

2. After responding to certain matters set out in the child representative’s submissions, the wife (in her submissions) refers to the section 68F(2) factors. Before dealing with those factors in detail, however, the wife highlights and deals with certain issues that formed the subject of much of the evidence during the course of the proceedings. The headings adopted by the wife are:

   a)Parties’ Drug Use;

   b)E’s Needs;

   c)Wife’s Mental Stability; and

   d)Wife’s Care of the Child.

Parties’ Drug Use

1. Although the heading in the wife’s submissions is “Parties’ Drug Use”, this part of the submissions deals exclusively (or almost exclusively) with the wife’s drug use. It concludes, however, with the following assertion:

   On balance, it is no more likely that the wife will return to drug use that it is that the husband will return to drug use.

2. I reject the assertion quoted in the preceding paragraph. I am not aware of any evidence that would fairly support such a conclusion. It is true that the husband has a history of drug abuse (and, indeed, an admitted history of alcohol abuse) — but it was the husband’s evidence (which I accept) that he stopped drinking alcohol in October 1999. Further, he stated (and I accept) that he attended drug counselling in August and September 2001, and that he ceased using drugs in or about August 2001. The wife seeks no orders in these proceedings with respect to drug use by the husband.[4]

   [4] I note, as well, that the husband’s evidence in this regard is supported by his witnesses — who were not required for cross-examination

1. There is no credible suggestion that the husband has used or abused drugs, or that he has drunk alcohol to excess, at any time since shortly after the parties separated.

2. In paragraph 16 of his affidavit sworn 4 June 2003, the husband said:

   The marriage was volatile and difficult from the outset. The wife and I both used drugs during the marriage, principally marijuana and amphetamines. Whilst employed as a truck driver I became dependent on amphetamines, a habit I was not able to overcome until shortly after the marriage ended. I attended drug counselling at St Vincent’s Hospital in August and December 2001.

3. In paragraph 18 of the same affidavit, the husband said:

   I ceased drinking all forms of alcohol in October 1999. I have not taken drugs since 1 August 2001.

4. I accept the husband’s evidence as set out in paragraphs 16 and 18 of his trial affidavit.

5. The wife’s evidence in relation to this subject was that, although she used marijuana during the marriage, she did not use amphetamines at that time.

6. It was suggested to the wife that if she had not used amphetamines during the course of the marriage, then she began using them in or about February 2002. The source of the allegation in this regard is an entry in the notes of Dr Shum. Dr Shum is a psychiatrist who was consulted by the wife in July 2002 — in circumstances more fully dealt with in the October Reasons. Dr Shum gave evidence (in September 2002) that he typed his notes in the wife’s presence, and as she was speaking with him.

7. The wife said in evidence that she first tried amphetamines on 17 June 2003 — in the evening after court, and before the resumption of the part heard interim hearing on 18 June 2003. The wife said[5] that she was either using or about to use marijuana on that evening, that her partner (Mr R) became upset and didn’t want her to use marijuana, and that he then offered her an amphetamine tablet. She later said[6] that she did not then realise that the tablet she took contained amphetamine.

   [5] Transcript page 371

   [6] Transcript page 374

8. Mr R’s evidence was to the effect that he had indeed offered the wife a tablet (containing amphetamine) that had been prescribed for him, and that that event occurred at some unspecified time after they had commenced their relationship.

9. I find that both the wife and Mr R were evasive, and less than honest, in relation to the subject of when the wife first commenced using amphetamines. I do not know when she first began her use of the drug, but I do not accept the wife’s evidence that it was during the interim hearing in June 2002. There were many inconsistencies in the evidence of both Mr R and the wife regarding this subject, but, in my view, it is sufficient for me to record that Mr R could not recall any event which had served as a “trigger”, as it were, for him to offer the wife a drug the use of which they both well knew was likely to have a significant, adverse impact on the wife’s case. They both well know this because they were both present during the interim hearing on 17 June, and they heard comments that I made at that time regarding the issue of drug use[7]. I am not prepared to accept that Mr R would not have recalled the precise circumstances in which the wife first commenced her use of amphetamines ¾ if those circumstances were as the wife described them to be. Nor am I prepared to accept that — even if the wife’s version of events were to be accepted as accurate (and I do not accept it as accurate) — the wife did not know that the tablet offered to her by Mr R in fact contained amphetamine.

   [7] see, for example, pp 492-3 of the transcript

10. I find that the wife used amphetamines from at least February 2002, and that she probably used them prior to the breakdown of the marriage (as alleged by the husband).

11. The wife provided a number of reasons as to why she used marijuana and amphetamines. These included pain relief (due to fibromyalgia), treatment of Attention Deficit Disorder, the stresses associated with the proceedings generally, and alleged harassment by the husband. Whilst I accept that the wife may suffer or may have suffered certain pain or discomfort as a result of a physical illness or disability, and whilst I accept that these proceedings have caused her anxiety and stress, I do not accept the wife’s explanations for her use of marijuana and amphetamines. I find that the wife used them in an attempt to assist her to cope with the stresses of her daily life (and, to a lesser extent, to alleviate any physical discomfort she may have felt as a result of the old injuries described by Professor Ball on page 3 of his report). Although, her relationship with the husband certainly added to the wife’s problems, I find that he was not the sole (or even the dominant) cause of the stresses which she faced.

12. There were many other aspects of the wife’s evidence regarding her drug use that are of serious concern. For example:

    a)The wife conceded that she had not been open and honest with the Court regarding her use of amphetamines. For example, in an earlier affidavit[8] the wife said that the positive result for amphetamines which she returned after a drug test on 9 July 2002 was solely due to drugs that had been prescribed for her. It later became clear that the first occasion on which the wife was prescribed amphetamines was 10 July 2002, and that they had been prescribed by Doctor Shum. Further, in paragraph 46 of her trial affidavit, the wife said that she “took up to 15 tablets of (Mr R’s) medication of dexamphetamines” prior to Doctor Shum prescribing the drug.

    b)I do not accept the wife’s evidence to the effect that she took some 15 dexamphetamine tablets (only) prior to obtaining a prescription for the drug from Dr Shum. I find that she was then a regular user of the drug and that she took many more than 15 tablets during the relevant period. I reach that conclusion because of my view of the wife’s credibility, because of the wife’s statement to Dr Shum that she had taken twelve 5 milligram dexamphetamine tablets in a single day, and because of Mr R’s evidence (given from the standpoint of an admitted long term user and abuser of amphetamines) that a dosage of something in the order of 10-12 dexamphetamine tablets in a day was usual for him as a long term user and abuser, but would have had a serious, adverse effect upon the wife’s health if she was not accustomed to such doses.

    c)In any event, the wife eventually (and reluctantly) conceded that it was possible that she had taken a lot more than 15 tablets between the date of the interim hearing in June 2002 and the date upon which she obtained the first prescription from Doctor Shum (being 10 July 2002)[9]. She also eventually (and reluctantly) conceded that she did not want medical help when she consulted her general practitioner on 24 June 2002. She conceded that what she wanted was amphetamines[10]. It was for that reason that she cancelled her appointment with the first psychiatrist to whom her general practitioner had referred her, and made the appointment with Doctor Shum.

    d)Mr R conceded that he had seen Doctor Shum (as a patient) well before the wife had asked to see him. Mr R initially said that he could not recall whether he gave Doctor Shum’s name to the wife, but later said that she must have known that he had been seeing Doctor Shum, and that Doctor Shum was prescribing dexamphetamines for him. At that time, Mr R was a heavy user of amphetamines and had been removed from the list of people authorised to be prescribed the drug because (as Mr R put it) he “abused the system”. The wife denied that Mr R gave her Doctor Shum’s name, as being a practitioner who would be prepared to prescribe dexamphetamines. I am not prepared to accept the evidence of the wife and Mr R in relation to this subject. I have no doubt that they were both using (and abusing) amphetamines at the time that the wife first consulted her general practitioner (on 24 June 2002) with a view to obtaining dexamphetamines in a legal manner. I find that Mr R advised the wife that Doctor Shum was a psychiatrist who was prepared to prescribe the drug, and that the wife’s subsequent appointment with him was as a consequence of that information.

    e)The wife’s evidence was that she and Mr R in effect “shared” the 1,100 dexamphetamine tablets prescribed for the wife by Dr Shum between 10 July and 30 July 2002. She also suggested that not all the tablets obtained at that time were consumed. Mr R suggested that he consumed that majority of the tablets. I reject the evidence of both the wife and Mr R in this regard, and I am satisfied that all (or almost all) the tablets obtained on prescription from Dr Shum were consumed by the wife and Mr R, and that it is unlikely that the wife consumed any less of them than did Mr R.

    f)The wife was late in supplying her urine for analysis on six or seven occasions between November 2002 and August 2003. In my view, the wife did not provide an adequate explanation for her failure to comply with the testing regime. On the basis of the other findings that I have made regarding the wife’s credibility and her use of drugs generally, I conclude that the reason why the wife was late was that, on at least some of the occasions, the wife had used amphetamines and was aware that they had not yet cleared her system.

    g)As discussed in the October Reasons, I have no hesitation in concluding that the wife consulted her general practitioner (Dr Ward) in June 2002 for the specific purpose of obtaining a referral to a psychiatrist who would prescribe dexamphetamines for her. The evidence reveals that Dr Ward initially referred her to a psychiatrist, Dr Mohr, who was not prepared to prescribe dexamphetamines. When the wife found out that Dr Mohr would not prescribe the drugs (which she did when she rang Dr Mohr for the purpose of making an appointment), the wife elected not to follow through with the referral and, instead, sought a referral to Dr Shum. In paragraph 28 of the October Reasons, I wrote that 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 that she wished to legitimise the use of that drug for the purposes of the current proceedings. Having now seen and heard all relevant witnesses in the proceedings, I conclude that the inference that I then drew was a fair, accurate and proper one.

    [8] being the wife’s affidavit of 20 September 2002, at paragraph 2.17

    [9] see transcript pp. 464-5

    [10] see transcript p. 467

13. Insofar as the subject of drug use is dealt with in the wife’s submissions[11], I comment as follows:

    [11] See pages 8-10 of the wife’s submissions

    a)I do not accept that the wife used no more than about 15 dexamphetamine tablets which had not been prescribed for her by Dr Shum. I find that the wife used considerably more than that number.

    b)I am not prepared to conclude that the wife ceased all drug use in or about October or November 2002. Her failure to comply with the drug testing regime, and my observations of her and conclusions as to her credibility, lead me to conclude that the strong likelihood is that she has not ceased all drug use.

    c)I have recorded my finding to the effect that the wife sought out Dr Shum precisely because she had been led to believe that he would be prepared to prescribe dexamphetamines for her.

    d)I do not accept that “there is no evidence that the wife knew of the harmful effects of dexamphetamines”. The wife’s evidence was to the effect that the husband had abused amphetamines during the course of the marriage (but that she had not) and that Mr R was a long term user and abuser of amphetamines. I find that she well knew the nature of the drug prior to her initial attempts to obtain a prescription for it.

    e)Notwithstanding explanations provided by the wife for her failure to comply with the regular drug screen arrangements, I am not prepared to refrain from drawing an inference to the effect that the testing was delayed (on at least some of the occasions) because the results would otherwise have been positive for amphetamines.

    f)I accept that the likelihood is that the wife has not used marijuana since November 2002.

    g)Whilst there is indeed evidence from which the court could infer that the wife’s use of amphetamines was precipitated by the husband’s over holding of E in or about May 2002, and that it was exacerbated by the stress of litigation, I am not prepared to conclude that they were the only (or even the predominant) reasons for the wife’s use of the drug.

    h)I do not accept that the wife is unlikely to use amphetamines in the future simply because the “stressors” referred to in the previous paragraph may not apply in the future. I find that the wife’s personality and psychiatric/psychological condition are such that she is prone to anxiety and stress, and that she does not have sufficient self possession or control — nor is she sufficiently motivated — to avoid the use of the drug in the future. There can be no doubt that E is “a handful” (to use the vernacular). The relationship between the husband and the wife is poor, and the wife’s relationship with Mr R has not been without unpleasant incidents. Given that change, upheaval, intermittent stresses and crises are a normal part of life (and certainly likely to be part of the wife’s life), I have no confidence that the wife will not continue to revert to the use of illegal drugs, or the abuse of prescription drugs, when faced with such “stressors”.

    i)I disagree that “there was nothing in the wife’s presentation in the witness box that suggested that she is currently using drugs”. I accept without reservation that I have no expertise in determining whether a person is affected by drugs by his or her demeanour in the witness box. It is clear beyond argument that I must be very cautious before reaching any conclusions on such a basis. Nevertheless, the wife’s presentation in the witness box was as I have described it elsewhere in these Reasons.

    j)In paragraph 40 of the October Reasons, I made reference to the husband’s description of the wife’s behaviour after taking amphetamines and marijuana. I am conscious, as well, of the evidence given by Dr Shum as to the effect of amphetamines, and of Dr Ball’s description of the consequences (or possible consequences) of overuse of amphetamines.[12] On the basis of the evidence before me, and my own observations, I cannot exclude the possibility that the wife may have been “using drugs” at the time that she gave evidence before me.

    k)I am not prepared to find “that the risk to E by way of future drug use by the wife is negligible and in any event can be adequately dealt with by the wife undergoing regular drug screens”. In my opinion, it is likely that the wife will indeed use illegal drugs (or abuse prescription drugs) in the future — if, indeed, she has ever ceased doing so. The failure of the wife to comply with the routine drug testing regime put in place during the course of the proceedings, when coupled with my other findings in relation to her credibility, behaviour and psychiatric/psychological condition, leaves me with no confidence that random drug tests will be complied with by the wife in a timely and otherwise appropriate fashion. By way of further example, and as discussed in the October Reasons, there is a strong possibility that the wife requested Mr R’s daughter to provide a urine sample for her on one occasion. I cannot be confident that any regime of random drug screens would serve to deter the wife from inappropriate drug use.

    [12] See, for example, transcript page 102

14. Mr Grigg also submitted that there is some form of equivalence between the wife’s failure to undergo drug education and counselling and the husband’s (alleged) similar failure[13]. I am comfortable in my findings to the effect that the husband has been open and frank with the court in relation to his drug use, and that there is no need for him to attend any form of further education or counselling in relation to the subject. Much of the trial dealt with the wife’s drug use. A spotlight (as it were) was placed upon the subject as it relates to the wife at a very early stage of the proceedings, and it is regrettable that the wife has not chosen to confront her problems in this area directly — by (for example) seeking the appropriate assistance herself.

    [13] In any event, I note that the husband did attend drug counselling — at St Vincent’s Drug & Alcohol Centre in Melbourne in or about August 2001.

15. It follows from the above that I do not accept that the wife “has successfully ceased drug use without (drug education or counselling)”.

16. Irrespective of the result of these proceedings, I propose to order that the wife undergo such counselling.

E’s Needs

1. Mr Grigg submitted, and I accept, that E’s primary attachment is (or was — at the time of the family report) to the wife. Prior to September 2002, the wife was E’s primary care giver. During the period of cohabitation, the husband was busy with his work. In addition, during the period of cohabitation he drank heavily and used amphetamines.

2. Since the orders of September and October 2002, the husband has continued to work hard, and he has not been solely responsible for E’s care and supervision. Indeed, Ms P has (arguably) been more responsible for these roles than has the husband.

3. Mr Grigg submitted, and I accept, that the husband and the wife are both capable of meeting E’s physical needs. He also submitted — and again, I accept — that the proposals advanced by each the husband and the wife to meet E’s physical needs (in particular, her housing and education) are acceptable, and appropriate for E.

4. It was common ground between the parties that each has a loving relationship with E.

5. I am aware, as well, that Ms Clayton noted that it was the wife that was better able to control E’s behaviour in the interview session (and to channel it constructively).

6. Each of the parties asserted that his/her partner would play a significant role in E’s life. The husband clearly relies upon Ms P to supervise and care for E while he is at work. Relevantly, Ms P will care for E after school until the husband comes home.

7. The wife made no criticism of Ms P, and conceded that E is comfortable with her. Ms Clayton noted that it was obvious that Ms P cares greatly for E and that she is happy to be involved in her parenting. Ms P was not cross-examined during the proceedings.

8. According to Ms Clayton, Mr R does not seem to be as involved with E as does Ms P. I accept, however, that Mr R has attempted to support E and the wife, and that E’s relationship with him is likely to strengthen for as long as he and the wife continue in their relationship.

9. Mr Grigg submitted that the husband demonstrated a lack of understanding of E’s emotional needs. In general terms, Mr Grigg focused on aspects of the husband’s evidence which reflect a failure of (or, perhaps, an impaired) insight into or understanding of E’s needs and/or the effect of the husband’s actions from time to time. The matters raised by Mr Grigg are on pages 3 and 4 and page 11 of the wife’s submissions. I have read and had regard to all the matters raised by Mr Grigg, but I shall only deal in these Reasons with those that I consider to be most relevant.

10. To the extent that Mr Grigg suggests that the husband lacks insight in that “he regards E’s behaviour and wetting as normal”, and in relation to his alleged “inability to articulate or apparently understand appropriate ways to deal with E’s behaviour”, I would confirm that I paid careful attention to the husband as he gave his evidence, and that I have reviewed the transcript of his evidence. To the extent that it is asserted that the husband regards the type of behaviour referred to by Mr Grigg as “normal”, it is clear that the husband was in fact suggesting that the behaviour was within the bounds of what is normal for E. Both parties accept that E is an extremely active and excitable child. The fact that the husband may elect to understate or minimise certain of her behaviours does not cause me to conclude that he lacks an understanding of them. The husband said, and I accept, that he is able (within reason) to control E’s behaviour. I accept that both parties are far more familiar with E’s behaviour than Ms Clayton, and I am not prepared to conclude that the husband lacks insight or understanding in the sense suggested by Mr Grigg. In other words, I accept the husband’s explanations for what — to an outsider — may appear to be unusual or concerning behaviour on E’s behalf.

1. More concerning, in my opinion, is the husband’s failure to return E to the care of the wife in or about May 2002[14]. Having regard to my findings in relation to the wife’s credibility, however I am left with considerable doubt as to the true circumstances in which E was retained in the care of the husband or his agents during this period. To the extent that the husband suggests that the wife may have consented to the arrangement, I reject that assertion. As I indicated during the interim hearing, and as I recorded in the October Reasons, my view is that the husband attempted to manipulate the situation in order to cause E to remain in his care for an extended period. On page 71 of the transcript, the husband conceded that he “was trying to retain custody of E”. He denied, however, that he was not concerned about what “suited E or suited the wife”. The husband said, and I accept, that he was concerned about E’s wellbeing and “the state of the mother and the mother’s priorities in life”.

   [14] The husband’s cross-examination in relation to this matter appears on pages 66 to 71 of the transcript

2. Mr Grigg submitted that the husband was unable “to recognise any actual potential possible deleterious effect” on E as a result of the “over holding” in May/June 2002. I reject that submission. The husband conceded that it would have been upsetting for E not to have seen her mother for the relevant period or periods.[15]

   [15] See transcript page 70

3. But I remain concerned about the husband’s behaviour at that time. In particular, I am concerned that the husband saw fit to leave E with his father (E’s grandfather) whilst he and Ms P travelled overseas for a holiday. The husband’s father collected E from Melbourne and took her back to his residence in Sydney. The husband then collected E from his father (in Sydney) on his way back to Melbourne.

4. I am not persuaded that the wife was fully aware of the arrangements made by the husband for E’s care during that period, and (as I have already indicated) I am not persuaded that the wife agreed that E was to remain with the husband in the manner in which he suggests. I am satisfied, however, that the wife’s focus was not entirely on E at that time. Relevantly:

   a)the wife had recently commenced her relationship with Mr R;

   b)at or about that time the wife and Mr R commenced setting up a business dealing in “custom line trailers”;

   c)the wife and Mr R also moved into new premises;

   d)I have already recorded my observations regarding the wife’s probable drug use during the first half of 2002, and note that the wife conceded that she was a user or marijuana during the period prior to the interim hearing in June 2002; and

   e)it would appear that the wife was ill in early May (and reference was made to arrangements that the wife had made for E to be cared for during the day by Mr R’s former wife).

5. Notwithstanding the concerns that I have expressed regarding the husband retaining E in his care (or in his father’s care) in May/June 2002, I am satisfied that he did so because he believed that it would be best for E — in the long run — to live with him. I do not doubt that he manipulated the situation. I am not prepared to accept, however, that his actions caused or were a form of catalyst for the wife’s amphetamine use. I do accept that the “overholding” eventually caused the wife emotional distress, but, in my opinion, it was no more than one of a number of “stressors” in her life at that time.

6. In any event, the proceedings came before me in mid June 2002 (by which time E had already been returned to the wife’s care) and comprehensive orders were made governing the situation which was to adhere pending the trial that was to take place in November 2002. But, and as I observed in the October Reasons — the wife then appeared to lose control of her life.

7. Mr Grigg drew attention to the husband’s evidence to the effect that, during the period of cohabitation, and at a time when the husband alleges that the wife was using marijuana and amphetamines, the wife “cared well” for E. This is a concession which I have considered, and taken into account. It is clearly a concession which favours the wife’s case. The fact of the matter is, however, that E was not yet 3 years of age when the parties separated in July 2001. Over two years have passed since that time, and each of the parties has had to confront and deal with significant changes in his or her life since that time. I cannot and do not speculate as to whether the husband’s perception of the wife’s parenting capacity at that time was affected by his own drug and/or alcohol abuse, or whether the wife’s actions, psychological/psychiatric state and health issues eventually combined to affect her attitude and behaviour in the period since the parties separated.

8. The bottom line (as it were) in relation to Mr Grigg’s submission in this regard is as follows:

   a)if the wife was using marijuana and amphetamines prior to separation and they did not then affect her ability to care for E, then that situation altered; or

   b)if the wife was not using amphetamines prior to separation (it is conceded that the wife used marijuana prior to separation), then she commenced using the drug after that time — and its use (together with other factors) adversely affected her ability to care for E.

9. Mr Grigg raised a gallimaufry of criticisms of or concerns regarding the husband in paragraph 4 (on page 3) and paragraph 6 (on page 11) of the wife’s submissions. I propose to deal with (or have dealt with) such of these matters as I consider relevant elsewhere in these Reasons. Suffice it to say at this stage, however, that:

   a)I accept that the husband has a genuine concern for E’s welfare and best interests, and that it was that concern that caused him to amend his application from one for contact only to its current form;

   b)the husband and Ms P have been in a strong, stable and committed domestic relationship for at least 18 months, and no criticism of Ms P as a care giver was (or could reasonably be) made by the wife or by any other witness in the proceedings — and Mr Grigg (no doubt on the wife’s instructions) saw fit not to cross examine her;

   c)the husband was open and frank about his work commitments, and about his availability to care for and supervise E;

   d)in my opinion, the arrangements proposed by the husband for the care and supervision of E in the short and long term (including after she starts school at the beginning of 2004) are wholly satisfactory;

   e)it is to the husband’s credit that he did not attempt (at trial) to justify the period that E spent with him in May/June 2002, and that he withdrew his interim residence application on 17 June 2002;

   f)it is also to the husband’s credit that he conceded that it would be in E’s best interests to be in her mother’s care on Fridays — as opposed to being in childcare on that day[16]; and

   g)I do not accept that the husband has “a total lack of insight into the emotional needs of a 3 year old child”, or that the Court “could have no confidence that he will develop such insight in the future”. Quite apart from the fact that E is no longer 3 years of age (and will be commencing school within a few months), I am satisfied that the husband has an adequate understanding of E’s needs, and that he (now) has a mature attitude to his responsibilities as a parent.

   [16] see transcript page 137-9

10. I am not satisfied that the wife has an unimpaired insight into E’s emotional needs. She is certainly capable of satisfying E’s needs at a superficial level, but, in my opinion, various factors have combined to raise concerns regarding her continuing ability to meet E’s emotional needs. These factors have been or will be discussed elsewhere in these Reasons, but they include matters such as:

    a)the wife’s drug use;

    b)the wife’s failure to undertake drug screening tests in a timely manner in accordance with the court orders (in particular when she well knew the importance of such testing and the likely consequences of failing to adhere to the appropriate testing regime);

    c)the wife’s psychological/psychiatric condition (as described in Professor Ball’s report);

    d)the wife’s failure to satisfactorily explain why she has not undertaken any drug education or drug counselling; and

    e)the wife’s arguably distorted perception of reality (at least in relation to certain matters) — such as the alleged (or suggested, or hinted at) conspiracy between the husband and Mr R’s former wife to cause a hot water service (located at the home of Ms R’s mother) to blow up so as to injure the wife and damage her case for residence.

Wife’s Mental Stability — Professor Ball

1. Professor Richard Ball is an impressively qualified psychiatrist. He has practiced in the field since 1956. In 1978 he took up the chair of psychiatry and directorship of the Department of Psychiatry at St Vincent’s Hospital. He retired from that position in February 1992, whereupon he took up a half time Associate Professor’s appointment at the Academic Unit in Forensic Psychiatry at Melbourne University. His qualifications and experience were not in dispute.

2. Professor Ball saw the wife on three occasions in January and February 2003. He provided two reports — the first dated 25 March 2003 and the second dated 26 May 2003.

3. Professor Ball obtained a detailed history from the wife. The history included reference to a car accident in which the wife was involved before she met the husband. The wife told Professor Ball that she suffered whiplash and that she injured her neck, her spine and her chest. The wife said that the injury led to fibromyalgia. She also said that the injury had been the cause of considerable pain and discomfort for her.

4. Professor Ball described his interviews with the wife as follows:

   These were difficult interviews, wide ranging and discursive, with at times inordinate detail and great circumstantiality. At other times, it was difficult to keep her to the point. But she could be brought to the point, and when strictly controlled could be apparently logical and coherent, though without control she would revert to the predominant type of presentation[17].

   [17] see page 9 of the Report dated 25 March 2003

5. On page 12 of his first report, under the heading “Opinion”, Professor Ball wrote:

   …either this has been an effective young woman whose marriage has fallen adrift and who has been badly affected by its collapse and all the associated difficulties leading to her depression and additional substance misuse, (or) alternatively, does she have an over-valued or exaggerated idea of her own past successes of behaviour, and has (she) developed a pain syndrome with on going use of marijuana?

6. Professor Ball continued:

   Certainly, prolonged use of marijuana can be associated with behaviour changes of a negative kind, and sometimes paranoid ideation. There is very clear evidence that prolonged use of amphetamines can be associated with the development of paranoid ideation, florid illness in some cases, with changed perception of others, including family in some circumstances. Certainly, at the time that I saw her, there is no evidence for any floridly psychotic features, but she certainly has a very paranoid attitude towards her husband, his family and those associated with them. Particularly on the first occasion when I saw her, she was restless, distractable, extremely circumstantial at some points, and occasional tangential in her responses. She was able to be more focussed on the other occasions…

   If her prior history is normal, and her troubles only began after the car accident…I suppose one might consider the organic effects of such injuries as possibly contributing to the development of emotional instability. However, an additional complicating factor is that this woman has been treated since the car accident with all sorts of medications and there is no doubt that intensive use of pain killers and other things can have a de-stabilising effect on mental functioning, with alteration of the coping abilities with regard to general living and functioning…

   From a diagnostic point of view, I think the matter is complicated…

   Whatever the reason, it certainly seems as if this woman is emotionally unstable and vulnerable, with a variety of behaviour disturbances. I think she does need on going care and observation to clarify the diagnostic matters and to attempt appropriate management, particularly without potentially damaging and addictive preparations.

7. In his report dated 26 May 2003, Professor Ball wrote:

   If forced to the point, I think that one would have a tentative diagnosis that she may have a cyclothymic personality, which means that there are swings from activity and happiness to depression, not sufficiently severe to be called illness, but which can affect energy, output, commitment, level of activity, etc and also attitudes towards what is happening to her and around her in those shifting states. Such disorder is well known.

8. Professor Ball was of the view that observations and opinions from people who have known the wife over the years could be of assistance in determining whether the wife has other or parallel disorders or difficulties.

9. Professor Ball continued:

   I emphasise the whole question of substance use and misuse over the recent years is important…(The wife) still appears to be emotionally unstable and vulnerable, and to have had a variety of behavioural problems. I think she should have ongoing psychiatric/psychological supervision and treatment, with the view to making certain that there is no misuse of illegal substances, that her prescribed medication does not consist of stimulants or sedative hypnotics and that her pain syndrome is somehow dealt with in a more effective way, given the appropriate advice from pain specialists…Nevertheless, a vital part of this whole process is to try to clarify where truth and fancy lie in the various descriptions of self and others.

10. During the course of the proceedings, it was not possible to hear and test the wife’s evidence regarding all aspects of the history of her relationship with the husband and his family. I have already commented on the wife’s credibility, however, and note that none of the wife’s family or friends swore affidavits in support of her case or were otherwise involved in the proceedings. According to Professor Ball’s first report, the wife’s parents are in their fifties and are well. They live in Victoria, alternating between residences in Geelong and Gippsland. She also has two sisters.

11. During the course of her evidence, the wife said that she had obtained a statutory declaration from her parents regarding their role in disposing of certain dexamphetamine tablets, but that she did not “…realise that wouldn’t fit in affidavit material”. She then said that her parents were in Queensland “…or they would have come down and done an affidavit had they have realised that that was required by the Court for their information to get for” (sic)[18].

    [18] see Transcript page 268

12. Having regard to the fact that the wife knew from at least September 2002 that her psychological/psychiatric state and her past and present drug use were relevant issues in these proceedings, it is appropriate for me to take the wife’s failure to call any members of her family as witnesses into account in assessing matters such as the wife’s description of past events. I do not accept the wife’s explanation as to why she failed to obtain evidence from (at least) her parents or one of them. After all, she alleged that her parents are supportive of her and her case for residence of E, and that they acquired the property on which she presently resides (with Mr R) specifically for the purpose of assisting her to deal with and overcome the problems in her life. In my opinion, the matters raised by Professor Ball in his report demanded some form of explanation from the wife, and affidavits from friends or family members as to the wife’s past history, behaviour and stability would have greatly assisted her case.

13. I do not suggest that the observations that I have recorded in the previous paragraph necessarily comprise or lead to a strict application of the rule in Jones v Dunkel (1959) 101 CLR 298. Nevertheless, in my view it would have been natural for the wife to produce her parents, her sisters or her friends as witnesses, and one would have expected them to have been available to her (rather than, for example, to the husband) in that role. I do not infer from the absence of this form of evidence that it would have been damaging to the wife’s case if it had in fact been called. I can and do infer, however, that it may not have helped her case. Even without that inference, however I feel that the totality of the evidence before me leaves me with no alternative but to conclude that Professor Ball’s tentative diagnosis that she has a cyclothymic personality (as defined by him) is almost certainly correct. In reaching that conclusion, I do not intend to infer that I am professionally qualified to diagnose the wife (as it were). I am not. My conclusion means no more than that the evidence before me reveals that Professor Ball’s description of the elements of a cyclothymic personality certainly appears to fit the wife.

Wife’s Mental Stability — Suggested “Irrationality and Paranoia”

1. On 11 October 2002 (shortly after E was removed from the wife’s primary care, consequent upon the October Reasons), the wife notified the Department of Human Services that E was at risk in the care of the husband[19]. Amongst other things, the wife alleged that:

   a)the husband and his parents “…were influential people and were buying off Magistrates and lawyers”;

   b)“everyone was against her and she felt that she had nowhere to turn”;

   c)“the legal system was conspiring to make sure that she never saw E”;

   d)the husband “…arranged for a hot water heater that she went to light to blow up and explode in her face”; and

   e)the husband “…arranged for someone to hit her over the head”.

   [19] see exhibit H9

2. Mr Grigg conceded that this notification could be “characterised as irrational and paranoid”. He conceded that her behaviour (in making the notification) may have been exacerbated by her prior use of amphetamines. He submitted, however, that the notification occurred whilst the wife was under the stress of a court order (being the order of 1 October 2002) removing E from her primary care, the need to prepare for further litigation and her attempts to cease the use of amphetamines. Mr Grigg also submitted that a careful reading of the wife’s evidence in relation to the hot water service incident might somehow lead to the conclusion that the wife’s comments were not irrational and paranoid (to use Mr Grigg’s words).

3. The evidence of Mr R’s former wife, Ms R, was to the effect that, in or about May 2002, she and the wife took Ms R’s mother back to the mother’s home in Ballarat. Ms R hardly knew the wife at that stage, but her relationship with the wife and Mr R was cordial. When the three women arrived at the home of Mr R’s mother (which comprises a unit in a retirement village), they found that the gas hot water system was not working.

4. Ms R’s mother suggested to her daughter and to the wife that she would arrange for a worker from the retirement village to check the system. Notwithstanding that suggestion, the wife volunteered to reignite the pilot light. As she attempted to do so, there was an explosion and the wife suffered some burns to her face. She complained that her eyes were “really sore”.

5. It would appear, however, that the burns sustained by the wife in the incident were not serious. According to Ms R, she and the wife went to a pharmacy “to see if they could give her something, and they just said to put…a cold flannel on her eyes”. Ms R then drove the wife home. It seems that the wife required no further, or no further significant, treatment.

1. Ms Clayton conceded that (obviously) it is not up to her to decide with whom E should live in the long term. She conceded that although E’s primary attachment may be to the wife, other factors may combine to outweigh that single factor in the overall determination of the proceedings.

Other Matters — Wife’s Health

1. The wife’s version of the history of the marriage and her medical history appear in Professor Ball’s report. It appears that the wife was involved in a car accident prior to meeting the husband. Professor Ball records that the wife suffered whiplash in the accident, and that she thereafter suffered from fibromyalgia, and associated pain in her muscles and other parts of her body. She required physiotherapy and specialist treatment after the accident.

2. The wife’s evidence as to her health, as contained in her trial affidavit, was extremely vague[23]. Nevertheless, the wife said the following in paragraph 50:

   I still suffer from fibromyalgia and anaemia. I have had treatment from…a qualified muscular therapist. This treatment is severe but my symptoms improve. I now receive treatment from a remedial massage therapist to reduce pain levels and have more energy.

   [23] see paragraphs 37 to 58, under the heading “Issues Concerning My Health”

3. The wife refers to the medication that she is presently taking — being celebrex and efexor. The former is an anti inflammatory, and the latter is used in the treatment of depression and anxiety.

4. It was not suggested by either the husband or the Child Representative that the wife’s medical condition, in itself, unduly inhibits her capacity to properly and effectively care for and supervise E. I have already observed, however, that the wife has self-medicated with marijuana and amphetamines in the past, and that the ongoing nature of her medical problems is a cause for some concern in that regard.

Other Matters — Husband’s Witnesses

1. The husband’s father lives in New South Wales, with the husband’s stepmother. He assisted the husband to deal with his drug use in 1999 and 2001, and is clearly supportive of his son. He deposes in his affidavit to having observed that the husband and Ms P “share a secure and loving relationship”, and that Ms P is very supportive of the husband “…and shares a loving relationship with E”.

2. It is clear that the husband’s father and stepmother are willing and able to assist the husband generally, and in relation to his care of E in particular.

3. The husband’s mother and stepfather reside in Wagga Wagga. They are similarly supportive of the husband, and the husband’s mother also commented upon the “secure and loving” relationship between the husband and Ms P — and “the closeness between (Ms P) and E”.

4. Clearly, the husband is able to call upon his parents and their spouses, should their assistance ever be required.

5. Ms P was born in April 1967. She is divorced, having separated from her first husband in 1997.

6. Ms P describes her work arrangements in paragraphs 3 to 5 of her affidavit. She will complete a part time position with a flower import and export company in December 2003.

7. Ms P confirms that she has assisted the husband in caring for E since the orders were made on 1 October 2002. Ms P’s mother has also assisted in caring for E.

8. In paragraph 16 of her affidavit, Ms P says:

   E and I have bonded with one another and have developed a close and warm relationship. She is a happy and energetic child, and a pleasure to look after.

9. In paragraph 22 Ms P says:

   (The husband) and I have a close and loving relationship. Our relationship is stable and we have discussed our future together, including having a family. I consider our relationship to be a permanent one. I am committed to (the husband) and to E, and have informed (the husband) that he can rely upon me on a day to day basis to care for E as the need arises.

10. Ms P’s mother and Fiona (the wife of Ms P’s cousin) also swore affidavit’s in the proceedings. Both speak positively of the relationship between the husband and Ms P, and the relationship between E and the husband (on the one hand) and E and Ms P (on the other). Again, they are clearly supportive of the husband and Ms P, and willing and able to assist them in caring for E.

11. In my opinion, the evidence of these witnesses (and of the remaining witness — Mrs P’s Aunt) reinforces the conclusion that I have reached to the effect that the husband and Ms P are in a stable, loving and mutually supportive long term relationship, and that the stability and support that they can offer to E extend beyond their own nuclear relationship.

Other Matters — Housing, Education and Other Practical Arrangements for E’s Day to Day Care

1. Each of the parties dealt with their accommodation, supervision and proposed education arrangements for E in their affidavit material. Part of the trial was spent examining the advantages and disadvantages of these proposals. At the end of the day, however, it was not suggested by the husband, the wife or the Child Representative that one set of arrangements was clearly superior to the other.

2. The wife spoke eloquently of the attractiveness of the rural property upon which she resides with Mr R, and of the advantages for E of living in such a location. It is the husband’s view that the arrangements that he has made for E’s accommodation are no less satisfactory than those of the wife.

3. In my opinion, there is no need for me to deal with the proposed accommodation and education arrangements of each of the parties in these Reasons. That is so because those arrangements were not considered to be issues which were worthy of comment or submission. I am satisfied that both parties’ proposed accommodation and education arrangements are more than satisfactory, and will serve to promote E’s best interests.

4. The fact of the matter is that the question for determination in this case is not where E is to live, but with whom. To the extent that formal arrangements of this nature are relevant to this issue, I find that neither party’s proposal is to be preferred to that of the other.

Section 68F(2) Factors

1. Mr Grigg submitted that E’s wish that she live with the wife (as expressed to Ms Clayton) is relevant “in so far as it demonstrates E’s primary attachment to the wife”. Mr Grigg did not suggest that E’s wish was relevant in itself. E is, of course, a very young child. It was Ms Clayton’s opinion that E’s wishes ought not determine the issue of residence. As submitted by the child representative, that, clearly, is the correct approach. In any event, it is apparent that E’s wishes were influenced by the wife — who told her to express them to the counsellor.

2. I find that E has a close and loving relationship with both the husband and the wife.

3. According to Ms Clayton, E’s primary attachment is (or was, at the time of the preparation of the report) to the wife.

4. The wife made no criticism of Ms P. E is comfortable with her. Ms Clayton noted that Ms P obviously cares greatly for E and is happy to be involved in her parenting.

5. It was Ms Clayton’s view that Mr R was “not as impressive as Ms P”.[24] Clearly, Ms Clayton meant that Mr R was not as impressive as a potential co-carer and support person for a parent as Ms P. She observed in the family report that “he tries to support E and her mother but does not seem to be as involved with E as does Ms P…”

   [24] See transcript pp 622-3

6. E has resided in a shared residence arrangement since October 2002. It is not in dispute that prior thereto, and following separation, E lived with the wife (save for a relatively short period in May/June 2002). It is also not in dispute that the existing arrangements for E’s care cannot continue beyond the commencement of E’s first school year in 2004 — because for example, the distance (some one and a half hours travel by car) between the parties’ homes. Having regard to the period of time that has elapsed since October 2002, it is difficult to see how a status quo argument can assist either party’s case. In my opinion, however, the husband’s proposals are likely to provide ongoing stability and certainty in E’s life — and, at the same time, provide her with frequent and substantial contact with the wife. The wife’s proposals, on the other hand, are likely to remove her from what Mr Strum describes (accurately, in my opinion) as “the stable, structured and certain environment” provided by the husband, and will “expose her to a far greater extent to the (potential) chaos and uncertainty (and attendant risk) of the wife’s life and household”.

7. The husband’s proposals allow E to have contact with Mr R’s children during her contact periods with the wife. I note, however, that E did not refer to Mr R’s children — during her interviews with Ms Clayton — as being significant in her life.

8. Until October 2002, the father had regular contact with E. Since then, however, she has resided with him for the majority of the time.

9. I find that E will not be more significantly or adversely affected — at this stage — by a “separation” from the wife (to be placed in the full time care of the husband) then she would be by a “separation” from the husband (to be placed in the full time care of the wife).

10. Having regard to all the evidence before me, I am satisfied that, although a permanent separation from the wife may be distressing for E in the short term, it is likely that she will soon adjust to her new environment (in the broadest possible sense). I am confident that the husband and Ms P have the necessary patience and sensitivity to enable them to reassure E at all times, and to assist her to overcome whatever distress she may feel as a consequence of separation from the wife.

11. There is no doubt that practical difficulties exist in relation to the facilitation of contact between E and the husband and the wife. They live some considerable distance apart. Suffice it to say, though, that the practical difficulty and expense of E having contact with each of her parents will not — in my view — unduly affect her right to maintain personal relations and direct contact with them on a regular basis. Clearly, E must undertake some travel whether she resides with the husband or the wife.

12. It is common ground that the parties will share one half of the travel necessary to facilitate contact, and the parties’ proposals reflect that understanding.

13. The wife conceded in her evidence that if the husband was awarded residence, then it would be in E’s best interest to have contact with her each alternate weekend.

14. I am satisfied that the husband has the capacity to provide for E’s needs — including her emotional and intellectual needs. If the husband has any difficulty providing for those needs himself, then I am satisfied that — with the assistance of Ms P — he will find a way to ensure that those needs are properly and effectively met by others. I would add that the husband’s financial capacity to provide for E was not in issue.

15. The wife’s evidence is that she is engaged in home duties and runs a small business from her home. There was no evidence of any significant income from that business. It would appear, therefore, that the wife’s household income is largely provided by Mr R.

16. Mr R is a long haulage truck driver. He recently commenced new employment, in relation to which he estimated that he would be paid something in the order of $600.00 to $700.00 per week (according to the distance travelled). Prior to that he had been in receipt of social security benefits.

17. Mr R was a long term user and abuser of amphetamines. Although he claims to have ceased their use since October 2002, he has not undergone any testing or treatment. He conceded that he had previously ceased using amphetamines, but had returned to their use on each occasion.

18. During the course of his evidence, Mr R also said that he “used to be an alcoholic” until approximately seven years ago.

19. Mr R’s work as a truck driver means that he will be away from the wife’s home for 2 periods of approximately 36 hours in each week. The evidence before me revealed that amphetamine use is endemic in the transport industry.

20. As Mr Grigg conceded, the relationship between the wife and Mr R has been volatile in the past. He also conceded that Mr R “has previously been a heavy user of both legally and illegally obtained amphetamines”. Notwithstanding these concessions, Mr Grigg submitted that there are no current concerns relating to violence between the wife and Mr R and that there are unlikely to be future concerns regarding such a matter if a monitoring routine is put in place. Mr Grigg also drew the court’s attention to Mr R’s evidence to the effect that he no longer uses amphetamines and will not do so in the future.

21. The evidence before me reveals that there were incidents of physical and/or verbal violence between the wife and Mr R:

    a)an incident on 1 July 2002 at the workshop operated by the wife and Mr R (which incident was witnessed by Mr R’s former wife);

    b)an incident on or about 16 September 2002, when the wife and Mr R were in the vicinity of Queenscliff (following which, or at or about the time of which, the wife left Mr R, with E, to reside in a Refuge);

    c)an incident on or about 22 October 2002 when the wife sustained a swollen lip and attended at the Werribee Police Station; and

    d)an incident on 28 October 2002, in relation to which the wife told Dr Love on 29 October 2002 that she had been abused the previous evening by “her business partner” and she had called the Police.[25]

    [25] See exhibit H4

22. In relation to two or three of the incidents referred to above, there was Police involvement. The wife conceded that she was struck by Mr R in October 2002, but asserted that she “provoked” the assault.

23. I have already indicated that I have concerns regarding the wife’s credibility. I have similar concerns regarding Mr R’s credibility. For example, in an earlier affidavit, Mr R swore that the husband offered to pay him cash if he would make an affidavit against the wife. Mr R eventually (and reluctantly) conceded that there was no offer of cash. In my view, that allegation was calculated to paint the husband in the worst possible light, and Mr R effectively admitted as much. The husband, for his part, denied that he made any inappropriate offer to Mr R, and I accept the husband’s evidence in that regard without hesitation.

24. Many of Mr R’s answers to questions were non responsive, or evasive. At times he would answer a question with a further question.

25. In the light of my findings regarding the credibility of the wife and Mr R and having regard to the other matters described in these Reasons, I am not prepared to conclude that their relationship is unlikely to be volatile in the future. Nor can I conclude that Mr R is unlikely to use amphetamines (or some other drug of addiction) in the future. I find that their relationship will continue to be volatile, and that such volatility will continue to amount to a stressor or potential stressor in the wife’s life. In my opinion, the capacity of the wife to adequately meet E’s needs (in the broadest sense) is adversely affected by her relationship with Mr R.

26. I have already dealt with the wife’s drug use and the evidence relating to her psychiatric/psychological/emotional condition. I do not doubt that the wife has the capacity to provide for E’s needs (including her emotional and intellectual needs) much of the time. Until such time as the wife properly and effectively deals with her own problems, however, I find that there will inevitably be occasions on which the wife’s capacity to provide for E’s needs will be impaired. In my view, there remains a need to protect E from any form of harm that may be caused from being subjected or exposed to the wife’s (at times) inappropriate or irresponsible behaviour. I refer, in this regard, to the wife’s drug use and to the instability that results from the wife’s behaviour in that regard and the volatility of her relationship with Mr R.

27. I am well aware, of course, that the evidence before me does not suggest that E has ever come to serious harm (of any sort) whilst she has been in the wife’s care. That is a factor that I take into account and weigh in the balance, and it is certainly not without significance. But, s. 68F(2)(g) speaks of a “need to protect” a child from certain behaviours. In my view, the fact that such behaviours have not harmed E in the past does not mean that they could not harm her in the future.

28. I am satisfied that the husband has demonstrated an appropriate attitude to E, and to the responsibilities and duties of parenthood, since (at least) the time that he commenced the current proceedings. I am aware that there have been significant periods in the past when the husband has not demonstrated an appropriate attitude to the responsibilities and duties of parenthood. Relevantly, prior to separation the husband abused drugs and alcohol. I find that he no longer abuses drugs and alcohol, and I find that he no longer involves himself in any activity that could effectively compromise his care of or his relationship with E.

29. I have not ignored the period in May/June 2002 when the husband acted in such a way as to retain the care of E. I have dealt with his actions in that regard elsewhere in these Reasons. Although I have commented adversely on his actions a that time, I accept that his primary motivation was the promotion of E’s best interests. It is to the husband’s credit that he did not to attempt (at trial) to put a gloss on his actions at that time, and that he accepted the court’s criticism of his behaviour in a mature and responsible fashion. His evidence was that he has learned from the experience and that he would not behave in such a manner in the future, and I accept his evidence in that regard.

30. There can be no doubt that, for much of the time, the wife has also demonstrated an appropriate attitude to E, and to the responsibilities and duties of parenthood. For her to pursue the current proceedings — opposed as they are, by the husband and his extended family — also demonstrates to me that the wife has considerable strength of character and that she is prepared to subject herself to criticism, strain and anxiety in order to promote what she believes to be E’s best interests. As is the case with the husband, there have been periods in the past when the wife has not demonstrated an appropriate attitude to the responsibilities and duties of parenthood. I also accept that the attitude that she then displayed was at least partially a consequence of the strained relationship that she had with the husband at that time, and her own drug abuse. Regrettably, I cannot accept the wife’s assurance that she will no longer involve herself in activities that could effectively compromise her care of and relationship with E. I am left with hope, rather than confidence, that the wife can demonstrate an appropriate attitude to the responsibilities and duties of parenthood on a consistent basis for an extended period into the future.

31. I do not doubt that both parties love E. The reality is, however, that such a sentiment is often a “given” in residence cases. The husband has done a great deal to improve his understanding of his role as parent, and to confront and overcome the problems that he has experienced in his life. As I have observed elsewhere in these Reasons, I have no doubt that the wife has good parenting skills — but I am not satisfied that she has done enough to confront and overcome the problems that she has experienced in her life. That is of particular concern when regard is had to the recommendations that were made by Professor Ball. In my opinion, the wife has not yet reached the point of understanding that her inability to recognise, confront and deal with her own problems may be likely to impact adversely on her capacity to care for E.

32. I am satisfied that the husband can be relied upon to comply with any orders that the court may be minded to make regarding contact. I have some concerns regarding the wife’s attitude in this regard. She has demonstrated in the past that she has the capacity to ignore orders. I refer, in this regard, to the wife’s failure to comply with previous orders regarding drug use and testing arrangements. To the extent that this may amount to a factor to be taken into account in these proceedings, I find that it is a factor that favours the husband’s case.

1. The child representative submitted, and I accept, that it is common ground that E has been relocated to a number of dwellings since separation, and that E has been retained by one parent or the other since separation. It is noted in the family report that E’s behaviour is chaotic. The child representative submitted that stability is a key factor in these proceedings, and that the husband’s proposals are more likely to promote that aim than are the wife’s proposals. That is a submission with which I concur.

Conclusion

1. In his written submissions, Mr Meehan concluded as follows:

   The child representative submits that the balance of the evidence at the conclusion of the trial does not support the counsellor’s recommendation made on 13 June 2003. In particular, the child representative notes that the counsellor had not at that stage read Professor Ball’s report and that her evidence…acknowledges that whereas the principal thrust of her report related to primary attachment (and thus favoured the wife) issues of not only safety but of stability must be assessed in weighing up the two available options. In the child representative’s submission, that assessment favours an order that E live with her father.

2. For the reasons which I have given above, I agree with the child representative’s submission. I have borne firmly in mind, throughout my consideration of the parties’ competing applications, the various factors and considerations referred to in B & B: Family Law Reform Act (1975) (see above), and in the other legislative provisions or authorities referred to in paragraphs 52 to 62 above. I have imposed no legal or other onus on any party, and have applied no presumptions of any sort. I have deduced from the evidence, and my assessment of the parties and the witnesses, the essence of their competing proposals — and I decide, having considered all relevant factors, that the husband’s proposals would be more likely to advance E’s best interests (which comprise the paramount consideration in these proceedings).

3. I am well aware that the orders which I propose will alter a status quo that adhered until October 2002. In the circumstances of the present case, however, and for the reasons which I have given throughout this judgment, any changes that the orders may require are necessary and in E’s best interests.

Orders

1. I am satisfied that, by in large, the orders proposed by the Child Representative are in E’s best interests. Subject to some minor amendments, I propose to make orders in those terms.

2. Both the husband and the Child Representative have proposed that the wife have contact with E for two out of three weekends. I am aware that the wife may be of the view that such an arrangement is not in E’s best interests (due, principally, to the travelling involved). I shall hear Counsel, therefore, as to any suggested amendments to the proposed orders.

I, Paul O’Halloran, certify that the preceding two hundred and twenty (220) paragraphs are a true copy of the reasons for judgment of Walters FM

Associate: 

Date:  1 December 2003