GANIM & BARAK - [2010] FMCAfam 1079

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GANIM & BARAK

[2010] FMCAfam 1079

FAMILY LAW – Children – Parenting Orders – Interim Orders – drug issues – whether time spent by father with the child should be supervised – whether child should be taken to see a psychologist – whether mother should be permitted to take the child out of Australia for the purpose of a visit to Canada – best interests of the child – credibility of witnesses – court cannot make a finding of fact about parties’ credibility where evidence not tested by cross-examination.

PRACTICE & PROCEDURE – Interim Parenting Proceedings – Affidavits – affidavits in interim parenting proceedings – Practice Note.

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 68L, 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth) Sch. 2

Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Line & Line (1996) 21 Fam LR 259; (1997) FLC 93-296
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1

Applicant:

MS GANIM

Respondent:

MR BARAK

File Number:

SYC 4130 of 2010

Judgment of:

Scarlett FM

Hearing date:

27 September 2010

Date of Last Submission:

27 September 2010

Delivered at:

Sydney

Delivered on:

28 September 2010

REPRESENTATION

Applicant:

Appeared in person

Counsel for the Respondent:

Mrs Bridger

Solicitors for the Respondent:

Jack Rigg Solicitors

Counsel for the Independent
Children’s Lawyer:

Mr Gardner

Independent Children’s Lawyer:

Ross A Clarke & Associates

ORDERS UNTIL FURTHER ORDER

That the Respondent Father is to spend time with the child [X] born [in] 2002 as follows:
(a)From 12 noon on Thursday 30 September 2010 until 3:00pm on Sunday 3 October 2010; and
(b)From 9:00a.m. until 3:00pm on Sunday 17 October and each alternate Sunday thereafter; and
(c)At such other times as the parties shall agree.
The time spent by the Father with the child as provided by Order (1) is to be subject to the following conditions:
(a)The Father must not consume alcohol or administer to himself any illicit drug at any time whilst he is spending time with the child or for twenty-four (24) hours beforehand;
(b)The Father must provide and continue to provide to the Mother or her legal representative on three occasions in each week urine drug screen tests the samples for which are to be provided by the Father to a qualified medical practitioner within twenty-four (24) hours of the commencement and conclusion of each period of time he spends with the child;
(c)All time spent by the Father with the child is to be at the home of the paternal grandmother MS B at Property M in the State of New South Wales; and
(d)All time spent by the Father with the child is to be in the presence of the said paternal grandmother MS B.
The Father may communicate with the child by telephone each Monday, Wednesday and Friday between the hours of 5:00pm and 7:00pm and the Mother shall do all such things necessary to enable this telephone communication to take place.
The Mother is restrained from taking the child to any psychologist or counsellor without informing the Father of her intention to do so.
The Father is to have sole responsibility for making decisions about the child’s day to day care, welfare and development when the child is in his care.
The Mother is to have sole responsibility for making decisions about the child’s day to day care, welfare and development when the child is in her care.
Each party must notify the other of any medical or other emergency affecting the child as soon as reasonably possible and in any even within four (4) hours.
Neither party is to denigrate or criticise the other party in the presence or hearing of the child or permit any third person to do so.
Neither party is to discuss these proceedings or any evidence in these proceedings with the child or permit any third person to do so.
Each party is restrained by injunction from removing or attempting to remove the child [X] born [in] 2002 from the Commonwealth of Australia.
The Mother must file a Notice of Address for Service and serve a sealed copy on the Father and the Independent Child’s Lawyer within seven (7) days.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 4130 of 2010

MS GANIM

Applicant

And

MR BARAK

Respondent

REASONS FOR JUDGMENT

Application

This is an application for interim orders relating to the parties’ son, [X] who is eight years old. The child lives with the Mother. At present, the Father is only having telephone communication with him, as the earlier orders made by the Family Court on 26^th October 2005 were suspended by order of this Court on 5^th July 2010.
The Mother, in her Case Outline filed in Court on 16^th September 2010, seeks either that the suspension remain in force or, in the alternative, that the Father spend time with the child from 3:00pm until 5:00pm on Saturdays, such time to be supervised by an agreed person, or at contact centre.
The Mother also seeks that this order be conditional upon:
a)The Father undertaking not to consume alcohol or drugs 24 hours before or during the time he spends with the child; and
b)The Father continuing to provide the results of drug and alcohol testing.
The Mother also seeks to obtain Canadian and Australian passports for the child and for permission to remove him from Australia for a holiday in her native Canada for up to six weeks in December 2010 and January 2011.
On the other hand, the Father seeks orders that the child live with him:
a)From 12 noon on Thursday 30^th September until 3:00pm on Sunday 3^rd October 2010, to coincide with the time that his other children are with him;
b)For half of each school holiday period; and
c)At such other times as the parties agree.
The Father also seeks orders that would allow him to speak to the child on the telephone each alternate day.
The Father opposes the Mother:
a)Taking the child to any psychologist or counsellor without his knowledge or consent; and
b)Taking the child out of the country.
The Independent Child’s Lawyer takes the view that it is in his interest to spend time with his father but that this time should be supervised, because of the Father’s drug history. The ICL would not necessarily agree that two hours per week was a sufficient time for this little boy to spend with his father.

Background

The Father is 37 years old. He was born [in] 1973.
The Mother was born in Canada [in] 1979. She is 31 years of age. The Mother arrived in Australia in 2001 and commenced living with the Father in June of that year. She became pregnant with the child [X] in late 2001 and returned to Canada about two months before he was born. She remained in Canada for a period of four months after the child was born, and then returned to Australia.
It has part of the Mother’s case that the Father was involved with illicit drugs during their relationship.
The parties separated in January 2005.
Later that year the Father commenced a relationship with a woman named Ms G. They were together until 26^th June 2010. There are two children of that relationship, a little girl named [Y], who was born [in] 2007, and a little boy named [Z], who was born [in] 2009. They live with their mother.
Meanwhile, the Mother formed a reasonably brief relationship with one Mr D. The Father spent time with the child on weekends.
Later that same year, the Father commenced parenting proceedings in the Family Court of Australia at Sydney. On 26^th October 2005 the parties entered into consent orders that provided that the child would live with:
a)The Father from Sunday 12:00pm to Wednesday 3:00pm each week; and
b)The Mother from Wednesday 3:00pm to Sunday 12:00pm.
The consent orders provided that the parties would have joint responsibility for the child’s long term care, welfare and development and each party would have sole responsibility for making day to day decisions when the child was in their care.
The orders went on to provide for arrangements to be made once the child started school. He commenced school in 2008 and then spent half of the school holidays with each parent.
The Father, Ms G and their two children had been living in Sydney. On 8^th June 2010 they moved to [M], in New South Wales. The Father’s mother, Ms B, lives in [M].
On 19^th June 2010 Ms G was unpacking some belongings, including children’s toys, after their move from Sydney and found two apparently used syringes in with the children’s toys. She later, on 25^th June, found some white powder with a crystalline residue. Ms G contacted the Mother to advise her.
The Mother contacted the NSW Police and the Department of Community Services the next day. She contacted the Father the following day and advised him that she would be retaining the child in her care.
The Mother sought legal advice and on 30^th June 2010 filed her application to suspend the Orders of 26^th October 2005.
The application was returnable on 5^th July 2010. On that day I made orders:
a)Suspending Order 1.1 and 1.6 to 1.10 inclusive of the Orders of 26^th October 2005;
b)That the child [X] live with the Mother; and
c)The Father was to file a response and an affidavit in support.
The parties attended a Child Dispute Conference on 29^th July. The Family Consultant Memorandum showed that the parties reached only a partial agreement, and with great reluctance on the Mother’s part, about the resumption of the Father spending time with the child. The Mother’s preferred position was that the child would spend no time at all with the Father until a judicial decision was made. The issue, so far as the Mother was concerned, was the Father’s drug use.
There was agreement that the Father would continue urinalysis three times a week and the Father’s time with the child would be supervised either by the paternal grandmother or the Father’s brother and sister-in-law.
The Family Consultant recommended that an Independent Children’s Lawyer be appointed.
On 2^nd August 2010 I made an order under s.68L of the Family Law Act that the child’s interests should be separately represented by a lawyer and listed the matter for interim hearing on 16^th September.
On that date, I agreed to adjourn the interim hearing, as the Applicant wished to rely on a late-filed affidavit.
The Respondent filed an affidavit in reply. Neither affidavit was particularly helpful.

Evidence

The Applicant Mother deposed to three affidavits, sworn or affirmed on 30^th June, 17^th August and 14^th September 2010. She also relies on two affidavits sworn by Ms G on 30^th June and 14^th September 2010.
The Respondent Father has sworn three affidavits, on 20^th July, 31^st August and 23^rd September 2010. He also relies on an affidavit affirmed by his mother, Ms B, on 16^th September 2010.
The Mother deposes that:
a)From the time the orders were made by consent in the Family Court on 26^th October 2005 until 23^rd June 2010 the Father was seeing the child [X] in accordance with the orders;[1]
[1] Affidavit of Ms Ganim 30/6/2010 at paragraph [10]
b)As a result of a text message she received from Ms G on 25^th June 2010 she had a telephone conversation with her and ascertained that Ms G had found two syringes and pouch containing a white powdery substance in her children’s toy box;[2]
[2] Ibid at [11]-[12]
c)The two women attended [omitted] Police Station and handed the items in to the police;[3]
[3] Ibid at [13]
d)The Mother advised the Father on 27^th June that she would not be making the child available to see the Father because of the drug find;[4]
[4] Affidavit of Ms Ganim 30/6/2010 at [17]
e)The Mother took the child out of school for three days;[5]
[5] Ibid at [21]-[22]
f)The Mother saw the Father taking the drug ecstasy on one occasion in August 2001 but he admitted to her that he had consumed ecstasy on other occasions;[6]
[6] Ibid at [23]-[24]
g)On other occasions she suspected he had taken an illicit substance but he denied it;[7]
[7] Ibid at [25]
h)On two occasions in late 2004 she saw the Father consume the drug “ice”;[8]
[8] Ibid at [26]
i)On another occasion in 2004 she found a syringe in the garage of their residence;[9]
[9] Ibid at [27]
j)On 2006 the Mother found an “ice pipe” in a box of the child’s books when the Father was staying with her and she asked him to leave;[10]
[10] Ibid at [29]
k)Since January 2010 she has noticed an increase in the Father’s erratic behaviour and she has concerns about the child’s safety whilst in the care of his father;[11]
[11] Ibid at [32] and [37]
l)She has noticed a change in the child’s behaviour and has been recommended by his school to refer him to a child psychologist;[12]
[12] Ibid at [33]
m)When the child was staying with his father in June he travelled from [M] to [omitted] Public School, a journey that takes one hour and forty minutes;[13]
[13] Affidavit of Ms Ganim 17/8/2010 at [4] and [5]
n)The child suffers from motion sickness and complains that he does not like travelling in his father’s car for that reason;[14]
[14] Affidavit of Ms Ganim 17/8/2010 at [6] and [7]
o)On 21^st June 2010, whilst he was staying with the Father, the child did not attend school because his father gave him a “day off”;[15]
[15] Ibid at [8]
p)The child has exhibited changes in his behaviour and has been referred to a psychologist, Dr F;[16]
[16] Ibid at [10]-[14]
q)The child’s behaviour has subsequently improved;[17]
[17] Ibid at [15]-[18]
r)The Father seldom attended to the care of [X] when he was a baby;[18]
[18] Affidavit of Ms Ganim 14/9/2010 at [2.6]
s)The Mother decide to end the relationship with the Father in January 2005;[19]
[19] Ibid at [7]
t)The Father used cannabis several times a week and would pawn or sell items to make money to buy drugs;[20]
[20] Ibid at [7 (a)]
u)The Father drank alcohol every day, and the combination of alcohol and drugs made him moody and verbally aggressive;
v)The Mother lived with Mr D for about four months;[21]
w)When she was moving the Father looked after [X] for two to three days, and when she collected the child the Father appeared to be “high” on drugs and his flat was in a squalid state;[22]
x)The Father commenced proceedings in the Family Court and on 1^st August the parties entered into Interim Consent Orders which provided that the child lives with the Father during the week and the Mother on weekends;[23]
y)On occasions in 2006 and 2007 the Mother observed the Father to be affected by alcohol on various occasions;[24]
z)The Mother was assaulted on New Year’s Eve 2009 and while she was recovering the child stayed with the Father;[25]
aa)The Mother denies that she has ever been a heavy drinker;[26]
bb)The Mother admits using marijuana prior to the child’s birth and for a period of about six months in 2009 but denies using drugs since then;[27]
cc)The Mother wishes to take [X] to Canada to visit her mother and other family members;[28]
dd)Her grandfather has cancer and is not in good health.[29]
[21] Ibid at [9]
[22] Ibid at [10]
[23] Ibid at [11]; Annexure “A”
[24] Ibid at [12]
[25] Ibid at 13]
[26] Ibid at [27]
[27] Ibid at [29]
[28] Ibid at [7]
[29] Ibid at [8]
Ms G deposes that:
a)She is the former de facto partner of the Respondent and has two children by that relationship;[30]
b)On 19^th June 2010 she discovered two syringes whilst unpacking a box of the children’s toys;[31]
c)On 25^th June 2010 she found a small plastic bag with a white powdery substance in it in the Father’s trouser pocket; she then sent a text message to the Mother;[32] and
d)She has noticed that the Father has become more agitated and easily angered since early 2010.[33]
[30] Affidavit of Ms G 30 June 2010 at paragraphs [1] and [3]
[31] Ibid at [6]
[32] Ibid at [7]
[33] Ibid at [11]
Ms G deposed in her later affidavit that:
a)She remains separated from the Father, but he has seen the children on a number of occasions since 16^th August, almost always in her presence;[34]
b)She does not allow the Father to spend longer than half an hour or an hour with the children, or to see them unsupervised, because she fears for the children’s safety due to his mood swings, aggressiveness, drug taking and alcohol abuse;[35]
c)From late 2005 until 30^th October 2007 the Father used drugs, such as ice, ecstasy and marijuana, and consumed excessive alcohol most days of the week;[36]
d)After October 2007, whilst she did not see him taking ice or ecstasy, he would on numerous occasions stay up all night and would appear to be sweaty and with glazed eyes;[37]
e)The Father kept [X] home from school on 21^st June 2010 although the child was not sick;[38]
f)She found an insulin needle wrapper in the bathroom on 4^th May and on 28^th May 2010 he asked her if she had seen his “pot” which he had left in the kitchen;[39]
g)She hoped that the Father would reduce his drug and alcohol use but as 2010 progressed his anger escalated.[40]
[34] Affidavit of Ms G sworn 14.9.2010 at paragraphs [2] and [3]
[35] Ibid at [4]
[36] Ibid at [5.28]
[37] Ibid at [5.29]
[38] Ibid at [5.58]
[39] Ibid at [7]
[40] Ibid at [12]
The Father, in his affidavit of 20^th July 2010, denied the Mother’s allegations of drug use.[41]
[41] Affidavit of Mr Barak 20.7.2010 at paragraph [19]
The Father deposed that:
a)He occasionally used drugs for recreational purposes but stopped in 2001;[42]
b)On one occasion in February 2010 he used drugs at [M] because he was severely depressed over the deaths of a friend and his father within three days of each other;[43]
c)The syringes were safely secured in an area where the children did not have access;[44]
d)He denies that the bag with crystalline residue was in his trousers and asserts it was securely locked in a container;[45]
e)He has undertaken urinalysis tests and the test results indicate no presence of illegal drugs;[46] and
f)He has undertaken a blood test, including a Liver Function test, and the test result is in the normal range;[47]
[42] Ibid at [22]-[23]
[43] Affidavit of Mr Barak 20.7.2010 at [25]
[44] Ibid at [27]-[29]
[45] Ibid at [30]-[31]
[46] Ibid at [33]-[34], Annexure “A”
[47] Ibid at [35], Annexure “B”
The Father deposed in his affidavit of 31^st August 2010 that he has cared for the child [X] since he was born.[48]
[48] Affidavit of Mr Barak 31.8.2010 at paragraph [6]
He also deposed that:
a)the Mother has not complied with Court orders for him to spend time with [X] and has moved residence about eleven times;[49]
[49] Ibid at [12] - [16]
b)the Mother has had numerous relationships;[50]
[50] Ibid at [17]
c)he has been very involved in the child’s day to day care since he was born;[51]
[51] Ibid at [19] and [ 26]
d)the Mother has always been a heavy drinker and drinks to get drunk, when she has become abusive;[52]
[52] Ibid at [27]
e)he has never been dependent on or addicted to drugs;[53]
[53] Ibid at [28]
f)he did not use drugs from 2001 until February 2010, when he was distressed over the deaths of his father and his friend and obtained some amphetamines locally, which he then used;[54]
[54] Affidavit of Mr Barak at [28] and [29], [32] – [34]
g)
he has undergone voluntary urinalysis testing between 6 and

31 July, 3 and 24 August 2010;[55]
h)he has taken the child to school and the drive takes about one hour and ten minutes;[56]
i)the child has never been susceptible to motion sickness;[57]
j)he kept the child away from school on 21^st June 2010 because the child complained of feeling unwell;[58]
k)he was unaware that the child was seeing a psychologist until these proceedings commenced;[59] and
l)he has seen his children by Ms G almost daily since 16^th August 2010 and has taken the children out on his own.[60]
[55] Ibid at [35], Annexure “B”
[56] Ibid at [54] and [55]
[57] Ibid at [56]
[58] Ibid at [58]
[59] Ibid at [62]
[60] Ibid at [65]

In his affidavit sworn 23^rd September 2010, the Father reiterated his claims that it was the Mother who drank excessive amounts of alcohol and used cannabis.[61] He denies the Mother’s allegations in her earlier affidavits and asserts that he fears she may leave Australia with the child and not return from Canada.[62]
[61] Affidavit of Mr Barak 23.9.2010 at paragraph [9]
[62] Ibid at [44]-[47]
The Father also devotes a considerable amount of space to describing his relationship with Ms G.[63] Ms G has given affidavit evidence on behalf of the Mother but is not a party to the application. The evidence is of little relevance to what has to be decided in this interim hearing.
[63] Ibid at [48] – [81]
The Father’s mother, Ms B, affirmed an affidavit on 16^th September 2010. She deposed that she was aware that the Father and the Mother were taking drugs before [X] was born but has never seen the Father under the influence of drugs, nor has she seen him, drunk or affected by alcohol.[64]
[64] Affidavit of Ms B 16.9.2010 at paragraphs [3] and [4]
Ms B deposed that:
a)She had visited the residences where the Father had lived with the Mother and never had any concern about their cleanliness;[65]
b)She has never been concerned about [X]’s safety whilst in the care of his father;[66]
c)She has a close bond with [X];[67]
d)She has seen the mother drink wine but has not seen her drunk;[68] and
e)She was recently with the Father when he was talking to the child on the telephone and she heard him asking the Father when he was going to see him.[69]
[65] Ibid at [12]
[66] Ibid at [13]
[67] Ibid at [14]
[68] Ibid at [17]
[69] Ibid at [19]

Issues

Despite the considerable amount of affidavit material filed, the issues to be decided are:
a)For how long and in what circumstances the Father will spend time with the child;
b)Whether the Father’s time with the child needs to be supervised due to his use of illicit drugs;
c)Whether the Mother may take the child to see a psychologist or counsellor without informing the Father; and
d)Whether the Mother should be permitted to take the child out of Australia for a visit to Canada.

Submissions

Counsel for the ICL, Mr Gardner, submitted that it was in the child’s best interests to spend time with his father but that there were concerns about the Father’s drug use. Thus, the Father’s time with the child should be supervised. The proposal of two hours a week at a contact centre did not appear to be adequate.
The ICL had no position on whether the Mother should be permitted to take the child out of Australia.
Counsel for the Father, Mrs Bridger, conceded that the affidavit consisted of allegations and denials and that there was no opportunity in an interim hearing for the parties’ evidence to be tested by cross-examination. However, she submitted that the Court should find that the Mother’s evidence was internally contradictory and that the Court should therefore find that the Mother’s account was not credible.
Whilst three of the urinalysis results annexed to the Father’s affidavits did not show a clear result, as two of them indicated the presence of codeine, she submitted that this was explained by the fact that the Father had taken codeine as a painkiller for a legitimate reason. The evidence shows that the Father has been free of drugs since 2001, apart from one slip early in 2010, which he had explained as being caused by his depression over the deaths of his father and his friend.
It was also submitted that the affidavit evidence of Ms G was “fanciful and fabricated”.
The Father, she submitted, was now seeing his other children unsupervised and the same ought to apply in respect of the child [X]. One of the objects set out in s.60B of the Family Law Act is to ensure that the best interests of children are met by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child (s.60B(1)(a)).
The Father should be able to spend time with the child unsupervised, as, she submitted, is presently the case with the two children by his relationship with Ms G.
Further, counsel for the Father submitted that there was no evidence that would justify the child being taken to see a psychologist and that an order should be made restraining the Mother from taking him to see any psychologist or counsellor.
Again, it was submitted that the Mother has no ties in this country as her family live in Canada, where both she and the child were born. Consequently, there is a risk that she would decide not to return to Australia with [X]. Even though Canada is a party to the Hague Convention on the Civil Aspects of International Child Abduction, the Father should not have to be put to the trouble and expense of seeking a remedy in that way if the mother should decide not to return to Australia.
The Mother was at somewhat of a disadvantage as her lawyer had withdrawn on the morning of the hearing. The Mother advised that she intended to obtain other representation. However, she was obliged to appear for herself at the hearing.
Her submission was that, whilst she conceded that it was in the child’s best interests to spend time with his father and not just speak to him on the telephone, she was firmly of the view that the time should be supervised, due to the Father’s drug consumption. She was of the view that the Father had continued to take drugs until at least June 2010, when Ms G contacted her about finding the syringes and the plastic bag containing the powdery substance.
The Mother cast doubt on the Father’s claim that his admitted taking of amphetamines in February 2010 was an isolated incident. She submitted that it was not a normal reaction to grief to go out to obtain an illicit drug and it was noteworthy that the Father was able to obtain a supply of amphetamine locally.
The Mother denied that she and Ms G had collaborated to fabricate a claim against the Father. She said that both she and Ms G were worried about the Father’s ongoing drug use.
The Mother also submitted that the child became carsick when travelling to and from his father’s home in [M] and that the Father should spend time with him in Sydney.
Whilst the Mother had not made any arrangements to take [X] to Canada, she did want to take him there to see her parents. He was born in Canada and has extended family members there who have not seen him since he was a baby.

The relevant law

When deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s.60CA of the Act). The primary considerations in determining what is in the child’s best interests are the benefit to the child in having a meaningful relationship with both of his parents and the need to protect him from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s.60CC(2)).
There are other matters for the Court to consider, set out in s.60CC(3) of the Act.
Again, the Court must consider whether the presumption in s.61DA applies, that equal shared parental responsibility is in the best interests of the child (Goode & Goode[70]).
[70] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
In any application to take a child out of the jurisdiction temporarily, the Court must consider whether there is a risk that the child will not be returned to Australia. In Line & Line[71], it was held that the Court must consider the degree of risk that the child will not be returned to Australia. One consideration is whether the country of travel is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
[71] (1996) 21 Fam LR 259; (1997) FLC 92-729
In this case, Canada is a signatory, as Schedule 2 of the Family Law (Child Abduction Convention) Regulations 1986 shows. However, the Court must also consider the question of an adequate cash security and such matters as the existence of continuing ties between the departing parent and Australia, the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues), and the existence and strength of possible motives to remain in the other nominated country (Line & Line[72], per Murray, Lindenmayer and Kay JJ at [4.49]).
[72] supra

Conclusions

Counsel for the Father has submitted that the Court should make adverse credibility findings against both the Mother and Ms G. A finding that Ms G’s evidence is “fanciful and fabricated” is, in my view, a finding that she is not a credible witness. The difficulty with this submission is that neither of them has had her evidence tested by cross-examination.
The Full Court referred to this very issue in Goode & Goode:
For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[73]
[73] (2006) 36 Fam LR 422 at [68] per Bryant CJ, Finn and Boland JJ
A finding that neither the Applicant nor Ms G can be believed on their evidence is a finding of fact (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[74], per McHugh J at [67]). In the absence of oral evidence by either the Mother or Ms G, I am not in a position to make an adverse factual finding about their credibility.
[74] (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1
It follows that there is evidence that the Father has been taking illicit drugs to a far greater extent than he is admitting in his affidavits. Looking at his claim that he only slipped back into drug use in February 2010 as a result of his depression over the death of his father and a friend, it is perhaps surprising that the Father did not appear to have any difficulty in obtaining amphetamines in [M]. Again, if there was only the one isolated incident, why did the Father not dispose of the syringes and the plastic bag containing powdery residue before they were discovered by Ms G in June?
Ms G’s evidence is that her two children have only been spending short periods of time, half an hour to an hour, unsupervised in their father’s company, because of her concerns about his drug use, or potential drug use.
There is a concern that the Father is not completely clear of his involvement with illicit drugs, notwithstanding the fact that most of his urinalysis tests have yielded a negative result. The Father needs to continue undergoing these tests for the time being. I would be reluctant to make an order that the child should spend any but the shortest amount of time with the children in his care without another responsible adult present.
There is evidence from the Mother as to why she has taken the child to a psychologist. She should, however, inform the Father of this, as it is something he should know about his child.
The best interests of the child are the paramount consideration.
It is conceded by all parties that it is of benefit to him to have a meaningful relationship with both of his parents. However, the need to protect him from harm by being exposed to abuse or neglect due to drug use by the Father necessitates a cautious approach to the arrangements for the time spent with the Father. I consider that this time should be spent at the paternal grandmother’s home in [M], with the grandmother present. If [X] spends time with his father at the same time as the Father’s other two children are present, this would appear to be beneficial, as it would appear that Ms G would be present for at least part of that time. Her opposition to the Father’s drug use is apparent.
[X] is too young to express his views. He appears to have a good relationship with his mother. On balance, notwithstanding the Mother’s reservations, he appears to have a good relationship with his father as well, and it would be beneficial for him to start seeing his father again, rather than just talking to him on the telephone.
The child apparently has a good relationship with his paternal grandmother, Ms B. On her evidence, she has a close bond with him.
There is no evidence as to how [X] gets on with his two half-siblings.
The Mother acknowledges that there is a need to encourage a close and continuing relationship between [X] and his father, subject to her concerns about his use of drugs.
The likely effect on the child of separation from either one of his parents would seem to be detrimental to him. There is no evidence about [X]’s relationship with his half-siblings, but separation from them would presumably not be beneficial. The effect on the child of separation from his paternal grandmother would presumably not be to his benefit.
The Mother raises the question of the practical difficulty of the child spending time with his father in [M] due to the travel and the fact that he suffers from motion sickness. However, at this stage the difficulty does not seem to be insurmountable should be capable of being dealt with by the parents. It seems to me to be preferable for him to spend time with his father at his grandmother’s home, with which he presumably is familiar, than at a contact centre.
Both parents appear to have a capacity to provide for [X]’s needs, so long as the Father is not using illicit drugs. There is no evidence about the paternal grandmother’s capacity, but the Mother has not suggested that she is unable to care for [X].
[X] is a little boy who is eight years of age. He was born in Canada but has lived most of his life in Australia. There is no particular characteristic of the child that would require attention, except, perhaps, the Mother’s reports of his behaviour that have led to his seeing a psychologist.
The child is not an Aboriginal or Torres Strait Islander.
The Mother’s concerns about the Father’s drug and alcohol use suggest that she takes her responsibility as a parent seriously. On the Father’s evidence, the affidavits deposed to by him and his mother, he takes a serious view of his responsibility as a parent. His attitude to the child appears positive, as he wishes to resume spending time with him rather than just speaking to him on the telephone.
There are no family violence issues.
These are interim proceedings and the Court is making interim orders. There will presumably be a final hearing in due course.
The only other circumstance that appears to be relevant is the Mother’s wish to take the child to Canada for a holiday to meet his extended maternal family. In principle, this would be to the child’s benefit in the long run.
However, the Mother has not formulated a specific proposal at this stage. The Court must consider the degree of risk that she would not return [X] to Australia if she were to go overseas early next year. True it is that Canada is a party to the Hague Convention, but the Mother has few ties to Australia and strong family ties to Canada.
Whilst there are outstanding parenting issues between the Mother and the Father, the Mother would have a motive to remain away in Canada. In my view, it is not appropriate for her to take the child out of Australia until the parenting proceedings between the parties are finalised.
I propose to order that each party be restrained by injunction from taking the child out of the Commonwealth of Australia. The matter can be revisited at the final hearing.
No specific submission has been made, nor has any evidence been led, that would lead to the Court making a finding as to the extent to which each of the parents has fulfilled, or failed to fulfil, their responsibilities as a parent (s.60CC(4)). However, evidence from the Mother and Ms G points to the Father continuing to involve himself in the use of illicit drugs since he and the Mother separated, which leads to the inference that he may not have fulfilled his responsibilities as a parent (s.60CC(4A)).
I am not satisfied that the evidence would allow the Court to find that it is appropriate to apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. This is a matter to be considered at the final hearing.

Affidavits in interim parenting proceedings

The parties have chosen to file and serve a plethora of affidavits – three by each parent, two by Ms G and one by Ms B. A lot of the evidence was irrelevant to the issues to be decided at an interim hearing. However, the parties insisted on relying on all of the affidavits filed. Some of the material refers to incidents that took place prior to the earlier proceedings in the Family Court. Final orders were made by consent in those proceedings on 26^th October 2005. It has to be asked why the parties have sought to hark back to matters that took place prior to those orders being made.
The parties’ solicitors seem to have ignored or to have been unaware of a Practice Note dated 1 July 2010 headed Interim Parenting Proceedings – Sydney Registry, which states at 11:
A party to an interim application may rely on
· One affidavit by that party and
· One affidavit by each witness – providing the evidence is relevant
Practitioners should note that this Practice Note will be strictly enforced.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date: 1 October 2010