HAAS & BABCOCK

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAAS & BABCOCK

[2013] FCCA 635

Catchwords:
FAMILY LAW – Final arrangements for care of child aged 4 years and eight months – best interests – assessment of risk of abuse and neglect – documentary evidence of abuse – principles relevant to conduct of child related proceedings – meaningful relationship – separation of siblings – presumption of equal shared parental responsibility – reasonable practicality – communication issues.

Legislation:
Family Law Act 1975, ss.4AB; 60B; 60CA; 60CC; 61DA; 65DAA; 65DAC; 65DAE; 68LA

Haas and Babcock [2012] FMCAfam 1474
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
In The Marriageof Patsalou (1994) 18 Fam LR 426
Blanch v Blanch & Crawford (1999) FLC 92-837
T & N (2003) FLC 93-172
JG & BG (1994) 18 Fam LR 255
MRR v GR [2010] HCA4
Bartel & Schmucker (No.3) [2012] FamCA 1094

Applicant:

MR HAAS

Respondent:

MS BABCOCK

File Number:

ADC 2948 of 2009

Judgment of:

Judge Brown

Hearing dates:

12 & 13 March & 21 March 2013

Date of Last Submission:

24 April 2013

Delivered at:

Adelaide

Delivered on:

27 June 2013

REPRESENTATION

Counsel for the Applicant:

Ms Lindsay

Solicitors for the Applicant:

Legal Services Commission of South Australia

Counsel for the Respondent:

Mr Tredrea

Solicitors for the Respondent:

Adelaide Lawyers

Counsel for the Independent Children’s Lawyer:

Ms West

Solicitors for the Independent Children’s Lawyer:

Barr Lawyers

ORDERS

The parties have equal shared parental responsibility for the child of the relationship X born (omitted) 2008 (hereinafter referred to as “the child”).
In the exercise of this equal shared parental responsibility for the child the parties are to consult with each other in respect of all major long term decisions pertaining to the child, which include but are not limited to, issues concerning the following:
(a)The child’s education (both current and future);
(b)The child’s religious and cultural upbringing;
(c)The child’s health and any special needs;
(d)The child’s names; and
(e)Any changes to the child’s living arrangement, which significantly interferes with the operation of these orders, particularly with the specific arrangements for the child to spend time with each parent.
The father and mother shall keep the other informed at all times of their residential address and contact details, including mobile and landline telephone numbers and email addresses, if any.
The father and mother shall inform the other parent as soon as reasonably practical of any treating medical issue or illness or injury suffered by the child when in their respective care.
The parents authorise by this order, the school, attended by the child to give each parent information about the child’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the child (at the expense of the parent requesting same).
Each parent is at liberty to attend at the child’s school, pre-school or kindergarten for all events that are routinely attended by parents, including parent-teacher interviews, sports days and concerts.
The child live with the father.
The child spend time with the mother as follows:
(a)until the child starts school each alternate weekend from 4.00 pm Friday until 4.00 pm Sunday or Monday in the event of a public holiday;
(b)after the child commences school from after school Friday until 5.00 pm Sunday or Monday in the event of a public holiday;
Notwithstanding order (8) the child spend time with the parties on special occasions as follows:
(a)on the child’s birthday in each year, with the mother from 4.00 pm until 7.00 pm, noting that should the child be in the care of the mother on his birthday, then he spend time with the father from 4.00 pm until 7.00 pm that day.
(b)on Easter weekends as follows:
(i)in 2013 and each alternate year thereafter, with the father from 4.00 pm Thursday until 4.00 pm Saturday and with the mother from 4.00 pm Saturday until 4.00 pm Monday; and
(ii)in 2014 and each alternate year thereafter, with the mother from 4.00 pm Thursday until 4.00 pm Saturday and with the father from 4.00 pm Saturday until 4.00 pm Monday.
(c)at Christmas as follows:
(i)in 2013 and each alternate year thereafter, with the father from 4.00 pm Christmas Eve until 4.00 pm Christmas Day, and with the mother from 4.00 pm Christmas Day until 4.00 pm 26^th December; and
(ii)in 2014 and each alternate year thereafter with the mother from 4.00 pm Christmas Eve until 4.00 pm Christmas Day, and with the father from 4.00 pm Christmas Day until 4.00 pm on 26 December.
(d)with the applicable parent (the mother on Mother’s Day; the father on Father’s Day) from 10.00 am until 4.00 pm on Father’s Day and Mother’s Day respectively, if the child is not otherwise in the care of the applicable parent on the relevant weekend.
Upon the child starting school, the school holiday arrangements be as follows:
(a)the time that the child spends with the mother in accordance with paragraph 6 herein be suspended during school holiday periods, and that these periods resume on the first week of the next school term;
(b)the child spend time with the mother from the conclusion of school on the last day of term until 4.00 pm on the Saturday of the middle weekend of the short school holidays;
(c)the child spend alternate weeks with the mother during the Christmas school holidays with the parties to ensure that the child is in the care of the father for the entire week prior to the resumption of the new school year and with handovers to occur at 4pm on Saturdays with the mother’s time with the child being taken to give effect to the intention that X be in his father’s care for not less than one week prior to the start of school.
All handovers that do not take place at the child’s pre-school or school, take place inside the (omitted) Police Station, Adelaide unless otherwise agreed between the parties in writing including by text message noting that handover may occur by the parties in person or by adult nominee of either party provided such person is familiar to the child.
The mother and father forthwith enrol and complete a Kids Are First Program.
The father forthwith engage with Disability South Australia to ascertain what services and parenting assistance is available to him to assist him with the care of X.
The appointment of the Independent Children’s Lawyer be dismissed.
All applications are otherwise dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADC 2948 of 2009

MR HAAS

Applicant

And

MS BABCOCK

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Haas “the father” and Ms Babcock “the mother” are the parents of X, born (omitted) 2008. These reasons for judgment are directed towards determining final arrangements for X’s care.
This final hearing has been much delayed. The last time because of problems with the mother’s legal aid. Ms Babcock now has access to legal advice and representation and her case has been professionally prepared and presented.
Accordingly, in the final hearing process, both parties have been able to test the evidence of the other and the court is now in a position to determine where the best interests of X are likely to lie, against the background of that evidence.
The evidence available to the court is extensive. Obviously, in its main form, this evidence is constituted by the numerous affidavits of the mother and father themselves and what they each said in court. The contents of these various affidavits has now been thoroughly scrutinised through a process of cross-examination, conducted by the respective lawyers in the case.
This is also the case so far as the evidence of each of the party’s respective supporters is concerned. In the father’s case these supporters are his partner, Ms M and his mother, Mrs Haas. In the mother’s case, they are her mother Ms A and sister, Ms K.
The evidence also comprises the views of the court appointed expert, Mr A, who has visited each party in their respective homes and observed both of them interact directly with X. He, too, was extensively cross-examined by the lawyers for each of the parties in the case.
In addition, for reasons which will become clear as the reasons for judgment unfold, each party, but particularly the mother, has a large documentary “footprint” with various government departments; social welfare organisations; and health care providers. Subpoenas have been directed to those organisations and, as a result, extensive records provided.
The parties have each been asked to comment upon this material, particularly where it directly relates to him or her. Accordingly, although the writers of these various records have not themselves given evidence in these proceedings, this collateral documentary record also provides an important source of evidence for the court.
Mr Haas and Ms Babcock are not the only parties to the proceedings. On 10 July 2012, it was ordered that X be independently represented in these proceedings. X’s representative is Mr Stuart Barr, an experienced Adelaide family lawyer.
Mr Barr has briefed Mrs West, a barrister to appear on his behalf in the final hearing. The law requires Mr Barr and Mrs West to formulate a position, based on the evidence available to them, which they think will be in X’s best interests.[1] As such, the submissions of the independent children’s lawyer are of equal importance to those of the parties themselves.
[1] See Family Law Act at section 68LA
It is a difficult and problematic case. The evidence available to the court indicates that both the father and the mother are vulnerable individuals, who are likely to require extensive support to parent a child of X’s age effectively.
This is the central issue in the case – in which household will X receive the more effective and capable level of parenting to ensure he is protected from coming to harm, in both a physical and psychological sense, from being exposed to neglect, abuse or family violence. Essentially, who of the parties is the better supported and more insightful parent?
Regardless of the ultimate outcome of this issue, it is clear that X has two parents who love and care about him deeply. However, for complex historical reasons, Mr Haas and Ms Babcock do not like one another very much and have no history of parenting X together. They are also each financially disadvantaged and live on opposite sides of Adelaide – the father in (omitted); the mother in (omitted).
Accordingly, difficult issues arise in the case as to how X can maintain a meaningful level of relationship with both his mother and his father, in these difficult circumstances, which provide logistical, practical and emotional challenges for the parties concerned and those associated with them.
The case has been listed for final hearing on at least two prior occasions – July of 2012 and just before Christmas 2012. The mother was not in a position to proceed with her case, on either occasion, whereas the father was.
In May of 2012, ostensibly at least, the mother presented herself as being homeless on a television current affairs program. She now asserts that this was a pretext to assist her to obtain emergency housing trust accommodation. However, her then lawyer was not in a position to prepare her case, at the time, and the proceedings were adjourned until December.
This was the background to the parties agreeing to an essentially equal time regime for X’s care, whereby he lived with his father for approximately three days per week and with his mother for the remainder of the week.
Another final hearing, scheduled for December 2012, did not proceed either because the mother did not have legal representation. However, as X was about to start kindergarten, it was no longer feasible for the equal time regime to continue.
Against this background, I determined that pending the further final hearing X should predominantly live with his father and spend time with his mother on weekends. I provided extensive reasons in support of this difficult decision.[2] I wrote as follows:
“Both parties come from a disadvantaged background. Mr Haas is a disability pensioner. Ms Babcock is financially disadvantaged. As a child she was apparently involved herself with Families SA. …
Up to this time, the evidence available to me indicates that X’s care, whilst with his mother, has been marked by frequent changes of accommodation; fractured relationship; and other forms of instability. On the other hand, the father has been largely stable in his accommodation and relationships.
X is likely to benefit from having a stable and predictable home setting. In my view, Mr Haas is currently better placed to provide such stability and predictability, particularly once X has started at kindergarten.”[3]
[2] See Haas and Babcock [2012] FMCAfam 1474
[3] See Haas & Babcock (supra) at paragraph 123-125
The mother has conceded that 2012 was a difficult year for her. However, it is her position that since being on television, in May of 2012, she has been able to secure comfortable and affordable housing trust accommodation for herself and her family in (omitted). As such, it is her case that she has turned a corner and put her past difficulties behind her.
Accordingly, it is the underpinning of Ms Babcock’s case that she is the better placed parent to provide the majority of care for X, particularly as historically she has indisputably been the child’s primary carer, with little, if any, input from Mr Haas, for extended periods of time.
Although the parties disagree about the context in which they met and X was conceived – the father asserting that it was a brief one night liaison; the mother asserting a longer, albeit fairly short relationship;– the evidence incontrovertibly demonstrates that Mr Haas did not begin regularly to spend time with X, until he was over two years of age.
This situation is borne out by the court’s record. It shows that the mother first commenced proceedings, in this court, on 24 July 2009, seeking declarations as to X’s paternity and that she was entitled to have an administrative assessment of child support, for X, from Mr Haas.
Orders to this effect were made by the court on 9 December 2009, following a parentage testing procedure, which both legally and scientifically, established that Mr Haas was indeed X’s father.
Thereafter, on 29 October 2010, the father commenced proceedings seeking orders to spend time with X. Prior to this date, it is the father’s position that he had only seen X monthly, for brief periods of time, in uncomfortable circumstances and subject to the mother’s supervision.
Between early 2011 and the arrangements for equal time made in mid-2012, the court record shows that Mr Haas’ time with X has incrementally increased. This process has occurred against the background of Mr A’s expert involvement with the parties and the court.
From Mr Haas’ perspective, this period has also coincided with an increasing level of concern, on his part, that Ms Babcock is not capable of properly discharging her parental obligations for X because of an extreme level of instability in her personal life arising from her difficult personality, which prevents her from obtaining support or accepting advice from appropriate official sources.
X is not the only child who will be affected by the court’s determination in this case. Besides X, Ms Babcock is the mother of Y born on (omitted) 2011. Y’s father is Mr K.
Mr K plays no part in Y’s parenting. As with X, Ms Babcock was compelled to commence paternity proceedings against Mr K, in this court. It is her evidence that Y was conceived after Mr K raped her.
Accordingly, between the date of Y’s birth and until recently, X and Y lived in the same household. It is the mother’s case, supported by her own mother, that X and Y have a particularly close and loving relationship together, as brother and sister. As such, it is Ms Babcock’s case that it would be contrary to X’s best interests for him to be separated from his sibling and to grow up in a different household to her.
In the earlier reasons for judgment, I described Mr Haas as “a disability pensioner, who suffers from a mild level of intellectual incapacity.” Mr Haas has not been recently professionally assessed in respect of this disability. However, during the recent hearing, the evidence has emerged that, when he was in secondary school, Mr Haas' IQ was assessed at 63.[4]
[4] See exhibit B
The evidence also indicates that Centrelink accept that Mr Haas continues to suffer from a significant level of intellectual disability. This disability has implications for his capacity to obtain paid employment for himself.
As far as I know, Ms Babcock has never had permanent employment. Although Mr A did not formally assess her intellectual capacity, it is his opinion, again proffered during the recent hearing, that her intellectual capacity is broadly similar to that of Mr Haas. Although he did assess the parties’ respective personalities as being quite different.
In this regard, Mr A described the father as likely to be timid and receptive to authority and, as such, more amenable to receiving and accepting advice. On the other hand, he assessed the mother as likely to be more reactive and “blustery” and so more likely to be dismissive or oppositional to professional advice.
This, at least in part, was the underpinning of the recommendation made by Mr A in his first assessment report that:
“This is a vulnerable couple. For their relationship, as the parents of X to work they need support. Ideally their future conflicts should be deflected from the Court into some other venue. Unfortunately every time their relationship collapses they will seek redress through the Court. In an ideal world there would be an agency which would act to monitor what is happening between the parents, provide them with support in their parenting and in dealing with each other and it would mediate their disputes. To a large degree this is the role provided through Families SA or one of the ancillary services such as Anglicare. The writer is not confident that any of these agencies could provide such a service to X and his parents.”[5]
[5] See Family Assessment Report dated 5 August 2011 at page 14 -15
In his second family assessment report, Mr A indicated that he was not able to support either parent’s proposal for the future parenting of X “with confidence”. He also noted in this report that there was likely to be a considerable amount of evidence available to the court, at the final hearing stage, which was then not accessible by him, dealing with issues to do with the mother’s lifestyle.
Since the matter was listed for final hearing, on my calculations, some twenty three subpoenas have been issued to various entities by both the father’s lawyers and the independent children’s lawyer. The bulk of the documents produced deal with issues to do with Ms Babcock’s lifestyle, as well as her impressions that X suffers from either autism or some form of hyperactivity disorder.
Accordingly, the investigative steps envisaged by Mr A, in his report writing process, have now been undertaken. Some of this material was put to Mr A for his comment. Given his earlier assessment of the mother, he professed not to be entirely taken by surprise by it.
Mr A, in his oral evidence, described the case as representing “a terrible dilemma” for the court, which posed difficult choices for it. He agreed that the essential question for the court was who of the parents was better supported to deal with the challenges of parenting a child of X’s age, given his implicit vulnerabilities arising from his tender years.

In this context, the issue for Mr A, turned on who of the parties was the better resourced, not only in terms of the direct provision of parenting advice and guidance but also in their respective amenability to take such advice on board and act effectively in respect of it. In his oral evidence, given at the final hearing, Mr A deposed as follows:
“…again, I would be concerned about her [the mother’s] capacity to deal with outside scrutiny. So that’s an issue about her ability to engage with outside agencies, because that material Ms Lindsay gave me earlier said “Here is a young woman who is struggling, who is always on the edge, who does need support.” And she doesn’t need short-term support, she needs long-term support. I – my own feeling would be that the father is more capable of doing that at this stage than Ms Babcock is. So for me it’s a balance of risk thing.”[6]
[6] See transcript at page 44
The independent children’s lawyer is of a similar mind to Mr A and advocates that X should live predominantly with Mr Haas but spend regular periods of time with Ms Babcock and Y. In her written submissions, Mrs West proposes that the court make the following orders:
“That the father have sole parental responsibility for the child X born (omitted) 2008.
That the said child live with the father.
That the said child spend time with the mother as follows:-
each alternate weekend from 5pm Friday to 5pm Sunday;
on Mother’s Day each year commencing at 10am and concluding at 5pm or at such other times as may be agreed between the parties (and with the said child to be returned to the father at 10am on Father’s Day should it coincide with a period of time referred to in);
from 5pm on 24 December to 11am on 25 December 2013 and each alternate year thereafter;
from 11am on 25 December to 5pm on 26 December 2014 and each alternate year thereafter;
for one half of all short school holidays;
for one half of the Christmas school holidays on a week about basis with handover to occur at 5pm each Friday;
at such other times as may be agreed between the parties.
That the mother and father forthwith enrol and complete a Kids Are First Program.
That the father forthwith engage with Disability South Australia to ascertain what services and parenting assistance is available to him to assist him with the care of X.
That the father authorise the child’s school to provide all newsletters, reports and information to the mother as is usually provided to parents.
That the father inform the mother of any medical diagnosis of any illness of the child and authorise the child’s doctors to communicate with the mother.
Discharge the appointment of the Independent Children’s Lawyer.”
In order to facilitate and advance the parenting capacity of each of the parties, Mrs West advocates that both the father and the mother undergo a post separation parenting course and, in the father’s case, he engage with the peak service body, in South Australia, for persons suffering a disability, including an intellectual disability, to see what is available specifically for him to help him parent X to the best of his abilities.
The parties were each directed to provide written submissions to the court regarding the case and provide a minute of the orders each sought.
Mr Haas accepts the recommendations of the independent children’s lawyer. In the submission of his counsel, Ms Lindsay, this is a case concerned with the assessment of the risk of X coming to harm in the respective care of each of his parents.
She submits that this risk is significantly greater, for X, in his mother’s household. She asserts that the essential difference between Mr Haas’ situation, on the one hand and Ms Babcock’s situation on the other is that the father’s household is one marked by stability and family support.
Mr Haas’ concerns about the level of risk, arising for X, from his mother’s household, centre on the following issues:
·Repeated manifestations of homelessness and itinerancy (either feigned or actual), associated with a lifestyle marked by a general level of instability;
·Inappropriate housing;
·Inappropriate sleeping routines, for X, associated with the provision of inappropriate medication for him;
·Inappropriate means of discipline and inadequate supervision for the child;
·Frequent changes of partner, resulting in emotional instability for X;
·Chronic conflict and aggression with authorities and an inability to accept and follow appropriate advice in regards to parenting;
·The exposure of the child to her direct verbal and physical abuse.
Ms Lindsay, in her written submissions, seeks the court make the following final orders on behalf of her client:
“1.    That all previous orders herein be hereby discharged
2. That the father have sole parental responsibility for the child X born on the (omitted) 2008.
3. That the father shall use all reasonable efforts to first consult with the mother as to issues relating to the health and education of the said child but in the event that no agreement is reached, then the father shall, within 14 days of taking any decision relating to same, advise the mother in writing as to such decision and shortform reasons for same.
4. That the said child live with the father.
5. That until the child starts school, he spend time with the mother as follows:
a) each alternate weekend from 4.00 pm Friday until 4.00 pm Sunday or Monday in the event of a public holiday;
6. That after the child commences school he spend time with the mother:
a) from after school Friday until 5.00 pm Sunday or Monday in the event of a public holiday;
7. That notwithstanding paragraphs 5 and 6 herein, the child spend time with the parties on special occasions as follows:
a) on the child’s birthday in each year, with the mother from 4.00 pm until 7.00 pm, noting that should the child be in the care of the mother on his birthday, then he spend time with the father from 4.00 pm until 7.00 pm that day.
b) on Easter weekends as follows:
i) in 2013 and each alternate year thereafter, with the father from 4.00 pm Thursday until 4.00 pm Saturday and with the mother from 4.00 pm Saturday until 4.00 pm Monday; and
ii) in 2014 and each alternate year thereafter, with the mother from 4.00 pm Thursday until 4.00 pm Saturday and with the father from 4.00 pm Saturday until 4.00 pm Monday.
c) at Christmas as follows:
i) in 2013 and each alternate year thereafter, with the father from 4.00 pm Christmas Eve until 4.00 pm Christmas Day, and with the mother from 4.00 pm Christmas Day until 4.00 pm 26^th December; and
ii) in 2014 and each alternate year thereafter with the mother from 4.00 pm Christmas Eve until 4.00 pm Christmas Day, and with the father from 4.00 pm Christmas Day until 4.00 pm on 26 December.
d) with the relevant parent from 10.00 am until 4.00 pm on Father’s Day and Mother’s Day.
8. That until upon the child starting school, the school holiday arrangements be as follows:
a) The time that the child spends with the mother in accordance with paragraph 6 herein be suspended during school holiday periods, and that these periods resume on the first week of the next school term;
b) that the child spend time with the mother from the conclusion of school on the last day of term until 4.00 pm on the Saturday of the middle weekend of the short school holidays;
c) that the child spend alternate weeks with the mother during the Christmas school holidays with the parties to ensure that the child is in the care of the father for the entire week prior to the resumption of the new school year and with handovers to occur at 4pm on Saturdays with the mother’s time with the child being taken to give effect to the intention that X be in his father’s care for not less than one week prior to the start of school.
9. That all handovers that do not take place at the child’s school, take place inside the (omitted) Police Station, Adelaide unless otherwise agreed between the parties in writing including by text message noting that handover may occur by the parties in person or by adult nominee of either party provided such person is familiar to the child.
10.    That the mother’s overnight time with the child be conditional upon her having stable accommodation, and that she will provide a copy of her current lease upon request by the father from time to time.
11.    At any time the child travels in a motor vehicle while in the mother’s care, that the mother ensure that he be properly secured in an age-appropriate child restraint according to law.
12.    That the mother do all things reasonable and necessary to ensure that the father’s name is included on the child’s Birth Certificate.
13.    That the appointment of the Independent Children’s Lawyer is hereby discharged.
14.    That all extant applications do otherwise stand dismissed as finalised.”
Counsel for the mother, Mr Tredrea, accepts that his client faces many difficulties in life, and as such, her deficiencies have been thoroughly delineated to the court. He would categorise these difficulties as being particularly pronounced during the majority of 2012. However with Ms Babcock’s acceptance into secure subsidised housing trust accommodation, he submits Ms Babcock has turned a corner in her life and therefore the court can have confidence in her future parenting of X.
In this context, it is Mr Tredrea’s submission that the court needs to give significant weight to prior care arrangements for X, particularly given that it cannot be disputed that Ms Babcock has historically provided significantly more care for X, particularly in his early and influential developmental years.
In addition, he points to the possible emotional deficits, which are likely to arise, if X is separated from Y, given the centrality of sibling relationships to an individual’s psychological wellbeing and sense of identity, both in the medium and longer term. After all X and Y will remain brother and sister for the remainder of their lives.
He would categorise the father as being an unstable and violent person, who is untested in respect of the long term care of X. In Mr Tredrea’s description, Mr Haas is a “potential time bomb” so far as X is concerned, particularly if the child challenges him, in a stressful situation.
In addition, Mr Tredrea points to what he would characterise as Mr Haas’ clearly established intellectual limitations. In his submission, the potential consequences, for X, of those limitations, are uncertain but may potentially be adverse. In addition, during his cross examination, the father acknowledged seeking psychiatric treatment from a Dr P in respect of issues to do with violence and anger management.
Mr Haas discontinued the consultations for financial reasons, not because the doctor concerned considered that he did not require any further treatment. Again, Mr Tredrea points to what he would categorise as “question marks” concerning Mr Haas’ temperament and suitability to parent a child of X’s tender years.
As previously indicated, significant logistical issues arise in this case because of the parties’ respective places of residence. During the case, it was established that neither Mr Haas nor his partner, Ms M hold a driver’s licence. In Ms M’s case, this is due to her suffering epilepsy. Mr Haas has no apparent medical or legal impediment in respect of gaining a licence. In the past, he has been significantly assisted by his mother, Mrs Haas, in getting to and from (omitted) to exchange X.
In these circumstances, it is Mr Tredrea’s submission that the absence of the facility to access private transport, arising in the father’s household, is a significant deficit and is another factor, which militates in favour of X being returned to his mother’s substantial care.
Ms Babcock does have a driver’s licence and apparently has more or less regular access to a motor vehicle, although her financial situation has often been strained and she has not always been able to afford mechanical repairs, when she has owned her own car. In her evidence, provided at final hearing, she deposed that she currently does not own a vehicle but had borrowed a friend’s car to come to court. I accept that Ms Babcock is marginally better provisioned in respect of transport.
Ms M is obviously a significant part of the father’s household and so of great importance to X, both in an emotional sense and as a care giver. Ms M has her own children, A aged nine and B aged ten. These children do not live with Ms M. They live with their father, a (omitted). In Mr Tredrea’s submission, in these circumstances, uncertainty surrounds Ms M’s parenting capacity, particularly how her children came to be in the care of their father, whom Ms M has categorised as being violent.
Mr Tredrea also has raised concerns about Mr A’s involvement in the matter and queried the weight the court should accord his recommendations. These queries arise because of the manner in which the case has unfolded. It began, many months ago, on the assumption that X would continue to live with his mother and professional evidence was required to determine what time he should spend with his father, particularly given that it was self apparent the relationship between father and child was rudimentary. The case has significantly changed since then, in large part because of the delay occasioned by Ms Babcock and the instability in her life, which ultimately lead to the interim ruling of 24 December 2012.
In particular, Mr Tredrea is critical that Mr A was not called upon to analyse and comment upon a number of crucial issues, namely: the father’s prior violent conduct and its potential consequences for X’s well being; the father’s intellectual incapacity; the potential role and implications of Ms M’s care for X; and the implications of a lack of a driver’s licence, in the father’s household; all matters which are said to be of central importance in respect of final arrangements for X’s care.
Essentially, Mr Tredrea would characterise Mr A’s report as being reactive to the evidence, as it unfolded, rather than being fully considered. In these circumstances, Mr Tredrea submits that the court should approach Mr A’s evidence cautiously, particularly before disturbing X from the care of the parent who has provided the bulk of primary care since his birth.
However, from Mr Tredrea’s perspective, Mr A did identify a strong and positive relationship between X and his mother and indeed was satisfied that X had significant relationships with other members of his wider maternal family.
Again, in these circumstances, Mr Tredrea would urge caution on the court, in respect of permanently altering the longstanding parenting status quo for X, particularly as he asserts that Mr A failed to give proper consideration to the psychological implications of separating X from his younger half-sibling Y.
Given these factors, it is Mr Tredrea’s submission that the court cannot be satisfied that Mr Haas’ household is demonstrably the better option for X. To the contrary, he would categorise Mr Haas’ household as hedged with uncertainty and potential perils.
In these circumstances, Mr Tredrea proposes that the court make the following orders:
“1. That the child X (“X”) born on (omitted) 2008 live with the mother.
2. The said child spend time with the father as follows:-
a) Each alternate weekend from 5pm Friday to 5pm Sunday;
b) On Father’s Day each year commencing at 10am and concluding at 5pm or at such other times as agreed between the parties (and with the said child to be returned to the mother at 10am on Mother’s Day should it coincide with a period of time referred to herein)
c) From 5pm on the 24^th December to 11.00 on the 25^th December 2008 each year;
d) One half of all short school holidays;
e) On a “week about” basis during the long school holidays;
f) At such other times as agreed between the parties.
3. Such further or other orders as may be ordered by this Honourable Court.”
These reasons for judgment are directed to resolving this complex factual and emotional situation. X is not to be awarded, like a prize, to the more deserving parent. In determining where X should live in future, his best interests are the paramount or most important consideration in the case.

The applicable legal principles

Part VII of the Family Law Act deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration [Family Law Act section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
These primary considerations are stressed through the provisions of section 60B(1) & (2) of the Act, which contain a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes.
The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(a)ensuring that children 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; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(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 to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly 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; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.

Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[7] In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[8] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[9]
[7] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
[8] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[9] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
As I have already indicated, pursuant to the provisions of section 60CC(2A), the court is required to give greater weight, in its determination of a child’s best interests, to issues arising under the primary consideration relating to the protection of children from abuse, neglect or family violence. The recent changes to the Family Law Act are significant ones. The key amendments are designed to “prioritise the safety of children in parenting matters”.[10]
[10] See Supplementary Explanatory Memorandum (Senate) Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
The mother raises concerns about the potential exposure of X to incidents of family violence instigated by the father, given what she would categorise as his unstable and violent background. For his part, the father raises significant concerns regarding the potential exposure of X to neglect and abuse, whilst in his mother’s care.
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”
Interestingly, the legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·An assault;
·Stalking;
·Repeated derogatory taunts;
·Preventing a family member from making or keeping connections with his or her family, friends or culture.
Accordingly, family violence means not only violence, which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that coerces or controls that person.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”. Again, the legislation provides a list of non-exhaustive examples of situations in which a child may have been exposed to family violence.
These examples include the overhearing, by the child, of threats or personal injury made against a member of the child’s family by another family member; seeing or hearing an assault of a family member by another member of the child’s family; the child comforting or providing assistance to a family member who has been assaulted; and observing the physical sequelae of assault or damage to property, such as clearing up after such incidents or being present when police or ambulance officers attend an incident involving family violence.
Where family violence is endemic in a parental relationship it has the potential to be damaging for children in a variety of ways. Most obviously they may be directly injured by an episode of violence or frightened by it. More subtly, children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force on the other of a child's parents are not appropriate psychological role models for children.[11]
[11] See In The Marriageof Patsalou (1994) 18 Fam LR 426
There is a real danger that children, who are exposed to family violence, will perceive that abuse is part of life for females (in particular) and become accepting of such behaviour. As a consequence, children may learn that violence is an appropriate way to resolve disputes and thus will follow in the footsteps of a violent parent, when they become parents themselves, thus entrenching a cycle of violence between familial generations.[12] This is equally damaging for boys as it is for girls.
[12] See Blanch v Blanch & Crawford (1999) FLC 92-837 – per Mullane J at 92-837
Boys may follow in the footsteps of violent fathers and become violent parents in turn. Girls may mirror the behaviour of their mothers and return to dangerous and unsatisfactory relationships, when they are mature, exposing their own children to danger. In the shorter term, children who are exposed to aggression are likely to behave aggressively themselves. Accordingly, children of violent parents are at real risk of forming disturbed interpersonal relationships, both as children and adults.
In T & N,[13] Moore J, after reference to social science research, identified the highly detrimental consequences, to the wellbeing of children, of being exposed to family violence. She said as follows:
“They are terrified and simultaneously come to accept it as an expected part of life; they may learn that violence is acceptable behaviour and an integral part of intimate relationships; or that violence and fear can be used to exert control over family members; they may suffer significant emotional trauma from fear, anxiety, confusion, anger, helplessness and disruption in their lives; they may have higher levels of aggression than children who do not have that exposure; and they may suffer from higher anxiety, more behaviour problems and lower self-esteem than children not exposed to violence. Clinical profiles for children who witness domestic violence include post-traumatic play, diminished ability to regulate affect in the forms of hyper-arousal, numbness, emotional constriction, a low frustration threshold, nightmares and other sleep disturbances, aggressive behaviours, intense and multiple fears, regression in developmental achievements, and disturbances in peer relations.”
[13] See T & N (2003) FLC 93-172 at 78,760
Family violence can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned. Obviously the latter behaviour is the more damaging so far as children are concerned.[14] Not all incidents of family violence will be necessarily damaging for a child.
[14] See JG & BG (1994) 18 Fam LR 255 at 261
Given that family violence is not homogenous in its qualities and can arise in a variety of context, it is necessary for the court to assess the degree of risk which may come to any child concerned, if he or she comes into contact with the perpetrator of the alleged violence. It may also be necessary for the court to assess the consequences of such an outcome for the other parent and victim of the alleged behaviour.
Accordingly, the court is required to carefully scrutinise all allegations of family violence. However, in my view the provisions of section 60CC(2A) entail that the court must disregard the benefit of a child having a meaningful level of relationship with both parents, even in cases where there are concerns raised pertaining to family violence.
Allegations concerning family violence, in this case, centre on the following factual issues:
·The father’s relationship with an earlier girlfriend, Ms C;
·The nature of the parties relationship together, particularly an alleged incident arising between them, in 2006, on (omitted) Highway;
·The implications of Mr Haas’ evidence that he consulted the psychiatrist, Dr P, in respect of violence issues;
·Has X been previously exposed to family violence by his father or is there a risk that he will be in future;
·What are the implications of the mother’s conduct towards X, as reported by Dr A and raised in Families SA records.
Abuse is defined in the Act and is a concept relating primarily to assault, including a sexual assault on a child. The father has no direct personal knowledge, arising from his own observation, of the mother having ever assaulted or abused X. However, he has concerns, in this regard, arising from the subpoenaed material.
Neglect is not a concept formally defined in the Act. Its meaning must be gleaned, I think, from an examination of the objects, which underpin Part VII of the Act, to which I have already referred. In this context, the following two principles are particularly germane:
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
It is the essential underpinning of Mr Haas’ case that X will not reach his full potential, if he lives predominantly in Ms Haas’ household. It is his position that the evidence indicates that Ms Babcock has failed to fulfil her duties and responsibilities, regarding the parenting of X.
Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development, there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
None of the parties in this case, including the independent children’s lawyer, seek that the presumption of equal shared parental responsibility should be applied. Rather, it is the position that the current conflict circumstances of the parties and their compromised capacity to communicate with one another mandate that one parent should have sole parental responsibility for X.
However the court is still mandated to consider the presumption arising under the section, which is subject to considerations of the overall best interests of the child concerned and issues relating to family violence and abuse.
An order which provides for equal shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Pursuant to section 65DAE, parents do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them.
This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made when they need to be made without consultation.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[15]
[15] See MRR v GR [2010] HCA4 at paragraphs 13 and 15

The evidence

Mr Haas gave evidence in a quiet and unassertive manner. He was born on (omitted) 1987. In his major affidavit,[16] he disclosed having a “minimal police record”. This included a conviction for assault on a former girlfriend. Subsequently, the father’s criminal record was tendered into evidence, along with a police apprehension report dealing with the matter.[17]
[16] Affidavit of the father filed 20 June 2012 at paragraph 9
[17] See exhibit A
These documents indicate that the victim of the assault was Ms C and the incident itself occurred on 19 October 2009. Mr Haas was convicted of assault and was released on a behaviour bond to be of good behaviour by the Port Adelaide Magistrates’ Court on 28 January 2010. His evidence was that he was unrepresented during the proceedings and was advised by the police to plead guilty.
Mr Haas also acknowledged that he had been disqualified from driving, as a result of being apprehended, whilst on a learner’s permit, without being under the supervision of a licensed driver. This incident occurred when he was 18 years of age. This matter is not disclosed in his criminal record, which contains no other entries apart from the assault on Ms C.
It is Ms Babcock’s case that Mr Haas is a person of violent disposition, who was previously aggressive and violent towards her. In these circumstances, Mr Haas was vigorously cross examined about the assault on Ms C and the details disclosed in the police apprehension report.
Mr Haas’ evidence about the matter was not particularly convincing. Initially he indicated that he could not recall the matter at all. Later he confirmed that the police had attended Ms C’s home after “things had got out of hand” between him and Ms C, but he denied assaulting her, indicating that she had been the aggressor in the matter.
The police apprehension report indicated that Ms C had locked herself in the bathroom, which led Mr Haas to breaking a glass pane causing a laceration. In cross-examination, Mr Haas denied that he had hurt his hand, but later he acknowledged that he had received medical treatment for cuts to his hand and did in fact smash the glass window. He denied having pushed Ms C or grabbing her around the throat.
Mr Haas, in answer to a question from me, admitted that he had told a lie to the court about the injury to his hand and the circumstances surrounding it. He was easily caught out in his deception and admitted the lie without prevarication. As the case continued, Mr Haas was found to be unreliable about a number of other issues. He was not an accurate historian. I do however not doubt, in any way, his love and devotion for X.
I was left with the overall impression of Mr Haas that he is not a sophisticated liar or intent on deceiving the court in any significant way about his lifestyle or intentions, so far as X is concerned. Certainly, he was not comfortable in the witness box and I was concerned, at times, that he did not fully understand the import of the questions put to him. To this end, he was at a significant level of disadvantage in presenting his case from the witness box.
A level of uncertainty surrounded the precise reason why Mr Haas has been in receipt of a disability pension for the years of his adult life. He has consistently stated that he was granted the pension because of a diagnosis of a learning disability, whilst he was at school. His mother, Mrs Haas confirmed this account. She was asked to see if she had retained any documents in respect of the issue, given that Mr Haas had indicated that his mother had helped him with the necessary application.
Overnight, Mrs Haas supplied a psychologists report, dated 10 April 2001 and a Department of Education and Children’s Services Report for semester 2 of 2003.[18] The psychologist’s report indicated that Mr Haas' IQ on the WISC-III was 63, which placed him in the intellectually disabled range.
[18] See Exhibit B & C
Mr A was asked to comment on Mr Haas' IQ. He noted that an IQ of 70 and below made a person eligible for disability support services. Mr A also noted that the diagnosis had been made when Mr Haas was around fourteen years of age. In these circumstances, Mr A considered it likely that Mr Haas would have developed significant adaptive and coping skills in the period since and the earlier IQ assessment was not likely to be indicative of his current level of intellectual functioning in his life at large.

It is the independent children’s lawyer’s view that there are no prospects of Mr Haas and Ms Babcock engaging in any process of joint parenting of X, given the tensions in their parenting relationship and the absence of any previous history of caring for X consensually. I agree that the parties have exhibited little capacity to make even the most trivial of decisions, regarding X, consensually.
However, this is not a case where either party can be described as being disinterested in X’s care, welfare and development. In these circumstances, in my view, it is a significant thing to deprive a parent of parental responsibility for a much loved child. I accept that both Mr Haas and Ms Babcock aspire to having an ongoing parental role for X.
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Pursuant to section 65DAE, parents (or other relevant persons) do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them. This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made.
In my view, both Mr Haas and Ms Babcock are likely to want to have some say about X’s education and health. Certainly, neither party would want X to move away to such a degree that it would become difficult for X to spend time with him or her.
In my view, the one characteristic which both Mr Haas and Ms Babcock share is their hope that X will have a happy childhood and reach his full potential. Cronin J said of the concept of parental responsibility that it:
“… is a broad concept as described in s 61B and that task covers many things. Parents are expected jointly to endeavour to promote their children’s development by ensuring they have the greatest potential in adulthood whilst at the same time enjoying the security of childhood they deserve.” [43]
[43] Ibid at [21]
Given the parties common aspirations for X, in my view, it would be a significant thing to confer parental responsibility for him on one parent, notwithstanding the significant communication difficulties between the parties and their lack of a shared history of parenting X together.
In these circumstances, I have come to the conclusion that the presumption of equal shared parental responsibility should be applied in this case. I do not think that it is rebutted by considerations of abuse or family violence.

What should follow from the presumption

Given the presumption of equal shared parental responsibility applies in this case, I am required to consider X spending either equal periods of time or substantial and significant periods of time with each of his parents.
Both such outcomes are subject to considerations relating to what is likely to be in X’s best interests and what is reasonably practicable. The High Court has indicated that both such criteria are equally important.
At this stage, I do not think that either X living in a shared care regime or one in which he spent substantial and significant periods of time with both his parents is likely to be in X’s best interests or logistically practicable, given the reality of his parents’ current situation. [see section 65DAA(5)]
The parties currently live a significant distance apart. Both have difficulties accessing private transport. In my view, this factor alone dictates that X should live predominantly with one parent. In addition, in my assessment, a consideration of the various factors arising under section 60CC militates in favour of Mr Haas being the parent charged with the responsibility for providing the majority of X’s care and his predominant place of residence.
In addition, notwithstanding the parties’ shared aspirations for X, it is apparent to me that they do not currently have the capacity to implement either an equal time or substantial and significant time regime. The proceedings to date have been marked by a significant degree of conflict. In addition and most significantly, it is my assessment that the mother’s parental capacity is not complementary to that of the father.
The parties have never lived together. Their relationship is currently marked by suspicion and hostility. In such circumstances, it is hardly surprising that their capacity to communicate effectively with one another is significantly impaired. Again, this is a significant factor which dictates that X should live predominantly with one of his parents and spend time with the other.

Conclusions

Parenting proceedings must always turn on their own particular facts. Different matters are given different weight because of the particular circumstances of the child concerned. The court’s responsibility is to weigh and assess the various matters arising under section 60CC to arrive at the result, which it considers will best serve the interests of the child concerned.
This particular case presents a dilemma. There can be no denying that X has lived with his mother for the vast majority of his life to date and, in his initial years, X had very little to do with his father. This is a consequence of the fact that the relationship between the parties, which resulted in X’s conception, was a brief and troubled one.
Both parties confront considerable disadvantage in life. In these circumstances, reservations must surround their respective abilities to parent X competently. Neither can be described as being without weaknesses in this regard.
However, after what I hope is has been a careful reflection, it is my assessment that it is the father who is the less burdened by adversity and who has the greater support in dealing with difficulties in his life overall and parenting X specifically.
For logistical reasons, X must live predominantly with one of his parents. The central question for the court is who of the parties has the least level of qualifications surrounding his or her parental abilities and insight or to put it another way, who of the parties is better placed to parent X, given their respective histories to date.
In my view, notwithstanding the mother’s previous superior level of involvement with X, the father is better placed in this regard. Notwithstanding the progress Ms Babcock has made in her life recently, I am not satisfied that it would be in X’s best interests to return him to the mother’s predominant care. In my assessment, question marks still surround the mother’s level of parental insight and capacity.
In my view, it will be possible for X to maintain a sufficiently meaningful level of relationship with both his mother and younger sibling, Y, if he is able to spend alternate weekends with Ms Babcock, during the school year, as well as for regular periods of time during school holidays.
However, X’s overall interests will be best served if he lives mainly with his father, who has, in my view, demonstrated himself to be attuned to X’s emotional and intellectual needs, particularly in respect of making the necessary arrangements for his pre-school attendance.
I will also make orders which will provide for X to share relevant special occasions, with each of his parents, including Mother’s Day and Father’s Day. In my view, such orders will add meaning to X’s level of relationship with each of his parents.
The independent children’s lawyer submits that it is appropriate that the parties attend a Kids R First parenting program. Clearly, in the circumstances of this case, this is likely to be a helpful intervention for each of the parties concerned. I will make such an order.
In addition, I will direct that Mr Haas engage with Disability South Australia to ascertain what services and parenting assistance is likely to be available to assist him with caring for X in future.
Up until this time, the parties have exchanged X at the (omitted) Police Station. In the past, handover has been a difficult and vexed issue for the parties. Currently, neither party has any clear proposal to iron out these difficulties.
The most child focused location, at which X may be exchanged between the parties, is his pre-school and as he grows older, his primary school. These locations may not always be available or convenient. In these circumstances, in the absence of an alternative, I reluctantly accede to the father’s proposal that the parties should continue to utilise the (omitted) Police Station, unless they agree otherwise.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding four hundred and fifty-three (453) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 27 June 2013

[2013] FCCA 635

27 June 2013

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