HAIGH & HAIGH

Case •

[2020] FamCA 872

•

16 October 2020

FAMILY COURT OF AUSTRALIA

HAIGH & HAIGH [2020] FamCA 872
FAMILY LAW – CHILDREN – With whom a child lives and spends time – Best interests of the child – Where the child currently resides with the father and has spent limited supervised time with the mother – Where the mother seeks an increase in time to shared care in a short period – Where the father seeks that the child live with him and that there be a gradual increase in the mother’s time – Meaningful relationship – Whether the child is at risk – Where the mother suffers from a chronic mental health illness – Where the mother has previously been hospitalised on several occasions – Where the mother’s illness has been stable for a period of time – Where the evidence supports that the mother has insight into her illness and is able to recognise warning signs of an onset of a mental health episode – Where a slow and gradual increase in the mother’s time to eventual shared care is in the best interests of the child – Orders.
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 69ZN, 69ZT
APPLICANT: Ms Haigh
RESPONDENT: Mr Haigh
INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia
FILE NUMBER: ADC 1010 of 2017
DATE DELIVERED: 16 October 2020
PLACE DELIVERED: Adelaide
PLACE HEARD: Adelaide
JUDGMENT OF: Berman J
HEARING DATES:  21 - 24 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Tinning
SOLICITOR FOR THE APPLICANT: Tindall Gask Bentley
COUNSEL FOR THE RESPONDENT: Mr Childs
SOLICITOR FOR THE RESPONDENT: McLean Santoro Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Smith
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

  1. That all previous orders be discharged.

  2. That the parties have equal shared parental responsibility for the child X born in 2010 (“the child”).

  3. That the child live with the father.

  4. That the child spend time with the mother:-

    (a)Each alternate weekend from 10.00 am Saturday to 4.00 pm Sunday commencing 17 October 2020;

    (b)For the balance of the 2020 school year on each alternate weekend from 4.00 pm Friday (or the conclusion of school) to 6.00 pm Sunday commencing 13 November 2020;

    (c)During the 2020/2021 Christmas school holiday periods from 3.00 pm on Friday of the last day of term to 3.00 pm on the following Wednesday and each alternate week thereafter;

    (d)From the commencement of Term 1 in 2021 from the conclusion of school (or 3.00 pm) Thursday to the commencement of school (or 10.00 am) on the following Monday and each alternate week thereafter;

    (e)During the end of Term 1 and end of Term 2 school holidays in 2021 the time provided for in paragraph 1(d) shall be extended to 3.00 pm on Tuesday;

    (f)From the commencement of Term 3 in 2021 from the conclusion of school (or 3.00 pm) Wednesday to the conclusion of school (or 3.00 pm) on Monday and each alternate week thereafter;

    (g)From the commencement of Term 2 in 2022 each alternate week from the conclusion of school (or 3.00 pm) Tuesday to the conclusion of school (or 3.00 pm) on Monday;

    (h)From the commencement of Term 2 in 2023 each alternate week from the conclusion of school (or 3.00 pm) Monday to the conclusion of school (or 3.00 pm) on the following Monday;

    (i)For one half of each of the school holiday periods commencing with the September/October school holidays in 2021 PROVIDED that the Christmas school holidays as and from 2021/2022 shall be shared by the parties on a week about basis from 3.00 pm on Friday of the last day of term to 3.00 pm on the following Friday.

  5. At Christmas:-

    (a)With the mother in 2020 and each even year thereafter from 3.00 pm Christmas Eve until 3.00 pm Christmas Day PROVIDED that the child is in the care of the father from 3.00 pm Christmas Day to 3.00 pm Boxing Day; and

    (b)With the father in 2021 and each odd year thereafter from 3.00 pm Christmas Eve until 3.00 pm Christmas Day PROVIDED that the child is in the care of the mother from 3.00 pm Christmas Day to 3.00 pm Boxing Day.

  6. At Easter:-

    (a)With the mother in 2021 and each odd year thereafter from 5.00 pm on Good Friday to 5.00 pm on Easter Monday; and

    (b)With the father in 2022 and each even year thereafter from 5.00 pm on Good Friday to 5.00 pm on Easter Monday.

  7. If Father’s Day falls on a weekend when the child is not spending time with the father THEN the child shall spend time with the father from 10.00 am until 5.00 pm on Father’s Day.

  8. If Mother’s Day falls on a weekend when the child is not spending time with the mother THEN the child shall spend time with the mother from 10.00 am until 5.00 pm on Mother’s Day.

  9. At such other times as shall be agreed between the parties.

  10. That handovers not taking place from the child’s school will take place at the Suburb B McDonald’s or such other place as the parties may agree for the balance of Term 4 2020 and thereafter with the mother collecting the child from the father’s residence at the commencement of the mother’s time and with the father collecting the child from the mother’s residence at the conclusion of the mother’s time.

  11. On the child’s birthday if the child is not otherwise spending time on that day with the mother, from the conclusion of school until 6.00 pm if a school day, or from 2.00 pm until 6.00 pm if a non-school day PROVIDED that the child shall spend the same time with the father if the child is not otherwise spending time with him on the child’s birthday.

  12. That it be a condition of the child’s time spending arrangements with the mother that the child remain principally resident at the home of the maternal grandparents until the conclusion of the 2021 year.

  13. That the child shall complete her primary school education at F Primary School unless otherwise agreed between the parties.

  14. Both parties be at liberty to attend all school functions, sporting activities, extra-curricular activities and other events to which parents are normally invited to participate and attend.

  15. Both parties do authorise any school and extra-curricular organisations at which the child attends from time to time, to provide to the other parent (at the other parent’s sole expense) copies of school newsletters, school reports, school photographs and other information to which parents are usually entitled.

  16. That the mother keep the father informed of the details of her current treating health practitioners.

  17. That the mother forthwith advise the father in the event that she attends any Emergency Department or is hospitalised.

  18. That the mother’s time be suspended during any period that the mother is hospitalised PROVIDING such period of hospitalisation extends beyond 76 hours.

  19. That the father be at liberty to request the mother to undertake up to two (2) random supervised urine drug analysis tests during the next twelve (12) months, with each test to be collected in accordance with the Chain of Custody Protocol specified in AS/NZS 4308:2008 and be undertaken by T Pathology within forty eight (48) hours of a request from the father and with the test results to be provided to the father within seven (7) days of receipt of same, with the father to reimburse the mother forthwith for the costs of the requested test or tests.

  20. That each party shall keep the other informed of the details of any health practitioner who is providing treatment for the child.

  21. That each party be at liberty to communicate with and request any information relating to the child from any health practitioner who is providing or has provided treatment to the child.

  22. That the parties be restrained from involving the child in any counselling or therapy with any health professional other than as may be agreed between the parties.

  23. That in the event of a medical emergency involving the child whilst in the care of a party that party shall inform the other party of all the details as soon as possible.

  24. That the parties keep the other informed of any change in their telephone contact and/or residential address details.

  25. That the parties be restrained and an injunction granted restraining each of them from:-

    (a)Discussing or showing the child any documents from these proceedings other than advising the child of their living and time spending arrangements;

    (b)Denigrating or criticising the other parent in the presence or hearing of the child.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Haigh & Haigh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1010 of 2017

Ms Haigh

Applicant

And

Mr Haigh

Respondent

REASONS FOR JUDGMENT

Introduction

  1. The proceedings between Ms Haigh (“the mother”) and Mr Haigh (“the father”) relate to the future parenting arrangements for the single child of their relationship, namely X born in 2010 (“the child”).  The proceedings were listed for trial on 21 September 2020 and judgment was reserved on 24 September 2020.

  2. By Second Further Amended Initiating Application filed 3 August 2020, the mother seeks orders summarised as follows:-

    (1)The parties have equal shared parental responsibility for the child.

    (2)The child lives with the parties as follows:-

    (a)With the mother each alternate weekend from the conclusion of school Friday (or 3.00 pm) to 4.00 pm Sunday; and

    (b)From the commencement of Term 1 2021, with the mother each alternate week, from the conclusion of school Wednesday (or 3.00 pm) to the conclusion of school Monday (or 3.00 pm);

    (c)During the 2020/2021 Christmas school holiday period, with the mother on a week about basis from 3.00 pm on the Friday of the last day of term to 3.00 pm on the following Friday and each alternate week thereafter.

    (d)With the father at all other times.

    (3)From the conclusion of Term 1 2021, the child live with the parties on a week about basis as follows:-

    (a)With the mother from the conclusion of school (or 3.00 pm) Monday to the conclusion of school (or 3.00 pm) on the following Monday and each alternate week thereafter;

    (b)With the father from the conclusion of school (or 3.00 pm) Monday to the conclusion of school (or 3.00 pm) on the following Monday and each intervening week thereafter.

    (4)That the times that the child shall live with the parties be suspended and in lieu thereof the child shall spend time with them as follows:-

    (a)At Christmas:-

    (i)With the mother in 2020 and each even year thereafter from 3.00 pm Christmas Eve to 3.00 pm Christmas Day provided that the child is in the care of the father from 3.00 pm Christmas Day to 3.00 pm Boxing Day; and

    (ii)With the father in 2021 and each odd year thereafter from 3.00 pm Christmas Eve to 3.00 pm Christmas Day provided that the child is in the care of the mother from 3.00 pm Christmas Day to 3.00 pm Boxing Day;

    (b)At Easter:-

    (i)With the mother in 2021 and each odd year thereafter from 5.00 pm on Good Friday to 5.00 pm on Easter Monday; and

    (ii)With the father in 2022 and each even year thereafter from 5.00 pm on Good Friday to 5.00 pm on Easter Monday;

    (c)If Father’s Day falls on a weekend when the child is not spending time with the father the child shall spend time with the father from 10.00 am to 5.00 pm on Father’s Day;

    (d)If Mother’s Day falls on a weekend when the child is not spending time with the mother the child shall spend time with the mother from 10.00 am to 5.00 pm on Mother’s Day;

    (e)At such other times as agreed between the parties.

  3. The wife seeks that if handover does not occur at the child’s school then it shall take place with the father collecting the child from the home of the mother at the commencement of his time and the mother collecting the child from the home of the father at the commencement of her time.

  4. At the commencement of the proceedings the father sought orders as set out in his Further Amended Response to Initiating Application filed 11 September 2020.

  5. The father sought final orders that he have sole parental responsibility for the child who would live with him and spend time with the mother supervised by the maternal grandmother.

  6. During the course of the proceedings the father’s counsel made an application to amend the father’s orders.  The application was not opposed given that the proposed orders represented a significant change in the father’s position. 

  7. The father now seeks orders summarised as follows:-

    (1)That the parties have equal shared parental responsibility for the child.

    (2)That the child live with the father.

    (3)That the child spend time with the mother as follows:-

    (a)Each alternate weekend from 10.00 am Saturday to 4.00 pm Sunday commencing 3 October 2020;

    (b)Each alternate weekend from the conclusion of school (or 4.00 pm) Friday to 4.00 pm Sunday commencing 11 December 2020;

    (c)Each alternate weekend from the conclusion of school (or 4.00 pm) Friday to the commencement of school (or 10.00 am) Monday commencing 16 April 2021;

    (d)Each alternate week from the conclusion of school (or 4.00 pm) Friday to the commencement of school (or 10.00 am) Tuesday commencing 9 July 2021;

    (e)Each alternate week from the conclusion of school (or 4.00 pm) Friday to the commencement of school (or 10.00 am) Wednesday commencing 1 October 2021;

    (f)In the year 2020 and each alternate year thereafter from 4.00 pm Christmas Eve to 2.00 pm Christmas Day provided that the child shall be in the father’s care from 2.00 pm Christmas Day to 4.00 pm on 26 December;

    (g)In the year 2021 and each alternate year thereafter from 2.00 pm Christmas Day to 4.00 pm on 26 December provided that the child shall be in the father’s care from 4.00 pm Christmas Eve to 2.00 pm Christmas Day;

    (h)On Mother’s Day from 10.00 am to 4.00 pm provided that the child shall be in the father’s care on Father’s Day from 10.00 am to 4.00 pm; and

    (i)On the child’s birthday if the child is not otherwise spending time on that day with the mother, from the conclusion of school to 6.00 pm if a school day, or from 2.00 pm to 6.00 pm if a non-school day, provided that the child shall spend the same time with the father if the child is not otherwise spending time with him on the child’s birthday; and

    (j)At such further and other times as may be agreed between the parties.

  8. The father proposes that handovers that do not take place at the child’s school shall initially take place at the Suburb B McDonald’s and as and from the commencement of school in 2021, with the mother collecting the child from the father’s residence at the commencement of the mother’s time, and with the father collecting the child from the mother’s residence at the conclusion of the mother’s time.

  9. The parties were able to agree a number of uncontroversial orders sought by the father.

  10. The parties were not able to agree the following orders sought by the father:-

    (1)That whilst the mother is prepared to keep the father informed of the details of her current treating health practitioners, she is not prepared to inform the father of her current treatment and/or medications being administered.

    (2)That the mother comply with all treatment and medication recommended by her treating health professionals.

    (3)That the mother forthwith arrange to attend for drug and alcohol counselling at the joint and equal expense of the parties and that she shall comply with such recommendations and continue with such counselling for so long as it is recommended and that the mother do obtain and do provide to the father a written report confirming the mother’s attendance for such counselling within three months.

    (4)The father seeks that the mother be required to undertake up to two random supervised urine drug analysis tests during the next 12 months as may be requested by the father. Initially the father sought that the test be undertaken within 24 hours.  However, whilst the mother is prepared to undertake the drug analysis tests she seeks that the time for the test to be undertaken be extended to 48 hours following the father’s request and that the father reimburse the mother for any expense.

    (5)The mother be restrained by way of injunction from consuming more than two standard alcoholic drinks, or any illicit substances for 48 hours prior to and during her time with the child.

  11. The significant difference between the applications of the parties is that the mother seeks an equal time order from the conclusion of Term 1, 2021, whereas the father proposes that the child spend five nights per fortnight with the mother commencing 1 October 2021.  It might be considered that the parties should have been able to resolve their differences, however, notwithstanding the significant change in the orders sought by the father, there remains a high level of mistrust between the parties.  The mother considers that the father has set out upon a course of conduct intended by him to alienate the child from the mother, whereas the father seeks to justify what had been hitherto a cautious approach based upon his concern that the mother did not seem to have insight as to the damaging consequences for the child arising from the mother’s mental health issues, exacerbated by her drug and alcohol use.

  12. It is a fair observation that the entrenched position of each of the parties became less so as the trial progressed.

  13. It is indicative of the belated but nonetheless significant change in the attitude of the parties, but in particular the father, that the following interim orders were able to be made on 24 September 2020, with no effective opposition:-

    1.That all previous orders be discharged.

    2.That the parties have equal shared parental responsibility for [the child].

    3.That the child live with the father.

    4.That the child spend time with the mother as follows:-

    a.Each alternate weekend from 10.00 am Saturday to 4.00 pm Sunday commencing 3 October 2020;

    b.Each alternate weekend from 4.00 pm Friday (or the conclusion of school) to 4.00 pm Sunday commencing 13 November 2020;

    c.In the year 2020 from 3.00 pm Christmas Eve until 3.00 pm Christmas Day PROVIDED the child is in the father’s care from 3.00 pm Christmas Day to 4.00 pm on 26 December 2020;

    d.Such further and other times as agreed between the parties.

    5.That handovers not taking place from the child’s school will take place at the Suburb B McDonald’s NOTING the general agreement of the parties that the Suburb B McDonald’s is not considered to be a long-term venue THEN such other place as the parties may agree.

    6.That it be a condition of the child spending time with the mother that the child remain principally resident at the home of the maternal grandparents.

    7.That both parties be at liberty to attend all school functions, sporting activities, extra-curricular activities and other activities and events to which parents are normally invited to participate and attend.

  14. The Court was assisted by the participation of an Independent Children’s Lawyer (“ICL”).  At the commencement of the proceedings counsel for the ICL was not able to elucidate the orders sought by the ICL, however, in final submissions counsel revealed that the ICL supported the broad thrust of the father’s proposal namely, that there be a slow transition of the time the child spends with the mother leading up to five nights a fortnight to continue through school holidays.

Chronology

1969

Date of birth of the father.

1975

Date of birth of the mother.

2005

Parties commence a relationship.

2006

Parties commence cohabitation.

2009

Parties marry.

2010

Date of birth of child.  Mother experiences a manic episode following the child’s birth and is admitted to C Centre for 30 days with a subsequent diagnosis of Bipolar Affective Disorder Type I.

Feb 2015

Father leaves suicide note and experiences an episode of suicidal ideation.

Oct 2015

Mother experiences a manic episode and is treated in D Centre.

02/12/2016

Allegation by father that the mother pushes the child off the verandah with her foot.  Father’s allegation triggers a Child Protection Services (“CPS”) investigation and report.

Dec 2016

Parties separate but remain under the one roof.

12/01/2017

Mother drags child down corridor by her arms.  Father alleges that the mother’s behaviour constitutes a risk to the child, whereas the mother admits her action but considers that it was in the context of play.

09/02/2017

There is an incident between the parties.  The police are called and the father leaves the home with the child taking up residence with his paternal aunt Ms E where they currently remain.

Feb 2017

Father changes the child’s school to F School.

Feb 2017

Father consults with Dr G and seeks counselling for the child.

04/09/2017

Order is made for the child to spend supervised time with the mother at a children’s contact service with the first visit occurring on 16 December 2017.

30/04/2018

Further order for supervised time at a children’s contact service.

18/04/2019

Further order for the child to spend time with the mother (supervised by the maternal grandmother) for four hours each alternate Saturday and then from 29 June 2019 increasing to a period of six hours.

07-13/08/2019

Mother is admitted for psychiatric assistance.

Background

  1. The father was born in 1969 and is 51 years of age.  He is currently employed by a company on a fulltime basis.

  2. The mother was born in 1975 and is currently 44 years of age.  She is employed as an allied health worker.

  3. The parties commenced a relationship in 2005 and began to cohabit in 2006. They were married in 2009. The child was born in 2010.

  4. The parties separated in early December 2016.  The parties have not yet sought a dissolution of their marriage.

  5. The father currently resides with Ms E (“the paternal aunt”) at her home in Suburb F.  The mother resides with Ms H and Mr J (“the maternal grandparents”) at their home in Suburb K.  The evidence of each of the parties is that their current living arrangements will remain for the foreseeable future.

  6. Both the paternal aunt by her affidavit and the maternal grandmother were witnesses in the proceedings.  There is no challenge to the proposition that their separate homes are other than an entirely appropriate and protective environment for the child.

  7. Following the child’s birth the mother experienced a manic episode and both she and the child then remained in C Centre for approximately 30 days.  The mother was diagnosed with Bipolar Affective Disorder Type 1.  The diagnosis is supported by the evidence and is not challenged by the father.

  8. The father concedes that throughout the relationship he was in fulltime employment.  Generally, the mother remained at home following the child’s birth in 2010.

  9. The mother highlights that whilst the father was at work the primary care of the child fell to her.  The father tempers the mother’s assertion of primary care by stating that when he returned from work he would take over the care of the child and that this arrangement continued until the child commenced kindergarten in 2015 when he says that the care arrangements were shared.

  10. In October 2015 the mother again experienced another manic episode and attended the Emergency Department of a local hospital.  She was admitted to D Centre.  Following her discharge she resumed care of the child.

  11. The mother advised the father in early December 2016 that she wanted to end the relationship.  The parties were not able to agree the future parenting arrangements.  The mother’s proposal was that the child would live with her and spend time with the father on weekends.  The father’s proposal was to consider a week about arrangement for the child.

  12. The parties remained living under the same roof until 9 February 2017.  There is contention between the parties as to the circumstances of their final physical separation.  The father alleges that the mother was intoxicated and her aggressive behaviour was such that the father called the police.

  13. The father then left the home with the child.  The child was withdrawn from her primary school in February 2017 and re-enrolled at F Primary School which was more proximate to the residence of the paternal aunt.

  14. It is not controversial that there were difficulties in the mother communicating with and spending time with the child.

  15. Proceedings were issued on 15 March 2017 and it was only the order of 4 September 2017 that provided for the mother to spend supervised time with the child at a children’s contact service.  The delay in the parties securing supervised visits resulted in the mother first spending time with the child on 16 December 2017 after a period of 10 months.

  16. The mother spent regular, albeit limited supervised time with the child in 2018.

  17. Following the periods of supervised time and the family report prepared by Ms L (“the family consultant”) on 2 October 2018 (“the first report”), orders were made on 6 February 2019 that the mother’s time with the child could be supervised by the maternal grandmother. The time was extended by further order made on 18 April 2019 to six hours each alternate Saturday, commencing 29 June 2019.

  18. On 7 August 2019 the mother concedes that she experienced a relapse of mania and attended at the Emergency Department of a local hospital where she remained as an in-patient of D Centre until her discharge on 13 August 2019.  She receives ongoing and regular support from Region M Community Mental Health Service.

  19. Her current medication regime is 150mg of Palliperidone injections every three months and 30mg of Oxazepam every night.

Documents relied upon

  1. The mother relies upon the following documents:-

    (1)Second Further Amended Initiating Application filed by the mother 3 August 2020;

    (2)Trial affidavit of the mother filed 3 August 2020;

    (3)Affidavit of the mother annexing pathology results filed 18 September 2020;

    (4)Affidavit of the mother in response to the father’s affidavit filed 16 September 2020;

    (5)Affidavit of the maternal grandmother, Ms H filed 1 September 2020; and

    (6)Affidavit of Dr N filed 18 September 2020.

  2. The father relies upon the following documents:-

    (1)Further Amended Response to Initiating Application filed 11 September 2020;

    (2)Trial affidavit of the father filed 11 September 2020; and

    (3)Affidavit of the paternal aunt, Ms E filed 11 September 2020.

  3. The ICL relied upon the following documents:-

    (1)Affidavit of Ms O filed 16 April 2018;

    (2)Affidavit of Ms O filed 27 August 2018;

    (3)Affidavit of Ms O filed 7 February 2019;

    (4)Affidavit of Ms P filed 16 April 2019; and

    (5)Affidavit of Ms Q filed 18 September 2020.

  4. The Court is also assisted by the Family Reports of the family consultant dated 2 October 2018 (“the first report”) and 24 August 2020 (“the second report”).

Evidence

  1. At the commencement of the trial the Court highlighted the provisions of Pt VII Div 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular whether the Court should dispense with the provisions of s 69ZT and apply the excluded parts of the Evidence Act 1995 (Cth).

  2. Neither party nor the ICL spoke against the application of the provision of s 69ZT of the Act.

  3. I consider that the principles of s 69ZN of the Act would be better served by receiving the evidence of each of the parties relied upon but exercising my discretion under s 69ZT(3) of the Act as to the weight which should be given, particularly if it is contentious.

The mother

  1. The mother relies upon her trial affidavits and with leave gave further evidence as to the current state of her psychiatric health and in particular the medication regime currently prescribed.

  2. The mother was subjected to extensive cross-examination focussed upon her mental health.

  3. The mother admitted that she had used methamphetamines on a recreational basis in her early 20’s and from an early age had consumed cannabis.

  4. She experienced a serious psychotic episode in her early years and considered that her cannabis use may be an exacerbating feature.  She ceased use of cannabis but in 2004 she sustained a serious back injury arising from a motor vehicle accident and was prescribed Valium for pain relief and Oxazepam as an anti-anxiety medication.

  5. After the motor vehicle accident there had been some infrequent consumption of methamphetamine and opioid-based pain relief medication.

  6. She freely admitted that she attended C Centre with the child in mid 2010 and at least contemplated whether the admission was caused by drug use or whether the mania and psychosis were caused by her Bipolar Disorder, triggered by hormonal changes following the birth of the child.

  7. The father has alleged that the mother frequently drank alcohol to excess.  There is some disagreement between the parties as to the regularity of the mother’s use of alcohol.  It was put to the mother that in early 2015 she would consume half a bottle of vodka at least each weekend.

  8. The mother did not accept counsel’s proposition of alcohol abuse but did concede that at times her alcohol consumption could be categorised as “binge drinking”.  She did not consider that she was not able to control her alcohol use but it is a reasonable finding upon the concessions of the mother that she would readily turn to alcohol, both to assist in social interaction but also at times as a form of self-medication.  The mother considered that when she could anticipate a manic episode, alcohol use at times had a calming effect.

  9. The mother’s cross-examination must be seen in the context of the father’s initial position that the mother may well present a risk to the child for the following reasons:-

    ·The mother’s history of alcohol and substance abuse;

    ·Her mental health, and absence of material in relation to her current mental health;

    ·Her August 2019 hospital admission and a lack of information in relation to same; and

    ·Her being an alleged victim of sexual abuse and potentially having treatment for same, a matter not disclosed by the mother during these proceedings.[1]

    [1] Father’s Outline of Case document filed 18 September 2020 at 5. 

  10. The orders sought by the father were that the child should continue to spend limited and supervised time with the mother and certainly not orders that provide for the child to spend significant and substantial time with the mother, or that the child’s time be shared between the parties.

  11. The mother agreed that she had been advised to cut down on her alcohol consumption as it was likely to exacerbate her underlying mental health issues.

  12. The father relied upon a report from CPS dated 31 May 2017.[2]  The catalyst for Forensic Safety Assessment was requested after the father’s report that the mother had “dragged [the child] along the corridor”[3] and left “friction marks”[4] on the child’s back on 12 January 2017.

    [2] Affidavit of the father filed 20 June 2916, annexure “1” at 7.

    [3] Ibid.

    [4] Ibid.

  13. This incident followed an earlier allegation made by the father that on 2 December 2016 he observed the mother and the child on the back verandah and saw the mother push the child backwards off the verandah with her foot.  The height of the verandah was about 50 centimetres.

  14. The father observed the child to scream and heard an exchange between the mother and the child wherein the child alleged that the mother had pushed her and the mother denied having done so.

  15. The mother does not deny that the events took place but does not concede that she acted inappropriately.

  16. The mother denies that she pushed the child off the verandah but does concede that she had consumed a significant quantity of wine with a friend prior to the incident.  It is open for me to find that the mother was likely to have been significantly intoxicated with the potential that she acted irrationally.

  17. The mother’s recollection is likely to be adversely affected by the alcohol consumed by her.

  18. The mother did agree that she dragged the child by the arms down the corridor following the child’s bath.

  19. The mother states that her actions were part of a game she played with the child which ended poorly, in that the child received some minor grazing to her back.

  20. It is a feature of the mother’s past interaction with the child that their play was sometimes rowdy and aggressive.

  21. The mother was asked about a more recent admission following a psychiatric episode on 6 August 2019.

  22. The mother had sustained a miscarriage which she considers may have been the trigger for her psychiatric episode.

  23. Her evidence was transparent in that she admitted there were warning signs of a descent into mania leading up to the admission.  She thought she might be able to manage her condition at home and had discussed her status with her mother.

  24. The Mental Health Team was called but were apparently persuaded that the mother and the maternal grandparents would be able to manage what was by then an obvious deterioration in the mother’s mental health.

  25. The mother was reluctant to attend hospital out of fear that it might jeopardize her new employment and provide ammunition for the father in respect of the Family Court proceedings.

  26. The mother was admitted to hospital and remained for 23 days, being discharged on 30 August 2019.

  27. The mother remained concerned that the child was reaching an age when she would need a strong female influence and there were pressing issues such as the child’s weight gain which she did not consider that the father was properly attending to.

  28. The mother conceded that she still continues to consume alcohol and that at times she has determined not to take certain prescribed medications that have unpalatable side effects.

  29. The mother expressed a recognition that the child needs to have a close attachment to each of the parties and it was that recognition which promoted a change in the orders that she sought from primary care to shared care with the father.

  30. The mother was forthright and candid in her description of her mental health and of the struggle that she has had to control her mania such that she is able to continue her employment as a support care worker and to pursue a more significant parenting role for the child.

  31. Whilst there were aspects of the mother’s health such as her use of alcohol which were not the subject of concession in terms of the likely deleterious effect that it would have on her mental health, generally the mother was candid and open.

  32. Of more significance to the proceedings is a finding that the mother has insight into her mental health and is able to recognise the warning signs of an onset of an episode of mania or psychosis.

  33. The mother is considered to be a forthright and reliable witness.

Dr N

  1. Dr N is a Fellow of the Royal Australian and New Zealand College of Psychiatrists and currently works as a Consultant Psychiatrist with the Region R Local Health Network and as a Psychiatrist in private practice.

  2. Dr N interviewed the mother on 17 October 2019 and 2 January 2020 and is aware of the mother’s history of depressive and manic episodes and her admission to hospital from 7 to 30 August 2019.

  3. Dr N considers the mother’s Bipolar Disorder has been stable since her discharge from hospital. 

  4. It is an important aspect of the mother’s presentation that she has been able to maintain the stress and rigor of her demanding job as an allied health worker.  It is a feature of the mother’s employment that the shifts are long and involve working until late at night.

  5. Dr N acknowledges the previous concern as to the mother’s consumption of alcohol being potentially harmful.

  6. He considers that it should be reduced and that excessive alcohol consumption will not be of assistance to her.

  7. It is an important aspect of the father’s case that he considers the mother is recalcitrant in the manner in which she takes the prescribed anti-psychotic and anti-anxiety medication.

  8. The issue arose because the mother determined that the prescription of Sodium Valporate had unacceptable side effects and she ceased taking that medication.

  9. Dr N confirms that the reduction and ultimate cessation of Sodium Valporate by the mother was not undertaken in a vacuum.  It had been an issue raised by the mother and it was planned that the particular medication would be reduced over a period of time.

  10. Dr N is candid in his prognosis that the mother’s illness is chronic and that she may well suffer relapses depending upon stress such as ongoing legal proceedings and other factors.

  11. The importance of Dr N’s evidence was that he agreed with the proposition that the mother had maintained good mental health over the last 12 months, that it was an important positive indicator that she had managed to hold down fulltime employment and her presentation generally inspired some confidence that she had insight into her mental health and was able to recognise the warning signs of a manic or psychotic episode coming on.

  12. Not surprisingly, Dr N’s evidence was that the mother should moderate her alcohol use and certainly not have recourse to other illicit drugs or substances.

  13. The self-regulation of medication by the mother was a matter that was not surprising to Dr N.  He did not think that more was required than the mother being monitored.

  14. Generally the mother is compliant with medication and psychiatric assessment.

Ms H

  1. The maternal grandmother impressed as caring deeply for the mother and is vigilant for signs of any deterioration in the mother’s mental health.

  2. There is some evidence that the relationship between the mother and the maternal grandmother had been troubled.  There was no suggestion in the evidence of the maternal grandmother that she currently experiences a difficult relationship with her daughter.

  3. She is aware of the history of the mother’s use of alcohol and illicit drugs.  Her observations of the mother’s alcohol consumption is that it is “fairly moderate”.

  4. The maternal grandmother has assisted the parties in effecting handover of the child.  She confirms that her communications with the father are always polite. 

  5. The involvement of the maternal grandparents is an important aspect of the mother’s case.  The maternal grandmother is vigilant and given that the mother’s current work roster is likely to involve the maternal grandparents supervising the child when the mother is not able to do so, I am able to find that her continued involvement with the child is both appropriate and would represent a stabilising influence.

The father

  1. The father relied upon his trial affidavits, however he gave evidence that he was favourably impressed by the mother’s evidence that he now considers the child should spend unsupervised time with the mother graduating to significant and substantial time comprising five nights a fortnight.

  2. To some extent, the significant change in the father’s application narrowed the issues left for determination.

  3. The father set out his plans for the child to complete her primary education at her primary school and then to transition in 2023 to a city-based high school.

  4. The parties are in agreement as to the child’s future education.  The father also considered that if the mother was admitted to hospital for any extended period of time then her time should be suspended with the child then remaining in his care.

  5. Given the father’s concessions, the mother’s counsel truncated her cross-examination.  The father was challenged as to his motivation in keeping the child from coming into contact or communication with the mother for a period of 10 months following separation.

  1. The father agreed that he did not take any significant steps to allow a relationship to continue between the mother and the child.

  2. The father was challenged as to his history of alcohol use.  The father conceded that his drink of choice was cider and that there were occasions when he would consume three to four bottles of cider.  He admitted to the occasional and casual of marijuana but denied the use of illicit drugs such as amphetamines.

  3. The father also admitted to what appeared to be a suicide attempt in 2015, consisting of him wrapping the child’s swing-set rope around his neck.

  4. There was no psychiatric evidence tendered in respect of the basis for the father’s conduct.  He attempted to downplay the significance of the event as a cry for attention rather than a genuine suicide attempt.  The father considered that the event was in response to the deteriorating relationship with the mother.

  5. I suspect that the purported suicide attempt was an irrational and ill-considered action and was likely to be representative of the father’s distress at the predicament of the parties.

  6. The father conceded that for other than the periods when the mother was detained in hospital, she looked after the child.  He agreed that she was a good mother and in part explained his change of application by a recognition that the mother had much to offer the child, particularly as the child enters puberty and early teens.

  7. It is a curious feature of the interaction between the mother and the child that at times the interaction can be overly physical.

  8. The mother and the child often engaged in wrestling and rough play and as is apparent from the observations of the family consultant, there was a heightened physicality between the child and the mother.

  9. The father was candid in acknowledging that at times he became exasperated with the mother’s behaviour and in particular her alcohol use.

  10. He placed significant focus on the “verandah incident” and the “passageway incident”.  I am uncertain as to whether the father saw what happened on the verandah but shortly thereafter he took photographs of the child’s injuries on his phone.

  11. Similarly, whilst the father did not see the passageway incident, he did take photographs of the grazes on the child’s back and thereafter made a report to the Child Abuse Referral Line (“CARL”).  That notification was transmitted to the police who made contact with the father.

  12. The father agreed that he called the police on 9 February 2019 because he thought the mother was drunk and feared that her behaviour may become aggressive and threatening.

  13. Following the physical separation of the parties, the father made the unilateral decision for the child to receive counselling from Dr G.  He acknowledged that he did not tell the mother that he was doing this, nor did he seek her consent.

  14. It is difficult to understand the focus of the therapeutic intervention but the father agreed that it was a decision that should have been made by the parties.

  15. The father accepted counsel’s proposition that the child’s recent school reports were complimentary and confirmed that the child was performing well academically and was meeting her developmental milestones.

  16. It is an important indicator as to the child’s health, welfare and development that there are no behavioural issues or academic deficiencies in the child’s presentation at school.

The Family Consultant

  1. Following the order made on 30 April 2018 the family consultant interviewed the parties, including the maternal grandparents and the paternal aunt.  Following observations of the child with each of the parties the family consultant published the first report on 2 October 2018.

  2. The family consultant had the advantage of the Court file together with a 2017 psychiatric report from Dr S of the Region M Mental Health Unit, observational reports from the Children’s Contact Centre, a report from Dr G and the CPS Report dated 31 May 2018.

  3. She recommended that the child commence contact with the maternal grandparents as soon as possible and that following a successful reintroduction of time with the mother, under the supervision of the maternal grandparents, that thereafter the child live with the mother and spend time with the father subject to an injunction to restrain the father’s possible undue influence over the child and that he complete an anger management program.

  4. The family consultant placed weight on the opinion of Dr G exemplified by the following extract referred to at [114] of the first report:-

    Dr G stated [the child] “presented as an anxious child with a significant range of problems including: dysregulated reactivity including vacillation between hyper-arousal including overly reactive anger outbursts, and hypo-arousal where she becomes avoidant, withdrawn, socially disengaged and emotionally detached; hypervigilance and inability to recognise positives in her life; triggered malignant memories; separation anxiety; impulsive eating and heightened anxiety including night phobia.  [The child] also presented with dysregulated sensitivity to physical pain which is symptomatic of hypo-active sensory alertness that is a common dysfunction from experiences of trauma.” …[5]

    [5] Family Assessment Report dated 2 October 2018 at [114].

  5. The family consultant emphasised what she considered to be the father’s consistent refusal to allow contact between the mother and the child and the isolation of the child from the maternal family.

  6. In particular she accepted that the father’s report concerning the verandah and passageway incidents were inconsistent with the child having had a previously positive relationship with the mother.  The suggestion is that the father had either fabricated the incidents or had used them to undermine the mother’s parenting of the child.

  7. The mother reported to the family consultant that she had previously consumed alcohol to excess and that it was likely to have been an exacerbating feature.

  8. The family consultant did not find that the child expressed fear or concern about the mother or the maternal grandparents.

  9. The family consultant opined that the matters brought to her attention for consideration may well suggest that the father had embarked upon a program of alienation.

  10. The second report is not dissimilar to the first report in its tenor and observations.  At the time of the second assessment the child was 10 years and 2 months.

  11. In interview the child complained that her mother “doesn’t show proper love”[6] and that she had not “asked me to read a book”.[7]  The child allegedly remembered that when they lived together “I cried every day because I wanted to get away.  One day I asked my Dad if we could leave”.[8]

    [6] Family Assessment Report dated 24 August 2020 at [47].

    [7] Ibid at [48].

    [8] Ibid.

  12. Demonstrably, it is not the position that the child has a basis for her statements that the mother does not show “proper” love.  The father concedes that the mother was caring and was actively engaged in a significant proportion of the child’s care.

  13. I am satisfied that the child was aware of the arguments between the parties leading up to separation and recognises that there is a difference in parenting styles between the parties.  The mother adopts a higher level of discipline and regime than apparently the child experiences when with her father.

  14. The family consultant observed the interaction between the mother and the child and considered that the child was able to relax, but that her behaviour was at times overtly physical and alternated between loving and being rude and critical of the mother.  In her evaluation, the family consultant again referred to the father’s refusal to facilitate contact between the mother and the child following separation.

  15. The family consultant considered that the mother’s parental role was undermined by circumstances created by the father.

  16. There was little doubt that the child had a close relationship with the father.   The family consultant considered however that this may have been undermined by the father attempting to control the child’s ideas.

  17. The CPS Report was available to the family consultant who considered that the following observation of the CPS Clinician, namely, that the nature of the proceedings provided “[the father] with motivation to betray [the mother] in a negative way and it is possible [the father] had exposed [the child] to inappropriate conversations and situations regarding [the mother]” highlighted that the father may have influenced the child to hold a negative view of the mother.

  18. The family consultant recommended that the child live with the mother at the home of the maternal grandparents and that the father have no contact with the child for a period of six months to enable the child to rebuild a relationship with the mother.

  19. As matters have transpired, the orders now sought by the parties no longer reflect or allow for the recommendation of the family consultant.

  20. I do not propose to bring to account the recommendations of the family consultant in terms of any impact they may have on the narrow dispute between the parties to the extent the child should spend time in their care.  The flavour of the report is clearly critical of the father for what she considers to have been his poor and inappropriate conduct following separation.

  21. The family consultant considered the history given by each of the parties as to the mother’s drinking and allegations of manic and florid behaviour.

  22. The child has a close relationship with the father.  It is a reality that the child has remained in the father’s care for a period in excess of three years and that the child’s school reports appear to be favourable, indicating appropriate development.

  23. The second report does not moderate the recommendations of the family consultant as expressed in the first report notwithstanding the mother’s significant concessions as to the impact of her ability to parent given her struggle at times with mental health.

Parenting considerations

  1. The parties now seek an order for equal shared parental responsibility.  As discussed, this arises from the father’s changed position.

  2. The father seeks to retain the primary care of the child but considers that it is in the child’s best interests that the time spent with the mother gradually increase to five nights per fortnight.

  3. Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interests test is to be considered by application of the objects of s 60B(1) of the Act and the underlying principles of s 60B(2) of the Act.

  4. I am cognisant of the primary considerations and additional considerations in respect of the matters as set out in ss 60CC(2) and (3) of the Act. I am mindful of the directions contained in s 60CC(2A) of the Act and in particular the focus by the father on what he considers to be a potential risk to the child should the mother undertake conduct which may exacerbate her underlying psychiatric disorder.

  5. Whilst the father is somewhat uncertain as to an appropriate way forward, he recognises that the mother’s relationship with the child is important and necessary.

  6. I propose to adopt the following approach:-

    (1)Give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;

    (2)Have regard to the objects expressed in s 60B(1) of the Act and underlying principles in s 60B(2) of the Act;

    (3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;

    (4)Have regard to the primary considerations under s 60CC(2) of the Act, namely, the benefit of the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;

    (5)Have regard to the additional considerations under s 60CC(3) of the Act;

    (6)The evidence adduced by each of the parties in respect of the primary and additional considerations pursuant to ss 60CC(2) and s 60CC(3) of the Act are to be considered and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation and comment.

Meaningful relationship

  1. Section 60B(1) of the Act provides that the aims and objects of the Act are to ensure that the best interests of a child or children are met by:-

    (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.

  2. The significant issue between the parties is as to whether the interests of the child would be served by a shared care arrangement as proposed by the mother or the final position to be reached over time being five nights per fortnight with the mother, as proposed by the father.

  3. The parties are largely agreed as to ancillary orders.

  4. The parties both accept that the relationship that each of them have with the child is important, substantial and of consequence.

  5. The consideration of the full extent of the mother’s relationship with the child is at this stage qualified by the observation that up until the current interim orders the mother’s time with the child was limited to some few hours each alternate weekend under the supervision of the maternal grandmother.

  6. That position has now significantly altered and it is the reasonable expectation of the parties that the child’s relationship with the mother will flourish once the mother has the opportunity for longer and less constrained interaction.

  7. The observations of the family consultant, whilst of limited assistance, are helpful in confirming that there is a strong foundation for the mother’s relationship with the child and that there is an emotional attachment.  If the family consultant is to be accepted then her recommendations would lend some support to the proposal of the mother that the child’s time be shared.

Is the child at risk?

  1. The mother candidly acknowledges her mental health issues and accepts that there is a risk of relapse.  I do not view the verandah and passageway incidents in 2016 and 2017 as indicators of future risk.

  2. Moreover, I find that the evidence of Dr N supports a finding that the mother has insight and increasingly so as to the onset of a mental health episode.  It is also a relevant consideration that for the foreseeable future the mother intends to reside with the child at the home of the maternal grandparents.  They are supportive of the mother and protective of the child.

  3. There is no evidence that would suggest even in the most florid excesses of a manic episode experienced by the mother that she has placed the child at risk.

  4. When the mother is well she is able to hold down fulltime employment in a high stress area of health care.

  5. The mother has not had a psychiatric episode for almost a year and it could be said that the evidence suggests that any hormonal imbalance together with attendant stress may well be the trigger for a mental health episode.

  6. The mother has been dealing with her employment and the current litigation without incident.  It is also relevant that for more than two years the mother has complied with orders of the Court and her time with the child limited and under supervision.  The mother has remained steadfast in her attention to the child and a clear purpose in promoting the relationship.

  7. The father remains concerned as to the mother’s history of alcohol abuse and her occasional use of illicit substances.

  8. Whilst the father is not without fault, the preponderance of the evidence focusses upon the mother if for no other reason than that her heavy consumption of alcohol and illicit substances places her at risk of exacerbating her underlying mental health.

  9. The mother’s evidence was that she has an appropriate level of recognition as to conduct which might be considered to place her at risk and taking into account the greater level of engagement and responsibility in respect of parenting of the child, so she will cut her cloth to suit her measure.

  10. I find that the mother was an impressive witness in terms of her current level of insight and approach the matter with some level of confidence that when faced with the reality of an opportunity to fulsomely engage in a parenting role with the child, the mother will make the right decisions.

The likely effect of any change in the child’s circumstances?

  1. The father remains concerned that the mother’s application for shared care is a bridge too far.

  2. It could not be said that the father was trenchant in his opposition to the mother’s proposal but rather, he did not consider that such a decision could be made at this stage without there having been more evidence of the mother’s future engagement with the child and a better understanding of how the inter-parental relationship may develop to enable the potential for consensus to develop.

  3. It is not denied that at present the level of communication between the parties is virtually non-existent.  Hitherto, the mother remained fearful or at the very least mistrustful of the father and accordingly, any interaction at handover is conducted between the father and the maternal grandmother.

  4. For his part, the father is not satisfied that the mother is as insightful as she would have him accept and he remains mistrustful of her given his history of aggressive argument and interaction between them, particularly when he believed the mother was grossly affected by alcohol.

  5. What was apparent from the demeanour of the parties in giving their evidence was a recognition that the child would be advantaged if the parties were less anxious towards each other.

  6. A good indication of the potential for consensus was evidenced by the mother proposing that the child would benefit by handover occurring to and from the separate homes of the parties rather than a fast food outlet.

  7. Somewhat surprisingly, the father was prepared to agree with a relatively short timeframe transition.

  8. Each of the parties considered that they would be able to communicate via text or other electronic means, but at this stage it is unlikely they could contemplate a face to face discussion.

  9. The father’s concerns about shared care is that each of the parties seek their own agenda, again placing the child in the midst of potential conflict.

  10. It was argued on behalf of the mother that there is not much difference between equal time and five nights per fortnight.  Arithmetically that may be so, however, in reality the mother’s proposal represents a significant transition to be achieved over a relatively short period of time.

  11. Notwithstanding the adverse view of the father as expressed by the family consultant, I am obliged to consider the separate proposals of the parties from the child’s perspective in terms of which proposal or such reasonable iteration as may be open to the Court would best serve the interests of the child.

  12. The child has remained in the care of the father since separation.  For 10 months the child spent no time with the mother and thereafter the time has been limited.  The reality is that the father has taken on the responsibility to provide for the child’s needs.  If the school reports are an indicator of his parenting, then the father has discharged his obligation to parent the child to a high standard.

  13. It could be argued that the father was deficient by not properly promoting the child’s relationship with the mother.

  14. To a large degree, those issues are now of less relevance given the current proposals of the parties.

  15. It is an important consideration that this child will need a beneficial female influence on her life.  That is not to derogate from the father’s involvement with the child, but simply to recognise that there are likely to be milestones in this child’s life which will be better assisted by the mother as opposed to the father.

  1. In a general sense, I consider that equal time is in the child’s best interests but that it be introduced in a slow and graduated manner such that by the time the child reaches 13 years of age she will have the benefit of equal input and will have developed a level of maturity that will enable her to navigate whatever differences remain in terms of the attitude of the parties towards each other.

Conclusion

  1. I propose to make orders which provide for a gradual increase of the mother’s time to five nights a fortnight and that thereafter the child will spend one further night in each year until her 13th birthday whereupon her time with the parties will be shared.

  2. The parties have reached substantial agreement on a number of issues and they will be incorporated in the orders that are to be made.

  3. I consider that it is to the advantage of the child, taking into account the preparedness of the parties, to consider an alternate place of handover namely, that there be a ready transition away from the current handover point to reflect a handover either at school or at the homes of each of the parties.

  4. The parties are agreed that the child will complete her primary school education at F Primary School and thereafter at a city based secondary school.

  5. The mother has agreed to keep the father informed of details of her current health practitioners but does not agree to include any current treatment and/or medication being provided to him.  I consider that the mother’s refusal is appropriate in the circumstances, particularly given that she concedes that if she is not able to look after the child as a result of hospitalisation then if the time extends beyond 76 hours, it is reasonable that her time with the child be suspended and the child return to the care of the father for the balance of the mother’s hospitalisation.

  6. The father seeks that the mother undertake drug and alcohol counselling.   The mother has indicated a preparedness to do so but does not consider that she should be compelled to do so, particularly in terms of the order as sought by the father that it continue for so long as the relevant organisation determines.

  7. The evidence of Dr N corroborates the mother’s claim that she is readily engaged in her treatment and intends to keep regular appointments with the assigned consultant psychiatrist.  To date she has done so.  There is no evidence to suggest that she will not continue to do so in the future and again, I confirm my favourable observations of the mother that she recognises the importance of doing all that she can to maintain good mental health.

  8. Each of the parties were critical of the other in respect of their drug use.  The mother however agrees to the order sought by the father that she undertake up to two random supervised urine drug analysis tests during the next 12 months at the unilateral request of the father providing same is not to be undertaken in less than 48 hours.  The father has reasonably agreed to share the cost of any testing that he may request.

  9. The father also seeks that the mother be restrained by way of injunction from consuming more than two standard alcoholic drinks or any illicit substances for 48 hours prior to or during her time with the child.  I consider such an order to be unenforceable and whilst I understand the basis upon which the father seeks such an order, I consider it to be unnecessarily restrictive and unlikely to advance the interests of the child.

  10. The mother also agrees that she will remain at the home of the maternal grandparents until the conclusion of 2021.  It is likely that the mother will remain for a longer period than proposed by the father in circumstances where the maternal grandmother corroborated the mother’s evidence of an intention to extend her home to accommodate the mother and the child in the long term.

  11. Each of the parties are in effective fulltime employment but subject to some complexity in respect of their rosters.  They are able to care for the child by their continued reliance on the paternal aunt in respect of the father and the maternal grandparents in respect of the mother.

  12. The parties have agreed to equal shared parental responsibility and I consider that it is reasonable for them to make appropriate arrangements for the child when she is in their separate care.

  13. I make orders as appear at the commencement of these reasons.

I certify that the preceding one hundred and eighty eight (188) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 16 October 2020.

Associate: 

Date:  16 October 2020


Key Legal Topics

Areas of Law

  • Family Law

Legal Concepts

  • Injunction

  • Natural Justice

  • Procedural Fairness

  • Remedies

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