HALKIAS & WHITWELL

[2014] FamCA 1166

FAMILY COURT OF AUSTRALIA

HALKIAS  & WHITWELL [2014] FamCA 1166

FAMILY LAW – CHILDREN – Best Interests – Where there is one child aged seven – Where the child currently lives with the father and spends every Saturday with the mother – Where the mother seeks that the parents have equal shared parental responsibility, the child live with her and spend alternate weekends with the father – Where the father seeks sole parental responsibility, that the child lives with him and spends time with the mother every second Saturday – Where the ICL seeks that the father has sole parental responsibility and the child spend time with the mother on Saturday three of four weekends, with one visit being extended overnight, provided adequate supervision is available – Where the child has a meaningful relationship with both parents – Where there is a poor relationship between the parents – Where the mother alleged the father was violent towards her – Where the father denied all allegations of physical abuse and conceded only that he pushed the mother on one occasion – Where it is likely the child has been exposed to a risk of abuse through the mother’s consumption of alcohol – Where the child has been exposed to abuse through the mother’s former adult relationships – Where the mother has not enjoyed stable accommodation – Where the Family Consultant recommended that the child continue to live with the father and spend time with the mother on weekends – Where the Family Consultant recommended that supervision is necessary for overnight time between the mother and child until the child reaches 13 years of age –  Where it is not in the child’s best interests for her parents to have equal shared parental responsibility – Orders made for the father to have sole parental responsibility for the child – Orders made for the child to live with the father and spend time with the mother three of four weekends with one visit being extended to overnight, provided adequate supervision is available.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAA, 65DAC

Champness & Hanson (2009) FLC 93-407
McCall & Clark (2009) FLC 93-405

APPLICANT FATHER: Mr Halkias

RESPONDENT MOTHER: Ms Whitwell

INDEPENDENT CHILDREN’S LAWYER: Ms Conte-Mills

FILE NUMBER: SYC 6910 of 2012

DATE DELIVERED: 19 December 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 24 – 28 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Messner
SOLICITOR FOR THE APPLICANT:	Castle Lawyers
RESPONDENT:	In person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Conte-Mills

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Phillip A Wilkins & Associates

Orders

1.That the father, Mr Halkias, shall have sole parental responsibility for the child, A Halkias (“the child”), born … 2007.

2.That the child live with the father.

3.That unless the parties otherwise agree, the child shall spend time with the mother on the following basis and at the following times:

(a)For three out of every four weekends, from 9.00 am until 5.00 pm with the third Saturday in each four-week cycle (or other Saturday as agreed between the parents) being extended to overnight, from 9.00 am Saturday until 5.00 pm Sunday, provided Ms L, Ms D or such other person as is approved by the father (“the supervisor”) is available to supervise the overnight time between 5.00 pm Saturday and 9.00 am Sunday;

(b)In each school holiday period as agreed between the parents and failing agreement for not less than one day in each week of the school holidays and this time shall be in addition to the time in order 3(a) herein.  Any overnight time in the school holidays is subject to agreement between the parents and the availability of the supervisor.

(c)On Mother’s Day from 9.00 am until 5.00 pm.

(d)On Boxing Day, 26 December 2014 and each alternate year thereafter from 9.00 am until 5.00 pm.

(e)Provided that an approved supervisor is available each night from 5.00 pm until 9.00 am the following morning, in 2015 and each alternate year thereafter from 5.00pm on Christmas Eve to 12.00 noon on Boxing Day.

4.For the purposes of 3(a) above the three Saturdays in each four week cycle on which the child will spend time with the mother shall be as identified by the father and notified to the mother not later than seven days prior to the commencement of each four week cycle.  Unless the parties otherwise agree the four week cycle shall commence on the first Saturday after the commencement of each school term.

5.The father shall spend time with the child on Father’s Day from 9.00 am until 5.00 pm and the mother’s time with the child is suspended at this time if the child would otherwise be spending time with the mother.

6.Prior to the first occasion of Ms D supervising the child’s time in the case of 3(a) on Saturday only, commencing at 9.00 am and concluding at 5.00 pm time with her mother, she shall execute an undertaking in the form set out at the conclusion of these orders and provide that document to the Independent Children’s Lawyer for lodging on the Court file.

7.In the event a supervisor is unable to supervise the mother’s overnight time with the child in accordance with orders 3(a), 3(b) or 3(e) herein, then such overnight time shall be suspended and the mother’s time with the child shall occur in the case of 3(a) on Saturday only, commencing at 9.00 am and concluding at 5.00 pm; in the case of 3(b) on the first day of the mother’s time, commencing at 9.00 am and concluding at 5.00 pm; and in the case of 3(e) from 9.00 am to 5.00 pm on Boxing Day.

8.The father may suspend the mother’s time with the child on no more than three  occasions every calendar year provided that he has given at least four weeks’ notice to the mother and provided he has offered the mother a choice of days on which she may have time in lieu of any time the father suspends.

9.Unless the parties agree to an earlier cessation, the requirement of supervision of overnight time spent between the mother and the child in accordance with orders 3(a), 3(b) and 3(e) herein shall cease upon the child turning 13 years of age.

10.That the mother may communicate by telephone and / or Skype / Facetime (or similar video communication) with the child as agreed and failing agreement:

(a)each Wednesday morning between 7.00 am and 8.00 am;

(b)each Friday morning between 7.00 am and 8.00 am;

(c)on the child’s birthday between 7.00 am and 8.00 am;

(d)on the mother’s birthday between 7.00 am and 8.00 am; and

(e)on Christmas morning between 7.00 am and 8.00 am.

11.That for the purposes of changeover, unless otherwise agreed in writing, changeover shall occur by the father or his nominee delivering the child to the mother at Central Railway Station, at an agreed location within that station, and the mother collecting the child from the father or his nominee. At the conclusion of the mother’s time with the child, the mother shall return the child to the father or his nominee at O Railway Station.

12.That each parent do all such things and sign all such documents and authorities as necessary to ensure that:

(a)Each parent is at liberty to communicate directly with the child’s school as to the child’s progress at school and any issues experienced by the child and to enable her school records to record the details of each parent, to show each of them as a person to be contacted in the case of an emergency and to ensure that each parent is on the mailing list for copies of school reports, circulars and information about upcoming events; and

(b)Each parent is entitled to communicate directly with any treating professional as to any health related treatment being undertaken by the child without necessarily first referring to the other parent.

13.Each parent shall keep the other informed as to all sporting, religious, cultural and educational events (which come to the notice of that parent) in which the child is from time to time involved (or which relate to the activities of the child, such as parent/teacher interviews) to which parents are invited to attend and each parent shall be at liberty to attend such event.

14.The father is to keep the mother informed as to any medical, dental, counselling or other health related treatment being undertaken by the child and the identity of the treating professionals.

15.Each parent is to notify the other as soon as reasonably practicable in the event the child becomes seriously ill or is involved in any accident requiring medical treatment by a hospital or emergency health facility when the child is in their care.

16.The mother is restrained from consuming alcohol when the child is in her care and for 12 hours prior to the child coming into her care.

17.The father is at liberty to suspend the mother’s time with the child on any occasion when he is informed by the supervisor or when he or his nominee assess that the mother has or is reasonably suspected to have consumed alcohol.

18.Each parent shall keep the other informed as to their residential address and telephone number and shall notify the other within 48 hours of any change.

19.That the father shall pay one half of the costs of the Independent Children’s Lawyer, being $6,660.50 within four months of the date of these orders.

20.Before making any major decisions pursuant to order 1 herein in relation to the child’s education, religion or major healthcare the father is to give the mother 28 days’ notice of his proposed decision, except in the case of an emergency, to allow the mother to have input to the decision-making and to enable the father to consider her views prior to making a final decision.

21.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

22.Leave is granted to the parties to apply within 28 days, on giving at least seven days’ notice to the Court and each other in relation to the wording of these orders.

Notation

The Court notes the undertaking provided by the supervisor, Ms L and to be provided by Ms D in the following terms:

1.I undertake to be present with and in the same residence with the mother between the hours of 5.00 pm and 9.00 am the following day when the mother spends overnight time with the child.

2.I undertake that in the event I see the mother consuming alcohol or where I reasonably suspect the mother to have consumed alcohol within 12 hours prior to the mother’s time with the child commencing, then I shall advise the father immediately.

3.I undertake to contact the father immediately in the event I see the mother consuming alcohol or reasonably suspect she has consumed alcohol at any time the child is spending time with her.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6910  of  2012

Mr Halkias

Applicant Father

And

Ms Whitwell

Respondent Mother

REASONS FOR JUDGMENT

Introduction

1.These are parenting proceedings in relation to A Halkias (“the child”) who was seven years of age at the time of the hearing.  The father seeks sole parental responsibility for the child and that she live with him and spend each alternate Saturday with the mother.  The mother’s primary application is that the parties have equal shared parental responsibility for the child and that she live with the mother and spend alternate weekends and other times with the father.  The father is particularly concerned about the mother’s erratic lifestyle and substance abuse and the mother, about the father’s violence.

Applications

2.The father sought the following orders as contained in a minute of orders handed up during final submissions which is exhibit 17:

1.That the father have sole parental responsibility for the child [A Halkias] born … 2007.

2.That [the child] live with the father.

3.That [the child] spend from 10.00 am to 5.00 pm on every second Saturday.

4.That the mother is restrained from consuming alcohol or illicit drugs whilst ever [the child] is in her care and for 24 hours prior to [the child] coming into her care.

5.That changeover for Order 3 occur at Central Railway Station with the father or his nominee to deliver [the child] to the mother at the commencement of the time, and the mother return her to the father or his nominee at the conclusion of the time.

6.That the mother have telephone contact with [the child] on Wednesday each week between 7.00 am and 8.00 am.

7.That the father authorize [the child’s] school to provide copies of [the child’s] Reports to the mother directly to an address nominated by the mother.

8.That before making any major decisions pursuant to order one in relation to [the child’s] education, religion or major health care the father is to give the mother 28 days notice of his proposed decision except in the case of an emergency, to allow the mother to have input to the decision making and to enable the father to consider her views prior to making a final decision.

9.That the mother is restrained from allowing any previous male partners or future male partners to spend time with [the child] unless she has the prior written consent from the father.

10.That the father may suspend the mother’s time in order 3, three times each year in order to have a holiday provided that he gives the mother 14 days notice and provided he gives make up time to the mother within four weeks.

3.There was some confusion about the orders sought by the mother.  At the commencement of the hearing she identified a document as setting out the orders she sought.  It was marked exhibit 1.  At the conclusion of the hearing the mother handed up a document titled “Submissions” which was marked exhibit 18, but it largely contained further orders sought.  After some discussion the mother indicated that she did not press for the orders set out in exhibit 18 but sought orders in terms of exhibit 1. 

4.The mother seeks:

1.That with respect to the child [A HALKIAS] born … 2007 (“the child”):

1.1.(As to parental responsibility) The parties have equal shared parental responsibility.

1.2.(As to living arrangements) The child live with the Mother and spend time with the Father as follows:

1.2.1.Each alternate weekend from 5.00pm Friday to 5.00pm Sunday (Monday if a long weekend) or 6.00pm Sunday during Daylight Saving (Monday if a long weekend).

PROVIDED HOWEVER that in the event that the court returns that it is in the best interests of the child to live with the Father then the following Order be made as to time to be spent by the child with the Mother.

Order

That the child spend time with the Mother as follows:

.1On three weekends per month - on each weekend of each month during term save and except for the one weekend per month that the father has each day off from his employment.

.2For the whole of the non-Christmas school holidays in each year save and except for those occasion when the Father has given notice that he is able and will take time off from his employment for one half of such school holidays in which case the child spend time with the Mother for one half of such school holidays with the relevant changeover times as between the parties being 9.00am on the morning after breakup, 5.00pm on the day which represents the mid point and 5.00pm on the day prior to the resumption of school.

.3For one half of each and every Christmas school holidays being the first half of those holidays commencing in each even year and the second half of those school holidays commencing in each odd year with the relevant changeover times in each even year at 3.00pm on Christmas Eve then continuing for a period representing one half of the Christmas holiday to 5.00pm on the final day and in each odd year commencing at 4.00pm on Christmas Day then continuing likewise for a period representing one half of the Christmas school holidays and ending at 5.00pm on such date.  

2.That each party have sole responsibility for the day to day care, control and welfare of the child whilst in his or her care.

3.That for the purposes of implementing the parenting regime more particularly set forth herein the parties cause the child to be exchanged between them at [O] railway station unless otherwise mutually agreed.

4.That notwithstanding any other Order herein contained the parties ensure that the child:

4.1.Spend time with the Father each year for Father’s Day and if it not be a weekend that the child would be with him pursuant to these Orders then the child return to the Father at 6.00pm Father’s Day Eve and then remaining with the Father until 6.00pm Father’s Day (if the child is living with the Mother) or returned to school (if the child is living with the Father) and with the Mother each year for the weekend containing Mother’s Day from 5.00pm on the Friday of that weekend to 5.00pm on the Sunday of that weekend.

4.2 Communicate by telephone with the then non-present parent on a regular and reasonable basis including special days such as the child’s birthday, Christmas morning, the first day of school and the non-present parent’s birthday.

5.That each parent do all such things and sign all such instruments, documents, authorities and the like necessary to ensure that:         

5.1.Each parent is at liberty to communicate directly with the child’s school teachers and other school authorities as to the child’s progress at school and any problems being experienced by the child and to enable her school records to show each parent as a person to be contacted in the case of an emergency and to ensure that each parent is on the mailing list for copies of school reports and circulars as to upcoming events.

5.2To enable each parent to communicate directly with any treating professional as to any health related treatment being undertaken by the child without necessarily first referring to the other parent.

6.That each parent keep the other informed as to all sporting, religious, cultural and educational events (which come to the notice of that parent) in which the child is from time to time involved (or which relate to activities of the child although she herself might not be involved, for example parent/teacher interviews) and at which parents may attend and each parent be so at liberty to attend.

7.That each parent at all times keep the other informed as to all medical, dental or other health related treatment being undertaken by the child and the identity of the treating professionals and in any event notify the then non-present parent immediately upon the happening of a serious accident or illness experienced by the child and as to the treatment being rendered.

8.That each parent be and is hereby restrained as follows:

8.1. From consuming alcohol at any time that the child is with a parent or 24 hours prior to such time.

8.2.From causing the child to be exposed to any major argument or dispute within the domestic home of within the company of such parent whilst the child is with him or her.

8.3.From employing any form of corporal punishment with respect to the child.

8.4.From smoking cigarettes or consuming any illicit substances in the presence of the child and from permitting others to so smoke or consume any illicit substances in the presence of the child.

8.5.From denigrating the other parent or any partner of the other parent in the presence of the child or from permitting others to so denigrate the other parent or any partner of the other parent in the presence of the child.

8.6.From using obscene or indecent language in the presence of the child.

9.That each party keep the other informed at all times of his or her then current address and telephone number and keep current a telephone service available for the purposes associated with these Orders.

10.That given that the parties have equal shared parental responsibility they shell in making decisions as to the various important and/or long-term decisions as to the care, welfare and development of the child:

10.1.Firstly discuss the matter involved in a thoughtful and respectful way;

10.2.Then, failing agreement, reduce their views as to the problem and its resolution to writing and provide a copy thereof to the other;

10.3. Then, failing agreement, employ the services of a Government authorised mediation service to assist in the resolution.

11.That pursuant to Section 65DA(2),the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

5.The mother is self-represented and so as to ensure that she had every opportunity to put her case before the Court, I made orders giving the mother the opportunity to submit a further or additional set of orders together with written submissions, provided that was done within seven days from the conclusion of the hearing. 

6.On 4 December 2014 the mother sent a document to the Court and the other parties.  To the extent that the document included material in the nature of further evidence, it was rejected.  The part of the document that was identified as containing further orders sought or submissions is set out hereunder:

Additional Submission Entries;

1] That the meeting spot for drop off and return of [the child] remain at [O]

(the travel time to Central Station being 2 hours there and 2 hours back)

Which means on a day visit that is 8 hours travel and I only have [the child] for 7 hours. I am begging for this to be considered.

[O] is half way for both parties, 1 hour for me, and 40 minutes for [the father].

[The child] likes to come to the coast and visit her friends.

She is also having surfing and tennis lessons on her days with me and the Central Station drop off and return would make this impossible.

I have attached a train time table for reference.

2] That [Ms E] and [Ms D],  also be allowed along with [Ms L] to supervise overnight visits, so as to enable me to have longer periods of stay overs, in the very unlikely event [Ms L] cannot do it.

They both have children and are more than qualified.

Also just letting you know if, in the wonderful event that [the child] can stay for long periods of time over this coming holidays, (we have camping trips planned) [the child] is available for the whole duration, this Christmas.

3] That all my information to [the child’s] school be put on all relevant paperwork, and the school be told that I am able to visit [the child].

(deleted)

4] I cannot communicate with [the father], he says no to any request I have and would appreciate any assistance or advise with this.

7.The proposals of the Independent Children’s Lawyer (“ICL”) were set out in a document handed up during final submissions, which is exhibit 16.  The ICL sought:

1.That the father, [Mr HALKIAS], shall have sole parental responsibility for the child, [A HALKIAS], born … 2007.

2.That the child live with the father.

3.That the mother spend time with the child on the following basis and at the following times:

(a)For three (3) out of every four (4) weekends, from 9:00am until 5:00pm with the third Saturday in each four-week cycle (or other Saturday as agreed between the parents) being extended to overnight, from 9:00am Saturday until 5:00pm Sunday, provided Ms [L] or such other person as approved by the father (“the supervisor”) is available to supervise the overnight time between 5:00pm Saturday and 9:00am Sunday;

(b)In each school holiday period as agreed between the parents and failing agreement for not less than one (1) day in each week of the school holidays and this time shall be in addition to the time in order 3(a) herein.  Any overnight time in the school holidays is subject to agreement between the parents and the availability of the supervisor.

(c)On Mother’s Day from 9:00am until 5:00pm  .

(d)On Boxing Day, 26 December from 9:00am until 5:00pm.

4.The father shall spend time with the child on Father’s Day from 9:00am until 5:00pm and the mother’s time with the child is suspended at this time if the child would otherwise be spending time with the mother.

5.That in the event the supervisor is unable to supervise the mother’s overnight time with the child in accordance with orders 3(a) herein, then such overnight time shall be suspended and the mother’s time with the child shall occur on Saturday only, commencing at 9:00am and concluding at 5:00pm.

6.That the father may suspend the mother’s time with the child on no more than three (3) occasions every calendar year provided that he has given at least four (4) weeks notice to the mother and provided he has offered the mother a choice of days in which she may have time in lieu of any time the father suspends.

7.That the requirement to supervision of overnight time spent between the mother and the child in accordance with orders 3(a) and 3(b) herein shall cease upon the child turning 13 years of age.

8.That the mother may communicate by telephone and/or Skype/Facetime (or similar video communication) with the child as agreed and failing agreement:

(a)each Wednesday morning between 7:00am and 8:00am;

(b)each Friday morning between 7:00am and 8:00am;

(c)on the child’s birthday between 7:00am and 8:00am;

(d)on the mother’s birthday between 7:00am and 8:00am;

(e)on Christmas morning between 7:00am and 8:00am.

9.That for the purposes of changeover, unless otherwise agreed in writing, changeover shall occur by the father or his nominee delivering the child to the mother at Central Railway Station, at an agreed location within that station, and the mother collecting the child from the father or his nominee and at the conclusion of the mother’s time with the child, the mother shall return the child to the father or his nominee at Central Railway Station.

10.That each parent do all such things and sign all such documents and authorities as necessary to ensure that:

(a)Each parent is at liberty to communicate directly with the child school as to the child’s progress at school and any issues experienced by the child and to enable her school records to show each parent as the parent and as a person to be contacted in the case of an emergency and to ensure that each parent is on the mailing list for copies of school reports, circulars and information about upcoming events;

(b)Each parent is entitled to communicate directly with any treating professional as to any health related treatment being undertaken by the child without necessarily first referring to the other parent.

11.That each parent keep the other informed as to all sporting, religious, cultural and educational events (which come to the notice of that parent) in which the child is from time to time involved (or which relate to the activities of the child, such as parent/teacher interviews) to which parents are invited to attend and each parent shall be at liberty to attend such event.

12.That the father is to keep the mother informed as to any on-going medical, dental, counselling or other health related treatment being undertaken by the child and the density of the treating professionals.

13.That each parent is to notify the other as soon as reasonably practicable in the event the child become seriously ill or is involved in any accident requiring medical treatment by a hospital or emergency health facility when the child is in their care.

14.That the mother is restrained from consuming alcohol when the child is in her care and is further restrained from consuming alcohol 12 hours prior to the child coming into her care.

15.The father is at liberty to suspend the mother’s time with the child on any occasion when he is informed by the supervisor that the mother has or is reasonably suspected to have consumed alcohol.

16.That each parent shall keep the other informed as to their residential address and telephone number and shall notify the other within 48 hours of any change.

17.That the father shall pay one half of the costs of the independent children’s lawyer, being $6660.50 within 28 days of the date of these orders.

18.That before making any major decisions pursuant to order 1.  Herein in relation to the child’s education, religion or major healthcare the father is to give the mother 28 days notice of his proposed decision except in the case of an emergency and to allow the mother to have import into the decision-making and to enable the father to consider her views prior to making a final decision.

Notation

The Court notes the undertaking provided by the supervisor Ms [L] in the following terms:

1.I undertake to be present with and in the same residence with the mother between the hours of 5:00pm and 9:00am the following day when the mother spends overnight time with the child;

2.I undertake that in the event I see the mother consuming alcohol or where I reasonably suspect the mother to have consumed alcohol within twelve (12) hours prior to the mother’s time with the child commencing, then I shall advise the father immediately.

3.I undertake to contact the father immediately in the event I see the mother consuming alcohol or reasonably suspect she has consumed alcohol at any time the child is spending time with her.

8.The father relied on:

·Notice of Child Abuse, Family Violence or Risk of Family Violence filed 6 December 2012;

·Affidavit of the father filed 3 March 2014;

·Affidavit of the father filed 13 November 2014;

·Affidavit of the father filed 24 November 2014;

·Affidavit of Ms K filed 3 March 2014;

·Affidavit of Ms K filed 13 November 2014

·Affidavit of Ms J filed 3 March 2014;

·Affidavit of Mr S filed 13 November 2014;

·Affidavit of Mr S filed 24 November 2014;

9.The mother relied on:

·Affidavit of the mother filed 14 February 2014;

·Affidavit of the mother filed 10 November 2014;

·Affidavit of the mother filed 17 November 2014;

·Affidavit of Ms L filed 11 November 2014;

·Affidavit of Ms D filed 14 February 2014; and

·Affidavit of Ms P filed 14 February 2014

10.Ms E was not available for cross-examination and her affidavit filed 14 February 2014 was excluded on objection.

11.The following expert evidence was relied on:

·Family Report of Ms R dated 16 October 2013.

The Hearing

12.The hearing commenced on Monday 24 November 2014.  On 28 November 2014 judgment was reserved.  The mother represented herself and as a result, was at a considerable disadvantage during the hearing.  She struggled with the process of cross-examination of witnesses and did not understand how or was too upset to prepare written submissions or to make oral submissions at the conclusion of the trial.  As is referred to above, on 4 December 2014 a further document was received from the mother.  The part of the document that was identified as containing further orders sought or submissions is set out above.  The mother was not able to engage meaningfully in the process of making submissions, whether orally or in writing.  That said I believe that she effectively communicated the orders she sought and by the conclusion of the hearing had made clear the case she sought to make.

Short History

13.The father was born in 1977.  At the date of the hearing he was 37 years of age.  The mother was born in 1969.  At the date of the hearing she was 45 years of age.  The parents met in 2005 and separated in 2008.  The child A is their only child and was born in 2007.

Background Facts

14.The parties started living together in 2006.

15.The mother became bankrupt on her own petition in May 2007.

16.The child was born in 2007.

17.In 2007 the father purchased a unit in Suburb C and the family moved into that property after the child was born.

18.On 1 July 2008, without notice to the father, the mother left the C unit with the child and moved to rural Town W.

19.The father did not have much time with the child immediately after separation.  From the time of separation the mother facilitated time between the child and the paternal grandmother.  For a period that was each alternate weekend.

20.The father spent time with the child in late 2008 in a park in Town W.

21.In approximately May 2009 the father moved to Suburb N to live with his then partner, Ms B.

22.In about 2009 the mother and the child moved to Suburb U.

23.In 2010 the mother moved to Suburb F where she ran a business with Mr T.  Later, Mr X came to work at the business.  The child spent time with the father every second weekend from Thursday to Monday.  The paternal grandmother collected the child from and returned her to H Railway Station.  On some occasions the father travelled to Suburb F to collect or return the child.

24.In 2011 the father attempted to enter into a parenting plan with the mother but the mother refused to agree to a parenting plan.

25.The mother commenced a relationship with Mr X in about May 2011.[1]

[1] The police report created 2 November 2011 (exhibit 8) includes reference to the mother’s relationship with Mr X commencing about 18 months earlier.  It follows that that information came from the mother or Mr X.

26.In April 2012 the mother sold her business at Suburb F.  The mother experienced back pain which she believed was due to the physical labour of running the business.  The mother deposed that in the process of selling the business she was defrauded by the purchaser and the sale moneys were not paid to her.  The mother said that as a result, she lost approximately $70,000.  The mother said that she became depressed and was prescribed anti-depressants.  She said that she also participated in gambling and increased her alcohol intake.

27.On 29 May 2012 the parties signed an agreement that meant the child would spend every alternate weekend, from Thursday to Monday with the father for a period of twelve weeks.

28.In 2012 the mother, the child and Mr X moved to Town V on the Central Coast. 

29.The father deposed that on 29 October 2012, Mr X told him that the mother “is drinking 3 bottles of wine a day, is on anti-depressants, smokes pot and threatens to kill herself.  You should take [the child] away from this.”

30.The father deposed that on 1 November 2012 during changeover the mother said to him “The anti-depressants make me want to kill myself. [Mr X] is a fuckin’ asshole. He doesn’t know what’s coming.”  The father retained the child following that visit and since then she has lived primarily with the father.  Ms B and the paternal grandmother assisted with the child when the father was at work.

31.In 2013 the mother participated in two TAFE Certificate courses, however she deferred the second course as she was accepted into a program which she said is a course on starting your own business.  If I understand the position correctly, the mother has plans for a business involving making and distributing a food product.

32.The father and Ms B separated in September 2013 and he and the child subsequently moved back to the paternal grandmother’s house.

33.The mother deposed that she has not consumed alcohol since September 2013.

34.Family Consultant Ms R’s report dated 16 October 2013 was released to the parties.

35.In November 2013 the father attended a 1, 2, 3 Magic parenting course.

36.In December 2013 the mother completed a course with a drug and alcohol counselling service relating to relapse prevention.

37.On the recommendation of the Family Consultant, in late 2013 and early 2014 the mother engaged in a drug and alcohol assessment with psychologist Ms P.  The mother attended four sessions and a treatment report was prepared dated 15 January 2014.  The report concluded that no substance use disorder was apparent and no intervention was warranted by the service.  In making her report, Ms P relied solely on the history provided by the mother.  That history was deficient in material ways.  In cross-examination Ms P said that, had she been made aware of the correct history, she would have made independent enquiries and that her conclusions and recommendations would have been different.

38.In early 2014 the mother attended a nine week course for abused women, through CC Health Service.  In March 2014 and during that course, the mother met and commenced a relationship with Mr S.  They subsequently lived together in two premises in the Town Y area.

39.On 2 November 2014 the mother moved into the home of her friend, Ms L.  She has made an open ended offer of temporary accommodation to assist the mother.

40.The mother and Mr S separated on 5 November 2014.

41.The mother said that at the time of the hearing, she was not in a relationship.

42.The father currently lives in Suburb LL with the child and the paternal grandmother.  He is self employed as a franchisee for a business in the inner-city area. He currently works Monday, Tuesday, Friday, Saturday and Sunday and has one Sunday off every four weeks.

43.In 2014 the child was in Year 1 at LL Primary School.  She attended swimming and dance lessons each week.  The paternal grandmother looked after the child while the father was at work.

The Expert Evidence

44.The Family Report writer was Ms R. Ms R’s qualifications include a Bachelor of Social Work.  She has worked as a Family Consultant since October 2012 and prior to that, worked as a Child Protection Caseworker and a Brighter Futures Caseworker with the Department of Family and Community Services and previously a Casual Child Care worker with a local government body.

45.Ms R prepared a report in this matter dated 16 October 2013.  In addition to the material identified in her report and the interviews conducted in 2013, prior to her cross-examination Ms R read the affidavits of the parties and of some supporting witnesses and some subpoenaed material.

The Legislation

46.The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).

47.Section 60B sets out the objects of the Part and the principles underlying those objects. Relevantly the section provides:

(1)The objects of this Part are to ensure that the best interests of 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 principles underlying these objects are that (except when it is or would be contrary to a child‘s best interests):

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

(b)     children have a right 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).

48.Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.

49.The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility.  The presumption may not apply but if it does apply, it can be rebutted.  If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time. Findings are made by reference to what is in the child’s best interests.

50.I will adopt the following approach:

a.set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;

b.where possible and relevant, consider and make findings about matters set out in s 60CC;

c.consider and make findings about parental responsibility, including considering the presumption in s 61DA;

d.apply s 65DAA if relevant and assess the proposals in light of that provision;

e.if 65DAA is not relevant, assess the proposals against the best interests criterion;

f.consider and make findings about living arrangements; and

g.make orders.

The Parties’ Proposals

51.The ICL proposed that the father have sole parental responsibility.  The ICL proposed that the child live mainly with the father and spend three Saturdays out of four with the mother.  Provided the time was supervised by Ms L or another agreed supervisor, the ICL proposed that one of those Saturdays extend overnight to Sunday afternoon. 

52.The father proposed that he have sole parental responsibility.  The father proposed that the child live mainly with him and spend day only time with the mother each alternate Saturday.  Among other orders the father proposed that the mother be restrained from bringing the child into contact with any of her past or future partners without his consent.

53.The mother proposed that the parents have equal shared parental responsibility.  She proposed that the child live mainly with her and spend overnight time with the father on alternate weekends.  In the event that the Court decides that the child should live mainly with the father then the mother proposed that the child spend time with her on three weekends a month from Friday after school to Sunday night and for most of the school holidays. 

54.The range of dispute on the key areas of contest seems to be:

a)Whether the father should have sole parental responsibility or the parties should have equal shared parental responsibility.

b)Whether the child should mainly live with the father or mainly with the mother.

c)The amount of time the child should spend with the other parent.

d)If the child lives mainly with the father, whether the mother should have overnight time with the child and whether that time should be supervised.

e)Whether handover should be effected at O Railway Station or Central Railway Station or some combination of the two.

f)The ancillary orders that should be made.

Section 60CC Considerations

55.Section 60CC specifies the following considerations:

Primary considerations:

Note:  Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2)(a) the benefit to the child of having a meaningful relationship with both of the child‘s parents

56.A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[2]  That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.

[2] McCall & Clark (2009) FLC 93-405

57.The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[3]

[3] Champness & Hanson (2009) FLC 93-407

58.Each of the parents proposes that the child spend some time, unsupervised, in the care of the other parent.  The Family Consultant observed a loving interaction between the child and each parent.

59.The mother deposed to the efforts she made directly, and later through the paternal grandmother to encourage the father to take an interest in the child following separation.

60.In my opinion, it follows that there is meaning in the relationships between the child and each parent.  In my view it would be in the child’s best interests if future orders facilitated those relationships.

(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

61.‘Abuse’ and ‘family violence’ are defined terms.

“abuse” , in relation to a child, means:

(a) an assault, including a sexual assault, of the child; or

(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

(d) serious neglect of the child.

62.Section 4AB provides:

(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member ), or causes the family member to be fearful.

(2) Examples of behaviour that may constitute family violence include (but are not limited to):

(a) an assault; or

(b) a sexual assault or other sexually abusive behaviour; or

(c) stalking; or

(d) repeated derogatory taunts; or

(e) intentionally damaging or destroying property; or

(f) intentionally causing death or injury to an animal; or

(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j) unlawfully depriving the family member, or any member of the family member‘s family, of his or her liberty.

(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

(a) overhearing threats of death or personal injury by a member of the child‘s family towards another member of the child‘s family; or

(b) seeing or hearing an assault of a member of the child‘s family by another member of the child‘s family; or

(c) comforting or providing assistance to a member of the child‘s family who has been assaulted by another member of the child‘s family; or

(d) cleaning up a site after a member of the child‘s family has intentionally damaged property of another member of the child‘s family; or

(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child‘s family by another member of the child‘s family.

The allegations in these proceedings

63.Each of the parties alleges that the other has exposed the child to abuse, neglect and family violence.  There are many allegations and without setting out all of them, I will seek to address representative complaints and what I understand to be the gravamen of the parties’ concerns.

The mother’s allegations against the father

64.The mother alleges that the father was violent towards her.  The mother deposed that an incident occurred towards the end of August 2007 when the father arrived home one night at around 10.30 pm.  She said he yelled loudly at her words to the effect “You’re just a cunt and a stupid bitch” before grabbing her around the throat.  The mother said she hid in the child’s room, where the child was asleep and the father screamed at her through the door for about 20 minutes.

65.The mother deposed that on 21 October 2007 the father came up behind her and hit her on the head with “great force” and her head struck the desk in front of her.  She said the father then grabbed her around the neck and yelled at her “You’re a stupid fat pig and just a cunt” and yelled at her close to her face for 15 minutes.  The mother deposed that the child was crying hysterically in a cot nearby.  She said she slept in the child’s room that night.

66.The mother deposed that on 20 November 2007 the father came home and screamed at her and then came at her as if to choke her.  The mother said she blocked the father, broke a finger nail and began to cry.  She said he then slapped her hard in the face and grabbed her around the neck and spat over her face.

67.The mother deposed that on 4 December 2007 the father started drinking at 11.00 am.  The mother asked him not to start drinking yet and the father told her to “Get fucked”.

68.The mother deposed that on 10 December 2007 the father elbowed her in the ribs and called her a “stupid cunt” while she was feeding the child.

69.The mother deposed that on 3 January 2008 while driving in the car with the child, the father struck the mother across the face and called her a “stupid cunt”.  The mother deposed that the father then sped the car up and proceeded to “drive wildly”.

70.On 1 July 2008 the mother secretly left the Suburb C unit and moved to Town W.  The mother said she was deeply afraid due to the actions of the father.  The father deposed that after the mother moved out he could not get in contact with her for six weeks and did not know where she was living.  The mother deposed that during the first five months following separation the father made a series of phone calls to her and stated that he had been attending anger management classes.  

71.The father spent time with the child in late 2008 in a park.  The mother deposed that the father screamed at the maternal grandmother during the visit and became very agitated.  Importantly, the mother deposed that later when the parties were at W train station, the father held the child over the train tracks with one arm and said: “You come back to me or I don’t know what I will do”.  It is the mother’s evidence that there was then a struggle between the parents over the child and the mother said she took the child from the father and ran home.  During cross-examination the mother said something to the effect that she was sick with fear on that occasion.  However, the mother did not report the incident to police.  There is no evidence from the maternal grandmother to corroborate the mother’s evidence.

72.On 4 December 2008 the father attended at the mother’s house and banged loudly on the door.  The mother said that she did not let the father into the house and he screamed at her saying “You fucking bitch I’ll kill you”.  She deposed that he continued this behaviour for 20 minutes and then left.  The mother reported that matter to police by telephone on 4 August 2008 and in person on 5 August 2008.  The police record[4] reveals that the police did not accept the mother’s version of events.  The father told the police that he had been asked by the mother to travel from Sydney to Town W to help with the child and that when he arrived at Town W the mother was at Town G.  The father reported that when he arrived at Town G the mother told him that she did not need his help any more.  In cross-examination the father agreed that he had attended the mother’s home to tell her about a possible mediator in the Town W area.  The mother attended the police station on 6 August 2008, possibly with the maternal grandmother, to complain about the failure of the police to secure an ADVO on 5 August 2008.  The police noted that there would be further contact with the mother.  On 14 August 2008 the police records show that despite visits to the mother’s home on 7 August 2008 and a phone call later that day, the mother did not wish to see the police.  An attempt by the police to make a later appointment was met with the mother’s response that she was too busy to see police over the weekend.  The mother was advised that she should contact the police when she was able to fix a suitable time to meet with them.

[4] Exhibit 8

73.The mother deposed that on 22 December 2012 the child said to her “When I tell Daddy that I want to go home to you he yells at me and screams Noooooooo”.

74.The mother deposed that on 12 January 2013 the child said to her “Daddy said to me  ‘Hey Mummy is going to die soon’”.

75.The mother deposed that on 19 January 2013 the child said to her “I don’t want to be there anymore. Please mummy get me home”.

76.The mother deposed that on 13 July 2013 the child said “Daddy threw a book at me and hit me and then put me in my room because I did not read a word properly”.

77.The mother deposed that on 7 August 2013 the child called her and sounded very distressed.  She told the mother that the father had said she is not allowed to come to the child’s sports carnival.

78.The father denied all of the above mentioned allegations of physical abuse, conceding only that on one occasion he pushed the mother in an attempt to discourage her from going to licensed premises to buy liquor.  The father conceded that he attended an anger management course at one time in around 2000 but not on two occasions, as the mother alleged.  The father’s attendance at that course followed an incident where he assaulted someone and was sentenced to periodic detention for six months and placed on a two year bond.

79.Beyond the conceded incident where the father pushed the mother, it is not possible to find that the father was violent to her. There is no independent evidence corroborating the mother’s allegations. The mother could not explain why in December 2008 or at any other time she did not report to police the incident at about that same time when she alleges that the father held the infant child over railway tracks. The mother did not mention that allegation to the Family Consultant, Ms R. The mother did not, at that time or since, seek orders under the Act to exclude the father from contact with the child. There is no corroborative evidence from the maternal grandmother, of the incidents the mother says were witnessed by her.

80.The mother’s allegations are very concerning and if borne out, would justify protective orders for the mother and child.  However the evidence is not sufficient to make a finding that the allegations are correct, are more probable than not, nor that orders should be made to protect against a reasonable apprehension that they are true.  The difficulty of establishing the fact of family violence is well known.  Typically the alleged events occur in private and family violence itself can deter a victim from reporting or taking other action to bring that violence to attention.  Accepting those difficulties, the Court is not permitted to presume that allegations of family violence are correct. 

81.In this case the issue is further complicated by the fact that the mother is a poor witness.  She set out to mislead the expert Family Consultant and the drug and alcohol therapist to whom she was referred by the Family Consultant.  In that way, the mother set out to mislead the Court.  In her evidence, the mother tried to minimise the facts in relation to her past consumption of alcohol and in relation to the child’s exposure to violent incidents involving Mr X and Mr T.

The mother’s allegations against the paternal grandmother

82.The mother has both invoked the assistance and involvement of the paternal grandmother and is very critical of her.  The mother expresses sympathy for the onerous responsibilities placed on the paternal grandmother (managing the father’s household and caring for the child) and concern that the child is affected by the paternal grandmother’s exhaustion. Presumably because she thinks it would be relevant to some issue, the mother makes reference to the father saying that his mother had dropped hot wax on his penis.  The mother deposed that at changeover in approximately October 2014 the paternal grandmother said to the mother “You are a stupid ugly woman.  You are pathetic” and “You’ve lost your child for nearly two years”.

83.The mother is greatly aggrieved that when the child was mainly living with the mother, the paternal grandmother cut the child’s hair, without consultation with the mother or her permission.  The mother is aggrieved that on at least one occasion the child reported that the paternal grandmother gave her hot chips for breakfast.  The mother is aggrieved that in the care of the father and the paternal grandmother, the child has been consistently unwell (the mother referred to the child having green discharge from her nose for 18 months).

225.The ICL submitted that Ms L would be an appropriate supervisor provided she gave an undertaking to the Court.

226.There will remain a concern that Ms L would not be vigilant for something that she does not consider is a presenting problem.  Nevertheless, I am confident that Ms L would be careful to ensure that the mother is not affected by alcohol around the child, let alone around her own children.  As a social worker she is a mandated notifier in relation to risks of abuse to children.  The effects of substance abuse are readily identifiable.  Finally, by making the undertaking set out in the orders proposed by the ICL, Ms L or another agreed supervisor will acknowledge the detail of her role and will promise to the Court to undertake that role diligently.

227.The mother seeks that her other friends be approved as supervisors.  Ms E was not before the Court and as she was not available for cross-examination, her affidavit was rejected.  In those circumstances she will not be a supervisor unless the father agrees.  Ms D was before the Court and although clearly a friend and supporter of the mother, in my view she would be a suitable supervisor.  She too would need to complete an undertaking in the form drafted by the ICL but subject to that step, she too will be approved as a supervisor.  Like Ms L, Ms D has young children and in my view would readily understand the risks associated with substance abuse and the need for children to be protected from those risks.

228.Finally, under the proposals of the ICL, the potential occasions of overnight time will be limited to once every four weeks and therefore will not be as onerous for a supervisor as a more frequent arrangement.  That should assist in the supervisor remaining vigilant.

229.As discussed above, Ms R suggested that overnight time would be appropriate if the Court was satisfied that there was a person available to provide overnight supervision while the child was in the mother’s care.  She said the supervisor would need to have insight into the fact that the Court has determined that supervision is necessary. Ms R said supervision would be appropriate until the child reaches about 13 years of age.

230.In my view, the proposals of the ICL, which are supported by the opinion of the Family Consultant, would meet the child’s needs. Ms R gave evidence that a reduction in time with the mother may cause the child grief and it would be a shame if the child could not enjoy experiences with the mother.  She said overnight time between the mother and the child would be a good solution if an appropriate supervisor is available.  I agree.

231.The ICL seeks that the child spend additional time with the mother in school holidays for not less than one day in each week of school holidays and on special occasions including Mother’s Day and Boxing Day.  The father does not seek any order in relation to school holidays and special occasions.

232.One additional day time visit is unlikely to expose the child to any heightened risk from being in the mother’s care.  Further, an order for the mother to spend time with the child on special occasions seems appropriate.  I will make the order sought by the ICL.  Ideally the child should have the opportunity to spend time with her mother on Christmas Day.  It also seems to me that for the sake of the child, travel should be avoided on Christmas Day.  I will provide that in every second year, provided a suitable supervisor is available for each of the two nights involved, in lieu of day only time on Boxing Day, the child shall spend time with the mother from 5.00 pm on Christmas Eve to 12.00 noon on Boxing Day.

233.In her belated submissions, the mother raised the issue of the venue for handovers.  In practical terms the handover arrangements are largely implemented by the mother and the paternal grandmother.  The mother seeks that changeover occur at O Railway Station.  The father seeks that changeover occur at Central Railway Station.  When asked which location would be more appropriate, Ms R suggested changeover could occur half the time at each location, noting that the child has to undertake the same amount of travel under either scenario.

234.By her own case the mother highlights a justification for easing the demands on the paternal grandmother.  The mother raises the issue of the age of the paternal grandmother and the adverse effect on the child of the paternal grandmother becoming exhausted.  Without wishing to be disrespectful, I share those concerns.  Handover at O Railway Station balances the impost on the mother and the paternal grandmother.  Handover at Central Railway Station would increase the demands on the mother and make life easier for the paternal grandmother.  As Ms R noted there is no direct impact on the child because she is required to take the entire journey on each occasion.  So as to lessen the impost on the paternal grandmother I will provide that unless the parties otherwise agree, the mother’s time commence with handover at Central Railway Station and conclude with handover at O Railway Station.

235.Both parties seek that telephone communication occur between the mother and the child.  The father seeks that the mother have telephone contact for one hour on Wednesday mornings and the ICL seeks that this communication be via telephone, Skype or Facetime on both Wednesday, Friday and on specified special occasions. Ms R gave evidence that regular telephone communication would benefit the child.  I will make the orders sought by the ICL.

236.The father seeks that the mother be restrained from consuming alcohol or illicit drugs while the child is in her care and for 24 hours prior to the child coming into her care.  The ICL seeks that the time be 12 hours.  When asked by the ICL whether a 12 hour period was appropriate, Ms R agreed and said that would ensure the child has the best experience of time with her mother. I will make orders in line with the ICL’s proposal.

237.The father seeks an order that the mother be restrained from allowing any previous male partners or future male partners to spend time with the child unless the father gives prior written consent.  This proposition was not put to the Family Consultant.  The proposed order would be onerous and intrusive.  Given the evidence about Mr X, Mr T and Mr S, not to mention the mother’s own testimony about the father, one can understand the issue agitating the father.  The fact is that the child has been exposed to conduct that would objectively fall within the definition of family violence.  However, it may not be possible to make an effective order to address the problem.  Courts should not make orders that cannot be enforced or that are arbitrary.  The order proposed by the father would, for example, prevent the mother from leaving the child with a partner or former partner (including the father himself), without his consent.  However, the mother would be free to leave the child in the care of an acquaintance or for that matter, with a complete stranger.  I cannot see how the child’s safety would be promoted in a meaningful way by the limited restriction proposed by the father.  If an attempt was made to address that issue by expanding the category of prohibited person then the father’s consent might be required for the child to be left with male school teachers, medical practitioners, sporting coaches etc. It comes back to the difficulty of regulating human affairs by Court order.

238.The mother is entitled to be trusted in a general sense.  She ensured that the child did not come into contact with Mr I, for example.  There is no reason to assume that the mother deliberately exposed the child to danger in the past or that she would be motivated to do so in the future.  Were it otherwise, the question would arise – what is the benefit for the child of any unsupervised time with the mother?  The specific application was not made but within the ambit of the order sought by the father I will make an order that the mother is restrained from leaving the child in the care of Mr T.  The mother gave evidence that unlike Mr X, Mr T is an old and ongoing friend of hers.  Therefore there is potential for the child to come into contact with him.  Mr S has been relied on by the father in these proceedings and the mother withdrew her allegations against him.  I will not restrain the mother in relation to Mr S.

239.Otherwise I will not make the order proposed by the father.

240.As to the sharing of information between the parties, the father does not seek orders that he inform the mother of any issues relevant to the child’s health or education.  He seeks that the school provide copies of the child’s reports to the mother.  The ICL seeks a more extensive set of orders dealing with communication with the child’s school and medical practitioners.  It is important for both parents to be informed of issues relating to the child’s schooling and health as soon as possible, I will make the orders as sought by the ICL.

Conclusion

241.Since 2012 the child has mainly lived with her father and paternal grandmother and has had no time overnight with her mother.  There is evidence of a risk of harm to the child when in the care of the mother by reference to substance abuse and violence associated with the mother’s adult relationships.

242.The mother proposes that the child return to her care and that the parties resume shared parental responsibilities for her.  She proposes that the child have overnight time with the father.  The father proposes that the current arrangement continue but with a reduction in the mother’s time with her.  The ICL proposes that something like the current arrangement continue but with a measured return to overnight time, provided it is supervised.

243.The orders made will provide for an arrangement similar to that proposed by the ICL.  It best balances the need for the child to be safe and minimises the disadvantages of the parties’ proposals.

244.The ICL sought that the father pay one half of the costs of the ICL.  The father opposed that order on the basis that he is not highly paid – asserting an income of the order of $40,000 per annum and the mother is of no significant financial help with the child.  In the event that he is obliged to pay, the father’s counsel sought that he have 12 months to pay.  The ICL’s application is entirely appropriate.  The ICL has assisted the parties and the Court to identify the issues and by providing thoughtful submissions.  The appointment of an ICL has been one of the great innovations of modern family law in Australia.  This is a valuable service and where there is some capacity to pay, the tax payer should not shoulder the cost, in this case, the entire cost, of assistance with what are civil proceedings.  Given the father’s financial difficulties, including the costs of these proceedings and given the time of year, I will allow him four months to pay.

245.Leave will be granted to the parties to bring the matter back before me within 28 days, or such further time on which the parties may agree, in relation to the wording of the orders.

I certify that the preceding two hundred and forty five (245) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 22 December 2014

Associate: 

Date:  22 December 2014