JACKSON & MACEK

[2015] FCCA 1656

FEDERAL CIRCUIT COURT OF AUSTRALIA

JACKSON & MACEK [2015] FCCA 1656

Catchwords:
FAMILY LAW – Recovery order – consideration of risk to 11 month old child breast feeding where mother admits to illicit drugs use and having been tattooed.

Legislation:
Family Law Act1975, ss.60CC, 61DA, 65DAA

Evidence Act 1995, s.144

Goode & Goode (2006) 36 Fam LR 422, (2006) FLC 93-286 [2006] FamCA 1346

Applicant: MS JACKSON

Respondent: MR MACEK

File Number: NCC 1295 of 2015

Judgment of: Judge Myers

Hearing date: 5 June 2015

Date of Last Submission: 5 June 2015

Delivered at: Newcastle

Delivered on: 5 June 2015

REPRESENTATION

Solicitors for the Applicant: Legal Aid Commission

Solicitors for the Respondent: Joplin Lawyers

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The mother be prevented by injunction from breastfeeding the child X born (omitted) 2014.

2. The father return the child to the mother at the McDonald’s Family Restaurant car park at (omitted) by 8.30pm tonight.

3. The child live with the mother.

4. The child spend time with the father at all times as agreed between the parties and failing agreement from 9.00am until 3.00pm each Sunday, Monday, Wednesday and Friday.

5. Whilst ever the child is in the mother’s care the mother shall reside in the home of the maternal great grandmother Ms J in (omitted).

6. The father must reside at all times whilst the child is in the father’s care at the home of the paternal grandmother Ms S.

7. Should the father’s further drug testing as requested by the Independent Children’s Lawyer prove positive for any illicit substances his time with the child shall thereafter be supervised by the paternal grandmother.

8. Should the father fail to comply with the drug test request issued by the Independent Children’s Lawyer his time with the child shall be thereafter supervised by the paternal grandmother. 

9. Should the mother fail to comply with the request by the Independent Children’s Lawyer for a drug screen and or her drug screen be positive for any illicit substance the Independent Children’s Lawyer shall restore the matter on 24 hours’ notice.

10. The parties are restrained from having X in their presence while they partake in any criminal activity.

11. The parties are prohibited by injunction from consuming any illicit substances 48 hours prior to or any time during which X is in their care.

12. The mother is injuncted and restrained without admission from the child attending upon the maternal grandmother’s home. 

13. Subject to Order 14 below the mother is injuncted and restrained from allowing the child to come into contact with the maternal grandmother or her partner Mr T.

14. The injunction with respect to the maternal grandmother coming into contact with the child shall apply unless the maternal grandmother is at all times in the presence of the maternal great grandmother.

15. The changeovers of the child take place between the parties at the car park of the (omitted) McDonald's Family Restaurant.

16. The mother attend upon her general practitioner within 14 days for the purposes of obtaining a mental health plan and thereafter following any recommendations of the mental health plan.

17. The mother will follow all directions and treatments as suggested by her medical practitioner in relation to the mental health plan.

18. The mother and the father attend upon a parenting after separation course enrolling in such course within 28 days of todays’ orders.

19. If the father is unable to care for the child during his time as set out in these orders the father shall cause the paternal grandmother to care for the child.

20. Except in cases of emergency the parties are to communicate with each other about issues relating to the child via text message.

21. When the father returns the child to the mother tonight the father is to use his best endeavours to return to the mother a grey/black/blue car seat.  

22. Pursuant to section 11F of the Family Law Act 1975 the parties attend a child inclusive child dispute conference with a family consultant in this Registry on 22 July 2015 at times to be advised AND the parties are advised that if a person fails to comply with this order or any instruction the consultant gives to the person the consultant must report the failure to the court AND the Applicant and Respondent are to do all things necessary to facilitate the attendance of the child/children promptly at the commencement of the conference.

23. The court requests the maternal great grandmother and the paternal grandmother also attend the child inclusive child dispute conference.

24. The matter is adjourned to 28 July 2015 at 9.30 am for a directions hearing.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT NEWCASTLE

NCC 1295 of 2015

MS JACKSON

Applicant

And

MR MACEK

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a matter that comes before the court in a busy duty list for determination.

2. These are parenting proceedings in respect of a child, X, born (omitted) 2014.  He is now approximately 11 months of age.  The matter comes before the court in circumstances where, by chance, both parties filed an initiating application on the same day.  The court will deal with the mother’s first application where the court deemed to name her as the applicant in the proceedings.

3. The mother seeks orders as set out in exhibit J that essentially provide:

   a)for the child to live with her;

   b)the father return the child to the mother;

   c)the child spend time with the father each Sunday, Monday and Friday, between the hours of 10.00 am and 4.00 pm;

   d)that the mother reside at the home of the maternal great-grandmother Ms J in (omitted), with the father to reside in his parents’ home with the paternal grandmother Ms S; 

   e)if the father tests positive to illicit substance use the orders providing him to spend time with the child shall then be supervised by the paternal grandmother; 

   f)the parties be restrained from having X in their presence while they undertake any criminal activity;

   g)the parties be restrained by injunction from consuming any illicit substances; 

   h)the mother has been injuncted or restrained from allowing the child to attend the maternal grandmother’s home and pending further order the mother is injuncted or restrained from allowing the child to come into contact with maternal grandmother’s partner, Mr T; 

   i)that changeovers take place at the (omitted) McDonald's family restaurant;

   j)that the mother attend upon her general practitioner, engage with all recommendations or mental health plan, the mother following any directions by her GP with respect to the mental health plan; 

   k)the parties undertake a “parenting after separation” course; 

   l)if the father can’t care for the child during the periods of the time provided for him, the orders the paternal grandmother do the same;

   m)while ever the mother is breastfeeding that she be injuncted and restrained from consuming any alcohol, getting a tattoo or getting a piercing; 

   n)except in the cases of emergency, the parties communicate about issues related to the child via text message; 

   o)the mother seeks the return of a grey/black/blue car seat; 

   p)the mother objects to an injunctive order that prevents her from breastfeeding the child. 

4. The mother caused to be filed an affidavit sworn or affirmed by her on or about 25 May 2015.  The mother deposes that she is the applicant and she was born in 1995.  The mother is 20 years of age and the father is 20 years of age.  There is one child of the parties’ relationship, namely X.  The mother seeks urgent orders for what she describes as a recovery order.  There is an ADVO that names the mother as the person in need of protection.  She annexes a copy of the ADVO application to her affidavit that the court has read and considered.  The order is one of a 12 month ADVO from 14 May 2015 against the father that provides for orders in what might be described as the standard statutory terms being 1(A), (B) and (C).  The father be prohibited from damaging any property, plus must not approach the protected person whilst intoxicated under the influence of illicit drugs.

5. The mother deposes to an incident whereby the child came into the father’s care.  The court has read and considered those issues. 

6. The mother discloses in her affidavit at paragraph 18 that she last smoked marijuana during an evening of 22 May 2015.  Otherwise the mother deposes she last used illicit substances about two years prior, and further that she is prepared to take a supervised drug test.  Tendered into evidence are copies of recent clean drug screens from both parents, including a clean drug screens from the father with respect to what might be described as synthetic cannabis. 

7. The mother at the time of swearing the affidavit deposes to residing with her mother and her mother’s partner Mr T.  The mother’s brother Mr B did live with her mother and Mr T until about 2013.  The mother deposes to there being allegations about sexual abuse in her mother’s household at paragraph 21 of her affidavit, although the court notes the mother, for the time being, consents to an order where the child will not come into contact with Mr T and, further, that she will not reside in the household or allow the child to come into contact with her mother.

8. The mother deposes to a history of the parties living together.  The mother deposes to being the primary carer for X, and it is an agreed fact between the parties that, until recently, the mother was the primary carer for X and in only recent times, in the last two weeks, has the child come into the father’s care full-time.

9. The mother deposes to a history of what the court would describe as family violence in her relationship with the father.  The mother deposes the father was a cannabis user and took a drug that she describes is known as “chronic”.  The mother sets out evidence that in January 2015 she was diagnosed with depression and anxiety. 

10. The mother deposes that X is 11 months of age.  He has dinner at 6.30 pm.  She sets out a routine at paragraphs 51 to 56 of her affidavit.  The mother deposes that she receives a single parent’s pension through Centrelink and is paid about $1100 a fortnight.  The mother deposes that she does not pay any board to her mother, but that she pays for groceries, nappies and wipes.  The father does not pay any money towards the child for child support.

11. The court has read and considered the documents tendered during the course of the proceedings. Those documents forming Exhibit D are copies of urinalysis tests for the father that show negative drugs screens for both synthetic cannabinoids and also normal drugs.  The court has read and considered the drug screen for the mother in the proceedings that indicates that the drug screen was undertaken on 1 April 2015.  The screen results shows negative for drugs. 

12. The court has considered exhibit H in the proceedings.  Exhibit H is that of a premises inspection report for a premises known as (omitted) Tattoo Studio in (omitted).  The proprietor of the premises is a person by the name of Mr D.  It shows the local council having inspected the premises and having passed the premises. 

13. Exhibit F in the proceedings is that of a document the court has received into evidence for the purposes of section 144 of the Evidence Act 1995. Section 144 provides, under the heading Matters of Common Knowledge, subparagraph 1:

    Proof is not required about knowledge that is not reasonably open to question and is:

    (a)common knowledge in the locality in which the proceedings is being held or generally,

    (b)capable of verification by reference to a document the authority of which cannot reasonably be questioned.

14. It is an agreed fact in the proceedings that the mother has had a tattoo.  The Breastfeeding Association in the document forming exhibit F, under the heading “Tattoos”, provides:

    Getting tattoos increases the risk of infection.  Bacterial infections can be transmitted during tattooing mainly as a result of contamination of the pigment used.  Ensuring that pigments are single use only can reduce this risk.  Hepatitis B or C and HIV are serious viruses that can be transmitted if equipment for tattooing is not cleaned and sterilised properly between users.  The main cause for concerns out of these viruses for a breastfeeding mother is HIV, because it is known to be able to be transmitted via breast milk.  Tattoo parlours of Australia have to be registered with the local council and each state has laws about infection control within the body art industry.  The Victorian Government Department of Health (Better Health Channel 2011) advises people who want to get a tattoo to choose a reputable place that is registered with the local council.  Reputable tattooists understand the need for infection control so the risk of control is unlikely.  Although the risk of infection of getting a tattoo is low, especially if done at a reputable parlour, it is a health risk which must be carefully assessed before a breastfeeding mother, or anyone for that matter, decides to get a tattoo.

15. The court notes the document talks to there being the risk of transmitting the Hepatitis B or C and HIV if the equipment is not cleaned and sterilised properly and that there is a health risk.

16. The court has tendered into evidence exhibit C, being a document that provides information relating to hepatitis for the purpose of section 144 of the Evidence Act 1995.  Having afforded the parties the opportunity to read and consider exhibit G, it is apparent that the document prepared by Hepatitis Australia tends to suggest that the transmission of hepatitis C through breastfeeding is extremely unlikely.

17. The court has considered exhibit E in the proceedings.  Exhibit E in the proceeding is that of some material tendered on behalf of the mother, being documents received from (omitted) Health Network.  There is a letter of 4 June 2015 that confirms that the mother was admitted to the (omitted) Hospital on (omitted) 2014 for the birth of the parties’ child.  Other than for that presentation, the letter suggests the mother has not otherwise attended the hospital.

18. There is a further letter dated 4 June.  It confirms that the mother was a patient who presented at the (omitted) Hospital on a various number of dates, including 20 February 2015.  It says:

    Brought in by ambulance with suicidal ideation, domestic violence.  Patient referred to (omitted) Mental Health Service.

19. There is a letter “To Whom It May Concern” dated 4 April 2015:

    Ms Jackson is a patient of mine since 2013.  Her antenatal care was referred to the (omitted) Hospital, but she hasn’t been here since mid-pregnancy.  She is currently seeing Dr C at (omitted) Doctors (omitted). As far as I’m aware she has no mental health illness;  however, she was admitted to (omitted) Hospital with postnatal depression.  Not on my care, she is currently prescribed Sertraline for postnatal depression. 

    She visited me today.  She is alert and oriented.  She didn’t express any suicidal thoughts and she had not desired thoughts of harming her baby.  Further details about her postnatal depression should sought from the doctor at (omitted) Doctors, Dr C.  She mentioned he is looking after her depression.  She is very concerned that her ex-boyfriend took away the baby.  She is still breastfeeding and worried about the baby.

20. The mother tendered copies of tests for the HIV antigen antibody.  The test shows negative for HIV type 1 and type 2, but does say:

    If the serum was taken less then three months after exposure, this result may not exclude HIV 1 HIV 2 infection.  Therefore, another serum specimen should be tested after that time. 

21. It is an agreed fact between the parties that the mother was tattooed within the last three months and, as such, if the mother had been infected with HIV as a result of being tattooed, that it is unlikely a positive result for HIV would have shown up in the results that have been provided to the court.  The test also notes that the mother is not positive for hepatitis B.

22. The court has otherwise read and considered the balance of the documents that have been tendered during the course of the proceedings, including further drug screens of the father and the mother and a medical certificate of the mother that was tendered and forms exhibit A in the proceedings. 

23. The father caused to be filed an initiating application filed as a response on 26 May 2015.  The father seeks orders for what might be described as an equal time regime on a fortnightly rostered basis in week 1 from 10 am Monday to 10 am Wednesday and from 10 am Friday to 10 am Monday; in week 2, from 10 am Wednesday to 10 am Friday.  And it is really what the Court might describe as a three days on, three days off roster. 

24. The father essentially seeks orders that:

    a)the mother be restrained from having X in her presence while she partakes in any criminal activities. 

    b)The parties are injuncted and restrained from consuming any illicit drugs 48 hours prior to or during any time X comes into their care. 

    c)The mother is restrained from attending upon the maternal grandmother’s home. 

    d)The mother is injuncted and restrained from allowing the child to come into contact with the maternal grandmother’s partner, Mr T. 

    e)The mother is to reside at all times in the great maternal grandmother’s care. 

    f)Changeovers take place at (omitted) McDonald's. 

    g)The mother attend upon her GP. 

    h)The mother be prevented by injunction from breast feeding.

    i)The child live in an equal time arrangement between the parties.

25. Largely the balance of the orders are agreed, save and except that the mother opposes being injuncted and restrained from breastfeeding the child.

26. The question in the proceedings is who does the child live with, what arrangements should be put in place and whether the mother should be injuncted from breast feeding.  The father has caused to be filed two affidavits by him and an affidavit by the paternal grandmother.  I will start with the paternal grandmother’s affidavit first.  The paternal grandmother, Ms S swore or affirmed an affidavit that was filed on or about 26 May 2015.  The paternal grandmother deposes to having concerns about the mother’s mental health since she gave birth to X.  The paternal grandmother gives evidence with respect to the mother having what she describes as taking a metal bar to her car and damaged her own motor vehicle.  It is apparent that the paternal grandmother sought to obtain X from the mother in circumstances where she at least had on the face of the evidence in her own affidavit an intention not to return him to the mother. 

27. The father’s two affidavits are filed on 26 May 2015 and 4 June 2015.  In the first of the affidavits, the father deposes that he is the father in the proceedings.  The parties commenced a relationship in (omitted) 2013 and ended the relationship on 7 April 2015.  The parties resided in a granny flat during the course of their relationship at his parents’ home.  And the father deposes to the relationship ending as a result of the mother’s failure to attend to issues to do with her mental health. 

28. The father gives evidence with respect to the mother having said that she would kill herself and kill her son if he sought to take X away from her and that ultimately there was an incident that took place whereby the ambulance took the mother to the (omitted) Hospital, although the material subpoenaed suggests that the mother was not taken to the (omitted) Hospital. 

29. The father gives evidence with respect to a JIRT investigation of the maternal grandmother’s partner, Mr T, the Court has read and considered.  The father caused to be filed a further affidavit on or about 4 June 2015.  The father deposes to undergoing random drug screens at his work.  There is not an issue in these proceedings that the parties have not provided clean drug urinalysis.  Both parties, including the father, have provided clean drug urinalysis and the father one for synthetic cannabinoids. 

1. The father raises concerns with respect to the child having been breastfed whilst the mother was smoking cannabis.  The father gives various evidence in his affidavit as to things that he has read on the internet regarding THC exposure of children.  It is apparent the father sought to try and have the child undertake a test to ascertain whether or not the child had THC in his system.  It appears that the father’s attempt was unsuccessful.  The father deposes that the mother received a tattoo on her finger and a tattoo on her foot on or about 6 May 2015. 

2. The father disputes what are described as the incidents of family violence.  The father does admit that he damaged a motor vehicle, although he has given some evidence in his affidavit that it was unregistered at the time and that there was some damage to the vehicle as a result of it being abandoned, through general wear and tear, old age, and being unroadworthy. 

3. The Court has read and considered the annexures to the affidavit of the father, particularly a letter received from Mr D, the owner/operator of (omitted) Tattoo Studio, who sets out that the mother received a tattoo of a (omitted) on her finger and a tattoo of a (omitted) on her foot on 6 May 2015 from (omitted) Tattoo Studio and there was no complications.  The letter provides:

   No health questions were asked or advised on the day.  Ms Jackson.  At no time did she disclose that she was breastfeeding.  As a personal rule, I do not tattoo people who are pregnant or breastfeeding.  I have spoken to (omitted) PHU, (omitted) Health Service, (omitted) and they advised me there is nothing in the Skin Penetration Guidelines 1991 about not tattooing pregnant or breastfeeding women, but as a rule, I do not.

4. I cannot take judicial notice of what is contained within the Skin Penetration Guidelines 1991.  Neither party sought to tender the guidelines in the course of the proceedings.  But I do note that, this tattooist says as a rule he does not tattoo women who are pregnant or breastfeeding.

5. Mr D annexes a copy of the diary note and a batch number for the steriliser and a printout from an autoclave steriliser.  I cannot take judicial notice of what the printout means.

6. These proceedings are governed by part VII of the Family Law Act 1975.  Paragraph 82 of Goode & Goode (2006) 36 Fam LR 422, (2006) FLC 93-286 [2006] FamCA 1346, provides the Court pathway to be followed in interim proceedings. The Court must consider matters that are agreed and not agreed. In these proceedings that come before the Court now for decision at some 15 minutes to 6 pm, there are few matters that are agreed and many are disagreed, other than the child is some 11 months of age, the child has primarily lived in the mother’s care. There are allegations about family violence, although the Court cannot make any findings about those. It is agreed that there is an ADVO for the protection of the mother made against the father. It is agreed, certainly with respect to the orders that are sought, that the child will not come into contact with the maternal grandmother herself or the maternal grandmother’s partner.

7. Section 60CC requires the Court to take into account a number of considerations when determining what is in the child’s best interests. The best interests of the child is the paramount consideration in all parenting matters. Subparagraph (2) of section 60CC provides the primary considerations, (a), the benefit to the child having a meaningful relationship with both of the child's parents. Neither of the parties in these proceedings argue that there is no benefit in the other party having a meaningful relationship or spending time with the child. Both parties seek orders for the other parent to spend time with the child.

8. The Court must consider the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. It is a paramount consideration with primacy over all others, and it is a consideration the Court gives greatest weight of those condensations at s.60CC when determining what is in the best interests of the child, particularly with respect to the injunctive order sought by the father in the proceedings.

9. The Breastfeeding Association document the Court has considered for the purposes of section 144 of the Evidence Act 1995 make it clear that, although the risk of infection from getting a tattoo is low, especially if done at a reputable parlour, it is a health risk, which must be carefully assessed before a breastfeeding mother or anybody, for that matter, decides to get a tattoo. 

10. It is also a fact in the proceedings, that the mother has been tested for HIV.  She has shown negative, the test results warns that there is a window period that the mother is currently in, being the time between the test and having obtained the tattoo.  This would mean that, if the mother was positive for HIV as a result of having been tattooed a result for HIV may not have shown up in the blood test that she has tendered in evidence. 

11. When looking at the issue of risk in this matter must look at the benefits to the child and the detriments to the child and try and balance what is in the best interests of the child.  There is a need to protect the child from physical or psychological harm.  If the child is exposed to HIV, it would result in physical harm.  The child would be exposed to physical harm as a result of neglect, that is, if the mother decided to breastfeed the child in circumstances where she could not be sure she had not contracted HIV as a result of having received a tattoo.  Exhibit F, being the document from the Australian Breastfeeding Association, sets out the main cause for concern for breast feeding mothers of viral infection referring to hepatitis A or C and HIV is that of HIV, because it is known to be able to be transmitted via breast milk. 

12. It is apparent that the mother did not seek any health advice from the tattooist at the time she had the tattoo.  Perhaps had she done so, she may have chosen not to have a tattoo in circumstances where she was breastfeeding.  It is also apparent, having read the material provided by Mr D to Ms H, that she did not have the opportunity to even consider health risks as no health advice given.  None the less the mother has been tattooed. 

13. The Australian Breastfeeding Association material that the Court has considered for the purposes of 144 of the Evidence Act 1995, is such that the Court forms a view that there is a risk of the mother having contracted HIV as a result of being tattooed.  There is a risk of the child contracting HIV through the mother breastfeeding the child, if the mother has contracted HIV from being tattooed.  There is a warning given by the Australian Breastfeeding Association to any mothers who are breastfeeding in circumstances where they might consider receiving a tattoo, and it states:

    It is a health risk, which must be carefully assessed before a breastfeeding mother or anybody, for that matter, decides to get a tattoo. 

14. When taking in to account the considerations at s.60CC balancing the issue of risk in the proceedings, looking at perhaps the benefit to the child who is 11 months old breastfeeding as opposed to what would be a lifelong issue in circumstances where the child contracted HIV, it is the view of the Court that it is not in the best interests of the child that the mother continue to breastfeed the child, and in those circumstances the Court will make the order sought by the father, that is, that the mother be prevented from breastfeeding the child.

15. In the proceedings the Court proposes to continue to determine the other issues.  The other issues in the matters are those as to whether or not the mother presents as a risk to the child in respect of exposing the child to abuse, neglect or family violence causing the child to suffer physical or psychological harm. 

16. The Court has read and considered the material that has been tendered during the course of the proceedings with respect to the mother’s mental health.  It is apparent from the material that the mother has suffered postnatal depression, although she is receiving treatment and taking medication as a result of being diagnosed with postnatal depression.  There is no evidence before the Court that suggested that the mother’s mental health is such that at this time it poses a risk to the child, in that the child will suffer physical or psychological harm from coming into contact with the mother or spending time or in this case living with the mother - in circumstances where the Court forms the view that the mother will not abuse the child or neglect the child or subject the child to family violence as a result of her mental health issues. 

17. The Court is also of the view, having regards to the matters relating to the father, the father does not pose a risk to the child of physical or psychological harm because he will expose the child to abuse, neglect or family violence in the proceedings, noting particularly that both the parties have provided clean drug screens in the proceedings. 

18. The Court considers the additional matters contained at section 60CC(2)(a), the views expressed by the child. The child cannot express a view. He is simply too young. And if he did express a view in any form, it would be not a matter the Court could give any weight, due to the child’s level of maturity and understanding.

19. The nature of the relationship between the child and each of the child’s parents:  the mother has been the primary carer of this child until about two weeks ago, when the child was taken into the care of the father.  The Court must say this:  in circumstances where there appear to be real issues in the mother’s household where she was at the time living with the maternal grandmother and the maternal grandmother’s partner, the Court is not hugely critical of what has gone on. 

20. Simply, the Court looks to make orders that are protective of the child.  But at this stage it is very much a case where the nature of the relationship between the child and the mother is one of primary attachment, and between the child and the father one of secondary attachment, hopefully one that is building.  When considering the nature of the relationship between the child and any other person or relative of the child, the court considers the nature of the relationship between the child and the maternal grandmother that would be a strong one, in circumstances where the maternal grandmother has been providing some care to the child. 

21. The Court has considered the extent to which each of the parents have taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child or communicate with the child.  This is not a matter where the parties are derelict in their desire to spend time with the child, communicate with the child or otherwise participate in making decisions.  The parties are both here before the court fighting furiously to do the same, so there is no criticism of either party in that regard. 

22. The Court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil their obligations to maintain the child.  The Court can not make any findings about that issue today. 

23. The Court must consider the likely effects in any changes in the child’s circumstances, including the likely effect on the child of any separation from either his or her parents or any other child or any other person, including a grandparent or other relative of the child with whom he or she has been living.  There must be an effect upon an 11 month old child having been removed from the primary carer only some two weeks ago. 

24. It is the view of the Court, the effect on the child will be detrimental to his long-term attachment probably to both parents.  It is the view of the Court that the effect on the child needs to be ameliorated by way of the child being returned to primarily live with the mother.  The effect of the separation of the child from the father is probably minimised by virtue of the fact that the Court proposes to make orders for the child to spend time with the father on a number of days.

25. The effect of the child being separated from the father and the paternal grandmother with whom he has been living will be ameliorated by virtue of the fact the Court will be making orders for the child to spend frequent time with the father.  The proposal of the mother is from 10 am to 4 pm each Sunday, Monday and Friday.  It is the view of the Court that the times are inappropriate given the father’s work roster, and it should be from 9 am to 4 pm every Sunday, Monday, Wednesday and Friday.  I will however keep going through those matters when I consider other factors prior to forming a final view about the father’s time.  But at this stage, if the orders were made in those terms, it would ameliorate the issue of the effect on the child being separated from the father. 

26. The mother did seek an oral order that the father’s time be suspended for a period of one week in circumstances where it appears she seeks makeup time with some extra time for the purpose of the child bonding with her.  Again, the issue of the effect of the separation from the father is one in circumstances where at least for the last two weeks he has been living exclusively with the father and the paternal grandmother, and it is the view of the Court that to place a child into a situation where he is removed from the father and returned back to the mother and spend no time again with the father for a period of a week would be detrimental to the child. 

27. I must consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially effect the child’s right to maintain personal relations.  There is nothing in this factor the Court gives weight.  The Court must consider the capacity of each of the child’s parents and any other person, including any grandparent or other relative of the child, to provide for the child’s needs, including their intellectual and emotional needs. 

28. The Court is satisfied that if the mother is residing with the great maternal grandmother and the father residing in the paternal grandmother’s home, then the parties’ capacity will be such that they will be able to provide for the needs of the child, including the child’s intellectual and emotional needs.  But it is with that support that the Court finds that the parties have the capacity to deliver the same.  And in view of the fact that the mother suffers from postnatal depression, it is the Court’s view that her capacity is impaired but will be repaired by virtue of the fact, or at least supported by virtue of the fact, that she is residing with the maternal great-grandmother. 

29. And it is for that reason I propose to make orders about both parents residing with what the Court might describe as a responsible adult who themselves have been a parent and will be able to support the parents in their ability to provide for the needs of the child, including their intellectual and emotional needs. 

30. There is nothing in the maturity, sex, lifestyle and background of the parents the Court considers are relevant in the proceedings.  The Court is not aware the child is an Aboriginal or Torres Strait Islander child. 

31. The Court must consider the attitudes to the child and the responsibilities of parenthood demonstrated by each of the child’s parents.  It is somewhat disappointing that the mother had smoked cannabis during the period in which she was breastfeeding in May this year.  There is hope that the mother will review what it is that she did and she will not be smoking cannabis again by virtue of the fact the Court will be making orders to ensure that both parties are injuncted from consuming illicit substances – and I will say 48 hours prior to or during any period in which the child is in that party’s care. 

32. Again the Court is in a difficult position to make ultimate findings about the attitudes of the parties in relation to the child.  The Court can not make any findings tonight for the purposes of finding family violence in the proceedings in circumstances where the evidence is largely contested.  The Court considers subparagraph (k);  it says:

    If a family violence order applies or has applied to a child or a member of the child’s family, any relevant inference can be drawn from the order taking into account the following: 

    (i) the nature of the order.

33. The Court has read the order.

    (ii) the circumstances in which the order was made.

34. It is not apparent on the face of the material, and the Court notes the local court file has not been provided to this Court to be inspected as to the circumstances in which the order was made;  that is, was the order made as the result of a hearing or made by consent or otherwise.  It is not apparent.

    (iii) any evidence submitted in the proceedings for the order.

35. The Court is not aware of what evidence was admitted in the proceedings for the purpose of the order.  The Court is not aware of any findings made by the Court in the proceedings for the order.  The Court does not take into account any other matter.  The Court must consider making orders that would be least likely to lead to the institution of further proceedings. 

36. These are matters in which the Court knows whatever orders it makes, there will be further proceedings; these are interim proceedings and only interim orders. The Court considers section 61DA of the Family Law Act 1975. The father does not seek orders about parental responsibility. The mother does not seek orders about parental responsibility. The Court considers subparagraph (3) of section 61DA that provides:

    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

37. These are circumstances in which there is poor communication.  For the purposes of the proceedings today, the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making the order and the Court proposes to make no order as to parental responsibility.  These are proceedings in which the father seeks equal time and the mother seeks time that is neither substantial and significant time nor equal time.

38. The Court considers those matters set out at section 65DAA. Section 65DAA provides that the Court should consider whether a child spending equal time with each of the child’s parents would be in the best interests of the child and reasonably practicable. When considering those matters set out at section 60CC it is the view of the Court, given the child’s age and level of attachment with the mother that it would not be in the best interests of the child for the child to live in an arrangement of equal time of three days on, three days off as sought by the father.

39. Otherwise when considering paragraph 5 of section 65DAA, the Court considers that whilst the parties might live close enough to one another and the parties have the current and future capacity to implement an arrangement for equal time, the parties’ current and future capacity to communicate is so impaired that it is the view of the Court that it would not be reasonably practicable for the parties to have equal time with the child, as they would not be able to resolve difficulties that might arise in implementing an arrangement of that kind, and otherwise the effect the arrangement would have on the child would be detrimental to the child, given the child’s age.

40. The Court considers the same factors as to whether there should be substantial and significant time.  And the definition of “substantial and significant time” provides at subparagraph (3) that the time shall be time that includes:

    …days that fall on weekends and holidays; days that do not fall on weekends or holidays.  The time the child spends with the parent allows the parent to be involved in:  the child’s daily routine; and occasions and events that are of particular significance to the child.

1. The view of the Court is that the orders that are proposed by the mother are somewhat in line with the definition of “substantial and significant time”, in that the mother’s proposal would see the child spend time with the father on days that fall on weekends and holidays and days that do not. It is the view of the Court having regards to the order proposed by the Court, and the Court invited the parties to make submissions on the orders the court proposed be made, that such time would be in the child’s best interest. 

2. That is, that the time to be spent every Sunday, Monday, Wednesday and Friday is such that the father would spend substantial and significant time with the child and it is the view of the Court that it is in the child’s best interest, having regard to those matters set out at section 60CC subparagraph (2)(a) and (b), (3)(a) through to (m). It is the view of the Court particularly when considering the effect of separation of the child from the mother that it would not cause the child a detriment in circumstances where the child will be returning to reside with the mother each afternoon on those days.

3. Otherwise when considering those matters set out at subparagraph (5), it is the view of the Court the parties live close to one another to be able to facilitate an arrangement of substantial and significant time.  The parents have the current and future capacity to implement an arrangement of that type in circumstances where it is proposed the parties meet at the (omitted) McDonald's and the father is not otherwise working during those times. 

4. It is the view of the Court that whilst the parties’ communication is not very good, the parties have the current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of the type the Court has spoken about, and the impact that the arrangement of that type would have on the child is not such that it would be detrimental on him and is in his best interest. 

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Myers

Associate: 

Date:  18 June 2015