Jobling and Mason - [2012] FMCAfam 822

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JOBLING & MASON

[2012] FMCAfam 822

FAMILY LAW – Children – parenting orders – interim orders – no matters of principle.

Family Law Act 1975

Applicant:

MR JOBLING

Respondent:

MS MASON

File Number:

DGC 143 of 2012

Judgment of:

Riethmuller FM

Hearing date:

5 June 2012

Date of Last Submission:

5 June 2012

Delivered at:

Dandenong

Delivered on:

5 June 2012

REPRESENTATION

Counsel for the Applicant:

Mr McIvor of Counsel

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondent:

Ms Cranenburg of Counsel

Solicitors for the Respondent:

Alpass & Associates

ORDERS

The matter be adjourned for final hearing on 31 October 2012 at 10.00a.m. at Dandenong (with an estimated hearing time of 2 days).

Family Report

Pursuant to s 62G(2) of the Family Law Act 1975, the parties and the child X born (omitted) 2006 (‘the child’) attend upon a Family Consultant nominated by the Senior Family Consultant of the Federal Magistrates Court of Australia (Melbourne Registry) for the purposes of the preparation of a Family Report to be given to the Court no less than 35 days before the hearing date, and that:
(a)The Family Report address the matters relevant to ss60CC, 61DA and 65DAA of the Family Law Act 1975 and any other matters that the Family Consultant considers important to the welfare or best interests of the child, including:
(i)If either the Father or the Mother should have the primary care of the child;
(ii)Allegations of drug and alcohol abuse by the Mother and the effect of same on her capacity to care for the child;
(iii)The stability or otherwise of the Mother’s personal circumstances; and
(iv)The Father’s mental health issues and his capacity to care for the child on his own or with the support.
(b)The parties comply with all reasonable directions of the Family Consultant.
(c)The Family Consultant have leave to inspect the subpoenaed material produced to the Court.
(d)In the event that the family consultant is not a child specialist appointed by the director of Court Counselling, then within 7 days of being notified of the family consultant, the solicitor for each of the parties (or, if unrepresented, then the party themselves) deliver to the family consultant copies of the following documents:
(i)all relevant applications, responses and relevant affidavits filed by or on behalf of his/her client in the within proceedings; AND
(ii)any intervention or restraining orders currently in force.

Super Splitting

Any party seeking a superannuation splitting order file an amended application or response, within 28 days, setting out the splitting order sought and serve same on the other party(s) and relevant superannuation fund (together with notice of the trial date).

Trial Directions

The applicant do file and serve all further affidavits and other material to be relied upon by the applicant not later than 21 days prior to the trial.
The respondent do file and serve all further affidavits and other material to be relied upon by the respondent not later than 14 days prior to the trial.
Not later than two business days prior to the trial all parties do file and serve an Outline of Case Document including the following:

PROPERTY

(a) a list of the material relied upon;

(b) a brief chronology listing significant events;

(c) a table listing all of the assets, liabilities and financial resources claimed to be part of the pool, with the values contended for by each party;

(d) main contentions on disputes as to:

(i) inclusion of items in the pool; and

(ii) the value of times where the value is in dispute.

(e) list of contributions claimed or contended for and the percentage assessment on contributions contended for;

(f) list of other factors relied upon (s 75(2) factors) and percentage adjustment contended for;

(g) other relevant contentions to determining a ‘just and equitable’ division of property; and

(h) the actual orders sought.

PARENTING

(a) a list of the material relied upon;

(b) a brief chronology listing significant events;

(d) a list of contentions with respect to each of the considerations relevant to determining the best interests of the child (sec 60cc factors);

(e) a list of the considerations relevant to the operation of s.65daa;

(f) a list of other contentions relevant to the decision; and

(g) the actual orders sought.

Additional Orders

All outstanding interim applications and applications in a case are dismissed.
The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Regulations 2000.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.
Paragraphs 10 and 11 of the Orders dated 7 February 2012 be discharged.
Save as is set out in these Orders, the Orders made on 7 February 2012 remain in full force and effect.

THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:

The child X born (omitted) 2006 live with the Father.
The said child spend time with the Mother as follows:
(a)On the first two of every three weekends, from after school Friday until 5 p.m. Sunday (and if a non-school day, from 9.00 a.m. Friday until 5.00 p.m. Monday if Monday is a public holiday) and the first such weekend commencing on 8 June 2012 during school terms.
(b)The first week of school term holidays commencing from the conclusion of school on the last day of the term and concluding 5 p.m. on the middle Saturday.
The Mother be and is hereby restrained from taking the said child to (omitted) Primary School or from enrolling the child at any other school, save for with the written consent of the Father.
If changeover does not occur at the school, changeover shall be via the Mother collecting the child at the commencement of time from the Father’s residence and the Father or his nominee collect the child from the McDonalds restaurant at (omitted) at the conclusion of contact.

THE COURT ORDERS THAT:

The child X born (omitted) 2006 (‘the child’) be delivered to the Father forthwith.

Other Matters

The matter be adjourned to Thursday on 7 June 2012 at 10.00 a.m. to allow the Mother’s solicitors and Counsel to be heard on the question of whether the Mother’s solicitors should be referred to the Legal Services Commissioner.
The Father be excused from attending on Thursday 7 June 2012.
The Registrar of the Federal Magistrates Court of Australia be requested to refer Ms Cranenburgh’s conduct in this matter to the Legal Services Commissioner
This Order be faxed to the solicitors for the Mother by the Court.

AND THE COURT NOTES THAT:

Counsel for the Mother stated to the Court at the end of today’s proceedings that there would be no appearance at Court on Thursday.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 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 these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

DGC 143 of 2012

MR JOBLING

Applicant

And

MS MASON

Respondent

REASONS FOR JUDGMENT

(as revised from transcript)

This is an application concerning the care arrangements of a young child, X, who is currently in prep at school. Both parents have their own challenges in life. The father suffers from a mental illness. The mother, it seems, has issues maintaining her life to a normal level of organisation with respect to housing and everyday arrangements. At best, on her case, she is taking significant pain medication involving opiates and benzodiazepines, and, at worst, abusing illegal substances and alcohol.
The mother’s capacity to care for the child came into stark relief in August of last year when the father over held the child for a period of time. The mother then over held the child for a period of time. The case ultimately came before the court, and following a section 11F assessment interview and brief report, I made orders placing the child four days per week, Monday through Thursday, with the mother, and three days, Friday through Sunday, with the father, until further order.
Unfortunately, those orders did not create the level of stability that was hoped for on an interim basis. They reflected, however, the summary of the family reporter who undertook the section 11F report, and attempted to balance the risks with respect to the capacity of each of the parents to care for the child.
In substance, it became apparent at the previous interim hearing that there are real questions as to the mother’s capacity to meet the day-to-day needs of the child, but it was also made apparent that the child was primarily attached to the mother and at that point there was some real concerns as to the father’s level of insight into the child’s needs for the mother.
On that occasion, it was argued by the mother that the child should commence school at (omitted) Primary School. The mother succeeded in that argument and obtained orders to that effect. Since then, the mother has lived in a number of different places. Including, at one point, for a period of time, at a motor inn as some form of emergency accommodation. It has not been explained in her material why she would move so many times when she was experiencing an accommodation crisis rather than returning to the support of her own parents which, later in submissions, she put as a fallback position that she would utilise if that was sufficient to persuade the court to leave the child, primarily, with her.
In that context, one has to question how it is that the Mother chose to live at (omitted), (omitted), and now at (omitted) all in the course of several months. Each time shifting the child’s residence, and on the last occasion unilaterally changing the child’s school from the school that the mother had obtained orders in her favour to have the child attend. The history of accommodation difficulties leads to real concerns about the mother’s capacity to meet the day-to-day needs of the child.
The mother is presently residing in rental accommodation. She doesn’t attest to there being a lease of any significant length or, indeed, the precise arrangements for possession of the property. It was said in submissions that it was “reassigned” to her from a housing corporation or body named (omitted). Despite the hearing being adjourned overnight, counsel for the mother put nothing before the court to explain or support the claim that the current accommodation was any more permanent than the earlier three placements.
The mother also, at the same time period, spent time at (omitted) Hospital as a result of pneumonia that she said developed from a urine infection, although, she says now she has made a full recovery.
The mother had suffered a significant car accident last year which she says resulted in her being on a number of different medications. I will return to the medications in a moment.
The mother, it seems from the school records, has been unable to consistently have the child attend school on time, fed with breakfast and carrying a lunch.
The subpoenaed records from both the school the child was originally enrolled at and the school that the mother shifted the child to, show numerous late attendances, failure to provide the child with breakfast on a number of occasions and failure to provide the child with lunch on a number of occasions.
Other observations by the teacher cause serious concern. For example, at a meeting with the mother regarding the routines of the prep class at the school, the teacher observed her to be allowing the child to have large sips from her can of V energy drink. This is inappropriate for a child of this age given the nature of the contents of such energy drinks. The teachers express very severe concerns about the academic progress and the maturity level of the child, set out in the general notes from Mr F where they say:
Over the course of X’s time at (omitted), I have observed that X’s maturity level is far below the expected level at this time of the school year. He will pout or resort to baby-like talk when given a direction that he does not like, and will often stubbornly refuse to comply. He will get upset very easily at small things, such as not sitting next to a certain person when on the floor.
X’s academic progress is also very much behind the expected level – having little-to-no knowledge of common sounds and minimal letter recognition. This is combined with frequent absences, late arrivals and not attending school on Fridays, which will make it very difficult for X to reach the expected level of learning at the end of the year. I would definitely identify X as being at risk, and unless serious changes take place he will need to repeat Prep next year.
The mother’s counsel said in submissions that the teachers at the school had not been prepared to talk to the mother about these issues. However, this doesn’t seem to be the evidence of the principal in a file note that she has made. She notes that the mother has been frequently late in delivering the child to school, frequently late in picking the child up from school and that on many occasions the school has not been contacted and the principal has had to make a telephone call to check where the mother was. Further, that the school had given X a breakfast on several occasions and, importantly the principal says:
I have spoken to her on more than one occasion, but she does not appear to treat the problem with any degree of seriousness or concern.
The principal goes on to express serious concerns for X’s education, noting that he is well below the expected level at this stage of the year, and in the principal’s view, as at 21 May, it was clear he would need to repeat prep next year. The material from the previous primary school, (omitted) Primary School, is equally unimpressive with respect to a larger number of late arrivals and absences on many occasions. The explanations given for late arrivals were “slept in” or “missed a bus”. Not all failures to attend however would be unusual, for example, if the child was sick on a couple of days, which is not uncommon for a child of this age. On one day the child had head lice, it was said, although, that was only to explain a late arrival and early departure. Head lice, of course, is a constant problem for parents and it doesn’t seem to me to be unusual that on one occasion the child might have picked up some head lice at school.
The attendance notes, with respect to (omitted) Primary School, from the two prep teachers indicate that the child was absent from school for much of the week every week except Friday’s. I note here that Friday’s are the day that the father arranges for the child to attend school. They note that he has attended consistently on Friday’s which:
…helped him to, at least, maintain some small connection with the other children and the school community.
The teachers say that it is due to his severe lack of attendance that the child is not showing the progress he needs to show to be able to reach any benchmark standards for midyear in prep. They have many concerns about his progress, both with respect of social progress, such as making friends, being aware of and comfortable in his surroundings and retaining any knowledge that he is being taught, understanding his classroom environment, managing his emotions and learning about his school community, lacking confidence of even attempting things in the classroom, and inability to complete his simple tasks. At the time that he was still enrolled full time at (omitted) school the teachers expressed the view that if the situation continued he would be unable to complete his prep year in both social and academic areas in 2012.
The mother’s counsel makes the submission that the child may, in fact, be developmentally delayed. Whether this is mere speculation by counsel or the mother’s real views is unclear to me. However, the mother has done nothing to have an assessment undertaken to see if there is an underlying disability on the part of the child, rather than him suffering the effects of a gross failure to properly support his attendance and participation in education. Indeed, the only step in this regard that could be said to have been taken was the father arranging an appointment for the child with a paediatrician, which was the subject of attack by the mother’s counsel on the basis that it was done unilaterally. The only thing that the mother has done is unilaterally change the child’s school contrary to the court orders that were in place and the opposition of the father, and only after, it seems, some degree of discussions with the Department of Education which was clearly due to the Department’s concern about the orders and the needs of the child.
I do not draw any adverse inference against the Department of Education who certainly noted the issue and wrote to the parents. They were confronted with the difficulty of having to balance a parent who was not taking the child to school and the orders. The school ultimately agreed to the child attending for four days a week, after having given the parents notice so they could come back to court. No doubt from the Department’s perspective accepting the child allowed, at least, some degree of education to continue.
Sadly, the hopes of the Department do not seem to have come to pass given the Mother’s failure to attend and properly present the child at the new school that the mother has chosen.
The mother’s counsel also sought to explain this on the basis that the accommodation difficulties had interfered with the mother’s capacity to support the child’s schooling. However, this is not borne out by the material from (omitted) School which seems to demonstrate an ongoing difficulty despite what’s now said to be a resolution of the accommodation difficulties.
On the material to hand, it seems to me that there is a significant failure on the part of the mother to support the child’s proper attendance and participation at school, which has now manifested itself in a very poor outcome for the child at school. None of the material from the schools indicates that this can be explained by anything other than his attendance and lack of support. If, indeed, the mother’s case is that the child is developmentally delayed, and, therefore, not effectively ready for school, it shows a further lack of insight by the mother in that she pressed for him to be enrolled at the particular school the child now attends. If she does think the child has developmental delays one would have expected a greater attention to detail than even for the average child with respect to schooling and schooling support rather than what appears to be largely a failure to provide a level of support that is within a reasonable range for basic parenting.
I turn, then, to the next most significant issue that has appeared in the context of this case. Supervised drug screens were ordered on a previous occasion. It would have been apparent to everybody that the purpose of those screens was to ascertain whether the allegations concerning the mother and substance abuse were well founded or not. In the ordinary case, screens that show substances are strong prima facie evidence of use of the substances and screens that come back clear, if the procedures are properly complied with, are strong prima facie evidence that there is not drug abuse occurring. The orders therefore provide the parties with an opportunity to obtain significant evidence in the context of such allegations.

On a number of the tests that the mother actually carried out, she tested positive for benzodiazepines and opiates. This was on 21 February, 27 February, 1 April and 11 April.
There were collection problems on 30 April. Most significantly, requests were made (and letters tendered to prove the requests) on 7 March, 4 April, 18 April, 1 May and 15 May for which it is said there was no response.
Curiously, the mother maintained that she had no knowledge of these requests. Her solicitor did not attend either yesterday or today. Her counsel appears not to have been briefed with any material relating to the requests, nor what had occurred with respect to the requests being passed on to the client.
The mother’s counsel made the submission that she expected that the solicitor would have acted upon the requests but that she also made the submission that the client was unaware of them.
It is a most unsatisfactory state of affairs for the evidence to be left in. On the material actually before me, it seems to me that the only inference I can draw is that the requests were not complied with and that it is prima facie evidence that the non-compliance was due to a concern that the results would be adverse. To draw other inferences would allow speculation about the conduct of the mother’s solicitor who is not here and apparently not adequately briefed the mother’s counsel to impact upon the father’s case.
The issue generally, though, seems to me to be one that needs to be referred to the Legal Services Commissioner, given the impact it may well have had upon the mother’s case and the invidious position it places the parties and the court in, to have had a number of drug requests proved and the solicitor receiving the requests not attending and not adequately briefing counsel with respect to them and counsel giving inconsistent submissions about what it is expected the solicitor did and what the client says, whilst apparently unable to obtain instructions from the solicitor.
A letter from the mother’s general practitioner lists four medications that the mother is taking at least daily and some up to three times a day. The material does not set out the contents of those medications and whether they would be likely to explain the drug test results that have come to hand. Even if they were some basis for explanation, I also note that the material was only filed on 1 June 2012, giving the father no opportunity to seek further tests to determine the types of opiates and benzodiazepines that were found in the test results to compare them to the chemical structures of prescribed medications. Significantly, the letter from the doctor was dated in January, well before the tests by way of random drug screens were ordered, and there is no suggestion of further correspondence setting out the issues that might arise with respect to medications and the drug tests nor the mother seeking further tests of the substances in her system.
There are allegations in the material of the mother of having issues with alcohol. She denies this.
The school evidence as to the lack of attendance by the child and the evidence as to the difficulties in maintaining accommodation go together to build a picture (together with the drug tests results) of a person who is unable to meet the day-to-day needs of this child, or indeed, the day-to-day arrangements in their own life. It seems likely this is as a result of the impact of substance abuse, rather than another cause. In the circumstances, it is difficult at this point to conclude that the child is not at significant risk in the mother’s care, particularly with respect to education and development.
Turning, then, to the father. The mother raises two significant issues concerning the father. The first is that the father suffers a mental illness. The father has suffered a mental illness for many years and he has set that out in his material. Importantly, he has been attending upon a psychiatrist and has been the subject of treatment and review for some time. He first had some appearance of the illness in his 20s, but there was a significant incident around five years ago where he became particularly paranoid, which was a manifestation of his paranoid schizophrenia. Since then, he has been on medication. The report from his psychiatrist says that the paranoid schizophrenia is:
…totally stabilised on a small dose of antipsychotic drug which he takes appropriately.
The psychiatrist sets out in his view:
In the time I have been treating Mr Jobling, he has not had any significant relapse in his illness, has maintained stable employment and the history he gives me about caring for his son is quite consistent with good caring.
In my opinion, at this point in time, there is no contradiction to Mr Jobling having custody of X and being able to adequately parent with X’s grandmother.
Mr Jobling is reviewed by his general practitioner, Dr B in (omitted) and by myself.
In summary, it is my opinion, that Mr Jobling’s mental health is stable and should not be a contraindication in his case to have full custody of his son, X.
The criticisms made of this report by counsel for the mother are that it refers to support by the paternal grandmother being needed by the father. The father does not shirk from the proposition that he does need support from his mother in caring for the child and has maintained that in the proceedings and maintained that he has that support. This was challenged by counsel for the mother, even though it didn’t appear to be a significant issue on the application. As a result the grandmother was called to give evidence, (whilst the specific challenge to her ability to provide that support only came this morning, it is a significant issue relating to the care of the child).
The grandmother presented very well in the witness box. She is a 64 year old woman who presented as being in good health. One would not immediately guess her age to be as high as 64 from her presentation and responsiveness in the witness box. She has been at Court supporting her son in these proceedings. She was forthright in her position that she is available to assist in the mornings on weekdays when the father is at work and in the afternoons if needed. She is not employed herself. She undertakes home duties and spends time assisting with all of her grandchildren. She has six grand children in total.
I find nothing unusual or untoward about a 64 year old woman being engaged in home duties and busying herself with providing assistance to her children in supporting and rearing her grandchildren. It is a normal facet of a functional and loving family. The grandmother was cross-examined and made it clear that she would provide assistance as long as she is able to and that she has no difficulty with providing such assistance.
The grandmother was cross-examined further about the engagement of the child with the child’s mother and his family. She was quite frank and forthright in her view that the child loves the mother and that that was important. When asked about whether or not she had thought about engaging with the mother’s parents – the maternal grandparents – she said that she had not thought about that but thought that these issues (between the parents) should be sorted out first. It seems to me that her evidence indicates an appropriate level of reserve, given the very high conflict in these proceedings, in that she hadn’t formed a view but clearly wasn’t eager to enter the fray of this dispute but rather be there as a strong support for her son until these issues are sorted out.
In many cases we do see grandparents or subsequent partners start to enter the dispute in an active way and further aggravate what is already a very difficult situation. I draw no adverse inference against the paternal grandmother in that regard. Indeed, it seems to me that a positive inference should be drawn as to her maturity and her proper understanding of her supportive role as a grandparent and not attempting to take over as a primary carer. From seeing her in the witness box, I have no hesitations about the role that she could play in these proceedings and the stabilising and supportive influence that she is likely to be for the father and child.
The case, then, on the key issues, comes down to a weighing of:
a)the child’s primary attachment to the mother;
b)the significant distance she has moved which impacts upon the regularity of contact between the child and the father;
c)the mother’s apparent inability to maintain stable living arrangements;
d)the mother’s apparent inability to maintain the child’s attendance at school and proper engagement and support at school;
e)the mother’s apparent difficulties with substances;
f)the father not being the primary attachment figure – (at least at the time of the 11F report);
g)the concerns by the 11F report writer relating to the father’s capacity to understand the importance of the mother’s role with the child; and
h)the father’s mental illness.
It does not appear to me that the mother’s material indicates that the mother has seriously engaged in addressing the issues of concern with respect to her. There’s nothing to indicate she has engaged with a counsellor relating to substance abuse. Whilst she says her accommodation is now stabilised, there’s no supporting evidence in that regard, nor is there any material from the agencies with respect to accommodation arrangements and the issues that have led to such accommodation difficulties for her. The only letter from her doctor is from January of this year and it is so minimal it only lists medications prescribed at that time.
Her conduct in unilaterally removing the child from the school when clearly he was not doing well in any event shows a lack of commitment to the child. The mother could have at least relied upon her parents for living arrangements pending a court application. This shows a complete disregard for not only the court order, and the role of the father in the proceedings, but also the importance of a planned transition from one school to another. Her lack of engagement of either a paediatrician or other professional for assessment for the child, when it is clear the child has been doing so poorly at school, shows a further lack of insight or capacity to meet the child’s needs, if she genuinely believes the child has a developmental delay.
Her submissions with respect to the school and the school not wanting to engage with her does not sit with the principal’s notes on the school file. At this stage, at least, it seems to me that the principal’s notes ought to be given considerable weight.
With respect to the father, the material from his psychiatrist indicates that his mental health issues are under control and have been stabilised for some time.
The court does not discriminate against parents because they suffer a disability. It is the practical impact of any restriction on their capacity to meet the child’s needs that is relevant in a case such as this, whether the disability be mental illness, physical, substance dependence or some other form of incapacity.
In this case, the material from the psychiatrist indicates that the father has the capacity to meet the child’s needs, particularly with the grandmother’s support. I also note that he has maintained full time employment for some time. On the material available, it does not seem to me that the father presents any real risk to the child at this time.
The mother refers to one other incident where she says recently the father made a threat to her that she would not see the child again, coupled with the fact that in the past, he was the owner of guns. He denies the allegation, and it is a somewhat isolated allegation in the context of this case. He says that he disposed of any firearms he owned some time ago.
Looked at in context, the allegation seems unlikely and not to be matters that are of significant concern at this point. There had been a number of interactions and shifts of the child between the parents. The father did not obtain the orders that he hoped for on the last occasion the matter was before the Court. The mother has unilaterally shifted the child from the school that was ordered in the meantime. The father’s response to each of these things, which would no doubt have been very emotionally distressing for him on each occasion, has been measured and appropriate.
He clearly has attempted to make the orders that I made on the last occasion work, despite the fact that they were clearly not his preferred orders and not orders that he would have been content with. He has not unilaterally interceded with respect to the school issue, but has filed an application in the Court to bring the matter back before the Court. These are not the actions of someone who is about to take an inappropriate step or to react violently.
The material set out by the father in his affidavit at paragraph 32 sets out a number of interactions which would amount to domestic violence conducted by the mother. The mother has addressed the matters that she disputes in the father’s affidavit, specifically at paragraph 18 of her affidavit, and makes no denial of these allegations. They are as follows:
Ms Mason continues to denigrate me at changeover and during my nightly telephone conversations with X. I have been upset by Ms Mason’s treatment of me and have kept detailed notes of what she has said:
(a)    On 16 February 2012 X introduced me to a couple of his school friends when I picked him up. Ms Mason then phoned me and asked “How dare you speak to X’s friends” and continued to rant about this;
(b)    On 19 February 2012 when I returned X to Ms Mason I asked her for his clothes from the previous week. She made X take off the shirt he was wearing and give it to me. I said “At least go and get him another one so he doesn’t get cold” and she replied “Get fucked idiot”. X became very upset by this incident;
(c)     On 6 March 2012 when I phoned X I could hear that he and Ms Mason were out. I asked “Where are you buddy” and Ms Mason yelled “Stop being so fucking nosey”. X said “Don’t talk to my Dad like that”;
(d)    On 7 March 2012 when I phoned X he said they were at the train station, had not had dinner and that they were moving again right now. I asked where to and Ms Mason said “Mind your own fucking business”. X then said “Don’t say that to my Dad”;
(e)     On 14 March 2012 while speaking with X on the telephone, the background noise was unbearable. I asked Ms Mason to turn the music down. I said that we should be able to talk in quiet and she yelled “Get a life”;
(f)     On 20 March 2012 I suggested to X that he bring his (omitted) to a teddy bears picnic at school. Ms Mason yelled “What are you sucking up to the school’s arse for?” I told her “It’s for X so back off”. She hung up. I called again and she answered with “Watch ya fucking mouth”. I said I want to speak to X. As she passed the phone to him she then screamed “I’m about to give him the fucking phone ya idiot”. For the rest of my phone call she yelled things out in the background.
The mother’s current living arrangements are not clear. It seems that she is living with her current de facto partner and his three or four children who may or not be there full time with him. The house is a three bedroom home. The mother says that she shares one bedroom with the child and that the other persons share the other bedrooms. It is obviously a household that is at best busy, if all are present at any given time. At worst it is chaotic, given the difficulties in getting the child to school. The father has a household with a room available for the child.
I turn then to consider the s.60CC factors in light of the material before me on an interim basis. There are no specific views expressed by the child although it seems to me that in this context I should have regard to the assessment of the mother as being the primary attachment figure, at least at the time of the s.11F interviews.
The nature of the child’s relationship with the parents and other persons: it seems to me that the child is likely to have a strong bond with the mother and the father and the grandmother. The extent to which the child has bonds with others is open to question. There seems to be some very real questions of the extent to which the child has positive relations with the children of the mother’s de facto partner, although I cannot make any determination of that question today.
The next factor is the willingness and ability of the child’s parents to facilitate and encourage a close and continuing relationship. The mother’s conduct in shifting the child’s school so far from the father tells against this. On the mother’s part, this is explained by her on the basis of a necessity of accommodation. This may show that she has some willingness to facilitate relationships but an inability to arrange her life in such a way to ensure that can occur.
The criticism, fairly made of the father, is his lack of insight into the child’s needs for the mother in the child’s life at the s.11F interview. However, I also note that the father has commenced undertaking of a post-separation parenting course which will, to some extent, tend to address this. The father’s mother clearly has a strong insight into the importance of the child having a relationship with the mother and the father’s proposals on this occasion include proposals for two weekends out of three for the child to be with the mother to reflect the child’s attachment to the mother and the need to continue that relationship.
It remains to be seen the extent to which the father has been able to gain the insight into the child’s needs for a relationship with the mother, even if everything he alleges about the mother be true. At this point it seems to me it is not a situation where I should draw the view that he would be adverse to or undermining of the mother’s relationship with the child.
On the question of the likely effect of changes in the child’s circumstances, a change of primary care to the father will ensure, it seems, the child’s regular and proper attendance at school on each day and the child attending only one school whereas at present he is at one school for four days and the other for one day. It will reduce the time with the mother and would be likely to have a significant impact upon his primary attachment. This is a significant matter to be weighed in the balance in this case as there are significant risks with disrupting a primary attachment.
It does not seem to me that the impact upon the child of changes in the amount of time he has with the other children in the household of the mother is significant in this case. There is no evidence of significant involvement of other adults in the child’s life in the mother’s household. It will increase the amount of time the child has with the paternal grandmother.
The practical difficulties and expenses in this case are as a result of the significant distance between the parties and their lack of resources. On any order that I make which ensures the child attends one school, there will be the practical difficulty of significant travel which, unless the mother is prepared to undertake that travel during the weekdays, effectively limits the time of the child with the non-resident parent to weekends.
I have spoken above at length about the capacity of each of the child’s parents and the grandmother’s capacity to provide for the needs of the child. There is no affidavit material on this occasion from the mother’s de facto spouse about his role, although he is said to be living with the child in the mother’s household.
When I turn to the maturity, age, sex, lifestyle and background of the child, I note the young age of the child and the crucial point he is at in his development, and the lifestyle and background of the parents, in particular the mother’s lifestyle and background which appears to have been disorganised and to an extent that it is significantly impacting upon the child’s education and development.

The child is not said to be Aboriginal or Torres Straight Islander and there are not said to be any significant cultural matters that I should have regard to.
The attitude to the child and responsibilities of parenthood are again reflected in the matters I have set out above. With respect to the father, the lack of insight into the mother’s importance at the time of the s.11F interviews, and with respect to the mother, her lack of insight into the needs for the child to have a stable care arrangement and to have more fulsome support in his day-to-day living arrangements and routines to enable him to have reasonable opportunity to succeed at school and to develop in the way that one would hope for a child of this age.
With respect to family violence, I have set out above the allegation by the mother and the undisputed evidence, of the father. There is not a family violence order. There was at one stage a family violence application, but it was withdrawn when agreements were reached on the previous court occasion. I am not persuaded there is a real risk of family violence by the father.
It seems to me that I can have no confidence that any particular order is less likely to lead to the institution of further proceedings. However, unless something is done about the child’s attendance at school it will ultimately lead to further proceedings, not only in this court, but perhaps even the Department of Human Services, given the nature and tenor of the material from the school.
Turning then to the primary considerations under s.60CC. The benefit to the child of a meaningful relationship with both parents: in this case the arrangements put by either parent will not mean that the child does not have a meaningful relationship at all if the parents continue to engage with the child. I have had careful regard to the extent to which the potential of fracturing the primary attachment to the mother is at risk in this case by weighing it in the facts and circumstances of the case.
The second primary consideration is the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. In this case it seems there is a strong prima facie case that the child is suffering psychological harm from neglect in the way in which he is not being properly supported to participate at school and to attend at school to engage in both social and academic development by the mother.
There seems to me to be no significant factors beyond those encompassed by the child’s best interests.
I can not determine parental responsibility, even on an interim basis on the state of the evidence. However, there is an existing consent interim order for equal shared parental responsibility, thus I formally consider the matters in s.65DAA. When looking at the matter as a whole, it seems to me that the child’s best interests at this point are clearly met by orders that the child live with the father and spend time with the mother from after school on Friday until 5pm on Sunday – with Monday as a public holiday, 5pm on Monday. Shared care is clearly impractical as is substantial and significant time, given the distance they live apart. The mother’s suggestion of living with her parents is without detail. Her preparedness to move so many times and move the child’s school rather than move in with her parents leads me to conclude that this does not present as a workable, stable option.
It seems to me at least one weekend in three should be spent with the father given that he will be the primary carer, and that two weekends out of three at this stage are appropriate to spend with the mother.
To the extent that the mother seeks to engage with the child at school, provided that it is within the normal bounds of parents participating at school as encouraged or recommended by the teachers, I see that there would be no difficulty with that occurring. I make no orders specifically about that.
I formally make orders in terms of the father’s draft with changes with respect to the conclusion of time with the mother so it ends on Sunday, or Monday for a public holiday, and specifically record in my reasons that I do not make orders for the return of the child to school on Monday as the history of the child’s attendance and participation at school does not give me any confidence that the mother would be able to ensure that the child would attend after a proper breakfast and a good night’s rest, ready for school with a packed lunch.
Even though the child may well have already passed the turning point at which he can avoid repeating prep, arrangements should be put in place to give the child the best possible opportunity of participating successfully in the next six months at school. This requires that he be back at the father’s household on Sunday so that he can be properly prepared to attend on time with all of the other children at school on Monday morning, for an uninterrupted week.

RECORDED: NOT TRANSCRIBED

Further, I make orders for the changeovers to be by way of the draft that the father has provided, for the mother to collect the child but for the father to recover the child not from her residence but the (omitted) McDonalds so as to minimise any prospect of adverse interactions between the parties and those associated with them, and so the return can be on neutral ground in a public place.

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

Date: 10 August 2012