Levins & Donovan

FEDERAL CIRCUIT COURT OF AUSTRALIA
Levins & Donovan [2021] FCCA 802

File number(s): PAC 4822 of 2018

Judgment of: JUDGE NEWBRUN

Date of judgment: 22 April 2021

Catchwords: FAMILY LAW - Parenting - best interests of children - orders made

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D

Cases cited: Lansa & Clovelly [2010] FamCA 80

Number of paragraphs: 245

Date of last submission/s: 18 March 2021

Date of hearing: 17 and 18 March 2021

Place: Parramatta

Counsel for the Applicant: Ms Katie

Counsel for the Respondent: Ms Freelander

Counsel for the Independent Children's Lawyer: Mr Cook
ORDERS

PAC 4822 of 2018

BETWEEN:
MS LEVINS

Applicant

AND:
MR DONOVAN

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

22 APRIL 2021

THE COURT ORDERS THAT:
1.That the Mother and Father shall have equal shared parental responsibility for X, born in 2015 (“the child”).
2.That the child shall live with the Mother from 5.00pm on Friday 23 April 2021.
3.That the Mother and Father shall forthwith do all acts and things and sign all documents to:
(a)Transfer the child’s involvement with the Cerebral Palsy Alliance Centre in Suburb B to the Cerebral Palsy Alliance Centre in Suburb C
(b)Enable the Mother to co-ordinate with D Centre and/or any other NDIS support co-ordinator in relation to the child’s current NDIA-managed NIDIS funding.

4.That the child shall spend time with the Father as follows, commencing Friday 7 May 2021:
(a)During school terms, each alternate weekend from the conclusion of school on Friday (or 3:00pm if a non-school day) until 5:00pm on Sunday.
(b)For half of the NSW school holidays as agreed and failing agreement, as follows:

(i)For the first half of the school holidays in years ending in an even number; and
(ii)For the second half of the school holidays in years ending in an odd number.

(c)From 2:00pm on 24 December until 2:00pm on 25 December in years ending in an even number.
(d)From 2:00pm on 25 December until 2:00pm Boxing Day in years ending in an odd number.
(e)From 9:00am until 5:00pm on Father’s Day.
(f)At other times as agreed between the Mother and Father from time to time.

5.That the child’s time with the Father pursuant to these Orders, shall be suspended at the following times when the child shall live with the Mother:
(a)From 2:00pm on 24 December until 2:00pm on 25 December in years ending in an odd number.
(b)From 2:00pm on 25 December until 2:00pm Boxing Day in years ending in an even number.
(c)From 9:00am until 5:00pm on Mother’s Day.
(d)At other times as agreed between the Mother and Father from time to time.

6.That the Mother and Father shall each have liberal and flexible telephone communication with the child such that:
(a)The Father shall telephone the child when she is living with the Mother on a number provided by the Mother;
(b)The Mother shall telephone the child when she is spending time with the Father on a number provided by the Father; and
(c)The Mother and Father shall encourage and facilitate the children communicating with the other parent pursuant to the provisions of these Orders.

7.That to facilitate the child communicating with the other parent:
(a)Each parent acknowledges that the child is at liberty to telephone the other parent at any time that does not interfere with the activities and events in each parent’s household;
(b)Each parent shall provide the child with access to a telephone and such assistance as the child may require to communicate with the other parent; and
(c)Communication with the other parent may include telephone, text message, skype, face time, and similar software and technology from time to time.

8.That unless otherwise specified in these Orders or agreed between the Mother and Father from time to time, the parties shall meet at the Suburb E McDonalds for changeover.
9.That unless otherwise specified in these Orders for the purpose of calculating the school holiday periods the Mother and Father agree that:
(a)All school holidays shall be deemed to commence at the conclusion of school on the last day of the school term for NSW students;
(b)All school holiday periods shall be deemed to conclude at the commencement of the first day of the new school term for NSW students;
(c)For the purposes of calculating half of the school holidays, the Mother and Father will count the number of nights from the night of the commencement of the school holidays (as stipulated in Order 9.1) to the last night of the school holidays (as stipulated in Order 9.2). In the event that there are an uneven amount of nights in the school holiday period, then the parent spending the first half of the school holiday period with the child shall spend the additional night with the child for that school holiday period; and
(d)Changeover during the school holidays, unless otherwise provided for in these Orders, shall be at 5:00pm.

10.That the Mother and Father shall keep each other advised of their contact telephone numbers and shall advise the other parent within twenty-four (24) hours of any change to their contact telephone number/s.
11.That the Mother and Father shall keep the other advised of their residential address and provide each other with no less than twenty-one (21) days’ notice in writing of any intention to change address.
12.That the Mother and Father do all things necessary to authorise the child’s school to provide to the other parent, on a regular basis, copies of all school reports, school newsletters and other information regarding the child’s school activities.
13.That the Mother and Father be entitled to attend all school functions, sports carnivals and other school events in which parents are invited to attend.
14.That the Mother and Father be entitled to obtain directly from any school attended by the child or any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose the Mother and Father shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
15.That the Mother and Father immediately notify the other parent of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the child when the child is in their care. That together with such notice the parent is to provide the name of the hospital, treating medical practitioner and/or medical facility that provided medical treatment for the child. That the Mother and Father do all things necessary to authorise the child’s school to provide to the other parent on a regular basis copies of all school reports, school newsletters and other information regarding the child’s school activities.
16.That the Mother and Father be restrained from speaking or permitting any other person to speak to or about the other parent or members of their family in a negative, offensive or unpleasant fashion in the child’s presence or hearing.
17.That the Mother and Father be restrained from speaking or permitting any other person to speak about these proceedings in the child’s presence or hearing.
18.That the Father be restrained by injunction from using illicit substances within forty-eight (48) hours prior to and during his time with the child.
19.The parties shall communicate with each other by email and only in relation to the child or issues affecting the child. They shall only communicate with each other by text message in the case of emergency relating to the child.

The parties shall forthwith take all necessary steps to enrol in, and complete, a post separation parenting group with a focus on improving parental communication and cooperation. (F Counselling may be of assistance to the parties in identifying a suitable course.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Levins & Donovan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:

This final parenting hearing relates to the child X born in 2015.
Since about early September 2016, the Father has been the child’s primary carer. Since about November 2016 the child has been living with the Father on the Region G, with the Mother residing in Sydney’s western suburbs.
This Court made interim parenting orders by consent on 13 December 2018 whereby the child lived with the Father, and spent fortnightly weekend time with the Mother.
This Court made further interim parenting orders by consent on 22 November 2019 extending the child’s time with the Mother; inter alia, the child would spend time with the Mother from after preschool Friday until Monday each alternate week.
PROPOSALS
The Mother ultimately adopted the ICL’s proposed Minute of Orders sent to the Court on 18 March 2021, subject to seeking an order for sole parental responsibility in relation to the child in relation to major decisions relating to education and medical issues.
The Father’s proposals are set out in his Amended Response filed 8 May 2020; inter alia, he seeks an order for sole parental responsibility for the child; that the child live with the Father; and the child spend time with the Mother, as agreed between the parties’ in writing, and failing agreement, inter alia, from 26 January 2021 each alternate weekend from 5 PM from Friday until 5 PM Sunday, together with time during school holidays and on special occasions.
The ICL’s proposals are set out in his proposed Minute of Orders sent to the Court on 18 March 2021; inter alia, the ICL seeks orders that the parties’ have equal shared parental responsibility for the child; that the child live with the Mother; the child spend time with the Father during school terms, each alternate weekend from after school Friday until 5 PM on Sunday, and for half of NSW school holidays.
The Mother relied upon the following documents:
(a)Affidavit of Mother filed 11 March 2021;
(b)Affidavit of Mother filed 15 March 2021;
(c)Affidavit of Mother filed 16 March 2021;
(d)Affidavit of Mr H filed 16 March 2021;
(e)Notice of Risk filed 10 October 2018;
(f)Initiating Application filed 10 October 2018.
(g)Her case outline filed 16 March 2021.
The Father relied upon the following documents:
(a)Amended Response filed 8 May 2020;
(b)Affidavit of Father filed 15 March 2021;
(c)His case outline filed 16 March 2021.
The ICL relied upon her case outline filed 16 March 2021 and the documents referred to in that case outline being the Exhibit B and D documents (see below).
The following Exhibits were relied upon:
(a)Exhibit A: NDIS Report tendered by the Mother;
(b)Exhibit B: Family Report of Ms J and Child Inclusive Conference Memorandum;
(c)Exhibit C: Photo of the Garage tendered by the Father;
(d)Exhibit D: Tender Bundle of the ICL;
(e)Exhibit E: Annexures of Affidavit filed 16 March 2021 tendered by the Mother;
(f)Exhibit F: Proposed Minute of Order by the ICL (this Minute was superseded by a later Minute sent to the Court by the ICL on 18 March 2021).
EVIDENCE
The Court has had regard to the documentary material referred to above, together with the oral evidence given by each of the parties’, Mr H, and the family report writer. Throughout these Reasons for Judgment the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In order to limit the size of these Reasons, not all factual issues will be addressed. However, those that are important to the Court’s determination will be considered either in this section or whilst addressing the section 60CC factors.
Mother’s evidence
The Mother and Father are both aged 24 years.
The Mother is a full-time homemaker.
The Father is not presently in paid employment. He receives Centrelink benefits consisting of parenting payment, family tax benefit and carer allowance totalling about $1,200 per fortnight. He resides in a three-bedroom residence at Suburb K on the Region G with the child. This house is rented by the Father through the L Services Aboriginal Association; when the child was born hospital staff told the parties’ that the child was aboriginal by descent.
The parties’ commenced cohabitation in 2014. They separated in about early April 2016.
The Mother has had two children with her current partner Mr H; M born in 2018, and N born in 2019.
The Mother has been in a relationship with Mr H since about 2017.
The Mother, Mr H, and their two children, presently reside at Suburb O in Sydney’s West.
During the parties’ relationship, the Mother was not in employment and she was the child’s primary carer.
At separation, the Mother moved to the home of the maternal grandmother. About two weeks later the parties’ agreed to an equal shared care arrangement in relation to the child.
The Mother decided not to facilitate the child spending time with the Father between mid July 2016 and Father’s Day 2016 because she had seen a photo on Snapchat depicting what she believed to be a plate of illicit drugs at the Father’s house.
On or about Father’s Day 2016, the Mother agreed to facilitate the child spending some time with the Father. At about this time, whilst the Mother was having a nap at the Father’s residence at this time, the Father took the Mother’s mobile phone and read through certain messages on the phone. The Father, then angry, woke up the Mother, verbally abused her, and accused her of cheating on him. The Father had friends at his residence at that time and they, together with the Father, physically ejected the Mother from the Father’s residence. The Mother was extremely distressed and intentionally hit the door leaving a hole. The police were called and requested the Mother to leave the premises. They declined to assist the Mother in recovering the child from the Father, informing the Mother that she needed to apply to the Family Law Court.
The next day the Mother attended a Legal Aid office and spoke to a solicitor. The solicitor called the Father in the Mother’s presence, requesting that the child be returned to the Mother. The Father did not return the child to the Mother after that phone call.
The Father then relocated to the Region G with the child to live with the great paternal grandmother. In late 2016 the Father sent the Mother a message telling her that he had moved up to the Region G with the child to live with the great paternal grandmother, to which the Mother objected.
The Mother attended upon Legal Aid again in late 2016 with a view to recovering the child. She was told she could not file a recovery order because it was too late.
Over the past two years the Mother has applied for Legal Aid on four or five separate occasions, and on each occasion her application was rejected.
Post separation and after the Father moved to the Region G, the Mother was fearful of the Father. She tried to do what the Father wanted because she was scared that the Father would not allow her to see the child if the Mother made him upset.
From the time that the Father moved up to the Region G with the child, the Mother made several welfare check reports in relation to the child through the police.
In late 2016 the Mother saw the child on two occasions after she had travelled by public transport to the Region G to see her. The Father had told the Mother that if she wanted to see the child she could come up to the Region G where she could see the child for 2 hours.
In 2017, the Mother spend some daytime time with the child on the Region G on several occasions, including in late December and Christmas Day 2017.
During the Mother’s time spent with the child in late 2016 and 2017, the Father was distrustful of the Mother in that he feared the Mother might take the child away from him.
In 2018, the Mother spent time with the child on numerous occasions on the Region G, the Father having insisted that the Mother travel to the Region G if she wanted to see the child. Even when the Mother was 34 weeks pregnant in 2018, the Father insisted the Mother travel to the Region G to spend time with the child. He still remained distrustful of the Mother possibly retaining the child.
The Mother had always asked the Father to let her speak with the child over the telephone however the Father would always reply, words to the effect, “No she is too little, she won’t understand you anyways.”
The Mother intends to enrol the child in a hobby school with her sister at P Centre in Suburb Q.
The child was assessed by the Cerebral Palsy Alliance (CPA) on about 9 June 2017. An assessment was made of mild cerebral palsy. The Father then sent a photo to the Mother of the child lying on a hospital bed being attended to by doctors and being assisted with oxygen. The Mother sent a number of messages to the Father enquiring what had happened to the child, and about 10 hours later, the Father informed her that the child had cerebral palsy.
On 15 February 2018, a paediatric neurologist’s report to a paediatrician at R Hospital in relation to the child agreed with a previous diagnosis of mild cerebral palsy made by the CPA “with some spastic and atonic features, predominantly affecting her right side more than the left.”
The Mother would like her two daughters with Mr H and the child to grow up together. The three children are now close having had regular fortnightly visits together.
The Mother has had contact with the child’s cerebral palsy specialists and workers and they have been very informative and helpful to the Mother and have assured her that the child will be able to transition over to her area quite easily and it should not be a hard or a long process.
The Mother intends to enrol the child at the S Public School in Suburb T. This school is about 10 minutes from the Mother’s house. The Mother has family members who have children enrolled there with learning delays.
The Mother gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The Mother stated that it was a depressing time following the parties’’ separation in about April 2016. She admitted that she consumed illicit drugs at this time. For example, on 4 May 2016, she was charged by the police with drive vehicle, illicit drug present in blood (cannabis), and received a section 10 bond for 18 months. And on 4 February 2017 the Mother was charged with possession of equipment for administering prohibited drugs and possess prohibited drugs (cannabis) and for which she was fined total of $500.
The Mother admitted that she was in a violent relationship with a man (Mr U) that commenced in 2016. That relationship lasted less than a year and in about early 2017 the relationship ended.
The Mother indicated an awareness of certain difficulties the child had with putting sounds together when speaking; for example, she stated that the child found the letters L and S hard on her tongue.
The Mother was questioned about the child’s right sided hemiplegia. The Mother stated that the child walks on her tippy toes; that the child can walk now, but can experience lower limb pain.

In relation to the Mother’s proposed enrolment of the child in a hobby school, the Mother stated that she would enrol the child when she thinks the child is strong enough to commence the training.
The Mother stated that she had been in contact in the last two months with CPA workers in Suburb B. They had told the Mother how the child was going with therapists and social workers.
The Mother stated that she had had a brief discussion with staff at the S School at Suburb T. She has looked at that school’s website. She stated that the school, inter alia, has special aide teachers to help children. She stated that she had not yet shown any health professional material relating to the child to that school.
The Mother stated that the Father had not ever sent her any material from CPA relating to the child.
The Mother stated that she had not been involved in the choice of the child’s present school at Suburb K. She stated that she had sought and got to speak to a teacher of the child.
The Mother was asked what she would do if the child was ordered to live with her and the child experienced any emotional disruption. The Mother stated that she would organise FaceTime between the child and the Father, and meetings between the child and the Father if she was homesick.
In this context, she stated that she was more than happy for the child and the Father to have a good relationship. The Mother was then asked how she would achieve that, to which the Mother responded that she wanted the best for the child, that she is calm with the Father, and that she doesn’t want to poke the Father in the eye.
The Mother stated that she was the eldest child of six children. She stated that she sees the child thriving spending time with her stepsiblings. She stated that she could juggle her commitments to each daughter. The Mother stated that her three daughters all get along and love each other. She stated that on her fortnightly weekends with the child it is smooth and joyful.
In relation to the Mother’s approach to the child with her disabilities, the Mother stated that she would not hold the child back. For example, she stated that if the child had difficulties doing sports, she would help her as the Mother herself did sports school.
The Mother stated that Mr H is more a stepfather figure to the child. She stated that he was the breadwinner. She stated that when he was at home he did spend time with her daughters. She stated that Mr H could assist her in the care of the children. The Mother stated that she drives a car.
The Mother stated that if the child was to live with her, she could keep the Father up-to-date in relation to the child by sending him messages. She stated that she was happy for the Father to contact her. She stated that if the child was to live with her, having spoken to the CPA officer in Suburb B, the child’s cerebral palsy files would be sent to Suburb C CPA.
The Mother stated that she had not been involved in the enrolment process for the child’s attendance at the Suburb K preschool.
The Mother was asked how she proposed to get a full understanding of the child’s additional needs. The Mother responded by stating that she was a good communicator and that she does good research. She stated that she has friends who have children with disabilities and she has good support.
The Mother stated that she sees the Father as being important in the child’s life. The Mother agreed that the child has a good bond with the Father.
The Mother expressed a concern that the Father’s support networks are lacking in relation to the child.
Mr H
The Mother’s partner Mr H gave evidence. The Court does not propose to set out the entirety of his evidence.
Mr H is aged 28 years. He is employed as a labourer. He and the Mother have been in a relationship for four years.
In late 2017 he observed the Father to be verbally aggressive towards the Mother at a visit between the child and the Mother.
Mr H has a positive relationship with the child and the child is very comfortable around him. They often play together.
In oral evidence, Mr H stated that he earns, after-tax, between $1,100 and $1,600 per week. He pays $350 per week in rent. He stated that he pays what needs to be paid (for the family). He stated that he is able to afford caring for the child if the child was to live with the Mother. He stated that the rental property where he lived had three bedrooms; the child could occupy one-bedroom, his two daughters could occupy another bedroom, and the other bedroom would be occupied by himself and the Mother.
Mr H stated that his usual work hours are from 2:45 PM to 12:45 AM Monday to Friday and Saturdays, and on occasions Sundays. He clarified that he works on Saturdays 50% of the time from 2 PM to 10:45 PM. In this context, he stated that he works on Saturdays when the child is not spending time with the Mother. He stated that he works overtime but his overtime hours can vary.
He stated that the Mother was capable of handling the extra responsibility of caring for the child if the child was to live with her.
Mr H stated that the child is fun and is smart. He stated that the child often initiates playing with him. He stated that she is a good big sister. He stated that the child’s speech has become clearer.
Mr H was questioned about the school S School at Suburb T. He stated that his cousin’s son is autistic and his cousin has recommended the school. He agreed that autism was not the same as cerebral palsy.
Mr H stated that the Mother and himself have one car used between them. In relation to the Mother getting the child to school, he stated that he could leave car for the Mother and he could get a lift to work with his stepfather who works with him.
Mr H stated that he was happy to be civil with the Father.
Mr H stated that he could assist the Mother in sending medical and school reports in relation to the child to the Father.
Mr H stated that he worked for a good company and that he had the ability to change his work shifts. He had spoken with his employer about changing his work shifts. He stated that if he changed his work shifts to accommodate school hours he could work on Sundays which would assist him financially, in particular on Sundays that the child was spending time with the Father.
Father’s evidence
The child commenced kindergarten this year at the Suburb K Public School.
The child has been allocated three therapists through the CPA.
The child has been having speech therapy for about three years and her language and speech have improved during that time. A speech pathology report from 13 December 2019 states, inter alia, that overall, the child presented with a mild expressive language delay and receptive language skills just within the normal range. She had also presented with some speech sounds errors impacting how clear she is when she talks.
The child has leg braces.
The Father has support from D Centre which is an organisation that assists with NDIS applications and options. The child receives benefits through the NDIS scheme in relation to her disabilities.
The Father receives Centrelink benefits consisting of parenting payment, family tax benefit and carer allowance totalling about $1,200 per fortnight.
The Father’s parents live in Suburb V. His brother lives in Suburb W, and his sister lives in Suburb Y. His aunt and uncle live in Suburb V. His great paternal grandfather, aged in his late 60s or early 70s, lives on the Region G about 30 minutes’ drive away from the Father. The child sees the paternal extended family about once a month or so.
The Father and child moved to the Region G in about mid November 2016 to live with the great paternal grandparents. The Father did not work in employment as he had the full-time care of the child and was receiving Newstart payments. The Father received a lot of help from the great paternal grandmother in relation to the care of the child. The great paternal grandmother also organised the setting up of NDIS benefits for the child. The great paternal grandmother died in 2019. Since her passing away, the Father has received assistance from his support worker at D Centre.
From late 2019 until the child started school in February 2021, changeover for the child’s return to the Father was Monday afternoon. Now that the child has commenced kindergarten, the child’s return to the Father is Sunday at 7 PM.
The Father admits her during the parties’’ relationship he would get angry at the Mother because he thought the Mother was sleeping around.
The Father admits that he did receive a number of text messages and phone calls from the Mother after the Father retained the child in early September 2016. The Father stated that sometimes he responded to the Mother and sometimes he did not. The Father stated that he was worried that the Mother would take the child and not let him see her again. He was also concerned because he did not know where the Mother was living or who she was living with. The Father had said to the Mother in conversation and text a few times, inter alia, “I can’t let you see her if you don’t have somewhere proper to live.”
The Father states that his relationship with the Mother had been one of mutual disagreement and mistrust for almost the whole time, especially since the child had been a few months old.
The Father started to receive the single parent payment in about mid-2017 and by Christmas 2017 the child and the Father moved into a two-bedroom home near the home of the great paternal grandparents. The Father’s former partner Ms Z had moved in with the Father and the child for a period of time during 2018 but they have since separated.
The Father did not allow the Mother to be alone with the child during the period from October 2016 to October 2018.
The Father admits that during 2017 and 2018 he did not constantly update the Mother about the child’s condition.
The Father stated that when the Covid restrictions came into force in April 2020 it became a harder for the child to get therapy. Many of the child’s appointments were by video link and the Father had some problems firstly with his mobile phone not working and then with NBN connection problems.
The Father admits that he has used marijuana in the past.
The Father denied in his Affidavit that he has a criminal history. He asserts that he has been charged with having drugs in his car a few years ago.
The Father states that since the child has been spending alternative weekends with the Mother, their relationship has grown stronger.
The child’s kindergarten settling in report dated 10 March 2021 refers to the child developing in various areas of personal and social development, as well as work, study behaviours and attitudes.
The child’s AA Kindergarten Assessment dated 12 March 2021 refers, inter alia, to positive observations of the child’s speaking and listening, reading, writing, and numeracy skills.
The Father gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The Father stated that if the child was to live with the Mother, he potentially could lose his aboriginal housing, and would have to obtain accommodation.
It was put to the Father that he does not communicate with the Mother about the child’s needs. In response, the Father stated that he is slack but the Mother does not ask him for information.
It was put to the Father that he does not communicate with the Mother. The Father responded that the parties’ try to keep communications to a minimum. He stated that lengthy conversations with the Mother turn into an argument and he does not want the child exposed to such conflict.
The Father stated that the child’s therapies were not held face-to-face during the last year due to Covid restrictions.
The Father stated that the child’s NDIS plan was not provided to the Mother because the Mother did not ask for it. The Father did not think it was of any interest to the Mother as she had not been interested.
The Father stated that he did not inform the Mother of the child’s new support worker.
The Father stated that he realises that he has not communicated with the Mother (in relation to the child).
The Father stated that there is communication to a minimum with the Mother at changeovers.
The Father stated that he has always sought sole parental responsibility in relation to the child. He stated that he feels that he knows what is best for the child. He stated that the Mother does not know anything about the child’s disabilities.
The Father stated that it will be way too disruptive for the child, if she was to live with the Mother, because the child would need to change schools, and change therapists.
The Father stated that he had received a fine in relation to an offence of possess prohibited drug committed in 2018. He agreed that he had in his possession two ecstasy pills in his wallet at the time of the offence. The child was in the car at the time the police issued the Father with a field court attendance notice to attend Suburb R Local Court in 2018. He stated that he had missed the Court attendance (in 2018).
The Father stated that he had recently lost his driver’s license, in relation to not having provided details three years ago. He is due to have his license returned in July 2021. The Father stated that he would need to use public transport in relation to the child spending time with the Mother, and in getting the child to therapy appointments.
The Father confirmed that his car had been vandalised in about early November 2020 and his house had been broken into. He stated that his residential area is not the best. He stated that the real estate agent had just installed security cameras at his residence.
The Father stated that he is receiving significant Centrelink benefits. He would like to get back to work having previously conducted a small business.
The Father stated that if the child was to live with the Mother then it would be possible for the NDIS to transfer over to the Mother.
The Father stated that he attended high school to Year 10. He then participated in an apprenticeship for about 2.5 years.
The Father stated that his Mother lives in Suburb V.
The Father stated that he alone had made the decision to send the child to the Suburb K Public School.
The Father stated that he has ADHD and dyslexia. In relation to an enrolment form for the child’s primary school, the Father stated that he had had assistance from a person to fill out the form.
The Father stated he had not provided to the Mother a copy of the child’s settling-in report dated 10 March 2021. He did not inform the Mother of the child’s attendance at preschool.
The Father was cross-examined by the ICL.
The Father’s attention was drawn to a police entry for 11 May 2020 (see Exhibit D) in relation to the police attendance at the Father’s residence at about 10:45 AM on Friday 8 March 2020. The Father’s attention was drawn to the police entry stating, “Upon attendance Police could smell a strong odour of cannabis emitting from the house… (The Father) admitted to smoking a joint in the rear yard.” The Father stated that he recalled the event. He confirmed that he had had a “joint” that morning. The Father confirmed that the child was present at his residence at the time the Police attended.
The Father stated that with his ADHD consuming cannabis calms him down. He stated that he presently consumes the medication Zoloft to calm him down. He stated that he was previously ingesting a sleeping tablet, which he tried, but he did not like.
The Father’s attention was drawn to a police entry for 6 September 2020 (Exhibit D). The entry recorded that the Father had told police that he was a recreational drug user.
The Father stated that the main reason he uses cannabis is for his sleep. He stated that he would self medicate in this regard.
The Father confirmed that the great paternal grandmother had had a strong involvement with the care of the child. The Father stated that after the great paternal grandmother passed away, he had experienced a big disruption and had suffered depression and he had grieved. He stated that a couple of years ago he had had a disagreement with the great paternal grandmother because she did not like his former partner Ms Z. He stated that the great paternal grandmother had filed a report and that she had considered intervening in the Court proceedings.
The Father stated that the child’s new primary school was five minutes away from his residence.
The Father’s attention was drawn to the child’s new primary school student history report (Exhibit D, Page 26). That report had recorded the child’s absences from school in February 2021. The Father stated that he had been late taking the child to school on 3 February 2021 because he had slept in, having taken the medication Zoloft. In relation to the child’s whole day absence on Friday 5 February 2021, the Father stated that he had been ill on that day and had had no one to take the child to school. The Father stated that the child had been late to school on 9 February 2021 because he had slept in. He stated that he struggles in the morning and that the medication Zoloft makes him very drowsy in the morning.
The Father stated that it was possible that in March 2019 there had been illicit drug use in his residence but the child would not have been present.
The Father confirmed that his former partner Ms Z had borderline personality disorder. He stated that he had consumed cannabis when alone with Ms Z.
The Father confirmed that the great paternal grandmother had helped the Father in having the child attend for CPA appointments. The Father stated that the great paternal grandmother had taken a massive part in the child’s cerebral palsy treatment. He stated that the great paternal grandmother had a massive bond with the child.
The Child Inclusive Conference
A Child Inclusive Conference was held on 26 February 2019 by family consultant Ms J. She produced a Memorandum to Court arising out of that conference of the same date.
The Court does not propose to set out the entirety of the contents of that Memorandum.
The Mother told the family consultant that the Father continually attends changeover an hour or two late.
The Father reported no concerns regarding the child’s safety or well-being in the Mother’s care.
The Father stated that he had been involved with social workers through BB Families for two years and CC Families for 3 to 6 months prior to the past two months.
The Mother stated that the Father had informed her that the great paternal grandmother had requested a welfare check through FACS.
The Father stated that he and the Mother had a typical domestic violence split and clarified that there was dispute between them in the six months after separation.
The Mother stated that she and the Father have been verbally abusive towards each other.
The Father stated that he smoked marijuana previously, when he was living in Suburb V. He stated that he used in the afternoons, when he returned home from work and identified that he used to “relax” before bed. The Father stated that he last used marijuana about two and half years ago.
The Mother stated that her Mother and siblings had stayed at the Father’s home last year in order to spend time with the child and her Mother could smell marijuana in the backyard. The Mother stated that her Mother also told her that the Father’s fridge contained leftover food from the child’s birthday (two or three months prior) and no food.
The Father stated that he was prescribed a mood stabilising medication about 2 to 3 years ago. He stated that he was not diagnosed with any mental health condition and reported that the medication was prescribed “to put me to sleep sort of thing” to assist with withdrawals when he ceased using marijuana.
The Mother stated that she tries to communicate with the Father solely via text message, identifying that this is because “he says a lot of nasty things.” The Mother identified that this behaviour ceased since the proceedings commenced but stated that the Father has been “rude, verbally, to my face” since. She also stated that the Father sent her “a thousand messages” on one occasion that she was late to changeover.

The Father stated that the child receives support organised through CPA, Suburb B, and funded by the NDIS for orthopaedics, physio, speech and OT. He stated that the child attends up to 3 appointments per week. The Father identified that he struggles with keeping track of the child’s appointments and that his grandmother, Ms DD, assists him to take the child to appointments. He reported this was due to him not having a drivers licence.
The Father stated that he intends on enrolling the child to commence school in 2021 due to her additional needs. He stated that he has not discussed this with the Mother but that he “guarantees she’ll agree with me.”
The Mother stated that she was not too sure about the child’s health needs and identified that the Father has not provided her with the details of where the child attends for treatment/intervention in order for her to contact the services directly.
The family consultant stated that the child presented as having positive relationships with each parent and did not demonstrate a notable preference for one parent over the other. The family consultant stated that, however, the child did indicate a desire to see Ms DD (who had attended on the day with the Father) and this, combined with information provided by each of the parties’, may be indicative that Ms DD assumes a significant amount of care, potentially up to primary care, for the child.
The Family Report
The family report was prepared by family consultant Ms J and is dated 18 November 2019.
The Court does not propose to set out the entirety of the family report.
The parties’, the child and the Mother’s partner Mr H (born in 1992), were interviewed on 1 October 2019.
The Father stated to the family report writer that he was not currently in paid employment and receives a government parenting payment and disability allowance for the child. He stated that he is currently seeking paid employment and that he has been offered a position working 7 AM to 3 PM a couple of days each week.
The family report writer stated that there is about 95 km (one hour and 25 minutes driving time) between the parties’ residences.
The parties identified that the child spent no time with the Mother for a period of 6 to 9 months after the Father retained her in about September 2016.
The family report writer stated that information obtained under subpoena (CPA and EE Surgery) was indicative that, from early 2018, the great paternal grandmother, Ms DD, was providing a significant amount of care for the child.
The family report writer stated that it appeared, from information obtained under subpoena (FF preschool and CPA) that concerns were held in 2018 and in early 2019 regarding the child’s well-being in the Father’s care.
The family report writer stated that concerns were identified during the assessment that the Father has relied on external support in order to meet the child’s needs.
The Father confirmed that he has historically used marijuana as reported at the CIC; he reported no current drug use or alcohol misuse.
The Mother told the family report writer that her younger children attend all required appointments.
The Father identified that he does not have concerns regarding the child’s safety or well-being in the Mother’s care but said that he does not think that the child will get what she needs in therapeutic interventions if she lives primarily with the Mother. In this regard the Father referred to the Mother attending changeovers 10 to 15 minutes late and also reported his concern about how the Mother would manage the child’s appointments in which focus is 100% on the child when the Mother has two other children in her care.
The Mother reported that the Father had told her that Ms DD reminded the Father about his and the child’s appointments, took the child to all her appointments and cared for the child 2 to 3 times per week. The Mother stated that Ms DD was absolutely wonderful ensuring that the child’s additional needs were met.
The Father identified that he is currently accessing support through D Centre, who are providing him with a case worker to organise the child’s NDIS funding and are organising in-home care for the child. The Father stated that the in-home care for the child was in order for him to work and get out to his own appointments. The Father clarified that the in-home care would involve carers taking the child for a day, “a couple of days per week”, and could include overnight time. The family report writer stated that the Father’s account of the alternate care he intends on accessing for the child was suggestive of respite care. The Father identified that he envisages the child being in overnight care every now and then, just so that he can get out and do things. The Father stated that he is accessing support through L Housing, who have provided him with transitional housing and “help him out with a bit of food and that now and then”.
The Father stated that Ms DD had previously provided backup support with the child’s NDIS benefits. He stated that Ms DD provided care for the child, for example if he was attending a job interview, and was “just sort of a bit of a backup.” The Father referred again to accessing in-house care for the child and identified that he is seeking this, “so I’m not left on me own and missing out.”
The Mother stated that communication between herself and the Father is “all right”. However, she also stated that she does not get told about decisions regarding the child, providing the example that she would not have been aware of the Father’s intentions regarding the child’s schooling if this information had not been included in the Child Inclusive Conference Memorandum. She also indicated that communications between the parties’ at changeover are limited, saying hello, goodbye, and the Father telling the child to be good for the Mother.
The Father stated that the only time he and the Mother talk is at changeover and reported that “half the time, she doesn’t even reply to me.” He had treated the lack of communication to the Mother being very spiteful with everything and using any excuse she can to cause a drama with the Father, in order to have the child live primarily with her.
The Mother identified to the family report writer that she has had no involvement with the child’s treating therapists. She stated that she “can’t get much out of” the Father about who the child’s treating therapists are or the contact details. The Mother stated that, when she is asked, the Father tells her that he will bring them the next fortnight but does not provide these.
When the Father was asked by the family report writer what information he has provided to the Mother about the child’s additional needs, he stated, “honestly, she never asks”, and, “never shows any interest” in what the child is doing. He stated that the Mother had commented on the day of interview about the child wearing leg braces and said that he had informed the Mother weeks ago that the child needed them. However, the Father also said that he cannot see the point in sending the child’s leg braces when she spends time with the Mother because the child is “only there two days” and he is concerned about them going missing. When the Father was again asked what information he has provided to the Mother about the child’s additional needs, he stated that the Mother is aware that the child has cerebral palsy and brain damage. He went on to state that, “I’m not going to go create a conversation for the sake of it”, and that, “if it was me, I’d be asking every week”. The Father indicated that the Mother’s reported lack of interest in the child makes him concerned about the child living primarily with her and said that the Mother is more concerned about her other daughters.
The Father reported that the child attends at least one appointment of either Occupational Therapy, physiotherapy, or speech therapy each week; he identified that these are provided through the CPA. He said that he missed one or two of the child’s appointments in the last couple of months, identifying that this was due to transport issues. The Father went on to state that the majority of the child’s appointments are being conducted via home visit currently, “so I don’t miss them.”
The Mother indicated to the family report writer that she has attempted to discuss arrangements for the child’s education with the Father and he “shrugged me off” and tells her “I’ll start her when I start her”.
The Father reported that the child’s treating therapists do not think that the child will require additional support at school.
The Father stated that the child’s relationship with the Mother is good and that the child is excited to go see her.
The child identified to the family report writer, when asked, that she is three years old and said that her family consists of each of her parents, Mr H, and her siblings.
Under the heading Evaluation, the family report writer stated, inter alia, that the child presented during observation as having positive and established relationships with each parent. The family report writer stated that, as was consistent with the Child Inclusive Conference, the child did not demonstrate a notable preference for one parent over the other during observation.
The family report writer stated that the child will most benefit from living primarily with a carer who is able to consistently identify, prioritise, and meet her needs, including demonstrating an understanding of, and ability to meet, the child’s additional needs. She stated that each parent provided a similar account during interview of the child’s current needs, including additional needs.
The family report writer stated that during observation the parents each demonstrated an ability to engage with the child in a child focused manner, including an educative manner that is likely to support her development, including academic development. The parents each also demonstrated an ability to set and enforce appropriate boundaries with the child; however, the Mother did this more consistently and successfully. The child was observed to engage more consistently with the structured task, and sustained this engagement for longer periods with the Mother than she did with the Father; this appeared related to the parties’ respective parenting capacities.
The family report writer stated that while the Father raised concerns regarding the Mother’s ability to meet the child’s needs in addition to the needs of her younger children, there were no significant concerns identified during the assessment regarding the Mother’s parenting capacity.
It was recommended by the family report writer that the Father provide the Mother with details of the child’s treating therapists in order for the Mother to make enquiries regarding the child’s additional needs and recommended interventions.
The family report writer stated that there were significant concerns raised regarding the Father’s parenting capacity based on information he provided during the assessment and the CIC.
The family report writer stated that it appeared from the Father’s account that the great paternal grandmother assumed a significant role in caring for the child, including assuming responsibility for managing appointments relating to the child’s additional needs. The family report writer stated that the Father’s account to her was suggestive that he was currently relying on additional support, including respite care, to meet the child’s needs. She stated that the Father presented as minimising his reliance on alternate care for the child and the level to which he relinquished responsibility of the child’s care to the great paternal grandmother. Additionally, the Father’s motivation for seeking alternate care for the child appeared to be to meet his own needs rather than related to an unmet need of the child. If it was the case that the Father has been reliant on external support to meet the child’s needs, then that raised significant concerns regarding his parenting capacity and ability to prioritise the child’s needs above his own.
The family report writer stated that the Father also presented as having a limited understanding of the potential impact on the child of being cared for by a number of different carers, including the potential impact of him accessing respite care for the child. The family report writer stated that while the Father utilising alternate care may be necessary in order for the child’s needs to be met, this decreases the likelihood that the child will receive consistent, stable and routine care and that the child’s needs, including any additional needs, will be consistently met. This may be experienced as disruptive by the child and may contribute to the child experiencing a range of emotional and/or behavioural difficulties.
The family report writer stated that the Father not acknowledging his reliance on third parties’ to meet the child’s needs, and the little responsibility he assumed for incidents of concern regarding his parenting (for example, leaving the child, who was an infant, at-home unsupervised), decreases the likelihood that he will take action to address the identified concerns and improve his capacity to meet the child’s needs independent of additional support. It also increases the likelihood that the Father will fail to identify any adverse impact on the child relating to his parenting and use of alternate care.
The family report writer stated that given the identified concerns regarding the Father’s ability to meet the child’s needs, it was of significant concern that he has raised concerns that the child’s additional needs will be neglected if she lives primarily with the Mother. This raised concerns that he lacks insight into his own parenting deficits and/or that he is unable to differentiate his own negative views of the Mother from her ability to meet the child’s needs. This may have a detrimental impact on his willingness to facilitate the child spending time with the Mother and maintain a meaningful relationship with her.
The family report writer referred to the Father’s conviction in 2018 for possess prohibited drug in 2018, which appeared to be the illicit drug MDMA. The family report writer stated that parental substance use, inter alia, reduces the likelihood that a parent is able to identify a child’s needs and provide consistent sensitive and attuned care, and increases the risk of the child being exposed to physical abuse and neglect.
The family report writer stated that the Mother’s account of family violence reportedly perpetrated by the Father may be indicative of a coercive controlling family violence dynamic.
The family report writer stated that on the basis of information available to her assessment, and with specific regard to the parties’ assessed parenting capacities and ability to meet the child’s needs, it was recommended that the child live primarily with the Mother. This recommendation was also made with consideration of the Father’s apparently limited regard for the Mother as the child’s parent and the associated concern regarding his willingness to support the child to maintain a meaningful relationship with the Mother, including not providing the Mother with information that would support her being involved with therapeutic aspects of the child’s care.
The family report writer stated that given the parenting arrangements for the child since separation, it is possible that the child will experience a change in parenting arrangements such that she lives primarily with the Mother as disruptive; this may result in the child experiencing emotional and/or behavioural disturbance. However, the family report writer stated that given the identified concerns that the Father is not consistently providing care for the child, it is possible that there will be little adverse impact on the child of a change of parenting arrangements. She stated that it is possible that a change of parenting arrangements will provide stability, consistency and routine for the child, which is likely to be of assistance to her in adjusting to such a change. It was also likely that the child’s assessed relationship with the Mother, in addition to the Mother’s assessed parenting capacity, will be protective factors in assisting the child to adjust to living primarily with her.
The family report writer stated that the child being able to maintain a meaningful relationship with the Father is also likely to be a protective factor in assisting her to adjust to a change of parenting arrangements.
The family report writer stated that the distance between the parties’ households contraindicates a shared care arrangement or the child spending significant and substantial time with the Father. It would therefore be recommended that the child spend alternate weekends from Friday to Sunday with the Father. She stated that this time could increase to include half of each school holiday period, on a week about basis, during school holidays, if the Father is available to provide primary care to the child during these periods. She stated that in addition to providing the child with opportunities to maintain meaningful relationships with each parent, these arrangements were likely to reduce pressure on the Father’s assessed parenting deficits, thus resulting in him having a greater capacity to consistently meet the child’s needs.
The family report writer recommended that the parties enrol the child in a school local to her primary residence. She recommended that the child live primarily with the Mother on a final basis, and that the child spend time with the Father on alternative weekends and half school holidays as detailed previously.
The family report writer gave oral evidence. The Court does not propose to set out the entirety of her oral evidence.
The family report writer stated that the Father had not informed her that he had ADHD and dyslexia. This evidence was given:
And the fact that he has ADHD, is that – would that in any way impact upon the report which you’ve prepared? Without knowing specific information about the nature of the diagnosis, how it’s managed, whether or not it is managed and specific impact on his functioning, I wouldn’t know whether or not it may or may not impact on any assessment in the report.
In relation to the Father’s admission that he suffered from ADHD and had consumed marijuana in this context, the following evidence was given:
The Father, perhaps to use my terms, indicated he was using – self-medicating with marijuana to deal with his ADHD; are you able to comment on that? I’m not able to comment specifically, in terms of the impact of cannabis on the Father’s ADHD, and what impact that might have. I – generally, I would have concerns if a parent is using illicit substances to manage a mental health condition of that nature, particularly if other alternate, maybe less problematic options, are available to manage such a condition, and I would inquire – would query why a parent hadn’t sort alternates, such as attending upon their GP, accessing counselling, psychotherapy, those type of things, rather than relying on an illicit substance which can pose risk of harm to a child.
As to the child’s relationship with the Mother, this evidence was given:
When your interview took place, the Mother had been having alternate weekends for about a year? Yes.
And the evidence is that she had consistently used that time, and it’s the Father’s case that, basically, from Father’s Day 2016 until the Court orders, that the Mother had seen the child less than a handful of times. Did it surprise you, or can you comment on what appears to be a positive and established relationship with both, but the Mother has had such limited time, the Father has had primary care. Is that – cause you to ? It’s not unusual for a child to have a positive and established relationship with a primary and, in fact, and I would be expecting that. What is notable is the relatively limited amount of time that X had spent with her Mother and her age at the time – gaps in at time – had occurred, and that she had a positive relationship with her Mother. Based on my assessment, I would think that is related to the Mother’s parenting capacity and her ability to engage with X.

The family report writer stated that the child would not be disadvantaged if the NDIS file for the child remained at Suburb GG or was transferred to Suburb CC.
As to the child potentially living with the Mother and her stepsiblings this evidence was given:
Is there any benefit to the child, if she was to live primarily with the Mother, to have these two stepsiblings? Yes. Sibling relationships can be really beneficial to children. It can teach children basic social interactions, conflict resolution, those type of things that they might not be able to get with peers. They can have a shared experience which can be beneficial growing up. So, yes, those types of benefits, I would think – I wouldn’t think that there’s any negatives to X living with her siblings. There didn’t seem to be any difficulties in terms of sibling rivalries or anything like that that I would have concerns about.
The family report writer’s attention was drawn to the Minute of Orders sought by the ICL, Exhibit F. The family report writer stated that such Minute of Orders was largely consistent with her recommendations in the family report.
The family report writer was asked questions as to the Mother’s ability to care for three children including the child if the child was living with the Mother. She stated that she had seen no evidence that the Mother could not provide appropriate care for the child if the child was living with the Mother in these circumstances. She stated that it was relevant, in this context, that the Mother had satisfactorily raised two other daughters to date.
The Court accepts the evidence of the family report writer.
RELEVANT LEGAL PRINCIPLES
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. 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: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
The best interests of the children
Section 60CC considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents:a primary consideration
The child has a meaningful relationship with both parents and will benefit from a continuance of those relationships.
Should the child live with the Mother and spend time with the Father as proposed by the ICL, there is a significant prospect that the child’s meaningful relationship with the Father can be maintained.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court has a significant concern in relation to the child living in the Father’s primary care by reason of deficits in his parenting capacity for the child. The evidence of the family report writer is consistent with this concern.
It is likely, on the material before the Court, that the Father has unmanaged mental health issues and continues to consume illicit drugs and which are contributing to his inability to consistently and adequately care for and parent the child. The Court does not accept the Father’s evidence that he has ceased to ingest illicit drugs including cannabis.
As to unmanaged mental health, the Father stated in oral evidence that he has ADHD (Attention Deficit Hyperactivity Disorder) and, in this context, that he had previously used cannabis to calm him down. The Father had not disclosed to the family report writer that he has ADHD. There is no health professional material in relation to the Father’s diagnosis and/or treatment of ADHD.
The Court now refers to some examples of the Father’s parenting deficits.
The CPA (Cerebral Palsy Alliance) report of 21 May 2020 reported the Father’s poor quality of care for the child in terms of the Father’s failure to consistently organise the child’s attendances for therapy with CPA, in particular following the death of the great paternal grandmother.
The family report writer had stressed the importance of the child receiving consistent regular therapy from relevant treatment providers for her cerebral palsy. The Court has a significant concern as to the Father’s ability to facilitate such therapy occurring on a consistent and regular basis.
Further, on 8 May 2020 at 10:45 AM Police attended the Father’s residence and smelt cannabis. The Father admitted that at this time he was smoking cannabis, albeit in the backyard, and that the child was present at his residence at this time. In this context, the Court refers to the evidence of the family report writer relating to the risks posed to a child if a parent is affected by illicit drugs. The Father lacks insight as to his likely reduced parenting capacity for the child if he is adversely affected by illicit drugs.
Further, in February 2021, the Father was unable to have the child attend school on time on numerous occasions by reason of feeling drowsy in the morning. The Father had stated that he struggles in the morning. He stated that ingesting the medication Zoloft makes him very drowsy in the morning.
Further, the Father previously received substantial assistance from the great paternal grandmother in relation to the child attending upon therapists for her cerebral palsy. The great paternal grandmother passed away in 2019 and since that time the Father has received significant assistance from third parties’ (e.g. social workers) in relation to the completion of documentation in relation to the child and therapy for the child. As to assistance with documentation, the Father disclosed that he has dyslexia. There is no health professional or other material before the Court relating to his dyslexia.
The Court observes that whilst the Father admitted in his trial Affidavit that he has used marijuana in the past, his assertion that he had never used marijuana when he had the child in his care is incorrect.
The Court is of the view that there is a likelihood, if the child lives with the Mother, that the Mother will be able to ensure the child receives consistent regular therapy for her cerebral palsy. The Court is otherwise satisfied that the Mother is likely to be able to ensure that the child is adequately cared for by her should the child live in her primary care. In this latter regard, the Court observes, inter alia, that the Mother has cared for and reared her present two daughters adequately and positively cared for the child from the child’s birth to about April 2016. The evidence of the family report writer is consistent with these views.
The Court accepts the Mother’s evidence relating to the perpetration of family violence against her by the Father in the past. However, the Court is not persuaded that such violence constituted coercive and controlling family violence. For example, the Father’s behaviour post separation in relation to the Mother having to spend time with the child on the Region G and as closely prescribed and facilitated by the Father likely occurred by reason of his fear that the Mother would otherwise retain the child in her primary care. Further, for example, the Father’s failure to provide information in relation to the child’s cerebral palsy therapies in a timely fashion to the Mother, post separation, arose, inter alia, by reason of the Father’s mistaken view that the Mother was not interested in being provided with relevant information in relation to the child. The Court is of the view that such previous perpetration of family violence against the Mother by the Father is unlikely to be significantly repeated.
The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
216. The child is too young to express a relevant view.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussion above under the meaningful relationship primary consideration. The child enjoys positive relationships with her stepsiblings, the Mother’s partner, and the paternal great-grandfather, and members of the Father’s extended family.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The Father has taken such opportunities. The Mother has sought to take such opportunities however, post separation, the Father did not reliably nor in a timely fashion provide relevant information to the Mother in relation to the child’s cerebral palsy treatment, and nor did he involve the Mother in the selection of the child’s present primary school.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The Mother has maintained the child satisfactorily when spending time with the child.
As to the Father, the Court refers to its discussion above under the need to protect primary consideration. Otherwise, he has maintained the child satisfactorily when caring for the child.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
There should be no detrimental effect upon the child’s meaningful relationship with the Father should she now live with the Mother and spend time with the Father.
The child should be able to successfully transition from living with the Father to living with the Mother without experiencing significant emotional disquiet. The Court accepts the evidence of the Mother in this context and takes into account, inter alia, the Mother’s positive parenting capacity for the child and the child’s positive relationships with her stepsiblings. The Court refers to the evidence of the family report writer which is consistent with this view.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The Mother lives in the western suburbs of Sydney and the Father lives on the Region G. With the child living in the Mother’s primary care and now attending kindergarten, it is impractical for the child to either live in a shared care arrangement or spend substantial and significant time with the Father. Again, should the child live the Mother and spend time with the Father as proposed by the ICL there is a significant prospect that the child’s meaningful relationship with the Father can be maintained.
(f)The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
The Mother has such capacities. As to the Father, the Court refers to its discussion above under the need to protect primary consideration.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
The child has mild cerebral palsy and requires treatment.
As to the Father, the Court refers to its discussion above under the need to protect primary consideration.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
At birth, hospital staff informed the parties’ that the child was aboriginal by descent. The parties’ have not taken any specific steps in relation to this issue of aboriginality of the child. The Father stated that at the child’s present school, she was introduced to extracurricular activities relating to aboriginality.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Mother has demonstrated such responsibilities and attitudes towards the child in a satisfactory manner. The Court confirms that the Father failed to provide information in relation to the child’s cerebral palsy therapies in a timely fashion to the Mother, post separation.
As to the Father, the Court refers to its discussion above under the need to protect primary consideration.
(j) Any family violence involving the child or a member of the child's family
The Court refers to its discussion above under the need to protect primary consideration.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter
Not applicable.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The Court refers to its discussion above under the meaningful relationship primary consideration; the ICL’s proposed orders, in particular relating to the child living with the Mother and spending time with the Father, as opposed to the Father’s proposed orders in this regard, would be least likely to lead to the institution of further proceedings in relation to the child. In this context, the Court refers to its discussion above under the need to protect primary consideration.
m) Any other fact or circumstance that the Court thinks is relevant
Should the Court order that the child live with the Mother, the child should attend an appropriate school practically convenient to the Mother’s residence, and the child will presently need to be taken out of her current school at Suburb K and be enrolled and attend that new school. The Mother had proposed the S School Primary School at Suburb T at trial.
PARENTAL RESPONSIBILITY
By reason of past family violence perpetrated by the Father against the Mother, the presumption of equal shared parental responsibility is rebutted.
The Mother seeks an order for sole parental responsibility in relation to the child but only in respect of education and medical issues. The Father and ICL seek an order for sole parental responsibility in relation to the child.
If the Court was to make an order that the Mother have sole parental responsibility in relation to the child, albeit only relating to education and medical issues, that would entail the Mother having the sole entitlement to make major decisions affecting the child relating to education and medical issues without reference to the Father.
In Lansa & Clovelly [2010] FamCA 80, Murphy J discussed the statutory framework under the Act in relation to the issue of parental responsibility.
136. The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
137. Parental responsibility can, though, be altered by the making of a parenting order by the Court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
138. But, when a Court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
139. The statutory presumption just referred to is rebuttable in circumstances where the Court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the Court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).
140. No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a Court determines what is in a child’s best interests”. It is, then, again called into use in this context.
141. The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
142. Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
143. “Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future);
(b) the child’s religious and cultural upbringing; and
(c) the child’s health
(d) the child’s name;
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
144. Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
145. Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).

Again, the presumption of equal shared parental responsibility is rebutted: s 61DA(2)(b) of the Act. It is open to the Court to nevertheless determine, should it be in the best interests of the child, to order equal shared parental responsibility.
It is a very serious matter to exclude a parent from decision making in respect to major decisions affecting the child. In Lansa & Clovelly [2010] FamCA 80, Murphy J stated:
148. The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
149. If that is the meaning of the expression, then, in my view, a Court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U [2002] HCA 36; (2002) 211 CLR 238).
The Court recognises that the parties have not experienced regular and consistent positive communication in relation to the child for a significant period of time. The Court recognises that post separation the Mother has at times experienced fear of the Father. Nevertheless, the Mother gave evidence that should the child live with her, she could keep the Father up-to-date in relation to the child by sending him messages, and importantly, the Mother is desirous of the child maintaining her meaningful relationship with the Father because she sees the Father as being important in the child’s life. The Father, for his part, during the course of the final hearing, altered his proposal for parental responsibility in relation to the child: having originally sought an order for sole parental responsibility in relation to the child, he finally sought an order that the parties have equal shared parental responsibility in relation to the child.
The Court is of the view that there is a real prospect that the parties will be able to reach agreement in relation to major decisions affecting the child’s care, welfare and development, in a timely fashion and without significant conflict. To enhance such prospect, the parties should both enrol in, and complete, a post separation parenting group with a focus on improving parental communication and cooperation in reducing the likelihood that the child will be exposed to parental conflict; the Court refers to the evidence of the family report writer in this regard. And further, so as to enhance such prospect, the parties should communicate with each other by way of email in relation to the child only and only communicate through text messaging in the case of emergency relating to the child; such form of communication will minimise the risk of conflict between the parties.
The child should have the benefit of having each parent making a contribution into any major decisions affecting her. With the parties being subject to an Order for equal shared parental responsibility, such an Order may well assist in maintaining and enhancing the child’s relationship with the Father.
It will be in the best interests of the child that the parties have equal shared parental responsibility for her.
As to equal time, it will not be in the best interests of the child that he be subject to an equal time parenting regime, and in this regard the Court refers to its discussions above under the primary and additional considerations of s 60CC of the Act. No party ultimately sought such an Order. An equal time arrangement would not be practical by reason of the distance between the parties’ residences.
As to substantial and significant time, pursuant to the Court’s proposed time-with Orders, discussed above under the meaningful relationship primary consideration, the child will not spend time with the Father constituting substantial and significant time with him under s65DAA(3) of the Act because the Father will not be involved in getting the child ready for school. Such time would not be reasonably practicable if ordered by reason of the distance between the parties’ residences.
SUMMARY
Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Orders:
1.That the Mother and Father shall have equal shared parental responsibility for X, born in 2015 (“the child”).
2.That the child shall live with the Mother from 5.00pm on Friday 23 April 2021.
3.That the Mother and Father shall forthwith do all acts and things and sign all documents to:
(a)Transfer the child’s involvement with the Cerebral Palsy Alliance Centre in Suburb B to the Cerebral Palsy Alliance Centre in Suburb CC
(b)Enable the Mother to co-ordinate with D Centre and/or any other NDIS support co-ordinator in relation to the child’s current NDIA-managed NIDIS funding.
4.That the child shall spend time with the Father as follows, commencing Friday 7 May 2021:
(a)During school terms, each alternate weekend from the conclusion of school on Friday (or 3:00pm if a non-school day) until 5:00pm on Sunday.
(b)For half of the NSW school holidays as agreed and failing agreement, as follows:
(i)For the first half of the school holidays in years ending in an even number; and
(ii)For the second half of the school holidays in years ending in an odd number.
(c)From 2:00pm on 24 December until 2:00pm on 25 December in years ending in an even number.
(d)From 2:00pm on 25 December until 2:00pm Boxing Day in years ending in an odd number.
(e)From 9:00am until 5:00pm on Father’s Day.
(f)At other times as agreed between the Mother and Father from time to time.
5.That the child’s time with the Father pursuant to these Orders, shall be suspended at the following times when the child shall live with the Mother:
(a)From 2:00pm on 24 December until 2:00pm on 25 December in years ending in an odd number.
(b)From 2:00pm on 25 December until 2:00pm Boxing Day in years ending in an even number.
(c)From 9:00am until 5:00pm on Mother’s Day.
(d)At other times as agreed between the Mother and Father from time to time.
6.That the Mother and Father shall each have liberal and flexible telephone communication with the child such that:
(a)The Father shall telephone the child when she is living with the Mother on a number provided by the Mother;
(b)The Mother shall telephone the child when she is spending time with the Father on a number provided by the Father; and
(c)The Mother and Father shall encourage and facilitate the children communicating with the other parent pursuant to the provisions of these Orders.
7.That to facilitate the child communicating with the other parent:
(a)Each parent acknowledges that the child is at liberty to telephone the other parent at any time that does not interfere with the activities and events in each parent’s household;
(b)Each parent shall provide the child with access to a telephone and such assistance as the child may require to communicate with the other parent; and
(c)Communication with the other parent may include telephone, text message, skype, face time, and similar software and technology from time to time.
8.That unless otherwise specified in these Orders or agreed between the Mother and Father from time to time, the parties shall meet at the Suburb E McDonalds for changeover.
9.That unless otherwise specified in these Orders for the purpose of calculating the school holiday periods the Mother and Father agree that:
(a)All school holidays shall be deemed to commence at the conclusion of school on the last day of the school term for NSW students;
(b)All school holiday periods shall be deemed to conclude at the commencement of the first day of the new school term for NSW students;
(c)For the purposes of calculating half of the school holidays, the Mother and Father will count the number of nights from the night of the commencement of the school holidays (as stipulated in Order 9.1) to the last night of the school holidays (as stipulated in Order 9.2). In the event that there are an uneven amount of nights in the school holiday period, then the parent spending the first half of the school holiday period with the child shall spend the additional night with the child for that school holiday period; and
(d)Changeover during the school holidays, unless otherwise provided for in these Orders, shall be at 5:00pm.
10.That the Mother and Father shall keep each other advised of their contact telephone numbers and shall advise the other parent within twenty-four (24) hours of any change to their contact telephone number/s.
11.That the Mother and Father shall keep the other advised of their residential address and provide each other with no less than twenty-one (21) days’ notice in writing of any intention to change address.
12.That the Mother and Father do all things necessary to authorise the child’s school to provide to the other parent, on a regular basis, copies of all school reports, school newsletters and other information regarding the child’s school activities.
13.That the Mother and Father be entitled to attend all school functions, sports carnivals and other school events in which parents are invited to attend.
14.That the Mother and Father be entitled to obtain directly from any school attended by the child or any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose the Mother and Father shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
15.That the Mother and Father immediately notify the other parent of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the child when the child is in their care. That together with such notice the parent is to provide the name of the hospital, treating medical practitioner and/or medical facility that provided medical treatment for the child. That the Mother and Father do all things necessary to authorise the child’s school to provide to the other parent on a regular basis copies of all school reports, school newsletters and other information regarding the child’s school activities.
16.That the Mother and Father be restrained from speaking or permitting any other person to speak to or about the other parent or members of their family in a negative, offensive or unpleasant fashion in the child’s presence or hearing.
17.That the Mother and Father be restrained from speaking or permitting any other person to speak about these proceedings in the child’s presence or hearing.
18.That the Father be restrained by injunction from using illicit substances within forty-eight (48) hours prior to and during his time with the child.
19.The parties shall communicate with each other by email and only in relation to the child or issues affecting the child. They shall only communicate with each other by text message in the case of emergency relating to the child.
20.The parties shall forthwith take all necessary steps to enrol in, and complete, a post separation parenting group with a focus on improving parental communication and cooperation. (F Counselling may be of assistance to the parties in identifying a suitable course.

I certify that the preceding two hundred and forty-five (245) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.
Associate:
Dated: 22 April 2021

[2021] FCCA 802

22 April 2021

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

File number(s):	PAC 4822 of 2018
Judgment of:	JUDGE NEWBRUN
Date of judgment:	22 April 2021
Catchwords:	FAMILY LAW - Parenting - best interests of children - orders made
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D
Cases cited:	Lansa & Clovelly [2010] FamCA 80
Number of paragraphs:	245
Date of last submission/s:	18 March 2021
Date of hearing:	17 and 18 March 2021
Place:	Parramatta
Counsel for the Applicant:	Ms Katie
Counsel for the Respondent:	Ms Freelander
Counsel for the Independent Children's Lawyer:	Mr Cook

ORDER MADE BY:	JUDGE NEWBRUN
DATE OF ORDER:	22 APRIL 2021