Maitland and Maitland (No. 2)

[2007] FamCA 1635

FAMILY COURT OF AUSTRALIA

MAITLAND & MAITLAND (NO. 2) [2007] FamCA 1635

FAMILY LAW – CHILDREN – SHARED PARENTING – Second hearing pursuant to Division 12A and Less Adversarial Procedures – Strong allegations of alcoholism and possible violence alleged by husband, but denied by wife – Orders entered into of a protective nature to address those issues

Family Law Act 1975 (Cth)

Goode & Goode (2006) FamCA 1346
Cowling & Cowling (1998) FLC 92-801

APPLICANT: Mr Maitland

RESPONDENT: Ms Maitland

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 421 of 2006

DATE DELIVERED: 3 December 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 3 December 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Zemljak

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Tolhurst Druce & Emmerson

Orders

1. That until further Order all Orders in relation to the time spent/contact between the child … born … June 1998 and the Wife be suspended.

   
   
   

2. That until further Order the Wife spend time with the said child as follows:

   a)each alternate Saturday from 10am until 5pm commencing 8 December 2007;

   b)         from 3pm until 8pm on 25 December 2007;

   c)         from 10am until 5pm on 13  January 2008.

3. That all changeovers occur outside the N Police Station.

4. That all time be conditional upon the Wife:

   a)undertaking alcohol breath tests at the commencement and conclusion of time in the presence of the Husband and the officer on duty at N Police Station;

   b)such alcohol breath test analysis showing a reading not greater than 0.01% BAC (being an allowance of 0.00% BAC plus a possible error reading) at the commencement of time.

5. That the Wife forthwith make arrangements with the Officer in Charge of N Police Station to conduct the ongoing alcohol breath tests pursuant to this Order using the Police equipment and failing such agreement shall forthwith purchase an AL 6000 breath test analysis machine for the purpose of undertaking the tests in 4a) herein.

6. That in the event an alcohol breath test analysis at the conclusion of time shows a reading greater than 0.01% BAC then Order 2 shall be suspended until further Order, with liberty to the Wife to apply with Affidavit material explaining such reading.

7. That until further Order, the Wife be and is hereby restrained from leaving the said child unattended with Mr B.

8. That the Parties and child attend upon a Family Consultant as directed for the purpose of the preparation of a Family Report and the Wife is directed to request Mr B to participate in such report AND the Husband is requested to have Ms M participate in the report.

9. That the ICL have leave to issue subpoena as follows:

   a)         Dr G, … Medical Centre;

   b)         … Medical, at A;

   c)         Victoria Police in relation to:

   i)         The Husband and Wife

   ii)        Mr B date of birth …/9/72

   iii)       Ms M date of birth …/3/62

   iv)        Ms W

   d)         P School

   e)         D Hospital

   f)         L Hospital

10. That the Husband and Wife forthwith complete the usual VLA questionnaire to be provided by and returned to the ICL.

11. That the Family Consultant preparing the Family Report be at liberty to inspect all documents and records produced pursuant to Order 9.

12. That the Husband and Wife file and serve prior to 4pm on 25 January 2008:

    a)an Affidavit sworn by them setting out their evidence on all issues in this proceeding;

    b)         an Affidavit from any witness upon which they intend to rely.

13. That all extant applications be otherwise adjourned for Hearing before the Honourable Justice Guest on 6 March 2008 at 10am.

14. That pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact sheet attached hereto and these particulars are included in these orders.

AND THE COURT NOTES

A.The Wife has been advised that any failure to involve Mr B in the Family Report or failure to file an Affidavit sworn by him may result in a permanent Order restraining the child from being brought into contact with him.

B.The Parties should provide a copy of any documentary evidence upon which they intend to rely to the other party and ICL prior to 4pm on 25 January 2008.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 421 of 2006

MR MAITLAND  

Applicant

And

MS MAITLAND  

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The proceedings before me arise following orders made by Bennett J on 29 October 2007 and in the words of Dylan Thomas, to “begin at the beginning,” first commenced by way of a Form 1 Application for Final Orders filed by the wife on 16 May 2006.  At that time the wife was represented by legal practitioners.  She sought orders that both she and the husband remain jointly responsible for making decisions regarding the long-term care, welfare and development of their son, who was born in June 1998 and that the child reside with each of them on a weekabout basis.  Her application was supported by an affidavit which recited the history of the matter.

2. By way of short background, the wife was born in January 1965 and the husband was born in December 1960.  She deposed that they commenced a de facto relationship in June 1985 and married in November 1985.  Following unhappy differences between them, they separated in October 2005.  There were three children born of their union; namely, H, born in December 1986, E who was born in July 1988 and the child, the subject of these proceedings who, as I said, was born in June 1998.

3. The husband caused to be filed a Response to the proceedings on 10 August 2006.  By that document, he too sought an order that both he and the wife share parental responsibility for all major, long-term decision-making in relation to the child.  He sought an order that the child live with him and that otherwise the child spend time with his mother each alternate weekend from 10 am to 6 pm on Saturday and 10 am to 6 pm on Sunday and each Wednesday from 5 pm until 8 pm.  He sought further orders that either H or E be present during any period that the child is being cared for by his mother and that she be restrained from consuming alcohol 12 hours prior to and during the period in which the child was in her care. 

4. The husband caused to be filed an affidavit on 10 August 2007 in which, at a time when he too was represented by a legal practitioner, he set out in full and admissible form details concerning the background explaining how the matter came before the court.  He dealt with the time that the wife had, since separation, spent with the child and mainly addressed the issue of her alcohol intake. 

5. In considering the best interests of the child, the husband deposed:

   “23.I am very concerned about the wife's drinking problem and the fact that [the child] has disclosed to me on a number of occasions when he has returned from her home that the wife has been drinking while he is in her care.  [The child] has been present on many of the occasions that the wife has had one of her drunken outbursts and I believe that he has been adversely affected by such exposure.  The wife's drinking is a problem for [the child] who now often tells me that he does not want to spend time with the mother at all despite my encouragement.  In my view the wife must properly address her alcoholism and demonstrate a commitment to providing a secure environment for [the child] before any increase in time is considered.

   24.I appreciate that it is in [the child]'s best interests to enjoy a close and meaningful relationship with his mother and I encourage [the child] in this regard.  However, the wife must work towards repairing her relationship with [the child] and appreciate that it will take [the child] some time to re-establish his trust in the wife.  In the interim, I believe that both parents need to appreciate and respect [the child]'s feelings.”

6. Thus it was that the husband addressed the issue of the wife's alleged drinking problem and otherwise matters concerning what I could perhaps broadly describe as “inconsistent caring” on her part for the child.  The matter lay dormant then for some time with both practitioners having filed Notices of Ceasing to Act for the parties.  It re-emerged pursuant to the Less Adversarial Trial procedures and came before me on 3 August 2007.  On that day, Mr Arnold of counsel appeared for the Independent Children's Lawyer and both the husband and the wife appeared in person. 

7. The parties were able to negotiate an agreement and it was ordered by consent (in summary) that certain orders made on 17 August 2006 be suspended and that until further order, the child spend time with his mother on specified days, being a Saturday from 10 am until 5 pm (the last one being 7 October 2007) and on weekends commencing 21 October 2007 through to 16 December 2007 from 10 am Saturday until 5 pm Sunday.  Thus it is plain that as at 3 August 2007, it was the view of the husband that it was appropriate for the child to spend overnight time with his mother.  It was further ordered, given the exigencies of the circumstances then existing, that all changeovers occur outside the N police station. 

8. Significantly, however, it was further ordered by consent that the time the child is to spend with his mother be conditional upon her undertaking an alcohol breath-test analysis in the presence of the husband and the officer on duty at the N police station and that such alcohol breath-test analysis display a reading not greater than 0.01 per cent BAC, being an allowance of 0.00 per cent BAC reading plus a possible error reading.  Further, that her contact be conditional upon the wife advising the husband by 5 pm the Friday prior to the contact of the address for overnight time pursuant to paragraph 2(b) of those orders.  She was to do that by email.  The wife was to purchase an AL6000 breath-test analysis machine for the purpose of undertaking the tests.  Otherwise, the applications were adjourned for mention only before me this day. 

9. Things fell apart thereafter with the husband causing to be filed an Application for Contravention.  He complained that the wife did not comply with purchasing an AL6000 breath-test analysis machine and refused to participate in breath-test analysis during changeover "at end of access visits".  That application was supported by a short affidavit also filed on 10 October 2007 in which the husband requested an urgent hearing regarding the orders that were made by me on 3 August 2007 as he had concerns for the child's safety and wellbeing during "access visits" due to the "mental health status" of the wife.

10. The husband deposed to the fact that he wished to report breaches of the current orders and expressed a belief that the wife continued to suffer with a “chronic alcohol/binge-drinking problem”.  He said that he had serious concerns regarding her mental health status and her ability to provide the child with a safe and secure environment during "access", in particular on overnight periods. 

11. The husband further deposed that on 25 August 2007 he received a text message from the wife stating she would be unable to collect the child for contact commencing 26 August 2007 as "she was going away".  He said the content of the message “suggested” that she was depressed and made reference to her "being suicidal".  He further deposed that his daughters also contacted him and advised that they too had received a similar text message from their mother.  The husband went on to depose that it suggested she was "suicidal and possibly under the influence of drugs/alcohol".  He also deposed, (in relation to certain inadmissible evidence) that his daughter, E, attended the mother's address and was “distressed and concerned”.  It is of course noteworthy that there is no affidavit from that child.

12. The husband said that the “wife's housemate” answered the door and that the mother was observed in the bedroom and appeared to be under the influence of drugs/alcohol.  Emergency Services OOO were telephoned, the police and ambulance attended and the wife was taken to the D Hospital.  She was admitted overnight.  The husband said, and I receive this evidence as being admissible in an interlocutory hearing:

    “To my understanding, [the wife] had ingested a large quantity of tablets and combined this with a large volume of alcohol.” 

13. The issue is then one of service.  There is no affidavit of service on the file but in the course of his submissions this morning, the husband produced what appears to be an Affidavit of Service, which he should have filed.  I have regard to the contents of that document and I make it clear that this is a document that should be filed and served in proper form.  He filed an affidavit by a Mr K who attempted to serve the Contravention Application and the husband's affidavit in support, both of which I have said were filed on 10 October 2007. 

14. Mr K deposed that he was unable to effect service on 24 October 2007.  He attended the wife's home.  There was no response to his knocking on the door.  He sighted a Ford Falcon EA, registered number …, and a Ford Laser, registered …, parked in front of the premises.  He returned again that day at 6.15 pm.  A “female occupant” answered the door and confirmed that the wife lived there, but was not in attendance.  He deposed that he later contacted the wife on a mobile number, “[…]”, and spoke to her.  The wife advised that she would not be going home and refused to make arrangements to meet or accept service of the documents.  The process server deposed:

    “I made her aware of the hearing date and time and advised her that if she wanted to accept service of the documents, to contact me as I would meet her.”

15. In the course of her submissions this morning, the wife agreed that she lived at the stated address and that those two vehicles would have been in the driveway as alleged.  She said that she had a flatmate who lived at the home and her name was, as I recall it, “[Ms W]”.  Strangely enough, she made it clear from the Bar table in the course of her submissions, which is of course part of her evidence pursuant to the Less Adversarial Trial procedures, that Ms W did not mention anything at all; not one scintilla of the fact that service of documents had been attempted upon her at that address.  That on the face of it seems a little strange and defies what I would regard as normal human behaviour.  However, by way of explanation, the wife said that Ms W was a "strange person" and sought to rely upon that as a remedial explanation.  That may well transpire to be correct and may be the subject of further evidence in this court.  I will await and see.

16. The wife did agree that the mobile telephone number as stated was her own.  She agreed she spoke to a Process Server and further agreed that he informed her of the hearing date and of the proceedings.  The return date of that application was 25 October 2007, on which date it was adjourned to 29 October 2007 for hearing before Bennett J.  What is significant is that the wife claims that she was not aware of the adjourned date, and that may well transpire to be correct.  I have read the judgment of Bennett J of 29 October 2007 which is on the court file.  Her Honour refers to the fact that she had the wife called outside the court and there was no response to the call.  That now is quite explicable in light of what the wife had to say.

17. In the course of her judgment, Bennett J referred to the fact that she had not dealt with the father's application to have the mother psychologically or psychiatrically assessed and further, that the husband agreed to a dismissal of his application but without prejudice to subsequently seek such an assessment before me.  No such further application was made.  Her Honour then addressed the issue of what may occur in the event that the wife did not appear before me this day.  However, that is now of little consequence in that she is before the court and has made submissions. 

18. Following orders made by her Honour, the husband caused to be filed an Amended Response.  He seeks orders which I summarise as follows:  Firstly, that all previous parenting orders in relation to the child be discharged; secondly, that he have sole parental responsibility for making decisions concerning the long-term care, welfare and development of the child; thirdly, that the child live with him; fourthly, that he have the sole responsibility for making decisions about the day‑to‑day care, welfare and development of the child; and finally, that the child spend time with his mother for two hours each fortnight at Relationships Australia's Children's Contact Centre at N and share the costs of the contact centre, with such contact being supervised.  The orders sought were quite severe and radically changed from that to which he consented earlier when before me on 3 August 2007. 

19. In support of the application before Bennett J on 29 October 2007, the husband filed a short further affidavit in which he simply referred to the previous affidavit filed on 10 October 2007 and supplemented it by deposing that the wife's current residence “remained unstable”.  He said that the wife contacted him via text message on approximately 20 September 2007, asking if she could "reside with myself as she had no other options".  He deposed that he was fearful "due to her erratic behaviour and instability in her lifestyle” that the child would be placed at risk if visits were unsupervised.  That was the extent of the affidavit material to be relied upon by the husband.  It is not lost on me that it was always well‑ordained as far back as 3 August 2007 that the matter would be before me for mention only.  There has been ample time in which any persuasive material could have been provided.

20. I now deal with the submissions this day.  Mr Arnold continued to appear for the Independent Children's Lawyer and informed me that the child was "desperate" to see his mother.  It was the preliminary submission of Mr Arnold that orders should be made reverting to those that were made by consent on 3 August 2007, save that there should be included an order that the wife undertake an alcohol breath-test analysis at the “conclusion” of the contact.

21. The husband submitted from the bar table, and which I remind the parties, is part of the evidence, that it was his understanding that the wife was obliged to undertake an alcohol breath-test analysis at both the commencement and the conclusion of contact.  That is not so.  Whilst it may have been his own understanding, a clear reading of the court orders reveals that the breath analysis is to be undertaken only at “the commencement” of the contact period, and that contact would be conditional upon the analysis reading less than 0.01 per cent BAC. 

22. I explained that to the husband who appeared to me to unreservedly accept that as a fact from a plain reading of the orders.  Thus it was that an issue to be addressed by Mr Arnold was to consider any further orders to be made this day to include a breath-analysis test at the “conclusion” of the period of contact. 

23. I next heard submissions from the husband who raised, and for the first time from the Bar table, there being nothing in affidavit form prior to what he had to say, that the wife's relationship with a Mr B was "shaky".  He said, and again this is part of his evidence, that Mr B held a Stanley knife to the throat of the wife.  He said that he has received text messages of threatened violence, and that there were four Apprehended Violence Orders currently made against Mr B.  He made it clear that he agreed the wife should spend time with the child, but not in the presence of Mr B.  He referred to the fact that Mr B had threatened him and submitted that there should be a check on whether or not Mr B had a police record.  He addressed me generally as to what he understood to be Mr B's relationship with his children of an earlier union. 

1. I heard submissions from the wife.  She denied that her relationship with Mr B was "shaky".  The impression that I received was that there was nothing wrong at all and that her relationship with Mr B was quite sound.  She informed me later in the day, after the matter had been stood down and resumed, that she commenced her relationship with him earlier in 2007.  The wife denied that Mr B had ever held a Stanley knife to her throat. 

2. On the issue of the text messages, the wife was unsure of what the husband was in fact asserting, which was clarified by the husband who said that he had such a text available.  As matters now stand, I have not seen that text message and I rather suspect that upon examination it will transpire to have some factual base to it.  However, apart from that one text message, the impression I gained from the wife's evidence was that there were no other such messages, and certainly not a flurry of them.

3. With reference to the alleged four Apprehended Violence Orders, the wife sought to persuade me that there was “nothing in it”.  Upon a series of inquiries by way of clarification she said that they were brought “by a woman in a previous relationship”.  She said there were no court proceedings "at the moment" and that there were "no police records".  She said that "what is there is because he did not contest them".  I am left a little uncertain as to what the reality is of these Apprehended Violence Orders and it appears to me that all will be revealed in the fullness of time, and I say nothing more than to record my recollection of the evidence given thus far. 

4. The wife, however, made it clear that she was prepared to accept the position where she undertakes a breath-test analysis at the conclusion of contact.  She made it clear that she has been breathalysed at the N police station pursuant to the terms of my order of 3 August 2007 and that at all times her readings had proven to be negative. 

5. The wife made it clear that she did not consume alcohol during the time the child spent with her.  She said that when the child had contact with her Mr B had been present.  She made it clear to me that her relationship with Mr B was a “very stable one”, that they were "engaged" and that they proposed to marry after she had obtained a divorce. 

6. The matter was stood down to enable the parties to discuss the issue with Mr Arnold, as counsel for Independent Children's Lawyer, to see whether or not some resolution could be achieved.  In the result, Mr Arnold produced a document which I marked as Exhibit “ICL1”, being a Minute of Orders proposed by the Independent Children's Lawyer.  There has since been a modest amendment to those orders.

7. In relation to those Minutes, it is the proposal of Mr Arnold that until further order, all orders in relation to the time spent between the child and his mother be suspended and that she otherwise spend time with him each alternate Saturday from 10 am until 5 pm commencing 8 December 2007 and from 3 pm until 8 pm on 25 December 2007, being Christmas Day, and from 10 am until 5 pm on … January 2008.  That, as I recall it, was the wife's birthday.  Mr Arnold further proposed that all changeovers occur outside the N police station and that the time to be spent with the child be conditional upon the wife undertaking alcohol breath tests at both the commencement and conclusion of contact in the presence of the husband and an officer on duty at the N police station.  Further, that such alcohol breath-test analysis showing a reading not greater than 0.01 BAC be benchmarked. 

8. It was further proposed by Mr Arnold that the wife forthwith make arrangements with the officer in charge of the N police station to conduct the ongoing alcohol breath test pursuant to the proposed orders, using the police equipment, and, failing such an agreement, forthwith purchase an AL6000 breath-test analysis machine for the purpose of undertaking the tests pursuant to the proposed orders.  Mr Arnold further proposed that in the event an alcohol breath-test analysis at the conclusion of the time displayed a reading greater than 0.01 per cent BAC, contact shall be suspended until further order with liberty to the wife to apply with affidavit material explaining such a reading.

9. Importantly too is a further order that, until further order, the wife be restrained from leaving the child unattended with Mr B.  Further orders were made concerning presentation to a Family Consultant as directed for the purpose of the preparation of a family report and the wife was directed to request Mr B to participate in the report.  Further, the husband is to have his partner, Ms M, participate in the report.  Leave was sought to issue a number of subpoenas to various persons and institutions, including a Dr G of the … Medical Centre, and to the Victoria Police in relation to any records of the husband, the wife, Mr B, Ms M and Ms W.  Further, leave was granted to subpoena and produce documents relating to the P School, the D Hospital and the L Hospital.

10. It was further proposed that the husband and the wife forthwith complete the usual VLA questionnaire to be provided by and returned to the Independent Children's Lawyer.  Other facilitating orders were made, including orders for the filing and serving of any further Amended Applications, Responses and affidavit material by or on behalf of the parties.  Important notations were made to the proposed orders, in summary, that the wife had been advised that any failure to involve Mr B in the Family Report or failure to file an affidavit sworn by him "may result in a permanent order restraining the child from being brought into contact with him".  A further notation was made that the parties provide copies of any documentary evidence upon which they intended to rely.

11. Those orders struck me as being quite thorough and reflected a change in view, and a careful one, I may suggest by Mr Arnold following his initial submission that there be a return to the orders made on 3 August 2007.  What the Independent Children's Lawyer had in mind with the preparation of Exhibit “ICL1” was to address the protective concerns raised in the bald narrative form in which they were by the husband pending the final hearing. 

12. The matter returned to me late in the morning and it was submitted by Mr Arnold that it was the view of the Independent Children's Lawyer that the proposed orders in Exhibit “ICL1” fell within the necessary "safety concerns" that the Independent Children's Lawyer had and were recommended by him.  The husband was quite adamant that he was most unhappy with the orders.  He sought to persuade me, by reflecting upon history, that the wife had disregarded the previous orders that I made by consent on 3 August 2007. 

13. The husband strongly objected to the child having any contact with Mr B.  In submissions following my inquiry as to whether or not any affidavit earlier filed and served as recently as October 2007 raised any suggestion of a concern about Mr B, the husband agreed that the affidavits did not, but made it clear that he had no objection to the child spending time with the mother.  It was, as he said, a question of Mr B being present, plus his assertion that the wife never "follows the orders" that have been earlier made. 

14. He referred me to paragraph 7 of Exhibit “ICL1” in the course of debate when I raised with him that it should alleviate any concern he may have.  Paragraph 7 of the orders read:

    That until further order, the wife be and is hereby restrained from leaving the said child unattended with Mr [B].

15. His immediate response to that was that such an order gave Mr B "the perfect opportunity to assault” the wife.  He then lodged some complaints, and this is not a criticism of the husband but simply a recording of that which he put to me, that the Independent Children's Lawyer had not followed up on his concerns about Mr B.  However, it is a little difficult for me to understand how that comes about unless there had been some private correspondence or inquiry by the husband with the Independent Children's Lawyer.  I only act upon the material before me, that being the affidavit evidence and the assertions made from the Bar table which, as I have said, are part of the evidence of the parties. 

16. The husband said that he has had a "run-in" with Mr B, being set upon with "an iron bar", finishing that submission by cynically describing Mr B as "a very charming person".  He made it clear to me that the basis of his submission was that the child should be supervised when with the wife and “protected”.  He complained that the wife had not contributed to the support of the child except by a marginal payment of $20 per calendar month from a Government Benefit provided to her when she was unemployed. 

17. When I inquired from the husband how long Mr B had been on the scene, he said "six to seven months" and made it clear that it was certainly prior to my orders of 3 August 2007.  He then said that the violence had come to light only after the previous court orders.  He submitted the obvious, namely, that the child's interest was the paramount consideration and repeated again that the child “needed to be protected”. 

18. The wife submitted that she was “very unhappy” with having to settle for "a few measly hours", but in the result said that she was prepared to continue with that regime until the matter is heard and disposed of and until the husband can "prove otherwise".  She said that the child was last at her home with Mr B in October 2007 and made it clear that Mr B and she had been in a relationship from "early this year".  The wife also submitted, as a fundamental basis, that the husband had not suggested any apprehension of domestic violence until this day.  There is some merit in that. 

19. In conclusion, it appears to me that the issues in dispute between the parties, seen through their respective evidence thus far, but not yet tested by cross‑examination, is quite stark.  I have regard to the husband's affidavit evidence filed in support of the orders made by me by consent on 3 August 2007 and at which time there was no mention of Mr B.  Notwithstanding that, on the wife's version of events their relationship commenced in early 2007.  Following the making of those orders, the husband filed two more affidavits.  There was not one scintilla of a complaint concerning Mr B, albeit the husband has made a number of broad assertions about his conduct which cause concern.  I take into account the husband's evidence that the issue of violence only came to light following the orders of 3 August 2007.  I am unsure as to how recent that was, save to say that he raised a number of matters in his affidavit of October 2007 but no mention, as I said, of anything relating to a concern with Mr B. 

20. It is to these matters Mr Arnold has turned his attention together with the Independent Children's Lawyer in preparing the amended Exhibit, “ICL1”.  There are some aspects relating to those proposals which address the concerns; namely, that the time spent with the child by the wife is not overnight and is quite modest in duration.  Secondly, it provides that the wife will not leave the child unattended in the presence of Mr B.  That is, she is to supervise the time that they are together. 

21. The husband's response to that, namely, that Mr B may assault the wife in the child's presence, is conceptual.  Should there be any indication of violence, it would be quickly relayed, I would suspect, by the child to his father and in my view, and I make this perfectly clear, it would be incumbent upon the wife not to sweep any such incident under the carpet and fail to disclose it.  Thirdly, I accept the submission of Mr Arnold that the child "desperately" wants to see his mother and spend time with her.  It is my expectation that the wife will comply to the letter with the times she is to spend with the child, for any breach or failure to do so would weigh heavily against her at the next hearing in March 2008. 

22. This is a balancing exercise on my part, and in addition to those aspects already considered by me, I regard it as significant that the husband has not endorsed his assertions in affidavit form, albeit he has filed affidavits in October 2007 without mention of Mr B.  I regard the proposals advanced by the Independent Children's Lawyer as addressing the protective concerns, and I make it clear that should there be any breach of these orders or any instance that may regenerate concern, it should be brought back to me as an urgent listing. 

23. I have given leave to the Independent Children's Lawyer to file and serve a number of subpoenas which may unravel issues for my determination.  Should anything arise that may concern the Independent Children's Lawyer, an application can be made for a re-listing before me as a matter of urgency.  The orders also address the allegations concerning the wife's alleged alcohol intake.  It may be wise for her, as a litigant in person, to consider filing affidavit material from an expert witness concerning this issue which is, on the face of it, of real concern, but protected by the breathalyser tests both at the commencement and cessation of contact to which she has consented.

24. Mr B, who is a significant witness, will be obliged to file an affidavit setting out his role in the child's life, their relationship, and to address the allegations raised by the husband that he is a man steeped in violence and beset with unbridled anger, manifested by his conduct as seen through various Apprehended Violence Orders made against him.  They are to be proven and, as matters presently stand, are allegations made from the Bar table, notwithstanding an opportunity to address them with particularity in affidavit form. 

25. I have regard to what the Full Court had to say in Goode & Goode (2006) FLC 93-286 and the reasoning in Cowling & Cowling (1998) FLC 92-801, and particularly the principle that the best interests of the child are met by stability, when the child is considered to be living in well-settled circumstances. This must now be considered in the light of the changes to the Act, particularly changes to the objects (section 60B of the Act), the inclusion of the presumption of equal shared parental responsibility (section 61DA) and the necessity, if the presumption is not rebutted, to consider the outcome of equal time and substantial and significant time.

26. In Goode's case the Full Court recognised a legislative intent evinced in favour of substantial involvement of both parents in their children's lives both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence, and provided it is in their interest and reasonably practicable.  This means, where there is a status quo or a well-settled environment, instead of simply preserving it, unless there are protective or other significant best-interest concerns for the child, I must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child. 

27. It seems to me that this has been sensitively addressed by the Independent Children's Lawyer who in a preliminary submission was of the view that the orders made by consent, which included overnight contact without a mention of Mr B, be reverted to and continue.  It was, however, after having heard the submissions of both the husband and the wife and having had time to reflect upon it that further proposals have been advanced by the Independent Children's Lawyer through Mr Arnold which properly, in my view, address the concerns that have been raised from the Bar table. 

28. It is clear that it is a far cry from “substantial time”.  However, the protection of a child from any possibility of harm or violence is extremely important and paramount in a case such as this.  In my view, having regard to all that I have said, this issue has been carefully addressed by the Independent Children's Lawyer.  Further, I have made it clear:  should there be the slightest incident of any dissension or any kind that may impact upon the welfare of the boy arising from any disharmony in the relationship between the wife and Mr B, it should return to me as a matter of priority.

29. The wife has made it clear to me, and this is her evidence, that her relationship with Mr B is far from shaky.  The impression I drew from her submissions, is that they enjoy a united relationship in that they are now engaged and propose to marry when free to do so.  It strikes me that the orders proposed achieve the ends that I am obliged to meet.  In the circumstances, I propose to make orders in the terms of Exhibit “ICL1” and I direct that the Independent Children's Lawyer engross the orders.

I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate

Date:  12 February 2008