MANCHESTER & MANCHESTER

[2019] FCCA 3060

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANCHESTER & MANCHESTER [2019] FCCA 3060

Catchwords:
FAMILY LAW – Interim hearing – Ex tempore reasons – spend time with – supervised time – undertakings made by supervisors – telephone or Facetime communication.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 65DA

Cases cited:

Goode & Goode [2006] FamCA 1346

Applicant: MR MANCHESTER

Respondent: MS MANCHESTER

File Number: SYC 3876 of 2015

Judgment of: Judge M Neville

Hearing date: 2 August 2019

Date of Last Submission: 2 August 2019

Delivered at: Sydney

Delivered on: 20 September 2019

REPRESENTATION

Solicitors for the Applicant: Mrs Broun of Broun Abrahams Burreket

The Respondent: Self-represented

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

1. That orders 2 and 3 of the Orders of 21 May 2019 be and are hereby discharged.

2. By consent, orders 2.5 and 2.7 of the Consent Orders made on 21 May 2019 shall be varied such that:

   (a)Order 2.5 shall read: The drug testing will be undertaken within 48 hours of receiving a request in writing from the mother’s lawyer, or the mother if she is self-represented.

   (b)Order 2.7 shall read: The results of the tests are to be provided by the father’s lawyers or the father personally if he becomes self-represented to the mother’s lawyer or the mother personally if she becomes self-represented within 72 hours of the tests being undertaken.

3. X shall spend time with the father from the date of this order and until further order on one occasion each week in a fortnightly cycle as follows:

   (a)Week One: From 10:00am to 3:00pm on either of Saturday or Sunday, with the specific day to be nominated by the mother one week in advance having regard to the availability of the proposed supervisor; and

   (b)Week Two: On one occasion each week from after school till 6:00pm, being on a school day, with the specific day to be nominated by the mother one week in advance, having regard to the availability of the proposed supervisor.

4. X have telephone or FaceTime communication with the father in accordance with X’s wishes.

5. The father’s time with X as set out in these orders is to be supervised by any or all of Mr A, Ms B, and Ms D contingent upon each of those persons giving an undertaking in the following terms:

   That they undertake to:

   (a)Remain in the presence of X at all times during periods when X is spending time with the father;

   (b)Not leave X alone with the father during any time when they are supervising X spending time with the father;

   (c)Not allow the father to remove X from their care;

   (d)Not delegate their supervisory role to any other person;

   (e)Immediately terminate the time and contact the mother to arrange for X to be returned to her if it seems that the father is under the influence of any illicit substance or if there is any other inappropriate behaviours at any time during the time that X is spending with the father;

   (f)Not discuss these proceedings in the presence or hearing of X or denigrate either parent;

   (g)Be present at, or facilitate, all changeover at the commencement and conclusion of X spending time with the father; and

   (h)Report to the mother any issues that arise during X’s time with the father.

6. The father be at liberty to release to Ms B and Mr A a copy of the mother’s affidavit of 26 July 2019 for the purpose of enabling them to fulfil their roles are supervisors of the father’s time with X.

7. The mother be at liberty to release to Ms D a copy of the mother’s affidavit of 26 July 2019 for the purpose of enabling them to fulfil her role as supervisor of the father’s time with X.

8. The matter be adjourned to 31 July 2020 at 9.30am for Callover.

9. Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are included in these orders.

THE COURT NOTES THAT:

A.Undertakings have been given by Mr A and Ms B in their affidavits filed in these proceedings on 26 July 2019. The undertakings in those affidavits are considered satisfactory for the purposes of the orders made herein in relation to their supervision of time.

B.The Court defers consideration of the appointment of an Independent Children’s Lawyer until Callover.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3876 of 2015

MR MANCHESTER

Applicant

And

MS MANCHESTER

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript.

2. These are parenting proceedings in relation to the child X, born … 2011 and currently aged eight years.  Mr Manchester is X’s father and he is the applicant in these proceedings.  Ms Manchester is X’s mother and she is the respondent in these proceedings.  For convenience and meaning no disrespect, I will refer to them respectively as the father and the mother in these reasons.

3. The matter was listed for interim hearing on 2 August 2019.  The questions for the Court were whether X should spend time with his father on a weekly or a fortnightly basis and whether X should or should not spend time at his father’s house. 

Background

1. By way of background, X’s parents commenced living together in 2008.  They were married on … 2011 and they separated on a final basis on 15 October 2014.  Following separation, X lived with each parent on a week about basis with changeovers occurring on Sundays between 3 and 4 pm.  A parenting plan was made on 23 July 2015, formalising those arrangements. 

2. On 24 July 2018, X was exposed to a series of events in the father’s household, including drug use and sexual matters.  The evening’s events culminated with X calling triple zero, an ambulance being called to attend to the father and the mother collecting X and taking him home.  Unsurprisingly, this event caused a complete breakdown in the trust between the parties and the previously cooperative co-parenting arrangements broke down.

3. The father commenced proceedings on 18 April 2019, seeking orders in relation to X.  That application was first listed on 21 May 2019 and on that day the parents were able to agree to consent orders, relevantly, that X live with the mother; that for a period of 12 months the father undergo a testing regime in relation to illicit substance use; and that the father commence therapy with an appropriate drug and alcohol counsellor.  The Court otherwise ordered that X spend time with his father for a period of three hours on one occasion each fortnight, with such time to be supervised by a professional contact service and with reports to be prepared.

4. The orders also made provision for X to have telephone or face time communication with the father each Saturday at 10 am and on another week night nominated by the mother at 6.30 pm.  The parties were referred to a child dispute conference which was convened by family consultant Ms E on 26 July 2019. 

5. When the matter was listed for interim hearing on 2 August 2019, the parties engaged in discussions and reached agreement in relation to the following interim arrangements:

   a)That X should spend time with the father on one occasion each fortnight, being either Saturday or Sunday, from 10 am to 3 pm.  That time was to be supervised by nominated people known to the parties or by a contact service.  The father’s time in that regard was agreed to be conditional upon the father providing negative drug test results in accordance with the regime set out in the orders for 21 May 2019. 

   b)That Dr F be appointed as the parties’ single expert for the purpose of preparing a report in relation to the welfare of X.

6. Dr F has availability to see the parties in February 2020 and her report is anticipated to be made available around mid to late March 2020. 

Parties’ Proposals

1. Turning now to the parties’ proposals and to the orders sought.  Having regard to the significant agreements reached between the parties on the day of interim hearing, the scope of the dispute between the parties was significantly narrowed to the following issues.  Firstly, whether there ought to be an additional period of time between X and the father, so that X and the father spend time together on a weekly basis.  And secondly, whether there ought to be a restraint upon the father spending time with X at the father’s home at G Street, Suburb H. 

2. It is well established that an interim hearing is a process which involves a curtailed scope of inquiry.  As was observed in Goode & Goode, the procedure for making interim parenting orders will be an abridged process where the scope of inquiry is significantly curtailed.

3. Where the Court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case, where findings are not possible.  The Court also looks to the less contentious matters such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children and the parties’ respective proposals for the future.

4. It remains the case that the Court must regard the best interests of the child as paramount in deciding what interim order to make.  In Goode & Goode, the Full Court of the Family Court of Australia identified the importance of following the legislative pathway at an interim stage, notwithstanding that the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.

5. The Full Court set out the approach to be taken at an interim stage as follows. Firstly to identify the competing proposals of the parties. Secondly to identify the issues in dispute in the interim hearing. Thirdly to identify any agreed or uncontested facts and then to consider the matters in section 60CC that are relevant and, if possible, make findings about them, noting that in interim proceedings, there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.

Submissions

1. Turning to the submissions of each of the parties.  In support of his application, it was submitted on behalf of the father that prior to the events of 24 July 2018, X shared a very close and loving relationship with the father.  He contends that weekly time is preferable to fortnightly time because if the frequency of X’s time with his father does not increase and evolve, X may lose the close and loving relationship he has shared with his father.

2. To the extent that the father’s history of illicit drug use and poor parenting choices on 24 July 2018 could be seen to place X at risk, the father contends that the risk is ameliorated by the supervision of X’s time and the testing regime and treatment regime set out in the orders of 21 May 2019. 

3. It was also submitted for the father that there is benefit to X in being allowed to spend time with the father in the father’s home.  Whilst the father’s home was the scene of what must have been a very difficult night for X, the father contended that the longer he stays away from that home, the bigger a spectre it is likely to become in X’s mind.  It was submitted that X’s return to the home in the presence of his father and the supervisors, will likely assist him to move forward from the events of 24 July 2018.

4. The father further submitted that if the Court was not satisfied that X ought spend time with his father each weekend, that the Court could contemplate two occasions of time each fortnight.  One in week one, to occur on a Saturday or a Sunday between 10 am and 3 pm, and the other in week two, to occur one afternoon from the conclusion of school until 6 pm.  It was, however, the father’s primary position that there be an occasion of time on each weekend, between the hours of 10 and 3. 

5. For the mother’s part, she contends that fortnightly time is preferable to weekly time, because whilst it is easy to move forward to increase the duration of time between X and his father, it is more difficult to pare back those arrangements in the event that X does not cope with the increased duration and/or frequency of time, or in the event that the father does not achieve abstinence from illicit drug use and experiences a further lapse in his parenting capacity.  The mother contends that this is a possibility, given that the hair follicle tests undertaken by the father on 23 May 2019 indicated positive for illicit substances, notwithstanding the father’s contention recorded in the family consultant’s memorandum that a 16 centimetre hair follicle test returned a negative result.

6. In relation to telephone and FaceTime communication between X and the father, she submitted that there had been a rigid adherence to the arrangements made under the orders of 21 May 2019 and that, to her mind, created practical difficulties in her and X’s regular routine, and that sometimes X did not wish to speak with his father at the allocated times.  The mother submitted that in the event that X was allowed to nominate the times and days on which he wished to speak with his father, as would be communicated to her, it would likely result in X speaking with his father more frequently rather than less often.

7. In relation to the issue of weekly or fortnightly time, the mother submitted that in the event that X was to spend one afternoon each fortnight after school with his father, that that would disrupt the family routine of doing homework and would interfere with X’s much loved activity of sports. 

8. In relation to X spending time at his father’s home, the mother submitted that the events of 24 July 2018 were very difficult for X.  X experienced his father under the influence of illicit substances, he was exposed to various sexual paraphernalia, he was in the presence of a sex worker and apparently he witnessed his father engaged in sexual acts and behaving in ways that would have been frightening for X.

9. The mother submitted that it was X who was required to call triple 000, and the impact of the father’s substance use caused the father to behave in ways which must have been frightening for X.  The mother contends that the Court simply does not know how X will react if he returns to that environment. 

The Evidence

1. In terms of the evidence relied upon by each of the parties, in support of his application, the father relied upon:-

   a)His Initiating Application filed on 18 April 2019;

   b)His Affidavit of 18 April 2019;

   c)His Affidavit of 26 July 2019;

   d)Supervised contact report of 27 July 2019; and

   e)Report of Dr K of 31 July 2019. 

2. The mother, in her case, relied upon:-

   a)Her Affidavit of 26 July 2019; and

   b)The Affidavit of Ms L, filed 26 July 2019.

3. Each of the parties relied upon the Child Dispute Conference memorandum of Ms E, prepared 26 July 2019. 

4. The father filed affidavits from a number of people, relevantly: Ms C and Ms B.  Whilst he did not read those affidavits on the application, he did rely upon each of those deponents having given evidence of the undertakings that they would give, in the event that they were authorised to supervise time between X and the father.  Given that Ms B and Mr A were agreed between the parties to be appropriate supervisors, the Court noted the affidavits of those people, insofar as they contained the undertakings which were contingent upon them supervising time.

Discussion

1. There is no dispute that the events of 24 July 2018 were significant for each of the parties, but most importantly, they were significant events for X.  The father gives evidence that shortly prior to 24 July 2018, he had decided to commence therapy in relation to some trauma related events, arising earlier in his life.  On the relevant evening, he was in the process of completing a trauma history form as a part of his therapy, and that process caused him to consider painful memories and experiences.

2. On the evening of 24 July 2018, in accordance with a prescription, he had taken some Xanax, but still found that he was overwhelmed by the process of completing the forms.  He gives evidence that he made a telephone call to a woman who, it appears, was a sex worker.  She attended the home, informed the father that she had brought Ice with her, and he took a decision to smoke it with her.  X was present at the home that evening.  Whilst the father had put X to bed prior to filling in the form, and prior to the arrival of the sex worker, it is clear that at some stage X awoke.

3. The father’s evidence in relation to the events of the evening is limited. It appears that, under the influence of Ice, his memory was compromised, and it further appears that he lost consciousness at some point. 

4. The father in his affidavit of 18 April 2019 gives evidence that he has not used Ice or any other illicit substance since 24 July 2018 and that, at the time of making that affidavit, he did not intend to do so.  He admitted himself to the M Clinic for rehabilitation on 27 July 2018 and he gives evidence that he stayed three weeks and was discharged on 17 August 2018.  He further gives evidence that he attends to his mental health through the assistance of his GP and a counsellor by the name of Ms N.

5. The father gives evidence that following that incident no amount of discussion with the mother would change her perception that he was “an Ice addict”.  He gives evidence that for a period of five weeks the mother did not permit X to spend time with him and rarely agreed to X speaking to him over the telephone.  He contends that the mother did not allow X to see or speak to the father on Father’s Day and that she wrote to him informing him that he is not to approach X’s school or her home or to make contact with X.

6. It would appear, however, that time between X and his father resumed on 1 October 2018 in a park, supervised by the mother.  A second occasion of time occurred on 21 October 2018.  On or around 20 December 2018, the parties attended a mediation and agreement was reached for time to occur between X and his father each alternate week on Wednesday from after school until 7.30 pm; Friday after school until 7.30 pm; and on Sunday from 10 am to 4 pm.  The time was to be unsupervised.

7. The father gives evidence that the mother insisted on administering a drug test each Sunday before time commenced.  The father described that process as being “humiliating and demeaning.”  It appears that on 3 February 2019, the tests administered to the father indicated positive for opiates and that on 17 February 2019 they indicated positive for methamphetamine.  He explains the positive opiate test result as the result of taking a quarter of a Panadeine Forte tablet.  He expressly denies having tested positive for methamphetamine.  Following the test results in February 2019 the mother suspended his time with X.

8. After the making of orders on 21 May 2019, X resumed spending time with the father on one occasion each fortnight for a period of three hours, supervised by a professional contact service.  He placed into evidence supervised contact reports of Children in Focus, the supervision service, for each of the occasions of supervised time that have occurred.  The contact reports clearly demonstrate a loving relationship where X is positively engaged with his father and clearly relishes the time that they spend together. 

9. The father also gives evidence that, in accordance with the orders of 21 May 2019, he submitted to urinalysis testing on 11 and 24 July 2019 and that these tests produced negative test results.  A hair follicle test, undertaken on 23 May 2019, returned a positive result for the drug cocaine metabolites.  The father gives evidence, in his affidavit of 26 July 2019, that:

   On four occasions, I took cocaine as a recreational drug while I was in the company of friends.

1. The father’s affidavit does not contextualise those four occasions of illicit drug use insofar as he does not give any evidence as to when they occurred, nor why it is that he considered it appropriate to consume cocaine at all after the events of 24 July 2018 and, significantly, he did not explain how that evidence squares with the evidence given in his affidavit of 18 April 2019 that he had not used Ice or any other illicit substances since 24 July 2018 and had no intention to do so.

2. For her part, the mother gives evidence and agrees that the parties parented X in a week-about parenting arrangement with changeovers occurring on Sundays.  This continued from the date of separation until the incident of 24 July 2018.  The mother gives an account of the events of 24 July 2018 as she understands them and I consider that it’s appropriate to set them out in some detail given the father’s application that X be permitted to return to the home.

3. The mother’s evidence is that at 4.54 am on the morning of 25 July 2018, she received a FaceTime call from the father’s mobile number and a person unknown to her appeared and said, “I’m a paramedic.  I am here with your son.  Your ex-husband is quite unwell.  Are you able to come to Mr Manchester’s house to collect X?”  The mother travelled immediately by taxi and arrived at the father’s house about eight minutes later. 

4. Upon arrival, she observed the father with two paramedics in the living room.  He was lying on the living room floor, naked, with a small blanket covering what she described as “his private area”.

5. The mother’s observation was that the father looked almost lifeless but was making short groaning noises every so often, that he had large black straps on his wrists and ankles, which she subsequently learnt were restraint straps applied by the paramedics.  She described the home as being in a state of disarray with the father’s phone, laptop and a large black dildo on the coffee table, a second small black dildo on the sideboard next to the fish tank and cigarettes and beer bottles on the dining room table.  There was, apparently, a large wet patch in the centre of the sofa.  Chairs were lying sideways and scattered. 

6. Upon her arrival she immediately picked up X, settled him, took him to the bedroom to watch Netflix and, as she did so, she asked him what happened and he responded:

   I had to call triple 0, mummy.

7. Apparently, the paramedics spoke to the mother and informed her that they had previously visited the property, that the father had presented in a similar fashion on a previous occasion and, on that previous occasion, the paramedics had understood him to have taken Ice and GHB.  Prior to this, the mother was unaware that the father may possibly have been consuming those substances. 

8. As the paramedics continued to attend to the father and the mother surveyed the scene, the father apparently regained consciousness.  He was naked.  He appeared extremely confused, and it would appear that he had a physical reaction, whereby his body stiffened, his feet curled up, he clutched his hands and fingers tightly together, his back stiffened, and he began to grind his jaw from side to side.

9. He was informed that X had contacted triple 0 and the mother heard the father say:

   I don’t have a son.

   The father was then taken to hospital and after he had left, X asked the mother:

   Why does Daddy not remember me?

   The mother and X returned home. 

10. The mother gives evidence that X recounted the events of the evening to her.  In general terms, he indicated that he woke up during the night and went to look for his father;  that on entering the lounge room, he observed his father engaged in sexual acts;  that when the father saw him, the father stood up naked and began thumping his chest with his fists and making howling noises.  The father then fell on the floor and started kicking and making noises, at which point in time, the sex worker left and X was alone in the house with the father.  In the course of the evening, apparently the police were called, and X was interviewed by police on 25 July 2019. 

11. The mother gives evidence that since that date, X has informed her of a second occasion occurring some weeks prior that X said his father had asked to be kept secret.  Apparently, X had found his father in the bedroom, rolling around on the floor, closing his eyes slightly and opening them and saying to X:

    Bubba, you know I love you.  Daddy loves you.

    X described to his mother that he started crying for his father to wake up and started shouting for help.  X then decided, apparently, to get help from a neighbour and had tried to write a note to the effect of:

    Daddy, I have gone for help at granddad’s or mummy’s house.

    X obtained a neighbour’s help.

12. The mother agrees that mediation was attended on 20 December 2018, and that with her agreement, arrangements were made for X to commence unsupervised visits with his father.  They were scheduled on a fortnightly basis, with X to spend time with the father alternate Wednesdays and Fridays, from after school until 7.30 pm, and alternate Sundays, from 10 am to 4 pm. 

13. She gives evidence that she is in agreement that there was a mechanism by which she could require the father to undertake a home drug test prior to the Sunday occasions of time.  And she contends that the father returned positive home drug test results as follows:  on 3 February 2019, positive for opiates; 17 February 2019, positive for methamphetamine; and 17 March 2019, positive for tricyclic acid antidepressant.

14. The mother’s evidence is that since the orders of 21 May 2019, X has spent time and communicated with his father in accordance with those orders.  She says that FaceTime calls have been difficult, as X does not enjoy being told to have to call his father.  She expresses that X consistently pushes back and suggests he would prefer to call his father when he wants to.  She gives evidence that the calls have put a huge strain on her personally, that she has had to try to orchestrate her and X’s lives around the strict call times, not always being able to get home on time to have X in his room, undistracted.

15. She gives evidence that she was provided with a copy of the father’s hair follicle test results from the test on 23 May 2019, and she was concerned that they had indicated a use of cocaine. 

16. The mother also relied upon the affidavit of her sister, Ms L.  Ms L’s affidavit details concerns that she has held for X since 24 July 2018, including what she understands to have been a psychological impact, including disturbances to his sleep. 

17. She gives evidence that X has told her that when he called triple 0 he was scared, that every time that he felt he was about to do something that scared him, he could not, as:

    He now understands what happens.

    He has talked of his feelings of responsibility and has expressed to her that he feels that the reason he is not able to see his father is because he called triple 0.  X has also apparently shared with Ms L that he enjoys supervised visits with his father.

Consideration

1. Turning to a consideration of what is in X’s best interests, it is clear that the thrust of this case lies in the Court’s consideration of the two primary matters contained at section 60CC(2), and that is firstly, the benefit to X of a meaningful relationship with each of his parents and secondly, the need to protect X from physical or psychological harm, arising from exposure to abuse, neglect or family violence. The legislation is clear that of those two primary considerations, the Court is to give greater weight to the need to protect the child.

2. There is no doubt in my mind that the events of 24 and 25 July 2018 would have been frightening, disturbing and confusing for a boy then aged seven.  There is also no doubt in my mind that it is entirely reasonable for X’s mother to have been shocked and distressed, not only by the things that she herself witnessed, but by contemplating the impact that those events would have had on her son. 

3. Having regard to the consent position reached by the parents in these proceedings, I conclude that each of them considers that there is benefit in X having a meaningful relationship with the father.  That they have been able to reach those agreements in relation to time arrangements so far, having regard to the parameters of the current dispute, is a credit to both of them. 

4. In assessing risk to X, I note that each of the parents has agreed on the fact that the father’s time will be supervised, and they have agreed on proposed supervisors.  Again, the fact that they have been able to reach these agreements is a credit to each of them. 

5. Turning to the issue of X spending time in the father’s home, it seems to me that at this point of time on an interim basis, I do not know what memories X has of the events of July 2018.  I do not know with any precision what he was exposed to, in terms of what he saw, heard or otherwise perceived.  I do not know whether a return to that environment is likely to trigger a traumatic response from X.  I allow for the possibility that if X has had any experience in the father’s home which is in line with to the events of July 2018 as described by the mother, then it may be that he has been exposed to such behaviours on more than one occasion. 

6. Whilst I do not know whether or not it is likely to trigger a trauma response in X if he is to go to the father’s home, I do consider, having regard to the evidence that I currently hold about the incident, that it is a possibility that X will experience trauma as a result.  I have already described the evidence of the events that X was apparently witness to on that night.  X has reportedly told his mother and his aunt that he was scared and he was upset.  In the circumstances, I simply do not know how it is that he will react to a return to that environment.  It is possible, as the father submits, that the longer X stays away from his father’s home, the greater a spectre it becomes in his mind and the more difficult it may be for him to return to it later on. 

7. I cannot, however, rule out the possibility that he will be distressed or disturbed, and I cannot contemplate any order that would ameliorate the risk of trauma or psychological impact upon him that I apprehend is there.  The parties intend to obtain a report from Dr F.  Dr F is a skilled and experienced clinician in this area, and I expect that she will be in a position to provide considerable assistance to the parties and to the Court in assessing the impact of the events of 24 July 2018 upon X, any ongoing risks arising and any mechanisms for managing that risk. 

8. Accordingly, at this point in time, I am of the view that it is not in X’s best interests to return to his father’s home, particularly having regard to the fact that the current arrangements are that X will spend time with the father during daytime only.  Time can be spent at the home of Mr and Ms B, or at other comfortable locations.  And, importantly to my mind, X’s relationship with his father is not contingent upon where time occurs.  Rather, it is contingent upon time occurring in a safe and appropriate manner for X.

9. Turning, then, to the issue of frequency of time between X and his father, the supervised contact reports indicate to me that the relationship between X and his father is strong, loving and continuing.  This is a credit to both of the parties.  I pause to note that I consider that the mother has been instrumental in ensuring that X continues to enjoy a good relationship with his father.  I also note that the reason that that can occur is clearly because X and his father had a good, strong and loving relationship prior to the significant events that give rise to these proceedings. 

10. The mother’s sister, Ms L, indicates that X appears to enjoy the time with his father.  Prior to the events of July 2018, X spent regular week-about time in his father’s household.  That time abruptly ceased (and I note that I consider that that was an appropriate response) after 24 July 2018, and the parties have now reached agreement that fortnightly weekend time between X and his father will increase from three to six hours.  This is a significant extension of time. 

11. In the course of submissions, when I asked the mother about X spending time with the father one afternoon each week after school, the mother first submitted that it would interfere with X’s usual routine of coming home and doing homework.  As this was explored, she informed the Court that X spends time at WAYS After School Care (“WAYS”) until 6 pm each evening at which point she collects him and brings him home. 

12. I therefore understand that X’s after school routine involves him going to after school care at WAYS until 6 pm, then being collected by the mother and going home at that point.  I assume that X does his homework with his mother after getting home from WAYS.  Accordingly, in terms of X’s regular and ongoing routine, it seems to me that spending time with his father one afternoon after school at a time that he would usually be at WAYS will not interfere with X’s usual home routine.

13. Insofar as the mother contends that it is easy to move forward in increasing time, but harder to wind it back, in the event that X does not cope with that increase in time, I note that at this stage X is an eight-year-old boy who has been used to spending regular time in each household.  He appears to have a close and ongoing relationship with his father and he appears to enjoy the time that he spends with his father.

14. Whilst I consider that one full day every weekend, as the father contends for, is a very big jump in the present time arrangements, and whilst I consider that one full day every weekend would preclude X from spending a full weekend with his mother, I also consider having regard to X’s age, what I understand to be his level of maturity, and the fact that his mother has carefully and diligently ensured that he is involved in therapeutic assistance, that X is likely to cope with spending time with the father one afternoon in the second week after school until 6 pm.

15. I am further comforted in this regard, by the agreement that the time spent between X and the father will be supervised and is contingent upon each of the supervisors being provided with a copy of the mother’s most recent affidavit and upon the father returning negative drug test results. 

16. In relation to the issue of telephone or FaceTime communication, from the mother’s perspective, this poses a difficulty, and as I understand the father’s position, if the Court was to accede to his application that time occur on a weekly, rather than a fortnightly basis, that the application for telephone and FaceTime communication would not be pressed.  Having regard to the fact that I have determined that determined that weekly time with the father is in X’s best interests, I propose to discharge order 3 of the orders of 21 May 2019, which make provision for telephone or FaceTime communication.

17. In the event that I have misapprehended the father’s submissions in this regard, I consider that it is appropriate, in any event, to discharge the order for telephone or FaceTime communication.  I say this as the evidence indicates that X, perhaps unsurprisingly for an eight-year-old, is sometimes reluctant to talk to his father if he is made to talk to him in a timetabled fashion, rather than in accordance with his own wishes.

18. Children can sometimes be placed under pressure to come up with things to talk about during scheduled telephone calls, and if this is a pressure that X is feeling, then it is likely to hinder, rather than foster, the father-child relationship.  I note, however, that the mother was of the view that if X was offered the opportunity to talk to the father when he wishes to do so that X is more likely to call the father.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge M Neville

Date: 25 October 2019