March & Rose
[2022] FedCFamC2F 278
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
March & Rose [2022] FedCFamC2F 278
File number(s): SYC 2908 of 2021 Judgment of: JUDGE COSTIGAN Date of judgment: 1 March 2022 Catchwords: FAMILY LAW – Interim parenting – the nature and extent of the time the child should be spending with the father – risk of harm issues in respect of both households – whether an order should be made for parental responsibility – child’s best interests – hair testing to continue. Legislation: Family Law Act 1975 (Cth) Cases cited: Banks & Banks (2015) FLC 93-637
Goode & Goode [2006] FCA 1346; (2007) 36 Fam LR 422
M & M (1988) FLC 91-979
Division: Division 2 Family Law Number of paragraphs: 90 Date of last submission/s: 28 February 2022 Date of hearing: 28 February 2022 Place: Newcastle Solicitor for the Applicant: Karen Thompson Solicitor for the Respondent: Toronto Legal Solicitor for the Independent Children's Lawyer: Legal Aid NSW Newcastle ORDERS
SYC 2908 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MARCH
Applicant
AND: MS ROSE
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE COSTIGAN
DATE OF ORDER:
1 MARCH 2022
THE COURT ORDERS ON AN INTERIM BASIS THAT:
1.The child, X born 2014 (“the child”) shall live with the mother.
2.Until such times as the father produces a hair follicle test result that indicates low to moderate consumption of alcohol (2-29.9pg/mg), the father will continue to spend time with the child in accordance with order 1 of the orders made on 27 September 2021.
3.Upon the father producing a hair follicle test result to test for excessive alcohol consumption as a result of compliance with Order 11 herein, that shows a result consistent with low to moderate consumption of alcohol (2-29.9pg/mg) then the child spend time with the father as follows:
3.1 For a period of three (3) months each alternate Saturday from 10am until 1pm
3.2 Thereafter, each alternate Saturday from 10am until 4pm.
4 The father’s time in accordance with order 3 is also conditional upon the following:
4.1 The father is to remain engaged in the SMART recovery program until such times as the service deems his attendance is no longer required due to have completed the program and the father is to provide evidence from the service to the mother’s solicitor and the Independent Children’s Lawyer of his continued engagement prior to any time occurring in accordance with order 3.
4.2 The father will, within 48 hours of these orders, is to attend upon his general practitioner for a mental health assessment and mental health plan and the father will provide evidence of his compliance prior to any time commencing in accordance with order 3.
4.3 The father will do all things within his control to arrange to engage with any other therapy as recommended in the mental health plan referred herein at order 4.2 and will provide the mother’s solicitor and the Independent Children’s Lawyer with details of the practitioner he will be attending upon and details of his first scheduled appointment noting that there may be a wait time for such therapy and this shall not impact upon his ability to commence spending time with the child in accordance with order 3 as long as the father has provided evidence of a pending appointment and the father will provide the mother’s solicitor and the Independent Children’s Lawyer with a letter from the service upon attending his first appointment confirming his attendance.
5 In the event that the father is discharged from the SMART recovery program the father will notify the mother’s solicitor and the Independent Children’s Lawyer, within 48 hours, and will provide written evidence from the service as to why he is no longer engaged with the service.
6 In the event that the father subsequently produces a hair test result consistent with excessive alcohol consumption and/or fails to comply with the conditions as set out in order 4, the father’s time with the child will revert back to order 1 of the orders made on 27 September 2021.
7 The child will communicate with the father by phone or facetime each Tuesday and Thursday between 6pm and 6:30pm with the father to facilitate the phone calls and the mother to ensure that the child is made available to answer the call and to ensure the child is afforded privacy during the call.
8 For the purpose of facilitation of order 3 herein, unless otherwise agreed between the parties in writing, the mother will deliver the child to the father at Suburb B McDonalds at the commencement of his time with the child and the father will return the child to the mother at the same location at the conclusion of the father’s time.
9 The father is hereby restrained from consuming any alcohol 24 hours prior to and during any time that he spends with the child.
10 That pursuant to section 68B of the Family Law Act 1975 and on a without admissions basis, the mother and the father are each restrained by injunction from the discussing with or questioning the child about any of the following:
10.1 The current family law proceedings including, but not limited to, the following:
10.1.1Any material filed by any party in these proceedings;
10.1.2Any material produced on subpoena in these proceedings;
10.1.3Any reports that may be prepared for the purpose of these proceedings.
10.2 The child’s preferred living and spend time with arrangements;
10.3Excessively questioning the child about matters and the goings on in the other household and interrogating the child in relation her time with either parent; and
10.4 Any other matters that are age inappropriate.
11 Within 7 days of a written request from the Independent Children’s Lawyer and at a frequency no greater than once every three (3) months, the father shall;
11.1At his own expense, submit himself for hair testing for excessive alcohol consumption at an accredited clinic;
11.2 Provide no less than three (3) centimetres of hair for such testing;
11.3 Be restrained from taking any steps to interfere with the test results;
11.4And provide copies of the results of the tests to the solicitor for the other party and the Independent Children’s Lawyer within 48 hours of receipt of same.
12 Each party is hereby restrained from making denigrating comments about the other party and members of their household in the presence or hearing of the child and they shall use their best endeavours to ensure that no other person denigrates the other party or members of that household in the presence or hearing of the child.
13 The mother is restrained from allowing X to be left in the sole care of Mr C.
14 The mother will ensure that X is not left unsupervised in the presence of Y born 2008 and Z born 2010.
15 The mother shall keep the father informed of the medical and allied health professionals treating the child.
16 Each party will advise the other as soon as practical upon the happening of any of the following events to the child:
16.1 becoming seriously ill;
16.2 being involved in an accident;
16.3 suffering an injury;
16.4 being hospitalised.
17 The mother will do all acts and things necessary and sign all documents to request and authorise any treating medical practitioner or treatment provider which the child attends from time to time to provide copies of any reports, correspondence and information to the father and to authorise the father to have direct discussions with the doctor or treatment provider regarding the child.
18 These orders provide authority for the school to provide copies of any reports, notices, information, newsletters, photographs, invitations, and any other information that is provided to parents to be provided to both parents.
THE COURT ORDERS THAT:
19 The mother shall file and serve an amended response setting out the orders for property adjustment she seeks together with any application for leave pursuant to s44(6) of the Family Law Act 1975 and her financial statement and supporting affidavit by 4.00pm on 31 March 2022.
20 The father shall file and serve his reply or an amended initiating application and financial statement and supporting affidavit by 4.00pm on 31 April 2022.
21 The matter is adjourned to 9.30am on 13 May 2022 for directions.
22 The Independent Children’s Lawyer is excused from appearing on this occasion.
23 The matter is further adjourned to 9.30am on 7 October 2022 for directions after the release of the family report.
24 Each of the parties and legal representatives have liberty to attend by telephone on 13 May 2022 and 7 October 2022 by dialling in using the following details:
(a)Phone: …29 Australia, Sydney (Toll)
(b)Conference ID: …31#
(c)If the court has muted participants, when the matter is called each party and legal representative will need to press *6 to unmute themselves
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under a pseudonym March & Rose has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE COSTIGAN
INTRODUCTION
The parties in this matter are the parents of X born 2014, currently aged 7 years. They are in dispute about the future living and spend time with arrangements for X.
On 13 December 2021 when the matter was set down for interim hearing I had understood that the competing applications which required determination related to the father’s time with X. However, the father’s submissions were largely devoted to the issues of unacceptable risk in the mother’s household. When the Court asked the father’s solicitor about the relevance of such submissions in circumstances where he was not seeking a change of residence, the father’s solicitor then sought an adjournment of the interim proceedings so that the father could amend his interim application to include a change of residence.
The adjournment application was opposed. The solicitor for the mother indicated that he would be seeking an order for the costs thrown away. The Independent Children’s Lawyer indicated that it was unlikely that her position would change even if the father’s did.
In those circumstances the father decided to proceed on the basis of his current application but it did not see any adjustment to the manner in which his case was conducted.
EVIDENCE
In determining these issues, regard has been had to:
(a)In the father’s case:
(i)His Minute of Order filed 3 February 2022 (Exhibit A);
(ii)His Affidavit filed 2 February 2022;
(iii)The Affidavit of the paternal grandmother Ms D filed 16 April 2021;
(iv)His Notice of Risk filed 23 April 2021;
(v)His Case Outline filed 24 February 2022 (Exhibit B); and
(vi)His Tender Bundle of Supervision Notes (Exhibit E);
(b)In the mother’s case:
(i)Her Response and Notice of Risk filed 17 May 2021;
(ii)Her Affidavit filed 2 December 2021;and
(iii)Her Case Outline filed 24 January 2022 (Exhibit C);
(c)The Independent Children’s Lawyer’s Case Outline (Exhibit D);
(d)Pages 1, 2, 20, 21, 29, 33, 56, 57, 58, 59, 60, 61, 62, 63 of the Independent Children’s Lawyer’s Tender Bundle (Exhibit F);
(e)The father’s Hair Test Results from samples collected on 8 September 2021 and 31 January 2022 (Exhibit G).
(f)Child Inclusive Conference Memorandum dated 10 August 2021 prepared by Family Consultant E.
(g)Amended Family Report dated 20 May 2021 in the matter of … prepared by Regulation 7 Family Consultant Ms F.
Both parties are legally represented and the interests of X are represented by the Independent Children’s Lawyer, Ms G.
Cross-examination did not occur and a decision has been based on the filed material and the submissions.
BACKGROUND
Before considering the issues and the relevant law, it is necessary to capture the agreed and disputed facts.
The father is aged 40 and employed as a tradesman. He lives in Suburb H.
The mother is also aged 40 and is a social worker. She lives in Suburb J.
The distance between the parties’ households is 23km or 35 minutes driving time.
The parties commenced a relationship in 2001 and in 2011 they moved to Region K.
In 2014 X was born.
The parties separated in November 2017 when X was 3 1/2 years old. X remained in the primary care of the mother and according to the father he saw X after work 3 days a week and every weekend from Friday to Sunday.
In July 2018 the mother commenced a relationship with Mr C.
Mr C has two children from a prior relationship: Y (13) and Z (almost 12).
Thereafter the mother and Mr C moved to Suburb L and the father spent time with X on alternate weekends from Friday to Sunday and on special occasions.
In late 2018 the mother, Mr C and X moved to Suburb J.
In October 2019 the father moved back into the parties’ former home at Suburb H. The mother complained that the property had ‘toxic black mould’ and refused to allow X to stay with the father there. Thereafter when X spent time with the father they stayed at the home of the paternal grandmother.
In February 2020 X started kindergarten at M School, Suburb B.
In June 2020 the mother ceased the father’s time with X alleging excessive alcohol consumption on the part of the father.
In September 2020 X changed schools and commenced at N School.
On 27 November 2020 the parties engaged in mediation but no agreement was reached.
On 23 April 2021 the father commenced court proceedings in the Sydney Registry of the Federal Circuit Court seeking a recovery order, sole parental responsibility, for the child to live with him and spend supervised time with the mother. He also sought a restraint against the mother bringing the child into contact with Mr C.
On 17 May 2021 the mother filed her response and sought orders for sole parental responsibility and for the child to live with her and spend supervised time with the father. She also sought property adjustment orders on a final basis which I will discuss further at the conclusion of these Reasons.
At the first return date on 18 May 2021 His Honour Judge Kemp made directions for the parties and child to attend a section 11F Child Inclusive Child Dispute Conference, for the parties to register with a Contact Centre, the appointment of an Independent Children’s Lawyer and the transfer of the matter to the City O Registry
On 10 August 2021 the parties attended the s11F Child Inclusive Child Dispute Conference but due to restrictions then in place due to COVID-19, X was not interviewed.
On 18 August 2021 interim orders were made by consent for the father to spend time with the child supervised at the Region K Children’s Contact Centre. The mother was restrained from leaving X in the sole care of Mr C and the father was ordered to undertake a hair test for excessive alcohol consumption within 21 days of the orders and within 7 days of a request from the Independent Children’s Lawyer.
On 8 September 2021 the father provided a sample for hair testing and the results released on 24 September 2021 were positive for excessive alcohol consumption with a reading of 815pg/mg (27 times over the 30pg/mg cut-off for excessive consumption, which is ‘indicative of an average DAILY CONSUMPTION OF 4 TO 6 DRINKS over an approximately 90 day period.’)
On 27 September 2021 interim orders were made so that until a vacancy became available at the Region K Children’s Contact Centre the father’s time would be supervised by Service P for 2 hours a fortnight.
On 13 December 2021 orders were made for a family report and the matter listed for interim hearing.
On 31 January 2022 the father provided a sample for hair testing and the results released on 12 February 2022 were positive for excessive alcohol consumption with a reading of 127pg/mg (4 times over the 30pg/mg cut-off for excessive consumption, which is ‘indicative of an average DAILY CONSUMPTION OF 4 TO 6 DRINKS over an approximately 90 day period.’)
The interim hearing proceeded on 28 February 2022 and as at that time:
(a)The child was living with the mother and her partner at Suburb J.
(b)The father was spending time with the child supervised by Service P in accordance with the interim orders.
The father has two relevant convictions recorded:
(a)A high-range PCA reading on 11 July 2008; and
(b)A mid-range PCA reading in 22 June 2013.
He also has one incident recorded against his name for having been given an infringement notice for ‘failing to leave licensed premises’ on 6 February 2009.
The mother has two incidents recorded against her name in the COPS entries consisting of:
(a)Being a victim of a domestic violence episode on 27 December 2018 where the maternal grandmother was the perpetrator; and
(b)Being an accused person in an assault on 2 June 2018.
Also of relevance in this matter, the mother’s partner Mr C was charged on 1 May 2018 with child grooming and child abuse material related offences. A COPS entry dated 24 July 2019 indicates that Mr C was considered unfit for trial and there were no continued bail conditions or AVO’s. This issue will require further investigation and the court file from the District Court proceedings should be obtained.
DISPUTED FACTS
The matters in dispute include:
(a)Whether either party was the perpetrator of family violence during the relationship.
(b)The extent of the father’s alcohol issues.
(c)Whether either party has mental health issues which impacts on their parenting capacity.
(d)The extent of the father’s involvement with the child during the relationship.
(e)Whether the mother’s partner Mr C poses a risk of sexual harm to the child.
(f)Whether the mother’s partner Mr C poses a risk of harm to the child by reason of any mental health issues.
It is in the context of the agreed and disputed facts that consideration will be given to the issues.
PROPOSALS
Before considering the issues, the proposals of the parties need to be captured.
The father is seeking orders that X spend time with him:
·During school terms each alternate weekend from after school Friday until before school Monday for a period of 8 weeks; then
·Each alternate week from after school on Thursday to before school on Monday for 5 weeks; then
·Introducing one night in the off-week and after a further 8 weeks an additional night in the off-week so that by July 2002 X is spending 6 nights a fortnight with the father.
The father is also seeking that X spend time with him for one half of the school holidays. In the event that the court was of the view that the father’s time should be supervised he proposed that the paternal grandmother be the supervisor.
The father’s alternate proposal was that he spend supervised time with X:
·For 4 hours on a Saturday or Sunday for a period of 4 weeks;
·Progressing to 4 hours on Saturday and Sunday for a period of 5 weeks;
·And then 8 hours on the Saturday and 4 hours on the Sunday for a period of 4 weeks; and then
·Alternate weekends from after school on Friday to before school on Monday;
·With Ms Q, Mr R or Ms D as supervisors.
The father would accept a restraint from consuming alcohol in the 24 hours prior to the child coming into his care.
The mother is seeking that she have sole parental responsibility, the child live with her and spend no time and have no communication with the father and costs.
The mother requires the father to undergo hair testing for excessive alcohol consumption.
The Independent Children’s Lawyer proposes that:
·The child live with the mother.
·That until he produces a hair test with a reading of 29.9pg/mg or below the father continue to spend supervised time with the child.
·Upon the father producing such a hair test result he spend time with the child on alternate Saturdays from 10.00am until 1.00pm for a period of 3 months and then alternate Saturdays from 10.00am to 4.00pm.
·The father’s time is conditional upon his engagement with the SMART recovery program, his obtaining and comply with the recommendations of a mental health care plan.
·That the child have electronic communication with the father twice a week.
The Independent Children’s Lawyer also proposes a range of section 68B restraints on both parties; the father to submit to hair testing at three monthly intervals within 7 days of a request from the Independent Children’s Lawyer and be restrained from consuming alcohol 24 hours prior to or during any period the child is in his care; and the mother be restrained from leaving the child in the sole care of Mr C or in the unsupervised presence of his two children Y and Z.
THE LAW
The relevant principles in relation to parenting proceedings and the pathway to be followed are set out more fully in Goode & Goode[1].
[1] Goode & Goode [2006] FCA 1346; (2007) 36 Fam LR 422
Section 60B outlines the objects of Part VII and principles underlying the legislation in relation to children.
Section 60CA provides that the Court must regard the best interests of the children as the paramount consideration.
Section 60CC sets out the best interest considerations in relation to the child being:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents.
(b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
As the Full Court observed in Banks & Banks[2] it is the issues that are joined by the parties that will dictate which section 60CC factors are relevant, and I do not intend to address each and every consideration where in reality the issues in this care are fairly narrow.
[2] Banks & Banks (2015) FLC 93-637 at [48] to [50]
PARENTING ARRANGEMENTS
This matter is difficult, with the parents’ respective proposals and propositions being unrealistic, adding to the complexity. Also, the most recent expert evidence available to the Court does not extend to the progression of the father’s time beyond the initial period of supervision.
Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved.
In M & M[3] the High Court formulated a test, which has since been referred to as the “unacceptable risk test” as a means of balancing the benefits arising for a child of interacting with a parent with the risk of the child suffering some form of harm arising from exposure to that parent.
[3] See M & M (1988) FLC 91-979 at page 77,081
X is still a young child and dependent on the adults in her life to protect her and keep her safe. The fact that these parents have historically made poor decisions about her care arrangements does not mean that the Court is bound to accept that the risks in each household can simply be ignored.
Against these risks the Court must weigh the need for X to maintain and develop her relationship with her father as the Independent Children’s Lawyer informs the Court that X enjoys the time she spends with the father and benefits from the contact. The supervision notes supports this view that X is enjoying the time.
The Independent Children’s Lawyer submits:
[X] is currently enjoying regular time with the father. The contact reports are positive, and no concerns have been raised in relation to risk during those visits. There is no evidence to suggest that [X] would not continue to benefit from time. It would be more damaging for [X] at this time to cease her time with her father pending a final outcome of this matter.
As the family consultant noted:
The risks associated with the father’s alcohol abuse and associated parenting behaviour; and the risks associated with the mother’s current relationship and parenting behaviour (including her capacity to uphold [X]’s relationship with the father) appear to be the key issues affecting [X] in her family at this time.[4]
[4] Child Inclusive Child Dispute Conference Memorandum at [29]
Risk to the child due to the father’s alcohol abuse
The mother alleges that the father poses a risk of harm to X due to excessive alcohol consumption.
The family consultant noted:
The father conceded to a history of excessive alcohol use, but denied that these issues are current and denied that his alcohol use has ever affected his parenting. The mother alleged that the father’s alcohol abuse has increased his aggression, impaired his mental health and impaired his parenting by way of him driving under the influence of alcohol with [X] in the car. The father has been charged with two mid-range DUI’s (in the same night in 2013) and one mid-range DUI in 2008.
The mother alleged that the paternal grandmother, who the father relies on with [X], abuses alcohol and prescription medication.[5]
[5] Child Inclusive Child Dispute Conference Memorandum at [18] and [19]
The father has produced hair test results which indicate that the father has significant problems with alcohol. It is true that in the 4 month between tests he managed to dramatically reduce the reading. However this reading remains at a level 4 times over the cut-off for excessive consumption.
In both his filed evidence and submissions the father has sought to minimise or contextualise his alcohol problem. It was reported by the family consultant that the father ‘conceded to a history of excessive alcohol use, but denied that these issues are current and denied that his alcohol use has ever affected his parenting.’
Excessive alcohol consumption is associated with all major forms of child abuse and neglect. The major risk is the impact on a parent’s ability to adequately supervise a child placing them at significant risk of physical harm. Alcohol abuse can also lead to parents using inconsistent parenting strategies and in the father’s particular case it is also likely to be a significant perpetuator of his mental health issues.
Until the Court can be satisfied that the father’s drinking is under control it must act cautiously as the impact of excessive alcohol consumption can be entirely unpredictable.
Risk of sexual and other harm posed by Mr C in the mother’s household
Mr C has been charged with grooming a child and sending explicit images to a child under 18. The matter did not proceed to trial but the circumstances in which the charges were dismissed are unclear, though may possibly be related to mental health issues. Mr C told Ms F that he had been diagnosed with schizophrenia but following re-assessment he now only suffers with anxiety and epilepsy for which he is medicated. Obviously, this issue will require further investigation at trial.
Documents produced by NSW Police under subpoena with respect to the charges brought against Mr C are extremely concerning – that is the allegation that Mr C engaged in sexually explicit, and it would appear unsolicited and unwanted, communication with 13 and 14 years girls and sending them images of his penis.
Equally concerning for the Court is the mother’s ability to act protectively of X and protect her from any risk that Mr C might pose. The mother was reported by the family consultant to say that:
…..[Mr C]’s charges were dropped; with his defence argument being that he had an intellectual disability that made it difficult for him to determine the girl online was a child. The mother said that [Mr C] does not actually have a disability, but has epilepsy. The mother confirmed that [Mr C] does not have contact with his own children, but did not identify any risks to [X] with [Mr C] despite these issues.[6]
[6] Child Inclusive Child Dispute Conference Memorandum at [11]
The Independent Children’s Lawyer proposes a continuation of the injunction against the mother which restrains her from leaving X in the sole care of Mr C. It is an order that has been in place since August 2021 upon the recommendation of the family consultant.
There have been no complaints made by the father and no reports to the Independent Children’s Lawyer by X of any inappropriate behaviour by Mr C. In weighing up the respective hardships I am satisfied that the order as proposed by the Independent Children’s Lawyer strikes the appropriate balance.
In the Amended Family Report prepared in the … matter (NCC…), Ms F discussed the issues of concern for Mr C’s children Y and Z and wrote:
In short there has been ongoing concerns and issues in relation to all the children being exposed to harmful sexual behaviour and possibly even child sexual abuse. Given the boys current sexualised behaviours there must be serious concerns held for the safety of the younger children (girls), in the family regarding their exposure and vulnerability to sexual harm, not to mention younger siblings of the school friends the boys visit to play games with. Collateral information from Department of Communities and Justice reports, “given the multiple recent reports related to sexual abuse/ language/ age-inappropriate topics, mother and stepfather's actions are considered indicative of grooming behaviour.”[7]
[7] Amended Family Report (NCC…) at [72]
It is for this reason that the Independent Children’s Lawyer proposes an order that Mr C’s children Y and Z not be brought into contact with X. It was not the subject of submissions by the parties but in all the circumstances I am satisfied it is an appropriate order.
The mother’s ability to promote the father’s relationship with the child
The father alleges that the mother denigrates him and obstructs his relationship with the child and points to the difficulties he has experienced with telephone communication as illustrative of his point.
Interim orders were made by consent on 21 August 2021 for the father to have twice weekly telephone communication with X. Those orders were consistent with the recommendations of the family consultant which read:
Given concerns about the nature of the [X]’s telephone communication with the father, consideration could be given to the Court permitting the parents to provide [X] a phone with applications for FaceTime; with conditions that the phone is to be charged and turned on only for the purpose of the father’s calls at the designated time.
It is recommended that restraints be placed on both parents negatively interfering with [X]’s calls, by way of exposing [X] to conflict or age-inappropriate discussions about the adult dispute, and/or by pressuring [X] about her relationships/current circumstances.[8]
[8] Child Inclusive Child Dispute Conference Memorandum at [36] and [37]
In furtherance of those orders the father purchased a phone for X to use for those calls and says the mother sent it back saying it was broken. The mother’s own evidence is that her solicitor sent it back because it wasn’t appropriate for a child to have a phone and the father could call the mother’s phone. It is difficult to see the problem if the mother had control of the phone. It is also difficult to see why the principal of the school would be ‘furious’ because a parent would buy a Nintendo DS Switch for a child or inject themselves into the parental dispute in the way alleged by the mother. The mother actions were unwarranted and her unsolicited comment that the money should have been applied to the father’s supervision fees, quite unnecessary.
There is also evidence to suggest that the mother has acted unilaterally in changing the child’s pre-schools and schools without reference to the father which is of particular relevance to the issue of parental responsibility.
PARENTAL RESPONSIBILITY
Section 61DA of the Act provides for a presumption of equal shared parental responsibility that applies when the Court makes a parenting order, save that the presumption does not apply when there are reasonable grounds to believe there has been abuse of the child or family violence. The presumption may also be rebutted if there is evidence to satisfy the Court that it would not be in the best interests of the child for the child’s parents to have equally shared parental responsibility for the child.
The father and Independent Children’s Lawyer do not seek an order for the allocation of parental responsibility on an interim basis. The mother seeks an order for sole parental responsibility.
While there are cross-allegations of family violence during the relationship, they do not feature such as to, in my view, make the presumption not applicable.
However, the Family Consultant observed that:
There have been periods of time when the parents appear to have cooperated reasonably well for [X] following separation; including a period of time when they continued to live together under the one roof, and a period when the mother assisted the father to obtain alternate accommodation. However, seeming chaos, instability and risk has affected the co-parenting environment for [X].[9]
[9] Child Inclusive Child Dispute Conference Memorandum at [22]
The parties’ relationship is now highly conflictive, no doubt fuelled by these proceedings. I accept and agree with the submissions of the Independent Children’s Lawyer that an order for parental responsibility is not necessary at this time to serve the best interests of the child. As such the position under section 61C of the Act will prevail and the operation of s.65DAA of the Act is not triggered.
CONCLUSION
Conclusion as to live with arrangements
I find that the father’s problematic use of alcohol remains a risk factor to X in accordance with s.60CC(2)(b) and, as s.60CC(2A) requires, that this consideration be given greater weight than all other considerations. As such this consideration supports an order for X to live with the mother on an interim basis, pending further investigation by the Court.
I therefore intend to order that X should continue to live with the mother on an interim basis.
Conclusion as to the father’s spend time arrangements
I find that the mother’s proposal that supervised time continue indefinitely to be unrealistic, not only with respect to the costs and practicality of professional supervision but also to the development of X’s relationship with her father.
Although the father’s alcohol misuse remains a significant concern for the Court, the supervision notes do not include any adverse reports with respect to the father’s presentation or his being affected by alcohol.
The father’s most recent hair test shows a dramatic reduction in consumption of alcohol, notwithstanding that the starting point was remarkable high, so he appears to have some capacity to modify his drinking habits. He says that he is engaged with the SMART recovery program and appears to have benefited from his engagement in treatment and therapy. However, as the Independent Children’s Lawyer observed, the father is in the very early stages of treatment and a cautious approached is warranted.
I am satisfied that the orders proposed by the Independent Children’s Lawyer achieve the appropriate balance between the two primary considerations. They will see an increase in time so long as the father maintains the improvements seen to date, and in order to monitor such improvements there will be orders for on-going hair testing.
ADDITIONAL ISSUES
As to the remaining issues I make the following findings:
·The twice weekly telephone communication is recommended by the family consultant and the Independent Children’s Lawyer and will support X’s relationship with the father.
·Changeovers shall occur at Suburb B McDonalds which is a reasonable midway point between the households. It is a child-friendly venue and has appropriate security which addresses any concerns of family violence.
·In view of my findings in relation to the father’s problematic alcohol use there will be a restraint against the father consuming alcohol 24 hours prior to or during any period of time he spends with the child.
·The s.68B restraints proposed by the Independent Children’s Lawyer are appropriate and adopt the recommendations of the Family Consultant, which reads as follows:
It is recommended that restraints be placed on both parents negatively interfering with [X]’s calls, by way of exposing [X] to conflict or age-inappropriate discussions about the adult dispute, and/or by pressuring [X] about her relationships/current circumstances.[10]
·Standard orders for the exchange of information and non-denigration have been made.
·A family report is needed and an order has been made for the Court to have a family report prepared with a release date of 15 November 2022.
[10] Child Inclusive Child Dispute Conference Memorandum at [37]
For the above reasons I make Orders as set out at the beginning of this judgment.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Costigan. Associate:
Dated: 17 March 2022
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