MCAVOY & BACKERT

[2020] FCCA 19

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCAVOY & BACKERT [2020] FCCA 19

Catchwords:
FAMILY LAW – Parenting – mother seeks a 10/4 arrangement in her favour – father seeks a continuation of the week-about arrangement put in place in 2017 – child has ADHD and developmental difficulties – father suffers from intellectual disabilities – father impresses professionals as being less well attuned to the child’s best interests – orders made for a 10/4 arrangement in the mother’s favour as proposed by the Independent Children’s Lawyer and agreed to by the mother.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

Goode v Goode [2006] FamCA 1346

Applicant: MS MCAVOY

Respondent: MS BACKERT

File Number: DGC 3996 of 2016

Judgment of: Judge Burchardt

Hearing dates: 20-21 November 2019

Date of Last Submission: 21 November 2019

Delivered at: Melbourne

Delivered on: 10 January 2020

REPRESENTATION

Counsel for the Applicant: Ms Torahi

Solicitors for the Applicant: Bayside Solicitors

Counsel for the Respondent: In person

Solicitors for the Respondent: Not applicable

Counsel for the Independent Children’s Lawyer: Mr Taghdir

Solicitors for the Independent Children’s Lawyer: Taft Lawyers

ORDERS

1. All previous parenting orders be discharged.

2. The parties have equal shared parental responsibility for the child X born 2012 (“the child”).

3. The child live with the Mother.

4. The child spend time with the Father as follows:

   (a)During school terms and Victorian School Term Holidays:

   (i)In week 1, from the conclusion of school on Thursday (or 3:30pm on a non-school day) until 5:00pm on Sunday; and

   (ii)In week 2, from the conclusion of school on Thursday (or 3:30pm on a non-school day) until the commencement of school on Friday (or 9:00am on a non-school day).

   (b)On the weekend of Father’s Day, if the child is not already spending time with the Father, from 5:00pm on Saturday until the commencement of school on Monday (or 9:00am on a non-school day);

   (c)For one half of the long summer school holidays as agreed between the parties, and in default of agreement for the first half of such school holiday period in odd numbered years and the second half in even numbered years;

   (d)From 3:00pm on Christmas Day until 3:00pm on Boxing Day in even numbered years;

   (e)From 3:00pm on Christmas Eve until 3:00pm on Christmas Day in odd numbered years;

   (f)For the child’s birthday if it falls on a weekday from the conclusion of school (or 3:00pm on a non-school day) until 7:00pm and if it falls on a weekend from 10:00am until 3:00pm;

   (g)By way of telephone contact on two evenings each week at days and times as agreed between the parties in writing; and

   (h)At such further and other times as agreed between the parties in writing.

5. Any period the child is to spend with the Father be suspended as follows:

   (a)From 3:00pm on Christmas Day until 3:00pm on Boxing Day in odd numbered years;

   (b)From 3:00pm on Christmas Eve until 3:00pm on Christmas Day in even numbered years; and

   (c)On the weekend of Mother’s Day, if the child is not already spending time with the Mother, from 5:00pm on Saturday until the commencement of school on Monday (or 9:00am on a non-school day).

6. The Father be restrained from allowing the child to be or remain in the presence of the paternal uncle MR B.

7. Time between the child and the paternal grandmother MS A shall be spent in a public place with the Father present at all times.

8. Neither party be permitted to change the child’s school enrolment from Suburb C Primary School unless agreed between the parties in writing.

9. Both parties are restrained by injunction from moving more than five kilometres from the child’s school.

10. Both parties ensure that the child attends any extra-curricular activities the child is enrolled in from time to time.

11. Changeovers occur at the child’s school where possible, and otherwise at the Suburb C Railway Station, or such other location as may be agreed between the parties in writing from time to time.

12. Both parties shall, as soon as practicable, advise and keep the other party informed of:

    (a)Any serious illness or medical emergency involving the child whilst in their care, including all details regarding the injury, illness, hospital location, medical practitioners and treatment required;

    (b)Any specialist medical practitioners or allied health professionals for which the child is attending upon; and

    (c)A change in their contact details including email addresses, residential addresses and mobile phone numbers.

13. Both parties shall be at liberty and are otherwise authorised to:

    (a)Attend all school events and extracurricular activities for which parents are normally invited to attend, including but not limited to, parent teacher interviews;

    (b)Obtain from the child’s school, at their own expense, all notices, reports and school photographs;

    (c)Liaise with the administration and teachers of the school concerning the educational development of the child; and

    (d)Liaise with any medical practitioner or allied health professional who is attending upon the child and to obtain any reports and information concerning the child from such professionals.

14. Both parties and their servants and agents shall be and are hereby restrained by injunction from:

    (a)Abusing, belittling, rebuking or denigrating the other parent in the presence or hearing of the child;

    (b)Involving or exposing the child to any discussion which involves a dispute between either parent;

    (c)Discussing these proceedings or any related documents with or in the presence of the child;

    (d)Encouraging, empowering or otherwise permitting the child to unilaterally or jointly decide to cease any spend time or live with arrangements as set out in these Orders; and

    (e)Allowing the child to be in the presence or hearing of any other person doing what is prohibited by the restraints of this order.

15. Each party notify the other in writing at least 14 days before removing the child from the State of Victoria and notify the other of their intention to do so and provide details of where the child will be staying and when they will be returning and all contact details for the child during any such interstate travel.

16. Neither party remove the child out of the jurisdiction of the Commonwealth of Australia without first obtaining the consent of the other parent in writing or by Court Order.

17. In the event of any disputes with regard to these Orders, or other matters that parents would normally be required to discuss for the purpose of ensuring the child’s best interests, health and wellbeing are met, the parties attend mediation with the aim of resolving the issues with a mutually agreed service/provider.

18. The Order appointing the Independent Children’s Lawyer be discharged.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3996 of 2016

MS MCAVOY

Applicant

And

MR BACKERT

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a parenting dispute about the best interests of a young child, X, born on 2012.  X has been diagnosed with ADHD and has a number of related difficulties, including violent behaviour towards his fellow students at school.  The applicant mother seeks that X live with her and spend time with the father from Friday to Sunday in one week and Wednesday to Thursday in the other.  Subject to some tinkering as to the particular days, the Independent Children’s Lawyer supports that proposition.  The respondent father seeks that X continue to live on a week-about arrangement that has been in place since 2017. 

2. For the reasons that follow, I am going to make the orders sought by the Independent Children’s Lawyer which are, in fact, agreed by the mother.

Agreed or uncontroversial matters

1. The father was born in 1986.  He suffers from an intellectual disability and his finances are handled by State Trustees.  The mother was born in 1988 and lives with her mother, with whom she has had difficulties in the past but who has of more recent years been much more supportive. 

2. The parties met and commenced a relationship in 2011, commencing cohabitation in that year.  X, as earlier indicated, was born in 2012, and it appears uncontroversial that separation took place on 7 June 2016.  The child initially was in the care of the father but on 13 March 2017, the mother took X back into her care.

3. The mother had an episode of mental illness in 2012 when she was suffering from postnatal depression and at which time as I understand it she was living with the paternal grandmother whom she now regards as a malign influence.  Court Orders made on 24 April 2017 formalised the week-about arrangement which has continued up until now.

4. It should be noted that despite DHHS involvement in the past, most particularly in 2018 as a result of allegations of sexual abuse of X by a former partner of the mother, those allegations were not substantiated and the department does not consider X to be at risk in either parent’s care. 

5. For an extensive period of time, the father was living in Suburb G and travel to X’s school in Suburb C was problematic.  Of more recent times, the father has obtained, to his credit, accommodation in Suburb C so this difficulty has dissipated. 

The affidavit material of the parties

1. The parties have filed affidavits, but these are either historical (the early history is paraphrased above) or tend to be self-serving and articulating the parties’ positions and perceptions.  I, of course, have regard to them, however, it is not necessary to traverse or paraphrase them in any detail.  That is because the parties’ positions were clearly articulated in Court.

The reports of Dr D

1. Dr D saw the parties in July 2017, and his reports are before the Court.  I note that at paragraph 16, Dr D recorded the mother as functioning in the average range of intellectual abilities with difficulties in the verbal domain although not significant.  At paragraph 20, he opined:

   Ms McAvoy presents as stable.  She lives with her mother and the child, and presents as functioning well.  Her parental risk rating is Low.  She functions in the Average range of intellectual abilities.  There is no factor that would prevent her from caring for the child on a full-time basis.

2. In respect of the father, Dr D noted poor self-care, that he was living in a rooming house, and that (paragraph 20):

   Mr Backert scored in the Borderline range of intellectual abilities at a percentile of 5, with a deficit in the non-verbal domain.  Nevertheless, it should be recognised this is an abbreviated measure of intelligence.  There is indication that he may function in the Borderline to Extremely Low ranges of intellectual abilities and for these reasons, it may be appropriate that a more complete cognitive evaluation is undertaken. 

3. Dr D assessed parental risk in his case as high, noting that he had been diagnosed with Tourette’s syndrome after a period of psychiatric hospitalisation in his mid-20s.

4. Dr D conducted a further evaluation of the mother pursuant to Court orders of the mother, but this did not change his opinion.  The father failed to attend Dr D for reasons to which I shall return. 

The Family Reports of Ms E

1. Ms E conducted interviews and produced her first Family Report dated 13 November 2018.  She noted the current arrangements, the relevant family background, the history of the dispute and the parties’ proposals.  At paragraph 11, she noted there did not appear to be a history of family violence between the parents.  At paragraph 16, she noted the father’s past history of alcohol abuse as disclosed to Dr D, albeit that the father said he had reduced significantly.  At paragraph 18, Ms E noted Dr D’s reports and the challenging behaviours that X had displayed which required a full paediatric assessment.

2. Interviews with the parents were unremarkable and under the heading Evaluation at paragraphs 29-30, the report notes:

   29. This matter is not ready to proceed.  X is a developmentally vulnerable child.  The parents are well meaning but vulnerable.  Mr Backert presents with more complex and limiting cognitive and parenting capabilities than does the mother.  This assessment was noted by Dr D.  Before any clear recommendations can be made relating to X’s future needs, he first must present for a paediatric assessment.  In such an assessment an appraisal of X’s developmental state and intervention needs can be identified. 

   30. It is likely that in the future, X will benefit from living in a primary home.  Under these conditions X could experience more stability, predictability and routine.  Provided that the routine is age appropriate, X should be better rested and ready to engage at school.  Living in a primary home will allow treatment recommendations to be consistently adhered to.  There is no question that Mr Backert loves X and his love is reciprocated.  Mr Backert presents, however, with more compromised life and parenting competencies than does Ms McAvoy.  Living primarily with Ms McAvoy would benefit X in that he would be closer to school and the requirement to travel would be reduced.  He would receive more consistent parenting, boundary setting and enjoy a stable school week routine.

3. The report went on to recommend that the living week-about regime continue up until 2019 and then be replaced as the report had recommended.  It will be noted that this has not yet occurred.

4. Ms E’s updated Family Report is dated 31 October 2019.  Once again, Ms E detailed the current arrangements, relevant family background, the history of the dispute and the proposals of the parties.  I note that at paragraph 10, Ms E observed:

   Both parents present with compromised functioning.  Mr Backert presents with limitations in his organisational, time management and life skills.  Mr Backert attended for the Family Report interview two weeks earlier than his scheduled appointment.  Due to his confusion, Mr Backert has not attended upon Dr D for an updated psychological assessment.

5. The report noted that X has been diagnosed as having ADHD.  Ms E spoke to the assistant principal at X’s school, who informed that X presents with complex and significant developmental needs, was struggling at school and achieving well below expectations for his age, with significant behavioural issues and impaired social skills (paragraph 13).

6. The interview with the parents were largely unremarkable and each parent articulated the positions that they ultimately contended for in Court.  The Family Report noted at paragraph 22:

   The relationship between the parents has improved over time.  The writer concurs with Dr D, in that the improvements present as likely to be a result of Ms McAvoy’s efforts to collaborate and include the father in the interventions in place for X.

7. At paragraph 25, the Family Report noted:

   In discussion about his experience of family life, X expressed a balanced view of his parents and his living arrangements.  X identified positives associated with both homes.  He was, however, unable to expand upon his experiences in a meaningful manner.

8. At paragraph 28, Ms E noted the positive interactions between X and both his father and mother and that X remains engaged in paediatric support and treatment, including attending upon psychology for Ms F.  At paragraphs 30 to 34, Ms E observed:

   30. In the previous Family Report, a recommendation was made for X to live primarily with Ms McAvoy.  The view was to provide X with a stable and structured home life and school routine.  Ideally, this would allow X to experience more stability and predictability during the week and be sufficiently rested to maximise his capacity to focus and learn at school.  Ms McAvoy continues to present as a more attuned and responsive parent, whereas, Mr Backert presents as loving and well-meaning but disorganised. 

   31. It is acknowledged that Mr Backert has moved to Suburb C, nearby the mother and close to X’s school.  The benefit to X is that the demands of travel during the school week when he is living with Mr Backert are diminished.  X presents as enjoying a close and loving relationship with both parents and he benefits from spending time in both homes and experiencing the love and input of both parents in his life. 

   32. The assessment of the writer and of Dr D is that Mr Backert presents with more vulnerabilities than the mother, and X is placed at higher potential risk in Mr Backert’s care than in Ms McAvoy’s care.  Mr Backert’s capacity to be organised, attend appointments and act on feedback is lacking.  Ms McAvoy impressed as child focussed and proactive and committed to acting on feedback from professionals to advance X’s development.  Feedback from X’s treating professionals will likely assist in this assessment.

   33. X remains very vulnerable to ongoing impairment to his cognitive, social, behavioural and emotional development.  There is no question that Ms McAvoy and Mr Backert both love X and that X loves both of his parents.  X, however, needs to live with the parent who is better able to identify, respond and manage his range of needs.  X needs stability, predictability and routine if he is to achieve to his capacity.  It is the writer’s assessment that Ms McAvoy presents as better placed to provide this for X than Mr Backert.  Mr Backert remains vulnerable to disorganisation and itinerancy.

   34. Shared parental responsibility should be retained.  It is recommended that X lives primarily with Ms McAvoy.  Significant and substantial time with Mr Backert is supported.  Support is given to X living with Ms McAvoy in week one, from the conclusion of school Thursday until 5pm Sunday and until 5pm Monday in the event of a public holiday.  In the following week, time with Mr Backert should occur from the conclusion of school Thursday until the commencement of school Friday.  Time should occur on special days and for half the school holidays.

9. It is apparent, of course, that the first reference to Ms McAvoy is an error and it should refer to Mr Backert as the recommendations reflect this immediately below in the text of the report.

The evidence and submissions at Court

1. What follows is taken from my notes.

The opening and evidence of the mother

1. Counsel made a brief opening outlining the orders sought.  She sought the orders in her Further Amended Initiating Application filed 13 November 2019 save for Order 3(f).  The mother’s position is that the normal spend-time regime should continue in school holidays.

2. The mother was called and adopted her affidavits as true and correct. 

3. Under cross-examination by the Independent Children’s Lawyer, the mother confirmed that she lives with her own mother and that there are only two bedrooms in the property.  She is looking for a place on her own in the Suburb C area.  She had no difficulty with being restrained from moving beyond a certain distance from X’s school.  She will seek a two-bedroom home and has her learner’s driving licence.  Presently, she walks X to school, which takes 15 minutes.  They would use public transport if necessary.  At the moment, she is in receipt of statutory benefits but is looking for work.  She is undertaking a course and needs to do 120 hours.  Her mental health was poor at the start of the year but is now better.  Work will be during school hours. 

1. Her mother can help in the mornings and other family members could collect X in the afternoons if needed.  If the father was available and she had no other family members, the father could collect the child from school.  He does not know what’s best for X.  It would be okay for the father to collect X and bring him to her. 

2. The disability industry is looking for carers all the time.  She would do day services and no nights.

3. X’s school is in Street H, which is the main part of Suburb C.  There are five to six bus services and it is five minutes from the station.

4. When asked what her concerns were about the week-about arrangement, the mother said she thought four nights per fortnight would be appropriate for X.  X gets in a routine in one house and then goes off to the other house.  Some days, before he goes, he is in tears.  Sometimes, he does not want to go to the father.  She has no clue what his routine is at the father’s house.  There would be a more settled regime for more of the time.  She had read the Family Report. 

5. When they were in the relationship, she did most of the primary duties and the father did not do much at all.  She would go out for one hour and the father would call her to return home.  She has seen Dr D twice and read the reports.  X had told her he has no set bedtime and no discipline with the father.  With her, he is in bed at 8 and asleep by 8.30.  X tells her he goes to bed about 9 o’clock on school nights with the father and does not sleep till 10.  She does not ask him about his bedtime, but he has told her three or four times over three years.

6. The mother said that she and the father go to the behavioural psychologist together.  They shared what happened.  The father says he does not know what to do.  He says he cannot control X’s behaviour.  He cannot control him on the bus on the way to the psychologist.  She has seen the father yelling at X in a shopping centre.  Overnight time with the father is okay, but week-about is too much.  The father’s accommodation has been poor both in Suburb G and Town J.  He now lives in Suburb C.  This is still a concern.  He does not clean up after himself.  He does not provide nutritious meals. 

7. There are problems with X’s cleanliness as the teacher asked that his nails be cut.  She will ensure that X does not play up at school.  X has seen the psychologist quite a few times, 18 if not more.  The father attends also and there are no problems.  They discuss things at changeover.  Some things have been recommended but the father has not tried them.  When X has tantrums, the father does not say no.  She does not know how many more sessions there will be with the psychologist.  The next one is due in January and the last was in October.  They see her when she is available. 

8. When asked about her opposition to X coming into the presence of the paternal grandmother and uncle, Mr B, and whether this was based on the DHHS report, the mother said Ms A (the paternal grandmother) had a huge history with DHHS.  She had a personality disorder and her four children were all taken from her.  They had lived with the paternal grandmother for two months and DHHS were concerned.  The paternal grandmother would not let her mother, so she got postnatal depression and then had to go to hospital for a month and was given antidepressants. 

9. They then went and lived with her own mother for one and a half years, but after that, the mother and her mother had a blue.  He went to his mother for a couple of months.  DHHS were again involved with concerns.  They found their own place at her step-mother’s.  This is in Suburb C and that person does not live there.  The paternal grandmother sometimes visited during the relationship.  She has Munchausen’s by proxy.  The mother was concerned that if X was left alone with her, she did not know what would happen.  The father was unaware how serious the DHHS concerns were.  Time with the paternal grandmother in a public place would be okay. 

10. Mr B, the paternal uncle, is a high drug user of marijuana.  He is living with the paternal grandmother.  He smokes marijuana around X and the father.  He also has a history of violence.  There has been no contact with Mr B for three to four years.  She saw him several times during the relationship.  She has no idea where Mr B lives.  The last she knew was City K in 2015. 

11. When asked about time being spent in the school holidays and longer blocks in the summer holidays, the mother said she would consider this.  She then said that week-about would be okay in the long summer holidays.

12. The father elected not to put any questions to the mother.

The evidence of the father

1. The father confirmed that he sought that the week-about arrangement continue.

2. Under cross-examination by the Independent Children’s Lawyer, the father confirmed he had read Dr D’s report.  He did not attend for an updated report with Dr D because he went to the wrong building.  He went to the city, not Suburb L.  He did not go to the re-arranged interview because he had to pick up the child from school.  He had not attended because he thought he had no need to do so.  He said he could look after the child pretty well and get him to and from school.  He cooks meals every day.  All kinds of meat and vegetables.  They have takeaway once a week.  They sit up every night and read books before he goes to bed at 8 pm. 

3. When it was put to him there had been 20 requests for drug screens, all of which had been refused, the father said he had been doing drug screens.  He just did not have the time to get the results back to the Independent Children’s Lawyer.  He did one or two a day or two ago.  He was put on Sudafed, which could come up as an amphetamine.  A doctor had told him not to do the test. 

4. I should interpolate that the father’s evidence about his undertaking drug screens was equivocal and highly unbelievable.

5. The father said he went to different doctors.  He had had no illicit substances in the past.  He knew drug screens were significant.  He had read the Family Reports, which both recommended shorter time for him but did not accept reduced time.  He understood that the Family Reports had recommended this but did not know why this was the case.  X gets a stable routine at his place and is in bed every night at 8 pm.  He gets the meals he needs and gets to school every day.  He does not want to unsettle the child.  The child is doing better at school at the moment.  There is now only one tantrum per fortnight.  He lets X cool off and leaves him for a couple of minutes to cool down.

6. The father said that the child lived with him for nine months.  He was living in a motel for a few nights and then a rooming house for a couple of months.  Then he moved to Suburb G.  There has been a week-about arrangement since he was living in Suburb G.  He lived in Suburb M six months ago.  He does not drive and uses public transport.  Then he moved to Suburb C.  He travelled from Suburb M to Suburb C with X and got to school on time.  X showed no signs of tiredness.  He had no objection to being required not to move more than five kilometres from X’s school.

7. When asked where his mother lived, the father said she lives in Ballarat.  He sees her in the week when he does not have the child.  He goes on Friday and comes back Sunday or Monday.  He conceded that DHHS had concerns on some occasions but did not now.  They say that have no issues about his mother now.  His brother lives in Town N and has had no contact with X for three to four years.  They have spoken on the phone.  His brother has a bit of a violent temper but has never harmed his nephew.  He has children of his own.  The father lives 15 minutes from the station and walks to school.  He has been renting for six months and has a 12-month lease.  He has been on the housing list for 17 years.

8. After cross-examination by counsel for the mother, the father said he wanted what was best for the child.  The week-about works well.  X has ADHD.  He makes sure that X takes his tablets every day and has made inquiries about a special school, School O.  He has mentioned this to the mother.  There was a stable structure at both homes which should not change.  He is not using drugs.  This is not why he has not complied with the drug screens.  He complied but could not get the results back.  He would do drug screens if he needed to.

The evidence of Ms E

1. Ms E's Family Reports were tendered as exhibits “B-1” and “B-2” respectively.

2. Under questioning by the Independent Children’s Lawyer, Ms E confirmed that it was her recommendation that the equal time regime cease.  She had read the reports of Dr D and was concerned there was no follow-up with the father.  There had been no change to the father’s personality or approach to life.  When asked if her recommendation for a 10/4 arrangement would minimise risks with the father, Ms E said there were two reasons.  First was X’s developmental needs.  He needs stability to do well at school and needs to be with the better parent, who appeared to be the mother.  The second matter was the risk of the father.  These were modified by school attendance.  With professional support such as the psychologist, the school, and the department, overnight time with the father should be acceptable.  X is vulnerable.  Thursday to Sunday would allow predictability with collection every Thursday.  Wednesday might be a possible problem as it would involve too much change.

Final submissions

1. The Independent Children’s Lawyer adopted the mother’s proposed minute of orders, save that orders 3(a) and (b) should be on Thursday to Sunday and Thursday to Friday respectively, and that the summer holidays should be week-about only.  It was submitted that the crux of the case was Ms E, whose report was clear.  There would be more stability during the week, and the child would be sufficiently focused to do well at school.  Counsel noted paragraph 32 of the report where Ms E opined X was more vulnerable with the father.  The proposed orders would reduce the risk with the father.  The father says week-about is the extant routine, but this is just his view.  The experts disagree.

2. The Independent Children’s Lawyer supported an order for equal shared parental responsibility, as the mother can communicate with the father.  The Independent Children’s Lawyer supported the prohibition on the child being brought into the presence of the paternal grandmother, Ms A, or the paternal uncle, Mr B.  Nonetheless, time with the paternal grandmother would be permitted if in a public place.  The uncle has a temper and is prone to violence.

3. Counsel for the mother accepted that there were no difficulties with the Independent Children’s Lawyer’s proposals.  The primary residence should be with the mother and there should be spend-time with the father.  The child has a loving relationship with both parents, but the mother is more attuned to the child’s needs.  The father had not complied with the directions to see Dr D and with 20 drug screens.  There was a stable and structured routine with the mother.  X was vulnerable in respect of his development.

4. In final submissions, the father said he had not much to say.  He sought to retain the week-about for the reasons given in evidence.

Some brief observations about the witnesses

1. The mother impressed me as a clearly truthful and straightforward witness.  She answered questions put to her directly and did not seek to fudge her earlier episode of ill health.  She struck me as insightful and well-attuned to the needs of her child.

2. The father presented with dull affect.  He looked somewhat unkempt and strong body odour was discernible, not only by the associates who were sitting close to him but even by me at some distance.  He impressed me, and I should emphasise that this is in no way a criticism but simply an observation, as being of limited intellect and organisational capacity.  He does, of course, have an intellectual disability and this is wholly a matter for sympathy and not criticism but, plainly, it impacts upon his capacity to parent.

3. Against this background, I turn to the statutory pathway set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65]:

   “Summary

   [65]    In summary, the amendments to Pt VII have the following effect:

   1.  Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.  The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3.  If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4.  The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.  When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6.  The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
   (s 65DAA(5)).

   7.  The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends and holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8.  Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.  The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11.     The child’s best interests remain the overriding consideration.”

Parental responsibility

1. There is no suggestion of family violence in this case, and all parties agree that there should be an order for equal shared parental responsibility.  In the circumstances, it is plainly desirable in X’s best interests that such an order be made.

The live-with and spend-time regime – the primary considerations

1. All parties agree that it is in X’s best interests to have a meaningful relationship with both of his parents, both of whom love him and whom he loves himself.

2. There is no need to protect X from family violence or abuse. There is no suggestion in the materials of any such matters. Where there is a need to protect X is from neglect. The father has impressed the professionals, both Dr D and Ms E, as being less well attuned to X’s interests. That is the evidence of the mother also in Court, and I accept that evidence. This is a matter which, pursuant to section 60CC(2A) is required to be given greater weight. I should make it clear that in saying this, such concerns as there are about X’s development and welfare in his father’s care, arise simply because of the father’s various limitations and X’s own difficulties with ADHD and its concomitant difficulties. I am not suggesting for a moment that the father would wilfully fail to care for X.

The additional considerations

Section 60CC(3)(a)

1. X has not expressed any meaningful views given his age.

Section 60CC(3)(b)

1. X clearly has a well-developed, loving relationship with each of his parents, as Ms E’s reports make clear.  The precise nature of his relationship with the maternal grandmother did not receive any significant, or as I recall it any, emphasis in the case but I note that the mother and the maternal grandmother have got along well enough of recent times.  X has not seen his uncle, Mr B, for three or four years and plainly ought not do so.  I also accept the reservations about the paternal grandmother such that time should only be spent in a public place.

Section 60CC(3)(c)

1. Both of these parents, to an extent, have their deficiencies in this regard.  The father abstracted X over the mother’s objections for a fairly extensive period of time and lived with him in what was, on any view of the matter, very unsatisfactory housing.  The mother then got him back and ultimately, with departmental assistance, the week-about arrangement was put in place.

Section 60CC(3)(ca)

1. Once again the parties’ conduct may be thought wanting in some respects for the reasons expressed immediately above, but this is not a criterion of any moment, given the overarching circumstances. 

Section 60CC(3)(d)

1. This is an important consideration.  Putting the matter shortly, Ms E has recommended that X should spend the majority of his time with the parent who is best equipped to look after him.  I accept that view because all the evidence suggests that it is correct.  Having seen and heard both the father and mother give evidence, it is clear that the mother is the better able to cope with X’s particular problems and difficulties and it is, as she herself says, the mother who will be better able to give X more routine in the regime for which she contends. 

2. While this will obviously distress the father who wants to keep the present equal time regime, there is nothing to suggest that X would not be able to continue to have a warm and loving relationship with his father even in a ten-four arrangement.  Contrary to what the father says, it is not working optimally and the difficulties X has through his father’s more lax approach to lifestyle and control are, in my view, well-established.

Section 60CC(3)(e)

1. There is no practical difficulty or expense in the child spending time and communicating with each of his parents.  I note that both are prepared to accede to an order that they not move more than five kilometres from X’s school, and I will be making an order to that effect. 

Section 60CC(3)(f)

1. Once again, this is an important consideration.  As I find, and as, indeed, both Dr D’s reports and those of Ms E make clear, the mother is the parent with the better capacity to provide for X’s needs.  I repeat again this is not a criticism of the father but simply a finding that the evidence leads to. 

Section 60CC(3)(g)

1. Both the parents have some difficulties.  The mother has the difficulties with speech noted by Dr D and Ms E.  The father has an intellectual disability.  His lifestyle has been at times itinerant and cannot even now be said with certainty to have ceased to be so.  The mother by way of contrast has got her life far more on track.  She is in the process of getting her driving licence and employment.  She will also, in my view, obtain freestanding accommodation.  The mother’s greater maturity and more established life and routine is of course all the more relevant, given X’s ADHD and developmental difficulties.

Section 60CC(3)(h)

1. This is irrelevant.

Section 60CC(3)(i)

1. Both these parents are loving and caring parents who have, despite some limitations and difficulties, an entirely appropriate attitude towards their responsibilities as parents. 

Section 60CC(3)(j)

1. Pleasingly, this is a case in which there is no allegation of family violence.

Section 60CC(3)(k)

1. There are no family violence orders.

Section 60CC(3)(l)

1. Everyone seeks final orders and this is entirely appropriate that these be made.

Section 60CC(3)(m)

1. There are no other relevant matters.

Conclusion

1. The conclusion in this case is readily drawn.  The weight of the independent reports and the evidence as I have found it leads inexorably to the conclusion that it is in X’s best interests that the week-about arrangements cease and that the 10/4 arrangement sought by the Independent Children’s Lawyer and mother be put into place.  I have prepared orders to reflect these conclusions. 

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

Date:  10 January 2020