McCallan & Anor and Roche

[2016] FamCA 860

FAMILY COURT OF AUSTRALIA

MCCALLAN AND ANOR & ROCHE [2016] FamCA 860

FAMILY LAW – CHILDREN – Final parenting proceedings — unopposed orders — family violence — sub-standard parenting capacity — child to reside with maternal grandmother and maternal grandmother to have sole parental responsibility for child

1st APPLICANT:	Ms McCallan (Deceased)
2nd APPLICANT:	Ms Carr (Maternal Grandmother)
RESPONDENT:	Mr Roche (Father)

INDEPENDENT CHILDREN’S LAWYER: Ms Trapski

FILE NUMBER: MLC 4098 of 2014

DATE DELIVERED: 10 October 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 7 September 2015

REPRESENTATION

COUNSEL FOR THE 1ST APPLICANT: Not applicable

SOLICITOR FOR THE 1ST APPLICANT: Not applicable

COUNSEL FOR THE 2ND APPLICANT: Mr Stanley

SOLICTOR FOR THE 2ND APPLICANT: Nicholes Family Lawyer

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hoult

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Trapski Family Law

Orders

IT IS ORDERED THAT:

1.To the extent that it is necessary to do so, I give leave to the applicant grandmother and the independent children’s lawyer to proceed with this final hearing on an undefended basis NOTING THAT the father was called at the door of the Court at 10.35 am and there was no response to the call.

2.The maternal grandmother, Ms Carr, have sole parental responsibility for the child B born … 2011 (“the child”).

3.The child live with the maternal grandmother.

4.For the avoidance of doubt, there is no extant order which entitles the father, Mr Roche, to spend time with the child with the effect the he may only do so with the express agreement of the maternal grandmother.

5.The independent children’s lawyer be discharged.

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

7.Otherwise all extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.

8.I reserve the publication of my reasons for decision this day to a date to be fixed.

IT IS DIRECTED:

9.That the Subpoenaed Documents Clerk of this Registry return any documents produced on subpoena to the owner within 14 days of the release of my reasons for decision this day.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McCallan and Anor & Roche has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: (P)MLC 4098 of 2014

Ms McCallan (Deceased)

1^st Applicant (Mother)

Ms Carr

2^nd Applicant (Maternal Grandmother)

And

Mr Roche

Respondent (Father)

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. On 7 September 2015, I made parenting orders in relation to the child, B (“B” or “the child”) born in 2011 and reserved my reasons for judgment to be published at a later date. These are those reasons.

2. Broadly speaking the dispute is whether the child’s maternal grandmother, MS CARR (“the grandmother”), born in 1966, should have sole parental responsibility for the child and that the child live with her on a permanent basis. The grandmother is the second applicant of these proceedings.

3. The mother, MS MCCALLAN (“the mother”), initiated proceedings in this Court on 15 May 2014. She was terminally ill at the time having been diagnosed with Hodgkin’s Lymphoma and passed away in the middle of 2015, aged 24 years.

4. In the mother’s Initiating Application filed 15 May 2015, she seeks that upon her incapacitation or death the child live with the grandmother and that she has sole parental responsibility for him. In her Further Amended Initiating Application filed 29 June 2015, the grandmother seeks sole parental responsibility for the child; that he live with her; and that the child spend time with his father at such times and on such conditions as agreed between the grandmother and the father. This is supported by the independent children’s lawyer.

5. In his Response filed on 23 September 2014 MR ROCHE (”the father”), sought final orders for him to have sole parental responsibility for the child, that the child live with him, and that the child spend time with the grandmother as agreed between the parties. However, in dialogue at the hearing on 5 May 2015 the respondent father expressed that he would like to have care of the child “part-time” that is fortnightly on weekends and he confirmed this again at the hearing on 19 August 2015. The father has not filed any orders in today’s proceeding.

6. Further issues for my consideration include the father’s psychiatric state and his drug addiction.

Representation of the Child

1. Pursuant to an order made on 14 July 2014, Ms Trapski, Solicitor, was appointed as the independent children’s lawyer for the child within the meaning of Division 10 of Part VII of the Family Law Act1975 (Cth) (“the Act”). Her role is to form an independent view, based on available evidence, of what is in the best interests of the child and then act in these proceedings in what she believes those best interests to be.[1] Ms Trapski is not a legal representative retained by the child and she is not bound by any instructions from him.[2] The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the child are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[4]

   [1] Family Law Act 1975 (Cth) s 68LA(2).

   [2] Family Law Act 1975 (Cth) s 68LA(4).

   [3] Family Law Act 1975 (Cth) s 68LA(5)(d).

   [4] Family Law Act 1975 (Cth) s 68LA(5)(e).

2. Given the child’s age the independent children’s lawyer has not met with him.

Conduct of the Proceedings

1. These parenting applications are proceedings to which the Less Adversarial Trial provisions of Division 12A of Part VII of the Act apply.

2. The principles for conducting child related proceedings, which I observed, are as follows:[5]

   (a)The first principle is that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

   (b)The second principle is that the Court is to actively direct, control and manage the conduct of the proceedings.

   (c)The third principle is that the proceedings are to be conducted in a way that will safeguard the child concerned against family violence, child abuse and child neglect and the parties to the proceedings against family violence.

   (d)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote the cooperative and child-focused parenting by the parties.

   (e)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

   [5] Family Law Act 1975 (Cth) s 69ZN.

3. Section 69ZT operates to exclude various divisions and chapters of the Evidence Act1995 (Cth) which deal with general rules about giving evidence,[6] cross examination,[7] documents, hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character. However, neither s 55 nor s 135 of the Evidence Act are excluded. Therefore it remains the case that:

   a)Only relevant evidence is admissible. Section 55 provides that relevant evidence is evidence which if it were accepted, could rationally affect (either directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings; and

   b)The Court may exclude or limit the use of evidence which is relevant and thus admissible if the Court is satisfied that the probative value of the evidence is substantially outweighed by the danger that the evidence might:-

   i)          be unfairly prejudicial to a party;[8] or

   ii)        be misleading or confusing;[9] or

   iii)       cause or result in undue waste of time.[10]

   [6] With the exception of ss 26, 30, 36 (s 69ZT(1)(a) of the Act refers).

   [7] With the exception of s 41 relating to improper questions.

   [8] Evidence Act1995 (Cth) s 135(a).

   [9] Evidence Act1995 (Cth) s 135(b).

   [10] Evidence Act1995 (Cth) s 135(c).

4. The general duties[11] and the general duties and powers relating to evidence[12] expand the Court’s role in the regulation of child related proceedings.

   [11] Family Law Act 1975 (Cth) s 69ZQ.

   [12] Family Law Act 1975 (Cth) s 69ZX.

5. It has not been possible to include all aspects on which I heard, or on which there was, evidence. Nonetheless I have taken the totality of the evidence into account. Just because I have not mentioned something in these reasons, it does not follow that I did not have regard it.

6. I am satisfied that the case was conducted in such a way as to promote an outcome which would be in the child’s best interests.

Background and Procedural History

1. B’s parents met in March 2010 and commenced a de facto relationship.

2. At the time of the child’s birth in December 2011, the mother and father were living with the father’s mother. They later moved into his sister’s house for a brief period of time. The child is the only child of the relationship. The father has a child of a subsequent relationship however, the date of birth is unclear. It is estimated that the child is under two years of age.[13]

   [13] Transcript of Proceedings, 7 September 2015, 7.

3. In early 2012, the father lost his job as a truck driver and commenced selling drugs.

4. In January 2013 the mother and father moved into a cabin at Suburb C Caravan Park.

5. The parents separated in January 2013 following an altercation whereby the mother alleges that the father tried to stab her with a knife. This incident was reported to the police. No charges were laid.

6. In January 2013, the mother moved into rental accommodation after living with the grandmother for a short period of time.

7. The father did not see the child between January 2013 and September 2013.

8. In March 2013 the mother was diagnosed with Hodgkin’s Lymphoma and commenced chemotherapy in June 2013. She had a stem cell treatment operation in September 2013. The mother and the child moved to live with the grandmother, stepfather and step siblings. She lived with them until she passed away in June 2014.

9. In the period from January 2014 to May 2014 the mother was admitted frequently to the D Hospital for treatment leaving the child in the care of the grandmother.

10. During the time that the mother was living with her mother (the grandmother) the child was under her care and that of the grandmother. As the mother’s health deteriorated the grandmother took over more of the care of the child.

11. The grandmother lives with her ex-husband, Mr E and their two children — the child’s uncle and aunt— Mr F (aged 20 at the time of the hearing) and G (aged 16 at the time of the hearing). The grandmother and Mr E have been separated for seven years but remain in the same house. The relationship between the grandmother and Mr E is amicable. Mr E supports the family financially.

12. In the period from September 2013 to August 2015 the father spent three occasions with the child. The father visited the child twice from September 2013 to June 2014.

13. On 5 March 2014 the father allegedly produced a gun towards his de facto partner, Ms H. He was later charged with having an imitation firearm. Around this time, a Department of Health and Human Services (“DHHS”) reported family violence concerns in the father’s household towards Ms H and her daughter J.

14. As indicated, the mother filed an Initiating Application on 15 May 2014 seeking sole parental responsibility for the child and that he live with her and that upon her death or incapacitation the grandmother have sole parental responsibility for the child and that he live with her.

15. Senior Registrar FitzGibbon made interim orders on 29 May 2014 that the grandmother be joined as second applicant, that a location order be made to locate the father’s address for service, that the mother have sole parental responsibility for the child and that he live with her or in the event of her death, with the grandmother. The matter was adjourned until 14 July 2014.

16. The mother passed away June 2014.

17. On 7 July 2014, the grandmother filed an Amended Initiating Application seeking sole parental care for the child and that he live with her.

18. Senior Registrar made interim orders on 14 July 2014 that the father make, file and serve a Response and supporting affidavits no later than 4 August 2014. The matter was adjourned until 26 August 2014.

19. On the 21 August 2014 the independent children’s lawyer wrote to the father as he had not complied with the order of 11 July 2014 in that he had not filed a Response or Affidavit and put him on notice that the independent children’s lawyer would not oppose the application of the grandmother if he did not file any material.

20. The matter came before Senior Registrar FitzGibbon on the 28 August 2015. The father was present and indicated that he intended to file material however his legal aid funding had not been granted. Senior Registrar made orders that the father file his material and that he undertake drug testing within 24 hours of any written request made by the independent children’s lawyer.

21. The independent children’s lawyer sent two drug screen requests (via letter and via letter and text on 28 August 2014 and 9 September 2014 respectively). No results were provided.

22. The father filed a Response on 23 September 2014 seeking final orders for him to have sole parental responsibility for the child, that the child live with him, and that the child spend time with the grandmother as agreed between the parties. In his affidavit affirmed 17 September 2014 he deposed at [4] as follows:

    … whilst I used to take drugs I no longer use drugs and have been clean for 4 months now. I am willing to undergo a drug test if the Applicant Grandmother or the Court sees that this is necessary.

23. The independent children’s lawyer sent two drug screen requests (via letter and text on 26 September 2014 and 9 October 2014). No results were provided.

24. The matter returned before the Senior Registrar on 14 October. Orders by consent were made that following assessment, the father spend time with the child at I Contact Centre, as nominated by the Centre and supervised by staff; that the grandmother deliver and collect the child from the Centre; that the father may engage a private supervisor in the alternative if approved by the independent children’s lawyer; and the father not to commence time with the child before three consecutive drug screens are completed and clear; or time with the children will be suspended until this is complied with.

25. The grandmother completed the necessary paperwork and intake procedures to avail the family of the Contact Centre service. The father did not. The I Contact Centre has subsequently closed the file and there is no longer an active place on the waiting list for the family.[14]

    [14] Transcript of Proceedings, 7 September 2015, 10.

26. The independent children’s lawyer sent seven drug screen requests (via letter to his solicitor between 27 October 2014 and 19 February 2015). No results were provided.

27. The father last saw the child on the 28 December 2014.

28. The father’s solicitor filed a Notice of Ceasing to Act on 25 February 2015 and again on 16 April 2015.

29. The independent children’s lawyer sent a drug screen request (via letter to the father on 20 April 2015). No results were provided.

30. The matter came before me in the Family Court on 5 May 2015 for a Case Management Hearing. The father did not appear and I directed that he be contacted by telephone (which he was). During this hearing the father advised me that he was homeless and had been for 3–4 weeks. It was my understanding that the father was seeking sole parental responsibility for the child however he informed me as follows:

    [MR ROCHE]: No, I just want him part-time.

    HER HONOUR: What sort of part-time do you want?

    [MR ROCHE]: Like fortnightly, like fortnight on weekends.

31. The independent children’s lawyer had attempted to contact the father by mail, text message or telephone on five occasions between 8 May 2015 and 15 May 2015. Mail was returned to her office unopened and no return calls were made by the father.

32. I made procedural orders and set the matter down for final hearing commencing 7 September 2015, anticipating a 2–4 day hearing.

33. Mr K, Family Consultant, released the Family Report on 11 August 2015. Mr K had interviewed the grandmother, had a telephone consultation with the independent children’s lawyer and observed the child with the grandmother. The father was not present at the interviews for the report. Mr K made the following recommendations at [47]:

    -That the child lives with his grandmother.

    -That [the grandmother] has sole parental responsibility for the child however that she keeps [the father] appraised (sic) of any major issues that affect the long term welfare of the child.

    -That the child does not spend time with his father unless [the father] completes drug screens and these are clear and submitted to either the ICL and/or [the grandmother].

    -If [the father] complies with the above, then any time spent by the child with his father takes place at a professionally supervised contact centre.

    -That if the father contests this matter he is assessed by a suitable psychologist as to his overall psychosocial functioning capacity.

Evidence

1. I have regard to the following evidence and documents from the applicant father:

   a)his Response to Initiating Application filed 23 September 2014; and

   b)His Affidavit affirmed 17 September 2014.

2. The father has not filed any further documents since his lawyers, Bayside Solicitors, filed a second Notice of Ceasing to Act on 16 April 2015. The father’s proposal for the care of the child is unknown at this time.

3. At the trial the applicant grandmother relied upon the following evidence:

   a)Outline of Case document filed 31 August 2015;

   b)Her Further Amended Initiating Application filed 29 June 2015;

   c)Affidavit of Ms Carr affirmed 24 June 2015;

   d)Affidavit of Mr E affirmed 26 June 2015;

   e)Undertaking as to Disclosure of Ms Carr filed 29 June 2015; and

   f)Family Report of Family Consultant, Mr K, dated 11 August 2015 (“the Family Report”).

4. The materials and evidence arranged by the independent children’s lawyer were as follows:

   a)Outline of Case document filed 31 August 2015;

   b)The Family Report;

   c)Documents produced under subpoena by:

   i)Victoria Police (regarding the father and the father’s partner);

   ii)Victoria Police;

   iii)Department of Health and Human Service (“DHHS”).

1. There were no significant objections taken to the admissibility or fairness of the evidence relied upon. I accept the grandmother’s evidence and I accept the expert opinion set out in the Family Report.

Proof and findings of fact

1. Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.

2. A statement of fact is a finding of fact.

Procedural Fairness

1. The respondent father was not present at the hearing but was given notice of the orders sought by the mother and the Independent Children’s Lawyer.

2. As outlined in Ms Trapski’s affidavit affirmed 6 July 2015, following a location Order made by Senior Registrar FitzGibbon on the 29 May 2014, the father filed a Notice of Address on 14 July 2014 stating his address as L Street, Suburb C, Victoria 3021. On the 23 September 2014 the father filed a Response and Affidavit listing his solicitor at Bayside Solicitors as the address for service. On 16 April 2015 Bayside Solicitors filed a Notice of Ceasing to Act listing the father’s address for service at the address in Suburb C along with his contact number.

3. During the hearing before me on the 5 May 2015 there was no appearance on behalf of the father. He was contacted by telephone and submitted that he had not received notice that the matter was in court that day. When queried about his postal address he gave the Suburb C address. He said he did not live there but that it was his mother’s home. The father advised the court that he was homeless and had been for three to four weeks and therefore was not living at that address. He said he was in M Town at the time staying with his father. Nevertheless, the father agreed that notification regarding the Family Report should be sent to this address. I informed the father as follows:

   anything sent to [L Street, Suburb C] will be deemed to be served on you … I will consider that it has been served on you. I will consider you’ve got it whether you’ve got it or not. If it’s sent it will be considered to be received by you.[15]

   [15] Transcript of Proceedings, 5 May 2015, 5.

4. During this hearing the father became quite agitated suggesting I “make him angry”. I said the following:[16]

   HER HONOUR: All right. I would caution you not to use profanities and swear at the court, however, there’s a certain advantage to parties who represent themselves. They’re not filtered by legal representation. That’s probably happening here. The hearing will be appointed for – in fact, I will appoint it now. If you fail to comply with any directions by putting in evidence or going to the family report expect the hearing will continue in your absence and be finalised without any input by you, that is, if you don’t do something it’s not going to hold anything up.

   [16] Transcript of Proceedings, 5 May 2015, 6.

5. The father did not attend the interview for the Family Report on 11 August 2015 and was not able to be contacted.

6. The father participated in the mention before me on 19 August 2015 via telephone conference. He said that he had not received the Family Report. When questioned further he said “things had changed” and he no longer talked to his mother. The dialogue continued as follows:[17]

   [17] Transcript of Proceedings, 19 August 2015, 3.

   HER HONOUR: All right. Things do change, but that’s not anyone’s problem but yours and you need to inform the court.

   [MR ROCHE]: I’ve got my own problems at the moment, you know what I mean?

   …

   HER HONOUR: Are you unable to give the court an address for service?

   [MR ROCHE]: That’s what I’m trying to say. I’ve got my own problems at the moment.

   HER HONOUR: Yes. Well, I will ask for the third but final time. Are you able to give the court an address for service? In the absence of that, documents will continue to be sent at the address you last gave.

   [MR ROCHE]: Yes, send them there.

   HER HONOUR: I beg your pardon?

   [MR ROCHE]: Yes, send that at my mum’s.

7. I informed the father that if he did not attend court on the 7 September 2015 the matter would very likely proceed in his absence without further input by him. I made it clear that his non-attendance would not prevent the matter proceeding and that he should go to his mother’s house and collect the Family Report (and read it carefully) as soon as possible.[18]

   [18] Transcript of Proceedings, 19 August 2015, 4 and 5.

8. In her Affidavit affirmed 6 July 2015 the independent children’s lawyer deposes at [7]–[20] to requests that were sent to the father in relation to filing material in preparation for today’s hearing and 12 requests to undergo drug screen tests within 24 hours; she also wrote to the father enclosing an application form to Family Life to ensure that he had a copy. The envelope containing the correspondence and the application form was returned to her office marked “NTA Return”.

9. On 12 May 2015, the independent children’s lawyer’s assistant contacted the father’s partner, Ms H asking the father to call her office. No call was received.[19]

   [19] Affidavit of Alison Trapski affirmed 6 July 2015, [21].

10. On 14 May 2015 the independent children’s lawyer again wrote to the father enclosing copies of the subpoenas filed to Victoria Police and New South Wales Police. The unopened envelope was returned on 28 May 2015 marked “RTS Not at this address” and the address was scribbled out.[20]

    [20] Affidavit of Alison Trapski affirmed 6 July 2015, [22].

11. As a result of the returned mail, the independent children’s lawyer’s assistant called the father on the number provided to the court and left voice mail messages asking him to return her call. Calls were made at 12.10 pm and again at 2.00 pm. The independent children’s lawyer did not receive a telephone call from the father.[21]

    [21] Affidavit of Alison Trapski affirmed 6 July 2015, [23].

12. The independent children’s lawyer deposes to having sent a text message to the father on 15 May 2015 at 4.28 pm to the telephone number he provided to the court. The message read as follows:[22]

    We received returned mail from [L Street, Suburb C]. Please contact our office on … and provide an alternate address ASAP. If you do not, you will not receive important information from us and the Court. Alison Trapski, Independent Children’s Lawyer.

    [22] Affidavit of Alison Trapski affirmed 6 July 2015, [24].

13. There was no appearance by the father at the hearing before me today. There was no response when he was called at the door of the court at 10.35 am, nor was an application to be heard filed electronically. Counsel for the independent children’s lawyer informed the court that he had called the respondent three times that morning and was unable to leave a message as there was no answering machine. Further, all previous orders contained notations indicating that if the father did not attend the hearing, the matter would proceed undefended.

14. I am satisfied that the father has been accorded procedural fairness.

Relevant law – parenting issues

1. These proceedings are brought under Part VII of the Act. Pursuant to s 60CA of the Act, in deciding to make any parenting order in relation to the child, I must regard the child’s best interests as the paramount consideration.

2. Section 60B of the Act defines the objects of Part VII as to “ensure that the best interests of the children are met” by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   These objects may be regarded as the core values of the legislation.

3. The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the child’s best interests:

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. Section 60B(4) of the Act provides that an additional object is to give effect to the Convention on the Rights of the Child[23] to which Australia became a signatory on 22 August 1990. Amongst other things, the Convention seeks to ensure that signatory states implement laws so that laws and actions affecting children put their best interests first and benefit children in the best possible way, that authorities in each state party protect children and help ensure their full development — physically, spiritually, morally and socially — and that children have a right to have their say in decisions that affect them and to have their opinions taken into account.

   [23] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 44 (entered into force 2 September 1990).

5. I do not perceive there to be any conflict between children’s rights as articulated in the Convention on the Rights of the Child and the application of Part VII of the Act to the determination of this matter.

6. Section 65D of the Act provides that, subject to some associated provisions to which I will come later in these reasons, the court can make such parenting order as it thinks proper.

Determining the child’s best interests

1. In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration. In determining the best interests of a particular child, I am required to consider two primary considerations and several additional considerations, listed in s 60CC of the Act.

2. The primary considerations echo the first two objects set out in s 60B of the Act. The primary considerations are set out in s 60CC(2) and are described as follows:

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

   with greater weight to be given to the need to protect child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence[24]

   [24] Family Law Act 1975 (Cth) s 60CC(2)(b).

3. Both primary considerations are relevant to my determination of this case but I am mandated to accord greater weight to the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence than to the children’s right to know and experience their father.[25] This factor requires a prospective evaluation. As such, I must assess the future risk of exposure by the child to physical or psychological harm and formulate orders which protect him from that harm.

   [25] Family Law Act 1975 (Cth) s 60CC(2)(b).

4. The father has not demonstrated a consistent level of engagement and commitment to these proceedings and while a poor litigant does not make a poor father, it does not engender confidence in me as to the father’s ability to promote a positive relationship with his son. Nor am I confident he would promote a positive relationship between the child and the grandmother and her family.

5. The grandmother however, has demonstrated a willingness to promote a positive relationship between the child and his father as long as it is conducted in such a manner that would protect the child from harm.

6. The grandmother told Mr K that she openly discusses the child’s mother with him and they visit her grave and that she also discusses his father with him if he mentions him. She maintains links with the child’s paternal aunt and her children.[26]

   [26] Family Report prepared by Mr K, dated 11 August 2015 [37] and [33].

7. B currently resides in a loving and supporting family environment with his grandmother. In contrast, the home environment of the father and his de facto partner, Ms H is characterised with episodes of family violence and drug abuse. Further, in the Family Report, the writer notes at [4] that the relationship between the mother and the father “was characterised by family violence by [the father] against her and indirectly their son”.

8. The father has a long-standing history of drug addiction to Crystal methamphetamine (“ice”) and although he reports to have been clean for four months, he has not participated in drug screen testing. The fact that his new partner, Ms H, is reported to be a habitual ice user may be indicative of a continuation of ice use by the father. Mr Stanley, Counsel for the grandmother, said that when the grandmother last saw the father at the child’s 3^rd birthday party in late 2014, she observed him to have “facial scabs and formed the view that the father was using what she concluded to be the drug ice on that occasion”.[27]

   [27] Transcript of Proceedings, 7 September 2015, 9.

9. In addition to this, the father has a well-documented criminal history relating to drugs, unlawful assault, recklessly causing injury, theft and unlawful possession of a firearm.

10. B would benefit from having a meaningful relationship with his father if the father was able to provide stability, routine and be free from illicit substances. I am not satisfied that the father is able to provide these for the child exacerbated by the fact that the father is unemployed and without fixed accommodation.

11. Nor is there evidence to suggest that the father has addressed the issues he has in regard to family violence and thus remains a potential risk to the child if he was in his care. The father’s abusive behaviour towards the court, coupled with the family violence allegations and reported incidents do not give me confidence he would be able to conduct himself appropriately outside the court system.

Treatment of the additional considerations

1. The additional considerations listed in s 60CC(3) of the Act are numerous but not exhaustive. It is only necessary to consider those which are relevant to this case. I propose to have regard to the relevant additional considerations in the context of evaluating the primary considerations, namely, securing for the child what benefit that may flow from having a meaningful relationship with both parties and so as to ensure that he is protected from harm and exposure to abuse, neglect or family violence.

2. Finally s 60CC(3)(m) of the Act requires me to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed.[28]

The child’s views[29] including the child’s maturity, sex, background and other characteristics[30]

[28] B and B: Family Law Reform Act (1997) FLC 92-755.

[29] Family Law Act 1975 (Cth) s 60CC(3)(a).

[30] Family Law Act 1975(Cth) s 60CC(3)(g).

1. In determining what is in the child’s best interests the Court must consider, amongst other factors, any views expressed by the child and any other factors that the Court thinks are relevant to the weight to be accorded to the child’s views.

2. At the time of the hearing the child who is three years and eight months old is too young to express a view.

3. In the Family Report Mr K describes the child as “shy” and “quite clingy with the grandmother”.[31] However, he notes at [38]: “Brief observations of the child with his grandmother were unremarkable and left no doubt that he identifies with her as his parent figure”.

The nature of the children’s relationships[32] and the capacity of the parents to meet the children’s needs[33] and the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents[34]

[31] Family Report prepared by Mr K, dated 11 August 2015 [37] and [36].

[32] Family Law Act 1975 (Cth) s 60CC(3)(b).

[33] Family Law Act 1975 (Cth) s 60CC(3)(f).

[34] Family Law Act 1975 (Cth) s 60CC(3)(i).

1. I consider the nature of the child’s relationship with each of the parents and other persons inclusive of grandparents and other relatives. In determining what is in the best interests of the child, I need to consider the capacity of the parent or of any other person to provide for the needs of the child, including emotional and intellectual needs.

2. As previously mentioned, the child’s mother is deceased. Consequently, the child lives with the maternal grandmother and her family.

3. B has developed a close and loving relationship with the grandmother. He has lived with her and been under her care since June 2013 when his mother was diagnosed with Hodgkin’s Lymphoma and moved back in with her mother and step-family.

4. In addition, the child has a close and loving relationship with his extended maternal step-family; his maternal step-grandfather; and his maternal aunt and uncle.[35]

   [35] Affidavit of Ms Carr, affirmed 24 June 2015, [42]-[47].

5. In spite of the interim orders made by Senior Registrar FitzGibbon in October 2014 enabling the father to spend time with the child at I Contact Centre (or alternatively in the presence of a professional supervisor) on the proviso that the father provide to the independent children’s lawyer three consecutive drug screens clear of illicit substances, the father has spent very little time with the child.

6. The father visited the child to spend time with him twice during the period between September 2013 to June 2014. The grandmother told Mr K that the two visits comprised “a fleeting half hour visit” and the other whereby he stayed overnight. The third and last time the father saw the child was at an event held for his 3^rd birthday in late 2014.[36]

   [36] Transcript of Proceedings, 7 September 2015, 9.

7. B has spent time with the father’s sister and her two sons but this was limited.

8. The grandmother provides for the child’s everyday needs and the extended family contribute to supporting the child. In the Family Report, Mr K reports at [45] as follows:

   [B] is currently cared for by his maternal grandmother within what appears to be a supportive, stable and loving family environment. His physical and emotional needs are being met by his grandmother and other’s (sic) around him in a manner that suggests notwithstanding the child’s loss, he is coping and thriving. The need to maintain this stable and supportive environment is imperative, particularly in light of the loss of his father from his life as well.

9. It is clear that the child’s needs have not been a priority for the father as demonstrated by his inability to provide clear drug screen test results and not taking advantage of the orders to spend time with him at the I Contact Centre.

10. It is highly likely that the father’s parenting skills are limited.

11. The father’s lifestyle, which involves homelessness, drug abuse, criminal activity and family violence, is such that he poses an unacceptable risk to the child if he was in his care. The father continues to have matters in the criminal court. The father’s Victoria Police records reveal an extensive record of offenses over a number of years including: unlawful assault; recklessly causing injury; theft of a motor vehicle; unlicensed driving; theft; and possession of a firearm.

1. I am satisfied that the father’s capacity to meet the needs of the child is compromised particularly when he is homeless, without employment and continues to use illicit substances. He has not displayed nor, in my view, does he have, the capacity to meet the emotional and intellectual needs of the child.

2. The grandmother demonstrates a positive attitude to the child and to the responsibilities of parenthood. She has been involved in the child’s care since he was 15 months old. She demonstrates empathy and compassion towards the father and was supportive of the idea that the child should have a relationship with his father. As noted by Mr K in the Family Report:

   [30]. [The grandmother] reported that she had on a number of occasions in the past made overtures to [the father] to spend time with the child, with little if any results in terms of him following through. [The grandmother] reported that [the father] had on a few occasions in the past year contacted her children via social media and enquired as to the child’s well being. In such instances he has been fully appraised (sic) as to the child’s health and social circumstances. [The grandmother] pointed out that having suffered the loss of one parent the child did not need the loss of his other parent. [The grandmother] expressed the view that it is in the child’s best interests to have a close relationship with his father. [The grandmother’s] sentiments and intent are best summarised by her comment that “Ideally I’d like the child’s father to be involved in his life. He’s lost his mother already so he does need his father”.

   [31]. [The grandmother] stated that, sadly, it would seem that [the father] in her view has certain problems that he does not appear able to address and overcome. [The grandmother] became emotional when discussing such matters relating to the child, the loss of his mother, and the current circumstances involving his father’s absence from his life. [The grandmother’s] narrative and overall emotional affect suggested genuine and heartfelt emotion at the current circumstances affecting her grandson.

   [32]. [The grandmother] stated that she believed that [the father] actually did love his son, and would not harm the child intentionally. However she felt that given his current psychological and social circumstances, the child’s exposure to his father in anything but a supervised environment was against his best interests.

   …

   [34]. In summary, [the grandmother] presented as a reasonable and considerate woman. Her attitude, narrative and demeanour suggest that she has a genuine desire for her grandson to have a relationship with his father as long as the circumstances of the child’s involvement with his father are undertaken in a safe environment …

3. I am confident that the grandmother has effectively taken over as the parent of the child and has actively contributed to meeting the child’s everyday needs, his welfare and development. The grandmother has, and continues, to provide the emotional and intellectual support he requires.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child[37] and the extent to which each of the parents have fulfilled or failed to fulfil his/her obligations to maintain the child[38]

[37] Family Law Act 1975 (Cth) s 60CC(3)(c).

[38] Family Law Act 1975 (Cth) s 60CC(ca).

1. As discussed above, the father has had very little, if anything, to do with the child since January 2013. The father has only seen him twice (and at most three times) in almost two years, between September 2013 and the time of the Family Report interviews took place on 3 August 2015.

2. The grandmother reported to Mr K, Family Consultant, that although he did attend the child’s birth “he was quite an uninvolved father”.[39] While the father refutes this allegation in his affidavit, his lack of involvement in making decisions, communicating with the child and spending time with him appears to have continued. There is nothing in the evidence before me that indicates that the father is an interested and engaged parent.

   [39] Family Report prepared by Mr K, dated 11 August 2015 [4].

3. The father failed to make an application for orders in relation to the child in today’s proceedings, and other than his brief affidavit of 17 September 2014 at [7] where he states

   … the situation has now changed somewhat as my ex-partner has since deceased. I am now requesting for the child to live with his grandparents and I see him only on weekends and after a year he lives with me and sees his grandparents on a regular basis,

   it is difficult to know exactly what he wishes for the child. This is further compounded by his comments mentioned earlier in these reasons where at the Case Management Hearing on 5 May 2015 the father said he was seeking care of the child “part-time”.

4. The father did not attend the Family Report interviews, has been uncontactable by telephone and has had difficulty being reached by the Court, the independent children’s lawyer and practitioners. He has failed to undertake 12 drug screen requests made by the independent children’s lawyer and has not participated, by choice, in supervised time with the child at the I Contact Centre and has subsequently forfeited his place on the Centre’s waiting list.

5. Nor has the father contributed financially towards maintaining the child. He pays no child support nor provides any additional financial support to the child’s care. The majority of costs associated with the child are met by the step-grandfather including his day-to-day living expenses, medical and education costs. In his affidavit affirmed 26 June 2015 the step-grandfather deposes at [15] to providing the “majority of financial support for [the grandmother] and the children and the child, which includes paying the mortgage, utilities and groceries however, [the grandmother] also contributes whenever possible”.

The likely effect of any changes in the children’s circumstances[40]

[40] Family Law Act 1975 (Cth) s 60CC(3)(d).

1. In determining what is in the best interests of the child I am required to consider the likely effect of any change in the child’s circumstances particularly in relation to separation from his parents, other children, wider family including grandparents and other persons with whom the child has a relationship.

2. B has lived with the grandmother since September 2013 when his mother was admitted to hospital. As previously discussed the father has not had a significant relationship with the child, he has not spent any meaningful time with the child having last seen him in late 2014 for the child’s 3^rd birthday.

3. It is important to maintain stability for the child. As Mr K in the Family Report notes:

   [41]. By all accounts, it would appear that since the parents separated there has been minimal time spent by the child with his father. This seems to be directly related to what appears to be a substance abuse problem for [Mr Roche], with associated social problems and issues as indicated by Victoria Police, DHHS records and by some information supplied by [Mr Roche] during his last Court appearance whereby he admitted to being “homeless”. Thus, it would seem from the information available that [Mr Roche] may indeed have a range of issues and problems that would most definitely impinge on his capacity to provide stability and adequate parenting for his son.

   [42]. [The child] is a young boy who has suffered perhaps one of the most significant traumas for a child, namely the loss of a parent at a very young age. Research indicates that there may be many negative outcomes associated with childhood bereavement as a result of the loss of a parent. Generally, children who lose one or both parents at a young age are generally at greater risk of substance abuse, greater likelihood of depression, higher risk of criminal behaviour, school underachievement and lower employment rates.

   [43]. If these negative outcomes are to be mitigated then it is important that social disruptions for a child are kept to a minimum and that there are adequate supports in place. The following extract from a recent research study encapsulates this issue well: “The analysis confirms that moving home and separation from family and friends made adjustment to parental death significantly more difficult and increased stress in the bereaved child … broader research on childhood trauma suggests that the quality of the relationships within the family influences a child’s recovery after trauma occurs … the findings suggest that where possible child/children remain in existing social networks (e.g. live in the same area, go to the same school and maintain the same friendships and other social affiliations). Our research suggests that if the social network addresses the necessary “mothering/fathering” then a child does not appear to be affected in adult life”. …

   [44]. In this instance the situation is somewhat further compounded by the fact that the child’s other parent, his father is absent from his life, and that he appears further compromised by his incapacity as a result of what appear to be severe substance abuse and other psychosocial issues and thus appears to have had minimal contact with the child.

   [45]. [The child] is currently cared for by his maternal grandmother within what appears to be a supportive, stable and loving family environment. His physical and emotional needs are being met by his grandmother and other’s around him in a manner that suggests that notwithstanding the child’s loss, he is coping and thriving. The need to maintain this stable and supportive environment is imperative, particularly in light of the loss of his father from his life as well.

   [46]. Given these observations, albeit somewhat limited, due to the nonattendance of the father, there is nonetheless sufficient other information to provide a reasonable representation of the circumstances in this matter. As such the immediate requirements for [the child] would appear to be quite evident.

   I accept that evidence.

The practical difficulty and expense associated with face to face time and/or communication with the other parent[41]

[41] Family Law Act 1975 (Cth) s 60CC(3)(e).

1. There is no practical difficulty of the child spending time, and communicating, with the father. The father was able to register with the Contact Centre and participate in supervised time with the child however he failed to take advantage of this opportunity.

2. Currently, the father has no fixed address. On the 5 May 2015 and 19 August 2015 the father indicated that he was unemployed and homeless (although assumed to be living with his father in M Town) and therefore will have difficulty meeting expenses to maintain a personal relationship with the child and have direct contact with him on a regular basis. In the hearing on the 5 May 2015 in consultation about how the father proposed to accommodate the child if he had him “part-time” the father responded as follows:[42]

   [42] Transcript of Proceedings, 5 May 2015, 5–6.

   [MR ROCHE]: Clearly, I will have a house by then, so ‑ ‑ ‑ 

   HER HONOUR: How will you get a house?

   [MR ROCHE]: How? Rent.

   HER HONOUR: How would you pay the rent?

   [MR ROCHE]: Work, money, you know, earn some money.

   HER HONOUR: Okay. Well, what has been wrong in the last two or three weeks that you’ve been homeless?

   [MR ROCHE]: Pretty much just looking for a house.

   HER HONOUR: But are you looking for a job?

   [MR ROCHE]: A job? How am I supposed to fucking get a job if I’m fucking homeless?

   HER HONOUR: Right.

   [MR ROCHE]: And I’ve got no car, and I’ve got no licence.

   HER HONOUR: That’s what I’m asking. How are you going to have ultimate ‑ ‑ ‑ 

   [MR ROCHE]: You just send that out to me on July and I will – and I – 100 per cent I will have a house and that by then.

   HER HONOUR: So it’s 100 per cent certain in your mind you’re going to have a house, a car ‑ ‑ ‑ 

   [MR ROCHE]: Yes.

   HER HONOUR: ‑ ‑ ‑ and a job?

   [MR ROCHE]: Yes.

   HER HONOUR: Okay. And you will have somewhere to accommodate your son?

   [MR ROCHE]: Yes, and I’m going to rub it in your face when you think I’m fucking no hope.

Any family violence involving the children or any member of the children’s family and family violence orders[43]

[43] Family Law Act (Cth) ss 60CC(3)(j) and (k).

1. As noted above, the definition of family violence provided in s 4AB of the Act is broad and may include threatened or actual violence toward a person, members of their family or their property.

2. It is alleged that when the mother and father were together, the father perpetrated family violence against the mother. In January 2013, while no charges were laid, the police were called to an incident at the mother and father’s home whereby the father had threatened to stab the mother with a knife. The grandmother collected the mother and the child from the police station and took them back to her home to care for them. She deposes that the mother decided to drop all charges.[44]

   [44] Affidavit of Ms Carr, affirmed 24 June 2015, [39].

3. B was only 4 weeks old and was present during the altercation. In the Family Report, Mr K reports at [22] that DHHS involvement was brief and no concerns were found in relation to the mother’s capacity to care for the child.

4. In her affidavit, affirmed 24 June 2015, the grandmother deposes:

   [28]. [B’s mother] called me on a number of occasions sounding extremely upset and asking me to come over to her home to assist her with the child. I would often collect [the mother] and [the child] and bring them back to my home so that they could have a break from [the father]. I recall on one occasion [the father] became very aggressive towards me for coming over and demanded that I leave immediately. His behaviour was frightening. From observing these incidents I suspected that their relationship was deteriorating.

   …

   [30]. [The mother] and [the child] subsequently [to the knife incident] moved to rental accommodation in [N Town] with [the mother’s friend]. We ensured that [the father] did not have any of [the mother’s] contact address. [The mother] told me that she would occasionally take the child to see his father, however, that the child was never left unattended with [the father].

5. Further subpoena material from DHHS indicated that there were incidents of family violence by the father against his current partner, Ms H and her daughter. DHHS expressed concern regarding Ms H’s parenting capacity.[45] Mr K reports:

   [25]. In a DHHS file note, there appears confirmation by DHHS of the above mentioned incident whereby a “gun” was produced by [Mr Roche]. In a file note dated 28^th August 2014, the following is recorded: “On the 05/03/2014, the current concerns are surrounding a Family Violence incident where there was allegedly a gun produced, (by [Mr Roche]) this was witnessed by two others. Concerns are the lack of responsibility and acknowledgement that the mother and her defacto partner ([Mr Roche]) have shown surrounding this incident. The concerns also pertain to the 8 previous reports on the 2.5 year old J, where there is ongoing evidence of ICE use in the family home”. (DHHS File notes P3, 28-8-2014).

   [45] Family Report prepared by Mr K, dated 11 August 2015 [24].

6. An intervention order was made on 14 April 2014 against the father protecting Ms H and her daughter.

7. There are no extant Intervention Orders.

8. In conjunction with the father’s episodes of family violence he has an extensive criminal history. He is well known to police and has been involved in a wide range of criminal matters — the father has matters before the Magistrates’ Court currently on foot.

9. In relation to the father, Mr K concludes in the Family Report at [27]:

   In summary, and notwithstanding the non attendance of [Mr Roche], it would appear that the observed public record by way of Victoria Police and DHHS records portrays a rather concerning and disturbing personality profile of [Mr Roche]. There is very little doubt that [Mr Roche] has very serious psychosocial problems and is most likely very unstable in terms of his current level of social and psychological functioning as well as possible substance abuse. As such it is unlikely that he would be able to fulfil his parenting duties in a manner that would be conducive to the overall benefit of his son.

   I accept that evidence.

Any other fact or circumstance the Court thinks relevant[46]

[46] Family Law Act (Cth) s 60CC(3)(m).

1. As discussed the child currently resides in a stable and caring environment. He has a supportive and loving extended family including step-aunt and step-uncle who regard him as their brother and a step-grandfather that the child calls “Poppy”.[47]

   [47] Affidavit of Mr E, affirmed 26 June 2016, [13] and [8].

2. B is a young boy who has experienced a great deal of trauma having lost his mother and a father that is next to absent. Nevertheless, Mr K noted at [36]–[37] in the Family Report during his observations of the child that

   … he presented as a well kempt and healthy looking boy. He was noted to be quiet and he was quite “clingy” to his grandmother however after a brief time to reassure him he did separate well from her, and appeared to play well on his own. It was noted however that [the child] was uninvolved with other same age children present on the day. His grandmother reported that he had been deliberately withheld from social contact such as day care whilst his mother had been ill out of fear that he would contract illnesses and thus compromise his mother’s health due to her lowered immunity. As such, it would appear that [the child] has perhaps to some degree not had as much socialisation as he normally might have.

   He interacted with this writer in play with a variety of toys, however his affect was noted to be subdued and his language whilst age appropriate was also similarly sparse. Discussions with his grandmother revealed that whilst [the child] is somewhat reserved and shy initially, once he is familiar with someone he tends to “open up” and is much more animated and outgoing than noted during the observations.

3. B at the time of the hearing was attending 3 year old kindergarten twice weekly and will attend 4 year old kindergarten in 2016. He is confident and communicates well with his family. The grandmother believes that “B has adjusted well to the loss of his mother and she has not noticed any behaviours indicative of psychological problems”.[48]

   [48] Family Report prepared by Mr K, dated 11 August 2015 [37] and [33].

Parental responsibility

1. Section 61DA of the Act provides that when making a parenting order,[49] I must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.

   [49] Family Law Act (Cth) s 64B(2)-(4A) defines “a parenting order” and what a parenting order may provide.

2. Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[50] Equal shared parental responsibility relates to decision making about “major long term issues”, which is defined in s 4 of the Act as follows:

   … issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:

   a)  the child’s education (both current and future); and

   b)  the child’s religious and cultural upbringing; and

   c)  the child’s health; and

   d)  the child’s name; and

   e)  changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.

   This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents.

   [50] Family Law Act 1975 (Cth) s 61B.

3. Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[51] The concept of shared parental responsibility carries with it the requirements to “consult the other parent in relation to the decision to be made about that issue”[52] and to “make a genuine effort to come to a joint decision about that issue”.[53] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility is shared.

   [51] Family Law Act 1975 (Cth) s 65DAC(2).

   [52] Family Law Act 1975 (Cth) s 65DAC(3)(a).

   [53] Family Law Act 1975 (Cth) s 65DAC(3)(b).

1. The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:

   a)If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[54] or abuse of the child or another child who is a member of the parent’s family;[55]

   b)If, at an interim hearing, the court considers it is inappropriate for the presumption to apply[56] or;

   c)Where evidence is adduced, upon which the court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[57]

   [54] Family Law Act 1975 (Cth) s 61DA(2)(b).

   [55] Family Law Act 1975 (Cth) s 61DA(2)(a).

   [56] Family Law Act 1975 (Cth) s 61DA(3).

   [57] Family Law Act 1975 (Cth) s 61DA(4).

2. In this case it is not in the child’s best interests for the grandmother and the father to have equal shared parental responsibility. The father has spent little to almost no time with the child since January 2013 when the father and mother separated. On his own volition, the father has not participated in any long-term decision making in relation to the child, he has provided nothing financially towards his everyday care, and has offered little to no support towards his general welfare and development.

3. Along with his long-standing history of drug addiction, his criminal history and family violence, the father has failed to engage with these proceedings, failed to comply with 12 drug screen requests, and failed to take advantage of the orders providing for him to spend supervised time with the child. I conclude that it would be wholly impracticable for the grandmother to have to consult with the father over decisions concerning the child.

4. Taking all of the above considerations into account I am satisfied that the grandmother have sole parental responsibility for the child and that she keep the father apprised of any major long-term issues that affect the child’s welfare.

Consideration of equal time or substantial and significant time with both parents

1. By virtue of having determined that it is not in the child’s best interests for the parties to have equal shared parental responsibility, it is not necessary for me to consider whether it is in the best interest of the child or reasonably practicable for the child to spend equal or substantial and significant time with the father.

2. Any time spent with the father is to be agreed in writing by both parties and time spent must be supervised. Given his addiction to the drug ice I am also satisfied that no time by the father shall be spent with the child unless the father has submitted clear drug screen results.

Conclusion

1. For the above reasons, I am satisfied that the Order set at the commencement of these reasons is in the best interests of the child.

I certify that the preceding one hundred and thirty six (136) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Legal Associate:

Date: 10 October 2016