McGowan and Hahn
[2018] FCCA 2626
•31 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCGOWAN & HAHN | [2018] FCCA 2626 |
| Catchwords: FAMILY LAW – Parenting – allegations of drug use – where the mother is seeking hair follicle testing of the father – whether the father’s time with the child be supervised – whether there is a condition precedent to the father spending unsupervised time with the child – whether there is an unacceptable risk to the child if unsupervised time with the father is ordered. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 60B, 61C, 61DA, 65DAA(5), 65F |
| Cases cited: Deacon & Castle [2013] FCCA 691 Jones & Dunkel (1959) 101 CLR 298 M v M (1988) 166 CLR 69 A v A [1976] VicRp 24; (1976) VR 298 Other Articles |
| Applicant: | MR MCGOWAN |
| Respondent: | MS HAHN |
| File Number: | PAC 2445 of 2018 |
| Judgment of: | Judge Harman |
| Hearing date: | 31 August 2018 |
| Date of Last Submission: | 31 August 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 31 August 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Maddox |
| The Respondent appearing in person |
PENDING FURTHER ORDER:
The father shall, within 14 days of today’s date, attend upon such collection agency as is necessary to provide a hair sample for the purpose of hair follicle testing, to be arranged and undertaken at the mother’s expense and upon provision of any testing report the father shall provide to each of the parties a copy of the report and cause the report to be filed with the Court.
Until a hair sample is provided by Mr McGowan pursuant to the above Order, Mr McGowan shall be and is hereby restrained from causing the cutting, shaving, or removal hair from any part of his person.
Each party shall file and serve all Affidavit material upon which they propose to rely upon at final hearing by close of business 8 February 2019.
List the matter for call over on 22 February 2019 at 9.30am.
Pursuant to section 13C of the Family Law Act 1975, the mother shall forthwith and within seven (7) days contact the intake officer of Relationships Australia Sydney for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the provision of Family Counselling services by that organisation and, subject to the assessment of suitability, the mother shall then:
(a)Attend at such times, dates and places as may be advised and so as to participate in and complete such sessions of Family Counselling as are assessed as suitable and offered ; and
(b)Pay such fees as may be charged.
Pursuant to section 13C of the Family Law Act 1975, the mother shall forthwith and within seven (7) days contact the intake officer of Relationships Australia Suburb A for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the provision of Family Counselling services by that organisation and, subject to the assessment of suitability, the mother shall then:
(a)Attend at such times, dates and places as may be advised and so as to participate in and complete such sessions of Family Counselling as are assessed as suitable and offered ; and
(b)Pay such fees as may be charged.
In the event that the provision of service is determined to be inappropriate or service is withdrawn or declined then the Family Counsellor or agency providing same is requested, pursuant to s.13D, to advise the Court in writing of that fact.
That the child [X], born 2017, shall live with her mother.
That [X] spend time with her father:
(a)Each Wednesday from 4:15pm to 6:30pm;
(b)Each Friday from 9am to 3pm;
(c)Each Saturday from 9am until 3pm, provided that:
(i)For the weekend of 1 and 2 September 2018, time shall instead occur on Sunday 2 September 2018, being Father’s Day; and
(ii) No time shall occur on Saturday 8 September 2018.
That changeovers be carried out by the parties only and be in front of (store) in Shopping Centre or, if the mother notifies the father at least 24 hours prior that she is at Suburb B, then changeover near the entrance escalators to Woolworths at Suburb B.
That before spending time with [X], the father notify the mother where he will be spending time with [X].
Noted that the mother:
(a)Is still breastfeeding [X];
(b)Has today returned to the father the engagement ring previously given to her by the father;
(c)May allow the father additional time with [X] prior to a final hearing, particularly if [X]’s breastfeeding ceases.
IT IS NOTED that publication of this judgment under the pseudonym McGowan & Hahn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2445 of 2018
| MR MCGOWAN |
Applicant
And
| MS HAHN |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to future care arrangements for a young child, [X], born 2007. [X] is, as would be apparent, one year of age.
The parties to the proceedings are [X]’s parents, Mr McGowan, her father and the Applicant, and Ms Hahn, her mother and the Respondent.
The proceedings were commenced by an Initiating Application filed on 1 June 2018. That Application first came before the Court on 12 July 2018. On that occasion, both parties appeared, the father in person and represented by Counsel, the mother by telephone.
A number of Orders were made on that date, including the requirement for a Response to be filed. The proceedings were adjourned to permit that to occur. Orders were also made to facilitate the engagement of the parties with family counselling services. That engagement would not appear to have occurred, but further Orders will be made today to facilitate family counselling in light of the present residence of the parties in Suburb A and Suburb C respectively.
The proposals of the parties
The parties are substantially at odds as to the arrangement that will best meet young [X]’s needs in the future. Her father seeks, on a final basis, that [X] with live with her mother. The parties are not in issue as regards that. The father seeks that the parties have equal shared parental responsibility. The parties are very much in issue with respect to that. Finally, the father seeks that [X] would spend time with him on alternate weekends from Friday to Sunday and periods from Thursday to Sunday in intervening weeks, together with other periods of time including, ultimately, school holidays and the like.
That relief may be pressed at final hearing or may be amended. It may well have been anticipated, at the time the proceedings were commenced, that the hearing of the matter would be significantly delayed. However, on the basis that the matter would not appear to require a Family Report, the matter can be advanced to trial relatively quickly, subject to the parties’ preparation therefore.
Ms Hahn proposes that she be allocated sole parental responsibility for [X], that [X] live with her and that [X] spend time with her father, on both an interim and final basis, for a period of two hours on Mondays, two hours on Wednesdays, and three hours on a Friday. Importantly, the mother proposes that all time to be supervised.
It is clear from that which has been submitted today, that the requirement of supervision is specifically connected with the desire by Ms Hahn to obtain certain further drug testing reports in the nature of a hair follicle test. Ms Hahn suggests that, subject to the results of that test, it may well be the issue of supervision is no longer pressed.
For today’s purposes, the issues are somewhat more limited. The parties have engaged in some significant discussions, as a consequence of which a document has been prepared by Counsel for the father, which will be marked exhibit A, signed and dated by me today.
The parties are agreed on certain aspects of that document, but not all. In essence, the three issues that the Court is required to determine are:
a)Whether there is a condition precedent to the father spending unsupervised time with [X], being the provision of a “clear” hair follicle test;
b)Whether time periods each Friday and Saturday, as are agreed between the parties, will conclude at 1 pm or 3 pm, Ms Hahn proposing the earlier time, Mr McGowan, the latter; and,
c)Whether a hair follicle test is to be ordered.
Those three issues can conveniently be dealt with as part of the same discussion.
Material considered in dealing with the proceedings today
I have read and considered each portion of material identified by the parties. In the case of Mr McGowan, those portions are set out in a short written document to be retained upon the Court file and in the case of Ms Hahn, orally identified by her. In any event, I have considered not only those portions of the Affidavit material, but also the Initiating Application and Response and the Notices of Risk filed by each of the parties.
I am conscious that Ms Hahn is self-represented today. However, as I previously observed, (see for example, Deacon & Castle [2013] FCCA 691), the rules of procedure, evidence and the application of law to facts and circumstances is the same, irrespective of whether the parties are legally represented or not. If there is to be a departure from judicial process, as discussed and defined by the High Court of Australia, then that is a matter for Parliament to legislate. Until that time, one cannot provide favour or accommodation in favour of one party or the other. It would be to deny due process and the perception of justice to parties who are legally represented. That being said, however, Ms Hahn is articulate and strident in the presentation of her position.
The substantial issue that connects with all three of the above issues, although not suggested to completely define or address those issues, are allegations with respect to the father’s suggested drug use. In that regard, it must be observed that the evidence addresses the following:
a)Ms Hahn suggests that on a number of occasions, particularly an occasion in February of this year and December 2017, that the father has admitted drug use to her. The specific terms of said admissions are not known;
b)The mother suggests that on 22 December 2017, the father not only admitted drug use, but was also significantly intoxicated. It should be observed that one of the portions of material relied upon by the father is a typed schedule of times that he has spent with young [X]. That includes a period of time, for example, on 23 December 2017 when both parties drove together to the Region 1 area to visit the father’s extended family. The father and [X] were dropped off by Ms Hahn and spent a period, as he describes it, approximately three hours, with his family, although he was critical of Ms Hahn that she had continuously called him during that time saying, “Time’s up, buddy.” In any event, the occurrence of that period of time does not appear to be in dispute.
The admissions suggested in February 2018 are not particularised. A significant issue arises on the basis not only of the evidence of Ms Hahn but what is suggested to be direct observation by two persons, a work colleague or former colleague of the father, a Mr A, who has signed what purports to be an Affidavit that is annexed to the mother’s Affidavit, together with an Affidavit of Ms Hahn’s brother, Mr T.
Each of these witnesses would suggest that at a funeral or wake for Ms Hahn’s father, which occurred at the Town W Hotel, that the father purchased a quantity of drugs, suggested by Mr T a quantity of drugs with a value of $3000, and to have supplied those drugs to various others as well as having been observed snorting cocaine in the bathroom of said hotel. Those allegations are denied by Mr McGowan.
Mr McGowan has tendered a urinalysis testing report, 24 August 2018, which report does not suggest the detection of any substance including cocaine, although the half-life of cocaine, for the purpose of testing, is relatively short. The other drugs tested for, methadone, opiates, amphetamines, cannabis and benzoids, are also not detected. It is suggested that this is one of four urinalysis-testing reports obtained by Mr McGowan in recent past.
Mr McGowan gives evidence that he is drug-tested regularly as part of his employment, both breath testing in relation to alcohol and a different form of testing in relation to drugs. That, as well as being raised in the Affidavit material of Mr McGowan, has also been the subject of some limited inquiry by Ms Hahn, who, on 20 August, emailed Mr McGowan’s employer seeking to be advised of specific details as to where a subpoena might be addressed. Those details were provided on the same date, indeed within 20 minutes or so of the request. A subpoena has not yet been issued, but may be issued in due course. For today’s purposes, that evidence is not available, merely that the ability to issue the subpoena is clearly known to both. I do not suggest that a Jones & Dunkel (1959) 101 CLR 298 inference arises in favour of either party.
The additional issue that particularly relates to time is the reality that Ms Hahn breastfeeds young [X]. That certainly is a matter of some real importance. It is not only important to the child’s nutrition, but issues of bonding and attachment, as observed by the Full Court of the Family Court of Australia.[1] In dealing with these limited issues, however, I do not propose to canvas the evidence further or refer to specific portions of the evidence by reference to the legislative provisions, which must be considered. Reference will be made of aspects of the evidence by reference to those provisions.
[1] Jackson & Macek [2015] FamCAFC 114; (19 June 2015).
In turning to the legislative provisions, I must commence with section 60CA of the Family Law Act 1975, which reminds the Court that in all that is done, the child’s best interests are the paramount consideration.
I must then have regard to section 60B of Family Law Act 1975, containing the objects and principles of the Act. The objects and principles do not form part of the substantive law to be applied to the facts and circumstances of the case but do direct the Court as to how those provisions might be interpreted and applied, as well as prescribing the outcome which the Court should endeavour to achieve.
By reference to the objects, the Court must ensure that the child’s best interests are met by ensuring that children have the benefit of both parents having a meaningful involvement in the child’s life to the maximum extent consistent with their best interests, and that children are protected from physical or psychological harm, through subjection or exposure to abuse, neglect or family violence. The Court must make Orders that ensure that children receive adequate and proper parenting. In that regard, the allegations with respect to drug use levelled against Mr McGowan would speak to issues of neglect, (a term not defined within the Act, but if given its common English usage, might have relevance).
Certainly, a child of [X]’s age, a little over one, requires stable, consistent and sober parenting at all times. It would be disadvantageous for the child if it were not so. Issues of sobriety, as suggested on Ms Hahn’s evidence, connect not only to the allegations of drug use but use of alcohol. Portions of the evidence in relation to the use of alcohol are unhelpful, such as, for example, Mr T’s evidence which commences with a general criticism of the father in his capacity as a player for a (sports team) competition, suggesting that he is unreliable as a player, often suffering injuries and being scheduled to work and thus not attending games. That might suggest that there is some predisposition of the witness towards the father, although I do not pursue it further. The evidence of Mr T with respect to drug use is confined to the funeral or wake to which I have already referred, although the evidence goes on to suggest that during a ski trip some months earlier, that Mr McGowan was witnessed to take cocaine and smoke marijuana. Mr T’s evidence goes on to suggest having witnessed Mr McGowan engaging in use of Tinder, a dating app, gambling, drinking and buying drinks for other women. Those latter allegations would not appear to be pressed as issues of risk.
The issue of sobriety might well be addressed through injunctive restraint requiring that Mr McGowan not consume alcohol during or for a period of time prior to any period that he might spend with [X], particularly if he is to have unsupervised time with her. That would have importance and relevance, as Ms Hahn as a young, single mother of this child, might warrant, desire, indeed require some reassurance that the parent to whom she is delivering [X] will be and will remain at all times sober. Coleman J sitting as a single Judge constituting the Full Court of the Family Court of Australia discusses that, for example.[2] That is, however, I am satisfied, an adequate and sufficient address of that concern.
[2] Green & Graham [2011] FamCAFC 248; (22 December 2011).
In relation to the issue of drugs, I am conscious that it is conceded that four urinalysis tests have occurred in recent time that have shown nothing. That does not, however, end the issue, certainly not for Ms Hahn, nor necessarily evidentially. The half-lives of the substances tested for, save and except cannabis, are extremely brief, ranging from one to three days.
Whilst there is some basis to the issue of reassurance, as is suggested by the above authority, there have been periods of unsupervised time spent by Mr McGowan with [X] notwithstanding Ms Hahn’s knowledge of the suggested use of cocaine in November 2017 and possibly other allegations. Indeed, the schedule to Mr McGowan’s earlier Affidavit sets out an extensive list of such periods of time, including the period on 23 December, immediately following his suggested observation as heavily intoxicated, and possibly affected by drugs, together with periods of unsupervised time in March 2018 and April 2018, respectively.
Certainly, the relationship between these parents is not good, hence the need for their participation in family counselling services extends well beyond that which the Family Law Act 1975 requires.[3] Family counselling assistance becomes a matter of necessity for this young child. She has two parents who need to cooperate and be able to communicate with each other on some level if they are to meet her parenting needs. She is a very young child who is dependent on others for care, nurture and support. That requires not only capable and competent parenting by each parent whilst she is in their care, but an ability to co-parent to some extent, as there is a great deal of parenting left to be done for this child before she is able to meet her own needs. Accordingly, the family counselling Orders previously made will be repeated to overcome any perceived difficulties with their implementation or compliance.
[3] Section 65F of the Family Law Act 1975 requires, with limited exceptions, the participation and attendance of parties in Family Counselling before final Orders can be made.
In relation to the pre-condition, however, I am satisfied that a forensic purpose is served by hair follicle testing as well as reassurance to the mother. That is particularly so, as Ms Hahn proposes that she will pay for the test. There is, of course, the practical difficulty that it is readily clear and apparent that Mr McGowan has a very short haircut, thus any sample will need to be obtained from some other part of his person. They are matters for Mr McGowan and the pathology centre with whom he engages. The Court need not address it further. If it cannot occur for those reasons, then that is a simple reality.
Orders will be made for hair follicle testing together with a restraint, until such time as a sample is provided, upon further cutting, shaving or removal of hair. As indicated, testing will not only potentially provide some reassurance for Ms Hahn, assuming that its outcome is the same as the urinalysis tests undertaken by Mr McGowan, but a forensic purpose in putting that issue to bed, ending the line of inquiry, as it were. One would hope that is the outcome.
In relation to the periods of time, however, there is little by reference to those issues which would be determinative in favour of one proposal or the other. Certainly, I am conscious of and accept that which is raised by Ms Hahn with respect to breastfeeding.
The father proposes a period of six hours, the mother four hours. I will deal with that issue further by reference to section 60CC of the Family Law Act 1975, but from the outset, it is also spoken to by the objects, which require a maximisation of meaningful involvement. Further, the principles provide rights for the child, subject to the caveat that such rights are neither enlivened nor practiced when to do so would be contrary to the child’s best interests. The child’s rights include a right to know and be cared for by both parents, spend time and communicate with both parents, and have parents share duties and responsibilities.
All of those provisions would suggest that the Court should, with the caution and caveat that any Order must be consistent with the child’s holistic best interests, maximise the time that is spent. I accept and appreciate that for a breastfeeding mother that any delay in the child’s feeding might be physically uncomfortable for them. It might also create some degree of distress for the child.
However, it does not obviate against a longer period of time. We are not talking about overnight periods, thankfully so, as Mr McGowan does not seek to press any such issue on an interim basis. It is a matter of as much time as can be accommodated in light of the practical realities for these parties, living a significant distance apart, albeit within the Sydney area, but at the Region 2 fringes thereof, Suburb C and Suburb A respectively, and with a meeting between them in the middle, as it were, at Suburb D.
The objects and principles certainly support time proceeding as soon as possible. On the basis that hair follicle testing is ordered, Ms Hahn agitates that the results should be known before any step is taken to remove supervision. However, there is also the reality of the four clear urinalysis reports. That gives some comfort. There is, accordingly, an issue as to whether the child is subject to an unacceptable risk if time is ordered which is not supervised. I am not satisfied by reference to, for example, the discussion of unacceptable risk undertaken by Tree J in Johns & Jasipas [2016] FamCA 471 incorporating paragraphs 46 to 48 thereof herein, that an unacceptable risk is established in those circumstances.
At paragraphs 46-48 Justice Tree had said:
The notion of unacceptable risk
46. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
47. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At [25] the Court said as follows:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
48. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[4]
[4] Taken from B Mahendra, “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
Mr McGowan has been, whether through an employment condition or otherwise, proactive in undertaking drug testing and producing results. There is no suggestion that Mr McGowan has ever been drug-affected at any time that the child is in his care. Beyond the evidence, which suggests that on a date in November 2017, Mr McGowan, at a time of distress for all concerned, was engaged in drug use, drug use that Mr McGowan denies, there is nothing to suggest that Mr McGowan has ever actively engaged in such use.
By reference to the questions that are posed by Murphy J in Harridge & Harridge [2010] FamCA 445, I am further satisfied, with the forensic evidence presently available, that an unacceptable risk is not made out. If hair follicle testing were undertaken, and it suggested some basis for concern, it would be open to Ms Hahn to make an Application for variation if that was considered necessary and appropriate. However, at this point, I am conscious of imposing the same rhetorical questions as Murphy J had to himself as follows.
What harmful outcome is potentially present?
I have no evidence that the father has ever had the child in his care whilst drug-affected. If he were drug-affected, that may pose a risk to the child through either neglect or incompetence of parenting.
However, in the absence of any past suggestion that this has occurred, or that supervision has been sought, (noting Ms Hahn’s evidence that when she has suspected that Mr McGowan has been either hungover or experiencing the consequences of recent drug use, he has phoned in sick to work and/or not presented himself – again, allegations Mr McGowan denies). That is subject to the period on 23 December, when Mr McGowan is suggested to have been drunk and drug-affected the day before, to Ms Hahn’s knowledge, but he was still permitted to spend time with the child. It is not suggested that a harmful outcome arose.
That is not to suggest that the Court should allow or permit risk. It is simply that on occasions when the very circumstance and scenario suggested by Ms Hahn to pose such risk have been suggested as present, there has been no such outcome.
What is the potential of it coming about?
I accept the submissions put by Counsel for the father that the vigilance of these proceedings and ongoing testing would, even though the allegations are denied, present a real wake-up call for Mr McGowan to ensure that he is squeaky clean, as it were.
What risks are probable in the short, medium or long-term?
There are two risks to balance here. One is the risk suggested by Ms Hahn that, as a consequence of Mr McGowan’s suggested drug use and/or past abuse of alcohol, that the child would not be adequately cared for whilst in his care. There is no suggestion that she has ever not been adequately cared for in the past, notwithstanding those allegations.
Importantly, notwithstanding knowledge of the allegations, indeed, from direct observation on occasions, periods of unsupervised time have occurred, proceeded and have been without incident. On that basis, that risk, I am satisfied, is the lesser of the two.
This child is in or about to enter a serious and significant phase of bonding and attachment, which, if anything is to be gleaned from attachment theory, will be the building block for her future relationships not only with her parents but others. Accordingly, the greater risk is to the child’s attachment and the prospect of it proceeding in any secure fashion as a consequence of further interruption in the father’s time. This is particularly so, noting the correspondence that the parties have exchanged between themselves and, at times, the father’s legal representatives. That correspondence makes clear that:
a)There is no love lost between the parties;
b)Time has recently ceased to be practiced (and as a consequence, possibly based on legal advice to the father to not seek to press time in light of allegations which have been or might possibly be raised, time is not occurring); and,
c)The mother asserted in a text message that now that proceedings are on foot, the determination of time will need to await this Court event.
That risk of interference with the relationship is real and far more real than the risk agitated by Ms Hahn. That risk is probable whereas the other risk is possible.
What are the factors that would increase or decrease the problem?
In relation to the father’s suggested drug use or alcohol, I am satisfied that there are two factors. Firstly, to Order hair follicle testing, as the mother seeks, and at her expense as she proposes. Secondly, the restraint I have already suggested for the father to not consume alcohol during or for a period of 12 hours prior to any visit. Of course, the latter portion of such an injunction is not readily capable of being policed but is, in any event, an important injunction compliance with which would be expected.
In relation to the risk to the child’s bonding and attachment, I am satisfied that can best be addressed through time being Ordered. Hair follicle testing as a condition precedent, would interfere in that arrangement.
The requirement for supervision is not made out by reference to the above questions and the responses thereto and, in any event, would render the arrangement impractical. Neither party can afford it on an ongoing basis. That, of itself, is not the determiner of the issue. However, by reference to the question posed, to seek to ascertain risk, supervision is simply not bear out as is necessary.
What measures are available that could mitigate risk?
These measures are the same as above.
On that basis, I do not propose to make an Order for supervision as a condition precedent or otherwise.
In then turning to section 61DA of the Family Law Act 1975, I must consider whether the presumption of equal shared parental responsibility applies.
Neither party seeks an Order allocating parental responsibility at this time, and accordingly, section 61C of the Family Law Act 1975 would apply. Each parent would have parental responsibility while [X] is with them, thus joint and severable parental responsibility. I am satisfied that this is the appropriate Order on an interim basis in light of subsection (3). The parties have a live controversy as to the allocation of parental responsibility. There are matters which, if findings were made, although such findings are not available at this interim hearing, with limited and untested evidence, it may be inappropriate for an equal shared allocation of parental responsibility.
That being so, I am not obliged to consider equal and substantial and significant time prior to considering any other time arrangement. I propose to consider all time arrangements at large by reference to section 60CC of the Family Law Act 1975 to which I now turn.
Primary considerations
I must commence with the primary considerations, being to the benefit to the child of a meaningful relationship with both parents, and the need to protect the child, the latter prioritised over the former by subsection 2A, but subject to the above discussion.
I am not satisfied, for the limited periods of time, whether four hours or six hours, that the need for the protection is invoked. The benefit to the child of a meaningful relationship must be considered in light of the discussion by Brown J in Mazorski & Albright [2007] FamCA 520, adopted and affirmed by the Full Court of the Family Court of Australia. The relationship should be meaningful from the child’s perspective. For a child of this age, entering a phase of bonding and attachment, that means that the child is given a broad range of parental experience which permits her to form such a bonding and attachment, it is not merely an issue of time. It is the amount of time, but also that which occurs during the time. The time need be sufficient to allow and permit the father, as it were, to conflate, the noun and verb for one moment, to parent - to feed the child, put the child down for sleeps, let her sleep and wake her up, address her and soothe her if she wakes distressed, to engage not only in play but active parenting. They are all important parts of forming a secure bonding and attachment. The more time that is available, subject to the caveat that too much time might impede the formation of bonding and attachment as causing distress or separation anxiety for the child, the better. That would lend some slight support to the father’s more abundant period, although, it is qualitative, a matter of four hours or six hours.
The father has certainly, in the past, had periods of time with the child, including unsupervised periods of up to three hours at least. There is no suggestion that his capacity to parent the child would not accommodate the longer period, nor that the child would not cope with it.
Additional considerations
Views
Clearly, the child is not of an age where her views would carry any substantial weight, even if they could be expressed non-verbally.
Nature of the child’s relationship with each parent and other persons
The father suggests that on limited occasions, the child has had some interaction with his extended family. The arrangement that is proposed would make that difficult unless those extended family members were traveling to the area in which time would occur. It is improbable that the father would be in a position, collecting the child in Suburb D, and whether a four or six hour period, to then transport himself and the child to the Region 1 area for that to occur. Those relations, thus, are secondary to the more important primary attachments which this child should have the opportunity to form with each parent.
The extent to which each parent has failed to take the opportunity to participate in decision-making to spend time and communicate with the child
The father has not failed in that regard. The evidence suggests, from each parent’s perspective, that there may have been impediments, whether intended or otherwise to that time occurring. But Orders made today will obviate those difficulties.
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
This factor is not agitated as an issue of relevance.
The likely effect of change, including separation from either parent.
This has some relevance.
Certainly, the child’s separation from her mother will cause some interruption in on demand breastfeeding. It will not preclude breastfeeding, however. It will simply impede it for the limited periods, three times per week, that the father will be spending time with the child, one of which is an incredibly brief period, 4.15 to 6.30, the others either four or six hours. I am satisfied that the effect on the child will not ultimately be detrimental, and will carry with it the potential benefits of exercising a period with the father that will permit the beginnings of bonding and attachment.
Practical difficulty and expense
I incorporate herein section 65DAA(5) of the Family Law Act 1975. The parents live a significant distance apart, a far greater distance than appeared on the first return date. The mother’s address for service is given as a property at Suburb B. The mother in fact lives at Suburb C. The father lives at Suburb A. It is a significant distance to travel, particularly as Ms Hahn indicates that she is dependent upon public transport. She would thus be catching at least a bus, if not also a ferry and then a train to get herself to Suburb D.
Both parties have committed themselves and demonstrated a willingness to facilitate time, whether it is the shorter or the longer period. Perhaps the practical difficulty might best be used as a basis for suggesting that a longer period might be ideal. That would be so particularly with Friday and Saturday periods. The parties are agreed as to the fairly limited period on Wednesdays.
The capacity of the parents to implement an arrangement is not impacted - either is achievable.
The capacity of the parents to communicate and resolve difficulties is presently poor and may be aided by family counselling interventions, although that is a matter for the parties. The Court can mandate therapeutic intervention. It cannot compel its outcome.
The impact on the child is already addressed.
Capacity of the parents
I am satisfied that Mr McGowan is capable of meeting this child’s needs for a period of either four hours or six hours, thus it does not aid the determination.
The maturity, sex, lifestyle and background of the child
As indicated, this is an extremely young child who requires capable and consistent sober parenting at all times. I am satisfied that the father’s evidence, including the forensic testing he has submitted himself to, would suggest that he has capacity for either period.
Aboriginality
This is not an issue in the case as neither party identifies as Aboriginal or Torres Strait Islander and thus nor does the child.
Attitude
This is adequately addressed above.
Family violence
Allegations are raised, but they are not pressed as evidence of significance for the purpose of this determination.
Family violence orders
There are none in place between these parties at present.
Whether it is preferable to avoid future proceedings
Future proceedings cannot be avoided. This is an interim determination. What can be done to aid the avoidance of future proceedings, is to engage the parties in family counselling and have the parties prepare their cases as quickly as possible so that the matter might be listed and heard as soon as possible.
There is no reason in this case, to depart from the Court’s usual practice of requiring the parties to file their evidence prior to allocation of hearing dates. I propose to require both parties to file their material by the end of the year. That will also have the benefit of allowing each party to give evidence as to the success, or otherwise, of the arrangements that will be Ordered today, they then having operated over a period of at least some months before their material is before the Court. If material is filed promptly and as directed, the matter can be listed for hearing quickly and certainly in the first half of 2019.
For those reasons, I am satisfied that Orders can and should be made as follows (see Orders).
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 19 September 2018
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