McKenzie and McKenzie and Anor

[2012] FamCA 266

FAMILY COURT OF AUSTRALIA

MCKENZIE & MCKENZIE AND ANOR [2012] FamCA 266

FAMILY LAW – CHILDREN – Best interests of the child – With whom a child lives – With whom the child spends time – Parental responsibility – Non-parent seeking orders as to parental responsibility and live with arrangements – Young child and primary attachment to non-parent – risk in relation to mother’s history of substance abuse – no orders made in respect of a parent.

Family Law Act 1975 (Cth)
Mental Health Act 2007 (NSW)

Donnell & Dovey (2010) FLC 93-428
G & C [2006] FamCA 994
Goode & Goode  (2006) FLC 93-286
Hort & Verran (2009) FLC 93-418
Malcolm & Monroe and Anor (2011) FLC 93-460
Mazorski & Albright [2007] FamCA 520
Mulvaney &Lane (2009) FLC 93-404

APPLICANT: Ms McKenzie

RESPONDENT FATHER: Mr McKenzie

RESPONDENT MOTHER: Ms Lester

INDEPENDENT CHILDREN’S LAWYER: Coleman Greig Lawyers

FILE NUMBER: PAC 474 of 2009

DATE DELIVERED: 26 April 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 8, 9, 10, 11 August; 31 October and 5 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ladopolous

SOLICITOR FOR THE APPLICANT: Dignan & Hanrahan Solicitors & Attorneys

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Weaver

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Coleman Greig Lawyers

Orders

(1)That all existing Orders be and are hereby discharged.

(2)That the child, T Lester born … October 2007, live with the Applicant, Ms McKenzie.

(3)That the Applicant have sole parental responsibility for the said child.

(4)That the Applicant keep both the mother and father advised of the child’s progress, including but not limited to matters of wellbeing, health, education or extracurricular activities. Such communication be via email or SMS transmission.

(5)That the mother be entitled to communicate with the Applicant by SMS transmission or email any concerns she has or any suggestions she wishes to make for the progress and wellbeing of the child.  The Applicant shall give due consideration to such matters as are raised by the mother, but in the event of no agreement being reached then the Applicant shall be the person to make the final determination or decision. 

(6)That the mother spend time with the child as follows:-

(a)       Until the child commences school:-

(i)Each Wednesday from 10.00 am to 3.00 pm;

(ii)For the first three Saturdays in each four week cycle commencing

28 April 2012 from 10.00 am to 3.00 pm;

(iii)On the child’s birthday, being … October, from 10.00 am to 3.00 pm;

(iv)On the mother’s birthday, being … December, from 10.00 am to 3.00 pm;

(v)On Mother’s Day from 10.00 am to 3.00 pm;

(vi)Such other times as the Applicant and the mother may agree to in writing.

(b)       Upon the child commencing school:-

(i)Each alternate weekend from immediately after school on Friday to immediately before school on the next ensuing Monday;

(ii)On the child’s birthday if it falls on a school day from immediately after school to 7.00 pm, extending to 8.00 pm in E.D.S.T.;

(iii)On the mother’s birthday if it falls on a school day from immediately after school to 7.00 pm, extending to 8.00 pm in E.D.S.T.;

(iv)On Mother’s Day from 10.00 am to 3.00 pm;

(v)Such other times as the Applicant and the mother may agree to in writing.

(c)From 7.00 pm on 25 December to 7.00 pm on 26 December in 2012 and each alternate year thereafter.

(d)From 7.00 pm on 24 December to 7.00 pm on 25 December in 2013 and each alternate year thereafter.

(7)For the purpose of Orders 6(a)(i) to (vi) above, the mother shall collect the child from McDonald’s Family Restaurant at … and shall return the child to that place at the conclusion of each such period of time.

(8)For the purpose of Orders 6(b)(i) to (v) above:-

(a)For the purpose of Orders 6(b)(i) to (iii), the mother shall collect the child from the child’s school.

(b)For the purpose of Order 6(b)(i), the mother shall return the child to the child’s school.

(c)For the purpose of Orders 6(b)(ii) to (iii), the mother shall return the child to McDonald’s Family Restaurant at ….

(d)For the purpose of Order 6(b)(iv), the mother shall collect the child from and return the child to McDonald’s Family Restaurant at ….

(e)For the purpose of Order 6(b)(v), changeover shall occur at such places as agreed between the parties.

(9)For the purpose of the mother spending time with the child at Christmas as per Orders 6(c) and (d) above, the mother shall collect the child from the Applicant’s place of residence at the commencement of each Christmas period of time.  The Applicant shall collect the child from the mother’s residence at the conclusion of each such period of time. 

(10)That in the event the mother is not available to attend to spend time with the child, she is to provide notice of her inability to attend to the Applicant two (2) days prior to the non-attendance, via SMS transmission.

(11)That each of the parties be and are hereby restrained from denigrating the other parties in the presence of or in the hearing of the child or permitting the child to remain in the presence of or in the hearing of any person who is denigrating the other parties.

(12)That each party notify the other parties as soon as practicable in the event that the child:-

(a)suffers any illness or injury requiring attendance at or admission to a hospital or requiring specialist medical treatment; and

(b)will need to be given medication whilst in the care of the other parties.

(13)That the Applicant shall:-

(a)provide the mother and the father with the names and contact details of any medical practitioners who treat the child and shall provide authorities to those treating practitioners to enable the mother and the father to obtain information about the child’s medical status from such practitioners; and

(b)provide the mother and father with the names and contact details of any day care centre, pre-school or school which the child may attend from time to time and shall provide authorities to those day care centres, pre-schools and schools to enable the mother and the father to obtain copies of progress/school reports, newsletters and school photos relating to the child from such day care centres, pre-schools and schools, at their expense.

(14)That the mother and the father be permitted to attend any event organised by a day care centre, pre-school or school that the child attends from time to time which parents are ordinarily entitled to attend.  This Order does not in any way exclude the Applicant from attending such events.

(15)That for the first twelve (12) months of the currency of these Orders, the parties shall not speak to each other at changeover.  All communication between the parties for that period of time shall be by way of SMS transmission or by email.

(16)That each party shall keep the other parties advised of a current residential address, telephone number, be it landline or mobile, and an email address at which he or she may be contacted.

(17)That in the event of any difficulties arising in relation changeover, I grant leave to the Applicant to restore the matter to the list upon giving seven (7) days notice to the Court in relation to effecting a change of the changeover location.  It is noted that in this event, I would give consideration to ordering that changeovers occur at a contact centre.

(18)That all outstanding applications and cross applications be and are hereby dismissed.

(19)That the matter be removed from the Active Pending Cases List.

(20)That all subpoena documents and exhibits be returned no less than fifty-six (56) days after the date of these Orders.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: PAC 474/2009

Ms McKenzie

Applicant

And

Mr McKenzie

Respondent Father

And

Ms Lester

Respondent Mother

REASONS FOR JUDGMENT

Introduction

1.This is both an unusual and saddening matter.

2.The parties to these proceedings are the Applicant, Ms McKenzie, who is the subject child’s half-sister, Mr McKenzie, who is the subject child’s father, and Ms Lester, who is the subject child’s mother.  In these reasons for Judgment, I propose to refer to them respectively as the Applicant, the father and the mother.

3.When the subject child, T (“the child”) born in October 2007, was a three month old premature baby, he was removed from the mother by the father and placed in the Applicant’s care. 

4.The facts surrounding how the child came to be in the Applicant’s care are hotly disputed.  The situation is fuelled with emotion particularly between the mother and the Applicant.  It is certainly less so on the father’s part.  Whilst the Applicant and the father say that the mother “abandoned” the child, the mother says the child was taken from her.  On my evaluation of the evidence, it appears that the father did take the child from the mother and, to suit himself it would seem to me, placed the child with the Applicant.

5.The child has remained in the Applicant’s care over the last four years and has only spent supervised time twice weekly with his mother since December 2008.  The sad reality for the mother in this case is, as the single expert in these proceedings Dr R describes it, that the child has now developed a “primary attachment” to the Applicant. 

6.Whilst the father has created this unfortunate situation, he has been content to sit back during these proceedings.  He has not played an active role in the child’s life.  Through his actions, or lack thereof, he has created and escalated a bitter dispute between the Applicant and the mother.  This is clearly to the child’s detriment.

7.Both of these “motherly” figures in this young boy’s life currently and will into the future play a significant role in his upbringing.  It is imperative that they try to put their differences aside and the past behind them (as difficult as that may be) and focus on what is really is in the best interests of this child for the remainder of his childhood.

Brief History

8.The father was born in 1963 and he was 48 years of age as at the commencement of the hearing.

9.The mother was born in 1973 and she was 37 years of age as at the commencement of the hearing.

10.The Applicant was born in 1988 and she was 23 years of age as at the commencement of the hearing.  She is the daughter of the Respondent father from a previous relationship of his and the half-sister of the subject child.

11.The mother and father met in about 2005 at a local drinking establishment.  They commenced a relationship in about April 2006 and cohabitated for periods of time during their relationship.  Their relationship appears to have been an unstable one, lasting for an 18 month period.  On their own admissions, they were both heavy drinkers.  They smoked marijuana regularly.  For the mother, this continued whilst she was pregnant with the subject child.

12.The child was born 6 weeks premature in October 2007.  He spent the following weeks in a special care unit in hospital and was discharged on 17 November 2007 into the mother’s care.  He recently turned four years of age.

13.The parties separated on 30 December 2007 after an argument which is the subject of much disputed evidence.  This is also the date that the child was “taken” from the mother by the father and placed in the Applicant’s care.

14.The mother says that she and the father reconciled between April and August 2008, before separating on a final basis.  The father says they never resumed cohabitation after 30 December 2007.

15.On 18 November 2008, the Applicant filed an Initiating Application seeking parenting orders in the … Local Court, and sought sole parental responsibility, that the child live with her and that her application be dealt with on an ex parte basis (or alternatively, on short notice to the other parties).

16.On 25 November 2008, Interim parenting Orders were made by that Court providing for the mother to spend supervised time with the child.

17.In December 2008, the mother commenced supervised time with the child.

18.On 16 December 2008, further Interim parenting Orders were made by that Court, and the matter was transferred to the Parramatta Registry of the Family Court.

19.On 8 April 2009, the mother filed a Response and supporting affidavit in this Court. 

20.On 28 April 2009, the father filed a Response and a supporting affidavit in this Court.  He has not filed any further material in these proceedings.

21.On 7 July 2009, the mother filed an Amended Response.

22.On 10 July 2009, the Family Consultant Ms M released a Children and Parents Issue Assessment after having conducted interviews with the parties on an earlier date.

23.On 14 September 2009, further Interim Orders were made by consent to extend the mother’s supervised time with the child.  In this regard, Orders were made for the mother to spend three to four hour periods with the child each Wednesday and Saturday, at times on the child’s birthday and at times on Christmas day, those times to be supervised by either or both of the maternal grandparents.  These Orders have continued since, only slightly varied by my Orders made on 31 March 2011.

24.In about January 2011, the child commenced pre-school two days per week.

25.On 28 January 2011, the Applicant filed an Amended Initiating Application, seeking final parenting orders that the child live with her and that she have sole parental responsibility, and that the child continue to spend only supervised time with the mother twice weekly.

26.On 31 January 2011, the mother filed a Further Amended Response, seeking that the child live with her, that she have sole parental responsibility and that the child only spend time with the Applicant during the times the child spends with the father.

27.When the matter came before me for a Less Adversarial Trial First Day Intake on 31 March 2011, I slightly varied the 14 September 2009 Orders to extend the mother’s supervised time with the child on Saturdays by an hour and to provide for time on ANZAC day.

28.On 31 July 2011, after having conducted interviews with the parties and the child (excluding the father), the Chapter 15 single expert appointed in these proceedings, Dr R, released his Medico-Legal Report.

The Applications of the Parties

29.The Applicant initially sought orders in accordance with her Amended Initiating Application filed 28 January 2011.  After all the evidence had been heard, an Amended Minute of Orders was handed up on her behalf seeking the following (in summary):-

1. That the child live with the Applicant.

2.That the Applicant have sole parental responsibility for the child.

3. That in relation to decision-making, the Applicant:

a) notify the father and mother of any proposed decision relating to the long term care and welfare of the child and reasons for the proposal, at least six weeks prior to a final decision being made; and

b) take into consideration any views expressed by the father and/or mother about the proposal.

4.That the father spend time with the child as agreed between the Applicant and the father.

5. That the mother spend time with the child as follows:-

a) Until the child commences school:-

i) each Saturday other than the first Saturday of each month from 10.00 am to 3.00 pm;

ii)each Wednesday from 10.00 am to 3.00 pm;

iii)on the child’s birthday from 10.00 am until 3.00 pm;

iv) & v) on the mother’s birthday and on Mother’s day from 10.00 am until 3.00 pm;

vi)on Christmas Day from 2.00 pm until 6.00 pm;

vii)other times as agreed between them in writing.

b) From the time the child commences school:-

i) during school term, every second weekend from 10.00 am to 6.00 pm on Saturday and from 10.00 am to 6.00 pm on Sunday, commencing on the second weekend of each term;

ii) during school term holiday periods for five consecutive days in each from 10.00 am to 6.00 pm;

iii) on the child’s birthday from (a) 4.00 pm until 7.00 pm if a school day, and (b) from 10.00 am until 2.00 pm if not a school day;

iv)on the mother’s birthday as per (a) and (b) above in (iii);

v)on Mother’s Day from 10.00 am to 6.00 pm;

vi)on Christmas Day from 2.00 pm until 6.00 pm;

vii)other times as agreed between them in writing.

6. That the mother’s time with the child be suspended each (a) Father’s Day from 10.00 am until 6.00 pm and (b) each Christmas day from 10.00 am to 2.00 pm.

7.That for the purpose of Order 5 and 6 above, unless otherwise agreed between mother and Applicant, changeovers occur (a) at the child’s school if on a school day, or (b) at McDonald’s Family Restaurant at … on a non-school day.

8. For the mother’s time with the child until 1 January 2013 be supervised by either or both the maternal grandparents.

9.(interpretation of school terms and school holidays)

10.That in the event the mother is not available to spend time with the child, she provide the Applicant with notice two days in advance via text message.

11.That the mother be restrained from consuming alcohol or smoking marijuana for a 24 hour period prior to and during the period of time she spends with the child.

12.That in the event of the mother contravening the above order, her time with the child be suspended/cease and the child remain with or be returned to the Applicant.

13.Non-denigration clause relating to all the parties in the presence or hearing of the child.

14,Notification by each party to the other parties as soon as practical in event of the child suffering from illness or injury or needing medical attention.

15.That the Applicant provide the mother and father with names and contact details of the following persons/institutions and provide authorities to those persons/institutions so that the mother and father can obtain information from those respective persons/institutions:

a) the child’s treating practitioners in relation to medical information;

b)day care centres, pre-schools or schools the child attends.

16.That the mother and father be permitted to attend any event organised by a day care centre, pre-school or school the child attends, which parents would ordinarily be entitled to attend.

30.When giving evidence, the Applicant modified the orders she had previously sought.  Those modifications were reflected in her Amended Minute of Order as summarised above.  In this regard, the Applicant said:-

a)As to parental responsibility, she sought sole parental responsibility in relation to the child’s day to day care.  As to long term decisions, she said that she and the father could share parental responsibility, but she had reservations about a three-way arrangement.  She felt that would be too many people to make decisions and that they would not be able to agree.  She conceded the father may be able to facilitate a three way arrangement.

b)As to the mother’s time with the child, she agreed to such time being unsupervised, but she pressed for a third party to be present at changeovers.  She extended day time contact previously sought by an hour on each Saturday and Wednesday and on the child’s birthday.

i) As to Christmas, she said the child could possibly spend overnight time with the mother from Christmas eve to Christmas day commencing in 2012 and that she did not press overnight time be supervised.

ii)As to ANZAC day, she agreed to the child spending time with the mother and maternal grandfather as per current Orders.

c)As to restraining the mother from consuming drugs and alcohol prior to or whilst caring for the child, she sought such a restraint also against her father.

d)As to notifying the other parties of medical emergencies, she agreed that this could occur via a text message.

31.The mother sought orders as set out in her Further Amended Response filed 31 January 2011, as summarised below:-

1. That all previous Orders be discharged.

2. That the mother have sole parental responsibility for the child.

3. That the child live with the mother.

4.That the child spend time with the father as follows:

a) Each alternate weekend from 11.00 am on Saturday until 4.00 pm on Sunday;

b) During the NSW gazetted school holiday periods at the end of Terms 1, 2 and 3, during the second week of the school holiday period from 4.00 pm on Wednesday to 2.00 pm on Sunday;

c)During the NSW gazetted school holiday period at the end of Term 4, for a two week period commencing at 11.00 am on 8 January to 11.00 am on 22 January;

d)On the child’s birthday from 4.00 pm to 7.00 pm;

e)On Christmas day from 4.00 pm until 9.00 pm; and

f)At other times as is agreed.

5.That in the event that Mother’s Day falls on a weekend when the child is spending time with the father, the child is to spend time with her from 10.00 am to 4.00 pm on the Sunday.

6.That in the event that Father’s Day falls on a weekend when the child is spending time with her, the child is to spend time with the father from 10.00 am to 4.00 pm on the Sunday.

7.That changeovers take place at the … Library.

8.That the child only spend time with the Applicant during any time that the child is spending with the father and not otherwise.

9.That the parties be restrained from denigrating the other parties in the presence of or hearing range of the child, or allowing any other third party to do so.

10.That the mother and the father be restrained from consuming illicit drugs whilst the child is in their care.

11.That the mother and the father be restrained from consuming alcohol to excess whilst the child is in their care.

12.That the mother and the father keep each other advised of their current residential address and contact details, and keep each other advised of any such changes within seven (7) days.

32.Throughout the hearing, the mother gave evidence which modified or clarified some of the orders she sought, as follows:-

a)As to parental responsibility, she conceded it would be reasonable for the person with whom the child lives with to have sole parental responsibility.

b)If the child continued living with the Applicant, she said she would want a copy of school reports, photographs, to attend school events and other events the child is involved in and to be informed about medical issues. She said she would want “active input”.

c)If the child were to live with her, she said she would still see a benefit in the child having a relationship with the Applicant, and hoped the Applicant would spend time with the child on occasions and that they could all go and do activities together.  (This was in stark contrast with the order she sought previously, which was that the Applicant only spend time with the child when the child is spending time with the father.)

d)She said she was prepared to engage in therapy in relation to her anxiety if the Court so required.

33.The father sought orders as set out in his Response filed 28 April 2009, in summary as follows:-

1. That the father and the Applicant share equal parental responsibility for the child.

2.That the child live with the father and the Applicant either in the same location or sharing time between them as agreed between them.

3.That the mother spend time with the child only under supervision at a fixed public location or Child Contact Centre for short periods and shall not be permitted to remove the child from such location.

34.The father’s previous solicitor, Ms Green of Hermann & Green, appeared on the first day of the hearing to put the father’s current position succinctly before the Court.  She then sought to withdraw from acting for the father in the proceedings, and her application was acceded to.

35.Ms Green outlined the father’s current position as being:-

a)He supports the child remaining in the Applicant’s care.

b) He seeks equal shared parental responsibility for the child shared with the Applicant, but does not oppose all three parties sharing parental responsibility for the child.

c)In relation to the mother’s time with the child, he seeks that day time contact continue, however he does not press that it be supervised.

d)In relation to his time with the child, he seeks reasonable contact and accepts the current arrangements, that being weekend time.

Orders contended for by the Independent Children’s Lawyer

36.The Independent Children’s Lawyer sought orders in accordance with their Minute of Orders, handed to the parties and myself at the conclusion of the evidence.  They sought the following in summary:-

1. That the child live with the Applicant.

2. That the Applicant have sole parental responsibility for the child.

3.That the Applicant

a)notify the father and mother of any proposed decision relating to the long term care of the child and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made; and

b)Take into consideration any views expressed by the father and/or mother about the proposed decision.

4.That the child shall spend time with the father as agreed between the Applicant and the father.

5. That the child shall spend time with the mother as follows:-

a)each Saturday other than the first Saturday of each month, from 10.00 am to 3.00 pm;

b)each Wednesday from 10.00 am to 3.00 pm until he commences formal education in 2013 when this Order shall apply in the school holidays;

c)on the child’s birthday from 10.00 am until 3.00 pm;

d)on the mother’s birthday from 10.00 am until 3.00 pm;

e)on Mother’s Day from 10.00 am until 3.00 pm;

f)on Christmas Day from 2.00 pm until 6.00 pm;

g)such other times as the Applicant and the mother may agree to in writing.

6.That the child’s time with the mother pursuant to Order 5 herein shall be suspended at the following times:

a)on each Father’s Day from 10.00 am until 5.00 pm.

7.That for the purposes of Order 5 and Order 6 herein, unless otherwise agreed between the Applicant and the mother, changeovers shall occur:

a)at the child’s school if the changeover occurs on a school day; or

b)at the McDonald’s Family Restaurant at … if changeover occurs on a day which is not a school day.

8.That all parties are hereby restrained from physically disciplining the child.

9.That for the purposes of these Orders:

a)any references to school terms shall mean NSW Government Schools terms as gazetted; and

b)any references to school holidays and school holiday periods shall mean NSW Government School holidays as gazetted.

10.That in the event the mother is not available to attend to spend time with the child, she is to provide notice of her inability to attend to the Applicant two (2) days prior to the non-attendance, via text message.

11.That the mother be and is hereby restrained from consuming alcohol or smoking marijuana for a period of twenty-four (24) hours prior to and during the period of time she spends with him.

12.That in the event the mother consumes alcohol or smokes marijuana twenty-four (24) hours prior to or during the period of time she is to spend with the child then her tie with the child shall be suspended/ceased and the child is to remain with/be returned to the Applicant.

13.That each of the parties be and are hereby restrained from denigrating the other parties in the presence of or in the hearing of the child or permitting the child to remain in the presence of any person who is denigrating the other parties.

14.That each party notify the other parties as soon as possible in the event that the child:

a)suffers any illness or injury requiring attendance at or admission to the hospital or requiring specialist medical treatment; and

b)will need to be given medication whilst in the care of the other parties.

15. That the Applicant shall:

a) provide the mother and father with the names and contact details of any medical practitioners who treat the child and shall provide authorities to those treating practitioners to enable the mother and the father to obtain information about the child’s medical status from such practitioners;

b)provide the mother and the father with the names and contact details of any day care centres or school which the child may attend from time to time and shall provide authorities to those day care centres, pre-schools and schools to enable the mother and the father to obtain copies of progress/school reports, newsletters and school photos relating to the child from such day care centres, pre-schools and schools, at their own expense.

16.That the mother and the father be permitted to attend any event organised by the day care centre, pre-school or school that the child attends from time to time which parents are ordinarily entitled to attend.

Parties’ Documents

37.The Applicant relied upon the following documents:

a)Affidavit of herself sworn and filed 13 July 2011;

b)Affidavit of Ms K sworn and filed 14 July 2011; and

c)Affidavit of Ms A sworn and filed 15 July 2011.

38.The mother, who was self-represented,  relied upon the following documents:

a)Affidavit of herself affirmed 8 July 2011 and filed 11 July 2011; and

b)Affidavit of Mr L sworn 8 July 2011 and filed 11 July 2011.

39.The father relied solely upon an affidavit of himself sworn 9 April 2009 and filed 28 April 2009.  He too was self-represented.  As noted earlier in these reasons for Judgment, his previous solicitor, Ms Green, made an appearance on the first day of the hearing to advise the Court of the orders the father currently sought before withdrawing as his lawyer.

Current Parenting Orders

40.On 14 September 2009, Registrar Bartlett made Interim Orders by consent for the mother to spend time with the child for three to four hour periods each Saturday and Wednesday and at times on the child’s birthday and on Christmas day, to be supervised by either or both of the maternal grandparents.

41.On 31 March 2011 when the matter came before me as an intake into the Less Adversarial Trial process, I set the matter down for hearing and slightly varied the previous Orders for the mother’s supervised time to be extended for an hour on Saturdays and for time to occur on ANZAC Day.

Conduct of the Proceedings

42.I heard considerable evidence from each of the parties.

43.Initially, I heard from the Applicant.  I have considerable sympathy for this young lady.  In my view, she has been placed in a most difficult position by her father who, in circumstances which I will return to later in these reasons for Judgment, took the subject child from the mother and, to suit himself it would seem to me, placed the child with the Applicant.

44.The Applicant gave evidence and was cross-examined at length by the mother in addition to more limited cross-examination by Counsel for the Independent Children’s Lawyer.  The father asked no questions.

45.The mother then began her extensive evidence in chief.

46.On the second day of hearing, the Applicant’s first witness, Ms A, was interposed for personal reasons.  The Applicant’s partner, Mr N, then gave oral evidence despite not filing an affidavit in the proceedings.  It had not previously been indicated that the Applicant intended to call him as part of her case.  That was until the conclusion of the first day of the hearing, I strongly urged the Applicant to call her partner to at least give oral evidence in the proceedings, given the possibility that he could be a significant member in the subject child’s household into the future.  

47.Both Ms A and Mr N were cross-examined by Counsel for the Independent Children’s Lawyer and by the mother.  The father asked no questions.

48.The mother then continued her evidence and was cross-examined by Counsel for the Applicant, and for the Independent Children’s Lawyer.  The father again asked no questions. The mother gave extensive evidence in re-examination.

49.The Applicant’s mother was called and cross-examined by Counsel for the Independent Children’s Lawyer and the mother.  The father again asked no questions.

50.The mother’s father was then called in support of her case, and the mother led evidence in chief from her father at great length, of which I was critical as to why important parts of his evidence had not been included in his affidavit.  His evidence in chief had not concluded when the matter was adjourned for the day.

51.Dr R was interposed via telephone on the morning of the fourth day of hearing. Counsel for the Independent Children’s Lawyer led evidence in chief, followed by short cross-examination by Counsel for the Applicant and again a lengthy cross-examination by the mother.  The father asked no questions of Doctor.

52.The maternal grandfather’s evidence in chief then resumed, followed by brief cross-examination by Counsel for the Applicant and for the Independent Children’s Lawyer.  He was then re-examined by the mother.

53.The father was called into the witness box that afternoon and was cross-examined by Counsel for the Applicant and Counsel for the Independent Children’s Lawyer.  He was being cross-examined by the mother when the allocated hearing time of four days expired.  The matter was stood over to 31 October 2011 to conclude his evidence and for submissions by each of the parties and the Independent Children’s Lawyer.

54.On the fifth day of hearing, being 31 October 2011, I heard further evidence from the mother and the remainder of the cross-examination of the father.

55.The sixth and final day of hearing was held on 5 December 2011.  The mother was granted leave to lead some further evidence about an incident on 23 November 2011. I then heard submissions from Counsel for the Applicant and for the Independent Children’s Lawyer, briefly from the father and then at considerable length again from the mother.

The Applicant’s Case

56.The Applicant seeks orders in accordance with her Amended Minute of Orders as set out earlier in these reasons for Judgment.

57.In her affidavit, she raised concerns that the child had been born with Foetal Alcohol Syndrome and that the child was born affected by drugs and alcohol.  When pressed by the mother in cross-examination, the Applicant conceded that there was medical evidence rebutting her concerns[1], evidencing that the child was not affected by either drugs or alcohol at birth.

[1] Annexed to her own affidavit (annexure E) was a report from a Developmental Paediatrician at the B Clinic dated 2 April 2008. The paediatrician had noted that the child exhibited no obvious features suggesting foetal alcohol syndrome.

58.In her affidavit, the Applicant said the child had remained in hospital for a 10 week period following his birth.  Again, when pressed by the mother in cross-examination, she conceded the child had only been in hospital for a 6 week period.

59.She believed the child had undergone caffeine treatment whilst in hospital due his alleged “drug affected” state.  She said her belief was based upon what had been explained to her by a nurse at the hospital.  When pressed again by the mother in cross-examination, and having the benefit of an explanation that such treatment is used on premature babies to overcome certain breathing and heart related difficulties, she conceded the treatment was not to treat any drug-related issues.

60.When the child was in the special care unit following his birth, the Applicant said she had driven the mother to the hospital each day to visit the child.  She said on the morning of the mother going to stay in hospital for two nights with the child before being released, the mother had smoked marijuana cones and consumed two 6 packs of beer before attending at the hospital.

61.The Applicant was not present when the events of 30 December 2007 unfolded.  That was the date of the mother and father’s separation, as well as the date the child was removed from the mother’s care.  It appears that the father has told the Applicant his version of events and the Applicant’s actions thereafter have been largely based upon and dictated by what her father has told her.

62.In this regard, she believed that the mother walked out leaving the child behind and did not return for the child.  She said the mother had said words to the effect that she “didn’t want the baby”.  She said she was not responsible for removing the child from the mother’s care.  

63.She had no knowledge of occasions when the mother had communicated with the father in an attempt to regain custody of the child, or even to spend time with the child.  Having reference to Exhibit B[2], she conceded the mother had made such attempts but that she had not been made aware of them at the time.  

[2] A letter from the mother’s then legal representatives to the father dated 10 January 2008.

64.During cross-examination, the Applicant initially said she had not contacted the mother since the child was removed from the mother’s care, and then said the mother had not been contactable.  She continued to assert that the separation had transpired because of the mother’s drug and alcohol problems.  She conceded that the child had been discharged into the mother’s care by the hospital staff after having deemed the mother fit to care for the child, and that the mother had not been referred to any professionals after such discharge.

65.It was put to her by the mother that the child was breastfed prior to being removed from the mother’s care.  The Applicant disagreed.  She said that the child had also been bottle fed.  In her affidavit she referred to an incident where the father had found all the teats of the child’s bottles cut off.  Despite the Applicant not witnessing this, I am satisfied that the child was bottle fed from time to time prior to the mother and child’s separation, and that the transition to being wholly bottle fed was not as traumatic as the mother wishes the Court to believe.

66.I am concerned by the Applicant’s lack of compassion for any emotional distress the mother has suffered as a result of losing the full time care of her child.  The Applicant said she did not know how the mother felt and that her primary concern was the child.  She said she had no reason to think about the mother and would not have cared less if the mother had been lying in a gutter somewhere.  Her statement seemed to epitomise the hostile feelings she harboured for the mother, which in my mind, have been fuelled by the father and which she appears not to have in any way tried to abate.  It was clear that the Applicant despised the mother because of what she believed the mother had done to the child.

67.Initially, the Applicant lived at her mother’s home whilst caring for the child.  She then moved into her father’s home after several weeks.

68.She said that the mother did not see the child from 30 December 2007 until after Orders were made on 25 November 2008 at the Local Court for the mother to resume spending time with the child, albeit on a supervised basis.

69.She believed the mother had made no attempts to see the child during that 11 month period.  She said she did receive one abusive phone call from the mother in about August 2008, but she said that the mother had not asked to see the child during that phone call.  She was unaware of the mother’s attempts to regain custody of the child or spend time with the child that the mother had made via the father.

70.During cross-examination by Counsel for the Independent Children’s Lawyer, the Applicant conceded she knew the mother’s address during that 11 month period but had not thought of contacting the mother to arrange a time for her (the mother) to see the child.  She said she felt it was up to the mother and father to arrange between themselves, and not for her to get involved.

71.She said changeovers had not been easy and there had been a number of incidents.  She detailed these extensively in her affidavit.  She said that the child had on occasions become distressed and not wanted to leave her to go to the mother and had cried.  She said that the mother had directed derogatory comments towards her in the child’s presence.  Given the animosity between these parties, I am satisfied that unpleasant words were exchanged on occasions at changeover.

72.The Applicant said however that the child’s behaviour at changeovers has recently improved.  She said that the child is not getting as upset.  He had days when he did not want to go with the mother, and days when he was happy to go.  She said the last few changeovers had been fine and thought that the last “hard” changeover was around early March 2011.  At recent changeovers, she said she had been staying in the car and her support person walked the child to and from the mother.

73.She gave evidence about an incident where the child had been returned from contact time with the mother with wet clothing that smelt like beer.  She did not ask the mother what had happened.  She said she did not think there would be an explanation.  She simply assumed the child’s wet clothing was caused by the mother or someone the mother had been with whilst the child was in her (the mother’s) care.

74.The Applicant said she had not sought any professional assistance to help explain to the child why he was in her care and not his mother’s care.  She said she could do this when the child starts asking questions.

75.She then gave evidence about her partner of seven years, Mr N, and their child together, C, born in November 2010, eight months old at the time she gave her evidence.  She said Mr N and her had lived together previously, for about a year between 2010 and 2011, but were not living together at the time she gave her evidence.  She said the stress of the Court proceedings was the main reason for this.  She said her partner has a “very, very close” relationship with the subject child and loves having the child around, and would be lost without him. 

76.In relation to the expenses involved in raising two children, she saw no difficulties despite not working herself and being on a single parent pension.  She said in her affidavit and initially in her oral evidence that she received no financial support.  She went on to say her partner works full time but that he does not support her financially.  When pressed in cross-examination, she said her father was, at that time, supporting her at a rate of $50.00 per week and had been doing so since around March 2008.  She said her father had ceased payments around the start of 2011 up until late July 2011, which was the period during which she had deposed her affidavit.  Her evidence that she was not financially supported by her partner was contrary to evidence later given by her partner.

77.The Applicant intends to continue to care for the subject child throughout the remainder of his childhood and she said her partner was supportive of this.

78.After moving out of the father’s residence in about April or May 2008, the Applicant and the subject child moved into a friend’s place for a brief period of time before moving back to her mother’s home.  She then moved into private rental accommodation in about March 2010.  She conceded that whilst the child had been in her care, she had moved residence about 6 times.

79.The Applicant made several statements in her affidavit that the mother had been charged with drug possession offences.  When pressed in cross-examination about how she had come about such information, she said a friend of her father’s had told her, but she couldn’t say who.  The mother’s criminal record[3] was tendered into evidence and shown to the Applicant.  She conceded that she had made false accusations in this regard.  This part of the Applicant’s evidence was of great concern to me.  I may have been less concerned had she phrased same as allegations rather than clear cut statements.  To put blatant statements in court documents which cannot be supported by evidence not only misleads the Court but has put the accuracy of the remainder of this witness’s evidence in question.

[3] Exhibit A.

80.In relation to the mother’s time with the child, the Applicant said that the mother had been unavailable on a number of scheduled occasions.  She outlined 13 dates as examples in her affidavit.  In cross-examination, the mother challenged six of those dates on the basis that they contained days not stipulated in current Orders that the mother was to spend time with the child.  The Applicant said she kept a diary of the dates and believed they were correct but could not explain the incorrect dates.  This places further doubt about the accuracy of the remainder of this witness’s evidence.

81.Evidence was then given about the child suffering from eczema and asthma.  The Applicant said she had provided the mother with information about the child’s conditions and treatments she was administering despite the mother’s contention she had not.

82.As I have said earlier in these reasons for Judgment, I have some concern about the accuracy of this witness’s evidence.  I am concerned also that it was her intention to paint the mother in the worst possible light, raising allegations and statements not supported in evidence and detailing events she herself was not a witness to and only had second hand knowledge of.

Ms A

83.This was the first witness called in the Applicant’s case.  She swore an affidavit on 15 July 2011. She is a family friend of the Applicant’s of about 10 years.

84.Ms A said she assisted the Applicant at changeovers for a period of about a year.  In her affidavit she said that she has been unable to assist with changeovers in the last two months prior to the date of the hearing, since about May or June 2011, because of her son’s sporting commitments.  In her oral evidence she said she had been unavailable since about February or March that year because she had moved out of the local area.  Her evidence in this regard was inconsistent, which raised in my mind some concern at the outset as to this witness’s memory or the accuracy of her evidence.

85.Her evidence was largely about events at changeover.  It was mainly consistent with the Applicant’s evidence in this regard.  She said that the Applicant had remained in the car and she would deliver the child to the mother.  She said that the child had initially resisted getting out of the car at changeovers, but that his behaviour had changed over the last year and he had become less resistant.  She said on occasions the mother would get abusive and make rude remarks towards the Applicant and/or herself.  She said there had been occasions where the child had returned from spending time with the mother and, without any provocation, had said words to the effect “I don’t like you” or “I don’t love you” to the Applicant.

86.She said that on occasion when she had carried the child over to the mother, the mother had not taken the child out of her arms, and the child had then run back across the McDonald’s car park unaccompanied.  She was concerned about the safety implications for the child in this regard.  It was put to her during cross-examination by the mother that she had no real concerns as she had not detailed her concerns in her affidavit.  She disagreed.

87.As I have said earlier in these reasons for Judgment, and supported by this witness’s evidence, I am satisfied that changeovers have been a point of conflict for the mother and Applicant and that the mother has become verbally abusive towards the Applicant and/or those assisting her at changeover on occasion.

Mr N

88.The Applicant’s partner was the second witness called in her case.  It was not intended that he be called until I urged the Applicant at the conclusion of the first day of hearing to do so.  Given this, he had not filed an affidavit in the proceedings.

89.Mr N said that he and the Applicant had been in a relationship for about 5 to 6 years and that they had known each other for several years before their relationship commenced.  They have a child together.

90.He gave evidence consistent with the Applicant’s in that they had lived together in the last year but at the time of the hearing, were not living together.  He said he had moved out of the Applicant’s home about three months before the hearing had commenced, in about April 2011.

91.His reason for moving out of the home differed from the Applicant’s.  He said that his mother had a shoulder injury and needed assistance with daily household tasks.  After work each night, he said he went to the Applicant’s residence, which he referred to as “their house”, to visit the Applicant and “his sons”.  He would spend time with the children, have dinner together, assist in bathing the children and preparing them for bed.  Once the children are put to bed, he would spend another hour or so with the Applicant before returning to his mother’s residence.

92.He hoped that once the Court proceedings had concluded that he and the Applicant would resume living together.

93.Mr N works as a storeman, 5 to 6 days per week.  He has aspirations of becoming a warehouse manager and said he was looking to undertake a managerial course in the future.

94.He presented as child-focused.  He wanted to see the subject child in a stable environment where he was well looked after and said he would like the current arrangement to continue.  He said it is important for the child to see his mother and that he was concerned that the child does not see his mother enough.  He seemed to understand that it may be difficult for the child growing up knowing that he is not living with his mother, but thought he and the Applicant could seek professional counselling when such issues arise in the child’s life.

95.Given his work schedule, he had not been involved in or present at any of the changeovers.

96.He said he did provide the Applicant with financial assistance for the two children, despite the Applicant’s evidence being that he did not.

97.I was impressed by his evidence and his presentation.  I am satisfied that he is child-focused.  He would be a positive figure in the subject child’s life.  I did however find that his evidence differed to some aspects of the Applicant’s evidence.  Where their evidence differs, I prefer his evidence to that of the Applicant.

Ms K

98.Ms K was the third witness to give evidence in the Applicant’s case and swore an affidavit on 14 July 2011.

99.She is the Applicant’s mother and was previously in a relationship with the father.  She and the father have three children together, the eldest being the Applicant.  She said her and the father’s relationship had ended in about December 2001.

100.Her evidence went largely towards the events at changeover.  She has assisted the Applicant with changeovers on Saturdays.

101.In the witness box, she gave evidence of contacting the maternal grandmother shortly after the mother and the child were separated.  She said she needed to let the mother know that the child was okay.  The mother confronted her on the telephone asking whether the child was going to be kept from her and she said that he was not, and that she simply wanted to let the mother know the child was safe.

102.Her assessment of the mother appeared to be based upon what the father and Applicant had conveyed to her.  She said she did not feel concerned to investigate the truth herself but simply trusted in what the father and Applicant had told her without question.

103.Based on what she had been told, she believed the mother had abandoned the child and had made no attempts to see the child thereafter.

104.She said the reason that she had not suggested to her daughter to facilitate some time between the mother and the child following their separation was that she was concerned for the child’s welfare and did not believe the child was safe in the mother’s care.  Again, her concerns were based upon what she had been told and not her own observations.

105.Ms K gave evidence that the child refers to her as “Nanny” and that their bond was a grand-maternal bond.  In her affidavit she referred to the child as being one of her daughter’s children.  

106.She clearly envisages continuing to play a role in the child’s life.

107.She said that the child’s behaviour at changeover had improved and the frequency of his distress has eased over time.  She said that her daughter remains in the vehicle at changeover whilst she carries out the handover.  She said the child had been moody, angry and/or distressed upon returning from time with the mother on occasion and that he had said words such as “you don’t love me” to the Applicant.  She said it was obvious that the child was being influenced or told to say such things.

108.In her affidavit she referred to an incident at changeover earlier that year.  She said she had asked the mother to take the child and the mother had responded “you don’t understand, you’re the one who stole him”, to which she says she responded “I would never be in this situation” referring to someone else raising her child.  She conceded this may not have helped the already hostile environment but nevertheless said that she would say the same thing again as her comment was truthful.

109.She said that the Applicant lived with her for a one and a half year period on and off between December 2007 and June 2009, prior to the Applicant moving into her current residence.  Her evidence in this regard was not quite in line with the dates given by the Applicant.

110.Contrary to the Applicant’s evidence, Ms K said she had financially assisted her daughter until her daughter started receiving a single parent pension.  She said her daughter did not have to rely on her for financial assistance and that she (her daughter) did not ask for her assistance.

111.I did not find this witness’s evidence to be of great assistance to the Court.  She seemed to lack insight as to the importance of the relationship of the mother and the child. 

112.Her evidence did not indicate that she was in any way trying to reduce the hostility between her daughter and the mother, for the child’s sake.

113.This concluded the Applicant’s case.

The Father’s Case

114.The father seeks orders in accordance with his Response filed 28 April 2009, as set out earlier in these reasons for Judgment.  

115.The father filed an affidavit in support of his Response on 28 April 2009.  He could not provide a reason as to why he had not filed any further material since then, or why he had not taken a more active part in these proceedings.  He simply said that he thought he had said enough in his 2009 material, despite the hearing commencing over two years later.

116.He is the father of both the Applicant and the subject child in these proceedings; the children being from different relationships.  He was in a relationship with the Applicant’s mother, Ms K, for approximately 20 years.  He said they separated in about 2000, and that they have three children together, two sons younger than the Applicant.  His sons were in their late teens/early twenties at the time of the hearing and lived with their mother.  He says he has regular contact with them and has a good relationship with all three children from that relationship.

117.In his affidavit, he said that he and the mother in these proceedings, commenced a relationship in about 2005.  He then said in his oral evidence that their relationship did not commence until about April 2006.  He said they cohabited for about two years and did not recommence cohabitation after separation on 30 December 2007.  Given the later date, his evidence is that parties cohabited for about 18 months rather than two years.  He was not specifically pressed whether he and the mother had reconciled between April and August 2008.

118.He said that even prior to the child’s birth in October 2007, their  relationship was “rocky with frequent small separations”.  They argued frequently, generally about what he describes as her “chronic use of drugs and alcohol”.  He says he witnessed the mother consuming alcohol and smoking marijuana on a daily basis.  In cross-examination, he said that he told the mother to “slow up” on the drinking whilst pregnant, but she did not.

119.He was aware the mother had gone into labour early, yet continued to work and did not visit her and their new born child until the following day after he had finished work.  He could not provide an explanation why he had not visited earlier.  He said he thought he had telephoned the mother and she had told him not to come in or not to rush in.  To my mind, the father appears to have lacked interest in the subject child even before he was born and has thereafter played a backseat role in his life, at best.

120.He said the child was born premature and remained in hospital for 10 weeks following his birth.  He said the child had suffered “various complications due to his mother’s dependence on alcohol”.  As noted earlier in these reasons for Judgment, the child had remained in hospital for a lesser six weeks and medical evidence disproves the child was born affected by drugs or alcohol.

121.He said he had hoped the mother would change her behaviour after the child was released from hospital, but she did not.  He said that she smoked marijuana from the time she woke and drank beer at breakfast.  He said he had tried to convince her that her behaviour was inappropriate, but to no avail.

122.In his affidavit, he dedicated one paragraph to the events that transpired on 30 December 2007.  His evidence in this regard was lacking to say the least.  He said that he had seen the mother consuming many beers on that date and that she was clearly affected by alcohol.  When pressed in cross-examination by the mother, he said he had in fact only seen the empty beer cans on the kitchen sink and assumed the mother had consumed them.  This was because he said he had cleaned the kitchen sink that morning before leaving for work and removed all beer cans then.

123.Rather than asking the mother in a civilised manner, he had said to her “your fucking unbelievable still drinking” and then left the home to go to the local bowls club to have a few drinks, leaving the child in her care despite his expressed concerns she had been drinking and was affected by alcohol.  He said that he had been upset and that he had had real concern at the time for the child’s safety, and that he did not know why he had then left the child in the mother’s care and gone out drinking.  His actions tend to negate any concerns he supposedly had.

[21] (2006) FLC 93-286

353.The mother in her proposal clearly seeks to exclude the father and the Applicant from the child’s ongoing life.  By the time of submissions, the Applicant, the father and the Independent Children’s Lawyer sought that the mother should spend time with the child on a limited basis.

354.There is no suggestion in any parties’ case that the other parties, or either of them, should have equal time with the child, or anything approaching that.  In my view, this is not a case where there could be equal shared time involving any of the parties in any combination.  In this case, it will be necessary to determine where the child should live and having determined that, determine the time the child should spend with each of the other parties. 

355.I am not satisfied that it could be in any way seen to be in the best interests of this child for him to spend equal time with the parties or any two of them.  No party contends for this result.  Even if it were contended for, I am of the view for the reasons set out earlier in these reasons for Judgment that it would be a totally unworkable situation and thus impracticable.  Having made that finding, I do not believe it is necessary for me to further examine whether or not indeed such time would be practical having regard to the matters set out in subsection 65DAA(5). 

356.Of course, it is necessary for me to then consider the child spending significant and substantial time with each parent and with the Applicant, whom once again I include for consideration under this subsection. 

357.Substantial and significant time deals not only with the length of time but how that time is spent and experienced.  Again, I must have regard to the matters set out in subsection 65DAA(5), which are:-

(a) how far apart the parents live from each other; and

(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d) the impact that an arrangement of that kind would have on the child; and

(e) such other matters as the court considers relevant.

358.These then are the matters to which I will have regard when dealing with the question of the time that any of the parties should spend with the child.

Discussion & Conclusion

359.There has been a difficulty apparent to me in the mother’s presentation of her submissions.  She was not able to alter the focus from what she perceived as the serious wrong done to her by the child’s father and the Applicant.  The removal of her child was without doubt a most disturbing event, but the mother appeared to be of the view that in order to write that wrong it is necessary for me to return the child to her.  In the alternative, it seems she is under the impression that having explained what happened and making it abundantly clear that what happened was not her fault, then the child needs necessarily be returned to her.

360.The mother’s position was then that the child should live with her and that neither the child’s father nor the Applicant should have any time whatsoever with him.  This she said was necessary to overcome the lies that the child had been told and to teach him courage to face things.  Unfortunately, I could not see the material link between these two statements.

361.The mother was fixated on what she perceives to be the father’s mistreatment of her from 30 December 2007 onwards when he ejected her from his home.

362.It is one of the ironies of this case that her evidence is that for a period of time after that date she concedes she would have been unable to care for the child because of her “condition”.

363.As I apprehend her submissions to me, the mother says that that which occurred to her earlier in life has been the cause of her difficulties.  

364.I believe in this very difficult case that what I have to do is balance all the matters to which I have endeavoured to make reference to and then determine the issues of parental responsibility, where the child should live and lastly, the time he should spend with the other parties.

365.I am satisfied that the father is not concerned with the long term future of his child.  I am satisfied, as I have said, that his wish to be involved in decisions concerning the child is more a device aimed at limiting the mother’s involvement. 

366.Accordingly, I do not propose to have him retain parental responsibility for the child. 

367.If I thought it were in any way possible to have mother and the Applicant cooperate at any meaningful level in making decisions concerning the child then I would give serious consideration to an order that mother and the Applicant have equal shared parental responsibility.  However, I am satisfied that to do so in this case would be to impose upon each of them an intolerable burden that would only cause the bad relationship between them to worsen.  I am satisfied that the child could not but be affected by this no matter which household he lived in.

368.It therefore seems to me that it is inevitable that the person with whom the child is to live must have, in the circumstances of this case, sole parental responsibility for the child, subject to keeping the other parties properly and promptly advised of matters concerning the child. 

369.Whilst there is no doubt that the mother could provide love for this child, I am, for the reasons that I have set out satisfied that there would be little or no stability provided by her.  The prospects of her in future again becoming detrimentally affected by alcohol and illicit substances is such that, on the evidence that has been presented to me in this hearing, this is a real possibility. 

370.I am concerned that the mother’s alcohol problems were reported by Z Hospital as manifesting in a situational crisis.  It is clear that Dr R, having taken into account the matters he has identified in his report, has significant doubts about the mother’s ability to cope with the stress of taking over the full time care and responsibility for the child. 

371.I am concerned that the mother was not prepared to consider abstaining from alcohol completely in the future.  Her attitude was, as I understood it, that she would not give up her social life. 

372.I have come clearly to the view based on the evidence that I have heard and also the mother’s own submissions that she has not established, to my satisfaction, that she is the person who can care for the child as against the Applicant.  I am satisfied that she could not care for the child if the child was committed to her full time care. 

373.I am satisfied the child has a bond with the Applicant.  I am satisfied their relationship is a close and loving one.  I am satisfied that the Applicant has demonstrated the capacity to care for the child at a satisfactory level for the future.  Regrettably, I am not satisfied that the mother has this clear capacity.

374.Further, I am satisfied on the evidence of Dr R that if the child’s attachment to the Applicant were disturbed or disrupted, there is a real risk that the child would suffer anxiety and behavioural problems in the future.  Further, I am satisfied that I can accept Doctor’s evidence when he says that if the child remains in the Applicant’s care, the child will continue to develop normally in the short term. 

375.I am not satisfied that the father has ever seriously contended that the child should live with him.  Rather, as I understand his case, he has said at all times that his son should live with the Applicant, his daughter. 

376.In these very difficult and somewhat unusual circumstances, and for the reasons I have given, I have come to the inescapable conclusion that it is best for the child that he remains in the care of the Applicant.  I am satisfied that the Applicant must have sole parental responsibility for the child. 

377.I turn then to the time that each of the parents are to spend with the child. 

378.I have given the father’s position considerable thought.  I have come to the conclusion that in the particular circumstances of this case, I should not make any specific order in favour of the father.  I am aware that it is a grave step not to make an order for a father to spend time with his child.  However, I am satisfied that his relationship with the Applicant is such that they can make arrangements for father and son to spend time together.  I am not satisfied that the father will exhibit anything other than a passing interest in doing this with his son.  If for any reason the situation becomes unworkable or unmanageable then it will be a matter for the father to bring the matter to the attention of the Court. 

379.So far as the mother is concerned, as I have said, she loves her son, I am satisfied, deeply.  I am satisfied that she can make, notwithstanding the child is not to live with her, a real contribution to him.  She posits her strengths as her intelligence and her business ability.  These, subject to the child being protected from the possibility of her once again succumbing to alcohol or substance abuse, are matters that mitigate very strongly in her favour so far as her spending time with the child are concerned.

380.Doctor has made it clear in his the recommendations contained within his report that he believes there should be time with the mother and that that time should be unsupervised. 

381.The time that the child spends with the mother will need to be such that it is qualitatively valuable so as to provide for the needs of the child.  I am satisfied that there should be, until the child commences school, two days a week with the mother, subject to these conditions:- that that time should not be overnight, that the days should be Saturday and Wednesday, that each forth Saturday time should not occur so as to enable the child to spend an uninterrupted or full weekend with the Applicant. 

382.Once the child commences school, I would propose that during school term the mother would spend time with the child every second weekend from after school Friday to before school Monday.  This would mean that the mother could become involved in the child’s education.  She would have the ability on a before and after school basis to speak with class teachers and other members of staff.  It would also give her the opportunity of being involved in the life of the school community should she choose to do so. 

383.Further, this would have the distinct advantage of meaning that the mother and the Applicant would not need to meet to effect changeovers.

384.I will also make orders for the mother to spend time with the child on special occasions, birthdays and Mother’s Day once he has commenced school.

385.I am satisfied that there could well be difficulties at changeovers, particularly in the early stages.  I am concerned that the mother may find it hard to control her anger and distress at changeovers.  I propose to order that for 12 months, neither the mother nor the Applicant speak to each other at changeovers.  I propose to order that communications between them, particularly for the purpose of keeping the mother informed of the child’s progress, be via email or SMS. 

386.I will also order that the parties keep each other advised of residential addresses, email addresses (if any) and landline and mobile telephone numbers for the purpose of exchanging SMS communications. 

387.If indeed there are difficulties then I will grant leave to the Applicant to restore the matter to the list upon giving seven days notice in relation to effecting a change in the place for the child to pass between her and the mother.  In those circumstances, I would give consideration to ordering that changeovers occur at a contact centre. 

388.For the time being, I would propose that the changeovers would occur at the McDonald’s Family Restaurant at …. 

389.In addition to the times set out above until the child starts school, the mother shall spend time with the child on each occasion from 10.00 am until 3.00 pm on the child’s birthday, the mother’s birthday and on Mother’s Day.

390.So far as Christmas Day is concerned, I am satisfied that a changeover of the child between the mother and the Applicant, so as to enable the mother to spend time with the child, could present difficulties.  In lieu of endeavouring as it were to divide Christmas Day between the Applicant and the mother, I would propose that in each second year commencing in 2013 the mother would have the child from 7.00 pm on 24 December to 7.00 pm on 25 December.  In alternate years commencing 25 December 2012, the mother would have the child from 7.00 pm on 25 December to 7.00 pm on 26 December. 

391.For changeovers on Christmas Day or Boxing Day, the mother shall collect the child from the Applicant’s place of residence at the commencement of each such period and the Applicant shall collect the child from the mother’s place of residence from the conclusion of each such period of time. 

392.I have given considerable thought to making an order prohibiting or restraining the mother from consuming alcohol or marijuana for a period of time prior to her collecting the child and during the period of time she spends with the child. 

393.It has been suggested by the Independent Children’s Lawyer that I should make an order to this effect and further that if the mother does consume alcohol or marijuana within the times stipulated then the time with the child shall be suspended. 

394.The mother has indicated to me that she will not give an assurance that she will refrain particularly from the use of alcohol.  The ability to monitor this situation, particularly so as to enable or cause the return of the child to the Applicant if she does so, to my mind presents a real and practical difficulty. 

395.I have come with some discomfort to the conclusion that I will not require the mother be bound by such an order.  She assures me of her intelligence and her love for the child.  If she is unable to put particularly alcohol to one side during the time she has her son in her care, I am confident that that fact will become known to the Applicant.  If it is indeed the case that the mother were to become affected to the extent that she could not properly care for the child then I am in no doubt that the Applicant would take the appropriate steps to protect the child.  It can thus be seen that I am giving the mother an opportunity to prove her capacity to play a significant and important part in the life of her son. 

396.It has been suggested by the Independent Children’s Lawyer in her minute that the mother should be required to notify the Applicant that she is unable to attend for the purpose of time with the child.  It is suggested such notice be given two days prior to the time that she would spend time with the child, and be given by text message. 

397.I am satisfied that this is, in all the circumstances of this case, appropriate.  I am aware that it imposes the burden of its discharge upon the mother.  However, I believe that it would be less than helpful for the child to attend at a changeover or be made available to spend time with the child and to have the mother not attend.

398.I also propose to order that the Applicant notify each of the mother and father of matters of significance concerning the child’s wellbeing, health, education or extracurricular activities.  I will order that the mother be entitled to communicate with the Applicant, in the manner I have set out, that is email or SMS, any concerns she may have or suggestions she may wish to make concerning the future of the child.  I will order that the Applicant give such matters due consideration.  However, it is to be understood that with the conferral of sole parental responsibility, that the Applicant shall be the person to make ultimate decisions in this regard. 

399.I will make it a requirement that the parties notify each other in the event of any accident, illness or injury affecting the child requiring medical treatment or admission to hospital.

400.I will make an order for non-denigration to bind each of the parties.

401.I will make an order for the parties to notify each other as soon as practicable in the event of the child suffering any illness or injury requiring hospitalisation, and of the need for the child to take medication whilst in the other parties’ care.

402.I will order that the Applicant do all things necessary to authorise any school attended by the child to provide to the mother and father, at their expense, copies of all school photographs, reports and other notices usually given to the parents of children attending that school.  I will require that the Applicant keep the mother and father advised of the day care centre, pre-school or school which the child from time to time may attend.

403.It has been proposed by the Independent Children’s Lawyer in her minute, that the mother and father be permitted to attend any event organised by the day care centre, pre-school or school that the child attends, being an event which parents are ordinarily entitled to attend.  I believe this is a sensible order and makes it clear to each of the parties that they are each entitled to attend.  Of course, by mentioning the mother and father, that is in no way taken to be to the exclusion of the Applicant. 

404.I am satisfied then that the orders that I propose to make, which I have dealt with in these reasons, are appropriate and proper in the circumstances of this case. 

405.The orders that I make are as set out under the heading Orders above.

I certify that the preceding four hundred and five (405) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 26 April 2012.

Legal Associate:      

Date:    26 April 2012