McLean and Santos - [2011] FMCAfam 61

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MCLEAN & SANTOS

[2011] FMCAfam 61

FAMILY LAW – Parenting – application by paternal grandmother to have the child live with her – mother’s cannabis use and anger management – father’s alcohol use and immaturity – paternal grandmother’s past use of alcohol.

Family Law Act 1975, ss.60CA, 60CC, 61B, 61DA, 64B, 64C, 65D, 65DAA

Mulvany & Lane [2009] FamCAFC 76

Applicant:

MS MCLEAN

Respondent:

MR SANTOS

Intervenor:

MS SANTOS

File Number:

LEC 149 of 2009

Judgment of:

Demack FM

Hearing dates:

13, 14 & 15 December 2010

Date of Last Submission:

15 December 2010

Delivered at:

Lismore

Delivered on:

31 January 2011

REPRESENTATION

Counsel for the Applicant:

Mr Smart

Solicitors for the Applicant:

Paul Denmeade & Co

Counsel for the Respondent:

Ms Frizelle

Solicitors for the Respondent:

McVittie Legal

Counsel for the Intervenor:

Mr Theobald

Solicitors for the Intervenor:

Trenches McKenzie Cox

Solicitors for the Independent Children’s Lawyer:

Stephen Tester & Associates

ORDERS

That all previous parenting plans and Orders be discharged.
That except as otherwise provided for in these orders and in particular, in Order 3, the father, mother and paternal grandmother are to have equal shared parental responsibility for the major long term issues of X born (omitted) 2007 (“the child”) and save for in the event of an absolute emergency situation, when, either the paternal grandmother, the father or the mother is at liberty to make the necessary decision at that time.
That the parties are to consult with each other about the decisions to be made in exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other persons of the decision to be made;
(b)They shall consult with each other on terms they agree;
(c)They shall make a genuine effort to come to a joint decision; and
(d)In the event the parties are unable to agree, the paternal grandmother is to make the final decision with the paternal grandmother to make the final decision and is to inform each parent as to the decision when made.
That notwithstanding the provisions of Orders 2 and 3:
(a)The mother shall be responsible for the daily care, welfare and development of the child whilst the child is spending time with her;
(b)The father shall be responsible for the daily care, welfare and development of the child whilst the child is spending time with him; and
(c)The paternal grandmother shall be responsible for the daily care, welfare and development of the child whilst the child is spending time with her.
That unless otherwise agreed between the parties, the child shall live with the paternal grandmother.
That the mother spend time with the child at all times as agreed between the parties and failing agreement, as follows:
(a)For every second and fourth weekends of each calendar month from 8.30am to 5.30pm on both Saturday and Sunday; and
(b)From 8.30am to 5.30pm on each and every Wednesday and Thursday.
That once the mother has attended to two (2) clean drug screens (a diluted result is to be deemed a dirty result), the mother spend time with the child at all times as agreed between the parties and failing agreement, as follows:
(a)For every second and fourth weekends of each calendar month from 8.30am Saturday through to 5.30pm Sunday; and
(b)From 8.30am Wednesday through to 5.30pm Thursday each and every week;
(c)Until the child finishes Grade 1, during all New South Wales gazetted school holiday periods, on a week about basis between the mother and paternal grandmother;
(d)After the child finishes Grade 1, for the first half of all New South Wales gazetted school holiday periods in even numbered years and the second half of all New South Wales gazetted school holiday periods in odd numbered years;
(e)Commencing in 2011 and each alternate year thereafter the child shall spend time with the mother from 2.00pm Christmas Day until 5.00pm Boxing Day; and
(f)Commencing in 2012 and each alternate year thereafter the child shall spend time with the mother from 5.00pm Christmas Eve until 2.00pm Christmas Day.
That the child spend time with the mother on special occasions as follows:
(a)On the birthday of the child from after school until 5.00pm if a school day or from 1.00pm until 5.00pm if a non-school day;
(b)On the birthday of the mother (if the child is not otherwise spending time with the mother) from after school until 5.00pm if a school day or from 1.00pm to 5.00pm if a non-school day;
(c)On Mother’s Day from 9.00am until 5.00pm if the child is not otherwise spending time with the mother; and
(d)On the child A’s birthday, (omitted), from 9.00am to 5.00pm if the child is not otherwise spending time with the mother.
That the paternal grandmother is at liberty to request that the mother undertake random supervised urinalysis testing for a further two (2) year period with such requests to be no more frequent then once in every three (3) month period with the mother to undertake such testing within three (3) business days of the request being made. In the event the mother fails to comply with the request, or has a diluted sample, or an otherwise failed sample, the mother’s time with the child will revert to being daytime time only pursuant to Order 6(a) and 6(b) herein.
That the father spend time with the child at all times as agreed between the parties and failing agreement, as follows:
(a)On the first weekend of each calendar month from 3.00pm Friday through to 9.00am Monday; and
(b)On Father’s Day from 9.00am until 5.00pm if the child is not otherwise spending time with the father.
That in the event the first of the calendar month falls on a Saturday of Sunday, that weekend shall be classed as the first weekend of the calendar month.
That all handovers are to be at a public place that is as close to a similar distance between the paternal grandmother and the parent with whom the child is to spend time with.
That both the father and mother are injuncted and hereby restrained from consuming alcohol and using illicit substances whilst the child is in their care, nor allow the child to be in the presence of any other person consuming alcohol and/or using illicit substances.
That the paternal grandmother, father and mother shall:
(a)Keep the other parties informed at all times of their residential addresses and landline telephone number;
(b)Keep the other parties informed of the names and addresses of any treating medical practitioner or other health practitioners who treat the child and authorise those practitioners to provide the other parties with information that they are lawfully able to provide about the child; and
(c)Inform the other parties as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This Order authorises any treating medical practitioner to release the child’s medical information to the other parties.
That the parties authorise by this Order the schools or daycare centres attended by the child to give each party information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at that party’s cost).
That during the time the child is with any of the parties, that party shall:
(a)Respect the privacy of the other parties and not question the child about the personal life of the other parties;
(b)Speak of the other parties respectfully; and
(c)Not denigrate or insult the other parties in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parties in the hearing or presence of the child.
That in the event the mother attends upon a counsellor or psychologist, the mother has liberty to provide a copy of these reasons to the counsellor or psychologist.
That the Independent Children’s Lawyers be discharged.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT LISMORE

LEC 149 of 2009

MS MCLEAN

Applicant

And

MR SANTOS

Respondent

And

MS SANTOS

Intervener

REASONS FOR JUDGMENT

The parents of X (born (omitted) 2007) both present with deficits in their parenting capacities.
The mother has used cannabis for more than half her life[1] and accepts that her past use has been substantial (up to 20 cones per day) but says that she has now, lately, reduced her use. Further she displays a high level of emotional reactivity to alleged provocations for which she takes no responsibility and this (unhelpful) reactivity does not appear to have been meaningfully addressed through her attendance at an anger management program. The mother otherwise displays some personality vulnerabilities: she is suspicious of authority, demonstrates little empathy and has minimal self-awareness.
[1] She is now aged 27 years and she started using cannabis at 13.
The father is an immature 21 year old whose binge drinking has made him vulnerable to assaults and caused him to be once hospitalised, who presently lives at home with his mother and two siblings, receives government unemployment benefits, plays computer games into the night and appears unmotivated to address his adult and parental responsibilities.
The parents’ relationship was grossly dysfunctional. They both drank alcohol and used cannabis. They fought. They called the police. They both blame each other for the fighting and each considers themselves to be the victim of violence.
Since 6 October 2009, X has, effectively, been in the care of the paternal grandmother. The interim orders made at that time (by Federal Magistrate Slack) provided for X to live with his father, who was to reside in the paternal grandmother’s house. After the making of those orders, the parents decided to attempt reconciliation for a period and so, to that end, they had a further dysfunctional relationship between (omitted) 2009 and (omitted) 2010.
Not long after that, the father’s drinking reached such a point of concern for the paternal grandmother that she ordered him out of her house. She then brought an application to intervene in the parenting proceedings. Although, since then, the father has returned to live in his mother’s house, neither the father nor his mother consider it a long term living arrangement and it is reasonably anticipated that the father’s drinking may, again, become an issue between them.
The paternal grandmother is a sober, recovering alcoholic. She has not had a drink for more than five years. She attends three Alcoholics Anonymous meetings per week. In her drinking days she was a binge drinker. She sees something of herself in her son’s behaviour. Towards the end of her drinking days she was drinking only small amounts of alcohol but they were having a disproportionately large adverse effect on her. She raised her children while in this condition and situation. She has three children: the subject father in these proceedings (now aged 21) and his half-siblings: a girl, B (born (omitted) 1996, now aged 14) and a son C, who has Down Syndrome and Autism (born (omitted) 1997, now aged 13).
The mother has only had spent time with X during the day-time pursuant to the interim orders. This distresses her greatly and she is inclined to consider that it provokes her. She says that this provocation has been one reason why she has not been able to cease her cannabis use such that she might produce a clean drug screen.
The mother has another, older child: A (born (omitted) 2001, now aged 9 years). The mother has difficulty understanding that she is unable to have X stay with her overnight when she otherwise has the fulltime care of a child. The father of A is not involved in any manner in her life. The New South Wales child protection authority has had some past contact with the mother and has no present involvement in A’s life.

Applications

The mother seeks orders that X live with her and spend time with the father, daytime, once per week only after he has undergone a parenting orders program, an anger management program, drug and alcohol counselling and drug testing. According to her outline of case document filed 24 June 2010, the mother also seeks sole parental responsibility, although that was not pressed with any conviction and the mother professed under cross-examination a belief that both parents should be involved in X’s life.
The father seeks that X live with the paternal grandmother and spend time with him for three days and two nights each week when he moves out of her house. He seeks that X spend time with the mother during daylight hours until she provides clean drug screens and then overnight and for a day either side each week. The father considers that the paternal grandmother should have some shared parental responsibility only for the next six months and that thereafter it should be shared equally between he and the mother.
The paternal grandmother proposes that X remain living with her and spending time with both of his parents. She is not optimistic about future changes in the behaviours of either the mother or the father. In terms of parental responsibility, the paternal grandmother seeks an order that she have sole parental responsibility with mandated provisions for consultation with the parents on all major long term issues.
The Independent Children’s Lawyer, Mr Tester, prefers an outcome which would allow a stepped increase for X’s time with his mother (particularly) with clean drug screenings being a condition-precedent for overnight time. The Independent Children’s Lawyer then proposes an increase of time such that the child would come to spend every Wednesday through Saturday in his mother’s care once repeated clean drug screens are provided. Otherwise, the Independent Children’s Lawyer would have X live with the paternal grandmother. The Independent Children’s Lawyer was not able to provide a clear recommendation with respect to orders for parental responsibility.

I understand his reluctance to arise from concerns as to how any sharing of this responsibility may work in practice given the poor relationships and dysfunctional communications.
The notion that time between X and his father could be agreed between the paternal grandmother and the father and should not require prescription was rejected on behalf of the father.

Background facts and chronology

The applicant mother was born in (omitted) 1983 and the respondent father was born in (omitted) 1989. His mother, the intervener, was born in (omitted) 1968.
As a child, the mother lived with her mother. She has had no healthy or functional relationship with her father who was violent to her mother and she reports, perhaps abusive to her. As I understand the evidence, she has not had any contact with him since she was around four years old.
Unbeknown to her own mother, the mother started using cannabis when she was 13. She moved out of home when she was 16 and had a brief and unhealthy relationship with A’s father. A was born when the mother was 17. Not only A’s father but other members of his family, made threats to the mother during her pregnancy with A and the mother severed all contact with them.
As a juvenile, the father had some contact with the police. At age 16 (in 2005) his mother called the police when he wouldn’t stop lighting little fires in the back yard. Further, when he was 15, together with another couple of boys, he tried, unsuccessfully, to break into the RSL club. A couple of months earlier, the father and a friend had made a chlorine bomb which had exploded and burnt his arm, face and airway. Police, ambulance and fire services had to attend.
The mother and father commenced cohabitation in (omitted) 2006. The father was then two months short of 17 years and the mother was 22. A was aged five years.
In November 2006, the mother saw her general practitioner about her depression. She was trialled on the anti-depressant Lexapro having, apparently, previously taken Luvox a few years earlier.
In January 2007, her doctor recorded that her anxiety, depression and anger problems were worse and that she was paranoid about things. The general practitioner recorded[2]:
[2] Subpoena documents from Dr J
Saw Psychiatrist in (omitted) [sic] about 4 y. ago.
Lied to them about severity of problems.
Had fight and police involved.
A taken off of her.
Police sent her to Psychiatrist.
Natural father has history of depression and bipolar.
On 23 January 2007, the general practitioner notes that the mother told him that she:
Had problems with depression and anger even when 10 y.
Used to cut herself since 12 yo. On and off since then.
Moved out of home at 16 years.
Fell pregnant and went back home for awhile.
On 19 May 2008, the mother’s general practitioner records:
History
1. Fighting with Mr Santos
Punched him a few times
Hates his Mum
2. Problems with controlling her temp.
Saw Ms M last last year.
3. Bruising heself [sic] with pen. Cut skin with razor blades.
Did as teenager.
Depressed.
Bottle-feeding 7 month baby.
The doctor restarted her on the anti-depressant Lexapro and considered that she needed a new mental health plan. She was reviewed in May and then June and the Lexapro dosage was monitored by the general practitioner.
The mother’s general practitioner Mental Health Care Plan was devised on 21 May 2008. She was diagnosed with a major depression.
On 31 October 2008, the father was charged with a common assault for which he was convicted on 24 July 2009 and given a 12 month bond.
On 8 December 2008, an interim apprehended violence order was made in the mother’s favour.
On 12 January 2009, the mother and father had an altercation during which the mother’s nose was fractured[3] when it came into contact with the father’s head. The mother reported to the police that the father had head butted her. In her affidavit sworn 24 February 2009 and filed in the Local Court she stated[4]:
24. On the 12^th of January 2009 at our new address of (omitted), Mr Santos and I were arguing. Mr Santos was being verbally abusive. This happened frequently with him calling me names such as “pot junkie”, “fat mole”, “f**ked mum”, “you’re lazy, and do nothing”. On this occasion I lost my temper and told him if he didn’t stop I was going to hit him. Mr Santos then pushed X behind him and started walking towards me, punching himself in the head yelling “bring it on” over and over. This scared me as I believed I was going to be physically assaulted. I tried to hit Mr Santos but he grabbed my arm and held it, at this point I was scared of what he would do. Mr Santos head butted my nose, and broke it.
[3] An undisplaced fracture of the tip of the nose.
[4] At paragraph 24.
The father denies this version of events.
The father was charged and pleaded not guilty. There was a trial, as best as I can tell from the evidence, before a Magistrate. The father was found guilty of contravening the apprehended violence order but was not found guilty of any assault resulting in the mother’s broken nose.
The day of this altercation was the day that the parties consider their date of final separation.
After this incident, the New South Wales child protection statutory agency spoke with the parents about the impact of violence on children and considered that the ongoing involvement of the Brighter Futures program[5] was necessary and appropriate.
[5] An initiative of the DoCS which provides targeted support to vulnerable families to address concerns which may have them further involved in child protection proceedings. It links families with a variety of services which may be of assistance, provides practical support and makes counselling referrals.

On 12 February 2009, the mother went to her general practitioner. The doctor’s notes record:
Says not coping with Mr Santos
Mr Santos moved back with Mum 20 Jan
Mr Santos not talking with her
Gone off to friend Ms K
Anxious and depressed
X 16/12
A 8 yo – (omitted) Public Year 3
Started new anger course today.
Not coping.
Tried to smash car.
Went to Community Mental Health
Wouldn’t see before because of pot
Has reduced pot now.
The doctor increased the mother’s Lexapro dosage.
During the evening of 23 February 2009, the mother attended at the father’s house in an attempt to have X returned to her care. The father called the police to ensure that there was a record of the event in his favour, as he was not only on bail but also the respondent to an apprehended violence order which protected the mother.
An apprehended violence order made on or around 12 March 2009 was later revoked on 24 June 2009.
In the early hours of 1 May 2009, the father was physically assaulted at a hotel in (omitted). He had been drinking and had gone to the bathroom. He was punched by two men and they took his remaining $20. The father went to hospital. He declined to give a statement to the police and so no further police action was taken. Under cross-examination he denied that the assault was associated with him “…supplying MDMA and acting as a runner for the (omitted)” as alleged in the police records[6].
[6] Subpoena documents from New South Wales Police.
On 30 May 2009, the police spoke with the father about a house which was broken into in December 2006, where fingerprints had been lifted and later analysed. According to the police reports, the father initially denied being there, or knowing the victim but told the police it was “possible” that he had broken in saying he had been “going through a bad stage back then”. He later participated in an electronically recorded interview and admitted his involvement and further alleged that the mother had been involved and present. He was charged and on 3 August 2009 he pleaded guilty and received 12 months probation. The mother denies any involvement in the offence. She was not charged. The father was 17 in (omitted) 2006; the mother was 23.
On the evening of 15 September 2009, the mother was caught driving while under the influence of alcohol. Her reading was 0.05. There were two passengers in the car, according to the police records, including a child in the back seat. The mother had also failed to display her P plates.
On 15 March 2010 (the day trial directions were made for a June 2010 hearing and an updated family report was ordered) X wandered away from the paternal grandmother’s house, while under the care of the father. He was playing computer games at the time and was unaware for half an hour that X had let himself out of the house and had walked 300 metres up the street towards the shops. A neighbour saw X and returned him to the house. X was aged two and a half.
In the early hours of 2 May 2010, the father was treated by ambulance officers after excessive drinking and thinking that his drink had been spiked. He was sluggish, slightly tachycardic and hypertensive with dilated pupils. A drug screen did not detect any cannabis use. He was positive for benzodiazepines and sympathomimetic amines which is an amphetamine type substance[7].
[7] According to the pathology report for one of the mother’s urinalysis – annexure “C” to the mother’s affidavit filed 26 May 2010 – which reads “The drug class Sympathomimetic Amines is now referred to as Amphetamine Type Substances. This change has been made to comply with AS/NZ 4308:2008.”
Around September 2010, the mother commenced a relationship with Mr B (born (omitted) 1988), a long-term associate of the father’s and former friend. He is on parole until December 2011, having served 12 months of a three year sentence in custody for the offences of grievous bodily harm and robbery in company causing wounding. The offences occurred when he was under the influence of alcohol. His parole contains conditions that he participate in alcohol and drug addiction counselling under psychiatric/psychological counselling as directed. He tells this Court that his parole officer has not directed him to attend for any psychiatric or psychological counselling.

A (born (omitted) 2001)

A was born when the mother was 17. A has no contact, communication or relationship with her natural father who ended the adult relationship before her birth. The mother says that she was threatened by A’s father and his family when she told them she was pregnant and all relationships were severed. The mother says that A never asks about her father or his family.
In September 2003, while they were living in (omitted), A came to the New South Wales Department of Community Services’ (“the Department”) attention. The records reflect that this was the third report received by the Department, although the first was considered malicious. The report indicated that the Department assessed that there was no evidence of harm from her mother and no further action was taken.
A’s school reports indicate that she is a happy, friendly and well-behaved child at school. She works well and gets more very satisfactory results. During the first semester of 2009 (Grade 3), she had 18 days absent. Then during the second semester of 2009, A had 22 days absent from school. For a small part this is explained by a sudden trip to Sydney for her maternal great-grandfather’s funeral. The mother otherwise explains the absences as primarily arising from A missing school to spend time with X on Wednesdays which is one of the two days per week[8] that he is with his mother.
[8] The other day being Saturday.

Documents and witnesses relied upon

The mother relied upon affidavits by herself and her mother (Ms J) and her sister (Ms A nee Ms J), and her boyfriend (Mr B). Some of the mother’s affidavits annexed documents which should have properly been the subject of affidavits deposed to by the authors. No arrangements had been made in advance of the trial to have Dr S, a psychiatrist who had seen the mother in 2007, or Mr D, drug and alcohol counsellor, who had last seen the mother in May 2010, available for cross-examination. Arrangements were not able to be made during the course of the trial. I have allowed their documents in, although without the testing of their evidence, it is difficult to see how much weight can be given to their views, particularly when much of their information seems to arise from the mother’s self-report. The mother and her other witnesses were all cross-examined.
The father relied upon affidavits of himself only. He was required for cross-examination.
The intervener, the paternal grandmother, relied upon affidavits by herself and one Ms K who was not required for cross-examination. The paternal grandmother read and then later withdrew the affidavit of Ms C when she was not available to come to court. Ms C is a friend of the grandmother and her sons, who were the subject of some discussion during cross-examinations, are friends of the father in these proceedings. The paternal grandmother was required for cross-examination.
The Independent Children’s Lawyer, Mr Tester, relied upon the two family reports prepared by Ms P dated 1 September 2009 and 7 June 2010. Ms P was cross-examined by telephone.
A bundle of documents sourced from the subpoenaed material was tendered by each party. The individuals or organisations who had produced the material were: the mother’s general practitioner; The (omitted) Public School; Department of Community Services (New South Wales); Ambulance; Police; (omitted) Hospital; (omitted) Drug and Alcohol Centre ((omitted)) and (omitted) Area Health.

The law to be applied

These parenting proceedings are governed by Part VII of the Family Law Act1975 (“the Act”). The best interests of X are the paramount consideration (per s.60CA).
The Act sets out the matters which must be taken into consideration when determining what is in X’s best interests. Many of these matters make reference only to the parents of X. As I understand the Full Court’s position in Mulvany & Lane [2009] FamCAFC 76, those factors which refer only to the parents should be applied only to the parents and not the paternal grandmother. However, if there are issues referrable to the paternal grandmother’s care of X which are not covered by the stated primary and additional considerations in s.60CC, they may properly be examined via the catchall provision in s.60CC(3)(m): any other fact or circumstance that the court thinks is relevant.
Parental responsibility is to be determined by reference to the best interest factors and by an examination of the circumstances in which the presumption is capable of being rebutted: that is, child abuse or family violence (per s.61DA (2)).
Once the issue of parental responsibility is determined, I must turn my mind to how X will spend time with his parents and/or his paternal grandmother, again with reference to the best interests factors, and as applicable, issues of reasonable practicality (per s.65DAA). If, for any reason, I have determined that the parents shall not have equal shared parental responsibility, then there is no requirement for me to consider equal time or substantial and significant time but rather I must make whatever order is thought proper (per s.65D) according to the best interests criteria and subject to the objects and principles contained in s.60B.

Primary considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents (s.60CC(2)(a))

X is only three years old. He has a long life ahead of him. All things being equal, it would be in his best interests to have a meaningful relationship with both of his parents. As best as I can tell, his present relationship with each parent is meaningful. It seems to me that it is the responsibility of each parent to ensure that they are making themselves available to X for him to have a meaningful relationship with his mother and his father respectively. It is their actions, behaviours and attitudes which will determine whether their son is able to have a meaningful relationship with them. They are the adults; it is their responsibility.

The need to protect the child from physical or psychological harm from being subjected to, exposed to abuse, neglect or family violence (s.60CC(2)(b))

Mother’s drug use

It was the mother evidence that she has used cannabis since she was 13 years old and that in the past (and particularly from 2006) she has smoked up to 20 cones per day at all times of the day: morning, lunchtime, afternoon, evening and when waking in the middle of the night – just like, she says, other people might have a midnight snack.
The mother has long been aware of the need to attend to her cannabis use. In 2007 she saw a psychiatrist, Dr S. He wrote[9] to her general practitioner, Dr J, stating in part:
[9] Annexure “A” to the mother’s affidavit filed 30 September 2009.
…
She recently attempted to cease cannabis use and experienced major withdrawal symptoms leading to vomiting which required a visit to A&E. If she experiences this again, she would benefit from a brief hospitalisation at the (omitted) Hospital. She has a good understanding of the need to cease cannabis use.
…
In her affidavit filed 30 September 2009, the mother stated that she was smoking no more than five cones per day[10].
[10] At paragraph 25.
The mother was seen at the Drug and Alcohol Service attached to the (omitted) Hospital on 5 February 2010. Her self-report included that her cannabis use had decreased considerably and that only using two cones per day on most days. She reported that she disliked being dependent and wished to stop using. The notes record:
…Also feels she needs to be abstinent in order to gain custody of child X, 2, who is currently with her mother following breakup of rel/ship (again) with Mr Santos, father. …
The mother swore and filed an affidavit on 26 May 2010. Relevant to this issue, she stated[11]:
[11] Paragraphs 11 through 14.
I have currently cut down my cannabis use to no more than two cones or a puff of a joint once or twice a week.
I am intending to give up cannabis use completely but realise that I have to wean myself off it to be effective in ensuring that I stay off cannabis.
Mr D is providing me ongoing support and assistance to enable me to do this.
I have had no further requests to attend drug testing but I am prepared to undergo random testing. I am aware that cannabis will remain showing up in my system for several months after it as been used by me.
Despite these words, the mother’s counselling with Mr D was ended via mutual agreement at her very next session on 28 May 2010.[12]
[12] Per Mr D’s letter dated 15 June 2010 annexed as “A” to the mother’s affidavit filed 24 June 2010.
Her urinalysis on 18 August 2010 and 24 September 2010 both demonstrated that she was continuing to use cannabis.
Under cross-examination the mother said that she had had no more than ten cones in the past two weeks. She had earlier stated that she no longer smokes daily and had “hardly” smoked “last week”.
The final hearing in these proceedings had been listed prior to the December 2010 sittings. On the earlier occasion, the Independent Children’s Lawyer had prepared an outline of case document that stated his clear preliminary position. He sought orders in terms very similar to those sought during final submissions in December. Relevantly, he sought:
…
3.2 Following the completion of a Parenting Orders Program and an Anger Management Program, and upon the mother providing to the ICL and the legal representatives of the father and the grandmother evidence of two clear drug test results, the child spend time with the mother from 9.00am Wednesday until 5.00pm Thursday, then from 9.00am Sunday until 9.00am Monday each week.
3.3 After the mother provides 6 clear drug test results, the mother’s time with the child be from 9.00am Wednesday until 5.00pm the following Saturday each week.
4. Both parents shall undertake drug testing by way of supervised urinalysis within 24 hours of a request being made by the ICL and both parents shall promptly provide the test results to the ICL.
The Independent Children’s Lawyer checked with the mother during cross-examination that she was aware since the earlier trial date that the Independent Children’s Lawyer was supportive of X spending overnight time with her only once she had been able to provide clean drug screens. The mother had understood that to be his position.
The mother has provided no clean drug screens. The mother’s most recent drug screen[13] was not only performed some weeks after it had been requested but was also defective in a manner which caused the laboratory to note that the results could not be used for medico-legal purposes. This deficient attempt at urinalysis was not clear for cannabinoids and the only inference I can draw from the mother’s late attendance and subsequent failure to properly attend to the task is an inference against the mother’s interests. There is certainly nothing positive that can be properly said on the mother’s behalf about this last test.
[13] Exhibit 1
The three tests[14] prior to this one, all showed the use of cannabis in varying quantities. I am not provided with any information which would cause me to understand what the detected levels in the earlier urinalysis reports may equate to by way of quantity or regularity of use.
[14] On 2 February 2010, 18 August 2010, and 24 September 2010, per Exhibit 1
The mother’s use of cannabis is long term and habitual. She is not currently receiving any assistance to reduce her use or to cease her use.
I am satisfied that the mother understands that the Independent Children’s Lawyer considers that she should cease her use altogether. It is clear that she has long had medical advice that she should stop using. I am also satisfied that she is clear that it is an issue for the Court, as it was a serious and determinative factor in an interim decision of mine to not increase X’s time with her to overnight time pending the final hearing.
I am satisfied that the mother does not consider that her long term and current cannabis use should be considered to be sufficient reasons for X to not be in her care. There was nothing in her demeanour, answers or evidence to suggest that she considered that the use of cannabis was contraindicated in good parenting practises. Indeed, there was a series of questions in cross-examination, which I presume to be under instructions, to suggest that cannabis use was not as detrimental to good parenting as alcohol consumption. Further, submissions were made on her behalf, again surely under instructions, to the effect that cannabis use was so prevalent in the area that to compel parents to either not use or to not parent would result in many children needing to be parented elsewhere.
I take judicial notice that the effect of cannabis use includes a dampening of some higher brain functions which make the difference between effective and ineffective parenting. A parent under the influence of cannabis could be expected to be less emotionally available and attentive to a child’s needs than when not under the influence.
These issues are important to note, as the mother seemed to be attempting to mount a case that under the influence of cannabis, she was still able to make dinner for the children, or make a bed. She seemed to have the view (as demonstrated by her Counsel’s cross-examination of the paternal grandmother, again presumably under instructions) that X would not be at risk in his mother’s care as she kept a tidy home and there were clean clothes for X to wear. I do not consider that to be the issue of safety which is of paramount importance in this case. I do consider that when the mother is under the influence of cannabis, that her parenting would be compromised. It would not be optimal. It would be hindered by the physiological and neurological and psychoactive effects of cannabis. These amounts to there being concerns about the safety of X when he is his mother’s care if she is continuing to use cannabis.
I am satisfied that the mother’s heart’s desire is to have X back in her life and for his predominant care to be undertaken by her. I am satisfied that she is demonstrably distressed by his continued absence from her life. I consider that the mother has used cannabis not only out of habit but also because it provides some relief for her from the stresses and stressors in her life, including X’s absence.
There is no mechanism known to the Court which would demonstrate that the mother is only using cannabis at times when she has no parenting responsibilities either at the actual time of use, or during the period post use when her faculties are otherwise still compromised. The only method for determining that the mother is not using when she is parenting, is for her to not use at all, such that any urinalysis would be clear.
For the mother, then, to demonstrate that she is not using while she is parenting, she needs to stop using completely. She has not yet been able to do that. She has the external pressure to remind her to cease her use. That same external pressure is relieved by her using cannabis.

I acknowledge that it is a vicious circle for the mother.
Without external assistance (which she doesn’t presently have), the mother appears unable to make the necessary steps to attend to her unhelpful behaviours. Part of the mother presenting issues, though, includes a difficulty forming and then retaining a useful rapport with service providers. The mother, it seems, feels frustration easily and keenly and is quick to reject assistance, especially assistance which looks like it might involve long term engagement.

Mother’s mental health

To a limited extent the mother appears to understand that her emotional responses need better keeping in check but there is little to cause the court that to accept that this understanding comes from internal, rather than external, forces.

The family report writer, in her first report, administered the Personality Assessment Inventory (PAI) on the mother who scored in the clinically significant range on many scales which are said to indicate a number of possible psychiatric diagnoses including Substance Dependence, Post Traumatic Stress Disorder, Personality Disorder, Bipolar Disorder, and Major Depressive Disorder.
At paragraphs 33 and 34, the report continues:
Ms McLean’s responses indicate that she has a fragile self-concept. Her self report indicates that she is suspicious, hyper vigilant and extremely sensitive to perceived slights and feelings of resentment. Her responses suggest that she is easily angered and has difficulty controlling her anger. Her risk for aggressive behaviour appears exacerbated by a compromised capacity for empathy, troubled close relationships and sensation seeking behaviour.
Ms McLean’s responses indicate an acknowledgment of her problems and a perception of a need for help in dealing with these problems. However, it is likely that treatment will be hindered by difficulty with perceived authority figures and in trusting treating professionals.
Those observations made by Ms P were obvious as the mother gave her evidence. Many witnesses appear as though they think it is preferable to present themselves in the most favourable light in the court and most particularly, in the witness box. The mother did not have such constraints on her words or tone. She was particularly riled by Counsel for the father. At times she referred to her as “honey” in a markedly unfriendly tone. It was to this Counsel that she made the reference to karma. Only a month or two before final hearing a further interim hearing had occurred to consider the mother’s application for overnight time to commence. The application was unsuccessful. Towards the end of my decision, as the outcome became clear, the mother left the court room noisily swearing and cursing and continued this behaviour as she left the Court’s precincts. This is after she is said to have completed an anger management course and at a time when she knows that her behaviour will soon be even more closely examined at trial.
Despite Ms P’s clear recommendations in her first family report[15], the mother did not see a psychiatrist for medico-legal purposes. A Dr S, (omitted) Medical Centre, sent a fax to the solicitor for the mother, headed “To Whom It May Concern” on 23 February 2010. In its entirety it reads:
Ms McLean attended a 1 hr psychiatrist consult on 23/2/10.
The doctor gave the mother a note. It said:
- a psychologist would help C through parenting program,
- continue with
1) cannabis counselling
2) lexapro
[15] At paragraph 96 and released by the Court in mid-September 2009.
- ? counselling through Domestic Violence”.
Both of these documents are annexed to the mother’s affidavit filed 26 May 2010.
The mother had previously seen Dr S in 2007. In his letter to her general practitioner, Dr J, dated 1 March 2007[16], he refers to her “long terms history of chemical depression/anxiety” along with her “heavy cannabis use since a young age”. I have earlier extracted a little from the Dr S’s letter to Dr J. Dr S did not make any further appointments at that time.
[16] Annexure A to the mother’s affidavit filed 30 September 2009.
The mother has been involved in a number of interventions from external agencies. She has completed a Parenting Orders Program through Interrelate Family Centre in (omitted) as part of their Building Stronger Families program. She has attended drug counselling with Mr D from the (omitted) Area Health Service Cannabis Clinic, although his letter would indicate that counselling ceased on 28 May 2010.

Violence in the parent’s relationship

The mother has repeatedly claimed in her evidence, that the father was abusive and violent to her throughout their relationship (see affidavit sworn 24 February 2009, filing date unclear). She specifies particular dates and events, including: Easter 2007 at her cousin’s house at (omitted); when eight and a half months pregnant, in the car; on 8 December 2008 at 3/23 (omitted); on 12 January 2009 at (omitted).
The father, likewise, complains that he has been the victim of physical and emotional abuse from the mother. He says[17] this has included:
[17] At paragraph 12 of the father’s affidavit filed 10 September 2009.
i) shooting a dart from a dart gun at me;
ii) trying to hit me with a steel pole;
iii) throwing items at me, such as bottles and cups;
iv) biting me on several times and on one occasion broke the skin resulting in me receiving a tetanus injection;
v) head butted me on three occasions;
vi) has tried to run me down in the car and tipped water on me while I was in bed asleep.
According to police records, in February 2007, the police were called by the mother who would have been in the very early stages of her pregnancy with X. She told them that she and the (later-to-be) father had recently stopped cohabiting following an argument and that the father had returned to her home uninvited to remove some of his personal possessions. The mother wanted him out of her house but did not otherwise want any assistance from the police who reported her to have no fears for her safety.
Again, according to police records, in August 2007, when the mother was pregnant with X, at a time when she and the father were not cohabiting, she contacted the police to allege that the father had attended her house and they had had a verbal altercation. No offence was detected by the police.
On 5 February 2010 when the mother attended at the (omitted) Hospital's Drug and Alcohol Service, having been referred, at least in part, by Housing, the mother reported to the counsellor[18] that she and the father had reconciled for only one week in November 2009 and that they had separated “… following DV by him while intoxicated”.
[18] And as recorded by the service in their records, per Exhibit 2.
A 12 month apprehended violence order was taken out in favour of the mother on 24 July 2009. It included prohibitions on stalking and damaging property.
In her affidavit filed 11 February 2010[19], the mother describes an incident where she physically assaulted the father:
[19] At paragraphs 23 through 26.
On Friday 29 January 2010 Mr Santos was again drunk and verbally and emotionally abusing me, calling me things such as fat and saying no-one but him would ever love me. He had purchased me several gifts and was aware that I had low self esteem and knows that these things make me upset.
I begged him to stop but he wouldn’t.
I then tried to slap him with my right hand but he grabbed it and forced it behind my back. This caused my hand to sprain and it was swollen and bruised for some days after. He then punched me three times in the stomach. This left two bruises.
I grabbed Mr Santos by his testicles with my left hand and picked up an object in my right hand which I didn’t know what it was to toss it at time to try and get him away from me. The object turned out to be a coffee mug half the normal size and hit him on the right hand side of his jaw. As a result of this he punched me in my left eye. He went to punch me in the right eye but I moved and he just scraped over my eyebrow. I was left with a severe black eye.
No police records where produced which supported the mother’s version of events or her version of having been the victim of family violence.
It seems to me to be more probable than not that the mother and father had a dysfunctional relationship which was punctuated by disagreements and arguments exacerbated by their joint and separate use of alcohol and cannabis. At times, both of them became physically abusive with each other. At times both of them were emotionally abusive. Neither of them have the skills to have a functional and healthy relationship with another person whose who functioning is compromised.
I cannot be satisfied that either parent is more culpable than the other when it comes to the family violence which existed in their relationship. I am satisfied though, that necessarily, A and X would have been exposed to the violence and the dysfunctional relationship generally. There is nothing in the parties’ presentations which would cause me to consider that they would have taken any meaningful steps to moderate their behaviours in the presence of children.

The paternal grandmother’s past drinking

The paternal grandmother acknowledges that she was a problem drinker of many years standing. She has been sober for five years and continues to attend three Alcoholics Anonymous meetings each week “… as she finds it helpful in reminding her to be grateful, to look after the things she can and not to worry about the things she can’t.”[20]
[20] Per paragraph 75 of the second family report.
There was no challenge to the paternal grandmother’s assertion that she was sober and had been for the time that she states.
The paternal grandmother also acknowledges that she brought up the father and his siblings while she was drinking and that this was poor or deficient parenting by her.
It is argued on behalf of the mother, that the paternal grandmother’s parenting skills should be determined by reference to the job she did in parenting Mr Santos, the father in these proceedings. Further, the argument goes, one can tell the poor quality of the parenting that he received by looking at the young adult he has become: a problem drinker himself, on unemployment benefits, still living at home, playing computer games constantly and when he had a relationship he was emotionally and physically abusive.
The difficulty I have with this argument is that there is scant criticism in the material as to the paternal grandmother’s present parenting or caring abilities. The criticism seems to only amount to the family report writer[21] observing her to be firm and directive with X and to her having a number of stressors in her life, including the sole parenting of C who has special needs.
[21] In her second family report.
The mother is further critical of the paternal grandmother’s care of X is that it exposes him to C, with whom he shares a bedroom. C has some behaviours which appear to arise from his autism which need to be responded to in a manner which is different from responding to a child without autism. For example, C finds wearing clothes difficult and will often take his clothes off the minute he returns home. There is nothing in C’s behaviours or the management of them by the paternal grandmother which would cause me to consider that her caring of X is compromised or that X is exposed to any harm in his presence.
I do accept that the paternal grandmother’s parenting of the father may have had some deficits and that these may have been contributed to how he now presents. I also accept, as a general premise, that a person’s past behaviours are an indicator of the sorts of behaviours which may appear in the future. I am satisfied that the paternal grandmother’s five years sober are now long enough to be the reality of her life and not some feint aberration or some untested behaviour. In her sober state, I find her to be a carer of X who does not place him at risk.

The additional considerations

Child’s views (s.60CC(3)(a))

X only turned three in (omitted). His mother says that he misses her and expresses to her at the end of his days with her that he wishes that he could spend more time with her. He demonstrates that he is reluctant to leave her care by crying and running away when it is time to go.
I accept that X wants to spend more time with his mother. I consider it to be part of the mother’s responsibilities to ensure that she makes orders or arrangements work for X and that she ensures that her responses to his upset in leaving her care are responses to his needs and not to her needs.

Relationships of the child with the parents and other persons (s.60CC(3)(b))

X is still very young and while he was a baby he lived with both his mother and his father. Again, only at the end of 2009 and the beginning of 2010, for a short time, he lived with his mother and his father when they attempted to reconcile their relationship.
In his mother’s household, he has an older sister A. She will turn 10 on (omitted) 2011. She misses her brother when he is not with her. She would like him to live with her and their mother.
The father presently lives with his mother and his brother and his sister. He and X and C share a bedroom. Occasionally, the father sleeps in the lounge room, presumably to give everyone a little more space from each other. I accept that X is happy living in that household.
In the event that the father moves into independent accommodation, X will not longer be living with B and C – his aunt and uncle. I accept that will be an adjustment that will need to be handled sensitively as X has lived with them now, almost continuously, since the month he turned two.
The mother’s mother, the maternal grandmother, lives near to the mother and sees her on a very regular basis as she picks up A most days and drives her both ways to and from school. The mother considers her mother to be a support to her.
The mother’s sister is also considered by the mother to be a support to her. She and the mother have had some periods in the past where they have not been talking, but there are no present difficulties.

Willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent (s.60CC(3)(c), noting (s.60CC(4)); per s.60CC(3)(m) the paternal grandmother’s ability to facilitate and encourage a close and continuing relationship between the child and each parent

It is submitted on behalf of the father that there should be specificity in the orders as to the time that X should spend time with and communicate with his father, in the event that orders provide for X to live with the paternal grandmother. This is submitted to be the case, even while, as they were at trial, they are living in the same household, and indeed, sharing a bedroom.
The father considers that he and his mother do not get on the best and that he doesn’t want his mother to be making decisions about X. He was unable to provide any time line for when he might move out of his mother’s house nor for when he might get a job. He had thought about going to the (omitted) and working one week on, one week off. Or, he thought, he might get a part time job. He also considered that government benefits would be enough for he and X to live independently.
Both the grandmother and the Independent Children’s Lawyer had hoped that the grandmother and the father would be able to make appropriate and child-focussed arrangements for X’s time between them without Court orders.
It is submitted on behalf of the mother that the grandmother has not facilitated any time over and above Court orders and that this is indicative of her poor attitude towards the mother. It was further submitted on behalf of the mother that the paternal grandmother has been the source of trouble between these two parents: that she has dobbed them in to the Department of Community Services and to the police.
The mother stated in evidence that the paternal grandmother had always wanted X for her own. She says the grandmother said to her words to the effect, how did they get to have a healthy child when her son C has Down syndrome and autism. The mother appeared to be wanting the Court to consider that this has all been some plan of the paternal grandmother’s to get X into her care for her own purposes and desires. I categorically reject this notion. There was nothing in the paternal grandmother’s presentation to even hint that she was focussed on anything other than X’s best interests and that she was genuinely concerned about the mother’s mental health and cannabis use, and likewise, genuinely concerned about her own son’s alcohol use. I consider that this evidence by the mother was a manifestation of the mother’s own misguided notions and her inability to see matters from any perspective other than her own.
Clearly, there is some ill will between each parent and the paternal grandmother. I cannot find that the strong feelings of suspicion and frustration felt by each parent are the fault of the grandmother. It seems to me that the reactions by the parents to the paternal grandmother’s intervention in X’s life (and these proceedings) are an extension of the reason that she felt it necessary to intervene in the first place. If the parents each had the capacity to reflect on their own behaviour and address their parenting limitations, they would understand why it has been best for X to live under the paternal grandmother’s primary care. The fact that neither parent properly understands this, or comes close to truly accepting it, should not be sheeted home to the paternal grandmother.
I accept that the paternal grandmother has not facilitated time between X and his mother above that which has been contained in court orders. I consider that the paternal grandmother has continued to hold concerns about the mother’s mental health and her cannabis use and has considered that extended periods of time in the mother’s care, including overnight time, would not be in X’s best interests. The orders have provided for regular day time contact and that has been consistently facilitated by the paternal grandmother.
In terms of the parent’s ability to facilitate a relationship between X and the other parent, both parents seek orders that would have X spending regular time with the other parent, once that other parent has attended to the matters which are the subject of their complaints. However, the mother complains the even not long before trial she saw X and the father downtown and the father would not let her approach X to even say hello or give him a hug. The father’s pretence[22] that X did not see or hear the mother, when he was walking along with his father who reports the mother yelling to him from across the street, is fatuous, immature and insulting to the mother.
[22] In paragraph 4 of his affidavit filed 9 December 2010.
Given their past dysfunctional methods of interacting with each other, it seems a little hopeful to consider that the parents would be able to effectively shield X from their feelings about the other parent and would purposefully promote the child’s relationship with the other parent. Still, as best as I can tell, orders have been mainly complied with and both grandmothers are willing and able to assist with handovers, which may prevent direct contact between the parents.

Likely effect of any change in the child’s circumstances (s.60CC(3)(d))

Both parents propose major changes to the child’s living arrangements.
The mother would have X move into her care, back with his sister. I cannot be satisfied, given the mother’s behaviour at court that she has addressed the anger management issues that have long been recognised by her on some level, and which have been brought to the court’s attention as a very real issue as long ago as the first family report in September 2009. The mother’s attendance at an anger management course seems to have lead to her to understand that angry responses may be the result of other feelings such as sadness or frustration coming out the wrong way. She says that knowledge has helped to understand how to do things differently. There was little evidence of that knowledge being put to good effect at court.
X has now lived over one third of his short life in his paternal grandmother’s care. He will experience loss and other feelings associated with the change that will arise from the orders that the mother seeks. The mother’s view appears to be that all children want to be with their mothers, so there will be no difficulties. I am not so sure about that and I am not so sure that the mother has the skills to help X with his feelings if those feeling arise from him no longer being in the care of his paternal grandmother.

The changes that the father seeks are at an unspecified time in the future and are of an unknown nature. The father’s future accommodation and future employment are unknown in every respect. The father struck me as being not only immature but also lacking in focus or direction. It is difficult at this stage to envisage him having the drive and determination to organise all of the matters which should properly be organised for X to be in his care away from his mother’s assistance and household. Again, X would experience loss and other feelings in leaving his present household and there was nothing in the father’s presentation which caused me to form the view that he was either aware of this potential, or had the skills to know how to respond to his son’s needs at that time.

Practical difficulties and expense of the child spending time and communicating with a parent (s.60CC(3)(e))

Every one lives in the same town. No party is presently employed such that they would not be available at certain times to attend to commitments under a court order. The corollary of that is that incomes are limited and the mother, for example, is reliant on others for transport.

The capacity of each of the parents to provide for the needs of the child, including emotional and intellectual needs (s.60CC(3)(f))

The mother points to A as proof of her capacity to parent effectively. Certainly, A, in the main, has good school reports. The mother understands that others considered that it was not a good result for A to be taken out of school on a Wednesday on a regular basis so that she could spend time with X. I am not so sure that the mother agrees with that view but she has taken the advice of others and stopped that practice.
A was seen by the family report writer, who included the following in her September 2009 report:
A states that she helped her mother get ready this morning by doing some dishes. A states that she and X shared a slice of toast for breakfast as there was no more bread. A said that they were gong [sic] to get breakfast later at MacDonald’s.[23]
[23] Paragraph 70.
I am satisfied that when the mother is under the influence of cannabis, her parenting is compromised. I am further satisfied that she has used cannabis regularly and constantly since A’s birth. I am further satisfied that the mother’s personality vulnerabilities, including but not limited to her anger management difficulties, must necessarily make her less emotionally available than she would be if she didn’t experience these vulnerabilities.
I am further satisfied that A is now of an age where she is able to speak up for herself if necessary and that attendance at school is of itself a protective factor for a vulnerable child. I also note the maternal grandmother’s constant if not daily presence in A’s life.
In terms of the father’s capacity to provide for X, the paternal grandmother reports that the father performs many parenting roles for X within her household. Further to my comments and findings above, I cannot be satisfied that the father has the present capacity to continuously and reliably provide for X’s needs without the assistance on a real basis from his mother. He hasn’t parented X on his own for any prolonged time and hasn’t yet shown any real intention to place himself in a position where that might happen.

The maturity, sex, background and lifestyle of the child and parents (s.60CC(3)(g))

X’s still tender age is a significant factor in this case. He is at an age where he remains vulnerable to poor care and risks of harm.
The respective backgrounds of the parents are also relevant and have been earlier discussed.

The attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents (s.60CC(3)(i), noting (s.60CC(4))

I am satisfied that the mother vehemently and determinedly wishes to be X’s primary carer and decision maker. For all of the mother’s faults and failings which have been otherwise mentioned in this decision, I must categorically state that the mother’s love for X is plain and complete.
I am satisfied that the father loves X and wants what is best for him. I am concerned that the responsibilities of parenthood are, at times, overwhelming for the father and that he has recognised but not always welcomed, the need for his mother’s assistance.

Any family violence involving the child or a member of the child’s family (s.60CC(3)(j) and(k))

I have spoken about this issue earlier and will not repeat my earlier comments and findings, save as to say that both A and X have been exposed to the family violence perpetrated by both the mother and the father and that this is a poor outcome for both of them.

Likelihood of order leading to further proceedings (s.60CC(3)(l))

The maternal grandmother was a witness for the mother, her daughter. The mother had expressed the view that if orders were made providing for X to live with the paternal grandmother, then her mother would bring proceedings. The maternal grandmother was not as definite about that and had no real answer as to why she had not sought to intervene when she became aware of such a process through the paternal grandmother’s actions.
The mother made it plain that she would be displeased with any outcome other than the one sought by her. She has previously shown her displeasure when an interim application by her did not result in an increase into overnight time, by loudly swearing and cursing as she exited the court room and court precincts. It appears that this counts as a form of provocation for the mother. Under cross-examination by counsel for the father, the mother referred to her belief that karma would attend to those who made any decision contrary to her position.
There is, it seems to me, every likelihood that the mother will not accept or understand any decision which does not give her what she seeks. That outcome may lead to the institution of further proceedings. I do not consider that I can usefully take into account the mother’s emotional responses to perceived provocations as a basis for acquiescing to her demands which are otherwise, it seems to me, contrary to the best interests of the child.

Any other fact or circumstance that the Court thinks is relevant (s.60CC(3)(m))

The paternal grandmother’s capacity to care for X is accepted by the court. I further accept that she did not attempt to manipulate a situation where she became a primary carer for her grandson for her own ends, but rather she has responded to the situation she saw before her.
In the circumstances where both parents present with deficits in their parenting, the paternal grandmother has provided a safe and stable and loving environment for X. Further she has done that in the face of quite hostile opposition from the mother and a difficult parent/child relationship with her own son.
I am satisfied that the paternal grandmother has the necessary love for X and the ongoing fortitude to continue, if necessary, caring for X and supporting his relationships with both his mother and his father.

Conclusions as to best interests

The particularly important issues in this case are the family violence in the relationship between the mother and the father, the mother’s cannabis use and personality vulnerabilities, the father’s alcohol use and whether any or all of these matters are such that it would be in X’s best interests for his paternal grandmother to have real ongoing involvement in his life pursuant to court orders concerning parental responsibility and where he lives.
Both of X’s parents love him very much.
Both have them have taken some steps towards addressing their behaviours. To this end, I am satisfied that the mother has taken more steps than the father but I am also satisfied that she had more steps that needed to be taken and that she still has a long way to go.
I am not satisfied that the mother can control her cannabis use such that it only occurs at times when she has no parenting or prospective parenting responsibilities such that I should be minded to consider that she should not be compelled to produce clean screens prior to her time increasing to overnights. In light of the limitations of testing for cannabis, the mother’s only option for having overnight time with X will be for her to produce clean drug screens. I consider that the mother will have difficulty achieving this aim without outside assistance, particularly as the feelings of pressure this outcome will produce are the same feelings of pressure which historically she has responded to by using cannabis. Given the mother’s sometimes difficult relationships with service providers, it seems unhelpful to compel the mother through a court order to attend to counselling for her on-going cannabis use. However, it seems to me that any counsellor the mother sees for this purpose should be able to read this judgment to better understand the Court’s concern.
The father has exhibited so little direction as to his future plans that it seems hypothetical to make orders which provide for him caring for X when living separately from the paternal grandmother. There is no reason why he should not have specific periods of caring for X, even while living in his mother’s house, as through that mechanism, both he and the paternal grandmother can be aware of their separate responsibilities.
I am satisfied that neither parent is presently willing and able to care for X for extended or overnight periods without the involvement of another competent carer. The father has his mother’s support, which is, presently, live-in support. I consider that should continue. The mother has family support but she eschews the idea that she needs supervision or assistance and, in any event, I am not minded to make final orders which impose obligations on non-parties nor orders which fail to take properly and seriously the mother’s on-going cannabis use.

Equal shared parental responsibility

Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. (s.61B).
Section 61DA(4) provides that the presumption of equal shared parental responsibility may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
A parenting order may deal with the allocation of parental responsibility for a child (s.64B(2)(c)), including the allocation of responsibility for making decisions about major long-term issues in relation to the child (s.64B(3)).
Importantly, for this case, a parenting order may be made in favour of a parent of the child, or some other person: s.64C. The paternal grandmother seeks an order that she have sole parental responsibility, although, in final submissions, Counsel amended that position to include a process of consultation with the parents.
It seems to me that it is contrary to the best interests of X for either his mother or and his father to have sole parental responsibility, given the findings I have earlier made. The paternal grandmother is going to continue to be heavily involved in X’s life for many years and potentially for his entire childhood as a carer and parental responsibility needs to be shared by her as well. With three people intimately involved in X’s life, there will always be the potential for clashes of opinion about decisions of a long-term nature. It seems to me that when that happens, the paternal grandmother, after proper consultation with both parents, will have the capacity to make the decision needed at that time. On the (hopefully) very rare occasion that an emergency decision needs to be made, it seems to me that either the mother or the father or the paternal grandmother should be empowered to make the necessary decision at that time

How X should spend time between households and under what conditions

Given the findings I have made about parental responsibility essentially remaining shared between the mother, the father and the paternal grandmother, it seems to me that I must consider the matters set out in s.65DAA: as to equal time and failing that substantial and significant time with the parents. I can only order either of those provisions if it is not only in X’s best interests but also reasonably practicable. I do not intend to go back over the consideration of the best interest factors.
It should also be clear that I have real concerns about the parent’s abilities to communicate and resolve difficulties that may arise, despite their relative proximity and their present ability to comply with an order which has handovers occurring with regularity. These parents really require the assistance of others to be able to deal with each other. I cannot find that either of them have any deep or abiding capacity on their own and without assistance to implement an arrangement that would have X moving peaceably between their homes.
I have already made it plain that the mother needs to produce clean, supervised drug screens prior to X spending overnight or extended time with her. Until that is attended to, I consider that the impact on X will be negative and contrary to his best interests.
Likewise, the father is in no position presently to have X in his care outside his mother’s overall and overarching supervision and assistance. I do not suggest that she needs to be watching his every move but I consider that the father has not demonstrated that he has the capacity to parent X outside his mother’s household on an on-going basis. I consider that any present attempt by the father to have X in his care not in his mother’s home would have an impact on X that was negative and contrary to his best interests.
I find that it is neither in X’s best interests, nor reasonably practicable for X to spend equal time nor substantial and significant time with his parents. He shall live predominantly with his paternal grandmother.
It seems to me that the father, even while still living in his mother’s household, should have specific times when he is responsible for X’s care.
Further, the paternal grandmother should have times when she knows that she is able to make plans for time with X and her children, for example on weekends.
X should spend time with his mother each and every week on a regular basis. For two weekends every calendar month he should be in his mothers care from 8.30am to 5.30pm on both Saturday and Sunday. Those weekends will be the second and fourth weekends of the month. I also consider that X should be spending two weekdays with his mother, which will be Wednesdays and Thursdays, absent other agreement between the parties. The start and end times will be the same.
Once the mother has attended to two clean drug screens, the times will become overnight. Thereafter, the paternal grandmother may request of the mother random urinalysis for a further two year period, no more frequently than once in every three month period and the mother is to comply with the request within three business days and a failure of the mother to so comply, or a diluted urine sample, or an otherwise failed sample will mean that the mother’s time will revert to being daytime time only.
The father’s time with X, whether he is in his mother’s house or elsewhere will be on the first weekend of the month. It will be his responsibility to attend to all X’s needs from 3.00pm on Friday to 9.00am on Monday on that weekend. Parties to an order may agree to do things differently to that ordered but through this order, I anticipate that the paternal grandmother will be free to attend to other matters or interests she may have on that one weekend per month, knowing that her son is wholly responsible for X. Likewise, the father should be responsible for X during the week and I will nominate Tuesdays as the day, although the father and the paternal grandmother may choose another day that better suits.
At all other times, X shall be in the care of the paternal grandmother.
It has not been the paternal grandmother’s intention to become the long-term carer for X. It is her position, as explained through her counsel, that the parents should understand that she will not argue against a re-opening of parenting arrangements for X if any future applicant has attended to the issues which have here been in issue and which are the subject of orders or findings. To that end, the paternal grandmother says that an order should be made which makes that plain. I agree.
Both parents must be sober when caring for X. Neither parent is to use cannabis or any other illicit substance while caring for X, nor allow X to remain in the presence of any person using any illicit substance or consuming alcohol to excess.
The mother should be aware that the court considers that she could well benefit from an on-going therapeutic relationship with an experienced counsellor or psychologist with a view to addressing her interpersonal communications, taking responsibility for her feelings and decisions, as well as receiving support for learning to live an adult life without cannabis. I will not order this, although I wish the mother well in confronting and addressing her past hurts.
I make the orders set out at the commencement of these reasons.

I certify that the preceding one hundred and sixty-three (163) paragraphs are a true copy of the reasons for judgment of Demack FM

Date: 28 January 2011