Milano and Milano

[2016] FamCA 271

FAMILY COURT OF AUSTRALIA

MILANO & MILANO [2016] FamCA 271

FAMILY LAW – CHILDREN – relocation to United States – Significant difference in lifestyles, including aspiration – child better off with wife – wife better off in USA – discussion about marijuana use and its impact on parenting – query relevance of removing overnight time if drug screen show marijuana presence.

Family Law Act 1975 (Cth)

AMS v AIF (1999) 199 CLR 160
Eddington and Eddington (No 2) (2007) FLC 93-349
Fitzroy and Fitzroy [2009] Fam CA 954
Godfrey v Sanders [2007] FamCA 102
Mitchell & Sadko [2014] FamCA 300

APPLICANT: Ms Milano

RESPONDENT: Mr Milano

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 230 of 2015

DATE DELIVERED: 27 April 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 19, 20 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Harris

SOLICITOR FOR THE APPLICANT: Melbourne Family Lawyers

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. All extant parenting orders are forthwith discharged.

2. Paragraph 3 of the minutes attached to the orders made on 27 February 2015 is discharged and the Marshal and all officers of the Australian Federal Police and of the police forces of the states and territories are requested to remove the name of B born … 2012 from the Airport Watch List in force at all points of arrival and departure within the Commonwealth of Australia.

3. Pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth) the wife is at liberty to remove the child from the Commonwealth of Australia and to travel to a place outside of Australia after 1 July 2017 but the wife not so remove her before that date.

4. The wife has sole parental responsibility for all major long-term decisions relating to B including the responsibility for applying for, and obtaining, a passport for the child in both the Commonwealth of Australia and the United States of America.

5. That each of the husband and the wife has sole parental responsibility for day to day decisions relating to the child when the child is in the care of that parent.

6. The husband spend time with the child as follows:

   (a)Until 31 January 2017, on each Monday and each Wednesday from 8.30 am until 5.30 pm;

   (b)From 1 February 2017, on each Wednesday from 4 pm to 7 pm and on each Saturday from 8.30 am to 5.30 pm; and

   (c)From the day of the departure of the child from Australia to live in the United States, for such periods and at such times of the year as the parties agree and in default of agreement:

   (i)for 8 consecutive days in Australia during the period of the United States School summer holiday break in June/July of 2018 between the hours of 8.30 am and 5.30 pm each day and for a similar period in each even-numbered year thereafter; and

   (ii)for 8 consecutive days in the United States of America during the period of the United States School summer holiday break in June/July of 2019 between the hours of 8.30 am and 5.30 pm each day and for a similar period in each odd-numbered year thereafter.

7. That the wife be responsible for and pay, the costs of all expenses associated with the trips to Australia referred to in paragraph 6 (c) (i) and the husband be responsible for and pay, the costs of all contact between he and the child in the United States of America referred to in paragraph 6 (c) (ii).

8. That the child have electronic communication by Skype or Facetime with the husband every Thursday at 7 pm until she leaves Australia and thereafter, every Monday and Thursday at 7 pm (local time for the child).

9. The changeover of the child for the purposes of paragraph 6 (a), (b) and (c)(i) shall occur at the home of the husband’s grandmother.

10. The changeover of the child for the purposes of paragraph 6 (c) (ii) shall occur at the home of the wife.

11. The husband spend time with the child at times to be agreed:

    (a)      At Christmas;

    (b)      On the child’s birthday;

    (c)      On the husband’s birthday; and

    (d)      On Fathers’ Day

    if she is in Australia and failing agreement as to times:

    ·From 4 pm on 24 December until 3 pm on Christmas Day;

    ·On the child’s birthday from 4 pm to 6 pm;

    ·On the husband’s birthday from 4 pm to 6 pm; and

    ·On Father’s Day from 8.30 am to 5.30 pm,

    or by electronic means if she is in the United States and he is not there, failing agreement as to times, at 5 pm (US time):

    ·On Christmas Day;

    ·On the child’s birthday;

    ·On the husband’s birthday; and

    ·On Father’s day.

12. Notwithstanding paragraph 4 of these orders, the wife shall have the following responsibilities:

    (i)to authorise the principal of the child’s school and all health professionals who treat the child to communicate with the  husband on all issues associates with the child’s education and health;

    (ii)to provide the husband with all necessary information to enable him to participate in the child’s life; and

    (iii)Before any major long-term decision is made in relation to the child, to communicate with the husband by email about:

    (a)      the nature of any such decision to be made; and

    (b)      her views as to what should be done; and

    (c)requesting that he provide an answer within seven (7) days thereafter.

13. That if the husband provides any information in response to the wife’s request as set out in the foregoing order, the wife shall consider it and, upon making any determination as to that decision, notify the husband accordingly.

14. That should the husband fail to provide any information to the wife within the seven (7) day period as provided in the foregoing order, the wife shall be entitled to make the decision without further consultation with the husband.

15. That upon arriving in the United States, the wife shall immediately register these orders with a court which has jurisdiction and power to enable their enforcement and upon them being so registered, provide a copy of proof of same to the husband.

16. That the Independent Children’s Lawyer be discharged from the proceedings.

17. That all extant applications are otherwise dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Milano & Milano 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 MELBOURNE

FILE NUMBER: MLC 230  of 2015

Ms Milano

Applicant

And

Mr Milano

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. In these contested proceedings between Mr Milano (“the husband”) and Ms Milano (“the wife”), the fundamental question is whether their daughter the child (aged four) should live in the United States of America.  For the reasons that follow, I consider that it is in the child’s best interests for that to occur.

2. A secondary question is the husband’s time with the child whilst she remains in Australia but also, ultimately what time he should spend with her in America.  He seeks overnight time and to a large degree, subject to some conditions, the wife is content with that.  I am not convinced that that is appropriate.  Because of what follows, the order that best protects the child’s interests, is daytime contact. 

3. For my purposes, I shall refer to the parties as husband and wife despite them now being divorced.  I recognise their divorce has permanently ended their relationship.

4. Although issues in this case were often discussed in the context of a relocation to the United States of America, in reality, the Court’s approach must be the same as any other parenting case.

Background

1. The wife was born in America whilst the husband was born in Australia.  They first met electronically in 2009 and the wife came to Australia in 2010.  That meeting was short but successful because in late 2010, the wife returned to Australia on a 12 month tourist visa.  In that period, the parties married (2011).  Two weeks later, they went to the United States.

2. There was some argument about whether the trip to the United States was a honeymoon or a permanent move but in my view, it does not affect this determination.  The wife has always seen the United States as her home.

3. In the United States in 2011, the parties lived with the wife’s parents.  The grandparents of the child were witnesses in the proceedings indicating what they had to offer both the wife and the child on a future return to the United States.

4. In the United States in 2011, the wife obtained employment as did the husband.  In August 2011, the wife was pregnant and the child was born in 2012.  Eight months later, the parties decided to return to Australia.  They have remained in Australia since that time.

5. The parties’ relationship was not successful or happy and on 5 January 2015, it came to a permanent end.  Over the ensuing days, the wife sought and obtained an intervention order although its basis was somewhat unclear.  Police intervention had occurred on 5 January 2015 but that was about what was described in the evidence by the wife as the husband’s stated intention to return to the house after he had left.  Both parties were then employed and the husband told the wife that he would leave his job and take up the role of full-time carer for the child.  This seems to have been the catalyst to motivate the wife to seek an intervention order.  She went to the Magistrates’ Court.  On the steps of that court, the husband tried to talk the wife out of proceeding but his attempts failed when a police officer intervened and told him to depart.  For whatever reason, he did not wait for the hearing in the Magistrates’ Court and the intervention order was made in his absence.  That order however was temporary.  The application for final relief returned to the Magistrates’ Court in April 2015 where the husband gave an undertaking to behave appropriately and the wife withdrew her application.  There has been an uneasy truce ever since.

The lifestyle issue

1. Much of this case revolved around the husband’s lifestyle.  Little emphasis was placed on that of the wife.  She was not challenged about the fact that she was the predominant parent notwithstanding she was engaged in employment.  The husband made oblique reference to the wife’s parenting capacity but nothing I heard could be seen to warrant criticism of her.  In his evidence which was contained in an affidavit drawn by a solicitor, the husband made reference to “the drug addiction” of the wife.  As this hearing began, he quickly distanced himself from that statement.

2. The wife certainly experienced a difficult teenage period which was neither ignored or hidden by her parents.  She was diagnosed with borderline personality disorder and spent time under psychiatric care.  Since the child’s birth however, nothing of a concerning nature seems to have arisen save for one bizarre acknowledgement that on her birthday in 2013, she ingested an Ecstasy tablet.

3. In an irresponsible piece of drafting by the husband’s lawyer, his affidavit (which he had no compunction about signing) said [127]:

   That I believe that [the wife’s] erratic and impulsive behaviour as well as her tendency to become easily enraged are all symptoms of her bipolar affective disorder.  [The wife’s] mood swings occurred almost daily and always in the presence of the child.

4. No cogent evidence supported that assertion and the opinion (if that is what it was) was unfounded.  No cross-examination of the wife by the husband (or for that matter the Independent Children’s Lawyer) suggested a return of the bipolar behaviour apparently exhibited in the United States of America years ago.  The statement must therefore be seen as gratuitous, irrelevant and unnecessary.

5. The wife currently works in a bank and has fulfilled her parenting responsibilities for the child.  There was a distinctly mature attitude evinced by her.  She saw the United States as her home; her parents and extended family live there and she has job prospects in the banking industry there.  As a witness, the wife was responsive, articulate and a good historian. 

6. On the other hand, the husband has difficulty maintaining anything approaching a settled lifestyle.  He has been a long term user of marijuana which he uses for anxiety and stress control.  His philosophical views about marijuana were not hidden.  He has no problem with its use notwithstanding its illicit nature but he also seemed unconcerned about its health effects.  There are no doubt, differing views in the community about the legalisation of marijuana but this was not the issue here.  The wife complained about the husband’s use of it during their relationship and I find that it was a bone of contention.  The wife wanted it not to be used in the house and she complained about the husband’s expenditure on it.  The husband’s response was that he always paid the household bills.  The clear inference was that whatever was left over was for his use rather than any joint purpose.

7. Whilst the husband said that his parenting was “unaffected” by marijuana use, the wife disagreed pointing to his laconic state which left her to handle the parenting tasks of the child.  In addition to the wife’s expressed concern about its use by the husband, reservations were also raised by the family consultant whose report was admitted into evidence without challenge and without her being required for cross-examination.

8. Despite the husband’s optimism that his drug usage was not a problem, two things stood out.  First, for the early days of the litigation, he went to a council drug and alcohol clinician for counselling.  He obtained a certificate to show that in February 2015, he had “identified” the goal of “maintaining abstinence”.  That certificate was annexed to his affidavit in support of his application for interim parenting relief but it was repeated in his final trial affidavit.  Both affidavits were prepared by the same lawyers.  The narrative of his final affidavit [ at 125] said:

   Whilst my smoking cannabis has not reduced my ability to parent, I have engaged with a counsellor to assist me in abstaining from cannabis completely. 

9. The statement just quoted was either disingenuous or a forlorn hope because the same paragraph had been evident in the February 2015 affidavit and he again relied on the same certificate.  In 2015, the husband said he had used cannabis after August 2015 and as late as a week before this final hearing began, he had used it again.  Attached to his affidavit filed on 12 January 2016 in anticipation of a hearing that was to commence at the end of January 2016 (which both parties had later requested to be adjourned) were about 13 “screens”, two of which appeared with “dirty” results. 

10. The clear inference for the court was of a man who was resolved to maintain abstinence yet in reality, he acknowledged that if that was the impression he was giving in February 2015, it was not right.  It is not correct now either. When questioned as to why he had gone to the counselling, he said it was for education purposes.  I inferred from his answers that he had gone for the purposes of finding out what impact there was of continued use on him.  His very clear philosophical view was that there was nothing wrong with marijuana use and that the illegality was absurd.  The certificate attached to the affidavit in February 2015 and again in 2016, could have only been for the purposes of portraying a picture to the court which was not correct.

11. The husband acknowledged that he knew the courts saw drugs as “bad”.  When questioned as to why he was portraying himself as endeavouring to maintain abstinence, he deflected the responsibility for that portrayal to his lawyers.  All of that was misleading because he well knew the wife’s concerns.  He said that she had “never” had any concern but I am satisfied it was a contentious issue during their relationship.  As for the counselling, he said he was not pushed to go but rather did it of his own accord.

12. The husband was asked about the concerns expressed by the family consultant about his dependence on marijuana and he described that (and by inference, this whole concern of the court) as a “farce”.  He said he had been told “males pretty much cop it – even when I do the right thing”.

13. Apart from the husband being wrong about the attitude of the courts, he was the one who was not being candid.  It took cross-examination to elicit his real position.  It was concerning that he was dismissive of anyone else’s concerns. 

14. The second and more concerning issue, but still related to the first, is that the wife had agreed that he could have overnight time with the child but it was on the basis that if he produced “dirty” screens, his overnight time would stop.  I return to this issue below.

15. The husband acknowledged that he was aware of the wife’s position but did not believe that she would keep her promise to allow him overnight time anyway.  He accused her of “willy nilly” altering arrangements but when challenged to identify the occasions when that occurred, simply highlighted that his time with the child was critical to him more so than any benefit that she might receive from that time.  The examples he gave did not show the wife “willy nilly” altering arrangements.  He pointed to one occasion where the wife interfered with his privacy during communications with the child when they had “Facetime” communication at 6.00pm.  The child was in the public swimming pool and pursuant to the orders of the court to which both parties had agreed, she was to have “Facetime” communication at 6.00pm for ten minutes and “with privacy”.  The communication was connected at 6.00pm but the child was in the pool and apparently trying to explain to her father that she was swimming. Rather than turn this into a positive, the husband identified this as an indication of the wife’s interference with his time.  He ignored the fact that the call was made on time.  He took the most pessimistic view of the wife’s actions.  He thought the wife should have removed the child from the pool so he could have his ten minutes.  Despite giving him an opportunity to see another side of the issue, namely that the wife was encouraging the child on a warm summer’s evening to show an activity that she was enjoying, the husband focussed on the absence of privacy.

16. The husband also pointed to another occasion when the electronic communication occurred and the child was in a motor car with others around her so that his privacy was invaded.  I agree that the order is clear and unambiguous but it might have been easier to alter the time to take into account the child’s needs.  The husband’s views were that he could not trust the wife to make such a decision.

17. The alteration of arrangements has certainly been difficult.  The child began kindergarten.  The wife suggested that the husband’s time be altered so that it fitted in with the kindergarten attendance.  Rather than cooperatively rearrange things, the husband used the child as a bartering chip to try and get what he wanted.  He certainly saw that differently but I find that conclusion on the evidence before me.

18. The complaints by the husband were not contained in his affidavit and as he was the respondent, none of this emerged until the wife’s case had closed.  She did not have an opportunity to comprehensively respond but I consider that the kindergarten incident is a very clear indication of the focus of the husband. 

1. To the extent that it is necessary to say so, this is not just an issue of parenting responsibility; it also shows the degree of difficulty the parties have in communicating.

The dilemma

1. I have no doubt that the drug issue was a concern of the wife and it should be of the court.  The husband has done his research.  He acknowledged that in relation to marijuana, there are “positives and negatives” as he described it.  The acknowledged negatives include the possibility in people with a predisposition to schizophrenia and psychoses, to be severely affected if they use marijuana.  He seemed to dismiss that issue in his case.  It was hard to get a sense of how he felt about other health issues associated with its use.  There was no expert evidence before me one way or the other.

2. The marijuana use however is simply one component of the husband’s lifestyle and it was difficult to get a sense of whether the marijuana use, which has been extant for 20 or more years, was the catalyst for his lifestyle problems or conversely, his lifestyle problems led to stress which in turn, led him to use marijuana.  He acknowledged that he used it for that purpose and when it was suggested in cross-examination that he could be given anti-depressants, he immediately rejected that indicating that he had thought about the matter carefully. 

3. As I observed in discussion, there seem to be three possibilities for a future lifestyle for the child.  First, she could remain living with her separated parents in a very small rural town in southern Victoria.  A second option would be that she could move somewhere else but the husband’s position was that it had to be restricted to a 150 kilometre radius of where he was.  The third option was that the child could live in the United States of America with an extended family and the mother having significant work opportunities.

4. The small town problem is, in my view, clearly restricting the opportunities for the child. In the area, the husband has no home of his own, no significant employment status or opportunities, no serious career prospects or incentives, and virtually no money.

5. The husband’s residential arrangement at the moment depends on the continued association that he has with his grandmother who is ill.  He was brought up by his grandmother and is very attached to her.  Over recent weeks, she has fallen seriously ill and he described that as one of the stressors in his life.

6. The grandmother apparently has a husband who resides in the house with her but, with some disdain, the husband described this person as a “so-called” husband.  It was the husband who indicated that he could not leave the local area because of his sense of moral obligation to look after his grandmother.  That issue arose when it was suggested to him that with skills as a tradesman, he could go and live in the United States as well.  He immediately rejected that.  The husband currently supports himself with Centrelink benefits and he has recently obtained nominal income by working at a local fast food outlet as a trainee.  He did not give evidence as to what his prospects there would be.  As a Centrelink benefit recipient, he was asked what job applications he put in and he said that they were numerous but he had been unsuccessful.  He indicated that he had taken a local employer to the relevant tribunal on an unfair dismissal claim and been successful as a consequence of which, he had dashed any prospect of employment in the town.  His inability to travel outside of the town was exacerbated by his obligations towards his grandmother but more importantly, because of his time with the child.  When it was suggested to him that he could obtain work but seek an alteration to his time, he reverted to the position that he could not trust the wife to reach agreement.  That said, I am satisfied he had not tried. 

7. One of the complaints of the wife had been the husband’s extravagant use of limited money during the relationship on drugs and when he was asked about how much he now spent, he indicated that he did not spend money on marijuana but quickly added that he was neither a “dealer” nor did he “grow” the drug.  He left the position entirely unclear.  Notwithstanding the few extra dollars that he earned working, his only financial support for the child was calculated at about $7 per week.  Clearly, the wife has been shouldering the major burden of supporting the child.  He was quick to point out that he provided clothes but it soon emerged that he retained them rather than them being used as part of some joint pool of resources.

8. There was no prospect on the horizon of any change in his lifestyle.  That in itself creates a dilemma in respect of a move by the child to the United States.  There is no prospect, absent some remarkable change in his employment situation, that he could ever gather enough money to afford a trip to the United States on an annual basis to see the child.  When he was questioned about that, he finally conceded that it was unlikely that he would be able to do it although he would certainly try.

9. The wife’s initial position on the other hand was that she would come to Australia once a year but she then expected that the cost be shared equally between both parents.  Having regard to the husband’s evidence, that is completely unrealistic.  Her proposal had been that she would incur the cost and then seek a return of one half from him.  Even the husband conceded that his ability to contribute to such a concept was limited.  In the end, the wife suggested that she pay all of the costs every alternate year and make the trip in that way with the child.  Similarly, if the husband went to the United States at any time, it would be at his expense.

10. The husband was questioned about all of this lifestyle issue and its impact ultimately on the child as he wants to be her role model.  He did not seem particularly perturbed about the issue but there can be no doubt that he has little to offer if one compares the alternative.  In respect of the drug issue, he said that he would explain the illicit nature of it to the child in an age appropriate language but there was no doubt he was going to convey that there was nothing wrong with the drug.

11. More importantly, the contrast between the husband and the wife as role models is stark.  The wife presented as an active, child-focussed and protective parent.  She has an educated background and has actively pursued work.  She has maintained employment.  Despite her activities, she has still managed to care for the child and as I have already observed, no criticisms were made of her parenting.

12. That contrast between husband and wife can be extended to include the husband’s new partner who was also required for cross-examination as she had completed an affidavit.  Her evidence was of limited value because she was clearly partisan.  It was interesting however that in addition to her day job involved in the community sector assisting disabled people, she also works in hospitality at nights.  Her work ethic was clear and she distanced herself from drug usage. 

13. All of this general malaise swirling around the husband indicates that he has no goal and that his life is rather relaxed.  He constantly conveyed the message that the child was a very significant part of his life and that he wanted to be a parent but even on that issue, questions remained unanswered.  For example, once the child commenced kindergarten, he had not attended.  That would have been a perfect opportunity for him to participate in activities to assist, not only the child, but also the kindergarten.  When questioned, his response was that he thought that he was unable to do so but he had made no inquiries.  In the time leading up to trial, he was represented by lawyers.  He could have sought their advice or got them to negotiate with the wife about these things.

14. Even at court, the husband was disorganised.  He attended court without any papers or even anything to write on, or with.  He said that he had been a bit “disorganised” lately but as I observed at the time, he had wanted the trial adjourned at the end of January so he had had plenty of time.  He complained that his lawyers had terminated their retainer only days before but even that had a hollow ring about it.  At the hearing in January 2016, his then counsel indicated that permission was needed to file an affidavit by the grandmother.  That permission was granted.  No affidavit was filed.  Whilst the husband observed that his grandmother was ill and he did not want to create more pressure for her, her evidence would have been of assistance bearing in mind the husband’s observation about his living conditions.  The wife had confidence in the grandmother because she was prepared to have the child stay overnight with the husband providing he lived at the grandmother’s house.  The grandmother had been seriously ill for some weeks but no information had been provided.  All of this led to the husband’s acknowledgment that he was really not prepared for this hearing but he acknowledged that it had to proceed.  All of the evidence points to the fact that it is unlikely there will be change in his lifestyle.

15. The second of the three options concerned the move by the child to a radius of 150 kilometres from the husband.  If for example, the wife moved to Melbourne for work purposes, the husband said that he could live with his brother and have time with the child there but it was not suggested that he would move to Melbourne permanently and the same problem with his grandmother again was raised.  A move to Melbourne or any other regional centre in Victoria, would leave the wife without the support system that is being offered to her in the United States.  In my view, that sort of proposal was not much better than the one of retaining the child in the small town in which she currently lives.

16. In addition to the wife’s description of what is available to her in the United States in terms of employment and accommodation, she has the opportunity to return to tertiary studies to advance her own financial position.  The child must benefit as a consequence but it also gives the wife an opportunity to save sufficient funds to be able to travel to Australia so that the husband can spend some time with the child.  Her proposal however was acknowledged as being limited not just by finances but also by the amount of holidays that she can obtain in any employment situation.

17. The added benefit of going to the United States however is the presence of the grandparents.  Both are available to assist. 

18. In his proposed orders, on the assumption that the child went to the United States, the husband sought an order:

    That the mother be restrained from living with the maternal grandmother for any period of time exceeding 21 days.

19. I asked the husband in final address whether he wished for the court to make that order and he indicated that he did.  He was critical of the relationship between the wife and her parents going back years and he required them for cross-examination.  In cross-examination however, the only questions that he asked of the grandparents related to the wife’s teenage years and her problems with bipolar disorder.  The grandmother answered the questions responsively and apparently truthfully as nothing that I heard from the husband indicated that he disagreed.  All indications were that the grandmother had taken a protective stance in relation to the wife as a teenager.  The grandmother was able to describe her observations of the wife since the birth of the child and both grandparents have been in Australia since the husband and wife moved back here from the United States.  Nothing I heard justified the injunctive order sought by the husband.  I would not make that order. 

The evidence of the wife

1. The evidence of the wife was not challenged in any significant way.

2. In his cross-examination, the husband identified the issues that concerned him. He highlighted that the wife had moved residences five times in a year. This was no doubt directed to his concern that should the child live in the United States, there was a risk that she would not be settled for school and health purposes. The explanations for the moves included that there had been breakdowns of relationships with others in the household. The nature of those residential arrangements sounded tenuous and unsatisfactory for raising a very young child. They were not clearly described but the very clear impression is that they were drug-related and argumentative environments. The wife’s response to some of the question was that there had been heroin argument which (in part) brought about the end of the residential tenure. She had said that, apart from the use of Ecstasy in 2013 on her birthday, she had not used drugs since before the pregnancy. The husband did not pursue any drugs issue relating to the wife and it would seem that he acknowledged that, unlike himself, it was not a problem for the wife.

3. One of the residential moves was caused by a falling out between the husband and his half-brother. Everyone seemed to be using cannabis. In another move, there was a falling out between the husband and the other occupant resulting in an intervention order.  All of these situations were beyond the wife’s control.

4. It was in March 2014 that the wife obtained employment and thereafter seems to have settled into a responsible routine for the child.

5. The environment in the home in 2013 was described as constant rows and arguments including the husband putting his face up to her and yelling. He denied that and said that the arguments were the responsibility of the wife. Whoever was responsible, the environment was not one that was satisfactory in terms of raising a young child. The ending of the relationship seems to have altered that.

6. Curiously, the husband wanted to know how the wife thought the child had “transitioned” to her environment notwithstanding it has now been a long time since the parties last lived together. Unsurprisingly, the wife said that the child was “getting along quite well”. This evidence was another indication of the absence of any parenting co-operation notwithstanding both parents live within close proximity of each other and in a small rural area.

7. The husband then questioned the wife about the move to the United States being “all about” her rather than the child. Her response epitomises why I consider it best for the child that such a move occur; she said the support for the child in the United States would be so much stronger than it could be in Australia.

8. That last issue brought into context the wife’s current relationship. At the end of 2015, her leased premises ended because the owners wanted their property back. The wife and the child moved into live with Mr C who lives with his two children aged 6 and 8 years. That initial co-tenancy turned into a romantic relationship albeit one that has no strong foundation. The wife said that if she was to move to the United States, it was not anticipated that Mr C would follow although that was an “open question”. The uncertainty is understandable because, apart from the nature of the relationship and Mr C has all of his trade work in the area, the mother of his children is nearby. I am satisfied that the relationship is in its infancy and any attachment of the child to Mr C and his two children, is not something this Court should be concerned about.

9. Counsel for the Independent Children’s Lawyer made clear that there was no serious opposition to the wife moving with the child to the United States so her focus was on how the relationship between the child and the father could be developed. The wife was asked questions about time with the child until the move occurred and she responded by saying that she was content for the father to have overnight time if the screens were “clean”. By that concession, I infer that the wife accepts that the husband can provide at least short term parenting skills to care for the child. I am not sure what the distinction between overnight and daytime is because she set, as a condition, that the child stay at the grandmother’s house where the husband resides. She was not opposed to long daytime periods where the husband would also have to provide food, shelter and entertainment.

10. Nothing that was put to the wife indicated that her plans to move to the United States were ill-considered. She accepted that the move should not occur until after the child had settled into school life. Her focus was on making the move to coincide with the new school year in the United States which occurs in August. She was able to adequately explain her own job prospects and how she would study and manage the care of the child. She was able to call upon her parents to assist. To the extent that there was said to be tension between them, it was not raised in cross-examination even if the husband set out his concerns in his affidavit.

11. The wife also answered all questions about how she would foster the father/daughter relationship. She referred to the photographs that were in her house. Whilst her strict compliance with the electronic communication has been challenged, I am satisfied that she has the interest of the child foremost in mind and that she will promote the relationship between father and daughter.

12. Thus, of the three realistic options or proposals here, the one relating to the United States seems best for the child.

The proposals of the parties

1. Notwithstanding what I have described  as the three options, the parties and the Independent Children’s Lawyer put their respective proposals thus:

   (a)      The Independent Children’s Lawyer proposed that:

   ·The child be permitted to live with the wife in the United States but that relocation not occur before the conclusion of term 2 in 2017 and upon giving the husband 60 days’ notice with the usual flight and contact details;

   ·The wife have sole parental responsibility but on the basis of keeping the husband informed of major long-term decisions about the child;

   ·Until the start of the 2017 school year, the father spend time on Monday and Wednesday from 8.30 am to 5.30 pm in the first of a two week cycle and from 8.30 am to 5.30 pm on the Monday of the second week of the cycle plus from 5.30 pm on the Friday until 5.30 pm on the Saturday (that is, overnight) in the second week of the cycle (but subject to the conditions that are set out below);

   ·Until the departure of the child and from the start of the school year in 2017, the father spend time on Wednesday from 4.00 pm to 7.00 pm in the first of a two week cycle and from 5.30 pm on the Friday until 5.30 pm on the Saturday in the second week of the cycle (but also subject to the conditions that are set out below);

   ·The husband have the child on Father’s Day, Christmas Day and Easter Sunday at specified hours;

   ·There be electronic communication between the husband and the child each Tuesday and Thursday at 6 pm until she departs to the United States but thereafter it be each Monday and Thursday at 5 pm United States time plus the array of special occasions;

   ·Changeovers occur at the home of the husband’s grandmother;

   ·The child spend time with the husband in Australia in the United States Summer school holiday period commencing in 2018 with a block period of 4 days and 3 nights building up to 10 days in 2020 with provision of details to the wife about where the child will be residing and subject to the provision of clean drug screens;

   ·The child spend time with the husband in the United States at times by agreement with Christmas Day being with the husband ;

   ·Travel costs be incurred by the party doing the travelling;

   ·The wife be at liberty to obtain both Australian and United States passports for the child;

   ·There be a provision of information by the wife to the husband on subjects such as schooling and that the husband have the right to speak to various health professionals and educational authorities;

   ·The wife provide a monthly photo of the child;

   ·The wife register the orders in the United States;

   ·The wife be restrained from removing the child from the United States except to Australia.

   The conditions referred to were that the wife’s solicitors could request a supervised drug test at the husband’s expense and should that result show the presence of cannabis, overnight time be suspended until a clear result was presented and a proposal of a similar nature before any trip by the husband to the United States on a similar basis.

   (b)The wife proposed orders of a similar nature and it is not necessary for me to detail them because the differences (if any) were modest;

   (c)      The husband proposed that:

   ·He have the child three times per week for 7 hours but it be extended to 24 hours upon “3 clean drug screens”;

   ·“Phone/Facetime” 15-20 minutes twice per week;

   ·No relocation to the United States but the child could visit there for 28 days per year; but if there was to be a relocation then:

   ·Equal shared parental responsibility;

   ·The child reside with the wife;

   ·After the departure, various block periods whereby the child would come to Australia once per year (Christmas in one year and mid- year in the other) and the child would spend time with him in the United States each autumn holidays for four blocks of 5 nights (with intervening time back with the wife);

   ·Various electronic communication periods and specifically for special occasions;

   ·There be similar orders (but not entirely the same) to those proposed by the Independent Children’s Lawyer relating to travel expenses associated with the child;

   ·The wife provide him with a monthly photograph of the child;

   ·The wife be restrained from living with the maternal grandmother for more than 21 days;

   ·The wife be restrained from relocating more than once per calendar year except in an emergency;

   ·The Australian orders be registered in the United States.

1. It is a sad reflection on the state of the parents’ relationship that they have had to define the orders to cover every eventuality. The proposed orders of the husband ran to 48 in number and the wife 46. There is an artificiality about all of this. Albeit the parties had to cover two alternatives, the nature of the orders proposed, for example the photograph provision and reference to injunctions relating to the maternal grandmother (but not the grandfather), indicate the low level to which the parties have descended in terms of their respect for each other as parents and as to trust. But that is not new. In 2015, the order for “Facetime” had to refer to “and the mother shall afford privacy” in relation to a child then only three years old. But it is also equally concerning that (as can be seen above in the husband’s proposals), he wanted the Court to order equal shared parental responsibility. Whilst that concept is not defined in the Act and is only examined in s 65DAC, the reality is that it is of fundamental importance that parents treat each other with respect in relation to at least the parenting of their child about whom they espouse her welfare and development is of the highest priority. The focus must be on what is of benefit for the child.

2. Counsel for the wife drew to my attention the judgment in Mitchell & Sadko [2014] FamCA 300 (9 May 2014) where in an international relocation case brought by the husband who wanted to take his children to the United States over opposition from the wife, I said:

   To be a meaningful relationship, it must be significant, healthy, constructive and advantageous to the child. Children need their parents to lead by example about self-discipline, to learn to develop the ability to relate with others and to learn about the privileges and responsibilities which will devolve upon them as parents. Children spend much of their days pre-occupied with their own worlds. It is the responsibility of parents to provide care, encouragement and provide the opportunity to develop. Whilst not necessarily optimum requirements, those attributes can be achieved at a distance provided the absent parent maintains the focus and gets the attention of the distracted child. Here, the husband has the ability to provide for the children. He was not challenged about that ability. He has a close relationship with all of the children. He was not challenged about that. His focus is on them achieving their full potential by having education, stability and discipline. Nothing I heard suggested that J had been allowed to drift from those objects when she went to the United States with her father.

3. Nothing I have heard enables a finding against the wife that she would not encourage the child to respect her father and have a relationship with him but she is only 4 years old. These are her formative years. The husband’s lifestyle gives me no encouragement that the child will learn much from him about responsibilities in society. She will get that sort of discipline and encouragement in her mother’s care. Of the three basic proposals, the wife is the one most likely to best provide for the child but for that to occur, it must be in the United States. The benefit of a relationship with the husband can still occur there but it will be difficult depending upon how the husband responds.

The family consultant’s evidence

1. Ms D is a family consultant whose professional field is in psychology and she has post-graduate qualifications in that area. She prepared a report in January 2016 in anticipation of the final hearing that was to begin immediately thereafter.

2. The Family Consultant interviewed both parents and observed the child with each of them separately. The file documents were read. No-one suggested that the Family Consultant had distracted herself from materials in the file or that her opinion was not soundly based. There was no suggestion of lack of expertise. Her evidence is therefore unchallenged and accepted.

3. The Family Consultant was aware of the background of the wife and of her teenage mental health difficulties. The wife conceded drug usage in that period. Nothing in the report indicated concern now.

4. The Family Consultant probed the mother as to her concerns about the father as a parent. She responded saying that he was not appropriate in some areas but these were more a question of parenting styles. What that did highlight again was the lack of co-operative parenting. The husband did not know what the wife was endeavouring to achieve. Whilst that might be seen as a criticism that should be levelled at both parents, listening to the husband in evidence, I have no doubt that he would not listen to anything that the wife said anyway.

5. When the Family Consultant interviewed the husband, he was asked about why the relationship came to an end and he indicated that he did not know why. His view was that there were arguments about money. That is consistent with the view of the wife that she complained about his irresponsible expenditure on drugs. His view was that he always paid his bills.

6. The husband described the wife as lazy in relation to housework but then again, she was engaged in employment and caring for the child. He told the Family Consultant that 90 per cent of the time the wife was a good parent. Nothing in his affidavit evidence indicated that whatever he was referring to was a serious problem.

7. The Family Consultant turned to the subject of his marijuana use which he described as “infrequent”. Whatever it was, there was no dispute that it was used to “conquer stress”. Just what that stress was, he did not say and in evidence, I did not get a better picture. He confirmed he had attended drug counselling for 4 months in 2015 but ceased because of a change of counsellor. What was not made clear was that he was really only attending either to inform himself about the drug that he saw no serious problems with or, alternatively, to portray a picture to this Court that was unashamedly untrue. Ultimately, the expert’s opinion was that the husband prioritised his pleasure from the use of the drug over his responsibility as a parent. The issue of the risks associated with that use were not addressed.

8. On the subject of the child moving to the United States, the Family Consultant opined that the child’s cognitive, emotional and psychological skills which were required to maintain a meaningful relationship were still developing and they would be stronger once the child commenced school. The wife seems to have accepted that.

9. The Family Consultant examined the husband’s position of not opposing the wife moving to the Melbourne area. She opined that his own plans (if that were to occur) were vague and she thought his desire to maintain a relationship with the child may not have been his priority. I am not sure that I accept that to be the case because there is little else in his world other than the child. He gave no impression of being able to move out of his current lifestyle in part because it would disturb what he currently enjoys. His description of what he did with the child was playing and thus it was hard to see what parenting role otherwise he was offering to play. He maintained that he had been the primary carer of the child prior to separation but nothing indicated that he understood all of the obligations of a parent and indeed has not done any of them. His view that he has been restricted by time is perplexing. To the extent that he had the child all of the day, his focus at least to the expert was to describe playing. He described his relationship with the child as one of friends.

10. The evidence of the Family Consultant was helpful in that it indicated that the child could cope with the separation but that it was important for there to be as much involvement as practicable. For that to occur however, the husband has to get out of his current lifestyle and obtain quality employment so that he can participate in a meaningful way. His continued electronic communication cannot be as beneficial as face to face time but it also requires effort for both parents to ensure that the child concentrates and is not offered distractions. I am unsure about how dedicated to that task the husband remains.

11. As will be seen from the orders that commence these reasons, I have contemplated all of the proposals. I deal separately with the drug issue but on the evidence, I find that there is no guarantee that the husband can go to the United States at any foreseeable time in the future. He agreed that it was pointless to make orders that could not be implemented. Apart from orders creating an air of expectation in the child whose hopes might then be dashed, he had no idea of how he would afford it having regard to his current lifestyle.

12. Various orders were proposed by the husband about the wife not being able to later relocate to another country and also that she be at liberty to travel internationally for up to 28 days per year. All of these are founded upon an assumption that the wife is not a parent whose intent is on the child having stability of residence. That seems to have arisen because of the changes that were made in the period after separation. The wife gave plausible explanations for all of the moves. In addition, her financial position was then precarious. Her earlier history of dysfunction prior to the birth of the child and her drug usage have all disappeared in the years since the child’s birth. It is hard therefore to see why a conclusion should be drawn that the child would be at risk of the wife moving residence or country. On the basis that the wife is entitled to live where she wishes subject only to the overriding interests of the child, there is little prejudice to the husband. To the extent that there is a fear of a move to another country which would thwart his time, there is no evidence of that having happened nor of any suggestion that it could happen. It is not appropriate for the Court to speculate where there is no apparent risk to the child.

13. I have crafted the orders on a number of assumptions. First, there is little likelihood of the husband being able to go to the United States and even if he could, how he would afford reasonable accommodation. Secondly, there is the interminable drug problem which, as I otherwise deal with in these reasons, ought not be a default position such that “dirty” screens determine whether or not overnight contact should occur. Thirdly, I consider it artificial to try and predict the ability of the child to be away from the wife for any specific period of time at any particular age of her development. The “default” position in that case must be that the parties will know best what time the child needs and can manage with the husband and if the parents do not agree (either because of drugs or because of development) a day time routine will have to suffice. Having regard to my view that the day time contact is far more important than the night time, the default position must be for the most likely successful time even if it inconveniences both parties. As the wife will be coming to Australia and can stay with acquaintances, having to collect and deliver the child on a daily basis ought not be a problem. The final assumption is the wife’s evidence (not accepted by the husband) which I accept, is that she will foster the relationship and agree to overnight time if the drugs issue disappears. To that extent (and I accept that assurance) the husband has the gauntlet laid down as to what he has to do. If he has provided clean screens, the time overnight should not be a problem. That includes the time before the move to the United States as well.

14. The orders I propose to make will also not have any build-up and staggered times. If the child can manage a full day away from the wife twice per week now, it is hard to see why there would be a problem for more consecutive days. In respect of the trip from the United States to Australia, the first of those will not occur until 2018. The child will be older and settled in school. If the parties can agree to overnight time for the reasons just discussed, they can work out which days are overnight and which are not. Only in the event of disagreement will the default provision apply. The same must be said of the husband’s trip to the United States. Indeed, it also applies to the period until 1 July 2017. The parties should be able to work out the critical questions between them and failing that, the default provision should apply. It is not appropriate for the Court  to guess at how the child will manage consecutive days away from the wife.

Law

1. The power to make a parenting order is found in s 65D and that provides:

   In proceedings for a parenting order, the court may, subject to ss 61DA (presumption of equal shared parental responsibility when making parenting orders)…and this Division, make such parenting order as it thinks proper.

2. Section 61DA requires the court to apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility.  The presumption does not apply in circumstances of abuse or family violence and it may be rebutted by evidence that satisfies the court that it would not be in the best interests of a child for the parents to have that responsibility.

3. In this case, as I have already indicated, neither parent has satisfied the court that the presumption does not apply because of family violence. 

4. The presumption may be rebutted if the court is satisfied that it would not be in the best interests of the child to have equal shared parental responsibility.  Both parents agree there is no communication between them.  The absence of trust of the wife by the husband was palpable in the court room. He saw no end to it. He had no solution.

5. Section 61DA (4) should be applied here and in the exercise of my discretion, I consider that in respect of major long-term decisions, the only way to avoid delays and stand-offs is for the wife to have that responsibility which is something that she has fulfilled appropriately to date.

6. In respect of day to day management decisions, I see no reason why the parties should not have individual responsibility about those but to the extent that any equal sharing of parental responsibility is contemplated, it cannot work.

7. I turn then to the best interests’ principles and their relevance in an international relocation case. In Fitzroy and Fitzroy [2009] Fam CA 954, Murphy J set out some important principles in these types of  cases. I adopt with respect what his Honour said insofar as the issues are relevant:

   ·       A relocation case falls to be determined like any other parenting case: the fact-finding (or value-finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.

   ·       Relocation cases, like all parenting cases, involve a determination of best interests as the measure by which legitimate rights and freedoms of the parties must give way to the rights and interests of the children.

   ·       In that way, best interests is the paramount, but not the sole, consideration whatever be the nature of the order informed by findings as to best interests. That includes orders relating to parental responsibility and the rebuttal of the presumption in favour of equal shared parental responsibility in particular;

   ·       All parenting cases require precise proposals by the parties (including, if thought appropriate, alternative proposals).  The proposals are (or should be) the expression of each party’s assessment of their children’s best interests. “Relocation cases” are no different. 

   ·       The issue of relocation (and, necessarily, the parties’ proposals in respect of same) should not be considered separately from the issue of best interests. In truth, the proposals, including potential relocation, form part of the factual permutations within which best interests must be considered and findings made.

   ·       The court is not bound by the parties’ proposals.  Where the evidence points to an alternative being in the best interests of the children, orders should be crafted by the court accordingly.

8. Some of those observations apply here. Whilst much of the focus has been on the move of the child and how it will affect her, the “best interests’ principle” is the paramount, but not the sole, consideration. Thus the wife does not have to justify her desire to return to the United States (see AMS v AIF (1999) 199 CLR 160). It is only where the best interests of the child clash with the desires of the wife that the balance favours the child.

9. This, as with all parenting cases requires precise proposals by the parties. Those are set out earlier. The Court has the responsibility of deciding which best suits the child. Here, that choice is clear.

10. The proposals as set out include the vexed question of the limitation or restriction on the husband’s time because of the drug issue but it was certainly conceded by both counsel in the case that the court is not bound by the parties’ proposals.  Where, as here, the evidence points to an alternative to what the parties propose, orders should be crafted by the court accordingly. The parties have had the opportunity to comment upon the simplification of their proposals and the setting of the default positions.

11. The Court is guided by the Objects and Principles set out in s 60B of the Act and the best interests’ determination is made usually, but not entirely, by a consideration of the factors set out in s 60CC. I turn to that now.

12. It is undeniable that if the child moves to the United States the nature of her relationship with the husband will change. As Kay J said in Godfrey v Sanders [2007] FamCA 102, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.

13. The focus in s 60CC is whether she benefit still from a meaningful relationship with at least the husband.

14. In Eddington and Eddington (No 2) (2007) FLC 93-349, the Full Court observed that there was a nexus between the “substance” and the “significance” of the time (in this case) with the husband. With respect, that may be said to be obvious but the Full Court went on to say:

    Beyond noting that the legislative requirements are conjunctive, we need say no more, other than to stress that each case turns on its own particular facts and circumstances …

15. Electronic communication may suffice here to enable the child to have the benefits of a relationship with her father. If there is then physical contact at a time where her cognitive development has reached the stage anticipated by the Family Consultant such that she understands who her father is, she will benefit. The option is there and it seems to me to be feasible but the husband has to change his lifestyle to ensure it can occur. The metaphorical ball is in his court.

16. As I have already observed, family violence has not been a major issue in this litigation even if it was a source of contention when the parties lived together.  On the evidence, the child does not seem to understand there is any conflict between her parents.

17. Section 60CC(3)(b) requires the Court to look at the nature of the existing relationship between the child and each parent. The objective evidence indicates that the child is attached to her mother and has an enjoyable and close relationship with her father. Her primary attachment will be maintained if she moves to the United States and the closeness with the husband will not necessarily be damaged even if it is diminished.

18. The capacity of the parents to provide for the child’s emotional and intellectual needs and their attitude to her and their demonstrated responsibilities of parenthood (s 60CC(3)(f) and (i)) are important here. Whilst the husband complained about the limitations on his time to show what skills as a parent he had, the clear picture emerging was that he had little insight into parenting needs beyond playing with the child.

1. The drug issue loomed large over this case and it was not just a philosophical matter. There are risks as I have outlined. Even the prospects of health issues arising from the use of the drug means that the husband was making a conscious choice that could put his child’s relationship with him at risk. To the extent that I have accepted the views of the Family Consultant, I agree that the husband prioritises his own needs above those of the child. It was not just the use of drugs that exemplified that. He had not been prepared to come to argue the issues about the child. He placed his relationship with his grandmother ahead of a move to be closer to the child. He has chosen to stay in the lifestyle of his choice rather than obtain a long-term and more secure financial future. He was content to have the minimum if not nominal payment of child support made, yet happy to spend whatever he had on his own lifestyle. I am not critical of people who have to live on Centrelink benefits but absent some particular disability or disadvantage, it would be hard to see how being content with that lifestyle is beneficial for a child.    

2. By s 60CC(3), the Court is directed to consider the effect of changes if the proposals of the parties were implemented. The child has only just commenced kindergarten. Her relationship with Mr C is relatively new. Her relationship with her father is one of fun. Her dependence upon her mother is strong. Thus, whilst a relocation will have an impact on the child, she appears happy to go where she is directed by her mother. She will be comfortable communicating with her father electronically because she is doing so now. She will have another year to adjust to change in schooling. All of these things suggest she will cope well. As the husband asked the wife about how she thought change would impact, she responded that the adjustment has not been a problem. I consider that will be the same answer when the child moves to the United States.

3. Whilst s 60B makes reference to spending time with parents on a regular basis, that is but one right. It is another that children are provided for adequately by their parents. In this case, there is a balancing act. The wife will be better off financially in the United States and hence so will the child. All indicia suggest there is little prospect in the future of financial support coming from the husband.

4. When all of the factors are considered holistically, the one option that stands out is that the child will be better off in the United States.

The connection between time and the drug screenings

1. As can be seen, it was the position of both the wife and the Independent Children’s Lawyer that the wife, through her solicitors should have the right to request the husband to undergo supervised urine/drug tests and if the results showed cannabis (or other illicit substance) the result acted as a suspension of any overnight contact orders.  The husband  sought overnight time immediately and both the wife and the Independent Children’s Lawyer agreed but on a conditional basis.  If the time was automatically suspended, it is interesting to contemplate how the husband could produce a test which would establish the opposite result and get his overnight time back again.

2. If such an order was made, the wife would need to retain her solicitors on a long term basis.  She would have the opportunity to randomly call for the husband to undergo the test but if he had used a drug before that, the child would have been in his care whilst affected.  The wife would not be expected to regularly demand such tests but that would be the only way she would know about his drug usage.  His drug usage should be not entirely determinative of his time with the child.  Indeed, the only concern expressed by the wife and the Independent Children’s Lawyer was about night time.  In my view, that does not make sense.  It was acknowledged that marijuana stays in the human system for weeks so that any “dirty” test would mean a suspension potentially for weeks of overnight time yet his day time contact would not be affected.  The artificiality of that is that the drug would be in his system during the daytime when he had the child and presumably, the same risks would apply.

3. The link between marijuana use and parental care is not at all clear.  It was the husband’s view that he could still do all of the things parents needed to do albeit that he had the drug in his system.  It is one thing to have it in his “system” but quite another to be affected by the drug.

4. I accept the wife would use the drug testing process sensibly and responsibly but all that it would do is reduce the husband’s quality time for a few hours because the child would be inactive for most of the overnight time. 

5. The wife lived with the drug problem for a number of years and has the opportunity now to observe it at handovers.  She would be able to recognise the signs of the husband being affected as distinct from it being in his system.  She said she would permit the time to go to overnight if the husband was producing clean screens by which I understood her to really mean that if he stopped using the drug, she would have no concerns about his parenting capacity.  I do not consider the best way to protect the child and give her the benefit of a real relationship with her father is a default system. 

6. The better way to deal with this issue is to set a minimum care period and if what the wife said was really to be seen as truthful, she would best judge the time to increase the contact between the husband and the child to overnight.  She seemed content for that to occur immediately but even on the husband’s own admission, he could not be asked at present to undertake a drug screen test and expect it to be clean for at least the next three months.

7. Whilst the husband’s position was that the wife could not be trusted, I do not accept that.  She has indicated a willingness to start the overnight time now subject to the drug issue but at the same time, she knows well the difficulties that the husband has in staying away from the problem.  I accept that there is no simple test but as I have observed, the wife lived with this environment and should be able to recognise the dilemma.

8. In my view the appropriate order is for there to be for daytime contact when the wife can observe what is going on (as can other people) which may not be so evident at night and for her to be candid with the husband and allow him overnight time if he has established a responsible attitude towards marijuana.

I certify that the preceding One Hundred and Seven (107) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 27 April 2016.

Associate: 

Date:  27 April 2016