Mooney and Landis

[2019] FCCA 962

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOONEY & LANDIS [2019] FCCA 962

Catchwords:
FAMILY LAW – Parenting dispute – father’s daily consumption of cannabis – mother in secure and established relationship – father seeking 50/50 time or at least 9/5 – mother seeking to continue current alternative weekend regime – father’s application poorly thought out and self-oriented – family report strongly against father’s proposals – order made as sought by the Independent Children’s Lawyer and mother.

Legislation:

Family Law Act 1975, s.60CC

Cases cited:

Goode v Goode [2006] FamCA 1346

Applicant: MR MOONEY

Respondent: MS LANDIS

File Number: DGC 749 of 2018

Judgment of: Judge Burchardt

Hearing date: 11 February 2019

Date of Last Submission: 11 February 2019

Delivered at: Dandenong

Delivered on: 18 April 2019

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Ms Johnson

Solicitors for the Respondent: Wards Barristers & Solicitors

Counsel for the Independent Children’s Lawyer: Ms Elleray

Solicitors for the Independent Children’s Lawyer: Talko Nicholas Family Law Pty Ltd

ORDERS

1. The parents have equal shared parental responsibility for [X] born … 2008 (“[X]”) (“the child”).

2. The child spend time and communicate with the applicant father as follows:

   (a)Each alternate weekend from 10.00am Saturday until 3.30pm Sunday (in Winter) or 4.30pm Sunday (in Summer i.e. during Day Light Savings);

   (b)For half of each school holiday period as agreed between the parties and failing agreement for the first half in 2018 and the second half in each alternate year thereafter; and

   (c)By telephone between 4.00pm and 4.30pm every Tuesday and Thursday, with the father to initiate the call.

   (d)As otherwise agreed between the parties in writing.

3. That for the purposes of changeover the father is to collect the child at the commencement and the mother to collect the child at the conclusion.

4. That the parties be hereby restrained by injunction from:

   (a)Denigrating the other party in the presence and/or hearing of the child;

   (b)Discussing the proceedings in the presence and/or hearing of the child.

5. That the father not consume cannabis or any other illicit substance

   
   

   in the presence of the child.

6. The father not take the child to any gigs until he is at least 14 years old.

7. Both parties be restrained from consuming alcohol to excess while the child is in their care.

8. Each of the mother and father be permitted to attend any school or extra-curricular activities to which a parent would normally be invited to attend, including by not limited to parent-teacher interviews, concerts and sporting events and to receive all school newsletters, notices, reports and school photograph forms, at their own expense.

NOTATION:

1. These Orders are to operate pursuant to s.68P of the Family Law Act 1975 notwithstanding the Interim Intervention Order made by the Magistrates Court Town A on 21 June 2018 (“the Town A Order”). 

2. This Order is inconsistent with the Town A Order.

3. For the purposes of s.68P(2)(b), the Court notes that these Orders are inconsistent with the Intervention Order insofar as they permit telephone communication (Order 2(d)) and permit changeover between the parties (Order 3).

4. Pursuant to s.68P(3) a copy of this Order is to be provided to the Registrar of the Magistrates Court Town A, the Police Commissioner Victoria and the Department of Health and Human Services.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 749 of 2018

MR MOONEY

Applicant

And

MS LANDIS

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a parenting dispute about the best interests of a young boy, [X], born … 2008.  The applicant father seeks that the Court make orders pursuant to which [X] would live in a 50/50 shared care arrangement, albeit introduced over time.  The respondent mother, who is supported by the Independent Children’s Lawyer, seeks, in essence, that the existing alternate weekend regime proceed together with half school holidays.

2. For the reasons that follow, it is entirely clear that the orders proposed by the mother and Independent Children’s Lawyer are those that are in [X]’s best interests.

Agreed or Uncontroversial Matters

1. The father was born on … 1978.  He is employed in a mixture of work as a tradesman and musician.  The mother was born on … 1990 and works as a tradesperson.  She is in a relationship with Mr B, whom she intends to marry.

2. The parents met in 2007 when the mother was 16 and the father 28.  Their relationship commenced in … 2008.  As earlier indicated, [X] was born in 2008.

3. The parents lived what was clearly an itinerant lifestyle with numerous changes of residence, and at some point, there being different dates asserted in the materials, it would seem before [X] was 3 he was taken into care by the Department of Health and Human Services for a time.

4. Ultimately, the parents ended up living at a place called Town C which is quite some distance up in the hills beyond Town A.  It is a small and remote community of some 60 people.  It used to have a school but does not now.

5. The father and mother, it would seem, both used marijuana but in the case of the father this use has continued unabated to this day.  The mother has been clear of drugs for some time.  During the currency of the relationship she received an inheritance of $40,000, which seems to have been spent either as directed by or by the father.

6. In the end Ms Landis left the relationship in March 2017.  Because of the sheer practical difficulties of getting away from Town C, she left [X] with his father and he remained in his father’s care until January 2018.

7. It is common cause that [X] put on a lot of weight while in his father’s care and the mother, who by then had re-partnered with Mr B, over held [X] in January 2018.  He has remained in her primary care since.

8. Following a section 11F set of conferences on 28 May 2018, a regime for alternate weekends was put in place together with half school holidays and that has continued up until now.  As indicated, the mother and the Independent Children's Lawyer seek that that regime continue but the father seeks to move to equal time.

The Affidavits of the Parties

1. The father’s first affidavit, filed in conjunction with his Application for a Recovery Order in Magistrates Court in Town D is largely covered in the agreed or uncontested relevant facts above.

2. The mother’s responding affidavit is likewise largely covered in the matters above although I note that the mother, in her affidavit filed

   
   

   6 February 2018 additionally raised issues as to the father’s mental health.  She also complained that [X] has swollen tonsils in part because of the smoke (both tobacco and marijuana) in the father’s home.  She deposed to [X] losing weight since he started living with her and his diet had improved.  Annexure L-3 dated 5 February 2018 from the Town A Medical Clinic shows that [X] had lost 1.8 kilograms in the three weeks since living in Town A.

3. It should be noted that in his first affidavit the father had deposed at paragraph 14:

   “… I admitted to having minimal use of Marijuana.  This however has not impeded on my capability to care for [X].  However if I am required to cease Marijuana use I will comply.”

4. The father’s further affidavit filed 4 May 2018 once again adds little to the evidentiary picture.

5. The mother’s affidavit filed 25 January 2019 adds little.  I note however that annexure L-3 is a Facebook post of the father’s in which he relevantly asserts:

   “i drove for 12 years without a license, only got caught because of a broken headlight, 12 years later, i then went and got my license, because i always said i would if i got caught, i smoke cannabis and eat it and drink it, have been in trouble for that

   
   

   a few times and probably will a few more times in my life, i am very anti laws, honestly, if i wanted a gun, i probably would do that illegally also, but i have no interest in guns, the laws will not stop people like me ...” [sic]

6. The father’s affidavit filed 4 May 2018 once again adds little.  I note however that in addition to alleging assaults by the mother against [X], the father asserts at paragraph 14:

   “20/11/2016 I found out that Ms Landis was cheating on me with

   
   

   2 men.”

7. Further in the same paragraph the father asserts:

   “… it was then I found out that night she was not at the cottage but instead at the … with Mr B, one of the 2 men she had first cheated on me with…”

8. He also accuses the mother of telling what he describes as “total lies”.

9. The mother’s affidavit filed 22 May 2018 is largely a rehash of the earlier materials.

10. The mother’s affidavit filed 25 January 2019 adds only that the father was placed on a 12 month Good Behaviour Bond by the Town A Magistrates Court on 19 July 2018 (page 30 of 47 – annexure L-4).  Otherwise the affidavit is, in truth, largely a reprise of the materials earlier deposed to, including the assertion that the father spent between $90 and $140 a week on cannabis when the parties were together.

The Section 11F Report

1. Interviews pursuant to section 11F of the Act took place on 28 May 2018. I note on the second page a dot point which commences:

   “Although the father asserted that the mother had already commenced a relationship with Mr B prior to separation, the mother stated that she and Mr B commenced their relationship in … 2017.”

2. At that stage Mr B was working at Town A.

3. I note that the father had said, under the heading “Substance Abuse”:

   “The father confirmed that he has been a daily user of marijuana for many years but insisted he does not smoke around [X].”

4. On the third page of the report there is a dot point which reads:

   “The father raised the mother’s alleged infidelities several times during interview and claimed she had poor morals and was sexually deviant.  He alleged that she engaged in intimate relationships with relatives.  He suggested she may have Munchhausen’s Disease.”

5. I note that [X] disclosed that his parents constantly argued prior to separation.  He had liked living with his father after the separation but did not wish to do so now. 

   “… He said his father’s home was messy and dirty and vacuuming was rarely done and this was the real reason his hay fever flared up.”

6. The relationship between [X] and his father was observed to be warm.

The Family Report of Ms E

1. Ms E’s report dated 10 January 2019 was not the subject of any direct examination in the sense that she was not required for cross-examination.  As she was not called the report was not tendered into evidence in a formal sense but all parties have proceeded on the footing that the Court would have regard to its terms.

2. Ms E noted that [X] lives in a comfortable home in Town A with his mother and partner of two years, Mr B.  They had recently become engaged.  Mr B works as a public servant.

3. Having covered the history of the relationship in uncontroversial terms and the history of the Court proceeding, Ms E came to the proposals of the parties at page 6 of the report.  She noted at paragraph 10 that Mr Mooney proposed that [X] live with him and spend alternate weekends with the mother or alternatively a 50/50 living arrangement.

4. The mother proposed alternate weekends for the father from Saturday until Sunday and half the school holidays with time to conclude at 4.00pm on Sundays.  She was prepared to consider time starting on Friday night but wanted Mr Mooney to pick up [X] at 4.00pm from her home and not from the Town A Primary School.

5. I note at paragraph 13 Ms E recorded:

   “Mr Mooney is known to the local Police due, it seems, to his history of “anger issues”.  The parties obtained mutual Interim Intervention Orders (IVO) in April 2018.  The IVO protecting Ms Landis is due to expire in July 2019.  Mr Mooney was charged with breaching the IVO in April 2018 and was placed on a twelve months good behaviour bond.”

6. Having outlined extensive Department of Health and Human Services (“DHHS”) involvement in 2014, in paragraphs 14-15 Ms E continued:

   “14.  … Intermittent involvement of DHHS with the family has occurred due to concerns relating to Mr Mooney’s aggression and his drug and alcohol use, both parties’ unstable mental health and family homelessness.  In recent years, DHHS have not deemed it necessary to intervene and have considered [X] to be safe and well cared for in each home.  Mr Mooney, however, disputes this appraisal and maintains that [X] is at risk in Ms Landis’ care due to a history of her attempting to “hit” [X].

   Alcohol and Substance Use

   15.  Mr Mooney confirmed ongoing daily marijuana use, for ‘medicinal’ reasons.  Ms Landis reported concerns about Mr Mooney’s parenting capacity when he is under the influence of drugs.  No current concerns were raised about alcohol use at interview.  There are no reported concerns relating to drug or alcohol use in Ms Landis’s home.”

7. At paragraph 17 under the heading “Criminal History” Ms E relevantly recorded:

   “… Mr Mooney suggested that he has been unfairly targeted by Police due to his rough demeanour and presentation “everywhere I go Police take a look at me ... since I was sixteen years old, but I’ve never done anything wrong”.”

8. At paragraph 16 Ms E noted that the father reported having been diagnosed with post-traumatic stress disorder (PTSD) in 2012 or 2013 as a result of a childhood history of abuse but the impact on his day to day and long term functioning was unclear.

9. Under the heading “Issues identified”, Ms E identified:

   “Mr Mooney presents as unconventional, defensive and lacking impulse control; it was unclear if Mr Mooney has an identified psychiatric disorder.”

10. Having detailed her interviews with the mother, which it should be said was unremarkable, Ms E came to Mr Mooney.  At paragraph 23 the report recorded:

    “… At interview, Mr Mooney adopted a more respectful approach.  He remained, however, defensive and found it difficult to accept views that did not align with his preferred outcomes.  While Mr Mooney conceded that Ms Landis was an adequate parent to [X], he repeatedly criticised her for leaving the relationship and enter a relationship with Mr B.  Mr Mooney seemed to struggle controlling his negative emotions and his demeanour was tense.  Mr Mooney’s thought processes presented as rigid and inflexible.”

11. I note that at paragraph 26 Mr Mooney criticised the mother again for having loose morals and subjecting [X] to inappropriate behaviour “that’s mental abuse... she’s had a relationship with other men... and with her current partner... it’s a mentally unstable environment.”

12. I note that Mr B’s responses were entirely appropriate and child-focused.

13. [X] was cautious about expressing his views as to what he wanted.  He dealt with the issue of the relative lack of tidiness of his father’s premises in somewhat careful terms.  At paragraph 34 the report records:

    “With regards to future arrangements, [X] was cautious when expressing his views.  [X] wanted to be fair.  [X] believed his father was lonely living on his own in Town C “Dad, he misses me.”  [X] was aware of his father’s preferences for him to return and live in Town C.  He was aware of Mr Mooney’s proposal for “week about... Dad said we could stay in Town A with his friend.”  [X] did not want to say anything that could cause either parent pain or hurt.  While [X] suggested “week about” as an option, he confirmed that he found the current arrangements enjoyable “How we have been doing it, alternate weekends with Dad, and live with Mum and half school holidays has been good.”  [X] said “I’m happy with alternate weekends but I would like to see more of Dad.”  He assured that he was happy and safe in his father’s extended care on the weekends and during school holidays.”

14. At paragraphs 36-38 Ms E opined:

    “36.  As a priority [X] needs stability and predictability in his life if he is to continue to progress and achieve at school.  He needs parenting, living and time arrangements in place that permit him to spend meaningful time with each parent so that those relationships can be nurtured and extended.  The living arrangements currently in place present as age appropriate, stable, structured and nurturing.  There was nothing to suggest that [X] is not safe and well cared for by Ms Landis and Mr B (sic).  They are supportive of [X] spending regular time with Mr Mooney.  No support is given to a change in primary residence and no support is given to the introduction of a week about living arrangement.  This proposal did not present as genuine or well considered by Mr Mooney.  There is no clear benefit to [X] of making further changes to his living arrangements.  It is recommended that the current living arrangements continue and [X] lives primarily with Ms Landis.  This outcome is consistent with [X]’s cautiously expressed views and preferences.

    37.  It is acknowledged that [X] sought to spend more time with his father.  Provided that Mr Mooney refrains from drug use when [X] is in his care, and conditional upon Mr Mooney being able to ensure [X]’s safety, support is given to extending time on alternate weekends to include Friday to Sunday.  Mr Mooney should pick up [X] from Ms Landis’s home at 4pm on Fridays so that he can change out of his school uniform.  Ms Landis should continue to pick up [X] at 5pm on Sundays so that [X] can settle at home on Sunday night and prepare for the school week ahead.  While Ms Landis’s concerns about the potential dangers on the road between Town C and Town A are acknowledge, a pick-up time of 5pm should be adequate to ensure their safe return.

    38.  Shared parental responsibilities should be upheld.”

The Evidence Given and Submissions Made at Court

1. What follows is taken from my notes.  Self-evidently it is not a transcript.  It records aspects of the matters put that struck me as being significant.

The opening and evidence of the father.

1. Mr Mooney said that there were four months last year that he did not see his child.  He was taken from him as a result of made up stories.  His smoking did not cause [X]’s tonsillitis.  Many of the mother’s claims are all hearsay.  Some were proved incorrect.  It was not fair and his time was inadequate.  He thought 50/50 was best.  There is no local school and he wants a 9/5 arrangement.

2. Having been sworn, the father said that his employment was varied.  He is a tradesman and musician.  He had not seen phone messages for last two weeks but that might be his fault.

3. Under cross-examination by counsel for the mother, Mr Mooney said that he has a job and has an ABN.  He gets four to five jobs per year and last year had five cash in hand jobs.  Mr Mooney’s account of his earnings seemed to me to vary somewhat but if I understood it correctly, he appeared to be asserting an income of about $25,000 per year.  He works as a Musician and has had seven to eight paid gigs since Christmas.  These take place both during daytime and at night.  [X] enjoys the gigs.  The previous Friday gig, [X] had come and that finished between 10.00 to 10.30pm.  [X] comes to the father’s music practice on Saturdays.  He would take him camping. 

4. Mr Mooney conceded that the 60 to 65 kilometre road from Town A to Town C is a windy one.  It is a one hour drive.  You see deer on the road during the day.  There are no hotels or shops in Town C.  His house is a two bedroom converted shed.  Mr Mooney said that if there was fires he would watch and act – if it came to watch and act, he would drive him to his mother’s.

5. A 9/5 arrangement would involve three trips per fortnight.  He is proposing Thursday night to Friday night in the off week.  There are plenty of friends he can go camping with.  He might stay with friends and can stay in Town A.  There are lots of camp grounds in the area.  He is proposing Thursday after school till Tuesday before school.  It is dark earlier in the winter.

1. [X] has been living with the mother since January 2018.  Mr Mooney did not agree that driving during the dark was a risk.  There are no logging trucks at night.

2. The father has lots of friends around Town A.  He uses marijuana daily and [X] is aware of this.  Of his friends in Town A, one, Mr F, uses marijuana.  He does not use it in front of [X].  This takes place in the back room whereas [X] is usually in the front room watching TV.  He never reaches the point where he is unable to look after his son.  He keeps a lid on his marijuana consumption when his son is there.  He would accept an order not to consume marijuana when his son is with him.

3. I would interpolate and say that I do not believe that for a moment.

4. Mr Mooney said that he had tried to change the laws about cannabis.  Annexure L-3, which showed an express disregard for the law was five to six years ago.  He has regard to what is right and what is wrong.  These days he mainly eats marijuana.

5. Marijuana is part of the music scene.

6. I should interpolate again and say Mr Mooney’s answers about his marijuana use were wholly unconvincing.  They were evasive and/or unbelievable and appeared to change on the run.

7. Mr Mooney confirmed that [X] had a major weight gain after the mother left.  When asked about sport on the weekends he said he would take the child.  This was more important than gigs.  He observed that the mother seeks to prevent him having interaction at school.  He does not like Mr B.  Mr B has been reprimanded for picking on the child.  He was not making this up.

8. When asked about the state of cleanliness of his premises, Mr Mooney said that he lives messy.

9. Under cross-examination by counsel for the Independent Children's Lawyer, Mr Mooney confirmed that his friends in Town A are Mr F and Ms G.  Ms G’s surname is Ms G but he could not remember Mr F’s surname.  They put him up as long as he cooks for them.  He had had a mental breakdown the last time he worked as a … which is why he no longer does.  He had read stuff about marijuana.  The breakdown referred to was PTSD.  He has anxiety.

10. Gigs pay $50 to $100 per night.  The band he plays in has no name.  They play from Town D to Town H in New South Wales.

11. Apart from those earnings, he has Centrelink.  This would increase if there was a 9/5 arrangement.  Mr Mooney said that once [X] is 12 (in two more years) [X] will have more say.  Mr Mooney appeared to equivocate but it became clear that what he was suggesting was that in two years’ time any orders made should be revisited.

12. Mr Mooney said he puts marijuana into cakes.  He bongs it when he is doing it quick.  He had had no marijuana since the night before as he had to keep his brain clear for Court.  He would have a smoke before Court.  He said he was not on a Good Behaviour Bond for assaulting Ms Landis.  He had been found guilty of the breach of the Intervention Order and placed on a good behaviour bond until July.  Mr Mooney said, perhaps tellingly, that he was breaking the law technically but this did not mean he was doing anything wrong.  He confirmed that his Facebook name was ….  He tendered as exhibit A1 a certificate showing attendance at a Post-separation Parenting Course.

13. Mr Mooney confirmed that he has just turned 40.  He is 12 years older than the mother and she was about 16 when they met.  [X] has been with the mother since January 2018 pursuant to Court orders.  He denied cooking steak.  He said there is a lot of pasta.  He was not paying enough attention to [X]’s weight at the time.  There had been a counsellor for [X] after separation arranged through the school.  He could go to sports.  He had lost his copy of the Family Report.  Ultimately he wanted the child to live with him.  Now he wants 50/50.  He would give the mother what he gets.

14. There is bad blood with Mr B.  If I understood him correctly, Mr Mooney eventually conceded that he is on a Good Behaviour Bond but said there were no conditions.  He has recently finished counselling with a counsellor although he had been in counselling for 20 years.

15. Mr Mooney said he mostly has control of his impulses.  He would take [X] to any sporting activities.  He had read the Family Report.  He asked “why can’t it be Friday to Monday?”.  He further asked “why am I being isolated from my son’s schooling”.  He tried to bury the hatchet and tried to mend his relationship with the other man the mother had cheated with.  He was bitter about losing his son.  He said he had no malevolent feelings towards the mother.  Week about would be a bit too much for [X] so he has suggested 9/5.  He had come up with this over the weekend.  He does not have a mobile phone but his landline is still connected.   There is no mobile coverage where he lives.  He has a mobile phone but no SIM card.

16. Nothing emerged in re-examination.

The Evidence of the Mother

1. The mother adopted her affidavits as true and correct.  She is concerned about an extra night.  The father is with friends and she does not know the environment.  Mr F is a heavy marijuana user.  She does not know Ms G.  The road is 65 kilometres and takes over an hour.  At night time there are wombats, kangaroos and deer.  It is a sealed road.  Half of the road is sheer cliffs and she refuses to drive it.  Her fiancé drives it.  3.00pm changeover would be better in winter.  If there is pick up from school, the mother does not know if everything has been picked up.  It is better that [X] comes home and gets changed.  She would seek orders about the father taking the child to gigs.

2. Under cross-examination by counsel for the Independent Children's Lawyer the mother confirmed that she would prefer Saturday to Sunday fortnightly.  The father will not do anything about sporting events.  He does not even know about sports.  Town A High School takes years 7 to 12.  She is engaged to be married on … 2019.

3. Mr Mooney understandably, given his self-representation, did not elect to put any questions to the mother.  I note that he said his mental health is better being at Town C.  He pays $100 per week rent.

Closing Submissions

1. Counsel for the Independent Children's Lawyer sought the orders indicated in her Case Outline. The child had met the Independent Children's Lawyer on 18 January 2019. He wants exact time. The child is now 10. At the section 11F interviews in May 2018, [X] wanted to remain with his mother and wanted one overnight each alternate weekend and one week of the term holidays and week about in the long holidays. Counsel submitted the father’s home is rudimentary. [X] is doing well. The risk is his being exposed to the father’s lifestyle and also the father’s acquaintances.

2. The Independent Children's Lawyer proposed that the status quo remain, being Saturday morning until Sunday.  A finish at 3.00pm in the autumn/winter period was appropriate.  It should be later in summer.  Overnights on Friday has risks.  The child is still at school and has a stable home.  The father’s marijuana use is problematic. It was submitted that the Court does not know the father’s level of exposure of [X] to this because the father was not truthful.  Counsel submitted that the father prioritises his needs over [X]’s.  She supported Saturday from 9.30 or 10 o’clock with return 3.30pm in winter and summer and 4.30pm in summer and spring.

3. She sought an injunction against the father eating or smoking marijuana while the child is in his care and a further order that the father not permit [X] to be brought into the presence of other persons who were consuming marijuana.  There should be a mutual order restraining the use of alcohol to excess.  If there was a designated sport that [X] plays, the father should be ordered to take the child.

4. The father should be authorised to receive all school reports and attend events in the usual way.  The Independent Children's Lawyer had no submission to make about the mother’s application for orders in relation to gigs.

5. Counsel for the mother supported all the orders sought by the Independent Children's Lawyer.  She submitted that the order for telephone time should continue but that the father should ring.  The order made on 30 April 2018 required time between 4.00pm and 4.30pm on Tuesdays and Thursdays.  The father did not understand that leaving the child with a carnival person was inappropriate.  He does not even know Mr F’s surname.  There was a risk of sexual abuse at gigs with the child wandering around.  All this adds to the mother’s anxiety.  The major risk was the road.  The father made disgraceful remarks in the witness box.  It is not appropriate that there be equal time.  No Child Support was paid.  A 9/5 arrangement was appropriate.

6. The reference to disgraceful remarks is a reference to the father’s assertion when he was in the witness box that the mother had engaged in a sexual relationship with a step-sibling, made plainly with the desire to calumny her.

7. The father said he felt unfairly trashed.  Music is just music.  He lives in a remote area and has a large shed.  He had turned a large shed into an open plan house.  He believed equal time was in the child’s best interests.  It allowed him to have more to do with the child’s activities.  Mr Mooney said, perhaps tellingly, “every child needs a mum and dad” and it was necessary to be fair to the parents and the child.  He said gigs will be near to where he lives but he would give up music if necessary.

The Credit of the Witnesses

1. The mother of course was not cross-examined at any length and her evidence was given in a direct and responsive way.  She was clearly telling the truth.

2. Regrettably it has to be recorded that the father was a poor witness. I have already commented from time to time about aspects of his evidence that were unsatisfactory.  He struck me as being a man well prepared to say whatever he felt like.  He was plainly untruthful about his marijuana use and its extent.

Findings about the Matters in Dispute

1. The parties met when the mother was a very young girl.  The power imbalance in their relationship is immediately obvious, both in the age differential and in the personalities of the parties as revealed by their evidence in Court.  The father exercised a malign and controlling influence of the mother until she was finally able to get out of the relationship in 2017.  Understandably in the circumstances she had little option but to leave [X] in his father’s care.  The father conducted himself so inefficiently and incompetently that [X] became obese.

2. It is plain that the father found the mother’s desertion of him deeply difficult.  As counsel for the Independent Children's Lawyer submitted, the father remains obsessed with his perception that the mother was serially unfaithful to him.  He was not shy to accuse her of loose and immoral behaviour including even with a family member.  This obsession is deeply troubling as it is obviously totally unfounded.

3. [X] has been in his mother’s care since January 2018 and has thrived.  The material from his school only goes to support this assertion.

4. There is simply no avoiding the conclusion that Mr Mooney continues to use marijuana on a daily basis.  He did so in the presence of [X] when [X] was in his care on a routine and regular basis and in my view, will almost certainly continue to do so into the future.

5. Having made these findings it is appropriate to turn to the statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:

   “Summary

   [65]    In summary, the amendments to Pt VII have the following effect:

   1.  Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.  The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3.  If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4.  The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.  When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6.  The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
   (s 65DAA(5)).

   7.  The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends and holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8.  Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.  The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11.     The child’s best interests remain the overriding consideration.”

Parental Responsibility

1. Ms E has recommended equal shared parental responsibility.  That is the position of the Independent Children's Lawyer and it is not gainsaid by either of the parties.  While there is room for doubt as to how effectively the father will actually participate in exercising parental responsibility, and I would have concerns as to family violence in the past, in these circumstances it is appropriate that there be an order for shared parental responsibility.  This brings us to the consideration of [X]’s best interests.

The Primary Considerations

1. Everyone agrees that it is in [X]’s best interests to have a meaningful relationship with each of his parents. While there is no doubt in my mind that the conduct of Mr Mooney would fit comfortably within the expanded definition of family violence in s 4AB of the Family Law Act 1975 (“the Act”), in that he would, at the very least, have made repeated derogatory taunts to Ms Landis and cause Ms Landis to be fearful, the level of violence concern does not rise to a point where anybody suggests that it is inappropriate for [X] to spend time and communicate with his father.  The dispute, in truth, is simply about how much.

The Additional Considerations

Section 60CC(3)(a)

1. [X]’s views have been sufficiently clearly indicated, although I pay regard to the fact that he is still only 10.  It is clear that he likes living with his mother.  He obviously loves his father and was observably protective of his father’s interests in the Family Report interview.  But it is clear that while he enjoys spending some time with his father in what is plainly, at the very least, a very messy household, he does not want to live there half the time.

Section 60CC(3)(b)

1. It is clear that [X] has a close bond with his mother who has been, for most of his life, his primary carer.  True it is that he lived with his father for almost two years but it is clear that his primary attachment is with his mother.  He also has a good relationship with the mother’s partner, Mr B.  His relationship with his father is clearly one of love and affection.  It is noteworthy that, as I have just indicated, [X] is sufficiently mature to seek, at least to an extent, to shield his father from criticism even though it seems equally clear the [X] knows why criticism might be appropriate.

Section 60CC(3)(c)

1. Although the mother failed full to participate in making decisions about major long term issues in respect of [X] to spend time and communicate with him, her lapse is understandable.  She left a controlling and abusive relationship when she was at the end of her tether.  She had no financial resources and simply had to leave.  Her abandonment of [X] is, in the circumstances, entirely understandable and should not be the subject of criticism.  By the same token the father did step up to bat.  He looked after [X] on his own although his reaction to the final separation, which was clearly significant, meant that his parenting skills, as I think he conceded himself, were somewhat inadequate.  [X]’s major gain in weight speaks for itself.

Section 60CC(3)(ca)

1. The mother, subject to the exception when she left and until 2018, has clearly entirely fulfilled her obligations to maintain the child.  The father loves his child but does not see fit to pay Child Support.  He does not regard it as appropriate for him to make an income and his notion of Child Support is apparently that he would pay for the child when with him.  Mr Mooney struck me as being markedly workshy.  He has evolved a lifestyle where he can subsist well on statutory benefits and his relatively meagre earnings as a musician and his wholly intermittent earnings as a tradesman.  He does not regard paying for [X] when in the mother’s care as part of his responsibilities.

Section 60CC(3)(d)

1. Were it to be the case as the father seeks that the spend time regime expand over time to a 50/50 arrangement, this would obviously be terribly difficult for [X].  He is in a secure home.  He goes to a school where he is doing well.  It seems he has made friends at school.  To disrupt this and send him to Town C, where it is not clear to me there is even now still a school as Mr Mooney’s complaint was that the departure of Mr B led to its closure, speaks for itself.  To remove [X] from the primary care of the mother who has been his primary carer for almost all his life would be clearly detrimental.

Section 60CC(3)(e)

1. This is a case in which there is significant practical difficulty and expense involved for the child to spend time with Mr Mooney in the fashion that he seeks.  While the road to where he lives may not be as bad as the mother paints it (and I think she exaggerated) the fact is that this is a long drive on a winding road of over an hour.  The notion that this could be done week about in any kind of practical way is, in my view, unsustainable.  [X] needs to be in one school not two.

1. The father’s suggestion that he might, in some fashion, stay in Town A for periods of time, appears ill-considered and incompletely thought out.  At least one of the friends with whom he would propose to spend time is a known heavy drug user and apparently uses drugs in the presence of [X] albeit in another room.  A week about arrangement would be all but impossible even if the parties properly cooperated, which they are quite incapable of doing.

Section 60CC(3)(f)

1. The mother is clearly well equipped to provide for [X]’s needs.  Mr B appears to be entirely helpful also.  The father does have a capacity to care for [X].  He looked after him for almost two years on his own.  During this time however [X] put on a very considerable amount of weight because the father did not attend to his diet.  This is all the more telling given that, as a former chef, the father ought to have known better.  The father’s premises are plainly poorly kept up and it is more probable than otherwise that [X] suffers to an extent from the smoke and/or general dustiness of the premises.  The father’s capacity to care for [X] is also, in my view, impaired by his daily use of marijuana.  He asserts that he eases up when [X] is with him but I find that assertion difficult to accept.  He drives [X] no doubt while under the influence of marijuana.  These are telling considerations.

Section 60CC(3)(g)

1. The maturity, sex, lifestyle and background of the mother bears some examination.  She has herself had a troubled history from time to time.  Nonetheless she is now in a stable relationship with Mr B, they have accommodation in Town A and Mr B has a permanent and secure employment as a public servant.  The circumstances are unremarkable.

2. The circumstances of Mr Mooney are different.  He lives what can only be described as an alternative lifestyle.  I suspect he continues to purchase marijuana.  His assurance to the Court that he, in, effect, grows everything he needs (something in plain breach of the law on any view) is not one I am prepared to accept.  I daresay he grows cannabis as well as buys it.  The father’s lifestyle is also imbued with the music scene of which he himself says drugs are part and parcel.  The clear picture I got was that during rehearsals in Town A with his friend Mr F, they are all heavily consuming marijuana in the house where [X] is placed watching TV in the front room.

3. This is not a lifestyle to which it is possible to ascribe any benefit to [X].  Even taking him to gigs, in my view, is extremely questionable.  Lurid suggestions of the likelihood of child abuse can be put to one side, but keeping a child up to 11 o’clock at night at that age in an environment where he would be not supervised all the time by the father speaks for itself.  It is inappropriate.  I will prohibit it until the child is at least 14, by which time he can sustain a later night if need be.

Section 60CC(3)(h)

1. This is not relevant.

Section 60CC(3)(i)

1. The attitude of the mother to the child and the responsibilities of parenthood is wholly unremarkable.  I have already dealt with the unfortunate set of events whereby [X] was left by the mother in his father’s care.  It is not necessary to repeat what I have said.  The father’s attitude to the child has a strongly possessory quality.  Much of what Mr Mooney had to say struck me as being concerned with the benefits to him of [X]’s relationship with him rather than the other way round.

2. The father’s attitude to his responsibilities as a parent is well illustrated by his insouciant determination to continue to use marijuana on a daily basis.  It should be note in passing that although I propose to make an order that the father not consume marijuana while his son is in his care, I have grave doubts as to whether he will comply with the order.  He should be keenly aware however that should he fail to do so, his time with [X] will be at risk of total suspension.

Section 60CC(3)(j)

1. There has been family violence in the form of abuse and the like during the relationship but I am not able to make to make positive findings of any actual assaults. 

Section 60CC(3)(k)

1. There is, as I understand it, an Intervention Order still in place until July of this year against the father. There may also be a mutual one the other way. Neither side is suggesting however that the father not spend time with [X]. I note that it will be necessary to have an order pursuant to s 68P if time is to take place.

Section 60CC(3)(l)

1. Contrary to the father’s position, which is that the whole spend time regime should be revisited in two years, in my view it is plainly in [X]’s best interests that final orders be made now.  The mother and [X] need certainty in their lives.  In my view it is appropriate to make final orders and bring the strain and stress of litigation on all concerned to an end.

Section 60CC(3)(m)

1. There are no other relevant matters.

Conclusion

1. In the end, my decision can be stated shortly.  The father’s proposal for a 9/5 arrangement or for equal time (albeit introduced over a number of months) is plainly not in [X]’s best interests.  Given that [X] is now securely in school in Town A it is plain that he must continue to spend most of his time in Town A itself.  That is where his primary carer, his mother, lives with her partner in a secure relationship and in an environment in which it is clear [X] is flourishing.

2. The notion that it might be, in some fashion, fair to apportion time on an equal time basis (I think I understood Mr Mooney to advance this proposition in terms at one point) shows an obsession on Mr Mooney’s part with his own interests and a lack of proper appreciation of those of [X].  Taken overall, the position could scarcely be clearer.  There will be a spend time regime as proposed by the Independent Children's Lawyer and otherwise to reflect my conclusions as set out in this judgment.

I certify that the preceding one-hundred-and-one (101) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 18 April 2019