NAGEL & TRAVIS

[2017] FCCA 2345

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAGEL & TRAVIS [2017] FCCA 2345

Catchwords:
FAMILY LAW – Parenting – Aboriginal child – drug and alcohol abuse – serious welfare concerns.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CC, 65DAA(5)

Applicant: MS NAGEL

Respondent: MR TRAVIS

File Number: DNC 268 of 2014

Judgment of: Judge Young

Hearing dates: 28 & 29 March 2017, 31 July 2017 & 1 August 2017

Date of Last Submission: 1 August 2017

Delivered at: Alice Springs

Delivered on: 2 August 2017

REPRESENTATION

The Applicant appearing in person

The Respondent appearing in person

Counsel for the Independent Children’s Lawyer: Ms Bolton

Solicitors for the Independent Children’s Lawyer: The Northern Territory Legal Aid Commission

ORDERS

Parental decision making

1. That the mother and father have equal shared parental responsibility for the child [X] born 2013 (hereafter “the child”), except for decisions about the child’s education and health.

2. That for decisions about the child’s education and health:

   (a)The mother is to inform the father in writing of the health or education issue and the decision she intends to make;

   (b)The mother is to consider the father’s views; and

   (c)If there is no agreement in 14 days the mother can make the decision.

Lives with, Spends Time with and Communicates With Orders

1. That the child live with the mother.

2. That the child spend time with the father in the child’s school holidays as follows:

   (a)Until the end of the child’s 2nd school term in 2018 for  five nights, at the start of each school holidays;

   (b)From the end of the child’s 2nd school term in 2018;

   (i)     PROVIDED THAT the father has complied with Order 5, the child spend 1 week of each school holiday with the father as follows:

   1.In 2018 until the child turns 7 years old (in 2020):

   (a)For the first week of each holiday in each even numbered year and for the final week of each holiday in each odd numbered year.

   2.From when the child turns 7 years old (in 2020):

   (a)During school holidays longer than 2 weeks, the child shall spend the first 2 weeks of the holiday with the father in even numbered years and the last 2 weeks of the holidays with the father in odd numbered years, with the child’s time to finish 3 days before the child’s first day of school;

   (b)In holidays of 1 or 2 weeks, the child shall spend the whole of the holiday with the father

3. That before the end of the child’s 2nd school term  in 2018 the father  provide to the mother a statement from a qualified counsellor or psychologist that he has attended counselling and addressed his alcohol and anti-social behavioural issues.

4. Until such time as the father complies with Order 5 the child’s time described in Order 4(b) shall be limited to 5 nights only.  

Costs of travel

1. The parents are to share the costs of the child’s return travel between (town omitted) and Alice Springs by:

   (a)The father paying for the cost of the child’s travel and the costs of any accompanying adult for the first trip and every alternate trip thereafter;

   (b)The mother paying for the cost of the child’s travel and any accompanying adult for the second trip and every alternate trip thereafter; and

   (c)Such travel will ordinarily be by bus or car.

2. If the father intends to have the child fly to Alice Springs and back:

   (a)The father is to notify the mother one month in advance and provide a copy of the air ticket;

   (b)The mother is to deliver the child to Adelaide airport for the start of the child’s time with the father and collect the child from the Adelaide airport at the conclusion of that time at her own cost;

   (c)The father is to book and pay for the child’s flight and the flight of an accompanying adult until the child is old enough to travel unaccompanied.

Telephone communication

1. That while the child is living with the mother, the child communicate with the father by telephone a minimum of once per week as follows:

   (a)The mother make all reasonable efforts to ensure the child communicates with the father once per week at a neutral place, without the mother present during the call, such as at the child’s school, day care, counsellor or with the assistance of a support service such as (omitted family relationship centre) with which the mother may be engaged and to that end:

   (i)The mother must authorise the child’s school and one other service to facilitate such communication with the father and make the child available (at a time convenient to the school or that service); and

   (ii)In the event the school or the service is not able to assist, the mother must make all reasonable efforts to ensure an alternative service does so.

2. If the child does not have phone call with the father at a neutral place each week, the mother is to assist the child to call the father on the father’s land line  at 10:00am each Saturday unless the father advised the mother in writing of a different number to use, in which case the mother is to use the number the father has provided.

Restraints

1. Each parent be restrained by injunction, and an injunction issue restraining each parent from:

   (a)Being under the influence of illicit drugs while the child is in that parent’s care or 48 hours prior;

   (b)Being under the influence of any alcohol while the child is in that parent’s care or 24 hours prior;

   (c)Exposing the child to other people under the influence of illicit drugs or excessive alcohol (that is, more than 0.05% blood alcohol level limit, which is also the legal driving limit)  while the child is in that parent’s care;

   (d)Exposing the child to illicit drugs or drug paraphernalia such as bongs, mull bowls, ice pipes and drug needles;

   (e)Speaking badly about the other parent or the other parent’s family in the presence or hearing of the child;

   (f)Permitting any other person to speak badly about the other parent in the presence of the child;

   (g)Changing the child’s surname without the express written consent of the other parent.

2. That the mother be restrained from moving the child’s ordinary place of residence from (town omitted), South Australia without the consent of the father in writing.

Orders for information exchange and communication

1. That the mother must within 7 days, authorise the child’s school to provide information and documents to the father. 

2. That the mother must within 7 days advise the father of a functioning telephone number for her and keep him advised of any change to that number within 48 hours of such change. If the mother has a land line phone number, she is to provide that to the father. If the mother has a mobile telephone number, she is to provide that to the father.

3. That each parent must promptly inform the other in writing if:

   (a)A child protection service has contact with that parent or removes the child from that parent;

   (b)The parent is arrested, charged with or convicted of a criminal offence, or is sent to jail, for whatever reason.

4. The parties are to communicate via email and each parent is to provide a functioning email address to the other parent within 28 days.

Independent Children’s Lawyer

1. That the Independent Children’s Lawyer be discharged 6 months from the date of these orders with the Independent Children’s Lawyer having liberty to apply within that time.

NOTATION: The Court requests that the child’s school or other service engaging with this family assist the child to telephone or have video communication with the father as set out in these orders provided the child does not become unduly upset.  These orders do not oblige the school or any other service to comply with this request.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ALICE SPRINGS

DNC 268 of 2014

MS NAGEL

Applicant

And

MR THOMSON

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.   

2. This is a parenting matter concerning a child, [X], who is currently four years old.  The mother in this case is approximately 34 or 35 and the father is 35 years old.  Both parties are Aboriginal persons.  The mother presently lives in (town omitted) in South Australia with her four children from other relationships.  Those four children are three boys who are older than [X] and there is a child who is three, I understand, somewhat younger.

3. This is a difficult and troubling matter involving drug and alcohol abuse and serious family violence.  In 2010 the father was sentenced to a period of imprisonment for assaulting the mother.  In 2011 the mother was sentenced to a period of suspended imprisonment for stabbing or cutting the father with a knife.  Both parties have been involved in drug and alcohol abuse and violence.  The father has a long criminal record including convictions for assaults, robbery, drink driving and various other offences.  He has spent numerous periods in prison.

4. The mother has admitted, in evidence, that before [X]’s birth she was dealing and, I am satisfied, consuming methylamphetamine.  She was drinking heavily as well.  In fact, the mother described herself before me as a recovering alcoholic.

5. [X], the child, was born 2013.  The evidence is that the mother sometimes drank during the pregnancy and she drank, she says, to celebrate [X]’s birth.  On returning from hospital with the child the mother drank, it would appear, heavily.  It is unclear what happened next, but it appears that during the night the mother may have rolled onto the newborn babe.  In any event, [X] was found to be having trouble breathing and she was taken to the hospital immediately where she was treated.

6. As a result of that episode, the child was almost immediately taken into care by the welfare authorities. The mother was required to attend an alcohol rehabilitation course in Darwin which she completed and during that time, with the assistance of the welfare authorities, [X] continued to spend regular time with her father although it appears that that time was for some hours during the day.

7. Eventually, after many months, the child was returned to the mother.  By that time the parents had separated.  The child lives with the mother and has lived with the mother since being returned to her by the welfare authorities but the child appears to have spent regular time with the father.  The father was supported in that by his mother.  He continues to live with his mother in Alice Springs.

8. The relationship between the mother and the father is deeply hostile.  The mother, at least, appears to have some trust in the father’s mother and the father’s older brother, Mr D, who is also a person the mother feels somewhat comfortable with.  With the support of those relatives, the parties kept up some form of communication and perhaps negotiation, with the result that [X] continued to spend some limited time with the father.

9. Proceedings were issued in June 2014.  At various times the parties have been represented but during the trial neither were represented.  In April 2015 a family report was prepared by Mr A.  Mr A is a very experienced family consultant and has been attached to the registry in Darwin for many years and is very familiar with the social and other conditions that apply in the Northern Territory.  Mr A took the view that the child was at serious risk of neglect or harm in the mother’s care during the preparation of his family report.

10. His visit to the mother’s house in Alice Springs is recorded in his report of April 2015.  He described the mother’s home as – and I will summarise – unhygienic.  He made recommendations that the child welfare authorities be invited to intervene.  He also appears to have made a mandatory report to the child welfare authorities.  Ultimately the child welfare authorities declined to intervene in the proceeding and they expressed the view that the particular matters complained of or at least notified, by Mr A, in particular the poor quality of the mother’s housing, was apparently within the range of community standards in the Northern Territory.

11. At that time Mr A was of the view that the child was most likely to be safe if living with the father and supported by the father’s mother, and he recommended accordingly.

12. The litigation history of this matter is that there have been delays in bringing the matter to trial.  It is unclear to me precisely why this has occurred but there has been a lack of representation of the parties at various periods.  The father has been imprisoned at various times.  And, indeed, when the matter came on for trial before me in March, the father at that time was in prison but he attended the trial escorted by prison personnel.  He became ill and the matter was adjourned.

13. Another reason for the delay may have been that there was no permanent judge in the Darwin registry for some time prior to my appointment in July 2015.

14. In about December 2015 the father consented to the mother relocating to (town omitted), where she was born, with [X].  He was represented at that time but I accept that he probably felt he had no real choice in the matter.  He certainly made it clear to me in this trial that he regretted his agreement to the mother’s relocation.

15. Nevertheless, the situation remains that the mother and child, along with her four other children, have lived in (town omitted) for the past 18 months.  The mother says that she and the child are doing well in (town omitted) where she has the support of her, she says, extended family and, in particular, her mother who relocated with her to (town omitted) from Alice Springs.

16. The mother says that she has taken steps to address her abuse of alcohol and drugs while in (town omitted).  She said that she had attended drug and alcohol counselling in (town omitted) in her evidence.  Her evidence about that was unsatisfactory, in my view.  It appears that while there has been some engagement by her in drug and alcohol counselling that engagement has been partial.  By that I mean she appears to have attended some appointments but not all that many.

17. In March of this year she was requested to provide a letter by the independent children’s lawyer in cross‑examination setting out in more detail her engagement with drug and alcohol counselling services in (town omitted).  That letter has not been forthcoming.

18. More worrying is that she returned a positive test for methylamphetamine in May 2015.  That is before her relocation to (town omitted) admittedly.  But she also failed to take a number of other drug tests in the past year or 18 months, as requested by the independent children’s lawyer.  She offered various excuses relating to her non‑attendance, including that she had insufficient identification on one occasion.  On another occasion she could not afford the test, and so on.  There have been multiple failures to attend for drug testing by urinalysis.  I am not satisfied that the mother’s excuses are genuine.  I do not find that she is continuing to use drugs.  I simply do not know.

19. The father also has failed to comply with a number of drug tests, urinalysis tests, requested by the independent children’s lawyer but he has not returned any positive result.  I am not satisfied that the father’s excuses for failing to complete tests are genuine either.  The father has consistently denied the use of methylamphetamine although the mother says that at one point he asked her to distribute methylamphetamine on his behalf that he had manufactured.  I might say there is no evidence to support that, other than the mother’s allegation, and I certainly do not feel in a position that I can make a finding about that.

20. It follows that I cannot be satisfied that either of these parties is not using illicit drugs.

21. There is no positive evidence of drug use since the mother’s positive result in May 2015.  But given the very sorry record of non-compliance with the drug tests requested by the independent children’s lawyer I must say my suspicions and doubts remain.

22. The father says he has not consumed alcohol at all over the past 12 months.  A substantial part of that time he has been in jail and/or on bail for offences.  He was last imprisoned from March to June 2017 although that related to an episode where he (omitted) in 2015.  Nevertheless there is no evidence that the father has consumed alcohol over the past 12 months and, on balance, I am inclined to accept his evidence that he has not consumed alcohol for the past 12 months.  He gave me some quite detailed evidence about his reasons for not consuming alcohol which really related to him becoming aware of the damage it was causing to him, the damage it was causing to his relationships and his view that if he did not become sober then he was not likely to be a person able to offer very much at all, in particular to [X].   

23. As I say, while I have some significant doubts about his evidence, indeed, the evidence of the mother as well, I am inclined to accept his evidence that he has not consumed alcohol.

24. The difficulty, however, is that his abstention from alcohol, if that is what it is, is a relatively recent event.  He does not appear to have had very much in the way of therapeutic or counselling intervention.  And I must say I would be most concerned about whether he is able to stay sober and continue to abstain from alcohol without some therapeutic or counselling support.

25. The father is not presently employed, though it appears he helps out his older brother who has a cleaning business from time to time.  He lives with his mother.  His mother, who he describes as a Christian and a total abstainer, appears to be a stabilising influence in his life.  He says his mother is 64.  He says that she suffers from rheumatoid arthritis and has some reduced mobility, particularly outside the home, but generally, apart from that, she is in fair to good health.

26. The positions at trial of the parties were as follows:  the mother sought permission to relocate on a permanent basis.  Her position in relation to the child spending time with the father varied at different points in the trial.  At different times she said there ought to be no time.  At other times she said there ought to be supervised time.  At other times she said there should be only one visit to Alice Springs a year.  I think the different positions of the mother reflected not so much a carefully considered position in relation to the child’s needs but reflected, largely, her hostility and distrust directed towards the father.  She sought sole parental responsibility.

27. The father’s position at trial was that he sought equal shared parental responsibility.  And he appeared to recognise that it was unlikely that there would be an order for the mother’s relocation to Alice Springs, and, I acknowledge, reluctantly agreed that the mother would continue to live in (town omitted).

28. The father’s proposals for time were essentially that it ought to be as much time as he could get.  Again I do not believe that the father’s position was the result of a very carefully thought out position reflecting the difficulties and practicalities of this case but simply a deep desire to have his daughter spend as much time as possible with him and to encourage a deep attachment to him.

29. The position of the independent children’s lawyer was that there ought to be sole parental responsibility to the mother, that the child should continue to live with the mother in (town omitted), and that the child should spend time with the father on three visits a year to Alice Springs.

1. It can be seen from that description that the real issues in this case were whether there ought to be sole or equal shared parental responsibility, and the arrangements for the child to spend time with the father. 

2. The mother is deeply hostile to the father and is completely lacking in trust towards him.  The father is deeply hostile to the mother and completely lacking in trust towards her.  Their ability to communicate is almost non-existent although they have, at times, communicated.

3. I am satisfied that the mother in this case will not encourage a relationship between the child and the father.  For example, there has been no telephone contact between the child and the father since November 2016, notwithstanding the fact that there is an order, and notwithstanding that the independent children’s lawyer has tried very hard to encourage telephone contact.  For example, the independent children’s lawyer tried to set up calls from the father to the child at the child’s school.  This was opposed by the mother when she discovered what had happened.  The mother did not bring the child to Alice Springs on her visit this time, when that would have been, in my view, a reasonably straightforward matter for her.  She has done so in the past, and, in my view, it is really indicative of her hostility to the child having a relationship with the father.

4. The mother justified her position with evidence about the child’s distress on changeover when the child had spent time with the father two times in 2016, in March, and November 2016.  On the last occasion the father withheld the child at the end of the time, alleging that the mother was drug-affected.  She denies that and I am unable to make any finding but it is indicative of the degree of hostility and distrust between these parents.

5. The father, in his evidence, said that the child was somewhat distressed when she came to him on changeover on both occasions so his evidence was not inconsistent with what the mother had observed at the beginning of changeover.  He said, however, that the child soon settled with him, and, he said, on both occasions he had had a good, affectionate and loving relationship with the child and she appeared to enjoy her time with him.  The evidence about that was that on each occasion the child had spent initially three days, then a break of one day with the mother who was in Alice Springs, and then another three days with the father.

6. The father’s evidence of the nature of the child’s time with him is supported by the observations in the family report made in March 2017 when the family consultant, again Mr A, observed the child at the prison with the father.  I think it is important to read what Mr A observed:

   [X] was observed with the father in the public visiting area of the (omitted) prison.  At the time of the observation, [X] had not seen her father for almost four months [a reference back to November 2016]. [X] was accompanied on this visit by Mr R, a friend of the mother, who agreed to accompany [X] from the prison reception to the visitors’ area.  [X] was informed by the mother that she was going to see her father and she separated from the mother without difficulty and went willingly into the prison with Mr R and the writer. 

   [X] appeared somewhat reserved and apprehensive immediately prior to seeing her father.  However, on seeing her father, she ran to him and jumped into his arms. The observation was not consistent with the mother’s assertion that [X] was resistant to going to her father and was distressed at such times.  She was clearly happy and excited to see her father and embraced him warmly.

   The observation of [X] with the father lasted for about 40 minutes and concluded at the end of the scheduled visiting session.  During this time, [X] played happily with her father and chatted amiably with him.  She displayed confidence and trust in her father and physically interacted with him in a very warm, robust and positive manner. 

   The father was highly responsive to [X] and attentive to her needs.  He displayed a well-developed capacity to relate to [X] and maintained a close and warm interaction with her throughout the observation.  He appeared very comfortable in his fathering role and was engaging and energised in his interaction with [X].  Conversation flowed freely between them and [X] was highly responsive to her father and clung to him affectionately for a large part of the observation. 

   Generally, the observation suggested that [X] has a loving relationship with her father in which she is confident and trusting whilst in his care.  The father’s behaviour was appropriate at all times and he displayed a good ability to engage with [X] and to relate to her in a warm and positive manner.

7. Those observations were not challenged.

8. At the end of his March 2017 report, Mr A made the following recommendations:  (1) that there should be equal shared parental responsibility and (2) that the child should live with the mother. In his report he concluded that there was some evidence that the mother’s parenting capacity had improved in (town omitted).  He said in particular there had been no evidence, apart from an unsubstantiated notification to child welfare, of any child welfare involvement.  There was no evidence of any drug use, and certainly that is true from December 2015, although he did not refer specifically to the mother’s failure to comply with testing requests.  But generally he thought the evidence suggested an improvement in the mother’s parenting capacity.  That, along with the fact that at the time of the assessment the father was in prison and it was not seriously contemplated that, given his recent record of being in and out of jail, that it was appropriate that the child live with him. That was, in summary terms, the reason for his change of recommendation. 

9. In relation to time, he recommended that [X] should spend time with the father in Alice Springs two times a year, from term 3 2018.  That is, term 3 of the South Australian school holidays.

10. He recommended that from the term 3 2018 school holidays that time, subject to some qualifications I will mention in a moment, should increase to one week.  And further, that the number of visits should increase to four times a year, as I say, from that time, from 7 February 2018.  He further recommended that in 2020, which would be April 2020, when the child turns seven, that the duration of the visits should be extended to two weeks.

11. The qualification that I referred to is as follows.  He recommended that prior to the end of term 2 2018 the father should provide a statement from a qualified counsellor or health professional stating that the father has taken steps to address his issues with alcohol abuse and antisocial behaviour, and until he does that, that the time the child spends with him remain at five days.  He also recommended that there be an order that the father not consume alcohol or expose the child to intoxicated people while the child is in his care.  He recommended that the mother should provide a telephone number where the father could call and the father be at liberty to call once a week and that when the child was in the father’s care that the mother be permitted to call the child twice a week.

12. Turning to consideration of issues in this case, there is clear evidence of family violence and, accordingly, there is no presumption of equal shared parental responsibility.  As I have mentioned, in relation to parental responsibility, the mother and the independent children’s lawyer submit that there should be sole parental responsibility to the mother.  Essentially, the independent children’s lawyer’s position was that there was a lack of evidence of any effective communication between the parties and requiring, for example, consultation between them would be guaranteed to fail.

13. The father, on the other hand, said that there should be equal shared parental responsibility because, to use his words, he should participate in the “big decisions” about [X]’s care.  The family consultant was cross-examined about this issue in some detail.  He expressed concern about sole parental responsibility because he was concerned that the mother would attempt to push the father out of the child’s life.  I share those concerns.  In my view, there is a risk of disagreement, non-communication or ineffective communication between these parties which may well mean that shared parental responsibility is not going to be effective.

14. However, the mother did say in evidence, or perhaps in submissions, that she was willing to communicate with the father in writing by email if she had any proposal relating to [X]’s welfare, that is, parental responsibility decisions, that is major decisions about the child’s welfare, including decisions about her education or health. She would be prepared to consult the father.  She wanted to keep the decision ultimately hers but she said she would at least be prepared to communicate with him and consult with him.

15. I acknowledge all of the concerns that are expressed by the parties.  I think each of those concerns have some validity.  But more generally, I am inclined to adopt the view of the family consultant about this.  I propose to deal with this problem by making an order for equal shared parental responsibility.  But in relation to decisions concerning education and health, I intend to modify the parental responsibility as follows.  The mother is in relation to those matters, education or health, to inform the father of any matter regarding the child’s major education or health issues and seek his agreement to any proposals she may have in writing.

16. She is to consider his views but if there is no agreement between the parties within 14 days she is free to make the decision herself.  That means, for example, that the child’s name could not be changed without the consent of the father.  It means that there could not be a further relocation from (town omitted) without the agreement of the father or an application to the court.  I raise that latter matter because in submissions the mother submitted to me that one of the reasons why she sought sole parental responsibility was – to use her words – if she felt like a “sea change” away from (town omitted) she will not be able to do that without agreement or an order from the court.

17. The father has agreed, admittedly reluctantly, that the mother continue to live in (town omitted) and he does not now seek an order for her return.  That means that the remaining issues that need to be dealt with relate to the time the child is to spend with the father and communication.  In rough terms, the mother suggests reasonably minimal visits to Alice Springs, perhaps once or twice a year. 

18. The independent children’s lawyer suggests three visits a year from now for the indefinite future on the basis that four visits is possibly too much, particularly a fourth visit in the summer in Alice Springs.  I am not sure that I accept the climate argument.  The child has lived in Alice Springs for a considerable part of her life, including through the summer.  As I propose to make an order for equal shared parental responsibility, I must consider whether or not it is appropriate to make an order for equal time.  That is easily disposed of, of course, because it is not practicable if the mother is to live in (town omitted), which is the agreed position of the parties.

19. It is necessary to consider significant and substantial time and its practicality. I am satisfied, having regard to the matters in section 60B and section 60CC of the Family Law Act1975 (Cth), that is, that the paramount consideration for the court is the best interests of the child and the primary considerations in determining the best interests are those in section 60CC(2), that is, (a), the desirability of maintaining or encouraging a meaningful relationship and (b) the need to protect the child from psychological or physical harm or neglect.

20. I consider both of those matters are relevant in this case.  I consider that there is a need to consider the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, particularly neglect.  I think that is the matter here, given the admitted history of the parties of abusing alcohol and, in the case of the mother, the use of methylamphetamine and also the circumstances of the child described by Mr A in his 2015 family report.  I consider that the child spending as much time as practicable with the father in Alice Springs has a protective element as well.

21. The other factor, of course, is the benefit to the child of having a meaningful relationship with both of the child’s parents.  I am satisfied that there is such a benefit to this child in this case and that meaningful relationship, having regard to her young age, should be encouraged by visits to Alice Springs as frequently as is practicable.

22. I should also say that I had regard to the matters in section 60CC(3) of the additional considerations. I will simply deal with the ones that appear most relevant to me: (b) the child appears to have a good relationship with both parents. There is some evidence, perhaps vague at best, that she has a relationship with the mother’s mother and also the father’s mother, though the evidence about that was sketchy at best.

23. In relation to (c), the extent to which each of the child’s parents has taken or failed to take, the opportunity to participate in decision-making about major long-term issues for the child, spending time with the child and communicating with the child, as I have already mentioned, that is a significant issue in this case.  I am satisfied that the father has done what he can in one sense but having regard to the history that I have described it is perhaps not surprising that each of those matters has been fraught with difficulty.  I do not particularly criticise either parent but it is an issue and it has had a deleterious effect on the child and will continue to have a bad effect on the child if it continues.

24. In relation to (ca) maintenance, the father is unemployed although as I understand it, there is some deduction from his Centrelink payment benefit for the child.

25. There is not going to be a change in circumstances, in the sense that the child has lived in (town omitted) for the past 18 months. In relation to (e) the practical difficulty and expense of the child spending time with and communicating with each parent, and how that difficulty and expense will affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis is a significant issue in this case and one that I found very difficult to deal with.

26. Given the great distance between (town omitted) and Alice Springs, some 1200 kilometres, the long road travelling time, which appears to be approximately a day, in other words, more than 24 hours, one estimate was 29 hours at least via Adelaide, I am satisfied that it is expensive and difficult. Both parties are in receipt of Centrelink payments.

27. In relation to the capacity of each of the child’s parents to provide for the needs of the child including emotional and intellectual needs – this is a case where there are serious question marks about the capacity of each parent and I have dealt with that. The question marks relate to drug and alcohol use in particular, and those are likely to be, or may well be continuing concerns.

28. The other matter is (h). The child is an Aboriginal child and both parents made submissions about the necessity of recognising the child’s right to enjoy her Aboriginal cultural connections.  The father, in particular, said that his traditional lands are north of Alice Springs.  He is an (omitted) speaker himself and I accept that he has a deep concern to ensure that the child is aware of her Aboriginal culture, background and her right to share in that culture.   

29. The mother, similarly, has referred to her connections with the (town omitted) area although her evidence of any Aboriginal cultural connection, apart from the existence of her extended family in (town omitted), was not detailed but I acknowledge that that is a factor in this case.

30. In relation to (i) the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents, I am satisfied that each of these parties loves [X] dearly and I am satisfied that they each want the best for her but their own difficult background and experiences and their own, I think, inability to see beyond their own traumatic experiences interferes with this.  That is not to criticise either parent.  I think criticism of these parents serves no particular purpose.  

31. There has been family violence, as I mentioned, and that is a very significant part of the history of these parties.  I do not need to go through that in any detail.  I am satisfied that as long as the parties remain living well away from each other that there will be no repeat of episodes of family violence.  There have been, in the past, domestic violence orders taken out by the mother against the father.  Indeed, there have been breaches of domestic violence orders by him.  The evidence appears to show that there is no existing domestic violence order in place.

32. In relation to section 65DAA(5) there is a need to consider substantial and significant time. The practicality of substantial and significant time is limited by the distance that the parents are living apart, their current and future capacity, particularly financial capacity, to implement an arrangement, their current and future capacity to communicate with each other which is, on the basis of the mother’s submissions, I accept probably likely to be limited to email communications about matters concerning the children.

33. The practicalities of time spent are, as I say, difficult, particularly the distance involved and the expense involved.  In general terms, I accept the recommendations of the family consultant as modified by the submissions of the independent children’s lawyer. I will make orders accordingly.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 26 September 2017