Noonan and Creek

FAMILY COURT OF AUSTRALIA

NOONAN & CREEK

[2010] FamCA 33

FAMILY LAW – CHILDREN – With whom a child lives – Both the mother and father are seeking orders for the child to live with them – Child has lived with the mother since the parties separated in 1999 – Concerns about the mother’s parenting capacity, her ability to prioritise the child’s needs over her own and risk of harm to the child if she remains in the mother’s care – Orders made for the child to live with the father and spend time with the mother each alternate weekend and half of school holidays
Parental responsibility – Mother and father to have equal shared parental responsibility for the child

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60DAA, 61B, 61C(1), 61DA, 61DB, 64A, 65AA, 65DA, Pt VII
Evidence Act 1995 (Cth) s 140

Goode and Goode (2006) FLC 93-286
R v R Children’s Wishes (2000) FLC 93-000
H v W (1995) FLC 92-598

APPLICANT:

Ms Noonan

RESPONDENT:

Mr Creek

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

FILE NUMBER:

(P)PAC

6365

2007

DATE DELIVERED:

25 January 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Parramatta

JUDGMENT OF:

The Hon. Justice Ryan

HEARING DATES:

6, 7, 8 and 9 April and 19 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Picker

SOLICITOR FOR THE APPLICANT:

Rachel Stubbs & Associates

COUNSEL FOR THE RESPONDENT:

Ms Snelling

SOLICITOR FOR THE RESPONDENT:

Winder Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Stollier

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Legal Aid Commission of New South Wales

Orders

That all prior parenting orders are discharged.
That the parties have equal shared parental responsibility for the child S (“the child”) born … December 1997.
The child shall live with the father.
The child shall spend time with the mother as follows:
(a)Each alternate weekend commencing at 5.00 pm on the Friday and concluding at 4.30 pm on the following Sunday. If a public holiday falls on the Friday of a weekend that the child would normally spend with the mother then time with the mother shall commence at 5.00 pm on the Thursday prior and if a public holiday falls on the Monday of a weekend that the child would normally spend with the mother then the time with the mother shall conclude at 4.30 pm on the Monday of the long weekend.
(b)On the Mothers Day weekend for the same duration as set out in the order above.
(c)For one half of the New South Wales gazetted school holidays in Terms 1, 2 and 3 such half to be as agreed between the parties in writing. Failing an agreement it will be the first half of the school holidays in even numbered years commencing at 10.00 am on the Saturday following the cessation of school and concluding at 7.00 pm on the day that marks the mid point day and in odd numbered years commencing at 10.00 am on the day that marks the mid point day of the holidays and conclude at 4.30 pm on the Sunday before school resumes.
(d)For Christmas Day commencing in odd numbered years at 10.00 am on 26 December and concluding at 10.00 am on 28 December and in even numbered years commencing at 10.00 am on 24 December and concluding at 10.00 am on 26 December.
(e)In the Christmas New South Wales gazetted school holidays commencing 10.00 am on 3 January and concluding at 10.00 am on 20 January.
That the mother shall collect the child at the start of her time with the child from the father at the T Caltex service station and he shall collect the child from the mother at the mother’s home at the finish of each period.
For four months from the date of these orders, the mother’s entitlement to spend time with the child pursuant to Order 4 above is conditional upon her undergoing urinalysis drug testing no less than each four weeks. Copies of these tests are to be given to the father no less than each four weeks during this period. In the event the mother tests positive for an illegal drug and/or fails to provide a drug screen and the father reasonably believes that the child may be exposed to drug use if she were to spend time with the mother he may suspend the child’s time with the mother for the next scheduled occasion.
Thereafter and in the event the father reasonably believes that at changeover the mother appears to be affected by an illegal drug and he reasonably believes that the child may be exposed to drug use if she were to spend time with the mother he may suspend the child’s time with the mother on that occasion.
The father shall facilitate the child being able to communicate with the mother between 8.00 pm and 8.30 pm each Tuesday, Thursday and Sunday when the child is in the father’s care to be facilitated by the mother telephoning the child on a telephone number nominated by the father as well as at any other reasonable time:
(a)       by correspondence;
(b)       Skype (if it is available);
(c)       by email.
That the parties shall provide a landline and mobile telephone number to each other and keep the other parent advised of any change to these numbers as soon as practicable or within 48 hours of such change occurring.
That the mother and father jointly authorise the child’s school to:
(a)Contact each parent directly for the purpose of discussing matters concerning the child’s education and welfare and for the receipt of information pertaining to the education and welfare of the child;
(b)Advise each parent when school photos are being taken.
(c)Provide to both parents copies of all school reports, newsletters and correspondence sent by the school in respect of the child.
(d)Provide details of all functions, parents and teacher’s nights and other activities to which parents are invited.
Subject to the direction of the Principal of the relevant school, each party shall provide such consents and authorities to permit the other to attend the child’s school at all reasonable times and for discussion of matters concerning the child or functions which parents are invited to attend.
That each parent is at liberty to attend school and sporting events and other extracurricular events that the child may from time to time participate in and that each party keep the other party notified of these events in order that each parent might have the opportunity to attend.
That the parties are restrained from consuming illicit substances or consuming alcohol above the legal limit within a 12 hour period prior to and whilst the child is in their care.
That each of the parents;
(a)Notify the other as soon as practicable and in any case within 24 hours of any serious medical condition or injury suffered by the child and provide all relevant information to the other parent in relation to the medical treatment.
(b)Shall authorise any of the child’s medical practitioners, hospital or health care providers to provide all relevant information in relation to the child to the father and the mother.
(c)A serious medical condition for the purposes of this order shall include hospitalisation, the attendance of or transportation by ambulance and/or referral to a medical specialist.
That both parties are to refrain from denigrating the other party in the presence of or within the child’s hearing and from permitting any other person from doing so.
That the parties keep each other advised of their current residential address and contact details.
In the event that the mother fails to facilitate the child’s prompt enrolment at school the Order 2 above is suspended to the extent necessary for the father to enrol the child at school.
If Father’s Day falls on a weekend when the child is due to spend time with the mother the mother’s time with the child on that occasion is suspended.
That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, 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.
That all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 6365/2007

MS NOONAN

Applicant

And

MR CREEK

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings concerning S born in December 1997 (“the child”). The applicant in these proceedings is the child’s mother Ms Noonan (“the mother”). The respondent is the child’s father Mr Creek (“the father”).
The child is currently 12 years old. When the parties separated, the child was 21 months old following which she lived with the mother. By September 2006, the father was concerned that the child was neglected and unsafe in the mother’s care. The child’s four grandparents shared these views. Before deciding he needed to intervene on the child’s behalf he reality tested his concerns with the child’s maternal grandparents who agreed with him that she needed to be removed from the mother’s care. Having first informed the maternal grandmother of his plans in September 2006 the father retained the child. The father then spoke with the mother who agreed the child could remain with him for four weeks. However, when she learned the father had enrolled the child in a school nearby to his home, without first informing the father or child, the mother took the child from the school bus stop and commenced these proceedings.
Both parents seek orders that the child lives with them. Each of them raised serious issues concerning the other’s parenting capacity. Nonetheless, they and the Independent Children’s Lawyer agreed the parties should have equal shared parental responsibility and that the parent with whom the child does not primarily live should have reasonably extensive time with her. At least as extensive as the logistical difficulties which arise because of the distance between the parties’ homes permits.
Because of the complex issues raised in the proceedings, an Independent Children’s Lawyer was appointed and a Family Report ordered. Dr H was appointed to this task; he is a psychologist and family consultant. Dr H provided a report dated 19 August 2008[1]. Concerning the ultimate issue, Dr H said:
In light of the evidence available, [the child’s] best interest seem to be served by her continuing to live with her mother in the Macarthur district where she enjoys some aspects of stability in her schooling and friendships. They are also served by her spending as much time with her father as is practicable in the current circumstances, with both parents sharing responsibility for transport. To avoid friction by either parent waiting for the other to arrive at changeover locations, it seems preferable for each parent to take responsibility for transporting [the child] from one home to the other.
What remains unknown is whether [the mother] will succeed in providing some stable residence for [the child] and whether she will continue to ensure the child’s regular and punctual attendance at school. If she fails to do either, [the father] may well consider bringing the matter back to court on the grounds of [the mother’s] neglect of their daughter.
[1] Exhibit ‘G’
I have highlighted the word “seem” because this word was the focus of considerable attention during the family consultant’s oral testimony. The family consultant used that word to convey that his recommendation was a tentative view intended to convey his uncertainty that the child’s best interests lay with the mother. The gravamen of the family consultant’s evidence was that he held “lots” of concerns about the child living with the mother. These included about the mother as a role model, exposure to family violence and drug use, the extent to which she prioritised her needs ahead of the child’s and the child’s poor school attendance.
The family consultant was not concerned about the father’s parenting capacity. His concerns about the father’s proposal primarily related to the effect on the child of removing her, against her wishes, from the mother to whom she is strongly and affectionately attached. It was the family consultant’s opinion that living with the mother had required the child to adapt to many changes, which had made her reasonably resilient. He did not view favourably the father’s notion that the child would change school prior to the end of the 2009 academic year. While he was reasonably confident the child was resilient enough to cope with a move to her father, as I understood his evidence, he considered it would be preferable to allow the child to complete her final year of primary school at her present school. As it was impossible for the child to attend the same school if she lived with her father this lent support to the notion that any change to the child’s living arrangement would best be effected after she finished primary school.
Notwithstanding that the child wanted to live with the mother the Independent Children’s Lawyer submitted that the child’s best interests necessitated that the Court make orders[2] for her to live with her father.
[2] Exhibit ‘DD”

Credit

It is regrettably necessary to record that the mother failed to abide her obligation to give full and frank disclosure of relevant matters and that too often it became clear that her evidence was either intentionally misleading, or given with such a cavalier disregard to the gravity of the matters at issue that her testimony, if relied upon would give an erroneous picture of the facts. As a reading of the transcript would show the mother demonstrated that she is verbally adept and probably above average intelligence. As can be the situation the mother was not intimidated by the court process she had no difficulty conveying her point of view or ensuring that the evidence she wished to give, irrespective of its apparent responsiveness to the question, was heard.
Repeatedly the mother’s evidence was internally inconsistent or conflicted with compelling tendered documents. It is unnecessary to recite each instance and sufficient to highlight some examples of the type of matters to which I refer. The mother, for example, gave written and oral evidence to the effect that following a physical altercation between her and the father’s partner on Boxing Day 2008, the child was so distressed that at the mother’s behest the child was attending counselling. Eventually, the mother conceded that the child was not attending counselling. The mother had taken the child to a police station to speak with a police officer and otherwise the child was on a waiting list for future counselling. In what appeared to be an attempt to limit the potential damage the evidence adduced in the father’s case from Ms K may have caused her, the mother said that in the proceedings between Ms K and Ms K’s former partner, at Ms K’s behest the Family Court appointed the mother as a supervisor for Ms K’s daughter’s visits with her father. The mother appeared nonplussed when it was suggested that the Court file, which comprised the K & L family law litigation, could be inspected. It is beyond dispute that the mother was not appointed by the Court to be the child’s contact supervisor.
When the hearing resumed in June 2009 the mother said that during the adjournment she had been accepted into and commenced combined Bachelor of Laws and Bachelor of Arts degrees through the Open University scheme. To corroborate her evidence the mother produced her confirmation of enrolment[3] . The courses there disclosed carried code markers which bore no relationship to code markers used in any law faculty with which counsel or I were familiar. With counsel’s consent, we interrogated the internet so as to ascertain the nature of the courses in which the mother appeared to be enrolled. This revealed, it was agreed, that the mother is not enrolled in a Bachelor of Laws degree. I did not consider the mother’s subsequent evidence that she had been mistaken about the nature of her studies to be credible.
[3] Exhibit ‘W’
As will be discussed later it is a plank of the father’s application that the child lives with him, that he, unlike the mother, has stable accommodation and that in his care, the child will not constantly change residence. The mother failed to disclose that she had changed residence at least 12 times and said her current accommodation was secure and likely to continue. Prior to the hearing, the father’s partner contacted the real estate agency that managed the lease for the property in which the mother and child live. She discovered that the mother’s rent was in arrears and proceedings had been initiated in the Consumer, Trader and Tenancy Tribunal for the proprietor to take possession of the property. The mother denied she was in arrears or that proceedings had been initiated against her. During the adjournment, the mother applied to the Consumer, Trader and Tenancy Tribunal to have orders it made on 23 April 2009 for the payment of money, termination and possession of the property set aside. The mother informed the Tribunal that she had not received correspondence that notified her of the hearing. This is the same allegation she made when her car was repossessed and the sheriff took possession of the home she owned at M. In any event, without more the mother’s application for a rehearing was granted. In the documents tendered by the mother on this issue[4] the mother included a rental receipt which demonstrated that, contrary to her evidence, her rent was in arrears.
[4] Exhibit ‘Z’
Before leaving the issue concerning the mother’s credit as a witness, it is appropriate to observe that in her parenting questionnaire and evidence-in-chief the mother withheld important evidence. She presented the child as performing well at school and suggested good school attendance with her actively involved in ensuring the child’s attendance. The mother attached one reasonably good school report but failed to include those which demonstrated the child’s persistent poor school attendance and the school’s concerns about the mother’s inability to have the child at school when classes commenced. The mother failed to reveal severe family violence to which the child had been exposed in her care and the existence of family violence orders, in direct denial of question 14 in the questionnaire, which affected her.
There were a number of instances where I was satisfied the father’s evidence was erroneous. He has been in the difficult situation for a long time where friends of the mothers and members of their families have given him information about the mother’s care of the child which understandably disturbed him. At one stage, when the mother had been evicted from M, she refused to tell him where she was living. The father spent hundreds of dollars, which he could ill afford, on a private investigator so as to locate the mother and child’s whereabouts. Because he does not live in the same community as the mother and child, he has been reliant upon others to a considerable extent for information about the child. The information, which the father received, related to serious matters. These included the child being exposed to the mother’s and her male companion’s drug abuse, family violence in the mother’s homes, frequent changes of residence and partner and the child’s apparent neglect. The father believed the information he received and it formed the basis for components of his evidence. Whilst ultimately there are instances where I am satisfied the father’s evidences gave an exaggerated picture of, for example, the number of the mother’s partners with whom the child has cohabitated, I formed the view that these were matters of genuine misunderstanding rather than a deliberate attempt by him to mislead the Court.

The father called a number of witnesses. I was particularly impressed with his partner and Ms K, each of whom appeared genuinely motivated to assist the Court determine the facts. Ms C gave evidence for the father by telephone. She too was an impressive witness who gave an engaging account of her daughter’s friendship with the child and the interaction between her family and the father’s family in the local community. Mrs Noonan Snr, who is the mother’s mother, gave oral evidence. For reasons, which I understand, she was defensive of her daughter and found it difficult to be frank with the Court about her. Even in the face of strong evidence, concerning the child’s poor school attendance the maternal grandmother was unable to disclose what she knew about this situation. Unfortunately, in her determination to assist her daughter the maternal grandmother devalued the integrity of her own evidence. The mother’s partner gave evidence. Excluding the Boxing Day 2008 incident, his evidence was largely uncontroversial and he impressed as truthful.
Unless I have stated differently where the mother’s evidence was in conflict with the evidence of any of the other witnesses I have preferred the evidence give by the other witness. Where the maternal grandmother’s evidence conflicted with evidence given by the father or in his case, again unless I have stated differently, I have preferred the evidence called in the father’s case.

Background Facts

Throughout these reasons statements of fact are findings of fact determined upon the balance of probabilities. Section 140 Evidence Act 1995 (Cth).
The father was born in 1967.
The mother was born in 1971.
The parties met in June 1989 and commenced cohabitation soon thereafter. When they began living together the mother was 18 and the father was 22. Throughout their relationship the parties lived in the Macarthur area.
The parties married in 1993.
In December 1997 the child S was born.
Whilst the parties cohabited both parties were involved in the child’s care. At that time, the father worked as a nightshift supervisor at a transport company. His hours of employment were approximately 3.30 pm to midnight Monday to Friday, although he sometimes worked as late as 3.00 am. He spent time with the child from approximately 11.00 am when he awoke until he left for work at around 2.30 pm. The father did not work on weekends and his free time was spent with the child. I accept that while he was at home the father was involved in every aspect of the child’s day to day care. Throughout this period the mother was also employed and worked variously full or part time as a customer service officer. When she was at work the father or maternal grandmother cared for the child. As I understood it there was no issue that the mother’s lesser working hours resulted in her being the child’s primary caregiver.
The parties separated in about September 1999 when the mother began a relationship with Mr W which continued for two years. The mother remained in the Macarthur area where she initially lived with her parents and then moved onto a couple of different homes. I accept Ms K’s evidence that during this period the mother substantially lived with Mr W. While I accept he may have also maintained a home base at his parent’s home the situation was that he predominately stayed with the mother and child. Following separation, the father spent three months in Queensland and then returned to live with his parents.
In the period immediately after separation and following the father’s return to the Macarthur area from Queensland, the mother did not make it easy for the father to spend regular time with the child. The father tried to organise to spend time with the child fortnightly, which would have been something towards being appropriate, but on average, the mother made the child available about every third weekend from Friday evening until Sunday evening. As has generally been the situation ever since, the mother insisted that the father collect and return the child, with her not being willing to accept that she could reasonably undertake some of the transport effort.
About six months after the parties separated, the father rented a room from Ms R in her home in Sydney’s western suburbs. She and the mother had been close friends from the time they started high school. Ms R met the father when the father started dating the mother. From the time he moved into her home when the child was in his care she also had regular contact with her. About twelve months after the father moved in with Ms R the nature of their friendship changed and they began an intimate relationship which continues. The father says they intend to marry in the near future.
As soon as the mother’s relationship with Mr W ended in 2001, she commenced a relationship with Mr U. Together with the child, they cohabited from sometime in 2001 through to about the end of 2002. As will be discussed later the mother’s relationship with Mr U was marked by severe family violence to which the child was exposed.
Not long after the mother separated from Mr U she moved with the child to a regional centre where she initially lived with Mr CR, who is a son of one of her cousin’s. The mother then lived with Mr P with whom she was in an intimate relationship. Whilst in regional New South Wales the mother also had a 5 – 6 months intimate relationship with Mr D. Mr D was known to the mother and Ms K to deal illegal drugs. While living in regional New South Wales the mother was employed at a Bank. This was a quite unstable period in the mother’s life and is where the child was living when she started school. After school the child attended after school care.
The parties were divorced on 17 January 2003.
In September 2003 the father’s and Ms R’s child, B, was born. At about this time the father and his partner sold her western suburbs home and moved to the central coast which is where they reside.
There were different versions about when the mother lived with Mr L. As I understood it within six months of the father moving closer to where the child lived the mother once again without seeking his input moved back to the Macarthur region. Once back in the Macarthur region the mother immediately moved in with Mr L with whom she commenced an intimate relationship. The child lived with them. Again, as will be discussed later the mother’s relationship with Mr L was marked by family violence to which the child was exposed. It is possible that the mother lived with Mr L immediately after her relationship with Mr A ended. It is beyond dispute that the features of the mother’s relationship with Mr L is as discussed and in my view nothing of any moment turns upon whether this was immediately before or after the mother’s relationship with Mr A.
By the middle of 2004, the mother’s relationship with Mr L had ended and she had moved in with Mr A with whom she had an intimate relationship. The child lived with them. The mother’s relationship with Mr A was marked by severe family violence to which the child was exposed.
Unknown to the mother on 25 March 2005 the Department of Community Services conducted a secondary risk assessment of the child. At that stage they had received three “child at risk” notifications which related to domestic violence in the mother’s home, six which related to drug abuse in the mother’s home and one which concerned alcohol abuse. In the event the department did not contact the mother.
In October 2005 the father and Ms R’s child, J, was born.
In November 2005, the mother and Mr A purchased a home together at M. This is where they resided with the child until he and the mother separated in late 2006.
In September 2006, the maternal grandparents approached the father’s parents and expressed concern for the child in her home environment. The maternal grandparents were particularly worried about violence in the mother’s home and the men with whom she associated. The father contacted the mother’s parents and met with them to discuss the child’s situation. Although the maternal grandmother denied it I am satisfied that she agreed with the father that the child should not remain with the mother and that he needed to intervene on the child’s behalf. By which they meant that he needed to take steps to remove the child, even if only temporarily, from the mother. The child stayed with the father from about 16 September 2006 to 25 September 2006. The father retained the child after which he spoke with the mother. In a telephone discussion the mother said the child could stay with him for about four weeks. I do not accept the mother’s evidence that she only agreed that the child could stay with the father until 22 September 2006. The father’s partner then enrolled the child at T Primary School. When the mother was informed the child had started school she decided to take her back. Without informing the father of her plans the mother, who was accompanied by the maternal grandmother collected the child when she alighted from the school bus on 25 September 2006 and took her home. When they were on their way home the maternal grandmother contacted the father’s partner, explained where the child was, and told her that the mother had decided she could not cope without the child.
In September 2006, the mother and Mr A separated. The mother and child remained at the M home.
On 23 October 2006 the mother filed an Application for Final Orders in the Local Court seeking, in summary, the following orders:
1.      That the child live with the mother.
2.      That the child spends time with the father every second weekend from 7.00 pm Friday until 7.00 pm Sunday, and during school holidays as agreed by the parties in writing.
3.      That the parties have shared parental responsibility for the long-term care, welfare and development of the child.
On 16 November 2006 the father filed a Response to an Application for Final Orders in the Local Court seeking, in summary, the following orders:
1.      That the child lives with the father.
2.      That the child spend time with the mother:
a)Each alternate weekend from 10.00 am Saturday until 5.00 pm Sunday if the mother is living with the maternal grandmother and the time she spends with the child is supervised by the maternal grandmother.
b)If the mother is not living with the maternal grandmother then each alternate weekend from 10.00 am Saturday until 6.00 pm Saturday and 10 am Sunday until 6.00 pm Sunday.
c)For five days during the NSW school holidays in terms 1, 2 and 3 provided that the mother is living with the maternal grandmother.
d)If the mother is not living with the maternal grandmother then for five days during the NSW, school holidays in terms 1, 2 and 3, such time to commence at 10.00 am and conclude at 6.00 pm each day.
e)For two periods of five days during the Christmas school holidays such time to commence at 10.00 am on the first day and conclude at 6.00 pm on the fifth day if the mother is living with the maternal grandmother, otherwise such time is to commence at 10.00 am and conclude at 6.00 pm on each day the mother is spending time with the child.
4.      That the mother be restrained from consuming drugs or alcohol within a 12 hour period prior to and during time she spends with the child.
5.      That the mother submits to fortnightly drug screens.
6.      Upon the mother providing four consecutive clear drug screens she would spend time with the child unsupervised.
The rationale for the father’s proposed orders vis-à-vis the child’s time with the mother and the injunctions was to minimise the risk to the child of exposure to drug abuse and family violence whilst in the mother’s care. On 16 November 2006, interim orders were made in the Local Court which provided that the child would live with the mother and spend time with the father each alternate weekend from 7.00 pm Friday until 7.00 pm Sunday. The father was to collect from and return the child to the mother’s home. An order was also made for the parties to share parental responsibility.
On 20 December 2006, the matter was transferred from the Local Court to the Federal Magistrates Court at Parramatta.
In February 2007, the mother was in a fight with a woman named KH, which resulted in the mother having a black eye. The mother did not know why she was attacked but surmised that the father was somehow behind the assault. The father denied any involvement. Ms K explained that KH was a friend of the mother’s former partner Mr D. She told Ms K that she had heard the mother had been saying bad things about her friend and assaulted her when she had he chance. I am satisfied the father was not involved in any way with the assault.
In March/April 2007, the mortgagee took possession of the mother’s home at M due to non-payment of the mortgage. Following her eviction, the mother refused to tell the father where she and the child were living. The father hired a private investigator who provided a written report and video surveillance. From these reports, the father deduced that the mother and child were living in a caravan on premises owned by Mr G with whom he believed the mother was in an intimate relationship. The mother denied that she and the child lived in a caravan, or that she was in a relationship with Mr G. It was her evidence that she stored her possessions at Mr G’s property, which explained why she was there daily. The father’s evidence that the mother was in a relationship with Mr G and living at his home lacked a sufficiently strong foundation to establish these asserted facts.
After the mother was evicted for a brief period she and the child lived with her parents and then her sister.
In May 2007, the mother’s parents sold their home in the Macarthur area and moved to a property which they owned in northern New South Wales.
In October 2007, the mother was charged and convicted of driving unlicensed, uninsured and unregistered. Her license was disqualified for 12 months and she received various fines totalling $970. Although the mother’s license had been suspended, she continued to drive, including on occasion with the child.
On 19 November 2007 interim orders were made by consent that the parties have equal shared parental responsibility for the child, the child live with the mother and spend time with the father two out of three weekends of each three week cycle from 7.00 pm Friday until 8.00 pm Sunday and half of school holidays. Orders were also made for the father to have telephone contact with the child between 8.00 pm and 9.00 pm each Tuesday and Thursday and on the Sunday that he was not with the child. The matter was transferred to the Family Court.
In January 2008, the mother and child commenced cohabitation with Mr N with whom the mother had an intimate relationship. The relationship and cohabitation continued for a couple of months.
After the mother’s relationship with Mr N ended, she and the child moved into different premises in the Macarthur area. They shared these premises with Mr O. The mother and Mr O were flatmates.
On 18 July 2008, orders were made for the preparation of a Family Report and interim orders were varied for the child to be returned at 10.00 pm on Sundays instead of 8.00 pm.
In September 2008, the mother and child moved into premises at M with Mr Y. Although the mother denied it as will be discussed later I am satisfied theirs was an intimate relationship.
On 16 October 2008, orders were made that from 19 November 2008, when the mother was eligible to resume driving, for her to be responsible for delivering the child to the father at his home at the commencement of each period of weekend contact and the father to return of the child to the mother’s home at the conclusion. It was also ordered that the parties each submit to urinalysis testing at least once per month approximately 30 days apart and the results of those tests be made available to the Independent Children’s Lawyer.
On 26 December 2008, the mother was supposed to collect the child from the father’s home at 10.00 am pursuant to court orders. The child was ready to be collected at 10.00 am and the father and the rest of his family were ready to leave for a social engagement. The father received a text message from the mother advising that she would not be able to collect the child until lunchtime. At around 11.45 am the father received a further text message from her to the effect that she would not be there until later in the day. The mother arrived at approximately 5.00 pm when there was an amicable changeover. However, 30 minutes later the father heard yelling in the driveway. He went outside to find that the mother had returned to his property. So that it is clear when the father came outside the argument between the two women was already underway and he did not see how it started or necessarily who pushed whom first. He observed them pushing each other and ran up to separate the two women. He directed the mother to leave which she did albeit continuing to yell abuse from her car as she departed.
The mother gave a different account of this incident. In her affidavit filed 2 April 2009, she made no mention of being late but in cross-examination conceded, she had not arrived until 5.00 pm. The mother was indifferent to the inconvenience she caused. I accept that after she first departed the child said the Christmas gifts she had received from the father remained at his home. It was the father and his partners practice that gifts they gave the child remained at their home. This stance was adopted after many instances over the years when the mother failed to return them. In any event, the mother and Mr W returned to the property. It is common ground that Ms R was outside. It appears also to be common ground that Ms R told the mother that the child’s presents would remain with them and she asked the mother to leave. The mother says that without provocation Ms R attacked her. She said Ms R pulled her hair, kicked, punched and slapped her. In a subsequent police statement, the mother made no mention of being kicked. Mr W was fairly sure that Ms R struck the mother first and that he saw her kick the mother on the bottom. According to the mother in her physical response, she did no more than defend herself. In her oral testimony, the mother said Ms R clubbed her with her forearm which action she described as “ridiculous”.
Ms R denied that she struck the mother first. She said the mother pushed her and she pushed her back and almost immediately, the father arrived and pulled them apart. The mother appeared quite unaffected by the incident when she gave evidence. Ms R was tearful and full of remorse. Her remorse was for being involved in an awful incident and one in which the child and her sons witnessed.
I have been unable to determine which of the women pushed the other first. If it was Ms R I am satisfied this type of behaviour is not her usual behaviour and resulted from the mother’s verbal aggression and refusal to abide her request that she leave the property. The mother’s late arrival was highly likely to have created considerable angst in the father’s home particularly given the time of year and that they had missed another engagement. The point being that the mother had pushed Ms R beyond endurance. On the other hand, the mother has demonstrated a capacity for considerable verbal aggression and has been involved in violent incidents. She loathes Ms R and it is quite feasible that when Ms R asked her to leave the mother pushed her. This would be consistent with the mother’s apparent lack of distress when she discussed this matter in her oral testimony. If Ms R pushed first she has the insight to reflect on her role in an ugly incident and is keen to do all within her power to stay out of the mother’s way. While the mother is not inclined to reflect on this incident in a constructive manner, she too is keen to avoid the father’s partner.

With the child, the mother then went to the T Police Station where she claimed she had been assaulted. Police attended at the father’s home and took statements. Police were unable to determine where the truth probably lay and took no further action.
The child was next due to spend time with the father for a block period from 31 December 2008. To avoid further difficulties the father’s solicitors wrote to the mother and suggested that rather than the mother attending his home it would be preferable that changeover occur at T Caltex service station in the future. No reply was received. The mother did not make the child available to the father on 31 December 2008.
In January 2009, police obtained an AVO protecting the mother from Mr Y and he was removed from the M home.
On 15 January 2009, the mother applied for an AVO at the Local Court against Ms R, in which she alleged that Ms R hit her numerous times in the head and hit the child. An interim AVO was made to protect the mother and the child from Ms R. A relevant effect of this restraint was that if the father wanted to see the child his partner could not be present. There was no proper basis for the mother’s inclusion of the child as a Protected Person in this application. The child’s inclusion was inappropriate and is likely to have been an opportunistic attempt by the mother to disrupt the father’s relationship with the child and perhaps also achieve a perceived forensic advantage in these proceedings.
On 29 January 2009 the AVO, proceedings were before the Court and the restriction on Ms R being in contact with the child was removed. There was thus no impediment to the father resuming contact with the child. The AVO proceedings have not yet been finalised.
The father was due to spend time with the child for the weekend, which commenced 31 January 2009. The mother refused to make the child available.
On 16 March 2009, the mother purchased a horse for the child.
The father’s proposed Minute of Order[5] is dated 1 April 2009. It is in summary to the following effect:
[5] Exhibit ‘B’
1.That the child lives with him.
2.That the parties have joint parental responsibility.
3.That the child spend time with the mother:
a)Each alternate weekend from 10 pm Friday until 10 pm Sunday.
b)For half of NSW gazetted school holidays in Terms 1, 2 and 3.
c)From 10 am on 2 January until 10 am on 16 January during the Christmas NSW gazetted school holidays.
d)Christmas Day in even numbered years.
4.That the mother be restrained from consuming illicit substances or alcohol within a 12 hours period prior to and during the time with the child.
5.That the mother submit to random monthly urine drug testing for 6 months, and if the mother provides a positive test result or fails to provide a test result then her time with the child is suspended until the mother can provide four clean screens over a period of two months.
On 3 April 2009 the mother filed a proposed Minute of Order[6]. Essentially the mother proposed the following final orders:
[6] Exhibit ‘A’
1.That the parties have equal shared parental responsibility.
2.That the child lives with her.
3.That the child spend time and communicate with the father:
a)The first and second weekend of a three week cycle commencing at 8 pm Friday and concluding at 8 pm Sunday.
b)For half of Term 1, 2 and 3 NSW gazetted school holidays.
c)From 10 am on 1 January until 8 pm on 21 January of every NSW gazetted Christmas school holidays.
d)By telephone each Tuesday and Thursday between 8 pm and 9 pm.
4.Both parties be restrained from using drugs or alcohol to excess within a 12 hour period to and during the time that the child is in their care.
On 12 May 2009, an order was made to evict the mother from her home. On the mother’s application that order was suspended.
On 14 May 2009, the child was thrown from her horse in relation to which she was hospitalised until 20 May 2009. Since then the father has spent time with the child at his mother’s home in the Macarthur region.

General Law in parenting cases

Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.
Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimum outcome. Where there are no countervailing factors the s 60B principles may be decisive. Section 60B is set out below.
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)      to have the support, opportunity and encouragement   necessary:
(i)         to explore the full extent of that culture, consistent                with the child’s age and developmental level and the                  child’s views; and
(ii)      to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.
Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its subsections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately, the weight attached to each factor is a matter for the Court’s discretion.
The sequence of determining parenting orders is important. If the Court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA). In the context of s 65DAA 'consider' means a consideration tending to a result, or to consider positively the making of an order. Goode and Goode (2006) FLC 93-286. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:
(1)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 or holidays; and
(2)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
(3)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.
The child’s best interests remain the overriding consideration.
Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above. Similarly, where the Court has decided against maintaining equal shared parental responsibility s 65DAA considerations do not apply.
By virtue of s 60CA, the Court will determine the weight to be given to the various factors, be they primary or additional considerations or considerations identified as issues arising in the particular case but not specifically referred to in the Act. In a similar vein the Court’s capacity to rebut the presumption of equal shared parental responsibility where the evidence satisfies the Court that it would not be in the child’s best interests refutes any notion that the Act elevates parents above others in parenting cases decided under the present Pt VII.

The mother’s circumstances

When this Division 12A hearing commenced the mother and child resided with Mr O in the Macarthur region. On 12 September 2008, the mother and child moved in with Mr Y, who was a former school friend, at premises they jointly rented at M. After the mother obtained an AVO against Mr Y and he was removed by Police the mother and child remained alone at the M property. This is a pleasant property[7] in which they live alone and in which the child has her own bedroom. For the property the mother pays $420 per week rent. At present the Consumer, Trader and Tenancy Tribunal has suspended, pending further hearing, an order that the mother give up possession of the property. When the hearing resumed the mother said she was about to commence casual work for Mr ES. At that stage, the mother had been unemployed for a few years and she said she was reliant upon Centerlink benefits of about $1720 per month and child support in the vicinity of about $512 per month for her and the child’s financial support. She was uncertain how much she might earn from Mr ES. The mother produced no documents which corroborated her evidence of employment I am not satisfied this will amount to anything. Notwithstanding the mother’s claim that she is a good financial manager on the available evidence, she cannot to afford to continue to pay rent at the rate required for the property at M. It is more likely the mother will remain in default in her rental obligation and unlikely she and the child will be able to remain living at the property for even the medium term.
[7] Exhibit ‘BB’
Since the parties separated, the mother has changed residence no less than 12 times. Overwhelmingly, the mother has lived in shared accommodation either with male partners or with male companions. She has known some of the men with whom she has resided quite well before moving in while others have been little known. Since the parties separated, the mother and child have variously shared homes with Mr A, Mr W, Mr N, Mr D, Mr U, Mr O, Mr Y, Mr P, Mr L, and her cousin Mr CR. Of these, the mother was in a relationship with Mr W (with whom she has repartnered), Mr U, Mr L, Mr D, Mr N, Mr Y and Mr A. Although the mother denied being in an intimate relationship with Mr Y they each told Police they were.
The mother’s relationship with Mr U, which lasted from 2001 to 2002 and Mr A, which lasted from 2004 to late 2006, were both marred by severe domestic violence by them to her often in the child’s presence. Each man had serious substance abuse problems; in Mr U’s case he used illegal drugs while Mr A used illegal drugs and alcohol. Indeed, the mother was so afraid of Mr U that after they separated her and the child moved to the Central Coast in order that the mother could keep her whereabouts hidden from him.
Ms K, who has known the mother for over a decade gave evidence concerning her observations of the various homes in which the mother and child resided. I put to one side her concerns about the apparent untidiness of the mother’s homes, as this is currently not an issue. More relevantly, Ms K’s evidence created a picture of the mother’s social milieu as substantially composed of her partners, flat mates and male friends. At the mother’s various homes, to which Ms K and her daughter were regular visitors, Ms K frequently observed drug paraphernalia (for example bongs), the mother and her friends smoking marijuana and even on school nights late night partying with “lots of fights and arguments.” Eventually Ms K decided it was unsafe to for her daughter, who is the child’s closest friend, to regularly spend time with the child at the mother’s home. In Ms K’s opinion the mother does not appreciate the risk to their daughters of having so many people through her home of whom the mother knows little or what she does know suggests a greater degree of caution is appropriate. With these observations I agree.
Ms K conceded that during much of the period in which she described this unsatisfactory living arrangement for the child in the mother’s home, she allowed her daughter to spend time there under the mother’s supervision, who was to Ms K’s knowledge herself using drugs. It was submitted on behalf of the mother that it was inconsistent for Ms K to allow her daughter to spend time in the mother’s homes if the situation was as she described. In essence, the point being that her daughter’s presence in the mother’s homes was consistent with the mother’s evidence that Ms K gave an exaggerated account of her home situation. Ms K explained that during this period, she too abused drugs, on occasion with the mother and she now regretted her earlier lax approach to her daughter’s safety. On balance, I am satisfied that Ms K’s evidence concerning the situation in the mother’s various homes should carry greater weight than the mother’s evidence on this topic. The effect of Ms K’s evidence is that the situation in the mother’s homes vis-a-vis drug use, violence and numerous drug or alcohol affected men coming through her homes created a grim setting for the child’s home life.
Although the mother said she would prefer that she and the child lived alone the reality is the mother is unable to afford the rental for a home of a reasonable standard in the Macarthur area on her own. It would be mere speculation to positively conclude it was likely the mother would obtain paid employment in the foreseeable future from which she earned a reasonable income. When the mother lost her driver’s licence in 2007, she also lost her job with a Bank. In her parenting questionnaire, the mother said she anticipated that she would return to the bank in September 2008. This did not happen and the mother effectively conceded it would not now occur. Even although the mother has considerable experience as a client service officer in the banking industry she has been unable to find work there. Thus, it is likely the mother will look for a flatmate or partner with whom she could share her rent. The mother was surprised when it was suggested to her she might contemplate expanding her search for flatmates to include females and in relation to prospective flatmates of whichever gender that she satisfied herself any prospective flatmate did not pose risk issues for her daughter. Regrettably, the probability is that the mother’s cavalier approach to this issue in the past will continue.
It would also involve speculation to conclude that the mother would complete tertiary studies and obtain employment in which she would utilise her qualifications. At this stage, the mother had paid $100 to enrol in a degree course. Internet based classes had not yet commenced. There is simply too much which is uncertain about the future to positively conclude the mother may graduate from her chosen course and/or commence some form of allied employment.
From the time she was in year 1 the child attended a Macarthur region Public School. The parties agreed the child had many friends at school and that she was happy there. The mother said it was her practise either to take the child to the bus stop or to deliver her to school, which is only about ten minutes away. It is the mother’s proposal that the child attend the local High School for which the Public School is a feeder school. Thus, the child would start high school with a reasonable number of her current friends. The mother intends to remain in the Macarthur region and it is her expectation the child would be able to catch a school bus. In her evidence, the mother created an impression that the child is actively involved in a large variety of extra-curricular activities. These included Anglican youth group, hip-hop dance and pony club. In a similar vein, the mother spoke of her active involvement as a parent helper at the child’s school. Cross-examination revealed that the mother’s evidence on this topic was considerably exaggerated as to the extent of her involvement at school and the extent of the child’s extra-curricular activities. Nonetheless, it is clear the child participates in a wide range of activities of sporting and musical activities at school and that from time to time the mother assisted as a parent helper at school. The child’s involvement in extra-curricular hip-hop dance and drama activities had all ceased. The mother and child share an interest in horses and they each have a horse, which is kept locally. The mother is a keen equestrian, which the child also shared. It is uncertain whether following her recent accident the child will be able to resume horse riding.

It is my expectation that by living with the father the child will come to appreciate that family violence is unacceptable. I would hope she would be able to inform the father if the situation qua violence in the mother’s life deteriorates. As a safeguard and so that the father knows where and hopefully with the mother resides the father will return the child to the mother’s home. She will be required to personally deliver the child to the father at the nominated service station. This will enable him to assess the mother’s sobriety. Structuring the ongoing changeover arrangements in this manner appropriately shares between the parties the travel effort and provides the mother with additional motivation to contribute to this aspect of the child’s care.
The structure of the remaining orders is otherwise self-explanatory. They enable both parties to celebrate special occasions and school holidays. The changeover times are adapted by reference to the child’s school commitments. Because the father must be involved in changeover the school term arrangements will commence at 5.00 pm. He finished work at 4.00 pm and thus will have time to collect the child at home and deliver her to T. The father will collect the child at 4.30 pm. This slightly earlier finishing time is designed to have her home at a reasonable time so that she is not tired for school the next day. So as to avoid disagreement during the Christmas school holidays the dates are fixed. I am conscious the nominated dates are likely to result in the child spending slightly longer than half of those holidays with the mother. However the structure ensures that the child is not subjected to too frequently making the journey between her parents homes and gives her the opportunity not only for a solid period of time with her mother but also with her maternal grandparents and friends.
Mother and father’s day are designed to have the child in the care of the relevant parent. I have not made provision for make up time if the effect is to that a parent misses a weekend because of the priority given to these special days. Rather I have taken a swings and roundabouts approach and am satisfied that over time any time lost would be likely to be regained.
Telephone communication is provided for at a time and frequency which should enable the child to feel she is in touch with her mother but is not so frequent that contact with the mother would be likely to make it harder for the child to settle in with her father.
For these reasons, I make the orders identified at the start of this judgment. I am satisfied they are in the child’s long term best interests.

I certify that the preceding one hundred and seventy one (171) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan.

Associate:

Date: 25 January 2010

[2010] FamCA 33

25 January 2010

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness

Remedies