Ortega and Leone

FEDERAL CIRCUIT COURT OF AUSTRALIA

ORTEGA & LEONE

[2017] FCCA 3115

Catchwords:
FAMILY LAW – Parenting – family violence – Drug use – parental responsibility.

Legislation:

Family Law Act 1975 (Cth), pt.VII

Starr & Duggan [2009] FamCAFC 115
McCall & Clark [2009] Fam CAFC 92; (2009) 41 Fam LR 483
U & U [2002] HCA 36

Applicant:

MR ORTEGA

Respondent:

MS LEONE

File Number:

NCC 82 of 2014

Judgment of:

Judge Middleton

Hearing date:

30 March 2017

Date of Last Submission:

30 March 2017

Delivered at:

Newcastle

Delivered on:

14 December 2017

REPRESENTATION

Counsel for the Applicant:

Mr Murray

Solicitors for the Applicant:

Toronto Legal

Counsel for the Respondent:

Mr Rugendyke

Solicitors for the Respondent:

Burke & Mead Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Wilkinson

Solicitors for the Independent Children’s Lawyer:

Winder Lawyers

ORDERS

That the child [X] (“the child”) born (omitted) 2011 live with the father.
The father shall have sole parental responsibility for the child.
In exercising the sole parental responsibility the father is to:
(a)Inform the mother in writing (including by text message or email) at least 28 days before making decisions about the following matters:
(i)Any change in the child’s school;
(ii)Any religious instruction the child receives whether at school or otherwise;
(iii)Any non-emergency surgery or serious medical treatment the child is to undergo;
(iv)Any proposed relocation of any more then 20km from his present residence;
(b)The mother shall respond to all such information, providing her views (if any) in writing (including by text message or email) within 10 days of receipt of the father informing her of the issue;
(c)The father shall consider the mother’s views in exercising his parental responsibility before making the final decision;
(d)The father will upon making a decision inform the mother of his decision within 48 hours of doing so.
That each party has responsibility for decisions as to the day to day care, welfare and development of the child whilst she is in their unsupervised care.
That the child will spend time with the mother as agreed, but failing agreement as follows:
(a)During the New South Wales school terms, each alternate weekend from after the conclusion of school Friday until the commencement of school Monday, commencing immediately and thereafter commencing on the second weekend after school term resumes in each instance provided that during any long weekend such time will extend to cover the whole of any such long weekend;
(b)On each Wednesday from the conclusion of school until the commencement of school Thursday;
(c)For one half of each of the New South Wales holidays, the first half in even numbered years and the second half in odd numbered years. Where there is any doubt, the holidays shall be calculated according to the last and first day of the term that enrolled students attend their specific school;
(d)Christmas Day:
(i)With the father from 2.00pm on Christmas Eve to 2.00pm Christmas Day in odd numbered years, with the mother from 2.00pm Christmas Day until 2.00pm on 26 December; and
(ii)With the mother from 2.00pm on Christmas Eve to 2.00pm Christmas Day in even numbered years, with the father from 2.00pm Christmas Day until 2.00pm 26 December.
(e)Easter:
(i)In each odd numbered year, with the mother commencing 11.00am Easter Saturday until 11.00am Easter Sunday and with the father from 11.00am Easter Sunday until 11.00am Easter Monday; and
(ii)In even numbered years, with the father commencing 11.00am Easter Saturday until 11.00am Easter Sunday and with the mother 11.00am Easter Sunday until 11.00am Easter Monday.
Changeover on non-school days shall be implemented as agreed, but failing agreement, by the parties or their nominees delivering and collecting the child from the (omitted) Service Station at (location omitted).
Both parties are to have contact with the child by telephone, Skype, Facetime or other electronic means when they are not spending time, such calls to occur on Tuesday and Saturdays between 6.00pm and 6.30pm, be originated by the party without the child and the spend time parent to ensure the child is available, able to take the call and given privacy during the call.
The child is permitted to have liberal, age appropriate communication by electronic means with either parent at any reasonable times and intervals. The parent with whom [X] is living or spending time with will facilitate such telephone communication with the other parent at the request of the child.
That each party provide such consents and authorities to allow any treating medical practitioner or practitioners to provide any medical report or report and discuss any treatment in relation to the child with both parties.
That both parties inform the other within 7 days of all medical and other appointments made on behalf of the child or any other matter of relevance to the child.
Each parent shall keep the other advised of all significant medical, dental and other therapeutic treatment arranged for the child and each shall be at liberty to attend any and all such appointments and consult with any person providing such treatment directly.
That each party or their nominee is to contact the other as soon as practicable upon the happening of any of the following:
(a)The child becoming hospitalised;
(b)The child being involved in an accident.
Each party is to provide such requisite consents and/or authorities that may be required by any school or extracurricular activity that the child attends, for each party to receive (at that party’s own expense) reports, photographs, order forms, newsletters and such other material as is normally communicated to parents of the children who attend.
Each party is at liberty to attend on and communicate with any person involved in any of the child’s educational, sporting or extracurricular activities irrespective of whether or not the child is presently living with that party.
Each parent shall be listed with each of the child’s school or pre-school as a person to be contacted in the case of emergency.
Each party is to follow the reasonable directions of any official or organiser at any of the child’s school, extracurricular activity or other event that the child is attending.
The parties will advise and keep the other party advised of their current residential address and contact details, including telephone number to be used to communicate with the child within seven days or prior to the child being in their care, whichever shall occur first.
That the parents are restrained from:
(a) Criticising or making derogatory statements about the other parent, their partner or their family in the presence or hearing of the child or permitting others to do so;
(b)Passing messages to the other parent through the child in any form except any communication book provided for in these orders.
Both parties are restrained from consuming illicit substances whilst the child is in their care, or within 72 hours of her coming into their care.
Both parties are restrained from consuming alcohol to excess whilst the child is in their care, or within 12 hours of her coming into their care.
These orders are sufficient authority for each party to obtain (at their cost) information in relation to the child from any medical professionals treating her.
These orders are sufficient authority for each party to obtain (at their cost) information (including notices, newsletters, reports, photographs and the like) in relation to the child from their pre-school/school or extracurricular activity.

NOTES:

A.That if a dispute arises between the parties over these orders in the future, that both agree to act with good will and attempt to resolve issues through professional mediation prior to taking legal action.
B.Consuming ‘alcohol to excess’ is taken to be any amount which would result in the parent being above the legal limit to drive a motor vehicle in the state of New South Wales.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 82 of 2014

MR ORTEGA

Applicant

And

MS LEONE

Respondent

REASONS FOR JUDGMENT

Introduction

This is a parenting application where both parties seek orders for their child [X] born (omitted) 2011.
The Applicant Father was born on (omitted) 1980 and was 36 at the time of trial. The Respondent Mother was born on (omitted) 1988 was 27 at the time of trial.
The Applicant lives at (address omitted) and the Respondent lives at (address omitted).
When the parties met in September 2009 the Applicant was 29 years old and the Respondent was 21 years old. They commenced cohabitation in (omitted) 2009 renting a unit at (omitted). The mother does not agree with the date of cohabitation stating that the parties commenced cohabitation in early 2011. The parties separated on a final basis in January 2013.
The child remained with the mother after separation.
The mother entered into a relationship with Mr J in June 2013.
The child spent alternate weekends with her father from July 2013. On 3 August 2013 the father self-admitted to Hospital A with mental health/substance abuse and gambling issues.
On 8 December 2013 the mother refused any further time. The Father filed his initiating application seeking a live with order on 14 January 2014.
On 5 February 2014 orders were made by consent for the child to live with the mother and spend alternate weekends supervised by the paternal grandparents with the father.
On 15 June 2014 the father removed the child from the mother's care. The child has lived with the father since that time.
On 14 May 2014 the mother gave birth to her second child [C] who is fathered by Mr J.
On 28 June 2014 the mother ceased a relationship with Mr J. On 30 June 2014 the mother reported domestic violence to police perpetrated by Mr J and she relocated to the maternal grandparent’s home.
In July 2014 the mother commenced a relationship with Mr B. During that month a brick was thrown through the mother's bedroom window and the mother thereafter relocated to a women's refuge.
On 18 July 2014 consent orders were entered into whereby the child lived with the father and spent alternate weekends and day time on the following Wednesday, Tuesday and Thursday of the off week.
It was further ordered that the mother have no contact with Mr J and the father was to live with the paternal grandparents.
On 20 October 2014 further orders were entered into by consent allowing for the child to spend birthday time with the mother and for the mother to relocate from the women's refuge.
On 9 November 2014 the mother was assaulted by Mr B and on 19 January 2015 an Apprehended Domestic Violence Order was granted protecting the mother from Mr B.
On 2 July 2015 the mother attended the Federal Circuit Court in the matter of (omitted) & Leone and orders were made for [C] to live with the mother, sole parental responsibility to the mother and for the child to spend no time with Mr J.
Both parties allege drug use by the other parent and on 29 September 2015 the mother returned a urinalysis testing positive for amphetamines.

The issues

The issues are as follows:
1)With whom the child should live;
2)The amount of time the child should spend with the non-live with parent;
3)Whether drug use poses an unacceptable risk of harm to the child in either parent's home; and
4)Whether the child will be exposed to family violence in either parent's home.

The orders sought

The father set out the orders that he sought in his Amended Initiating Application filed on 15 July 2014.
On 30 March 2017 the father amended his Initiating Application once again. At the time of trial the father sought the following orders:
1)that the child live with the father;
2)the father have sole parental responsibility for the child;
3)the child spend time with the mother as follows:
a)   from after school or 3.30pm Friday until before school or 9.00am Monday;
b)     half of all school holidays;
c)     alternate Christmas and Easter time;
d)     on special occasions including the mother's birthday and the child's birthday;
e)     after school Wednesday until before school on Thursday in the off week.
The father sought further ancillary orders as follows:
a)   that the mother be restrained from allowing Mr J or any other person of concern to the Department of Child Safety to be present when [X] is spending time with her;
b)     that the parties be restrained from using or being affected by illicit substances at all times that the child is in their care;
c)     that the parties be restrained from being affected by alcohol above the prescribed driving limit if the child is in their respective care;
d)     that the Independent Children's Lawyer remain appointed for a period of 12 months from the date of the final orders;
e)     that the Independent Children's Lawyer be at liberty to request either or both parents to undergo any testing for illicit substances;
f)   that in the event the mother fails to observe and follow the orders that all time that the child spends with the mother be suspended.
The mother set out the orders she sought at attachment “A” of her Amended Response to Initiating Application filed on 13 May 2016 as follows:
1)That the mother and the father have equal shared parental responsibility for the child [X] born (omitted) 2011 (referred to herein after as ‘the child’) with respect to long term decisions in relation to the child’s care, welfare and development including, but not limited to:
i)The child’s education
ii)The child’s religious and cultural upbringing
iii)The child’s health
iv)The child’s name
v)Changes to the child’s living arrangements in the event that they impact upon one parent’s ability to spend time with the child.
2)That the child live with the mother.
3)That until such time as the child commences formal schooling, the child spend time with the father as follows:
i)In week one from 3pm Friday until 9am Monday and each alternate weekend thereafter;
ii)In week two, 4pm Wednesday until 4pm Thursday and each alternate week thereafter.
4)That, upon the child commencing formal schooling, the child spend time with the father as follows:
i)During school terms, each alternate weekend from after school on Friday until before school on Monday;
ii)During school terms, each and every Wednesday from after school until commencement of school Thursday.
iii)During school holiday periods for half of the April, July and September public school holidays, such halves to be agreed between the parties and in the absence of agreement for the second half of each of these school holiday periods.
iv)During the Christmas holiday period week about as agreed between the parents and failing agreement for a period of seven (7) days from 10am on the first Saturday of the Christmas school holiday period until 10am the following Saturday and each alternate week thereafter until the conclusion of the Christmas School holiday period.
v)For the purpose of these orders the school term and the Christmas school holidays are deemed to commence at 10am on the first Saturday after the public school term ceases and conclude at 10am on the Saturday immediately preceding the recommencement of school and changeovers shall occur at 10am on the Saturday that represents the middle of the defined school holiday period.
vi)In the event that the father’s weekend falls on a long weekend including a Monday then time shall be extended to 5pm on Monday. Alternatively, in the event that the Father’s weekend falls on a long weekend including a Friday then time shall commence at 5pm on Thursday.
vii)Such other time as may be agreed between the parties.
5)Notwithstanding any other orders herein, the child shall spend occasions of special significance with each of the parents as agreed in writing and failing agreement as follows:
i)With the mother from 4pm Christmas Eve until 4pm Christmas Day in each odd numbered year and from 4pm Christmas Day until 4pm Boxing Day in each even numbered years;
ii)With the father from 4pm Christmas Day until 4pm Boxing Day in each odd numbered years and from 4pm Christmas Eve until 4pm Christmas Day in each even numbered years;
iii)With the father from 9.00am to 6.00pm on Father’s Day each year;
iv)With the mother from 9.00am to 6.00pm on Mother’s Day each year;
v)On each child’s birthday the child spend time with the parent with whom they are not otherwise living or spending time with at the time for a period of 3 hours at times to be agreed and failing agreement from 4pm-7pm in the event that the child’s birthday falls on a week day/school day and from 3pm -6pm in the event that the child’s birthday falls on a weekend day.
6)That for the purpose of implementing these Orders, where relevant, changeover shall occur with the Father collecting the child from school at the commencement of time and return the child to school at the conclusion of time. At all other times, changeover shall occur as agreed in writing by the parents and failing agreement with the parents to deliver the child to and collect the children from (omitted).
7)That in the event the child suffers a serious illness or injury, is admitted to a hospital, undertakes any emergency medical treatment or received specialist medical attention, then the parent with whom the child is living at the time notify the other parent as soon as reasonably practicable and provide details of the treating doctor or like professional and that other parent is at liberty to visit the child daily during such hospitalisation period.
8)That the father be permitted to liaise directly with the child’s treating doctor(s), hospital and/or other health care professionals to obtain any information he requires about the child’s medical history and treatment and the father is to forthwith authorise the medical practitioner(s) in writing to facilitate this no later than 7 days after the date of these orders and these orders are sufficient authority for that purpose.
9)That each parent is hereby restrained from making critical or derogatory remarks in relation to the other parent or other member of their household in the presence or hearing of the child and that each parent shall do all things reasonably necessary to ensure that no other member of their household or family makes critical or derogatory remarks about the other parent in the presence or hearing of the child.
10)That each parent is at liberty to attend the child’s day-care, preschool and school functions and obtain all details from the child’s pre-school and school including reports and school photos and these orders are sufficient authority for that purpose.
11)That each parent forthwith take whatever steps necessary and give whatever authority is required to enable the child’s school to provide to each parent any information about the child’s progress including school reports, or notice of any school and sporting activities and these orders are sufficient authority for that purpose.
12)That each parent notify the other of their residential address, landline telephone number and mobile number within 7 days of the date of these orders, and keep the other parent advised of any proposed changes to the above details in writing by prepaid post within 14 days of any proposed changes.
13)That the parents are hereby restrained from using any illicit drug during time spend with the child or within 12 hours prior to time spent with the chid.
14)That the mother shall be and is hereby restrained from causing or permitting the child from being in the presence, hearing or sight of Mr J.

The Independent Children's Lawyer had not settled on a set of orders at the time of trial, however by the conclusion of the trial the Independent Children's Lawyer made submissions that supported the father’s application.
The father at the conclusion of the trial sought an order for equal shared parental responsibility and that the child spend time with the mother each Wednesday from after school until before school Thursday.

The material

The father relied upon the following:
1)Amended Application filed 15 July 2014;
2)Affidavit of the father filed 27 April 2016;
3)Affidavit of the paternal grandfather filed 25 May 2016;
4)Affidavit of paternal grandmother filed 25 May 2016;
5)His Case Outline dated 3 June 2017.
The mother relied upon the following:
1)Amended Response filed 13 May 2016;
2)Affidavit of herself filed 13 May 2016;
3)Family Report dated 5 November 2015;
4)Her case outline filed 3 June 2016.
The Independent Children's Lawyer relied upon the following:
1)Case Outline filed on 3 June 2016;
2)Family Report dated 20 May 2014; and
3)Family Report dated 5 November 2015.

The evidence

The father

The father gave evidence that after a de facto relationship was commenced in 2009 the parties lived at (omitted).
It is the father’s evidence that both he and the mother cared for [X] from birth equally. The father admits that he used drugs during the relationship together with the mother “once in a blue moon".
It was the father’s evidence that he and the mother consumed “ice" together prior to [X] being born approximately once every 2 to 3 months.
The father said that once the child was born that he and the mother consumed ice together approximately 6 times.
The father denied any domestic violence during the relationship.
The father said that after separation he and the mother shared the care of [X] in a week about arrangement.
The father said that he became aware that the mother had commenced a relationship with Mr J and that he was aware that Mr J had been incarcerated for 2 years after (omitted).
The father said that in December 2013 the mother unilaterally ceased his time with the child and that thereafter he commenced proceedings immediately in the New Year.
In February 2014 orders were made by consent for the child to spend each alternate weekend with the father.
The father said that in June 2014 he attended a changeover. On that occasion the maternal grandparents attended as the nominee for the mother.
His evidence is that the maternal grandmother told him that he needed to keep the child with him as there had been an incident and the Department of Child Safety had been involved. The father said that he was told that Mr J had driven his car into a car driven by the maternal grandmother whilst the child was in her car.
The father said that the maternal grandfather then spoke to him and told him to retain the child because Mr J had “bashed” the mother and it was not the first time that it happened in front of the child.
The father decided to withhold the child as a result of those conversations.
On 18 July 2014 the parties attended Court and, by consent, orders were made for the child to live with the father and spend time with the mother.
It is the father’s evidence that the mother has been involved in two relationships that were marked by domestic violence. He says that the mothers second partner Mr B had also assaulted her and that an Apprehended Domestic Violence Order was granted protecting the mother from Mr B.
The father said that the mother denied being in a relationship with Mr J but points out nevertheless the mother conceived a child to him. The father gave evidence that Mr J was subsequently convicted and jailed for the assault upon the mother.
The father said the mother is a risk to the child because she cannot stop taking drugs. He points out the fact that the mother returned a positive drug test, for amphetamine use, on 29 September 2015.
The father gave evidence that he had concerns that the mother had involved the child in the proceedings because the child told him that “when I go to the doctor, they are going to ask me whether I want to live with mummy or daddy".
The father’s evidence is that the child is well settled in his home. He further gives evidence that he encourages and facilitates a relationship between the child and her mother.
The father said that he lives with his parents in a large property with all the usual amenities and that the child has her own room.
The child attends the local (omitted) School.
The father gave evidence that he intended to return to work once the child commences school.
Under cross examination the father agreed that the child enjoyed spending time with her mother.
The father’s main concern was that the mother could not protect the child from Mr J in circumstances where he had been jailed twice over assaulting women, including stabbing one, and the mother has a child to Mr J.
The father conceded that if he had his way the child would not spend time with her mother because he did not “want [X] to grow up like her mother" .
The father stated that he had warned the mother against a relationship with Mr J and that she had told him in no uncertain terms to go away. He was, as a result, not convinced the mother can or will protect the child from a domestic violence situation.
The father conceded that the child loves her mother and also that in his home he has photographs of the mother and DVDs of the mother that the child watches.
The father was cross-examined about his drug use and he said that every drug test he had been asked to do he had complied with and passed. The father acknowledged past drug use and became quite upset that his drug use was being raised.
The father said under cross examination that he did not like the mother, did not care about the mother's story and he did not care about what the mother thought was in [X]'s best interests. He said the mother was a good mum but he did not care about her views regarding [X].
The father acknowledged that he had made unilateral decisions regarding swimming lessons and schooling notwithstanding that there was an order in place for equal shared parental responsibility.
The father was adamant that he would do whatever it took to protect his child from Mr J.
The father conceded that he commenced using marijuana when he was 12 and that he commenced using ice approximately 5 to 6 years prior to trial. He said that at no stage when he was seeing [X] was he under the influence of amphetamines however.
The father was cross-examined as to whether he intended to leave the paternal grandparents home. He said he had no intention to do so as it was the child's home and pointed out that the child had lived in that home since she was two.
The father conceded that if orders were made for [X] to live with him and spend alternate weekend, half holidays, Christmas, Mother's Day's, and birthday time with the mother that that would be fine.
Overall the father impressed as a very honest witness who at times became frustrated and angry whilst being cross-examined. I was overall impressed with the father’s evidence and formed the view that he was very protective of his child and honestly believed that he had done everything he possibly could to protect the child from harm in the care of the mother.

The paternal grandmother

The paternal grandmother was cross-examined after providing an affidavit in support of her son.
She gave evidence under cross examination that there was absolutely no problem with her son's care of the child and that he is present in the home with the child approximately 95% of the time.
It was the paternal grandmother’s evidence that she intended to retire in 2018 so as to be available for the child before and after school.
It was her evidence that the mother and father are always at loggerheads and that when there is a disagreement it is the mother who usually “hits the roof".
The paternal grandmother agreed that the father had spoken about Mr J with her and that he was “worried sick for [X] if Mr J gets back on the scene".
The paternal grandmother gave evidence that she was aware that her son had taken drugs, that he had commenced when he was 14, and that the drugs included cannabis, speed and ice.
It was the paternal grandmother’s evidence that once the child was born the father reached a turning point in his life as a result.
The paternal grandmother conceded however that she was unaware the father had been using drugs in December 2013 until just before Court in February of 2014.
When cross-examined as to whether the paternal grandmother knew the father was using drugs she said that she was aware of the effects. She had seen his mood change and that he would become aggressive. She said that she spoke to him about his drug use.
The paternal grandmother was adamant that the father had “kicked his habit" as she knows he no longer has mood swings and that he is very different in his demeanour now.

The paternal grandfather

The paternal grandfather was cross-examined after providing an affidavit in support of his son.
The paternal grandfather agreed that he noticed aggression and that the father was sleeping a lot at the time that he was using drugs.
The paternal grandfather said that he is cordial with the mother. He believes that she tried her best but he didn't think that her best was good enough.
It was his view that there is both a danger and a benefit in the child having a relationship with her mother and that the danger outweighs the benefit in terms of how often the child should see the mother.
The paternal grandfather was concerned that there would be any overnight time because he believed daytime only would minimise the risk to the child.

The mother

The mother provided evidence that she was the primary carer for the child during the relationship. It was her evidence that the father worked doing track work six mornings a week from 4am to 9am and three afternoons a week from 2pm to 4:30pm. Her evidence was that the father would come home, play with the child for a short time and then fall asleep. It was her evidence that the father would be at the race track on a number of Saturdays and stay there all day.
The mother gave evidence that the father had a gambling addiction. The father conceded he did have a gambling addiction however his evidence was that the gambling was under control and he only gambles very lightly now.
The mother gave evidence that the father had an alcohol and drug problem and that she on a number of occasions had used ice socially. It was the mother’s evidence that she was an occasional drinker and that she did not use any drugs while she was pregnant with [X].
The mother said post separation the child lived with her and she agreed to an equal time arrangement but subsequently formed the view that the arrangement was too disruptive for [X].
The mother said that she found it very difficult to communicate with the father.
The mother agreed that on 18 July 2014 she entered into interim parenting orders that provided for the child to live with the father on the condition that the father lived with his parents at their family home.
The mother provided evidence that she was in a relationship with Mr J from June 2013 until 28 June 2014 and that there is a child of that relationship, [C] born on (omitted) 2014.
The mother conceded that when the proceedings were originally commenced she was not truthful about the family violence in the relationship with Mr J. She says she lied because she was scared and that she was “literally fearful for my life while I was in the relationship with Mr J".
It was the mother’s evidence that on the day that the child [C] was released from hospital she was visited by two caseworkers from the Department of Family and Community Services and two police officers. They informed her of a Safety Plan that needed to be put in place to protect [C].
The mother had at that stage not made any disclosures to the Department or the Police about incidences of family violence and it is her understanding that others did so to protect the child. The mother gave evidence that it was her understanding that if she did not agree to the Safety Plan, the Department of Family and Community Services would remove [C] from her care.
The mother gave evidence that in mid-June 2014 she had another appointment with the Department of Family and Community Services. She had still not made any disclosures about family violence and on that basis the Department permitted her to move back into the house with Mr J. It is the mother’s evidence that within one week the violence recommenced.
The mother gave evidence that on 30 June 2014 she made an appointment with the Department as she did not want to expose [C] or [X] to Mr J's domestic violence.
On that occasion the mother disclosed the violence to the caseworker at the Department and also made a report to the Police. Thereafter the mother filed an Affidavit on 9 July 2014 in this Court where she set out the details of the family violence.
The mother gave evidence that she moved back into her father's home and that during the night the passenger-side window of her car was smashed and a brick was thrown through her bedroom window whilst she was sleeping with the child. Her evidence is that glass from the window shattered and fell over the child [C]. Thereafter the mother moved to a refuge where she lived for approximately 6 months.
It is the mother’s evidence that she completed ten two-hour sessions of the “woman to woman” program. It is her evidence that the sessions focused on the following areas:
a)the arena of healing;
b)functional and dysfunctional family dynamics;
c)coping strategies of the child and adult;
d)denial and anger;
e)rebuilding after grief and loss;
f)the influence of shame;
g)overcoming co-dependency;
h)sexuality and intimacy;
i)forgiveness, letting go; and
j)stepping into the future.
The mother annexed a copy of the Certificate of Completion of that programme to her Affidavit.
The mother also annexed a Certificate of Completion for the PPP seminar series.
The mother also sought a referral to a clinical psychologist.
Annexure “D” to the mother's affidavit is a psychological report from Mr D, clinical psychologist.
The report from the clinical psychologist sets out that the mother presented because of “fear for safety of self, children, relatives and friends due to ex-partner Mr J, now and in the future".
At the first session on 8 September 2014 the clinical psychologist notes that the mother may be suffering from major depressive disorder, features of post-dramatic stress disorder secondary to domestic violence, meth-amphetamine use disorder (noting the mother commenced at the age of 22 and that there was recent abstinence assisted by monthly drug and alcohol testing for the Federal Circuit Court).
The notes reveal that the mother moved from the women's refuge due to harassment by Mr J. As at 29 January 2015 the mother's personal safety was still an issue.
The psychologist notes that the mother's brother was currently serving a 6 year sentence for serious offences relating to his addiction to methamphetamine. The notes continue that the mother's parents separated when she was 13 and that her partners since her age of 16 have all been drug involved with varying degrees of maladjustment including unemployment, pathological gambling, criminal behaviour and mental health issues.
It was the clinical psychologist’s view that perpetuating factors impacting on her adjustment included the stress of the Family Court proceedings concerning [X] and the likely prosecution of Mr J for assaults committed upon the mother.
The mother said that she had attended courses for drug and alcohol counselling on 5 September 2014, 12 September 2014, 26 September 2014 and 10 October 2014.
It is the mother’s evidence that the attendance of the courses and psychological treatment heightened awareness regarding the impacts of family violence.
The mother pointed out that on 2 July 2015 orders were made for the child [C] to live with her and to spend no time with her father Mr J.
The mother denied any suggestion that she had a propensity to enter into violent relationships.
Her evidence is that she was not in a relationship with Mr B. She concedes however that she was sexually intimate with Mr B on a number of occasions and that there was an incident on 9 November 2014 when she had attended Mr B's house.
On that occasion she says Mr B became verbally aggressive towards her and that he threw a wallet at her and pushed her to the ground.
The mother says she immediately reported the incident to the police and attended (omitted) Police Station and provided a statement to the Police and as a result of an Apprehended Domestic Violence Order was issued for her protection on 19 January 2015. The mother says she has had no communication or contact with Mr B since 9 November 2014.
With respect to drug and alcohol use the mother gave evidence that she had not used drugs on more than four separate occasions since her separation from the father.
The mother acknowledged of course that she returned a positive drug test for amphetamines on 29 September 2015 and says it was “a small amount of ice".
The mother gave evidence that she attended (omitted medical centre) to obtain a further referral to receive some counselling.
The mother gave evidence that she had not used ice since the incident on 29 September 2015.
The mother conceded in her Affidavit that she was still taking antidepressant medication that helps with anxiety.
The mother conceded that she did not undergo a drug test requested on 2 May 2016 and says she did not do so because she could not afford it.
The mother had just prior to filing her trial affidavits moved into a two-bedroom villa.
The mother was concerned that both her children should live together so that they could enjoy the sibling relationship.
It is the mother’s evidence that the father has never been solely responsible for meeting or providing for the child's needs.
The mother concedes that it is very difficult to communicate with the father.
The mother was cross-examined and conceded that on the first day of trial she used “ice” and that she would have been under the influence of the drug on the first day of trial because she had used it in the early hours of the morning.
The mother said she used “ice” because “I had a lot of things going on". It was put to her that there would always be things going on and nothing could prevent her from using in the future and the mother said "yes I'm doing counselling".
It should be noted that the mother gave evidence in her Affidavit that she received a good deal of counselling over quite some period of time in relation to both drug and alcohol issues and that she sought further counselling in September 2015 because of amphetamine use. I was not convinced that the mother had addressed her drug use at all.
The mother conceded that Mr J had contacted her after his release from prison and after the Apprehended Domestic Violence Order had lapsed.
Her evidence was that she contacted the Police and they informed her that she could not get another Apprehended Domestic Violence Order because Mr J did not threaten her during that telephone conversation.
The mother said under cross-examination that she did not believe the father could properly care for the child and that she was concerned that the paternal grandparents were having too much influence on the child's life.
The mother conceded that she and the father could not agree on anything.
The mother said that she had no concerns about the child's upbringing in the father's care but was concerned that the paternal grandparents do most of the child raising. The mother conceded that the child is well cared for, happy and well-adjusted with a “joy for life.”

Overall I was concerned that the mother was a dishonest historian who minimised her drug use and clearly lied in Court about it. She had previously lied about her relationship with Mr J claiming that it was a positive relationship. The mother had also lied in her trial Affidavit where she said that she had not used drugs whilst either child was in her care (see paragraph 73). Clearly with the mother’s admitted drug use that cannot be an honest answer.
I was left with the impression that the mother still struggles with her drug addiction and that despite the fact that she had been seeking counselling she still used drugs, including on the first day of trial.

The family consultant

The Family Consultant prepared three reports that were in evidence. Under cross-examination after being taken to the courses that the mother had engaged in she was asked whether her concerns regarding the mother were alleviated. Ms C said “I still have some concerns, it is not as high as it was when I did the report however.”
In relation to the siblingship between [X] and [C] the Family Consultant said that she did not think that the children would miss each other as they had not had the shared experience of growing up together.
Her evidence was that the children may think that their relationship is normal having regard to their lived experience. She said, however, that it was a matter for the Court as to whether it was in [X]'s best interests to grow up with her sister or not.
The Family Consultant did not support the father’s orders as sought in his Amended Initiating Application to the extent that those orders sought very minimal time between the child and her mother.
When asked as to who was the greater risk as between the father and mother it was the Family Consultant's view that the mother still posed the greatest risk to the child.

Submissions

The father’s submissions

The submissions on behalf of the father emphasised that the child had spent more than half of her life with the father, that she was in school, that she had peers that she was familiar with and as a result she had established a lifestyle and routine in the father's care.
In relation to drug use submissions made conceded that the father had missed one test in March however emphasised that there was nothing in the father's behaviour, as witnessed by his parents with whom he lives, that would suggest he was using drugs and all other test results had proven negative.
It was submitted that the mother used ice as a reliable way to deal with a problem and evidence of that fact comes from the fact that she used on the first day of the trial.
In relation to the child’s sibling relationship it was submitted that the orders sought by the father would not adversely impact upon the established relationship and indeed the relationship would grow as a result of the final proposal put to the Court.

The mother’s submissions

It was submitted that an order for equal shared parental responsibility would not mean anything because the father would continue to make unilateral decisions.
It was further submitted that the Court could not rely upon the father's proposal because he would not comply with it as his evidence was to the effect that he would make decisions for the child and he would decide how much time the child would spend with the mother.
It was submitted that the Court should note that the father refused to do a parenting after separation course notwithstanding one was ordered and that the Court should note that the father considered he did not need to learn anything about parenting as this was the evidence he gave under cross-examination.
It was submitted that the father will not comply with orders.
With regards to drug use it was submitted that both parents are a risk in equal measure.
It was submitted that the attitude towards the mother in the father's home was negative, bordering on contempt, and that this would have long term and far reaching effects on the ability for the child to have a meaningful relationship with her mother in the event that the child lived with her father.
It was submitted that notwithstanding that the Family Consultant was of the view that the child’s living arrangements provide for stability, that greater emphasis should be placed on the need for the child to have a meaningful relationship with her mother and that this cannot occur in the father's home and this consideration should outweigh any benefit gained from the stability.
Finally it was submitted that if the child was required to change school by living with the mother that there would be no concerns raised for the child.

The Independent Children's Lawyer's submissions

The Independent Children's Lawyer had concerns about the father committing to promoting a meaningful relationship with the mother.
It was submitted that both parents have a significant history of drug use however the father has continued to provide negative screens.
The Independent Children's Lawyer emphasised that the paternal grandparents provide a greater aid to supervision and monitoring of the father's behaviour.
The Independent Children's Lawyer submitted that the mother could not be relied upon in relation to her reporting of her drug use and pointed to the positive drug test results and the admission that she had used ice on the first day of trial and whilst pregnant with her daughter [C].
The Independent Children's Lawyer submitted that it was disturbing to see that the mother was unable to resist using ice knowing that she was to appear in Court for a final hearing and knowing at that time that her drug use was very much a live issue in the case.
It was Independent Children's Lawyer’s submission that the Court could not be satisfied that the mother would not relapse into future drug use.
In relation to the risk of the mother entering into a relationship marked by family violence the Independent Children's Lawyer submitted that the mother was in a very dangerous relationship with Mr J and that she ultimately took all steps available to her to protect herself.
The submissions emphasised that as soon as Mr J contacted her after his release from prison and after the Apprehended Domestic Violence Order had lapsed she again contacted the Police to report the matter and blocked calls from Mr J's phone number.
In relation to her relationship with Mr B it was submitted that this involved a one-off assault being committed on the mother and she took immediate steps to remove herself from that relationship and seek an Apprehended Domestic Violence Order.
In those circumstances it was submitted that there was no real risk of the mother entering into a relationship marked by family violence in the future particularly having regard to the extensive courses that the mother has done and provided evidence of completing.
The Independent Children's Lawyer submitted that the child had maintained a meaningful relationship with both parents despite the allegations and counter allegations.
The Independent Children's Lawyer ultimately supported the father's case with regards to the live with and spend time with arrangements and also sought an order for equal shared parental responsibility.

Assessment of the evidence

This is a parenting application and as a result the provisions of Part VII of the Family Law Act apply.
It is the child's best interest that is my paramount consideration (section 60CA). I am guided by the objects and principles set out in section 60B.
When considering orders that are in the child's best interest I must have regard to the matters set out in section 60CC. I must also have regard to section 61DA and in the event that I make an order for equal shared parental responsibility have regard to section 65DAA.
In Starr & Duggan[1] the Full Court said:
“the legislation does not mandate consideration of the relevant sections in any particular order".
[1] [2009] FamCAFC 115
I am of the view that it is appropriate to approach the legislation provisions in this order:
a)First make findings concerning the relevant section 60CC factors;
b)Then consider the presumption in section 61DA having regard to any findings of abuse or family violence in the findings made in relation to section 60CC with regard to the best interest principles;
c)If an order is made for equal shared parental responsibility, then consider whether equal time with both parents is in the child's best interests and reasonably practicable;
d)If the answer to the above enquiries is in the negative then consider whether it is in the child's best interests and reasonably practicable for her to spend substantial and significant time with each of her parents.
There is a clear legislative intent that children have the benefit of both of their parents having a meaningful involvement in their lives to the extent that it is in their best interests for this to occur.

The legislation

In McCall & Clarke[2] the Full Court said:
‘The third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in the child's best interest, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach").
‘we conclude that the preferred interpretation of benefit to a child of a meaningful relationship in section 60CC(2)(A) is “the prospective approach" although, depending upon factual circumstances, the present relationship approach may also be relevant’.
[2] [2009] Fam CAFC 92; (2009) 41 Fam LR 483.
It was the Family Consultant’s view in the final Family Report that the child had a strong and positive attachment with both her mother and her father.
Both parents agreed that the child had developed a meaningful relationship with each of them. Both parents acknowledged that it was important for the child to continue to have a meaningful relationship with her parents provided it was safe to do so.
I must examine whether it is in the best interests of the child for her to have a meaningful relationship with both the parents.
In determining whether it is in the child's best interests to have a meaningful relationship I must of course consider the other primary consideration contained within section 60CC (2)(b).

The need to protect the child from physical or psychological harm, from being subjected to or exposed to, abuse, neglect or family violence

The very real issues in this matter are the potential for risk in the father's home as a result of his drug use and in the mother's home as a result of her drug use and being exposed to relationships that involve family violence.

Family violence

The evidence that I have set out previously satisfies me that the mother had vulnerabilities around choosing appropriate partners. The psychological evidence from her psychologist supports the notion that the mother has struggled with relationships as a result of her parents’ separation and her involvement in unhealthy relationships from the age of 16.
It is clear that the mother was involved in a very dangerous relationship with Mr J with whom she had a subsequent child [C]. It is not in contest that Mr J is a very real danger to the mother and to people who associate with the mother including her children.
The issue however is whether the mother has taken appropriate steps to mitigate against that risk.
The mother has provided significant evidence as to the steps she has taken and the courses she has undertaken to assist her in identifying the risk of family violence in a relationship.
The evidence satisfies me that she has learnt from that education and experience. I am so satisfied because the fact is that when she was in a relationship (however serious it was) with Mr B, immediately upon him becoming violent with her she ceased all contact and made a report to the Police and obtained an Apprehended Domestic Violence Order.
Furthermore as soon as Mr J contacted her after his release from prison she immediately blocked calls from his number and reported the matter to police.
I am satisfied that the mother has learned from her past mistakes and from the education she has received and that the risk of her entering into a relationship where family violence is a feature is very, very low such that it does not pose an unacceptable risk to the child.
The evidence establishes that when the father was involved in drugs he was at times aggressive and he did engage in behaviour that would fall within the category of family violence as defined in the Family Law Act within the home of his parents.
The evidence further establishes however that this behaviour is a thing of the past and I am satisfied that the risk of him engaging in that behaviour is very low and almost non-existent currently.
I was persuaded by the evidence of his parents that he has indeed changed many aspects of his life as a result of having the care on a full-time basis of his daughter.

Drug use

The evidence establishes a long history of drug use for both parents.
The father has in my view addressed his drug use to the extent that it no longer poses a risk to the child. I am further persuaded that there is a protective factor available to him whilst he lives with his parents and indeed whilst his parents continue to have a relationship with he and his daughter even if he were to remove himself from their home. I am persuaded however that the father does not intend leaving the paternal grandparents home for many, many years.
The mother's drug use is extremely problematic. The evidence establishes that she has a real difficulty with her addiction to methamphetamine. The fact that the mother could not refrain from taking drugs on the first day of trial is alarming.
The mother gave an excuse for using drugs on that day that she “had a lot of things going on". I am not satisfied that the mother has addressed her drug use despite providing evidence that she is attending counselling.
She has been attending counselling for a number of years and it appears to have had no effect on her ability to refrain from using drugs.
Furthermore I am satisfied that the mother minimises her use of drugs and either does not understand the risk that drug use presents to children or has no control over her drug use despite being aware of the risks.
I am satisfied however that the mother's drug use is sporadic. The mother has the full-time care of her other child [C] however and there was no evidence presented that would suggest that [C] has been abused, harmed and/or neglected.
I am satisfied that the mother's drug use may have an adverse impact on the child if she were to live with her mother full-time. The risk involved in drug use is well-known however I am satisfied that the risk in this case does not amount to an unacceptable risk of harm such that the child should spend supervised or no time with her mother but rather it is a risk of instability for the child and in those circumstances the risk can be mitigated against by an order being made that the child live in the full-time care of her father.
Having considered both sections 60CC(2)(a) and 60CC(2)(b) I am satisfied that the evidence supports a finding that it is in the best interests of the child for her to have a meaningful relationship with both of her parents.

Other considerations

The child due to her young age at the time of the interview (omitted) was not asked for her view and nor did she express any real view other than she wished she had a cat.
The evidence establishes that the child has a meaningful relationship with both the parents. The child also has a solid, positive, secure and stable relationship with the paternal grandparents.
On assessment with the Family Consultant it was clear that the child had developed a very strong attachment to her sister [C].
The evidence establishes that the child came into the care of the father when [C] was 2 months old. Clearly, and notwithstanding the difficulty in the parental relationship, the child has been able to establish a close bond with her sister and maintain a meaningful relationship with her mother.

Section 60CC(3)(c)

The evidence establishes that the father has been fully involved in participating in making decisions about long term issues in relation to the child, spending time with the child, and in communicating with the child.
The evidence further establishes that despite the mother's longing to be fully involved in those matters the father has prevented this from happening.
I am satisfied that the father prevented the mother from making decisions and being fully involved in the child's life as he believed it was necessary in order to protect the child.
I am also satisfied that the father considers that it is his job to be primarily responsible for the child and that he would not accept, no matter what the mother says or indeed what the Court finds, that the mother should be as involved as he in these matters. This poses a problem in the parental relationship moving forward.

Section 60CC(3)(d)

The mother proposes that the child live with her on a full-time basis. The mother and father live approximately 30 to 40 minutes apart.
The mother's proposal would see a significant change for the child. The child would obviously no longer be living full-time with her father and the paternal grandparents. She would leave a house that she has grown up in for more than half of her life. She would leave the school that she has attended since commencing school. There would be a change in her peer group as a result.
The mother concedes that the child is well cared for and that she has no issues with the care provided by the father. Her only real issue is that the paternal grandparents, on her view, do too much with respect to raising the child and that the child will miss out on enjoying a sibling relationship with her daughter [C].
I am satisfied that the child has been cared for appropriately and that she is well settled in the home of her father.
I am also satisfied that the child has been able to develop a meaningful relationship with her mother and a significant bond with her sibling [C].
I am also persuaded by the evidence of the family consultant that the sibling relationship and the effect of not living with the sibling will have a minimal impact on the child.
The orders proposed by the father will see an increase in the amount of time that the child spends with both her mother and [C]. I am satisfied that such an increase is in the best interests of the child and will be a positive and advantageous change for the child.
The mother's proposal would see a loss of stability and a significant change to the routine and lifestyle of the child. I am satisfied that the mother's proposal would be disadvantageous to the child.

Section 60CC(3)(e)

The parents live within a reasonably close proximity of each other. There has been no evidence provided by either party which would point to a practical difficulty and expense being so large that it would provide a difficulty for the child maintaining personal relations and direct contact with both parents on a regular basis.

Section 60CC(3)(f)

The evidence establishes that both parents can meet the needs for the child including the emotional and intellectual needs. It is the mother’s real potential for relapse into drug use that causes concern in relation to her capacity to provide and meet the ongoing needs of the child on a consistent basis if the child were to live with her. The risks involved in drug use to children are well-known and well established

Section 60CC(3)(g)

Both parents have had a lifestyle and background that is not appropriate when caring for children. Both parents have been involved in drug use and of course the mother has been involved in relationships marked by family violence.
The evidence satisfies me that the father has changed in positive ways due to having the full-time care and responsibility of his daughter.
Unfortunately the same cannot be said for the mother. I am satisfied that the mother has addressed the very real risk of family violence in her life.

I cannot be satisfied however that the mother ever has addressed her drug use and I have concerns for the mother’s capacity to make change noting that she has been receiving counselling since 2014 from time to time.
The child does not identify as aboriginal or Torres Strait Islander.

Section 60CC(3)(i)

The evidence establishes that the father has taken on the role of parenthood in a very positive way. I am satisfied that he adores his daughter, acknowledges the very real responsibilities involved in parenthood and that he has demonstrated those responsibilities consistently.
The evidence establishes that the mother acknowledges the responsibilities of parenthood and that she too has taken steps to demonstrate a positive attitude towards those responsibilities and the child particularly in relation to the family violence issue.
The evidence establishes though that the mother's inability to address her drug use affects her attitude towards the responsibilities of parenthood.
She was aware that her drug use was a significant issue in this case. She was aware that an adverse finding in relation to drug use would most likely result in the child continuing to live with her father. Despite that awareness the mother was unable to refrain from drug use and did so as I previously said on the very first day of trial.

Section 60CC(3)(j) and (k)

The issue of family violence has been highlighted in this case. There was clearly family violence in the presence of the child whilst the child was living with the mother. Fortunately the child was removed from that family violence at a very early stage by the maternal grandparents.
I acknowledge the difficulty the mother would have been faced with whilst living with Mr J. I am satisfied that she was petrified of him and that her fear of him prevented her from being frank and honest to the family report writer and indeed to the Court in her first Affidavit.
As I have said previously I do not believe that there will be exposure to family violence in either the home of the father or the home of the mother moving forward however.

Section 60CC(3)(l)

It is trite to say that a Court should make orders that would be least likely to lead to the institution of further proceedings.
It is obviously in the best interests of the child to remove as much conflict for the child as possible. These two parents simply cannot get on when it comes to decisions and communications about the child.
The father says he would not discuss significant matters for example whether child attends school with the mother. It is his evidence that he does not care about mother’s views in relation to the child.
He takes the view that he must make decisions for the child because he can look after her best interests. It was his evidence that he cannot communicate with the mother at times because it is very difficult.
The mother agrees that she and the father cannot agree on anything. In fact it was not until the morning of 30 March 2017 that the mother first heard about the father's proposal for half of all school holiday times. There is simply no communication between the parents.
I am satisfied that the order I have made is an order that is least likely to lead to further conflict for the child.

Section 61DA

When making a parenting order the Court must apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in:
a)abuse of the child or another child who, at the time, was a member of the parents family (or that person's family); or
b)family violence.
The evidence does not establish that either of the parents or that a person currently living with either of the parents has engaged in abuse or family violence. The presumption therefore applies
Section 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for child's parents to have equal shared parental responsibility for the child.
As at the close of the case both the Independent Children's Lawyer and the father sought an order for equal shared parental responsibility.
The Family Consultant recommended that the parents have shared parental responsibility. Submissions on behalf the mother were to the extent that an order for equal shared parental responsibility would not mean anything because the father will continue to make unilateral decisions as he has done so in the past.
The evidence of the father was quite clear in that he simply was not interested in what the mother had to say about decisions for the child. He did not want the child growing up like the mother and he believed that decisions the mother would make could lead to that lifestyle.
The evidence establishes that there was an issue with regards to the child's swimming lessons and that the father simply enrolled the child in (omitted) School and was not interested in what the mother had to say about schooling.
The evidence establishes that the mother refused to agree to (omitted) School on the basis that she believed the child would be living with her.
It was the submission of the Independent Children's Lawyer that suggested that the conflict between the parents was fuelled by the litigation. That is often the case and potentially impacted upon the level of conflict between the parents in this case.
However the father clearly is not interested in the mother's point of view. Indeed the evidence establishes that the mother is not really interested in the father's point of view and indeed she sought an order for equal shared parental responsibility but acknowledged through Counsel that it would not really mean anything.
If an order for equal shared parental responsibility were made this has the potential to involve further conflict between the parents when discussing important long-term decisions for the child.
There is a plethora of research that establishes that children are adversely affected when they are involved in conflict for long periods of time. The evidence establishes in my view a long-standing pattern of conflict between these parents and a long-standing pattern of poor communication.
In light of the evidence I am satisfied that it would not be in the best interests of this child for her parents to have equal shared parental responsibility because it is likely that a dispute will arise and as a result the child will be embroiled in further parental conflict or important decisions will be delayed.
The decision of U v U[3] makes it clear that I am not bound by the parties’ proposals. The issue of parental responsibility was live, no party is prejudiced by me making an order against the orders proposed by the parties because each of the parties not only cross examined the witnesses on this issue but also made submissions on this issue.
[3] [2002] HCA 36.
I am of the view that it is in this child's best interests for an order for sole parental responsibility to rest with the parent with whom she shall live.
Having determined that I will make an order for sole parental responsibility the provisions of section 65DAA or not triggered and as a result I may make such parenting orders as I think proper pursuant to section 65D(1).
I am of the view that it is important for the father to inform the mother of decisions that he intends making and that he invite the mother to provide her view in relation to the decision and that he give proper consideration to the mother's views. In those circumstances I have made an order supporting that view.
For these reasons I am satisfied that the orders I have made are in the best interests of the child.

I certify that the preceding two hundred and fourteen (245) paragraphs are a true copy of the reasons for judgment of Judge Middleton.

Date: 14 December 2017

[2017] FCCA 3115

14 December 2017

Key Legal Topics

Areas of Law

Family Law