Penfold and Milton and Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

PENFOLD & MILTON & ANOR

[2016] FCCA 3349

Catchwords:
FAMILY LAW – Parenting – dispute between Father and maternal Grandmother – Father with significant history of drug use – Mother now brain injured (possibly drug related) – competing allegations of domestic violence – child subject of the proceedings cared for by maternal Grandmother who also cares for the Mother and the Mother’s children from previous relationships – Grandmother proposes that if anything happens to her then the child’s teenage half sibling will look after the child – Father has shown significant improvement in his life with multiple clear drug screens, proposed employment and is in stable relationship with a new child – Family Consultant recommends gradual transition of young child into the Father's care – Independent Children’s Lawyer supports this recommendation – Orders for ongoing drug tests for the Father and gradual transition over two years for young child to transition into his care from maternal Grandmother.

Legislation:

Evidence Act 1995 (Cth), s.128

Family Law Act 1975 (Cth), ss.60CA, 60CC(3)(h), 61DA, 65DAA

Applicant:

MR PENFOLD

First Respondent:

MS MILTON

Second Respondent:

MS OWEN

File Number:

AYC 108 of 2015

Judgment of:

Judge Neville

Hearing dates:

30 and 31 May 2016

Date of Last Submission:

5 July 2016

(Updating material provided 14 December 2016)

Delivered at:

Canberra

Delivered on:

21 December 2016

REPRESENTATION

Solicitors for the Applicant:

Self - represented

Counsel for the Second Respondent:

Mr Moffett of Counsel

Solicitors for the Second Respondent:

Tarella Law

Counsel for the Independent Children's Lawyer:

Mr Stagg of Counsel

Solicitors for the Independent Children's Lawyer:

Evans Family Lawyers

ORDERS

Until such time as Order 2 takes effect the following will apply in respect to the child X born (omitted) 2013 (“the child” and “X”), and subject to any other agreement between the parties in writing:
(a)The Father and the Second Respondent, Ms Owen, have equal shared parental responsibility for the child:
(b)The child live with the Second Respondent;
(c)The Father spend time with the child each Sunday from 9:00am to 6:00pm for a period of one (1) month from the date of these Orders, commencing on 1 January 2017;
(d)Following time in Order 1(c), and for a period of three (3) months, the Father spend time with the child as follows:
(i)     In Week One, each Thursday from 9:00am to 5:00pm; and
(ii)In Week Two, from Saturday from 9:00am until Sunday at 5:00pm.
(e)Following time in Order (d), and for a period of two (2) months, the Father spend time with the child as follows:
(i)     In Week One, each Thursday from 9:00am to 5:00pm; and
(ii)In Week Two, from Friday from 9:00am until Sunday at 5:00pm.
(f)Following time in Order 1(e), and for a period of two (2) months, the Father spend time with the child as follows:
(i)     In Week One, each Thursday from 9:00am to 5:00pm; and
(ii)In Week Two, from Thursday from 9:00am until Sunday at 5:00pm.
(g)Following time in Order 1(f), and for a period of two (2) months, the Father spend time with the child as follows:
(i)     In Week One, each Thursday from 9:00am to 5:00pm; and
(ii)In Week Two, from Wednesday from 9:00am until Sunday at 5:00pm.
(h)Following time in Order 1(g), and for a period of two (2) months, the Father spend time with the child as follows:
(i)     In Week One, each Thursday from 9:00am to 5:00pm; and
(ii)In Week Two, from Tuesday from 9:00am until Sunday at 5:00pm.
(i)Following time in Order 1(h), and for a period of two (2) months, the Father spend time with the child as follows:
(i)     In Week One, each Thursday from 9:00am to 5:00pm; and
(ii)In Week Two, from Monday from 9:00am until Sunday at 5:00pm.
(j)Following time in Order 1(i), and for a period of two (2) months, the Father spend time with the child as follows:
(i)     In Week One, each Thursday from 9:00am to 5:00pm; and
(ii)In Week Two, from Monday from 9:00am until the following Monday at 5:00pm.
(k)Following time in Order 1(j), and for a period of two (2) months, the Father spend time with the child as follows:
(i)     In Week One, each Thursday from 9:00am to 5:00pm; and
(ii)In Week Two, for a period of 8 nights, from Monday from 9:00am until the following Tuesday at 5:00pm.
From completion of time in Order 1(k) the following will apply:
(a)The said child will live with the Father;
(b)The Father will have sole parental responsibility for the child, with a requirement that he notify the Maternal Grandmother and via the Maternal Grandmother, the Mother, of any and all major long-term decisions regarding the child.
(c)From completion of time in Order 1(k) the following will apply:
(i)The Second Respondent will spend time with the child from 9:00am on Friday until 5:00pm on Sunday, each alternate week.
In addition to Orders 1 and 2 inclusive, the parties will spend time with the child as follows:
(a)On Mother’s Day and Father’s Day respectively, if the child is not in the party’s care celebrating that day, as agreed, and failing agreement, from 9:00am until 5:00pm;
(b)On the parties’ birthdays, if the child is not otherwise in the party’s care celebrating this day, as agreed, and failing agreement, from 9:00am until 12:00pm;
(c)On the child’s birthday, if the child is not otherwise in the party’s care celebrating this day, as agreed, and failing agreement, from 9:00am until 12:00pm;
(d)Over the Christmas period, as agreed between the parties or, failing agreement:
(e)the child shall spend time with the Father from 9.00am on Christmas Eve to 3.00pm on Christmas Day commencing in 2016 and each alternate year thereafter; and 3.00pm on Christmas Day until 6.00pm on Boxing Day in 2017 and each alternate year thereafter;
(f)the child shall spend time with the Maternal Grandmother from 9.00am on Christmas Eve to 3.00pm on Christmas Day commencing in 2017 and each alternate year thereafter; and 3.00pm on Christmas Day until 6.00pm on Boxing Day in 2016 and each alternate year thereafter.
For the purposes of changeover, changeover is to occur with the Father collecting from and delivering the child to the Maternal Grandmother’s home at the commencement and conclusion of time, unless otherwise agreed.
The child spend time with the First Respondent Mother during such time that the child is in the care of the Second Respondent providing that the time with the Mother be supervised at all times by the Second Respondent, or other competent adult.
The Father is to complete random urinalysis drug testing, no more than four times per year, for two years, at the request of the Independent Children’s Lawyer.
Within 7 days of receipt of the test results, the Father is to make a copy of these results available to the Independent Children’s Lawyer’s Office.
The Independent Children’s Lawyer is granted liberty to request that the matter be urgently re-listed in the event that any of the Father’s urinalysis test results are positive for illicit substances.
All parties are restrained from saying unkind or unpleasant things about the other parties to the child, in her presence, or allowing any other person to do so.
Both parties are restrained from discussing these Court proceedings with the child, or doing so in their presence, or allowing any other person to do so.
This Order be authority for any treating medical practitioner or counsellor for the child to provide any requested information regarding the child to either the Father, Mr Penfold and the Maternal Grandmother, Ms Owen.
This Order be authority for any education institution (inclusive of day care, pre-school, school) the child is enrolled at and attends to provide any requested information regarding the child to either the Father, Mr Penfold and the Maternal Grandmother, Ms Owen.
Both parties are required to update the other of their current contact telephone number, email address and residential address. Both parties are required to notify the other of any change within 3 business days of any change of these details.
Both parties are restrained from consuming illicit substances when the child is in their care.
Both parties are restrained from consuming alcohol to excess when the child is in their care.
The Father is to enrol in a Parenting Course within 3 months of the date of these Orders, and is required to complete the course as soon as practicable in accordance with the Course requirements.
The Father is to provide the Independent Children’s Lawyer and the Maternal Grandmother with evidence of the completion of this parenting Course within 14 days of the completion of the program.
Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.

THE COURT NOTES THAT:
A.Due to the nature of Orders 7 and 8, the New South Wales Legal Aid Commission is requested to extend the Independent Children’s Lawyer’s grant of aid to ensure she is able to comply with Orders 7, 8 and 9.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

AYC 108 of 2015

MR PENFOLD

Applicant

And

MS MILTON

First Respondent

MS OWEN

Second Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns the making of parenting Orders for 2½ year old X. For quite some time, she has been in the care of her maternal Grandmother. Her Father seeks, and in general terms the Family Consultant recommends, that there be a transition of the child’s residence to the Father, subject to some other matters noted in the course of these reasons. The transition of X’s care to that of her Father is supported by the Independent Children’s Lawyer (“the ICL”).
In general terms, there should be (and will be) a change in the child’s residence, over something of a graduated period. For the reasons that follow, the transition needs to be in a slightly differently structured and shorter time-frame than recommended by the Family Consultant.
There are some important factual issues that need to be stated at the outset both for context and significance, which highlight the delicacy and complications that attend this matter.
X's Mother, the First Respondent (Ms Milton), who is 37 years old, took no active part in the proceeding because she suffered, among other things, a burst aneurysm and stroke in 2014 which has left her with brain damage.[1] She is now also sight impaired. She has four children: three older children to different Fathers - A (aged 17 years), B (aged almost 11 years), and C (aged 8 years). All of these children, plus X, plus the Mother (Ms Milton), live with and are in the full-time care of Ms Owen, the Second Respondent Grandmother. They all reside, perhaps a tad snugly, in a three bedroom house.[2]
[1] Counsel for the Grandmother confirmed that Ms Milton has post-traumatic amnesia. See Transcript 44 (hereafter “T” followed by the page number)..
[2] See par.5.61 (p.27) of the Family Report of Ms S (Exhibit B).
X’s relationship with her siblings, her Mother and her Grandmother are significant considerations in the current proceeding, as is her relationship with her Father and his family, including her very young sister, baby D. To slightly understate matters: there are elements of complication readily on display here.
The Respondent Grandmother surmised that some of the Mother’s health issues were related to significant earlier drug use as well as possibly related domestic violence from various partners over the years.[3] The Respondent Grandmother, who is aged 68 years, is the Mother’s full-time carer. As earlier noted, the Mother lives with the Respondent Grandmother.
[3] Among other places, see the outline provided by the Grandmother to the Family Consultant at par.5.38 of the Family Report. That Report, of Ms S, dated 31^st March 2016, became Exhibit B.
In updating material, filed 14^th December 2016, the Court was advised by the Grandmother that the Mother is doing significantly better than when the matter was heard, that her relationship with X is progressing well, and that she does not require the same level of support that was previously necessary. It may nonetheless still be inferred that the Mother still needs adult support. As helpful and encouraging as this information is, it does not go to any specific issue that is formally before the Court for determination, particularly given that the Mother (Ms Milton) does not seek any parenting Orders.
In her trial affidavit, filed 4^th May 2016, the Grandmother said (pars. 8 and 9):
… She [the Mother] continues to receive support and occupational therapy, the goal is that one day she might be able to live in independent accommodation but I don’t think that is realistic, Ms Milton really cannot be left alone. She turns on the stove and forgets it and basically it isn’t safe to leave her by herself.
Ms Milton has lost a lot of her memory. … She has limited vision and uses a cane. Her vision is okay in front, but she cannot see to either side without turn [sic] her head. She spends time with the children because she and the children are in my home together, however but there is always another adult to provide support for Ms Milton with X. The older children are more responsible and Ms Milton can respond to them but because X is too young to understand her Mother’s difficulties, Ms Milton cannot respond fast enough to look after X and therefore needs a responsible adult present at all times…
To state the obvious: the Grandmother’s labours for her daughter and grand-children are nothing less than heroic and properly deserving of acknowledgement and praise. Also to state the obvious, which the Grandmother acknowledged during the trial, there are significant issues should anything happen to Ms Owen, the Grandmother.
For example, on the second day of the trial, the following exchange took place primarily between Counsel for the ICL and Ms Owen:[4]
[4] T 128.
You still obviously have your own ambitions as to what you would to do in retirement?‑‑‑No. Sorry. I don’t have a – an ambition for retirement now. I’ve just got to live till I’m 90 and then I can die.
...
HIS HONOUR: Sorry. Why 90?‑‑‑That way I know the children are all safe and that I can die. They’re all grown up by then.
In the course of these same general discussions at the hearing, Ms Owen said that if anything happened to her then 17 year old A would look after X. Respectfully, in my view, proposing that a then 16 year old (now 17 year old) would look after X (a) would impose an intolerable burden on young A which would almost inevitably restrict her life choices, and (b) by showing a specific preference for A to care for X rather than her Father, showed lack of insight into the need for X to spend time and develop the relationship with her Father. In her oral evidence, Ms Owen confirmed that A believes that the Grandmother will not die for another 20 years. This would seem to indicate that A does not realistically see or expect that she will ever look after or become X’s carer.
There were three other areas where I found the Grandmother’s evidence to be problematic.
First, the Grandmother confirmed during her oral evidence that she continues to believe that the Father sexually molested X, even though all investigations by police and others found no evidence to support such belief.[5] As well, the Father vehemently denies any such conduct; however, it is unsurprising that the Grandmother does not put any weight on the Father’s evidence.
[5] T 131.
Secondly, the Grandmother also firmly believes that the Father’s partner, Ms K (who I found to be a very impressive, down to earth and straight-forward witness), could be taking drugs.[6]
[6] Among other places, see T 157.
Thirdly, Ms Owen permits the children, B and C, to spend time with their Father, Mr S. Mr S has a not insignificant criminal record that includes him having spent time in prison.[7] Towards the end of her evidence, Ms Owen confirmed that she thought that if she prevented Mr S from seeing the boys “he would be like a time bomb. He would become very aggressive.”[8] It would seem that this same fear is not present or relevant to Mr Penfold.
[7] See the Grandmother’s evidence at, among other places, T 134 & 137 – 140.
[8] T 181.
Respectfully, it might be inferred from the Grandmother’s evidence regarding Mr S that she may not be facilitating time with Mr Penfold because she does not fear him as she does Mr S. If this be so, such an attitude would not be “prioritising” X’s best interests in her relationship with her Father.
Indeed, comparatively, while X's Father has some criminal history also (e.g. in relation to drug use – noting that all recent drug screens attest to Mr Penfold’s contention that he has “turned his life around” such that there are no positive drug tests before the Court in relation to him), Ms Owen is significantly more reluctant to allow X to spend time with her Father.[9] The inconsistent treatment of Mr Penfold compared to Mr S was, in my view, unsupported and unsustainable.
[9] See the discussion at T 149 – 150 & 156 - 157.
Fortunately, during the course of the trial, Ms Owen relaxed her approach or disposition towards the Father, albeit only to some degree.
I note here as a further relevant consideration that Mr Penfold identifies as Aboriginal. Unfortunately, the maternal Grandmother’s submissions did not address this relevant “consideration” at all.
Respectfully, in relation to each of these four aspects of her evidence – the Grandmother’s belief in the Father sexually assaulting X, the Mother’s 17 year old daughter looking after X in the event that anything were to happen to Ms Owen, the Father’s partner possibly taking drugs, and the inconsistent treatment of one Father of her grand-children compared to Mr Penfold and his relationship with X – in my view the Grandmother showed either or both lack of insight and unsupported bias against and negativity towards the Father and his partner. In doing so, Ms Owen did not give X’s best interests appropriate priority. Misguidedly, she sought to be (and thought that she was being) protective of X. However, her evidence showed, as I have said, bias and lack of insight in so far as it related to Mr Penfold and his partner and the Father’s proper and important relationship with X.
In what follows, I (a) outline the Orders sought by the parties and the ICL, (b) consider briefly the oral evidence by or on behalf of the parties, (c) consider the evidence (written and oral) of the Family Consultant, (d) outline the submissions of the parties and the ICL, and finally (e) weigh and address that evidence in the light of the statutory scaffold outlined in Part VII of the Family Law Act 1975 (Cth) (“the Act”).

Orders Sought

The Applicant Father filed his Final Orders Sought as part of his Final Submissions, sent to Chambers via email on 4^th June 2016. They were as follows:
Final orders
· That Mr. Mr Penfold shall have sole parental responsibility for his daughter X born (omitted) 2013
What I propose for a gradual reintroduction
· 2 days (48 hours)for each week for the 1st and 2nd month of June-July 2016
· 3 days (72 hours) for each week for the 3rd and 4th month of August-September 2016
· 4 days (92 hours) for each week for the 5th and 6th month of October-November 2016
· 5 days (120 hours) for each week for the 7th and 8th month of December-January 2017
· 6 days (144 hours) for each week for the 9th and 10th month of February-March 2017
· Ms Owen receives 2 days per fortnight.
· Ms Owen has visitation on the following days 13th January, 17th June, 20th November and 16th December.
· The party’s will alternate in the following days: Christmas, boxing day, mother’s day and X’s birthday
· Each year Mr. Penfold will have X on the following days: (omitted)

The Respondent Grandmother filed her Final Orders Sought as part of her Case Outline by way of email to Chambers on 26^th May 2016. These were as follows:
B. Final orders sought by the Second Respondent, Maternal Grandmother
1. That the child live with the maternal grandmother.
2. That the maternal grandmother have sole parental responsibility for the child.
3. That the child spend time with the mother as agreed between the mother and maternal grandmother.
4. That in the event the Court finds that the child is not at risk in the father’s care; the child spend time with the father:-
a. Until January 2017, at the (omitted) Children's Contact Centre with the father’s partner, the father’s child of the current relationship and his partner’s children being permitted to attend;
b. From 1 January 2017 until 31 March 2017, each alternate Saturday from 10.00 am until 2.00 pm, with handover to take place at the (omitted) Children's Contact Centre;
c. From 1 April 2017 until 30 June 2017, each alternate Saturday from 9.00 am until 5.00 pm, with handover to take place at the (omitted) Children's Contact Centre;
d. From 1 July 2017 until 31 December 2017, each alternate weekend from 9.00 am Saturday until 5.00 pm Sunday, with handover to take place at the (omitted) Children's Contact Centre;
e. Thereafter, each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, with handover to take place at the (omitted) Children's Contact Centre;
f.   From 1 January 2018, X will spend time with the father on the following special occasions from 3.00 pm or after school, until 6.00 pm, with handover to take place at the home of the maternal grandmother:-
i.   1 January;
ii. 27 March;
iii.     19 August;
iv. 8 September; and
v. 22 October;
g. From 1 January 2018, X will spend time with the father for the weekend of Fathers’ Day from 5.00 pm Friday until 5.00 pm Sunday, with handover to take place at the (omitted) Children's Contact Centre, and if this falls on a weekend that X would usually spend with the grandmother, the father’s time will be suspended on the following weekend in lieu.
5. That the father’s time shall be suspended and X shall spend time with the maternal grandmother as follows:-
a. From 1 January 2018, X will spend time with the grandmother on the following special occasions from 3.00 pm or after school, until 6.00 pm, with handover to take place at the home of the maternal grandmother:-
i.   13 January;
ii. 17 June;
iii.     20 November; and
iv. 16 December;
b. From 1 January 2018, for the weekend of Mothers’ Day from 5.00 pm Friday until 5.00 pm Sunday, and if this falls on a weekend that X would usually spend with the father, X will spend time with the father the following weekend in lieu.
6. That X spend time with both parties for Christmas as follows:-
a. In 2016 with the father and his family members, supervised by the (omitted) Children's Contact Service, as facilitated by the Children’s Contact Service;
b. In 2017:-
i.   With the father from 5.00 pm Christmas Eve until 5.00 pm Christmas Day;
ii. With the maternal grandmother from 5.00 pm Christmas Day until 5.00 pm Boxing Day;
iii.     With handover to take place at the home of the maternal grandmother;
c. In 2018 and each alternate year thereafter:-
i.   With the maternal grandmother from 5.00 pm Christmas Eve until 5.00 pm Boxing Day; and
ii. With the father from 5.00 pm Boxing Day until 5.00 pm 28 December;
iii.     With handover to take place at the home of the maternal grandmother;
d. In 2019 and each alternate year thereafter:-
i.   With the father from 5.00 pm Christmas Eve until 5.00 pm Boxing Day; and
ii. With the maternal grandmother from 5.00 pm Boxing Day until 5.00 pm 28 December;
iii.     With handover to take place at the home of the maternal grandmother.
7. That X otherwise spend time with each party as agreed in writing.
8. That the father shall each calendar month, for the first twelve months after the making of these Orders, attend to provide a sample for forensic testing with respect to the presence of cannaboids, opiates, amphetamines, methamphetamines and benzoids and such sample shall be provided and testing shall occur in accordance with the appropriate Australian standard for supervised chain of custody testing and upon provision of a testing report arising from same, the father shall cause and ensure the report to be provided to the maternal grandmother before the expiration of the month.
9. In the event that the testing report discloses a reportable quantity of any of the above substances, or is not provided in the requisite time frame, the father’s time with the child shall be suspended.
10.    In the event that the father’s time is suspended pursuant to Order 9 above, the father’s time shall only recommence following the provision of six (6) consecutive testing reports pursuant to Order 8, which do not disclose a reportable quantity of any of the above substances.
11.    In the event that the father’s time recommences in accordance with Order 10 above, the spending time with regime set out above in Order 4 shall resume at the stage it was interrupted, and shall continue irrespective of the dates in Order 4, and the time set out in Orders 5 and 6 shall only recommence upon the completion of the regime in Order 4.
12.    That the father is hereby injuncted and restrained from consuming alcohol and illicit substances for a period of 24 hours prior to the child coming into his care and whilst the child is in his care and he will use his best endeavours to not allow X to come into contact with anyone under the influence of alcohol or illicit substances.
13.    That each party are and hereby restrained by injunction from insulting, belittling, degrading of denigrating the other parent or a member of their immediate household in the presence or hearing of X.
14.    That the parties shall keep each other informed of their residential address and mobile telephone numbers at all times.
15.    That each party shall notify the other within seven days of a change of address and within twenty four hours of a change of phone number.
16.    That the maternal grandmother by this Order, authorise any school that the child attend to provide to the father party copies of all school reports, examples of school work, school newsletters, notification of all school activities, parent / teacher nights and that each parent is entitled to attend school events, parent / teacher appointments and the like.
17.    That maternal grandmother by this Order, authorise any treating medical practitioner, hospital or medical practise that the child shall attend from time to time to provide to the father any information regarding the child.
18.    In order to facilitate Order 17 above, each party shall promptly inform the other in writing via communication book exchanged through the (omitted) Children's Contact Service, of:-
a. Any medical problems or illnesses suffered by the child in the care of either party; and
b. Any medication needs for the child whilst in their respective care;
c. The names and contact details of any medical doctors, therapists and allied health practitioners consulted by the child.
19.    Any other Order that the Honourable Court sees fit to make.
The Independent Children’s Lawyer filed her Minute of Orders Sought with the Court on 1^st July 2016, set out as follows:[10]
[10] I should note that there was a slight variation between the actual Orders Sought and what was included in the ICL’s written submissions, notably by including in the submissions (but not in the Orders Sought) an Order for regular drug tests for the Father over the next two years. And further to this, by email dated 5^th July 2016 sent to the Court, the Father consented to such an Order for drug testing and gave the best contact details for such things to be arranged.
1. That, until such time as Order 13 takes effect the following will apply in respect to the child X born (omitted) 2013 (“the child”):
a. The father and the Second Respondent, Ms Owen, have equal shared parental responsibility for the child:
b. The child live with the Second Respondent;
c. The father spend time with the child each Sunday from 9:00am to 6:00pm for a period of one (1) month from the date of these Orders, commencing on 5 June 2016
d. Following time in Order 1(c), and for a period of six (6) months, the father spend time with the child as follows:
i.   In Week One, each Thursday from 9:00am to 5:00pm; and
ii. In Week Two, from Saturday from 9:00am until Sunday at 5:00pm.
e. Following time in Order (d), and for a period of two (2) months, the father spend time with the child as follows:
i.   In Week One, each Thursday from 9:00am to 5:00pm; and
ii. In Week Two, from Friday from 9:00am until Sunday at 5:00pm.
f.   Following time in Order 1(e), and for a period of two (2) months, the father spend time with the child as follows:
i.   In Week One, each Thursday from 9:00am to 5:00pm; and
ii. In Week Two, from Thursday from 9:00am until Sunday at 5:00pm.
g. Following time in Order 1(g), and for a period of two (2) months, the father spend time with the child as follows:
i.   In Week One, each Thursday from 9:00am to 5:00pm; and
ii. In Week Two, from Wednesday from 9:00am until Sunday at 5:00pm.
h. Following time in Order 1(g), and for a period of two (2) months, the father spend time with the child as follows:
i.   In Week One, each Thursday from 9:00am to 5:00pm; and
ii. In Week Two, from Tuesday from 9:00am until Sunday at 5:00pm.
i. Following time in Order 1(h), and for a period of two (2) months, the father spend time with the child as follows:
iii.     In Week One, each Thursday from 9:00am to 5:00pm; and
iv. In Week Two, from Monday from 9:00am until Sunday at 5:00pm.
j.   Following time in Order 1(i), and for a period of two (2) months, the father spend time with the child as follows:
i.   In Week One, each Thursday from 9:00am to 5:00pm; and
ii. In Week Two, from Monday from 9:00am until the following Monday at 5:00pm.
k. Following time in Order 1(j), and for a period of two (2) months, the father spend time with the child as follows:
i.   In Week One, each Thursday from 9:00am to 5:00pm; and
ii. In Week Two, for a period of 8 nights, from Monday from 9:00am until the following Tuesday at 5:00pm.
2. From completion of time in Order 1(k) the following will apply:
a. The said child will live with the father;
b. The father will have sole parental responsibility for the child.
3. From completion of time in Order 1(k) the following will apply:
a. The second respondent will spend time with the child from 9:00am on Friday until 5:00pm on Sunday, each alternate week.
4. In addition to Orders 1 and 2 inclusive, the parties will spend time with the child as follows:
a. On Mother’s Day and Father’s Day, if the child is not in the party’s care celebrating that day, as agreed, and failing agreement, from 9:00am until 5:00pm;
b. On the parties’ birthdays, if the child is not otherwise in the party’s care celebrating this day, as agreed, and failing agreement, from 9:00am until 12:00pm;
c. On the child’s birthday, if the child is not otherwise in the party’s care celebrating this day, as agreed, and failing agreement, from 9:00am until 12:00pm;
d. Over the Christmas period, as agreed between the parties or, failing agreement:
e. the child shall spend time with the father from 9.00am on Christmas Eve to 3.00pm on Christmas Day commencing in 2016 and each alternate year thereafter; and 3.00pm on Christmas Day until 6.00pm on Boxing Day in 2017 and each alternate year thereafter;
f.   the child shall spend time with the maternal grandmother from 9.00am on Christmas Eve to 3.00pm on Christmas Day commencing in 2017 and each alternate year thereafter; and 3.00pm on Christmas Day until 6.00pm on Boxing Day in 2016 and each alternate year thereafter.
5. For the purposes of changeover, changeover is to occur with the father collecting from and delivering the child to the maternal grandmother’s home at the commencement and conclusion of time, unless otherwise agreed.
6. The child spend time with the First Respondent mother during such time that the child is in the care of the Second Respondent proving that the time with the mother be supervised at all times by the Second Respondent, or other competent adult.

Evidence of the Parties

The Father’s evidence, briefly stated, was as follows.[11]
[11] Generally, the Father’s oral evidence is located at T 16 – 94.
At the trial, the Father said that he lived part of the time in (omitted) to assist in the care of his brother who has a range of special needs and the rest of the time in (omitted) with his partner, Ms K and their baby daughter, D. He intended to move to (omitted) permanently shortly after the conclusion of the trial.[12] At his partner’s address there was a bedroom furnished with many dolls and clothes for X.[13] They would ultimately likely go to D.[14]
[12] T 27.
[13] Among other places, see T 28. Counsel for the Grandmother suggested that it was “fit for a little princess.” See also the same comment by the same Counsel at T 93. Curiously, in my view, Counsel also challenged the Father as to whether this room actually existed. Photographs of it became Exhibit A2.
[14] T 74.
He said that he commenced taking drugs when he was approximately 13 years old; he started his drug-taking using cannabis.
The Father also said that his criminal involvement (noted earlier) started because he was hanging out with bad people (e.g. older people, who were already involved with crime). At first the crime was him just being rebellious, but then when he was in his late teens or early 20s or so, he began stealing to fund his drug habit. As already recorded, the Father went to gaol for 9 months. He said that when he completed his sentence he was clean for ‘about a couple of years’. During this time he did a couple of courses (e.g. “(omitted)”, (omitted)). He did not have a job or much focus and then began smoking pot again until when he was about 28 years. He was then using marijuana daily. He would smoke about 20-30 cones a day. Then in his late 20s, again as earlier noted, he started using speed.
He said that the use of speed was really a “social thing” but which progressed to more regular use; in consequence, he lost his job. In his mid-thirties he began using “Ice”.
The Father said that he commenced taking intravenous drugs around 7 or 8 years ago (he is now aged 40 years). He was taking “speed” and “meth” and “Ice.” He said that he did not take heroin. He said that the last time he took cannabis was in July 2014. The Father confirmed, in answer to questions from Counsel for the Grandmother, that he had been a “systematic and lengthy drug user.”[15]
[15] T 18.
Mr Penfold said that he started on harder drugs when he was in his 20’s. He served time for minor offences in juvenile detention. However, when he was around 20 years old he committed offenses that had him admitted to a correctional facility (for a charge of break and enter); he served 9 months.[16]
[16] T 19.
When he was 21, he was also charged with aggravated sexual assault. Those charges were dropped and therefore the matter did not proceed to a hearing.
More recently, such as in 2014, the Father has completed rehabilitation in relation to his drug and alcohol consumption at (omitted) House in (omitted). The program was designed to be 10 days (detoxification). He said that because he had not been on “Ice” for a few weeks he did not fully complete the rehabilitation program. He also said that whenever he caught up with the Respondent Mother, Ms Milton, he would start “using” drugs again.[17] In saying this, the Father confirmed that he took responsibility for his own drug use.
[17] T 21.
The clinical notes before the Court from the rehabilitation service confirm that when he was admitted, the Father said that the last time that he used amphetamines was three (3) days before going into the unit. He said that he broke the rules of the detox unit: he had cigarettes in the unit so he discharged himself. He said that he “took the fall” (so to speak) for this breach of the rules of the detox centre, and to ensure that no one else at that centre was found at fault for this breach.[18]
[18] T 22 – 23.
The Father said that he never perpetrated violence against Ms Milton, drug-induced or otherwise.[19] He acknowledged that the police on behalf of the Mother took out an Apprehended Violence Order against him. He said he applied to have this order set aside. He suggested that the order ultimately lapsed or otherwise was “dropped.”[20]
[19] T 30 – 33.
[20] T 32. The volatility of the relationship between Ms Milton and Mr Penfold was further explored at T 74 – 76.
The Father said that he was the victim of domestic violence perpetrated by Ms Milton, and that he had a number of voice recordings of such incidents.[21] Ultimately, these recordings were not available because the phone on which they were taken was too old to be able to be re-charged.[22] He vehemently denied any domestic violence on his part.
[21] Among other places, see T 37 – 38.
[22] T 63 & 113.
The Father said that the Mother, Ms Milton, used to use heroin.[23] He said that he met her through a drug dealer. She was school friends with the dealer. Mr Penfold said that he and Ms Milton used to use drugs (“Ice”) together every day. This went on for about 4 months until she became pregnant with X.
[23] T 52.
He said that he and Ms Milton did not use drugs while Ms Milton was pregnant, and that he did not start “using” again until X was approximately 7 months old.[24] There was a detailed discussion with Counsel for the ICL regarding the Father’s decision to stop using drugs from just before Ms Milton (and the Father) found out the Mother was pregnant with X. I need not rehearse that detail here, nor the period after X’s birth and the Father’s gradual return to drug use and the engagement with police, including in relation to the Mother’s drug use and related violent behaviour, including Ms Milton self-harming during a psychotic episode and her admission to (omitted) House.[25]
[24] T 34. The Father’s drug use, and the time-frame for it was explored again at some length by Counsel for the ICL at T 49 – 53. In the course of and in relation to that evidence a certificate pursuant to s.128 of the Evidence Act 1995 was issued to the Father.
[25] See T 55 - 60.
The Father says he has not used any drugs of any kind since rehab/detox; nor has he had any contact with Ms Milton.[26] Post his time in rehabilitation he attended AA meetings for 3 weeks – attending about 4 times per week, as well as Narcotics Anonymous (“NA”).[27] In these meetings, and from his time in the detox unit, he said that there was discussion of the “triggers” that affected the Father – e.g. the people he was around, the availability of the substances.
[26] T 67.
[27] Among other places, see T 67 – 68.
The Father stressed that he has really turned his life around. He had made a list of things he wanted to achieve and ticked off everything (e.g. getting driver’s license, getting a full time job, getting somewhere to live, etc.).[28] He said that since becoming and staying sober, he has developed a sense of self-confidence and self-worth, which (he said) will assist him in staying sober and off drugs. The Father’s clear drug screens in 2015 and 2016 became Exhibit A. In my view, the Father’s evidence particularly in relation to his drug history, reasons for use and clear drug tests for some time (plus his steady and much more ordered life-style and relationship), showed insight. He was in my view honest; his evidence was candid and helpful.
[28] T 69.
The Father set out in his oral evidence family members who identify as Aboriginal (e.g. his Father and paternal Grandfather) a range of activities that he usually or regularly attends in relation to his Aboriginality.[29] He was challenged by the Grandmother’s Counsel that the Father’s Aboriginality was not a significant consideration in the matter. The Father denied this.[30] Why this evidence was challenged, or the Grandmother’s evidence which was relevant to such a challenge, was not explained.
[29] T 35.
[30] T 35 – 36. The Father confirmed that the Aboriginal Legal Service assisted him at times with the documents he filed in the current proceeding. T 81.

He said that his partner, Ms K, has not returned to work following the birth of their baby, D. Ms K has two other children, a 9 and a 7 year old. Mr Penfold said that Ms K has her certificates for (occupation omitted) and that she will go back to work when she can – provided she can get work during school hours.
Mr Penfold confirmed that he has bought all kinds of things for X, and that he has an entire room set up with toys, clothes and a bed for her in Ms K’s house in (omitted). Mr Penfold confirmed that X’s room at Ms K’s residence (to which he planned to move shortly after the trial) is full of – “things like Christmas presents we could never give her”.[31] Photographs of the room set up by the Father for X became Exhibit A2.
[31] See also T 74.
The Father said that he thought that he and Ms Owen could work together and make decisions in relation to X’s best interests. This evidence was given in the context of a discussion about equal shared parental responsibility.[32] In this regard, the Father confirmed that he had thanked Ms Owen for all of her labours in relation to X. The Father also confirmed that there remain difficulties in the communication with Ms Owen.[33]
[32] T 42 – 43.
[33] See, respectively, T 77 – 78 & 89.
I consider Mr Penfold’s evidence to have been frank about his wayward life until relatively recently. He impressed as very genuine in relation to his care for and relationship with X, his relationship with Ms K, who has been and hopefully will remain a very positive influence in and on his life, and in relation to his “life plans” more generally, such as a “(omitted) business.”[34] He gave proper credit to Ms Owen for her care of X, as I have noted earlier in these reasons.
[34] See T 39 where the Father outlined that he had obtained qualifications in “(employment omitted).” Previously he had worked at a (employer omitted).
Ms K’s brief evidence was primarily relevant to an issue as to whether X was sexually abused or whether there might be some much less sinister explanation available. Ms K said that she noticed that X had a fungal infection in her genital region (a sort of nappy rash), to which she applied an appropriate anti-fungal cream (Curash). She said that due to her training in (omitted) – before having children of her own – she learnt about different types of skin conditions, more so in (omitted) but more generally. She is a qualified (occupation omitted).[35]
[35] See T 102 – 104.
Ms K confirmed that she would have no problems with X coming into her and Mr Penfold’s full-time care, and indicated that she would “manage.”[36] I took this to mean, consistent with her evidence overall, that there would be nothing unusual or overly burdensome in caring for a young child in her household, not least because she has other young children. Ms K also said that she recognised the importance of X maintaining a good and close relationship with her Grandmother (Ms Owen) and her siblings, and that she would facilitate this. Any so-called “issues” with Ms Owen and her family would be put aside.[37]
[36] T 104 – 106.
[37] T 104 – 106.
As earlier stated, Ms K impressed as being a very genuine, competent practical person who is a thoughtful and extremely positive influence on Mr Penfold. The Father confirmed the significant influence of Ms K on his life.[38] Apart from the Grandmother’s brief or passing “thought”, there was no suggestion that Ms K had ever used drugs; indeed, Mr Penfold said that she had never done so. This evidence was not challenged. There was no suggestion also that there were any issues with the care of her older children, or equally in relation to her care of X now or in the future. I accept Ms K’s evidence unequivocally.
[38] T 80.

The Grandmother’s Evidence: Ms Owen

I have already extracted a number of important features of Ms Owen’s evidence earlier in these reasons. I need not repeat those matters here. Otherwise, the Grandmother’s evidence was somewhat diffuse in its scope and focus. I do not say this critically but simply note it as a fact. Her evidence may be summarised as follows.[39]
[39] Ms Owen’s evidence is found at T 115 – 181.
Not surprisingly and appropriately, Ms Owen said that she was concerned about issues of violence, drugs (and possible related neglect), sexual abuse and not having relevant contact details for Mr Penfold when X is with him. Each and all of these matters are properly issues of concern.
She said that her daughter, Ms Milton, started taking drugs when she was approximately 15 years old. Ms Milton moved out of home to Queensland when she was aged around 16 or 17. She lived in Queensland for about 8-9 years. Ms Owen said that she was not sure if Ms Milton used drugs when she was in Queensland.[40]
[40] T 135 – 136.
Ms Owen confirmed that all of Ms Milton’s relationships involved violence. For example, she said that Mr S was convicted for causing grievous bodily harm (he set someone on fire); he served 2 years in gaol.[41] An ADVO was taken out against him that named the maternal Grandmother (Ms Owen), the Mother and the Mother’s children. However, she confirmed also that once the apprehended Violence Order against him was lifted he started spending time with his boys. When asked if she has concerns about this, Ms Owen said that she did but nonetheless allowed the boys go with their Father.[42]
[41] T 137.
[42] T 137 – 139.
Ms Owen's Grandson, C (another of Ms Milton’s children), she said had originally been diagnosed with autism. Various later tests have confirmed that he is not autistic but rather that he has been traumatised, it would seem as a result of being exposed to domestic violence at the hands of Ms Milton’s various partners over the years - and is ‘dealing with it’ as best he can.
Ms Owen said that she has witnessed Mr Penfold being violent towards Ms Milton.
The Grandmother also said that her daughter (Ms Milton) intends on living full time with her if she can. She confirmed that there is an issue with Ms Milton’s memory. She has lost memory of recent years. However, she said she understood that her daughter can build new memories.[43] Ms Owen said that Ms Milton knows who X is. Ms Milton does not have too much trouble with short term memory – mostly just things that happened before the aneurism.
[43] T 166.
Ms Owen said that X has a Mother/Daughter relationship with her Mother, Ms Milton. She said that Ms Milton plays with X and dresses her.
Ms Owen confirmed that Ms Milton is legally blind; she has trouble with her side vision, but continues to bathe X. She confirmed that Ms Milton’s relationship with her other three children is now also a Mother/children relationship. She said that the children now know her in a better way. This was taken to be in contrast with Ms Milton prior to her stroke, when she abused drugs.
Ms Milton’s eldest child (10 year old B) has learned how to handle the drug issues that have enveloped his Mother over the years but that C had stopped speaking for a time, a selective mutism in response to all the trauma that had enveloped him and his family over some years. At the same time, C is very protective of his Mother.[44]
[44] T 167 – 168.
Ms Owen said that 17 year old A understands the circumstances around her Mother. But A has been [protectively] with Ms Owen for most of her life.[45]
[45] T 168.
Ms Owen said that Ms Milton has self-awareness of her own drug history and that she is receiving counselling on a weekly basis; the counselling is not alcohol/drug specific. She said that the Mother has not relapsed with drugs since her aneurysm.
Ms Owen said that she was seeking assistance still for C in relation to his trauma related issues. At the moment, this was primarily in relation to seeking counselling for him. Both B and C have received counselling through their school as well.
Unsurprisingly, Ms Owen said that the three younger children, B, C and X were all very close. She said that she feared that if X went to live with Mr Penfold, this would have an adverse impact on the children generally but especially C.
Ms Owen said that if Orders were made that allowed X to remain living with her, she would ensure that arrangements with Mr Penfold could and wold be worked out. Indeed, she said that even though she (and Mr Penfold) sought a sole parental responsibility Order, both of them communicated without difficulty regarding matters relating to X. Indeed, she said that she had no difficulty speaking with Mr Penfold.[46] For my part, this was a significant piece of the evidentiary puzzle, and bodes well for the future.[47]
[46] See T 124.
[47] See also par.5.34 of the Family Report.
Ms Owen confirmed that her daughter Ms L (the children’s Aunt) occasionally assisted her and takes the children from time to time to enable the Grandmother to have a bit of a break [sort of a form of respite care]. Ms Owen confirmed also her preference that all the children remain together and as such, would prefer them to go to Ms L if she became incapacitated in any way. Further, it was her preference for X to live with Ms L than with Mr Penfold.[48]
[48] T 173 – 174. As far as the Court is aware, there was no evidence from Aunt Ms L.
The Grandmother agreed that any increase in time between X and her Father needs to be a gradual process; this was for X’s sake in relation to the relationship with her Father as well as X’s relationship with her siblings, B and C in particular. She did not object to the suggestion from the Bench that children often have a greater capacity to adapt to and cope with changed situations than do parents or other adults in their lives.
The somewhat difficult but necessary topic of Ms Owen’s age and health was canvassed briefly. She confirmed that she understood these matters to be a significant consideration for the Court. She said that she was generally in good health although slowing down a bit.[49]
[49] See, for example, T 157 – 158 & 173.
Again I stress that Ms Owen is to be heartily commended (as she was during the hearing) for her immense efforts in caring for her daughter and her various Grandchildren. Part of that commendation is her recognition, albeit sometimes a bit reluctantly, that her physical capacities to continue to care for all those who live with her is diminishing and will continue to do so. Again, this is not a criticism but simply a recognition of the human condition and the limitations inherent with it due to aging and the labour and fatigue of life.
Shortly before finalising these reasons, the Court sought a brief update from each of the parties and the ICL regarding any matters that might be of relevance since the hearing and final submissions.
On the Father’s part, he confirmed that, in general terms, the time with X had been progressing well. For her part, the Grandmother said that the Father had occasionally returned X earlier than scheduled and that this was at X’s request. She also contended that there was an issue as to whether X was toilet-trained and her need for nappies. I do not intend to get into a discussion about such things, for many and various obvious reasons.

Evidence of the Family Consultant

As with other witnesses, the evidence of Ms S may be stated summarily as follows.
Ms S agreed with the proposition that it was not appropriate that Mr Penfold did not completely finish his time in his rehabilitation program. She also confirmed that a transition of care for X should be somewhat gradual.
Ms S also said that one factor, among many, was the relative frailty of Ms Owen to continue to provide the level of care for X.[50] She also noted the importance to X of the relationships with her siblings.
[50] See T 189.
She also said that even if Mr Penfold’s (omitted) business became extremely demanding and therefore this would leave X very much in the care of Ms K, she would not change her recommendation.[51] She had earlier observed that she had understood that Ms K had two slightly older children as well as the baby D, whose Father is Mr Penfold.
[51] T 190.
Ms S was taken by Counsel for the ICL through the Father’s history of drug use, allegations of domestic violence when in a relationship with Ms Milton, and his general parenting capacity.[52]
[52] This discussions starts at T 195.
In relation to drug screens, the ICL confirmed to Ms S that there had been five random drug analysis requests over the last 12 months, all of which confirmed that the Father was “clean” of all relevant drugs. In the light of this information, the Family Consultant said that she would not change her recommendations, including that there be a transition in relation to X’s care from the Grandmother to the Father over a two year time-frame. She said that the Father being drug-free for now two years or so was encouraging; she repeated her recommendation for continued random drug screens for the next twelve months.
Ms S confirmed that in her view the Grandmother was very set in her opinions, notably her critical assessment of the Father.[53]
[53] Generally, see T 198 – 199.
From the Family Report (Exhibit B), I note the following matters. Given that there were specific terms of reference for Ms S to address, and the significant number of variables in the matters, it is as well that I set out in full the Family Consultant’s evaluation and recommendations, thus:
EVALUATION and comments against the terms of reference
8.1    The nature of the relationship between the child, each of the parties, and their respective partners if applicable;
8.1.1 X impressed as a confident little girl for her age. Given her age, obviously I could not directly discuss this matter or her relationships with her. However, no attachment problems or other issues were apparent to me.
8.1.2 X has been in her grandmother’s care for more than two years and not surprisingly her grandmother represents her key attachment figure.
8.2    The emotional attachment of the child with each of the parties;
8.2.1 Attachment develops progressively over the first four years of life and although children are capable of multiple attachments, to date X has had relatively minimal time with her father, his partner and sibling and half-siblings on his side and little opportunity to bond to them. X has had little opportunity to date to learn about being in a relationship with her father or to have many varied experiences with him. To my knowledge, she has not even been to his home for some time and has not stayed overnight there.
8.3    The likely effect (if any) of any change in the child’s circumstances, including the likely effect on her of any separation from either of the parties, or from any other child or person with whom she has been living;
8.3.1 Separating X from her maternal grandmother and half-siblings too precipitously would be very unsettling for her. Burke et al (2007) commented “Infants have no sense of time to help them understand separations from their attachment figures, and children of this age may need sufficiently frequent contact with each parent to maintain secure and trusting relationships (P4)”. To date, X has not had sufficient opportunity to do this with her father.
8.4    The attitude of the parties to the child and to their responsibilities of parenthood, and its impact on the child, including but not limited to:
i.   their attitudes to each other;
ii. their capacity to encourage and facilitate time with the other party and the child’s relationship with the other party;
iii.     any potential alienation of the child from the other party; and
iv. to denigrating the other party in front of the child
8.4.1 Mr Penfold was keen to assume a much more extensive role in his daughter’s life. He certainly recognised the importance of X continuing to see her grandmother, mother and half siblings and did not impress as likely to denigrate Ms Owen to X or to in anyway attempt to alienate X from her grandmother, mother and half siblings. Indeed Mr Penfold was grateful for the assistance Ms Owen had given him and his daughter.
8.4.2 Ms Owen, on the other hand, based on her experience of him during his relationship with her daughter, had a very poor opinion of Mr Penfold and was understandably, given her past experiences, very concerned about whether he had truly reformed and about the impact of any continuing problems on her granddaughter. Ms Penfold appeared to be unsure whether there had been any sexual abuse or not, despite medical advice that there had not been.
8.4.3 In advising evaluators how to assess the validity of sexual abuse allegations Herman (2009) usefully lists the following hypotheses:
“The child has been sexually abused by the suspected perpetrator
The child has been sexually abused, but not by the suspected perpetrator
The child has been sexually abused, but has denied or recanted abuse
The child has not been sexually abused, but has developed false memories for events that never actually occurred
The child has not been sexually abused, but is deliberately lying about being abused
The child has not been sexually abused, and the allegation is based on a sincere misunderstanding of the child’s verbal or non-verbal behaviour by a concerned or mentally ill adult
The child has not been sexually abused, and the allegation is based on a malicious false accusation by an adult or other child who is trying to achieve some specific goal (p262)”.
8.4.4 In my opinion, Ms Owen fell into the category of misunderstanding X’s presentation because of a genuine concern.
8.4.5 Despite her concerns however, Ms Penfold [sic] appeared to genuinely recognise the importance of X having a relationship with her father. When X was around, Ms Owen said she always displayed a positive attitude towards Mr Penfold. She appeared credible when she advised ne that she certainly did not denigrate Mr Penfold to the little girl.
8.5    The capacity of each party to provide for the child’s physical, emotional and intellectual needs;
8.5.1 Regarding his capacity to meet X’s needs, Mr Penfold is certainly well-intentioned. His capacity to a large extent must depend on his ability to remain substance free.
8.5.2 Mr Penfold made no criticisms of Ms Penfold’s care and none were apparent to me. This report was of course limited by me not being able to do home visits to either party. Concerns about Ms Owen relate to her age and her extensive care responsibilities, including at the time of report of her own daughter, Ms Milton.
8.6    The likely effect (if any) on the emotional and psychological needs of the child if either of the proposals made by the respective parties were implemented;
8.6.1 Living with her father, providing he can provide good enough care, will provide X with the benefits a father can give a child. Pryor and Rodgers (2001) point out that in families where fathers are involved, parents and children show high levels of well-being in a variety of ways including cognitive competence, empathy and internal locus of control. Fathers are important in assisting their children to regulate their emotions. Pryor and Rodgers (2001) noted that “involvement in care, the provision of nurturing, and generally engaged parenting behaviour are the aspects of fathering that are important for children, just as they are for parenting in general (p203)”. The quality of the father-child relationship is very important and Pryor and Rodgers (2001) went on to highlight that there are strong links between positive interactions with fathers and a wide range of optimal outcomes for children aged between 5 and 18 years and noted “Fathers have an important contribution to make to their children’s well-being and their involvement has the capacity to foster development (p204)”.
8.6.2 According to Kelly and Lamb (2003) “Children growing up in fatherless families are disadvantaged relative to peers growing up in two-parent families with respect to psychosocial adjustment, behaviour and achievement at school, educational attainment, employment trajectories, income generation, involvement in anti-social and even criminal behaviour, and the ability to establish and maintain intimate relationships (p6)”.
8.6.3 In my opinion, it is important that X begins to experience a variety of types of time with her father and that he is involved in all areas of her life rather than just assuming the role of her “entertainer” during infrequent visits. Smyth (2005) promotes the importance of “being-in-the-moment time” and a multiplicity of types of time for children with their parents and further considered that “patterns of care after separation that allow children to experience fluid, meaningful time with each parent are important for children’s and parents’ well-being (Smyth, 2005, p4)”.
8.7    Any aspect of the psychological or psychiatric health of either party, or their partners, which in the opinion of the expert may have an effect on the child, and what the effect may be;
8.7.1 As said previously, a key concern would arise if Mr Penfold relapsed to non-prescription drug use. There were no current concerns about either party’s psychological or psychiatric health
8.8    The effects on the child of each party’s proposed living arrangements and any other arrangements open to the parties;
See 8.6
8.9    The likely effects and significance of any different capabilities and approaches to parenting of each of the parties in relation to the child’s best interests;
8.9.1 Both parties impressed as having X’s best interests at heart and to be committed to her care. Although both parties would offer X a different lifestyle, neither style would be detrimental to her long-term best interests. Mr Penfold would include X in a parent/stepparent family with other children. He and his partner, Ms K proposed adopting traditional roles, whereby Ms K would be the primary carer while Mr Penfold was at work. Ms Owen also appeared rather traditional, valuing routine. She would continue to include X in life with her half siblings and at times her mother.
8.10 The likely effects of separation of the child from each of the parties and their siblings;
8.10.1   See 8.3
8.11 The nature of the relationships and emotional attachments of the child;
8.11.1    See 8. And 8.2
8.12 The ability of each party to support maintain the child’s connection to her aboriginal culture and heritage; and
8.12.1   Mr Penfold valued his indigenous heritage, and pursuing his culture was part of his life. He would actively model this to his daughter. Ms Owen would necessarily have to rely on external facilities such as school to promote X’s cultural heritage to her.
8.13 Assessment of the capacity of both parties to protect the child from physical, sexual or psychological harm, including, but not limited to the following:
a. Meeting the child’s daily need for care;
b. Exposure to or risk of inappropriate substance abuse, including alcohol and drug use, in the child’s home;
c. Exposure to or risk of inappropriate sexual conduct by any member of the child’s household;
d. Exposure to family violence;
e. Whether the attitude of either party to the other, or to members of their household, has had, or is likely to have, any adverse impact upon the child’s care, welfare and development;
f.   The adequacy of living arrangements for the child in each respective parties’ care.
8.13.1   As said previously, a key issue in assessing Mr Penfold’s capacity to act protectively towards his daughter and to meet her daily care needs depends on his ability to avoid any relapse to inappropriate substance abuse. Mr Penfold recognised the deleterious effects drug use had on his life. Mr Penfold told me he had not had an alcoholic drink for about seven years and had not used Ice since July 2014.
8.13.2   Cannabis has been the most widely used illicit drug in Australia for the last 30 years and Australia has the highest rate of methamphetamine use worldwide (McKetin et al, 2010). In 2005 (AIHW, 2005), it was estimated that almost one in 10 Australians had tried methamphetamine and around half a million were current users of the drug. Recently, these figures have risen. There can be no argument about the damaging effects on a child of exposure to parental substance abuse; to any co-morbid depression or other mental ill health; to violent relationships; and to unsafe and extremely filthy, chaotic home conditions. Amphetamine abuse can cause agitation, inability to focus attention, depressed reflexes, poor balance and coordination, disruption in motor functioning as well as an increase in impulsivity and making high-risk choices. Coming down from amphetamines can often be accompanied by depression. The agitation and violent behaviour associated with withdrawal may increase the risk for physical abuse while the long periods of sleep after drug binges may lead to neglect of children's basic needs. People using substances in a harmful way usually experience social factors that impact on their substance use and mental well-being (Rickwood et al, 2008).
8.13.3   Prediction of relapse for any former user of illicit substances is not an exact science and the risk of relapse can never be entirely guaranteed. For a large proportion of methamphetamine users, their dependence is chronic and involves continual risk of relapse (McKetin et al; 2010). Prediction of relapse by Mr Penfold is very difficult and given that stress can certainly trigger relapse (Sinha, 2007), Mr Penfold appeared to have done well to manage without relapsing while involved in this dispute.
8.13.4   Protective factors in the area of addiction can be defined as environmental, social, or personal variables linked to a lower rate of substance abuse. Wills (1998) noted “A protective factor at one point in time indicates a lower likelihood that a person will be a substance abuser at a later point in time (p403)”. Research has identified key protective factors and based on this Mr Penfold’s prognosis is improved because of his family support, current relationship, his current perception of the perceived harmfulness of drugs and hopefully avoidance of other users.
8.13.5   As noted previously, no criticisms have been made of Ms Owen’s care and she has acted as a very responsible grandparent in assuming her grandchildren’s care. Pryor and Rodgers (2001) note “Extended family members, especially grandparents, are vital sources of support for children (p119)”.
9   RECOMMENDATIONS
9.1    To date in her short life, X lived with her parents for about the first seven months and has now lived with her maternal grandmother for more than two years. To her credit, Ms Owen assumed all of her grandchildren’s care when her daughter, and for X, Mr Penfold could not care for them adequately, with serious care concerns because of drug abuse and no doubt related domestic violence.
9.2    Mr Penfold now claimed to no longer abuse non-prescription substances and to be happily re-partnered. His drug free status should be monitored for at least the next 12 months via random urinalyses. Mr Penfold now wanted to assume his daughter’s care. In this event, Ms Owen should assume the role of a grandmother, although in my opinion, X should spend more time with her than a child might with some grandparents, given the need for X to maintain her relationship with her mother and half siblings. Ms Owen is the conduit through whom such relationships can be maintained.
9.3    An additional concern must be Ms Owen’s advancing age coupled with her already extensive care responsibilities which include assisting a daughter with brain damage and meeting the needs of a boy on the autism spectrum. Although I could not do home visits, living conditions at Ms Owen’s seemed somewhat cramped.
9.4    Ms Owen wanted one of her daughters or her granddaughter A to assume X’s care in the event she could not continue to care for the little girl. Such a role would undoubtedly impede A’s progression to independence and perhaps to university and did not seem necessary at this stage, given Mr Penfold’s willingness to care for his daughter.
9.5   As said previously, X should not be precipitously removed from her grandmother’s care. Ideally, by the time she is about five in my opinion, X should reside with her father and spend three nights every second weekend with her maternal grandmother. X will be three in May this year. A gradual regime should be commenced as follows:
·   May 2016: day each weekend with father
·   June - October 2016: one day with her father one weekend and overnight alternate weekends with father
·   From November 2016, every two months add a day to the father’s weekends until X is with her father 11 nights a fortnight and with her grandmother for a three night weekend, alternate weekends.
9.6    Ideally any problems or issues should be addressed in counselling rather than by litigation.

Generally, I should be taken to accept Ms S’s evidence without reservation, save for some general comments later in these reasons regarding the time-frame for the transition of X into her Father’s care, while ensuring that she continues to spend regular time with her Mother, Grandmother and siblings.

Submissions

The Applicant Father’s submissions, which were provided by email to Chambers dated 4^th June 2016, were as follows:
Commencement of relationship
1.     Relationship with respondent commenced in 2011.
I remained in this relationship with the respondent for approximately two years and I was the primary care giver, I provided for and raised her three children from a previous relationship with Mr S.
C aged 3, B aged 5 and A aged 12 at the time of the commencement of the relationship. On the (omitted) 2013 we proudly announced the birth of our daughter X.
In this relationship I was a victim of domestic violence.
The respondent and I separated late December 2013 X aged Savon [sic: “seven”] months at the time of this separation.
Supporting evidence: Police report subpoena.
Visitation with X 2014
2. X resided with the first and second respondent for approximately seven months, in this time I requested Ms. Ms Owen for visitation.
She declined but then for some reason changed he mind after asking for seven months.
Ms Owen allowed my family and myself to have unsupervised visits every Sunday from 9am – 3pm prior to December 7th 2014.
Ms Owen ceased our visitation with no explanation of why.
Canberra specialist
3. Ms Owen had taken my daughter X to be examined I used that term loosely as I feel it to be more of a violation of my daughter if anything as it is such an invasive procedure and upsets me greatly.
This had taken place in Canberra on the 14th January 2014.
Ms Owen was clearly informed by the specialist and also a police officer that X had not been sexually assaulted, she was not penetrated, there were no cuts and or abrasions, that the redness was normal and that the rash could be thrush.
I strongly believe that if Ms Owen continues to say that X was sexually abused that X will develop false memories of an event that never actually occurred and this will affect X’s mental health and life greatly.
Supporting evidence:
· Ms Owen’s affidavit dated 13/05/2014 paragraph 37.
· Canberra medical records subpoena.
Interim hearing Parramatta
4.     Four months after the fact on the 2/04/2015 a court interim hearing was held in Parramatta before judge Harman.
Ms Owen attended via phone, I attended in person with the support of my family.
Moments before judge Harman made his final verdict he stated if there is any reason why I should not grant Mr. Penfold with his requested interim order state now, Ms Owen stated that I sexually assaulted my daughter X.
Ms Owen also stated that she had not had X examined yet.
This was the first time I had herd of the alleged assault.
I was and still am extremely devastated and heartbroken that Ms. Ms Owen would stoop so low and make such a self-serving blatantly (omitted) false claim about me under oath.
X’s safety
5. Ms Owen stated on the 24/04/2015 that she had a pre existing Avo against Ms Milton’s husband Mr S as he is extremely violent and had been release from prison he was goaled for attempting to murder her daughter Ms Milton, and they all feared him and the AVO was going to expire soon so she was going to get it extended because the police had informed her that Mr S was going to (omitted) to steal B and C.
6. A, B and C were all sexually assaulted in Ms Milton and Mr S’s care.
7. Ms Owen stated in court on the 31st May 2016 that she now allows unsupervised visits 3 days a week to take place between her grandchildren and Mr S at his residence, and has not had to undergo urine analysis and has not undergone court proceedings for this.
Supporting evidence:
· Ms Owen affidavit 13/5/2016 paragraph 5
· Aboriginal family service report subpoena
· Mr Penfold’s affidavit 13/5/2016 Annexure 1 page 12-14
Relationships Australia contact visits
8. X was previously attending (omitted) early learning centre (omitted) on Monday and Friday.
· Soon after orders were made for supervised visitation at the children’s contact Centre, I applied for the first and most commonly agreed upon option of 2 hours every second Friday unfortunately Ms. Ms Owen declined.
- Ms Owen’s reason where she could not change X’s days at day care and this doesn’t suit X. Then Ms Owen enrolled X for a third day on a Wednesday.
- I believe that Ms Owen could have changed X’s day care day from a Friday to a Wednesday. Intern I have had to receive the minimal allowed time possible.
- One year after being approved by the children’s contact Centre had approved my family and X’s siblings to spend time with X in one of my two allocated hours, Ms. Ms Owen declined and was still unwilling.
- We even asked the children’s contact Centre if they could ask Ms Owen if she would consider allowing D to come in with me for half an hour just to X could meet her new baby sister, but Ms Owen strongly declined and stated to them via email that it is highly inappropriate for X to meet new people.
- Ms Owen was unwilling to compromise in the slightest and I truly believe she has no intention of abiding by any rulings that the court puts in place and I am truly concerned that this matter will have to be herd again for many years to come.
- I have only been able to have contact with X for a total of 14 hours in the past year and approximately 5 months.
Supporting evidence:
· Relationships Australia contact reports, subpoena and emailed correspondence.
· Ms Owen’s affidavit 13/05/2015 paragraph 12
· Ms Owen’s affidavit 2/05/2015 paragraph 11
Ms S expert report
9.     Court orders were put in place for Ms Owen to bring X to Ms S so that Ms S could asses my partner, our children and my interaction with X and Ms Owen did not comply, intern [sic] a new date was set a month later.
· Ms Owen stated to Ms S that I had given her a document stating I could have X fortnightly and she assumed it was a legal document.
· Which in fact Ms Owen had been suggested by staff at the court house to give me a statutory declaration, which she did not.
· I believe Ms Owen bends the truth so it became self-serving.
Supporting evidence:
· Ms Owen’s affidavit 13/05/2016 paragraph 31
· Ms S’s report 5.52 page 24.
My current circumstances
10. I currently live with my partner and our three children in a large modern four bedroom home, I have started my own business ABN: (omitted).we can provide X with her cultural needs and would love for X to become engrossed in her aboriginal culture and we want X to be able to enjoy all the things she has been missing out on, the special occasions, the once in a life time events, the simple things we do as a family that create loving memories.
Supporting evidence:
- Mr Penfold’s affidavit 13/05/2016 paragraph 43/44/47/48
The Respondent Grandmother’s submissions, filed 10^th June 2016, were as follows:
Application
1. By Initiating Application (“Application”) dated 4 February 2015 Mr Penfold (“Applicant”) seeks orders for sole parental responsibility and restoration of X (“X”) including ancillary orders.
2. Ms Owen “(Respondent”) historically opposed the making of the orders sought in the Application but subsequent to the hearing of the evidence in the proceeding the Respondent concedes parental responsibility should be shared equally between the Applicant and Respondent.
Evidence
3. The Applicant's evidence consisted of two Affidavits affirmed 4 February 2015 and 13 May 2016. He was crossed examined. There are number [sic] of reasons why caution should be afforded to accepting the Applicant's evidence prima facie but certainly where there is any inconsistency when compared with the Respondent's evidence or documentary evidence. First, the Applicant consistently maintained he has been “the victim” of domestic violence and generally mitigated or placed insufficient weight on the significance of his lifestyle choices including systematic drug misuse and abuse and abandoning his known children.
4. Secondly, in cross-examination, the Applicant emphatically denied ever using violence against Ms Milton, the mother of X. Conversely, the Applicant was open and honest to the intake officer at (omitted) Alcohol and Other Drug service when he was “vocal about doing this program for himself as he has become a violent man and he is not very proud of himself ... [in the material produced on subpoena from (omitted) Health Care].
5. Thirdly, the Applicant gave evidence that was challenged with respect to commencing a (omitted) business. The Applicant's intentions of commencing a business were not deposed in written evidence and the first time such intentions were ever raised was at the hearing of the matter. Counsel for the Respondent called on all documents and information with respect to commencing that business and it can be hardly suggested that the call was satisfied: two small pieces of ripped paper were produced (without dates) in response to the call.
6. Fourthly, the Applicant gave evidence that he effectively was “willing and able" if shared parental responsibility was ordered to work with the Respondent to amongst other things facilitate contact. This evidence ought to be afforded little weight when compared with a number of the Respondent's written submissions. For example, the submission “A, B and C were all sexually assaulted in Ms Milton and Mr S's care” is a scandalous and gratuitous comment based on absolutely no evidence. This submission is demonstrative of the lengths to which the Applicant will go to achieve his objective.
7. It is for these reasons the Applicant's evidence should be wholly rejected but if that submission is not accepted the Court should approach the Applicant's evidence with considerable caution.
8. The Applicant's partner, Ms K gave oral evidence at the hearing in circumstances where she had not deposed an Affidavit. Ms K's evidence should be accepted insofar as she is seemingly a caring and capable single parent raising her children appropriately. Ms K has a very young daughter with the Applicant and very little is known about the potential impact and additional pressure on her existing family that is likely to occur if X was to reside with the Applicant. Ms K was reasonably confident she would be able to effectively resume the role of X’s “mother”, the Respondent’s [sic] submits it cannot be said with any real degree of accuracy the nature and extent of the impact that will be had on X and whether it would be in her best interests. Therefore, the statue quo [sic] in relation to where X resides, even if provisionally, should be maintained.
9. The Respondent's evidence consisted of two Affidavits affirmed 13 May 2015 and 2 May 2016. She was crossed examined. It is submitted the Respondent's' evidence should be accepted as she gave evidence in a plainspoken and direct manner and made appropriate concessions. The Respondent assumed the role of carer for her granddaughter X in circumstances where her daughter, and relevant to the Application, the Applicant, were not physically or psychologically capable due to drug use taking priority. There was no evidence available which would support a finding that the Respondent had done anything contrary to carrying out an astonishing and exemplary role with X and placed X’s interests significantly above her own having retired from the workforce earlier at considerable financial cost and deferring her proposed retirement based adventures.
10. The Respondent accepts there has generally been a poor track record of communication between the Applicant and the Respondent. On any view of the evidence and in particular the documented history of violence and drug abuse it is submitted that this is an entirely reasonable position. The Respondent was challenged as to whether she would be capable of effectively communicating with the Applicant to which she indicated she would but there would need to be Court orders in place to regulate this process.
11. There was evidence before the Court the Respondent essentially prohibited the Applicant from seeing X on the basis of evidence suggesting X had been sexually abused whilst in the Respondent's care. This was a matter which was extensively cross examined and despite the testing of her evidence the Respondent maintained her concern for which it is submitted is reasonable in all of the circumstances. In a report dated 17 December 2014 (ACT Government, Child at Risk Health Unit), Dr C (Staff Specialist) concludes (in part):
The most likely explanation is a midline fusion defect plus irritation from the nappy rash although the possibility of trauma cannot be excluded [emphasis added].
12. This conclusion in the Respondent's submission does not categorically dismiss the proposition sexual interference of some type did not take place. This conclusion needs to be considered in light of the fact the Respondent's granddaughter A observed a “cut” or a “tear” between the opening of the vagina and the anus while in the bath with X to which was objectively observed by the Respondent and a general practitioner which ultimately led to X being referred to the (omitted) Hospital. Therefore, the Respondent cogently submits, any suggestion the Respondent unreasonably continued to rely on the possibility sexual interference occurred or moreover used the material maliciously or to obtain an advantage in the proceedings over the Applicant should be emphatically rejected.
13. The Respondent is a proven and tested parent and carer having successfully raised a number of children. The Respondent continues to be the sole carer for A, B and C although Ms Milton provides some basic, fully supervised assistance and respite. This is in stark contrast to the Applicant who in the Respondent's submission abandoned his daughter (who now has attained the age of 19) and X on the basis he prioritised drug use over his parental duty and responsibility.
14. Given the limited rehabilitation (9 days) the Respondent has received which has not involved any follow-up treatment or counselling the risk of relapse into illicit drug use is insurmountable. For this reason the Respondent submits in circumstances where the Court orders shared parental responsibility (which is highly likely) the Respondent should be monitored for a period of 24 months with regular drug screen with appropriate continuity [unlike previous drug screening (Exhibit “Al”) which was only "intended as an aid to clinical management and is NOT suitable for forensic or medico-legal drug testing purposes”].
15. The Respondent was challenged about her capacity to continue to care for X given her seniority relative to the Applicant. The Respondent gave evidence that although she had signs of age related osteoarthritis (for which she takes medication) she strongly rejected the proposition she would not be capable of caring for X until she reached the age of majority and this evidence should be accepted. However, the Respondent acknowledges her evidence with respect to the capacity and/or willingness of A to care for X should be afforded minimal weight on the basis A was not called as a witness in the proceeding and her intentions clearly are speculative at the present time.
Expert evidence
16. The report of Ms S, clinical psychologist dated 31 March 2016 was admitted into evidence without objection and the witness was cross examined by Counsel for both the Respondent and Independent Children's Lawyer.
17. The Respondent supports the expert's opinion with respect to random drug urinalyses but submits the period of testing should be for a period not exceeding 24 months given the obvious significant history.
18. No recommendation by the expert was made concerning parental responsibility and the Respondent concedes the Applicant and Respondent should have shared parental responsibility. Further and with respect to the recommendations in Ms S’s report at paragraph 9.5, these recommendations should not be preferred over the Respondent’s suggested orders in her case statement dated 26 May 2016 (other than the concession concerning shared parental responsibility) as the latter in the Respondent’s submission better provides for X’s best interests.
Final orders
19. The Respondent submits that X’s best interests will be appropriately served by the making of orders consistent with the Respondent's case statement dated 26 May 2016 save as to the concession with respect to shared parental responsibility.
The Counsel on behalf of Independent Children’s Lawyer filed his Submissions with the Court on 1 July 2016, which are set out in full as follows:
Matters Relating to Credit
2. The ICL submits that there is no specific issue of credit in that the evidence of both the Applicant and the Respondent was mostly honest without deliberate deceit. There was however significant difference between the parties in their interpretation of events and what evidence was provided about certain events.
3. The Applicant readily conceded an extensive history of drug use and other anti-social behaviour. He did tend to minimise his level of responsibility for violence during the relationship with the mother and stated that his drug use was not as extensive or as great as the mother's. His credibility has been challenged in the submissions of the Respondent however, it is submitted such submissions cannot be sustained. Where challenged in cross examination the Applicant was able to provide corroborating evidence of his assertions, for example:
•    Photographs of the proposed bedroom for the child, X, (exhibit A2);
•    Production of the telephone on which he claimed to have recorded the mother in violent rages, (albeit that the phone was not able to be charged and the matter of the contents was not pursued further),
•    The material produced under the s 69ZW request by NSW police, (exhibit E), supported his claim that the mother was the greater perpetrator of conflict and violence in the relationship.
4. Counsel for the Respondent heavily attacked the credibility of the Applicant in submitting that the children had been sexually abused in the mother and Mr S care, calling it a "scandalous and gratuitous comment based on absolutely no evidence.” Such evidence was before the Court in exhibit J, which states specifically, “Ms Milton was unable to sustain any boundaries for the children or to protect them from harm during this period. As a result of this C and A were sexually assaulted.” (IFBS ID - Referral Reasons for Client Children).
5. It is submitted that the court can be satisfied that the Applicant did have a negative opinion of the mother and, at least to a certain extent, the Respondent, at least in regard to her actions and motives in the proceedings. To his credit however, he readily conceded that the Respondent had stepped in to care for and protect X and the other children when neither himself nor the mother were in any position to provide care.
6. Similarly, it is submitted that the court can be satisfied that the Respondent had a negative view of the Applicant and this affected the evidence of the Respondent in that evidence/opinion about the father was construed in the worst possible light. Under cross-examination the Respondent maintained a belief that the Applicant had sexually abused the child despite medical evidence providing a compelling explanation to what was observed. Similarly, she provided evidence of concern that the Applicant's partner, was “probably using drugs” based on a single observation from a distance, (R para 51). Again, to the credit of the Respondent, she was able to concede some thawing in her views of both the Applicant and his partner during the course of her evidence.
Power to Make Orders - The Legislative Pathway
Parental Responsibility
7. The presumption of Equal Shared Parental Responsibility (ESPR) under s61DA of the Family Law Act 1975, (‘the Act’). does not apply as:
a. the mother, Ms Owen [sic: “Ms Milton”] is no longer a party and is not in a position to exercise parental responsibility,
b. Section 61DA refers specifically applies the presumption to “parents” which would not include the Respondent, (see Caison and Others v Bowden (2008) 40 Fam LR 327, Donnell v Dovey [2010] FamCAFC 15).
8. As a result, the section 65DAA requirement for the court to consider equal time also does not apply.
9. Nevertheless, pursuant to section 64 of the Act the court can make parenting orders in favour of the Respondent and such orders can include orders for both parental responsibility, with whom the child will live and time the child spend with the parties, (s 64B(2)).
10. The test for making of such orders is simply the best interest of the child, applying considerations under section 60CC of the Act.
11.    The ICL seeks orders that the care of X gradually progress from the Respondent to the Applicant. During this period of transition, it is submitted equal shared parental responsibility between the parties is appropriate. However, once X has moved into the care of the Applicant, the Respondent will adopt a more typical grandparent role. The orders sought by the ICL reflect this by providing that the Applicant have sole parental responsibility once X is largely in his care.
Best Interest
12. The first consideration for the court is the primary considerations required under section 60CC(2) of the Act, noting that greater weight must be given to the need to protect the child.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
13.    It is submitted that this consideration is the central premise to the submissions of the Respondent and central to the considerations of the court. There is no doubt that X came into the care of the Respondent in circumstances where she took appropriate action to protect the X from abuse, neglect or family violence. The history of both parents' drug use and violence is such that the court must give serious consideration about the safety of X if she were to live with the Applicant or, indeed spend unsupervised time with him.
14.    In answer to this concern the Applicant:
a. gave evidence of completing a short drug detox/rehabilitation program and that he had been drug free since at least 2 July 2014. Notwithstanding that under cross-examination he admitted that he actually left the program a day early, it is submitted that there is no reason   to doubt the evidence of the Applicant   is this regard, particularly as there was evidence before the court, by way of drug urinalysis results, (Exhibit A1), supporting his assertion of being drug free.
b. gave evidence that, while the relationship was extremely volatile, he was not violent during the relationship with Ms Milton, but rather, Ms Milton was violent towards him and made false reports of violence to the police. This evidence was supported to a degree by the s 69ZW material, (ex E), which showed that the police did not consider Ms Milton's allegations to be truthful. However, Ms Owen also gave evidence of directly observing violence between the parents as well as evidence that the children have described violent behaviour by the Applicant during the relationship with Ms Milton.
c. gave evidence of his relationship with Ms K which appears to be healthy and supportive. Ms K gave evidence herself and it is submitted she was impressive in her evidence and support for Mr Penfold. If the tendered photographs of X’s proposed bedroom, (ex A2) were in any way accurate, the effort in preparing for the possibility of X coming into their care is frankly astounding
15.    Overall, it is submitted that it is open for the court to find that the Applicant was responsible for some violence during the relationship with Ms Milton and exposed X, (and the other children) to physical and psychological harm but the risk of future exposure is significantly reduced in his current circumstances.
The benefit to the child of having a meaningful relationship with both of the child's parents
16.    Under the orders proposed by the Respondent X would be unlikely to have a “meaningful” relationship with the Applicant. It is open for the court to find the Respondent does not consider that X would have any benefit from having a meaningful relationship with her father. This is demonstrated by her refusal to consent to there being more than 1 period of 2 hours' time per month and refusal to allow other paternal family members to be present, albeit that the Respondent did shift in this position in her oral evidence.
17.    The ICL submits that there is a benefit to X having a meaningful relationship with her father to the fullest extent possible.
Section 60CC(3) considerations
18.    The ICL submits that all considerations under section 60CC(3) are applicable to the circumstances of this matter with the possible exceptions of ss60CC(3)(a) and (g). However is submitted the court would have particular consideration of the following factors under section 60CC(3):
(b)     the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)     other persons (including any grandparent or other relative of the child);
This consideration is significant regardless of the orders the court makes. X currently has a significant relationship with not only the Respondent grandmother and but also her mother and her half siblings who live with the Respondent. The evidence shows the sibling relationship to be particularly significant. Should the court make the orders sought by the Applicant or the ICL the nature of the relationship is likely to be negatively affected, at least to a degree. However, the orders sought by the ICL will progress a move to the father's care gradually while maintaining the relationship X has with the maternal family members to the greatest degree possible.
(d)     effect of any changes in the child's circumstances - It is accepted that orders sought by the ICL will result in X having less time with the Respondent, her mother and her siblings. The change by way of decrease of time must be weighed against other factors outlined in these submissions. The Orders sought by the ICL try to alleviate the effect of such change to the greatest degree possible consistent with the other competing considerations.
(e) practical difficulty in spending time - this is a significant issue because the distance between the respective parties, while not huge, is such that it would be prohibitive to enabling anything approaching a shared care arrangement, not the least because of the necessity for X to attend a single school.
(f)     the capacity, ... , to provide for the needs of the child - This factor is largely covered under section 61DA considerations above. It is submitted that there is no concern with the Respondent's capacity to provide for the physical needs of X. There is some question about the Applicant's capacity but this appears to be largely connected to the previously considered factors of prior drug use. It is submitted the court can be further reassured by the presence of Ms K if the child was to live with the Applicant. The ICL supports the submission of the Respondent for the Applicant to be required to under random drug urinalysis screening for a further 2 years but that the requests be limited to up to 4 requests per year.
It is submitted that it is open to the court to have concerns about both parties' capacity to provide for the emotional needs of the child due to each largely dismissing the importance of X having a relationship with the other side of the family.
Given the age of the Respondent, and X’s very young age, the court could have some concern about the capacity for the Respondent to meet X’s needs in the future, however this is overall a minor consideration given the Respondent's apparent robust health.
(h) child's right to enjoy his or her Aboriginal or Torres Strait Islander culture; - X is aboriginal through her father's side of the family. The Applicant gave evidence that he embraces his aboriginality and is significantly involved in maintaining a connection with and exploring that culture.   Without criticising the Respondent in any way, the Applicant is better placed to meet the needs of the child in this regard.
(j) & (k) family violence - This is a significant risk factor. See submissions above under section 61DA.
Conclusion
19.    It is submitted that the evidence overall is such a gradual progression of X’s care from the Respondent grandmother to the Applicant father is in X’s best interest. Risk of relapse into drug use remains a significant concern but not such that outweighs the benefits to X of living with her father. As well as continuing urinalysis the ICL would encourage the Applicant to engage is regular ongoing drug and alcohol counselling to minimise any risk of drug relapse.
20.    The relationship between X and the Respondent, and equally or more significantly, her siblings and mother is extremely important and must be maintained. The orders sought by the ICL enable these relationships to be maintained to the greatest degree possible.
21.    It is submitted that overall the orders sought by the ICL best meet the interests of X.

The Father then filed his Submissions in Reply by way of email dated 5^th July 2016. This email read as follows:
We agree with the ICL's submition's [sic] and minute of orders sought bar point 5. Purposes of change over:
We request that the change over does not fall solely on the applicant,
We request that the responsibility of change over be shared equally between both parties involved in this matter,
We request that the father Mr Penfold collect X from the already agreed upon location of (omitted) in the morning's of each change over date and that the maternal grandmother Ms Owen collects X from the father's residence in (omitted) in the afternoon of each change over date.
As we believe there should be compromise in this matter.
Also we request with regards to the four yearly random urinalysis for two year's that the applicant Mr Penfold be contacted via phone on: (omitted) as this is the best form of contact method as we do not regularly check our email accounts.
We also have standing issues with the second respondent's continues false clames [sic] of X being sexually assaulted and no amount of evidence seems to put Ms Owen's mind at ease,
We have grave concerns of the effect that this will have on X’s mental health and believe if Ms Owen continues with publicly stating to the community and to X about these false allegations that X will indeed create false memories of an event that never occurred.

Consideration

First, as a general proposition, I accept and adopt the submissions of the ICL as the relevant considerations of the statutory pathway and views of the Court. It would be superfluous to go through each item of that pathway in terms that would, in large measure reflect, indeed mirror, the Court’s consideration of the evidence and the conclusions drawn from it by reference to the legislative provisions in Part VII of the Act.
Secondly, I need not, and will not, repeat matters regarding the Court’s concerns in relation to the Grandmother’s evidence set out at the commencement of these reasons.
Thirdly, I do not accept the Grandmother’s submissions in certain other respects in addition to the matters already highlighted. I have in mind, for example, the submission that the Father will go to any lengths to achieve his goal of having X in his care. In part, this was in circumstances where the submissions continued, as the cross-examination of the Father did, to focus on allegations that X may have been sexually abused by her Father. At its highest, the expert evidence (from the Child at Risk Health Unit at (omitted) Hospital) went no higher than saying that “the possibility of trauma cannot be excluded” with the same expert also saying that the “most likely explanation is a midline fusion defect plus irritation from the nappy rash.” While the allegation was properly put, the extent of the cross examination, and equally the submissions in this regard, in my view, were not supported by the expert evidence before the Court. But the allegations and submissions were used to form something of a pastiche to present the most adverse picture of the Father.
Fourthly, the Grandmother’s submissions do not address the proper and important consideration of the Father’s Aboriginality.[54] Nor do they address the significance of the Grandmother allowing X’s siblings to spend time, apparently, very regularly with Mr S, and also apparently, without any of the strictures that have been placed on Mr Penfold or which are proposed to continue, such as regular random drug screens. The inconsistency of approach of the Grandmother towards Mr S, on the one hand, having particular regard to his extreme violence and criminal history in relation to it and on the other hand, Mr Penfold and he spending time with X.
[54] See s.60CC(3)(h).
True it is that Mr Penfold has an acknowledged significant drug history (plus the other matters early in his “career”) of some break and enter offences. But comparatively with Mr S, and given the two year history of clear drug screens by Mr Penfold (plus the positive influence of Ms K and his two year or so relationship with her, and another young daughter, baby D), in my view there was a notable imbalance in the treatment of the evidence by the Grandmother, less so at trial but particularly so in the written submissions.
Fifthly, another area that in my view was significantly deficient in the Grandmother’s submissions was the (in my respectful view) remarkable oral evidence that, should anything happen to her, X should go into the care of her teenage sister, A. It was submitted by the Grandmother that because A was not called to give evidence (she was aged 16 years as at the date of the trial), this evidence, it was submitted, should be given little weight. Respectfully, “little weight” is the very most it should be given.
This is to say that, notwithstanding the Grandmother’s remarkable and laudable labours on behalf of her daughter and her Grandchildren, such evidence, and such a submission, suggested an extreme reluctance on the Grandmother’s part to give any credence to the Father being properly an integral part of X’s life, including, over time, to become her primary carer (with Ms K). This is also in the context where the Father’s evidence, which I accept, was to the effect that there would always remain significant “time with” arrangements for X to be with her Grandmother, her injured Mother and other siblings.
With minor adjustment, I accept the ICL’s Orders Sought, as amended by the written submissions on her behalf, notably in relation to the regime of drug testing. In my view, they are in X’s best interests, in accordance with s.60CA of the Act.
The Court is confident that if the Father remains drug free, and eventually becomes X’s full-time carer (with Ms K), he will facilitate and encourage a positive and meaningful relationship with Ms Owen, her Mother and her siblings. The father’s candid and genuine acknowledgement of his past, and his thanks to the Grandmother for all that she has done for X appeared (what the Court hopes can be) the beginning of the repair and healing of this relationship, as far as that is possible and appropriate. X plainly deserves to have all her family in her life in the most loving and full way. The Court is confident that her Father is now in a position to offer X a loving and caring environment (including with her baby sister D) whilst encouraging and fostering a strong and continuing meaningful relationship with her Grandmother, her Mother and the rest of her maternal family.
Upon X coming into the Father’s primary care in approximately two years’ time, which would then trigger an Order in his favour for sole parental responsibility (it being equal shared parental responsibility with Ms Owen until that time), it will still be a requirement that Mr Penfold keep Ms Owen (and through her, Ms Milton) informed of any major long-term decision(s) in relation to X.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Neville

Date: 21 December 2016

[2016] FCCA 3349

21 December 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness