PENNANT & TOMLINSON

[2017] FCCA 1284

FEDERAL CIRCUIT COURT OF AUSTRALIA

PENNANT & TOMLINSON [2017] FCCA 1284

Catchwords:
FAMILY LAW – Interim parenting orders – best interests of child.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel (2010) 43 Fam LR 348

SS & AH [2010] FamCAFC 13

Banks & Banks [2015] FamCAFC 36

Applicant: MR PENNANT

Respondent: MS TOMLINSON

File Number: PAC301 of 2016

Judgment of: Judge Newbrun

Hearing date: 31 March 2017

Date of Last Submission: 31 March 2017

Delivered at: Parramatta

Delivered on: 19 June 2017

REPRESENTATION

Solicitors for the Applicant: Slater & Gordon Lawyers

Solicitors for the Respondent: Legal Aid NSW Penrith

Solicitors for the Independent Children’s Lawyer: Phillip A Wilkins & Associates 

ORDERS PENDING FURTHER ORDER

1. That the mother shall have sole parental responsibility in respect to medical issues relating to X, born (omitted) 2014 (the child).

2. That the child shall live with the mother.

3. That Order 2a) and 2b) in Exhibit A of the Court’s interim orders of 12 October 2016 be discharged.

4. That the child spend time with the father under the supervision of Connecting Families, or such other individual supervisor, or supervision service, as agreed between the parties, for two hours each week, and subject to the following:

   (a)That only the father shall be present with the supervisor(s) for his time with the child;

   (b)That the father shall be solely responsible for all costs associated with the child spending supervised time with him;

   (c)That the time shall take place as agreed upon by Connecting Families (or such other individual supervisor, or supervision service, as agreed between the parties) in consultation with the parties; and

   (d)That the parties will follow all directions including but not limited to completing intake paperwork as required by the supervision service.

5. That the mother shall do all acts and things and sign all authorities necessary to authorise any pre-school or school which the child attends from time to time to provide the father with particulars of the child’s schooling, including but not limited to the provision of reports, notices of school photographs, circulars sent out to parents, notices of school excursions and any other activities to which the child is a participant.

6. That the mother do all things and provide all such authorities necessary to any medical practitioner, specialist, orthodontist and/or any other health professional who may provide medical treatment to the child from time to time so that the father can obtain particulars in relation to the child’s health and attend any specialist appointments he makes for himself. Upon the father obtaining the information and authority to contact the child’s specialists and other health professionals, the father shall attend upon such persons to obtain an understanding and advice in dealing with the child’s needs and medical issues.

7. That each party shall notify the other as soon as practicable of any serious medical illness or injury affecting the child when the child is in the care of that party.

8. That the parties shall limit their communication between them to matters directly relating to the child and such communication shall occur through sms messaging or email except in the case of an emergency.

9. That each party shall keep the other informed of their telephone contact number/s and email address and ensure that the other party is notified within 48 hours of any change.

10. That the Father is to submit to hair strand testing in accordance with the following procedure:

    (a)The father shall within seven (7) days of these orders arrange for a hair testing kit from the ESR Limited (“ESR”) to be sent to his GP, or in the event that his GP is not able to facilitate such test, to another GP; and shall advise the other side and the Independent Children’s Lawyer in writing he has have complied with this order;

    (b)The father is to attend upon such GP and submit to the collection of a 3cm hair sample within seven (7) days of the GP receiving the testing kit, and the GP shall then return the sample to the ESR for testing for all drug types; and the father shall advise the other side and the Independent Children’s Lawyer in writing that he has complied with this order;

    (c)The father irrevocably authorise the ESR to send his report to his solicitor and a copy of that report to the other parent and the Independent Children’s Lawyer within 7 days of completion of each such report; and

    (d)The father shall be responsible for payment of all fees associated with the conduct of his test/s including the GP’s fees and the ESR’s fees.

11. That on one other occasion nominated by the Independent Children’s Lawyer between the date of this order and the final hearing that the father is to submit to further hair strand testing in accordance with the following procedure:

    (a)The father shall within seven (7) days of these orders arrange for a hair testing kit from the ESR to be sent to his GP, or in the event that his GP is not able to facilitate such test, to another GP, and shall advise the other side and the Independent Children’s Lawyer in writing that he has complied with this order;

    (b)The father is to attend upon such GP and submit to the collection of a 3cm hair sample within seven (7) days of the GP receiving the testing kit, and the GP shall then return the sample to the ESR for testing for all drug types; and the father shall advise the other side and the Independent Children’s Lawyer in writing that he has complied with this order;

    (c)The father irrevocably authorise the ESR to send his report to his solicitor and a copy of that report to the other parent and the Independent Children’s Lawyer within 7 days of completion of each such report; and

    (d)The father shall be responsible for payment of all fees associated with the conduct of his test/s including the GP’s fees and the ESR’s fees.

12. The father is restrained from consuming any illegal substance or consuming alcohol for 24 hours prior to the child spending supervised time with him, and when the child is spending supervised time with him.

13. The father shall, within 14 days, enrol in (and thereafter complete) (or if no current enrolments are available, place his name on the waiting list for the next available) an anger management course and complete the Circle of Security course.

14. That the father shall within fourteen (14) days, provide in writing to the mother’s solicitor, details of which courses he is enrolled in and/or attending.

15. That the father shall attend the courses in accordance with the recommendation and directions of the course provider and should the course provider indicate that the program is not suitable, the father shall obtain information and if necessary a referral to a more suitable course as may be recommended by the course provider.

16. That upon completion of any course(s) the father shall provide the mother’s solicitor, within seven (7) days of receipt, a copy of any certificate(s) of completion.

17. That the parties shall communicate by way of email in regards to parenting issues.

18. Liberty to the Independent Children’s Lawyer to relist the proceedings on seven days’ notice in the event, inter-alia, that the Independent Children’s Lawyer’s supervised drug testing requests of the father produce a positive or abnormal test.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 301 of 2016

MR PENNANT

Applicant

And

MS TOMLINSON

Respondent

REASONS FOR JUDGMENT

Introduction

1. This was the father’s interim application to spend unsupervised time with the child of the relationship, X born (omitted) 2014. The child has been diagnosed with right hemiplegic cerebral palsy.

2. Since about November 2016, the father has spent at least 8 fortnightly visits, on a supervised basis, with the child at the (omitted) Children's Contact Centre for 2 hours on each visit. (The Court’s interim hearing was held on 31 March 2017).

3. The father’s interim application was opposed by the mother, who, in accordance with her proposed interim orders set out in her Response filed 29 April 2016, in effect seeks a continuation of previous interim orders (12 October 2016) that the child spend supervised time with the father at the Contact Centre for 2 hours per fortnight. The mother’s Case Outline was Exhibit C.

4. The consent interim orders of 12 October 2016 provided, inter alia, for the child to spend time with the father on a supervised basis at the Contact Centre for two hours each fortnight.

5. The father proposes interim parenting orders, inter alia, that the child live with the mother; and that the child spend unsupervised time with him on a graduating basis, beginning each Sunday for two hours for two months; then each Sunday for three hours for two months; then each Sunday for a period of five hours for two months; then each Sunday for eight hours during the daytime. His proposals were set out in Exhibit A (proposed order 4 was not pressed), and the mother agreed with proposed orders 1, 5-8 inclusive, 10 -12, in Exhibit A.

6. The father’s alternative proposal, in the event that the court ordered that the child’s time with the father continued to be supervised, was that such time be supervised by Connecting Families or such other individual supervisor, or supervision service, as agreed between the parties.

7. The Independent Children’s Lawyer’s proposals essentially adopted the father’s proposals in Exhibit A, but with these amendments (see Exhibit B):

   a)Before the child begins to spend unsupervised time with the father, the child shall spend time with the father “each alternate Sunday for a period of two hours from 1PM to 3PM for 3 occasions supervised by Connecting Families”.

   b)For the purposes of the above order (regarding supervised time with Connecting Families), the parties shall do and sign all documents, including any intake assessment, as necessary for the father to spend time with the child in accordance with that order, and pending the commencement thereof, the father’s time with the child will continue at the (omitted) Children's Contact Service on a supervised basis, in accordance with the orders made on 12 October 2016.

   c)The father shall bear all costs associated with Connecting Families.

   d)In relation to proposed order 6 in Exhibit A, that the following order be added:

   “Upon the father obtaining the information and authority to contact the child’s specialists and other health professionals, the father shall attend upon such persons to obtain an understanding and advice in dealing with the child’s needs and medical issues.”

8. The Independent Children’s Lawyer, regarding parental responsibility, proposed an order that the mother have sole parental responsibility in respect to medical issues relating to the child, but not otherwise. The mother agreed with this proposal. The father sought no order for parental responsibility.

9. In submissions, the Independent Children’s Lawyer stated that the Court could give liberty to the Independent Children’s Lawyer to restore proceedings to the Court’s list if any problems arose in the child spending unsupervised time with father.

10. The mother submits, which the father disputes, that there is an unacceptable risk of harm posed to the child if she was to spend unsupervised time with the father, by reason of, inter alia:

    a)alleged past family violence perpetrated by the father against the mother, in the presence of the child;

    b)alleged illicit drug use and alcohol consumption by the father;

    c)The father’s alleged lack of parental capacity for the child.

Material relied upon by the parties

1. The mother relied upon her Affidavits filed 29 April and 28 September 2016, Notice of Risk and Response filed 29 April 2016.

2. The father relied upon his Affidavits filed 25 January 2016, 7 October 2016, and Affidavits of his mother sworn 2 May 2016, and another filed 10 October 2016.

3. The parties relied upon the Child Dispute Conference Memorandum to Court dated 15 September 2016, Exhibit G (noting that the father attended this conference by telephone).

4. The parties relied upon certain subpoenaed material: Exhibits D, E and H.

5. The father relied upon certain drug testing material: Exhibit F.

Background

1. The father is aged 28 years and the mother is aged 24 years.

2. The mother told the Family Consultant at the Child Dispute Conference on 15 September 2016 that any time the child spends with the father should be supervised. She stated that because of the child’s young age and the vulnerability of her disability, such time should occur at a Contact Centre rather than by a supervision service, so that the child is always in the same familiar environment.

3. Since about June 2015 and up to about November 2016 (except for one visit on 10 August 2015), the father did not spend time with the child because the mother did not facilitate the child spending time with the father.

4. According to the father, the parties commenced cohabitation in 2013. The child was born on (omitted) 2014. The father, then a (occupation omitted), had taken a total period of three months off work in the period leading up to and after the child’s birth. The father spent time caring for the child with the mother after her birth.

5. The father returned to (employment omitted) for work in March 2014. The father’s work schedule at this time required him to be away for four weeks at a time. The mother and the child moved in to live with her parents.

6. The father asserts that over the following 6 to 8 months there were periods of reconciliation, and there were often times when the mother and the child would stay overnight at his residence and vice versa. He asserts that he was able to enjoy spending frequent and regular time with the child during these periods when he was not otherwise at work.

7. The father asserts that by late 2014 the parties decided to end their relationship.

8. The father asserts that the parties attended a Family Dispute Resolution Conference on 31 March 2015, but a parenting plan was not signed. The father asserts that shortly thereafter the mother submitted to him her own proposal for the father to spend time with the child. He claims he signed the mother’s proposal.

9. The father asserts that after entering into this agreement, he commenced to spend time with the child each Monday and Friday for 5 hours from 12 noon until 5PM. The father asserts that this arrangement occurred on a regular basis for the entire period of time when he was not working. The mother asserts that this time spent by the child with the father was supervised by the paternal grandmother, which assertion the father appears to dispute. In this context, the Court notes the paternal grandmother’s statement that on most occasions that the child came into the father’s care, she saw the child.

10. In about June 2015, the father asserts that the mother sought to reduce his time with the child from 5 hours to 2 hours on each visit, the mother claiming that the child was anxious following visits with the father. The father asserts that his time with the child was always positive and he did not ever experience any issues with anxiety being demonstrated by the child.

11. The father asserts that the mother raised her concerns about the child’s “supposed anxiety” and there were arguments, with the mother ultimately deciding to unilaterally cease all of the child’s time with the father in June 2015. Thereafter, the father sent emails and text messages to the mother (and her parents) in, for example, September and November 2015, seeking to spend time with the child.

12. As at 22 February 2016, following examination at the Cerebral Palsy & Movement Disorder Clinic by health professionals, the primary issues in relation to the child’s diagnosis of right hemiplegic cerebral palsy included right-sided weakness, increased tone and complications with vision (slower eye movement, slow dilatation and anecdotally decreased peripheral vision on the right side). A history was taken of, inter alia, trips and falls about 10 times per day, dependency on the mother for dressing, undressing and washing, and she needs support with stairs (see Exhibit D, Sleeve 5,6,7, tendered documents).

13. In late April 2016, the father was made redundant from his (omitted) employment, where he had worked for 8 years. He then began to look for work. At the time of his Affidavit filed 7 October 2016, the father was working 6 days each week, with a day off on Sundays (the court notes that the father’s supervised visits in 2017 have usually occurred on a Sunday).

14. Exhibit F contains certain previous drug tests results relating to the father. The negative urine drug screen performed on 7 October 2016 was not a chain of custody test. A chain of custody urine drug screen test performed on 20 January 2017 was negative. A carbohydrate deficient transferrin (CDT) test performed on 20 January 2017 stated, inter alia, that the normal CDT does not support excessive alcohol intake. A urine drug test – chain of custody performed on 8 February 2017 (at the instance of the ICL) was negative. The ICL informed the court that he had on 21 March 2017 requested a further urine drug test of the father but that the father was overseas and the request was not complied with by him. The ICL submitted that he wanted to request a further 2 urine drug tests of the father during the ICL’s proposed time that the child would spend with the father through Connecting Families. Further, the ICL did support hair strand testing (2 hair strand tests, including one such test before the final hearing) submitting that hair strand testing was capable of determining longer and more ongoing drug use and may well provide a more accurate indication of any drug use.

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at [100] their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”

1. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks v Banks (2015) FamCAFC 36, especially at paragraph 46 to 52.

2. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

3. In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

4. Section 60CC of the Act provides that in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

5. When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA (3).

6. If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

7. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.

8. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the court may make such orders in the discretion of the court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration.

1. Both parents reported to the Family Consultant at the Child Dispute Conference on 15 September 2016 that the child had not seen the father for nearly 12 months.

2. The child has a meaningful relationship with the mother and would benefit from a continuance of that relationship. The mother has been the child’s primary carer from birth to date.

3. The child has a developing relationship with the father and may well benefit from a meaningful relationship with him, subject to the child not being exposed to physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence in his care.

4. The father asserts that the parties’ relationship mutually ended by late 2014, with the mother stating that the parties separated on a final basis in March 2015.

5. The mother asserts that the father began to spend supervised time with the child at Easter 2015 (the father appears to dispute such time was supervised). She states that by June 2015 the child was spending 4 hours twice a week with the father, supervised by his mother at her home. She states that in about July 2015, she ceased contact between the child and the father, although the father spent time with the child for about 1 hour on 10 August 2015. There was then no time spent by the child with the father until about November 2016 following the consent interim orders of 12 October 2016.

6. On 12 October 2016, by consent the Court ordered that the child spend time with the father as agreed, but failing agreement on a supervised basis through the (omitted) Children's Contact Centre for 2 hours on a Sunday once per fortnight. Thereafter, and to the date of the interim hearing, the father had spent time with the child at the Contact Centre for about 8 fortnightly visits.

7. The above Centre’s session notes in evidence, Exhibit E, sleeve 19, from about late October 2016 to early 2017, indicate that the child and the father played together, with the child ultimately being able to leave the mother’s physical presence at the Centre without distress. In the later visits, the child and father were observed to act affectionately towards each other, and say affectionate words to each other.

8. At this interim stage, should the child spend regular weekly supervised time with father, there is a real prospect that the child’s present developing relationship with the father will continue to progress to a more significant relationship. In this context, the Court takes into account the apparent progress in the child’s developing relationship with the father through the supervised visits at the Contact Centre.

9. The court gives significant weight to this meaningful relationship primary  consideration.

Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The mother alleges that the father regularly abused illicit substances, including steroids at the beginning of their relationship, and use of cocaine and ice. She describes the father as a heavy drinker of alcohol. She alleges an incident when the father punched a man in the face at a bar, and assaulted the person in a car park thereafter, after the mother had informed the father that the man had commented to the mother that she was tall. The mother alleges that the father’s lack of parenting skills, short fuse and aggressive personality causes her to have real concerns about his ability to manage the child, and she has fears for the child’s safety as a result.

2. The mother tendered a pathology report, tab M11, Exhibit D (sleeve 18) in relation to a urine drug test of the father, collection date 10 June 2014, printed date 12 June 2014, referring to a positive test result for cocaine metabolites. The email message from the father to his employer on 13 June 2014, relating to the positive test, states, inter alia, “I really have no idea how the test came back positive because I have never used or ever intended to use drugs.”

3. The Court notes that the father told the Family Consultant at the Child Dispute Conference on 15 September 2016, inter alia, that he had used cannabis when younger, but had never tried any other illicit drug. He said that the maternal grandfather is a (occupation omitted) and may be advising the mother about what to claim in order to convince the Court that he uses illicit drugs. The father told the Family Consultant that he denied he had ever had a failed drug test through an employer. The father denied consuming alcohol to excess or that he uses illicit substances.

4. The Court further notes that in the father’s Affidavit filed 25 January 2016, he states that as part of his employment he is regularly subjected to alcohol and drug testing, and he asserts that he has not ever failed a test.

5. In the mother’s Affidavit filed 28 September 2016, paragraph 51, she refers to Annexure G, being a conversation with the father on Facebook in which, on 27 January 2015, the mother tells the father,

   “Alcohol? Drugs? Abuse of pot when you were younger? You will notice that with any major issues that I had with you majority of them stem from substance-abuse mainly alcohol (just because it something that you regularly have). And you refused to give that away.”

   The father replies, “I don’t refuse to give it away. I’m willing to get help…”

6. The mother alleges in her affidavit filed 29 April 2016 that the father has been physically violent towards her on multiple occasions throughout the relationship, including cornering the mother, standing over her, pointing his finger in or on her face, grabbing her by the shoulders, throat or back of the neck, or a combination of these things. The mother refers to regular threats of physical violence from the father during the relationship. She refers to the father becoming angry at her in certain circumstances. She alleges that the father has a short fuse and an aggressive personality.

7. The Court notes the mother’s affidavit filed 29 April 2016 is a very detailed Affidavit, which is not expressly responded to by the father in his later Affidavit filed 7 October 2016, although the Court notes that the father in his Affidavit filed 25 January 2016 stated that there were never any episodes of family violence throughout the entire duration of the parties’ relationship, and he told the Child Dispute Conference Family Consultant that he denied ever having been physically violent towards the mother.

8. The mother alleges an incident in October 2014 in a car with the child and the father. The father screamed at the mother from the back of the car and threw his phone at her. The child became distressed and began to cry and scream. The father allegedly screamed and swore at the child to be quiet.

9. The mother alleges an incident at her home on 21 September 2015 when the father arrived at her home and began banging on the front door requesting to see the child. The mother called the police. The father refers to having attended the mother’s residence in his Affidavit filed 25 January 2016 requesting to see the child and complying with the mother’s request to leave her residence after the mother had told him she would call the police. The father states that he was warned by the police to stay away from the mother’s residence otherwise an AVO could be issued.

10. The mother alleges that the father had threatened to take the child and not return her. She alleged that the father has a short fuse and she is fearful that he will not be able to appropriately regulate this when caring for the child. She had raised concerns about his capacity to manage when the child becomes frustrated and throws tantrums.

11. The father admitted to having been convicted of an assault (the assault having occurred in July 2015) on a random person at a casino. He had one (1) alcohol related driving offence five years ago.

12. The father asserts that his inability to spend time with the child left him feeling extremely upset, dejected and helpless. After the casino assault, he had four (4) sessions with a psychologist, receiving advice on how to better deal with his emotions which he found beneficial.

13. Exhibit D, tab M1, Sleeve 4, being the NSW Police event notes for the above assault incident on 18 July 2015, refers to the father having consumed seven Bourbon alcoholic beverages, becoming involved in a verbal argument with another person, and then with closed right fist, striking the victim’s face causing pain, bruising and a small laceration. It refers to the father having then continued to assault the person by throwing several more punches and knees which made contact with several parts of his body. It refers to security having pulled the father away from the person and walked him to an interview room within the casino where police have been subsequently contacted.

14. Also within Exhibit D, is a Victorian Police entry, tab M6, Sleeve 3, for the date 6 November 2012, referring to a nightclub incident wherein the victim was drinking next to a table inside the nightclub, when the father approached him and began punching him in the face area, causing the victim to go to the ground. It is stated that the father continued to punch the victim to the face area until both parties were separated by the father’s friend and security guards. The father was arrested and detained by security until the police arrived a short time later. The victim was given medical treatment at the scene for cuts to his lip and forehead area. The father was arrested when he was interviewed in relation to the assault, and the father claimed self-defence. It is stated that CCTV footage clearly shows an unprovoked assault by the father, and as a result he was charged and bailed to appear at Court.

15. The mother’s Affidavit filed 29 April 2016, refers to her extensive care of the child and her attendance at over 90 appointments with the child for her cerebral palsy, and states that the father has attended no more than 10 of those appointments. She alleges in this context, inter alia, that at the appointments that the father did attend, he spent his time playing with the child instead of engaging with the health professionals in relation to the child’s condition.

16. The mother refers to everyday personally providing the child with moderate to intense therapy, including stretches, massage and play to build her hand skills; physical assistance, for example to go up and down stairs, as the child struggles with her balance and trips and falls over several times a day; and constant supervision (also due to her age). The mother refers to the child’s achieving 99% of the goal set by the Cerebral Palsy Alliance because of the child’s sheer determination, and because the mother is a stay at home mother, and is therefore able to provide the child with routine, supervision and motivation. The mother states that whenever this is changed, the child has become distressed, unsettled and tired.

17. The mother refers to the child being highly intelligent in that she understands what she wants and how she should get it. However, her body does not always let her execute the task. At these times, the mother asserts, the child becomes extremely frustrated and she has tantrums which have lasted up to half an hour.

18. In the mother’s Affidavit filed 28 September 2016, she refers to the child becoming distressed if any part of her bedtime routine changes, including if she falls asleep in the car or misses a nap. She states the child becomes stiff, and throws herself around like a dead weight, refusing to bear weight on her legs, flopping down and screaming. The mother refers to following the child’s cues to know when to intervene to assist the child and when to encourage her to keep trying with a task. The mother states that if the child is pushed too far she walks away crying, and is difficult to console. She is also less likely to attempt the task again in the future.

19. In the above Affidavit of the mother, the mother states that she understands that due to the child’s disability, the child is at an increased risk of other medical complications, including seizures, hip problems, behavioural problems, increased levels of pain, difficulty swallowing, and difficulty with speech and communication. The mother states that the child continues to meet developmental goals for children with cerebral palsy, however she is still behind developmentally compared to children who do not have cerebral palsy. The child is unable to run or climb stairs, and has only recently been able to make a noise when clapping her hands. The mother states that she has decided that it is not feasible for her to join the (employer omitted) due to the level of care the child requires and her strong attachment to the mother.

20. The father asserts that, in relation to the child’s diagnosis of “a mild form of cerebral palsy”, he attended an initial appointment at the (omitted) Hospital with the mother relating to the child’s diagnosis. He asserts he attended appointments whenever he was not (employment omitted) with the Cerebral Palsy Alliance which provided a range of services to assist the child with her treatment. Exhibit H, tab F1, Sleeve 8, refers to the mother and father attending an occupational therapist session on 9 April 2015 with the child.

21. The father asserts that he attended other treating health professional appointments with the child when he was not (employment omitted). He asserts that since June 2015 he has not been able to receive any updates on the child’s treatment due to a breakdown in communication with the mother.

22. The mother told the Family Consultant at the Child Dispute Conference on 15 September 2016, that the child’s right side is affected, and she suffers with muscle weakness, low muscle tone, troubled balance and sight problems in her right eye. She states that the child is at a high risk for further seizures. The child attends the (omitted) Hospital at (omitted) for an injection of Botox every six months, and also attends the Cerebral Palsy Movement Clinic there. Her eye specialist is also at the (omitted) Hospital. She has attended physiotherapy and occupational therapy at the Cerebral Palsy Alliance in (omitted). She continues to attend there on a monthly basis but the mother does daily exercises with her at home.

23. The mother tendered a record from the Cerebral Palsy Alliance, Sleeve 8, indicating the mother attending occupational therapy consultations with the child during the latter part of 2016 to late January 2017.

24. The father resides with his parents at their residence at (omitted). At that residence there are three separate dwellings, being the main residence and two separate granny flats. The father resides in one of the granny flats which has two bedrooms, a kitchenette and a bathroom. The other granny flat is occupied by the father’s brother and his wife.

25. Up until 23 April 2016, the father was working as a (occupation omitted). During the employment he was subjected to regular alcohol and drug testing. He asserts that he did not ever fail a test.

26. In the father’s Affidavit filed 7 October 2016, he refers to having booked a place in the Circle of Security Course starting on 3 November 2016 and ending on 8 December 2016. He stated that he would like to do the course for a deeper understanding of the needs of the child’s age group and for some tips on parenting strategies; there is a notation to this effect in the court’s consent parenting orders of 12 October 2016.

27. He said he would like to spend time with the child each Sunday from 9AM to 5PM once the course ends on 8 December 2016, in addition to further times as agreed with the mother and on special occasions.

28. The paternal grandmother states that she had a close relationship with the child up until June 2015, as she spent time with the child prior to this time, including on most occasions when the child came into the father’s care. She states that she observed the father spending time with the child prior to June 2015; she states that the father’s time was devoted entirely towards the child, and she saw the father involve himself in all aspects of the child’s care. The father appeared relaxed and confident in attending to the child and would ask her for guidance if he required assistance. The child appeared to easily recognise the father and the rest of the family. She observed that whenever the child became upset or unsettled, she observed that the father was able to settle the child without issue.

29. The paternal grandmother states that her relationship with the mother has always been reasonably good.

30. The paternal grandmother states that she is prepared to assist in supervising the child’s time with the father.

31. The paternal grandmother works as a (occupation omitted) and works at the (employer omitted) at (omitted). She states that she is able to finish work at 1PM on Sunday if required which would mean that she could be home by 2PM.

32. The mother, in her Affidavit filed 28 September 2016, states that she does not believe that the paternal grandmother would be an appropriate supervisor for the father whilst he spends time with the child. The mother states that she has observed the paternal grandparents take illicit drugs, usually on special occasions such as Christmas or birthdays. She alleges that she also heard the paternal grandparents ask the father on several occasions if he could get drugs for them. She refers to the paternal grandfather drinking alcohol on a daily basis, starting at about 10AM and continuing through the day and night. She refers to observations of fighting at the paternal grandparents’ home on several occasions, including between the father and the paternal grandfather. She had observed the father and the paternal grandmother to argue almost every day and for the paternal grandmother to speak negatively of the father. Finally the mother asserts that she is concerned that the paternal grandmother would not respond appropriately or report on any incidences of concern arising from the father’s time with the child if she were supervising. The paternal grandmother, in her later Affidavit filed 10 October 2016, denies these allegations of the mother.

1. The Family Consultant at the Child Dispute Conference on 15 September 2016, referred to the father’s statement that the proposal in his Initiating Application, filed 25 January 2016, would have been a good arrangement for the child because he would have been working month on/month off and, in the intervening month, the child would have been able to spend significant time with him. The Family Consultant stated that it appeared that the father had limited knowledge about the needs of small children and the high degree of disruption such an arrangement would have caused the child. The Family Consultant, under the heading Future Directions, made a recommendation that the father complete the parenting program Circle of Security.

2. At this interim stage, the Court has concerns in relation to the child spending unsupervised time with the father. The Court’s concerns arise cumulatively from the serious nature of the mother’s allegations as to family violence (on at least one occasion in the child’s presence), allegations that the father does not yet have the parenting capacity for the child with special needs in relation to her cerebral palsy, the mother’s allegations as to the father’s illicit drug use and alcohol consumption and related anger management issues, and what would appear to be still a developing relationship between the child and the father.

3. As to the mother’s allegations as to the father’s present lack of parenting capacity for the child, the Court notes the mother’s allegations in this context, the father’s own evidence that he wished to complete the Circle of Security course, the paternal grandmother’s evidence as to her own guidance to the father, and the extent of the father’s participation to date in the child’s health professional consultations and day-to-day treatment regimes.

4. Without proceeding to make findings of fact, the Court notes an arguable inconsistency in relation to the father’s denials of illicit drug use which is of concern; for example, he denied ever failing a drug test through his employer, yet Exhibit D, (employer omitted), refers to an apparent positive random drug test in June 2014.

5. Further, in the context, in particular, of the mother’s allegations that the father has anger management issues with a propensity for violence, the father’s assertions that the assault on a third person in July 2015 at the casino was caused by his inability to spend time with the child and, as a result, he took out his frustrations on other persons, is arguably inconsistent with the alleged assault by him on a third person in Victoria in November 2012, and is of concern. Again, the court makes no finding of fact in this context.

6. The father refers to four (4) consultations with a psychologist for advice on how to better deal with his emotions, however there is no present evidence from that treating health professional as to the father’s treatment and progress in that context. This issue is not unimportant in the context of the child who, according to the mother can demonstrate frustration and resulting behavioural problems, in relation to her cerebral palsy physical limitations.

7. In view of the serious allegations made by the mother in respect to the paternal grandparents, which the Court notes the paternal grandmother denies, the Court has concerns as to the appropriateness of the paternal grandmother supervising the father’s time with the child at this interim stage.

8. The court is of the view that the Independent Children’s Lawyer’s proposal (Exhibit B) that the child spend three fortnightly Sundays of supervised time with the child through Connecting Families, before the child begins to spend unsupervised time with the father, in accordance with the father’s proposals (Exhibit A) does not, with respect, address the court’s concerns, referred to above.

9. At this interim stage, the Court’s concerns can be appropriately addressed and minimised by:

   a)The child continuing to spend supervised time with the father;

   b)The father completing the parenting program Circle of Security, as recommended by the Child Dispute Conference Family Consultant, (and noting the father’s intention to undertake this course recorded in the Court’s Notation of 12 October 2016);

   c)The father remaining subject to the Court’s interim orders of 12 October 2016 relating to the Independent Children’s Lawyer’s requesting supervised chain-of-custody urinalysis testing and supervised CDT liver function testing of the father;

   d)Being subject to hair strand testing as proposed by the mother, and supported by the ICL;

   e)The father enrol in and complete an anger management course;

   f)Upon the father obtaining the information and authority to contact the child’s specialists and other health professionals, the father shall attend upon such persons to obtain an understanding and advice in dealing with the child’s needs and medical issues;

   g)The father be restrained from consuming any illegal substance or consuming alcohol for 24 hours prior to spending supervised time with the child and during such time;

   h)Liberty be given to the Independent Children’s Lawyer to relist the proceedings on seven days’ notice in the event that the Independent Children’s Lawyer’s supervised drug testing (including hair strand testing) produces a positive or abnormal test.

10. The Court gives significant weight to this need to protect primary consideration (and the Court notes that pursuant to section 60CC(2A) of the Act, the Court is to give greater weight to the need to protect primary consideration as opposed to the meaningful relationship primary consideration).

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The child is too young to express any relevant views.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The Court refers to its discussion above under the meaningful relationship primary consideration.

2. The child remains in the primary care of the mother who lives with the maternal grandparents at their residence. The paternal grandmother referred to having a close relationship with the child, at least up to about June 2015 when the child ceased to spend time with the father.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. Both parents would appear to have taken such opportunities, whilst noting that in the father’s former employment as a (occupation omitted), he had practical difficulties in spending regular time with the child. There would appear to be a dispute between the parties as to the extent to which the father involved himself in the day-to-day health care needs of the child during the relationship.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. In the father’s Affidavit filed 7 October 2016, he states that in relation to child support, he has recently arranged a payment plan with Child Support to pay arrears in the amount of almost $3,000. The mother states in her case outline that the father presently pays child support as assessed.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The Court refers to its discussion above under the need to protect primary consideration.

2. Should the child continue to spend supervised time with the father, her meaningful relationship with the mother should not be detrimentally affected.

(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. The mother lives in (omitted) and the father lives in (omitted).

(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

1. The mother would appear to have such capacities, whilst the evidence at this interim stage is quite limited in relation to the father’s capacities, whilst noting that the supervised Contact Centre visits between the child and the father have been positive to date, and the Court refers to its discussion previously in this context.

2. The Court refers to its discussion above under the need to protect primary consideration, in particular, its discussion relating to the father’s present capacity to care for the child with cerebral palsy physical limitations.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. The court refers to its discussion above under the need to protect primary consideration, in particular in relation to the cerebral palsy limitations of the child, including her ongoing day-to-day therapy in this context provided by the mother.

3)(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

1. The father asserts that he has Aboriginal ancestry, from his father’s side of the family, namely his mother. He has an interest in learning about his Aboriginal heritage and identifying with his Aboriginal origins.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. The mother, as the primary carer of the child from birth to date, has demonstrated appropriate attitudes and discharged her parenthood responsibilities diligently. Again, there would appear to be a dispute between the parties as to the extent to which the father involved himself in the day-to-day health care needs of the child during the relationship.

(j) Any family violence involving the child or a member of the child's family.

1. The Court refers to the need to protect primary consideration discussed above.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.

1. Not applicable.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

1. These are interim proceedings.

m) Any other fact or circumstance that the court thinks is relevant.

1. As to testing of possible illicit drug use by the father, the court is of the view that continuation of the existing orders for drug testing of the father, together with hair strand testing, will be in the best interests of the child.

Parental responsibility

1. The Independent Children’s Lawyer, regarding parental responsibility, proposed an order that the mother have sole parental responsibility in respect to medical issues relating to the child, but not otherwise. The mother agreed with this proposal. The father sought no order regarding parental responsibility. At this interim stage, noting the age of the child, 3 years, the mother’s historical primary care of the child to date, including her significant day-to-day involvement in the child’s cerebral palsy treatment and therapy, the parties’ apparent lack of capacity to communicate or cooperate, and noting the continued supervised time of the child with the father, it will be in the child’s best interests for the mother to have sole parental responsibility in respect to medical issues relating to the child.

2. At this interim stage, noting the Court’s discussions previously in these Reasons, with the father to continue to spend supervised time with the child, it will not be in the best interests of the child to be subject to an equal time shared care arrangement, and nor will an order that the child spend substantial and significant time with the father be in her best interests.

Summary

1. At this interim stage, it will be in the best interests of the child, evaluating the above discussed considerations under section 60 CC of the Act, to make interim orders as follows:

   (1)     That the mother shall have sole parental responsibility in respect to medical issues relating to X, born (omitted) 2014 (the child).

   (2)     That the child shall live with the mother.

   (3)     That Order 2a) and 2b) in Exhibit A of the Court’s interim orders of 12 October 2016 be discharged.

   (4)     That the child spend time with the father under the supervision of Connecting Families, or such other individual supervisor, or supervision service, as agreed between the parties, for two hours each week, and subject to the following:

   (a)     That only the father shall be present with the supervisor(s) for his time with the child;

   (b)     That the father shall be solely responsible for all costs associated with the child spending supervised time with him;

   (c) That the time shall take place as agreed upon by Connecting Families (or such other individual supervisor, or supervision service, as agreed between the parties) in consultation with the parties; and

   (d)     That the parties will follow all directions including but not limited to completing intake paperwork as required by the supervision service.

   (5)     That the mother shall do all acts and things and sign all authorities necessary to authorise any pre-school or school which the child attends from time to time to provide the father with particulars of the child’s schooling, including but not limited to the provision of reports, notices of school photographs, circulars sent out to parents, notices of school excursions and any other activities to which the child is a participant.

   (6)     That the mother do all things and provide all such authorities necessary to any medical practitioner, specialist, orthodontist and/or any other health professional who may provide medical treatment to the child from time to time so that the father can obtain particulars in relation to the child’s health and attend any specialist appointments he makes for himself. Upon the father obtaining the information and authority to contact the child’s specialists and other health professionals, the father shall attend upon such persons to obtain an understanding and advice in dealing with the child’s needs and medical issues.

   (7)     That each party shall notify the other as soon as practicable of any serious medical illness or injury affecting the child when the child is in the care of that party.

   (8)     That the parties shall limit their communication between them to matters directly relating to the child and such communication shall occur through sms messaging or email except in the case of an emergency.

   (9)     That each party shall keep the other informed of their telephone contact number/s and email address and ensure that the other party is notified within 48 hours of any change.

   (10)   That the Father is to submit to hair strand testing in accordance with the following procedure:

   (a)     The father shall within seven (7) days of these orders arrange for a hair testing kit from the ESR Limited (“ESR”) to be sent to his GP, or in the event that his GP is not able to facilitate such test, to another GP; and shall advise the other side and the Independent Children’s Lawyer in writing he has have complied with this order;

   (b)     The father is to attend upon such GP and submit to the collection of a 3cm hair sample within seven (7) days of the GP receiving the testing kit, and the GP shall then return the sample to the ESR for testing for all drug types; and the father shall advise the other side and the Independent Children’s Lawyer in writing that he has complied with this order;

   (c) The father irrevocably authorise the ESR to send his report to his solicitor and a copy of that report to the other parent and the Independent Children’s Lawyer within 7 days of completion of each such report; and

   (d)     The father shall be responsible for payment of all fees associated with the conduct of his test/s including the GP’s fees and the ESR’s fees.

   (11)   That on one other occasion nominated by the Independent Children’s Lawyer between the date of this order and the final hearing that the father is to submit to further hair strand testing in accordance with the following procedure:

   (a)     The father shall within seven (7) days of these orders arrange for a hair testing kit from the ESR to be sent to his GP, or in the event that his GP is not able to facilitate such test, to another GP, and shall advise the other side and the Independent Children’s Lawyer in writing that he has complied with this order;

   (b)     The father is to attend upon such GP and submit to the collection of a 3cm hair sample within seven (7) days of the GP receiving the testing kit, and the GP shall then return the sample to the ESR for testing for all drug types; and the father shall advise the other side and the Independent Children’s Lawyer in writing that he has complied with this order;

   (c) The father irrevocably authorise the ESR to send his report to his solicitor and a copy of that report to the other parent and the Independent Children’s Lawyer within 7 days of completion of each such report; and

   (d)     The father shall be responsible for payment of all fees associated with the conduct of his test/s including the GP’s fees and the ESR’s fees.

   (12)   The father is restrained from consuming any illegal substance or consuming alcohol for 24 hours prior to the child spending supervised time with him, and when the child is spending supervised time with him.

   (13)   The father shall, within 14 days, enrol in (and thereafter complete) (or if no current enrolments are available, place his name on the waiting list for the next available) an anger management course and complete the Circle of Security course.

   (14)   That the father shall within fourteen (14) days, provide in writing to the mother’s solicitor, details of which courses he is enrolled in and/or attending.

   (15)   That the father shall attend the courses in accordance with the recommendation and directions of the course provider and should the course provider indicate that the program is not suitable, the father shall obtain information and if necessary a referral to a more suitable course as may be recommended by the course provider.

   (16)   That upon completion of any course(s) the father shall provide the mother’s solicitor, within seven (7) days of receipt, a copy of any certificate(s) of completion.

   (17)   That the parties shall communicate by way of email in regards to parenting issues.

   (18)   Liberty to the Independent Children’s Lawyer to relist the proceedings on seven days’ notice in the event, inter-alia, that the Independent Children’s Lawyer’s supervised drug testing requests of the father produce a positive or abnormal test.

I certify that the preceding one-hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 19 June 2017