ROBERTSON & DOWNIE

[2015] FCCA 360

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROBERTSON & DOWNIE [2015] FCCA 360

Catchwords:
FAMILY LAW – Interim parenting – assessing risk of harm to child – competing contentions as to risk – father’s non-disclosure of criminal record.

Legislation:  

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

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant: MS ROBERTSON

Respondent: MR DOWNIE

File Number: WOC 910 of 2014

Judgment of: Judge Altobelli

Hearing date: 2 February 2015

Date of Last Submission: 2 February 2015

Delivered at: Wollongong

Delivered on: 10 February 2015

REPRESENTATION

Solicitors for the Applicant: Dignan & Hanrahan Solicitors

Solicitors for the Respondent: Aston legal

Solicitors for the Independent Children’s Lawyer: Verekers Lawyers

ORDERS

PENDING FURTHER ORDER THE COURT ORDERS THAT

1. The Child, X born (omitted) 2008, is to live with the Mother.

2. The Mother is to ensure that Mr F is not present during the time the Child lives with her.

3. The Respondent is to return the Child, X born (omitted) 2008, to the Mother by 8:00pm tonight, 10 February 2015.

4. The Child be re-enrolled in (omitted) Public School as soon as possible.

5. Provided that the Father continues to reside with his mother and sister, the Child is to spend time with the Father as follows:

   (a)Each alternate weekend from after school on Friday to before school on Monday, commencing from the first weekend after the making of these orders.

   (b)Each alternate Thursday from after school to Friday before school, commencing from the second Thursday after the making of these orders.

   (c)The first half of each school holiday period in odd years and the second half of each school holiday period in even years.

   (d)Each Father’s Day for 3 hours after school commencing from the end of the school day.

   (e)Each year on the birthday of the Child for 3 hours after school commencing from the end of the school day, or from 2:00pm on a non school day.

   (f)The Father is to collect and return the Child from the Child’s school, (omitted) Public School, during school terms. During school holiday periods the Father is to collect and return the Child from the Mother’s residence and is not to exit his vehicle.

6. The Father is to have telephone contact with the Child each Tuesday between 6:00pm – 6:30pm with the Father to initiate the phone call.  The Mother is to ensure the Child is available for the phone call.

7. The Applicant and Respondent be and is hereby restrained by her/himself, her/his servants or agents from:

   (a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the child/ren’s.

   (b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the children or permitting any other person to do so.

8. The Father and the Mother each undertake (by provision of urine screen in accordance with the Australian/NZ standard 4308:2008 or any subsequent approved standard) urinalysis for drug screening on no more than one occasion each month and within 48 hours of receipt of a request to do so from the Independent Children’s Lawyer with such request to be communicated by email, SMS communication or facsimile transmission to the Solicitor for the party or the party directly and provide copies of the results of the tests to the other party and the Independent Children’s Lawyer within 48 hours of receipt of same. For the purposes of this order each party if unrepresented shall within 24 hours provide to the Independent Children’s Lawyer details of their mobile phone number, email address if available and facsimile phone number if available.

9. Leave granted to the Applicant to relist on 24 hours notice in the event the Child is not returned to the Mother.

10. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:

    (a)to consider the factors in sections 60CC and 65DAA of the Family Law Act1975;

    (b)to consider issues raised in the Family Consultant’s Memorandum to Court;

    (c)to profile of the parents (and other significant adults);

    (d)to assess the parents interactions (and those of other significant adults);

    (e)to assess the children’s developmental and emotional state;

    (f)to assess the relationship of the children to the parents (and other significant persons);

    (g)to ascertain the wishes of the children unless inappropriate by reason of age or other special circumstance;

    (h)to assess the proposed and actual home environments; and

    (i)to assess the proposals of each party as to the children’s future.

11. The Family Consultant is granted leave to inspect all documents produced in response to Subpoena.

12. If the Family Consultant is unable to inspect documents produced in response to Subpoena at the Wollongong Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the Family Consultant, is to forward such documents to the Registry nominated by such consultant to permit such inspection.

13. The report be released by 29 September 2015, if practicable, and unless otherwise arranged with Chambers.

14. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

15. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the Child to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

16. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

17. Following release of the Family Report and prior to the adjourned date, the parties file and serve a minute of final order sought by each of them as to parenting.

18. The matter be adjourned to 15 October 2015 at 9:30am for mention. The parents must attend in person with their legal representatives if the Report is available prior to the adjourned date.

THE COURT NOTES THAT

A.At the date on which a copy of the Report is to provide to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C.In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 16 herein, they shall write to the Chambers of Judge Altobelli seeking that the matter be listed on short notice for their objection to be heard.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT WOLLONGONG

WOC 910 of 2014

MS ROBERTSON

Applicant

And

MR DOWNIE

Respondent

REASONS FOR JUDGMENT

Introduction and Background

1. The case before me is about X, who was born on (omitted) 2008.  X is currently six, but will be seven in just a few months.  Her mother is the Applicant; she is 38.  X’s father is the Respondent; he is 36.  The relationship commenced in 2006 and appears to have ended on a final basis in 2011, though the evidence of both parties suggest that there were multiple separations and reconciliations in this period, and both describe a quite turbulent relationship.

2. Between the date of separation and September 2014 it is common ground that X lived with her mother and spent time with her father.  By 2011 this seems to have become a week-about arrangement.  In this period, the paternal family appears to have been very involved in X’s care, and it is common ground that she has a strong relationship with them (particularly with her paternal aunt).  In September the Father retained the care of X, and as a result of this changed where she was going to school.  In October, the Mother commenced the present proceedings.  In December, the court made orders on an interim basis for the Mother to spend time with X. 

The Parties’ Proposals and Evidence

1. The proposals that were advanced to the Court are as follows.  The Mother’s proposal is in accordance with her Application filed 21 October 2014.  In effect, she seeks for X to be returned to her care, for her to be able to place X back at the school she was attending before, that is, (omitted) Public School in (omitted), and for the Father to spend time with her, and a recovery order if necessary.  The Father’s proposal is contained in his Outline of Case document and in his Response.  In effect, he seeks orders that would see X continue to live with him and spend time with the Mother on a weekend basis, namely, the first and second weekend in every three week cycle.  The Independent Children’s Lawyer’s proposal, formulated at the hearing before me, which took place on 2 February, was for X to be returned to her mother’s care and to spend time with her father. 

2. The evidence before the Court consisted of the affidavits of the parents which I have referred to in their respective case outlines, the Mother’s Affidavit, and quite a significant volume of documents produced on subpoena by the New South Wales police.  In addition, there was a Child Dispute Conference Memorandum from a conference held on 18 December. 

The Applicable Law

1. The applicable law is contained in part VII of the Family Law Act. In determining parenting matters under Part VII of the Family Law Act1975 (Cth) the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s. 60B:

   60B  Objects of Part and principles underlying it

   (1)     The objects of this Part are to ensure that the best interests of children are met by:

   (a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)     parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)     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.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

   (3)     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.

   (4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)     how far apart the parents live from each other; and

   (b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)     the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

Determining child's best interests

(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

(2)  The primary considerations are:

(a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

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

Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

Additional considerations

(3)  Additional considerations are:

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

(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);

(c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)  to participate in making decisions about major long-term issues in relation to the child; and

(ii)  to spend time with the child; and

(iii)  to communicate with the child;

(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;

(d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)  either of his or her parents; or

(ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e)  the practical difficulty and expense of a child spending time with and communicating with a 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;

(f)  the capacity of:

(i)  each of the child's parents; and

(ii)  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;

(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;

(h)  if the child is an Aboriginal child or a Torres Strait Islander child:

(i)  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

(ii)  the likely impact any proposed parenting order under this Part will have on that right;

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

(j)  any family violence involving the child or a member of the child's family;

(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:

(i)  the nature of the order;

(ii)  the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the order;

(iv)  any findings made by the court in, or in proceedings for, the order;

(v)  any other relevant matter;

(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;

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

1. In MRR v GR [2010] HCA 4 the High Court said

   8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

   "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents."  (emphasis added)

   Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

   "(c)    consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."

   Sub-section (3) explains what is meant by the phrase "substantial and significant time".

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

3. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII of the Act.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 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 s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

The Arguments

1. By way of summary, the arguments presented were as follows.  The Father’s case is that the child came into his care and needs to remain in his care because of a risk of harm in the Mother’s household due to the Mother’s violent relationship with her partner to which the child was exposed.  He argues strongly that the child’s performance at the school in which she has been enrolled indicates an improvement in her school performance which is attributable to the change in environment.  He argues that she is well-settled in his home, and, indeed, wants to stay. 

2. The Mother’s case is that the Father’s actions were unilateral, disrupted a long-standing existing arrangement, and that he then withheld X not just in terms of where she was living, but in terms of not even spending time with her mother during the period of September to December.  She says that there is no current basis for the Father’s concerns, and, indeed, she raises concerns about the Father’s cannabis use in the context of a volatile relationship. 

Discussion

1. Given the arguments, it is necessary to examine the Father’s evidence in relation to his concerns about X, both in relation to what it says and also in relation to what it does not say.  For example, firstly, the subpoenaed documents demonstrate that the Father has an extensive criminal record which is associated with drug use and antisocial behaviour, including aggression.  There is not a hint of this in his Affidavit.  Paragraph 7 and 8 of his Affidavit contain some material which I would suggest does not even get to a hint of the problems that he has experienced in the past. 

2. Secondly, the Father’s evidence of the supposed family violence in the Mother’s household is based on what X said to him 18 months ago, that is, in June 2013.  He gives no explanation as to why he waited over one year before doing anything about her disclosure. 

3. Thirdly, he puts the date of separation as October 2010, and asserts that it was not until November 2011 that equal time commenced.  He describes the period in question as a happy one - which is strangely inconsistent with what X was supposed to have told him over a year ago. 

4. Fourthly, he says that he changed the arrangement in September 2014 without consultation to the Mother, and, I quote:

   … as I was worried about X’s safety and about how Ms Robertson looks after her.

   He refers to an argument, a falling out, that he had with her after the paternal grandfather died and threats received which he attributes to the Mother, but with no supporting evidence. 

5. With great respect to the Father and those who have advised him, the evidence he adduces is hardly a firm basis to change what appears to have been a longstanding arrangement for the care of this child.  The paternal aunt provides a corroborating Affidavit. 

Meaningful Relationship

1. The authorities require me to consider the section 60CC considerations in this case. I am required to consider meaningful relationship, but this consideration is not a determinative one in this case. All the proposals before the court would satisfy the requirement for X to have a meaningful relationship with both of her mother and father.

Risk of Harm

1. The second consideration, and certainly an important one, is protecting X from harm.  Even on the Father’s case, his information about exposing X to harm in the Mother’s household is dated and can form no basis to justify his unilateral retention of the Child in September.  It is more than adequate protection for the Child in the Mother’s home to simply exclude Mr F from her home at all time that the child is in there.

2. The issues raised by the Independent Children’s Lawyer and the Mother is, indeed, whether there is a risk of harm to X in the Father’s household in circumstances where he has failed to disclose a lengthy and somewhat colourful criminal record between 1995 and 2012.  This in itself is not a risk factor because the Mother must have been aware of at least some of this.  The COPS entries that are in evidence are somewhat more revealing, because they are more current and give insight into the father’s behaviour and character.

3. Indeed, the most recent record is 15 December 2014.  This is after the Father appeared before me the first time on 27 November 2014.  The Father’s behaviour on 15 December could fairly be described as aggressive.  There are further instances of aggressive behaviour recorded in the COPS entries on 19 June 2014, 30 March 2014, 20 February 2014, 30 January 2014, 15 October 2013, and 25 September 2013. 

4. There are references in the COPS entries to the police concerns about the Father appearing drug-affected.  On 31 May 2012 there is a record of the Father admitting to police that he smoked pot on a regular basis, and he said, however, that it was at home.  On 29 May 2012, the Father was again reported to be aggressive and drug-affected.  On 2 May 2012 he came to police attention for being drug-affected.  On 23 February 2012 it was aggression and damage to property.  On 3 February 2012 it was aggressive behaviour.  I am going to stop here, even though the records go much earlier. 

5. What is significant about this history is that based on the Father’s own chronology, some of these events happened during the period when he had equal shared care of his daughter.  Both the Mother and the Independent Children’s Lawyer are concerned about this.  The Independent Children’s Lawyer is particularly concerned that in the Child Dispute Conference Memorandum the Father specifically denied cannabis use, whereas the history from the police records suggests that there might be some room for scepticism about this. 

6. Until there is further evidence about the Father’s drug use, and, indeed, whether there is any need to be concerned about the Father’s personality and mental health issues, potentially arising out of his record of antisocial behaviour, the Court must accept that there is at least the risk of harm to X in the Father’s household.  The Court accepts, however, that the risk of harm is contraindicated or at least moderated by two factors.  Firstly, the clearly supportive role of the paternal aunt.  And, secondly, the fact that X’s progress at school seems inconsistent with a risk to her. 

The Child’s Views

1. I am required to consider X’s views.  They should receive no weight at this stage, not only because they are reported by the parents themselves, but because of her age and maturity. 

Nature of Relationships

1. I am required to consider the nature of X’s relationship with both parents.  Curiously, this is inadequately dealt with by the evidence of both parents.  The Independent Children’s Lawyer is correct in inferring that we know far more about X’s relationship with her paternal aunt than we know about her relationship with her own mother and father.

Impact of Change

1. I am required to consider the impact of change in this case.  It is a significant consideration.  If there is a resumption of the pre-existing equal time arrangement, or, indeed, a return to the Mother’s care, there will be a disruption to the child’s life.  Of course, equal time is, in this Court’s opinion, not reasonably practicable due to the realities of schooling for X.  The Father is in (omitted); the Mother in (omitted).  And, indeed, she used to go to school in (omitted).  The Father enrolled her in (omitted), where she seems to be doing well.  She has suffered disruption to her life as a result of the Father’s unilateral actions, but, of course, will suffer more disruption if a change is ordered;  albeit a return to a familiar environment. 

Parental Capacity

1. I am required to consider the parenting capacity.  The Father’s criminal record, history of antisocial behaviour and problems with drug use – and I have to acknowledge that these problems are certainly in the past, but it is not known at the present – raise clear issues about his parenting capacity.  His lack of candour with the Court about these issues is an exacerbating factor.  There may well be concerns about the mother too.  It was clearly a volatile relationship.  On balance, on the material before the Court today, there seems to be less concern about the Mother’s parenting capacity than the Father’s parenting capacity.

Parental Attitudes

1. I am required to consider parental attitudes.  The Father’s refusal to facilitate X spending time with her mother between September and November 2014 in circumstances where there is so little evidence to justify his concerns do reflect very poorly on his parenting attitudes.  Despite the ambiguity in the Independent Children Lawyer’s written submissions, she urged the Court to return child to the Mother’s care.  She nonetheless acknowledged, however, that there are problems in both households.  Whilst the considerations are finely balanced, they, nonetheless, favour the orders proposed by the Independent Children’s Lawyer and the Mother.  In other words, X should be returned to her mother’s care.

Conclusion

1. The question then becomes what time should she spend with her father.  The Independent Children’s Lawyer did not turn her mind to this in detail.  The Mother proposed each alternate weekend and half the school holidays.  An order for equal time is, in my opinion, neither reasonably practicable nor in the best interests of X, given the risk and issues raised and the poor relationship between the parents.  An order for substantial and significant time, however, meets both of these criteria.  Given the amount of time that X has spent with her Father, it is hard to see why she could not sustain each alternate Friday to Monday in the alternate weekend.  Indeed, given the length of time that she spent with her father, it is hard to see why there should not be an overnight in the other week.

2. Provided the Father continues to live with his mother and sister, particularly as his sister offers a protective relationship with X, there can be no basis for not having a spends time with father order that provides each alternate weekend from Friday to Monday as well as one night in the other week.  I will be making an order that requires the Mother to ensure that Mr F is not around at the time when X is there.  The matter clearly needs a family report, and, accordingly, one will be ordered.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:  9 March 2015