SULLIVAN & PROSSER

[2014] FCCA 3129

FEDERAL CIRCUIT COURT OF AUSTRALIA

SULLIVAN & PROSSER [2014] FCCA 3129

Catchwords:
FAMILY LAW – Parenting – protection from harm – consideration of unacceptable risk – “ice” use – aboriginality – notice of proceedings and orders sought – matter proceeded on an undefended basis.

Legislation:  

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 61F, 65DAA(5), 65DAC, 69ZW

Allesch v Maunz [2000] HCA 40
Jones & Dunkel (1959) 101 CLR 298
Johnson & Page [2007] FamCA 1235
Deacon & Castle [2013] FCCA 691

Applicant: MR SULLIVAN

Respondent: MS PROSSER

File Number: AYC 134 of 2013

Judgment of: Judge Harman

Hearing date: 28 October 2014

Date of Last Submission: 28 October 2014

Delivered at: Albury

Delivered on: 28 October 2014

REPRESENTATION

Solicitors for the Applicant: Ms Morrissey of Robb & Associates Solicitors

No appearance by the Respondent

Solicitors for the Independent Children’s Lawyer: Ms Dwyer of Legal Aid NSW Wagga Wagga Family Law

ORDERS

1. Leave is granted to the Respondent’s solicitor to withdraw from the proceedings. 

2. Discharge all prior orders in these proceedings.

3. X born (omitted) 2010 shall live with his father.

4. The father Mr Sullivan shall have sole parental responsibility for X.

5. X shall spend time with his mother Ms Prosser at such times and upon such terms and conditions as are agreed between the parents.

6. Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

7. All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

8. Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT ALBURY

AYC 134 of 2013

MR SULLIVAN

Applicant

And

MS PROSSER

Respondent

REASONS FOR JUDGMENT

1. These are proceedings involving competing applications with respect to care arrangements for a young child, X, born (omitted) 2010, (four years of age). 

2. The parties to the proceedings are his parents, Mr Sullivan who is the Applicant and his father, and Ms Prosser, who is the Respondent, and his mother.

3. Ms Prosser does not appear today.  That is somewhat unfortunate, not only as regards her interests but also this young child.  X is described in the Family Report as:

   …loving and having clear affection for both of his parents.

4. Ms Prosser would appear (as is sagely noted in the Family Report) to be presently bedevilled by a number of difficulties, particularly relating to drug use. 

5. At paragraph 60 of the Family Report it is opined:

   It does appear that Ms Prosser has gradually changed her lifestyle from one of being a person and parent who managed well to someone who, over the last few years, lost control of their positive lifestyle, gradually spiralling out of control into a world where her life was controlled by illicit substances.  Ms Prosser moved into a murky world, associating with undesirable people involved with illicit substances.

6. There is then further detail of that drug use given by way of explanation for those comments and suggestions.

7. This is a matter which is increasingly common in this regional circuit where the widespread availability of methamphetamine or “ice” has caused chaos for individuals and families. 

8. “Ice” is a particularly evil drug used by those who manufacture and supply it to profit by exploiting the poor and disadvantaged.  It is cheap, highly addictive and particularly attractive to the dispossessed and downtrodden as it stimulates an endorphin reaction and makes them momentarily oblivious to their disadvantages and shortcomings whilst profoundly increasing both and wrecking permanent physical and psychological injury upon its victims and all around them.

History of the proceedings

1. It is clear from a consideration of the Court file that Ms Prosser has had abundant opportunity to participate in these proceedings. 

2. The matter was commenced by an Application filed by the father on 15 April 2013.  As he describes in his Affidavit material, to which I will turn shortly, that arose as a consequence of concerns that he had in relation to the care of this young child who was, at that time, or who had, until shortly prior to that time, been in the mother’s care. 

3. The proceedings came before the Court on relatively short notice and on 10 May 2013.  Both parties appeared and were represented.  At that time, the parties attended a Child Dispute Conference, an Independent Children’s Lawyer was appointed and a number of orders were made, primarily by consent, relating to the child’s care. 

4. The interim parenting orders made 10 May 2013 provided for X to continue to reside with his father and to spend time and communicate with his mother for various periods of time, including overnight periods of time.  Terms and conditions were attached to the exercise of that time with respect to both parents.  The extent to which those terms and conditions were complied with is unclear but, in any event, those orders are now somewhat historical.

5. The matter returned before the Court on 28 August 2013.  By that time the Independent Children’s Lawyer had been appointed, material had been gathered from a number of sources and, as a consequence, further significant concerns had arisen with respect to a variety of behaviours but, principally, focussed upon the mother’s suggested return to or further emersion in drug use. 

6. As a consequence of these concerns material was sought from the Department of Family and Community Services and, importantly, orders were made for the parties to participate in supervised urinalysis.  It is unclear how frequently those tests have, in fact, occurred. 

7. Before the Court on that occasion was a drug test with respect to the mother which was marked as exhibit A, demonstrating that amphetamines at a reading of 300 UG had been detected.  It is certainly clear that subsequent tests which occurred in October, 2013 tested positive not only for amphetamines but also methamphetamines and with significantly higher levels. 

8. By the time the proceedings came before the Court on 19 September 2013 a number of further difficulties had arisen as regards the mother’s engagement with her then legal representatives.  They had, on the prior occasion, sought leave to withdraw, particularly as the mother had not been present on that occasion and had not provided instructions.  The mother appeared on 19 September and suggested that she was re-engaging with her attorneys and had engaged with the Aboriginal Medical Service.

9. That engagement would appear to have been of short duration as by the time the matter returned before the Court on 2 December 2013 the mother was again self-represented and a number of orders were made to obtain further information from the Department, in light of events which were then suggested to have occurred.  Further interim orders were also made which discharged those previously ordered (which had ceased to operate in any event) and which provided for far more limited periods of time, an hour at a time between this young child and his mother. 

10. The proceedings were adjourned for a very brief period and, when before the Court on 19 December 2013, orders were made for the preparation of a Family Report. 

11. The Family Report was prepared and released and the matter returned before the Court on 8 May 2014. As a consequence of a number of difficulties, which will be referred to in the evidence and as were raised in the Family Report, further interim orders were made by consent.  These orders provided for time between X and his mother to occur through the Albury Children’s Contact Service.  That time has never commenced.  The time that has occurred has comprised brief periods of time, arranged sporadically between the parties, and with time supervised by the father.

Concluding the proceedings on an undefended basis

1. The mother does not appear today.  Her attorneys are present but are bereft of instructions and, thus, have sought and have been granted leave to withdraw.  There is no criticism of the mother’s attorneys.  They have done all within their power to stridently protect and prosecute the mother’s position. 

2. The mother has, to some large extent, been an instrument in her own destruction through her inability to engage with services, provide instructions or consistently participate in the proceedings.  That is readily explicable by and entirely consistent with her apparent addiction to “ice”.

3. The parties have been ordered to file trial material.  The father has complied.  The mother has failed to file any material.

4. I am satisfied that the proceedings can and should proceed today on a final and undefended basis.  As the High Court has observed in Allesch v Maunz [2000] HCA 40, what is required to afford due process is to give to parties an opportunity to be heard, not an opportunity to be heard at a time of their choosing.

5. The mother has had the entirety of these proceedings, a period in excess of 18 months, to properly engage and to present material.  She has failed to do so. 

6. Other than the filing of an Affidavit accompanying her Response in May 2013, the mother has not undertaken anything required of her, save to attend Family Report interviews and that has resulted, in light of that which has transpired at those interviews and the balance of evidence considered by the Family Consultant, in a Report which is supportive of the need to both conclude the proceedings and conclude the proceedings with orders, essentially, as sought by the father. 

7. I am satisfied that:

   a)The mother has been afforded due process;

   b)The mother is aware of the listing in the proceedings today and the probable consequence of non-attendance;

   c)The mother is aware of the relief sought by the father and the basis upon which it is sought, (i.e., that set out in his trial Affidavit and the Family Report);

   d)The father would be denied due process by further delay.  The father has done all that is required of him and has the care of this young child to devote his efforts to;

   e)The child’s best interests would not be served or advantaged through further delay.  Indeed, they would be disadvantaged;

   f)Finally, there is little, if anything, to be gained through further adjournment.  The mother has demonstrated abundantly her inability to properly participate in the determination of these proceedings relating, as they do, to the welfare of her child and that has included not only a failure to engage in the proceedings and file material but:

   i)Through leaving her solicitors in the invidious position of seeking to represent her interests without her participation or instructions;

   ii)Failing to contact the children’s contact service as ordered so as to enable time to occur through that service; and

   iii)Failing to participate fully and properly in the provision of supervised urinalysis samples to forensically address that which is asserted by her, particularly through her comments to the Family Consultant, that she is now drug free.

8. Indeed, the mother’s failure to attend drug testing when required to do so, I am satisfied by reference to Jones & Dunkel (1959) 101 CLR 298, is sufficient for me to be satisfied that she is, in all probability, continuing to use drugs. That would certainly be a basis upon which her nonattendance today would be explicable.

9. In all of the above circumstances I propose to deal with and determine the matter on a final and undefended basis. 

Material considered

1. In dealing with the proceedings today I have considered each of the following documents:

   a)The Amended Application Initiating Proceedings filed by the father 22 October 2014;

   b)The father’s trial Affidavit sworn and affirmed 1 September 2014 and filed 2 September 2014;

   c)The Family Report 10 April 2014;

   d)The Response filed by the mother 9 May 2013; and

   e)The mother’s Affidavit filed 9 May 2013. 

2. I do not propose to canvas the evidence in detail, suffice to say that each of the documents identified above has been read and considered in their totality.  I propose to refer to portions of the evidence to the extent that it will assist in understanding and identifying the consideration of the legislative pathway to which I will shortly turn.

Discussion of evidence

1. There are a number of issues that are beyond controversy.  They, essentially, comprise issues of chronological significance but are worth noting. 

2. The father was born on (omitted) 1983 and is 31 years of age.  The father is of Aboriginal descent being from the (omitted) Nation. 

3. The mother, whilst it is not referred to in the one affidavit that she has filed in the proceedings, also identifies as being Aboriginal. The mother gives no evidence of her mob. That is not intended in any way to be pejorative of the mother’s position, simply to note that she has failed to raise it in her own evidence even though it is a matter of importance and which I am required by section 61F of the Act, to address. It is important information as regards young X’s interests.

4. In the Family Report, at paragraph 27, it is reported that the mother explained to the Family Consultant that her mother is a “(omitted) Aboriginal”.  Thankfully, the consultant has gone on to enumerate the bases upon which that statement is made, curious as it is, and it, clearly sets out that the mother identifies as Aboriginal.  There is no evidence whatsoever of her practice of Aboriginal culture or her mob.  That is, again, unfortunate as it is significant. 

5. It is evidence which section 61F compels the Court to receive and consider and the only evidence that one has which, in any way touches upon those issues, comes from two specific portions of the Family Report, being:

   a)Paragraph 27, wherein it is suggested by the mother that she would take X, when he was young, to an Aboriginal preschool one day per week and that he had within his room two didgeridoos.  One might be able to, thus, extrapolate a number of mobs the mother might have come from. Didgeridoos are not common to or homogeneous throughout all language groups and mobs. 

   b)Secondly, an elder child of the mother has been involved in the Family Report interviews being the mother’s daughter, Y.  Y clearly identifies that she has engaged with a number of cultural practices of significance and importance to her.  She indicates, for example, at paragraph 47 of the Report, that she is in an Aboriginal youth class at her school and that she is interested in her culture.  Thus, Y would appear to have provided more information of relevance and significance to the Court’s considerations than her mother has.

6. It is all the more tragic that this young lad X is likely to grow up without a knowledge and understanding or any significant knowledge or understanding of at least one half of his Aboriginality and heritage, significant and important issues for this young boy, having come from the oldest living culture in the world and a culture which, over the last two centuries has been subject to significant attack and disadvantage as a consequence of white invasion and settlement.  However, one is left with the evidence that is available, being that of the father.  He is somewhat more forthcoming. 

7. The mother was born on (omitted) 1983. 

8. The parties lived together from some time in 2008 until approximately March 2012.  Their child X was born in the mid-period of that relationship, (omitted) 2010. 

9. At the commencement of the relationship, Ms Prosser already had two children from a prior relationship, Y who is now 14, and Z, who is 11.  Y sets out – although the mother does not – her relationship with her father who would appear to be also Aboriginal.  Y has little, if anything, to do with her biological father and it would seem that he has been somewhat rejecting of her.

10. The evidence would suggest that Y, throughout the relationship between these parties, had taken on and viewed Mr Sullivan very much as her father.  It may well be, from what is reported of Y, that she was not introduced to her biological father until the relationship with Mr Sullivan had already commenced.

11. Following the parties separation, young X lived with his mother and did so until at least until April 2013.  Since April, 2013 he has lived with his father.

12. Mr Sullivan’s evidence makes clear that initially, and whilst he had some concerns with respect to X’s care by his mother, he was content that arrangements were working sufficiently well.  However, by the latter part of 2012, if not earlier, he had become increasingly concerned about the level of care that X was receiving.

13. Mr Sullivan is frank and candid in disclosing that during his relationship with Ms Prosser, that both parents flirted with and used drugs, including amphetamines.

14. Mr Sullivan’s evidence, it being unchallenged and which I accept and make findings of fact in accordance with, deposes that around the time of X’s birth he, as it were, “woke up to himself” as an adult and understood that it was important that if he was going to be the parent of a child that he be drug free. Accordingly, he took active steps to remove himself not only from drug use but the culture and environment and circle of friends involved with that behaviour.

15. It would seem that the mother has not been as successful in taking those steps. Whilst it is tempting to be significantly critical of Ms Prosser for that, it is to be noted that this area of the country is awash with methamphetamine and that with “ice” a significant drug of addiction, once hooked, it is difficult to move on.  Clearly, the mother has struggled with those difficulties.

16. As a consequence of her drug use Ms Prosser has, for some little time, been engaged with Police and the Department of Community Services. The Department has not intervened in these proceedings. The Court is grateful for the provision of material that has been requested and provided pursuant to section 69ZW of the Act.

17. The Department would not appear to be actively interested in these proceedings. As the matter is being addressed through this Court’s processes and the father is an entirely capable parent there could be no concern that whilst X, is in his father’s care, is a child in need of care and thus the Department’s non-engagement is entirely explicable and appropriate.  There are better uses for their resources. It is unclear whether the Department has taken any active step towards addressing such concerns as may be held in relation to the two adolescent children who continue in the mother’s care.

18. In the Family Report interviews the mother discloses that the Department has been involved with her elder children and the Department has previously required that the mother do certain things such as a parenting course and drug and alcohol counselling.  However, those two elder children remain in the mother’s care and they are not, for present purposes, the subject of any application before this Court.

19. The mother’s relationship with young X, tragically, has withered since he came into the father’s care.  Significantly, that would not appear to be as a consequence of any action or inaction by the father.

20. Mr Sullivan has done what has been required of him by orders of this Court both as to testing, provision of information, restraints and filing of material.  He has also complied with the orders that have been made in relation to time, including, through his attendance at the contact centre to complete intake.  The mother has failed to attend intake at the contact centre and thus time has not commenced through that service.

1. Notwithstanding that difficulty Mr Sullivan, who would have been entitled to simply withhold X, has made arrangements for X to spend time with his mother, albeit those periods have been brief, infrequent and sporadic.  They are detailed at paragraph 86 of Mr Sullivan's Affidavit.

2. On many occasions meetings have been arranged and the mother has cancelled them or failed to attend but when they have occurred, thankfully, at least on some of the occasions, although no more than one or two, X’s siblings have also attended.

3. The Family Report is quite clear and cogent as to the Family Consultant’s views.  It is suggested, at paragraph 64 as regards the outcome of these proceedings, that:

   As long as Ms Prosser continues to use ice then she is not capable of making responsible decisions about X.

4. On that basis (and others) recommendations are made that X continue to live with his father and that the father have sole parental responsibility.  That would appear, in the context of the evidence available and the mother’s absence, somewhat irresistible.

5. The Family Report otherwise highlights, on a positive note, that Ms Prosser accepts Mr Sullivan as an appropriate, indeed, excellent parent.

6. At paragraph 34 of the Report, the Family Consultant reports that Ms Prosser had indicated that Mr Sullivan is:

   A fantastic dad.  He does his dad role.

7. The Report highlights that Ms Prosser has been involved in ongoing engagement with the Department of Family and Community Services.  Ms Prosser has a case worker through that service.  The case worker has visited Mr Sullivan in his home and they have no concerns in relation to his care of the child whereas there had been prior significant concerns as to Ms Prosser’s care.

8. Ms Prosser is required by the Department, to do drug screens “every now and then for three times a week.”  Ms Prosser is required to undertake the drug and alcohol course and the parenting course previously referred to.  There is nothing to suggest whether those requirements have been fulfilled.

9. The Family Consultant undertook observations of X with each of his parents.  What is tragic, in those observations, is that this young lad, who had not seen his mother for some little time or at least not on any regular basis, is suggested, upon greeting his mother to have said, “I love you.” They were observed to play happily and well in that environment and throughout the session X seemed relaxed and comfortable with his mother, smiled and made eye contact with his mother and his elder sibling and both Ms Prosser and his elder sibling, Y, were observed to be appropriate, caring and affection.

10. It is, however, in the controlled environment of a Family Report interview, not within Ms Prosser’s home whilst or after she has consumed “ice”.  The ravages that the drug has had upon Ms Prosser’s life and would have upon this child’s life if in her care and at four years of age, simply cannot be overemphasised.

11. Finally, it is to be observed that Mr Sullivan has re-partnered.  He has lived with his partner since March 2014.  His partner has a young daughter.  That household would appear to be providing abundantly adequate care to this young lad.

Legislative pathway

1. I must commence with section 60CA of the Act, which reminds the Court that the child’s best interest are the paramount consideration.

Objects and Principles

1. I must then consider the objects and principles in section 60B and which I incorporate herein.

   (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.

   (4)  An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

2. The objects and principles do not form part of the substantive law but inform the manner in which the substantive provisions are applied and interpreted.  It is worthwhile to consider the objects and principles briefly.

3. The Court is required to ensure that children’s best interests are met by ensuring that they have the benefit of both their parents having a meaningful involvement in their lives and that they are protected from physical and psychological harm. To that extent the objects largely mirror section 60CC(2) setting out the primary considerations.

4. In this case there is no real issue and there is certainly no evidence to support any finding that young X would be exposed to or at risk of exposure to physical or psychological harm as a consequence of abuse, neglect or family violence whilst in the care of his father.

5. There is ample evidence to suggest the mother was significantly affected at the time of her last drug testing available to this Court in October 2013, by both amphetamines and methamphetamines.  When a parent is addicted to “ice” harm would follow to any child in their care.  It is simply not a risk that could be taken. It falls squarely within the category of unacceptable risks as discussed by the Full Court in Johnson & Page [2007] FamCA 1235 and as discussed commencing at paragraph 468 of Deacon & Castle [2013] FCCA 691.

6. As regards the child’s best interests being met through meaningful involvement with both parents what is clear, particularly from the Family Report interviews, is that there is much to be gained by this little boy through an active and meaningful engagement with both of his parents.  However, that is an engagement that Ms Prosser sadly, and as a consequence of her addiction, is presently unable to manage.  Mr Sullivan is well engaged with this young lad and is meeting his needs.

7. The Court cannot make any order that will ensure the meaningful involvement of Ms Prosser as, on the evidence available, she has simply not been able to maintain it.  Again, that is not intended to be a harsh criticism of her but a reflection of the ravages of her methamphetamine addiction upon her capacity to function as a member of society.

8. The Court must ensure that children receive adequate and proper parenting. This little boy receives abundantly competent parenting from his dad and it is acknowledge by Ms Prosser.  She describes that he is a fantastic dad.  Mr Sullivan is making significant changes in his life and has done so to ensure that he can give this little boy the best upbringing that is possible for him.

9. Mr Sullivan has risen to the occasion and he has done so, all the more importantly, in meeting this young lad’s needs as a young Aboriginal child. The level of disadvantage and overrepresentation in communities of disadvantage of Aboriginal children – in out of home care, juvenile detention and other categories – is tragic, indeed criminal. The fact that it is ignored by the community, the media and those who might take some action to change it is all the more criminal. Yet this father has taken responsibility.  Mr Sullivan has, to the extent that it was needed, in light of his frank evidence as to what was occurring in his relationship with Ms Prosser, “lifted his game and sorted himself out”.  He is to be acknowledged and commended.

10. The Court must ensure that parents fulfil their duties and meet their responsibilities. There is nothing this Court need do or order that will compel Mr Sullivan to do that. He does it voluntarily and happily, indeed joyously.  There is nothing this Court can do, as demonstrated by the past orders and non-compliance therewith, that will engage Ms Prosser in doing so.

11. The principles establish a number of rights for this child, including the right to know and to be cared for by both of his parents and to spend time with both of his parents and other people of significance.  I cannot overlook the fact that this young lad has two sisters with whom he has precious little relationship at this point in his life. However, there is little the father can do to advance that relationship. Ms Prosser must be the instrument of change in her own life before those difficulties can be addressed.

12. The child has a right to have his parents share duties and responsibilities. As indicated clearly in the Family Report and as I accept, that simply cannot occur at present. Whilst Ms Prosser continues to use ice she is not capable of making reasonable decisions about X. On that basis, and by reference to section 65DAC, equal shared parental responsibility would be nonsense. These parents would not be in a position to consult and make a genuine effort to resolve disputes about major issues, nor should this child’s needs be put on hold whilst attempts are made by Mr Sullivan to locate Ms Prosser, her present place of residence not being known, and seeking to engage with her, whether drug-affected or otherwise.

13. The objects and principles clearly support the orders by the father and as supported by the Independent Children’s Lawyer and the Family Report.

Parental Responsibility

1. I must then turn to section 61DA of the Act and determine whether the presumption of equal shared parental responsibility applies and if it does apply, determine whether it is rebutted.

2. The presumption does not apply if the Court is satisfied that there are reasonable grounds to believe that a parent has engaged in abuse or family violence. There is no clear evidence that would support a finding in that regard, although certainly abuse would be substantiated by serious risk of psychological harm through neglect. The mother’s care of X, whilst she is drug-affected, could well fall within that category. However, I am satisfied that it is sufficient and safer to proceed on the basis of subsection (4).  It is simply not in the child’s best interests, as it is not practicable, for the parents to have equal shared parental responsibility.

3. That being so, I am not obliged or mandated to consider equal and substantial and significant time before considering any other time arrangement. I propose to consider all time arrangements at large in any event and through a consideration of section 60CC and incorporating therein section 65DAA(5).

Primary Considerations

1. In commencing with the primary considerations, I must have regard to the benefit to the child of having a meaningful relationship with both parents balanced against the need to protect the child from physical or psychological harm as a consequence of exposure to abuse, neglect or family violence.  The latter is prioritised over the former by subsection (2A).

2. This child has a meaningful relationship with his dad.  It is a deep and profound relationship.  He has come into this child’s life at a time when he has been bedevilled by difficulties. Mr Sullivan is, no doubt, all the stronger as a consequence of having exorcised those demons.

3. The relationship that this little boy has with his father is acknowledged by Ms Prosser. 

4. X’s relationship with his mother is clearly meaningful.  However, it cannot be regularly or consistently practised, at present, and that is disadvantageous to this little boy. It would be all the more disadvantageous; indeed it could not be countenanced, if Ms Prosser were not drug free.

5. One would hope that at some foreseeable point in the future, Ms Prosser will deal with her issues, with the assistance of the Department or otherwise, and will thus provide advantage not only to X but to the two children who live with her, by being sober and drug free.

6. As regards the need to protect the child, I am satisfied that there is no issue in relation to Mr Sullivan.  There is a significant issue in relation to Ms Prosser as she has failed to do that required of her to demonstrate her abstinence from drugs.  I am satisfied and so find that she is in, all probability, continuing to use amphetamines and, more importantly, methamphetamines or “ice” and thus rendering herself incapable and inappropriate to care for a child.

Additional considerations

Views

1. There is no evidence of X’s views other than the fact he clearly loves both of his parents dearly and no doubt desires that they both be in his life.  That cannot be achieved by any orders made by the Court today.

Nature of the child’s relationship with each parent and other persons, including grandparents and other relatives

1. This little boy has an excellent relationship with Mr Sullivan and his partner.

2. X has an excellent relationship with his sibling, who lives within the father’s household and with his siblings who live within the mother’s household.  There is nothing to be gained from categorising them as step-siblings, half siblings or otherwise.  Indeed that language would be, not only in this day and age but particularly to Aboriginal Australians, offensive.  Accordingly, they will be referred to as siblings without intending to create any controversy as regards those who might be considered by others to fall within that description.

3. As regards the nature of the child’s relationships, clearly his relationship with his mother, whilst strong, is withering and little, if anything, can be done by Mr Sullivan nor the Court to protect it at this point.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in decision-making, spend time with or communicate with the child 

1. Mr Sullivan has not failed in any regard.  As I have indicated he has stepped up.  He has proved himself to be, genuinely, a man.  He is meeting his needs and responsibilities for his child and his family.

2. Ms Prosser has difficulties at present.  They are difficulties not of her own creation but the solution to which is entirely within her hands.  She has, as a consequence, failed to participate in decision-making, spending time or communicating with the child.

The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child

1. Mr Sullivan maintains X without assistance.

Likely effect of change, including separation from either parent or any other child

1. On one level, one can dismiss the factor as X is presently separated from the mother and his siblings living in the mother’s care.  However, the continuation of that arrangement is not in his best interests.  X should have an abundant relationship with a drug free mother. It cannot be addressed by an order made by this Court. 

2. It would be a disastrous and disadvantageous change for this child to leave the father’s care.

Practical difficulty and expense

1. I incorporate herein section 65DAA(5) of the Act.

2. The parents, presumably, live quite close.  The mother is believed to be resident somewhere in or about (omitted).  The father is also in the (omitted) area.  The mother’s specific whereabouts are not presently known and she is difficult to communicate with or engage with as a consequence of her addiction.

3. The current and future capacity to implement time arrangements, particularly as demonstrated by the failure of arrangements as set out in the father’s evidence, is problematic. 

4. The current and future capacity to communicate and resolve difficulties is equally problematic. 

5. The impact of the arrangement on the child is already addressed.

Capacity

1. At this point, as would be clear from the above evidence, Mr Sullivan’s capacity to meet this child’s needs, physically, emotionally and intellectually, as well as culturally, is high.  Ms Prosser’s capacity is low.

Maturity, sex, lifestyle and background of the child

1. This is a little boy who is four years of age.  He needs clear, consistent, stable, predictable care.  He receives that from his father.  He was not receiving it from his mother.  He would not receive it from his mother at this time or whilstsoever she remains addicted to “ice”.  He is presently not able to have regular, clear, consistent and predictable arrangements to practice his relationship with his mother.

If the child is an Aboriginal child, his right to enjoy his culture and the impact of the order upon his rights

1. The impact of the Court’s orders upon the child’s right to participate in and practice his Aboriginality, to the extent of his maternal inheritance of same, cannot be gauged as the mother has not lead any evidence whatsoever that would assist in addressing that concern.

2. The child’s right to enjoy culture and to practice it, as this subsection and subsection (6) require, with people of that culture, will be abundantly and manifestly met by his father.  One would hope that Mr Sullivan and X would both use culture as a very profound and significant basis for their relationship, their healing and their future growth, growth not only of their relationship but individually.  It is potentially a great source of empowerment to them.

3. Methamphetamine or “ice” is a creation of White fella culture. It is not something derived from Aboriginality or Indigenous culture.  It is something, like all other disadvantages, that is very much inflicted upon Aboriginal people by majority culture. The generational disadvantage experienced by these parents would, no doubt, make it particularly attractive to them.

4. Thankfully, Mr Sullivan has extracted himself from that disadvantage.  Hopefully, Ms Prosser will, at some point in the near future extract herself from the evil grip of “ice” and, if she does, I have every confidence that Mr Sullivan and Ms Prosser will be able to resolve arrangements substantially, if not completely, without recourse to litigation and through arranging it between themselves as they have to date.

Attitudes towards the responsibilities of parenthood demonstrated by each parent

1. Mr Sullivan’s attitude cannot be criticised as would be apparent from the above.  Ms Prosser’s attitude, on one level, could be criticised.  However, I am conscious that she is not in a position to simply make choices.  To the extent that she has been inconsistent and irregular in her engagement with this child or otherwise, I am loathed to make any finding, and do not do so, that she has “abandoned” the child or made any conscious decisions regarding her lack of engagement. She is addicted to a drug.  A drug that rules her life, her daily existence and, accordingly, her attitude is subjugated to it as well.

Family violence

1. There are no allegations of significance that need be considered.

Family violence orders

1. There are none.

Whether it is preferable to make orders that will least likely lead to the institution of future proceedings

1. In this case I am satisfied, that if orders are made that will, in all probability, conclude the controversy between these parties for some little time and thus lead to the outcome that would most likely avoid future proceedings and give stability to young X.

2. Accordingly, I make orders as set out at the commencement of these Reasons.

I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate: 

Date:  24 February 2015