TALLEY & DALE

FEDERAL CIRCUIT COURT OF AUSTRALIA

TALLEY & DALE

[2019] FCCA 3942

Catchwords:
FAMILY LAW – Parenting – final orders – one child aged five years and 10 months – where the mother was the primary carer – where the child was moved to the father’s care – where the father seeks that the child continue to live with him – where the mother has an impaired parenting capacity – where both parents have a history of drug use – best interests of child.

Legislation:

Family Law Act 1975 (Cth) Pt VII

Cases cited:

Goode & Goode [2006] FLC 93-286

Applicant:

MS TALLEY

Respondent:

MR DALE

File Number:

SYC 46 of 2017

Judgment of:

Judge Betts

Hearing date:

21 and 22 August 2019

Date of Last Submission:

22 August 2019

Delivered at:

Newcastle

Delivered on:

23 August 2019

REPRESENTATION

Counsel for the Applicant:

N/A

Solicitors for the Applicant:

Self-Represented

Counsel for the Respondent:

Ms Bates

Solicitors for the Respondent:	Adams & Associates
Counsel for the Independent Children’s Lawyer	Ms Carty
Solicitor for the Independent Children’s Lawyer	Foat Roberts Lawyers

ORDERS

All previous orders be discharged.
That the child, X born 2013, live with the Father.
That the Father have sole parental responsibility for the child.
That the child spend time with and communicate with the Mother as agreed in writing (which includes text message and email) and failing agreement:
(a)On alternate weekends the first of which shall occur in Town A from 10.00am to 5.00pm on the Saturday and from 10.00am to 5.00pm on the Sunday.
(b)On the second alternate weekend which shall occur in B City from 9.00am to 5.00pm on the Saturday and from 9.00am to 3.00pm on the Sunday.
(a) The time provided for in order 4(a) to be implemented by the Father delivering the child to the Mother outside Location C and collecting the child from the same location at the conclusion of the time.
(b)The time provided for in order 4(b) to be implemented by the Father delivering the child to the Mother at the McDonalds Restaurant, Town D and collecting the child from the same location at the conclusion of the time.
The child have telephone communication with the Mother as follows:
(a)On Mondays and Thursdays between 6.00pm and 6.30pm.
(b)On the Sunday the child does not spend with the Mother between 6.00pm and 6.30pm.
(c)On the child’s birthday between 6.00pm and 6.30pm.
(d)On Mother’s Day and Christmas Day between 9.00am and 9.30am if the child is not spending time with the Mother.
(e)The Mother may otherwise communicate with the child by Facetime and other electronic communication at other reasonable times and if the child expresses a wish to communicate with the Mother then the Father is to facilitate that.
The Father is restrained from permitting Ms E to be present at changeovers or from being within earshot during any telephone or electronic conversations between the Mother and X.
That each parent notifies the other as soon as possible in the event of any illness, hospitalisation or injury of the child whilst the child is in their respective care and of any event which involves the Police.
Within fourteen (14) days, the Father is to provide a copy of these orders to X’s usual treating general practitioner. These orders authorise X’s treating general practitioner to speak to each party at that party’s expense about any medical or psychological problem which affects the child from time to time or in relation to any counselling being engaged in by the child.
That each parent be restrained from:
(a)Denigrating the other party or any member of the other party’s family or friends in the presence or within the hearing of the child;
(b)Allowing the child to remain in the presence or hearing of any other person who is engaging in denigration of the other parent or family members or friends of the other parent;
(c)Exposing the child to “family violence” as defined in section 4AB of the Family Law Act a copy of which section will be attached to the order;
(d)Allowing the child to be exposed to pornography when in that parent’s care;
(e)Consuming or being under the influence of illicit drugs, or knowingly exposing the child to any other person consuming or under the influence of illicit drugs;
(f)Consuming any illicit substance at any time in the twelve (12) hours prior to the child spending time with them or being in their care pursuant to these orders.
Within fourteen (14) days the Father is to provide a copy of these orders to X’s school and that this order authorises the school to provide each parent with copies of all notices, letters, school reports, school photograph forms and invitations to attend school events and each parent is entitled to attend at the school for parent/teacher interviews, special assemblies or any other event subject to the school’s policy.
Each parent will notify the other party of any change of their residential address within seven (7) days of any such change.
Each parent will notify the other party of any change in their telephone contact numbers as soon as practical after any such change.
Pursuant to section 11(1)(b) of the Australian Passports Act, that the Father be entitled to do all acts and things and sign all documents necessary to enable issue of a passport for the child, X born 2013 and once the Father receives the duly executed passport for the child, the Father shall be entitled to retain the child’s passport in his possession.
The Independent Children’s Lawyer is discharged upon the expiration of any application appeal period.
The proceedings be removed from the list of active pending cases.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

No. SYC 46 of 2017

MS TALLEY

Applicant

And

MR DALE

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally. They have been corrected from the transcript so as to make them easier to read.

Introduction:

These are parenting proceedings in relation to a young and vulnerable child, X, born 2013. X is presently five (5) years old.
The applicant in these proceedings is X’s mother, Ms Talley. She has represented herself at trial, her previous solicitors having recently withdrawn. In these proceedings she is seeking that X live with her and spend substantial and significant time with her father.
The respondent to the proceedings is X’s father, Mr Dale. He proposes that X live with him and spend limited daytime visits with the mother. His position is supported by the Independent Children’s Lawyer (“ICL”) appointed in these proceedings.
The proceedings have something of a history. The mother first commenced them on 6 January 2017 and it has taken until August of 2019 before the matter could proceed to a final hearing. This is a direct result of the present docket sizes in Newcastle and the overloaded reality of the Federal Circuit Court sitting here.
The proceedings have been eventful. At the commencement of the proceedings, X was living with the mother. By the time the matter came on for final hearing, X was living with the father.
This arose as a direct result of the mother returning positive - indeed very high - methamphetamine results on drug testing in 2018. The mother’s history of drug abuse in this case is serious and is said to be the major reason why X should be living with the father, although not the only reason. I should add that the father himself has also a significant drug history, although not as significant as that of the mother.
But before I descend into some of the facts of the matter in any more detail, I should record that the parents were in a relationship between 2009 and February of 2015.
The father does not work. He lives on a large rural property in Town A.
The mother does not work. During the relationship she lived between the father’s property and her then Department of Housing property at Suburb G - and later her Department of Housing property at Suburb H where she continues to live, and has lived since about 2014.
The parties live about 150 kilometres apart, which is approximately two hours by car. The mother is seeking to move to Town A or to Region I, although where she ultimately lives will depend upon the public housing that is made available for her.
When the parties commenced a relationship, the mother was and remains the primary carer of X’s older sibling, J, who was born 2006. J is presently thirteen (13) years old. Though the father in this proceeding is not J’s father, it would be a reasonable statement to say that X and J are siblings for all intents and purposes. They have a close and loving relationship.
The father has two (2) older children, Mr A Dale and Ms B Dale, who are both adults. Each of them, from time to time, stays in a cottage that each has built on the father’s Town A property. It seems to me that during the relationship, the father was not the primary carer of either Mr A Dale or Ms B Dale, although he did obviously spend time with them.
In terms of the parenting arrangements during the relationship, the reality is that the mother was the primary carer for X. She was also the primary carer for X after the parties separated.
The father complains that, prior to the mother instituting these proceedings, she had deprived him of the opportunity to spend time with X on occasions, and he essentially says that the mother was sabotaging their opportunities to spend time together. The mother’s position is that the father did not take up all of the opportunities to spend time with X that he could have.
Whichever version of events is true does not matter much. I take it as a given fact that the mother was always the primary carer of X until this court made orders in November 2018 placing X in the father’s care by reason of the harrowing evidence of neglect on the mother’s part and her significant drug-related problems which left the court with no real option but to move this child where she has remained to this day.

Material relied upon:

At the hearing, the parties relied upon the following documents.
Mother’s case:
(a)her Amended Initiating Application filed 7 August 2019;
(b)her trial affidavit filed 7 August 2019.
Father’s case:
(c)his Further Amended Response filed 8 August 2019;
(d)his trial affidavit filed 8 August 2019;
(e)a Case Outline of 12 November 2018 which became exhibit “F1”;
(f)a Case Outline of 19 August 2019 which became exhibit “F2”; and
(g)a handwritten Minute of Orders which superseded the orders set out in the Further Amended Response and which became exhibit “F3”.
Exhibit “F3” was further amended at nearly the conclusion of the hearing in relation to a specific order concerning a passport for X. This amendment was incorporated into exhibit “F3” and the ICL supported the making of those orders.
(h)The father also tendered some photographs in evidence as well as other documentary material which had been made available under subpoena. I will refer to that material insofar as it has proven relevant.
ICL’s case:
(i)the first Family Report of Family Consultant K dated 17 November 2017 which became exhibit “ICL1”; and
(j)the second Family Report of Family Consultant K dated 2 August 2019 which became exhibit “ICL2”.
The court had the benefit of seeing the mother give evidence, the father give evidence and the Family Consultant give evidence. The court also had the benefit of submissions from all the parties.
The mother represented herself and did not explore all of the relevant factual matters that could have been explored when it was her opportunity to cross-examine. Nonetheless to the extent that the mother did conduct cross-examination of the father, the questions she asked were poignant and relevant, and I would add, well put. It would be fair to say that the mother was at a distinct disadvantage at the trial, being unrepresented, but I am left in no doubt as to her dedication to X and her desire to spend as much time as she can with X, and indeed, to have X returned to her care.

The law to be applied:

These are parenting proceedings, and hence Part VII of the Family Law Act (“the Act”) applies. The court is obliged to regard the best interests of X as the paramount consideration: section 60CA. In arriving at a best interests determination, the court is directed to have regard to the primary and additional statutory considerations set out in section 60CC of the Act.
In relation to parental responsibility, section 61DA of the Act provides that a court, when making a parenting order, must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility. However, that presumption does not apply if there are reasonable grounds to believe that a parent is engaged in “abuse” of the child or family violence.
“Abuse” is relevant in the context of section 61DA, and also relevant in terms of section 60CC. The term “abuse” is defined in section 4 of the Act. “Abuse” in relation to a child relevantly includes serious neglect of the child. It also relevantly includes causing a child to suffer serious psychological harm, including but not limited to when that harm is caused by the child being subjected to or exposed to family violence.
Even if the presumption in section 61DA does apply, it may nonetheless be rebutted if the evidence satisfies the court that such an order would not be appropriate, or to put it another way that it would not in fact be in the best interests of the child for the parents to share parental responsibility.
The Full Court in Goode & Goode (2006) FLC 93-286 made clear the statutory pathway which always existed in the Act since it was amended in 2006, but which had perhaps not been as clearly highlighted up to the point of that decision.
Relevant in this particular case is the question of “unacceptable risk”. The father and the ICL both contend that the mother poses an unacceptable risk to the child in the context of being the primary carer. That is, the risks that she poses to X are such that the court should not make an order for X to live with her. They jointly contend that the mother’s time should be limited to day time only.

The main issue in this case – risk to the child:

It seems to me that the main issues in this case relate to the question of risk and to the benefit of X being able to maintain meaningful relationships with each of the parents and also with other significant persons, including her sister J who lives with the mother. It would be fair to say that much of the cross-examination and much of the submission in this case related to the question of risk. As I indicated in the course of this hearing, I consider – and the ICL agrees – that this is a case in which both parents pose a degree of risk.
The ICL submitted that the Court is not being asked to make so much a “best interests decision” for X – but rather to make the “least worst” decision, which I suppose by definition is exactly the same, albeit one that has rather a more depressing but probably apt connotation in a case such as this.
I am greatly concerned about the mother’s past history on a number of levels. I am also concerned about the father’s history on a number of levels.

Risk findings concerning the mother:

In terms of the mother, she has no doubt been the victim of harrowing childhood experiences. These have cast a long shadow, in my view, over her life and over a number of her life choices. She would appear, on the evidence, quite clearly to have been the subject of sexual abuse as a child from her own father and also apparently from friends of his. The childhood experiences she must have endured would be quite impossible for anybody to fully appreciate who has not experienced such horrors as a child. I do not for a moment understate what a dreadful, dysfunctional childhood the mother had in this case.
She has provided, as part of her trial material, evidence in relation to her counselling and supports arising out of her childhood, but also arising in part out of her relationship with the father. And I will turn to those matters shortly.
The report from the mother’s accredited mental health social worker appears as annexure “G” to her trial affidavit. The mother was referred to her by New South Wales Victims Services Counselling following charges being laid against her ex-partner – this is the father – following an alleged assault which resulted in facial injuries including loss of her front teeth. This relates to a specific allegation of family violence, and I will come back to that later. The report goes on to say that the mother described a history of abuse at the hands of this partner and others throughout her life.
In the report writer’s opinion, the mother:
has symptoms consistent with a diagnosis of complex post-traumatic stress disorder following early childhood trauma both in the home and from services she has turned to for support as well as partner abuse. She will require long-term counselling support to address the psychological effects and her lifelong experience.
The mother has had difficulties with drug use for a very long time, and it is likely that that drug use is substantially connected with her past trauma.
Long before she met the father, she was using heroin at the age of 20. She says in her affidavit that she used for about one and a half years. She said in her evidence, and I accept, that she stopped using heroin after someone she knew died from using it.
The reality is that she has had difficulties with drugs from as far back as the 1990s. Heroin is of course an extremely serious and very dangerous drug.
Unfortunately, the parties in this relationship both used drugs while they were together, and indeed, each of them has continued to use drugs since separation. I accept the mother’s evidence that she and the father were both ice users during the relationship. It would also appear that the parties used cannabis as well.
The use of ice by both parties is a real concern to the court. Ice is a particularly addictive, highly dangerous drug, the use of which is incompatible with, in my view, sensible or appropriate parenting. Children and ice make a very poor combination that this court regularly has to grapple with. This case is no different. The fact is that both of these parties decided to use drugs as a feature of their relationship.
After separation, the mother remained the primary carer of X. However, it seems on all of the evidence before me that her drug use continued and to some extent spiralled out of control after the separation. The events of 2017 in relation to the mother’s care of X are nothing short of harrowing, and in my view, constitute serious neglect of the child’s needs.
I now refer briefly to subpoenaed material.
In 2017 the child was attending childcare at Suburb L. In April of 2017, the mother signed an application form which sought a special childcare benefit so that X could attend for longer hours each week. The form expressly stated that the basis for the application was that the child was “at risk of abuse or neglect”.
I accept that the mother did not fill out this form herself and may not in fact have read the form particularly closely if at all. And I also accept that she was at that time accessing supports from Health Service M in relation to domestic violence counselling. (She was alleging, and there was some evidence in support, that the father had been physically violent to her). But equally it is quite clear that the Suburb L childcare staff were concerned about the care of X at that time, and in my view, their concerns were more than borne out by events that followed.

Some four (4) days after the childcare centre lodged that application, the mother was apprehended by the Police while driving a motor vehicle. Her manner of driving is what led the Police to pull her over. She was apparently not keeping within her lane, and the Police were concerned she may have been under the influence of alcohol or another drug.
When they pulled the vehicle over, she was the driver and the sole occupant. Police discovered in the vehicle a number of items of concern: most notably, a small resealable bag containing a trace quantity of what appeared to be crystal methamphetamine, or ice. There were electronic scales in the car which police considered were commonly used to weigh out prohibited drugs.
Police had some intelligence in relation to the mother consuming and/or supplying such drugs, although to be fair, the mother has never been charged with any such offence, and the details of the police intelligence are not before me. The Police also found five (5) separate mobile phones in the vehicle.
Overall, the circumstantial impression that any reasonable Police officer might have formed at that time would be that the mother was dealing drugs. It was certainly a reasonable inference that might have been drawn at that time, and certainly, the mother’s actions were suspicious to say the very least.
Having said that, she was not charged with dealing in drugs, and I make no finding about it beyond recording that the Police were clearly concerned that she might have been, and apparently had intelligence that she was. Relevantly, the mother admitted using injectable drugs when speaking to the Police.
The mother gave evidence in relation to why she had five (5) mobile phones. She said that one (1) of the phones apparently belonged to X, who was then about three (3) years old. One of them allegedly belonged to J. Two (2) of them belonged to her, one of which she said had a cracked screen, and one of which had a damaged battery charger. And the other one she said belonged to a friend.
I do not know what the true position is, but this event was merely a segue into far worse and more serious matters that would follow.
On 2 June 2017, X was dropped off at the childcare centre, distraught and crying. Staff observed that she had two cigarette burns close to her mouth. The mother had driven away in something of a hurry that day - without engaging with the staff - and the child was clearly distraught.
I have seen the photographs of the two (2) clear burns near X’s mouth. The mother’s evidence is that X came up to her and gave her a hug and ended up bumping into her cigarette as a result of which ash then fell from the mother’s cigarette onto X’s face, thus resulting in the two separate burns rather than one. The mother was adamant that she was outside the home at the time when this occurred. That is, she was outdoors smoking in the fresh air and not in a confined space with X.
I do not accept the mother’s evidence that the reason she left in such a hurry that day was simply because X was upset at having to go to the centre. I certainly accept that X experienced separation anxiety on some occasions (when being dropped off), if not all occasions. But in my view, the mother was keen on that day to avoid being asked any questions by staff in relation to what had happened. Perhaps she was embarrassed, or ashamed, or upset, or all three. But I am comfortably satisfied that she couldn’t get out of there quickly enough. The child was left at the childcare centre distraught and upset. In my view, the mother failed to properly comfort this child.
A report was made to the Department of Families and Community Services (“the Department”) in respect of this matter.
The Department spoke to the mother and she undertook to them that she would go through with drug and alcohol counselling because it was clearly a concern by that stage that she was using drugs.
The mother did in fact undertake a number of drug tests, and she was also referred to Community Service N to assist her with her parenting.
A regrettable reality is that the opportunities offered to the mother to improve her parenting, and to change her life, were missed. She did not take advantage of what Community Service N could have potentially offered her. She complains that Community Service N only contacted her a couple of times and that they effectively “dropped the ball”. I disagree. I am satisfied from the subpoenaed material that it was the mother who “dropped the ball”, not them.
My conclusion is fortified by the mother’s own evidence in the witness box that she considered that maybe the Department was over-involved in her care at that time. She also explained that drugs did not really affect her parenting, an answer which is frankly incredible. I have no doubt whatsoever that the mother’s use of drugs seriously affected her parenting.
The mother underwent a number of drug tests as required by the Department of Families and Community Services. And I have those records in subpoenaed evidence before me. She produced a positive methamphetamine result on 27 June 2017, on 29 June 2017, and again on 20 July 2017. There were some other clean tests as well. But it is clear that in mid-2017, the mother had a problem with methamphetamine use while also caring for two young and in my view vulnerable children.
On 11 August 2017, the Department was contacted in relation to J after she presented with a very red, inflamed and scabby wrist due to her chronic eczema condition. The Department were advised that the child had said that the mother was not buying the appropriate eczema medication as it was too expensive. The caller wanted to check J’s arm due to the condition of her wrist. However, J declined, saying the mother had told her not to remove her jumper despite it apparently being a warm day.
A real concern is raised in relation to whether the mother was not properly providing J with medication at that time, and whether she was encouraging or at least suggesting to the child that she not show her eczema to others. It is a serious concern to this court.
The Department arranged, with the mother’s cooperation, to transfer X from Suburb L to Suburb H Pre-school. I have the records of that preschool before me as well.
It is clear from those records that on more than one occasion, the staff at Suburb H Pre-school were concerned that the mother was “on something” when she attended at the centre to drop off the child. Moreover, the child was observed on her very first day at Suburb H Pre-school to attend with a dirty, smelly bag, food that was regarded by the staff as inadequate, and including an orange which they considered had gone bad, and active headlice.
It was noted that the mother was “very scatty in her interactions with staff and X, lots of talking fast”. The mother also herself appeared to be a bit unkempt.
Their records show that on another occasion, X became upset when the mother said to her that she had to go home because “Community Service N are coming over, and we need to keep dogs off our back”. The child became upset, saying she didn’t want her mother to go to jail.
These were totally inappropriate things for the mother to say in the presence of this child, and they reflect, in my view, poorly upon her capacity to cope at that time.
Of course, by this time, proceedings were well underway, and X had been returned to the mother’s care by interim orders of the court. The mother was interviewed on 26 September 2017, a few weeks after these events to which I’ve just referred, by Family Consultant K who prepared the first Family Report and the second Family Report.
Family Consultant K was concerned about the mother’s presentation. She presented, according to Family Consultant K, as extremely nervous to the point of physical agitation, fidgeting with her hair and apparently employing pressured speech. Her attitude to the Family Consultant was initially hostile and guarded, but she then immediately became overly apologetic and cooperative.
The Family Consultant was concerned about the mother’s mental health and about her chaotic presentation, noting her significant sexual abuse history and also some serious allegations of family violence that she made against the father. The Family Consultant was concerned about the mother, and one of her recommendations was that the mother undertake a mental health assessment and engage in therapeutic counselling to address the impact of trauma through Victims of Crime.
Certainly, the mother has undertaken some counselling in relation to family violence issues, and I have that evidence before me. She cannot be criticised for not having seen a counsellor for the last three (3) months in circumstances where the counsellor was unavailable, having recently retired or left the employment of the counselling service. But I accept that the mother has had some counselling in relation to family violence.
I am far from convinced, however, that the mother has undertaken any serious mental health assessment or had any, in my view, essential counselling in that regard. She gave evidence in relation to drug and alcohol counselling at trial, which was all a bit difficult to understand and follow.
The mother was accused of not having engaged with drug and alcohol counsellors between around the middle of 2017 through to December 2018 after the Court had made orders removing X from her care. She disagreed and was adamant that she had in fact attended for counselling for drug and alcohol abuse, but she was unable to provide any evidence about that, despite being given an opportunity to put such evidence forward. In any event, whatever counselling she has had, in my view, falls far short of what she needed which, in the opinion of the Family Consultant, was a serious drug rehabilitation program.
Returning then to the events of 2017 and 2018, the position is that the mother continued to consume illicit drugs, most notably ice. Orders had been made by the Court requiring her to undertake random urinalysis as requested. She only undertook two (2) out of the nine (9) drug requests that were made pursuant to the orders. She explained that she was being randomly tested by the Department of Families and Community Services at the time, and that is true, but her records with the Department revealed that the tests on occasions were positive on the dates indicated earlier.
Of concern, in 2018 the mother produced a number of positive results for methamphetamine which ultimately resulted in me making interim orders that X be removed from her care on 15 November 2018.
In particular, according to the mother’s evidence which is annexed to her affidavit, on one occasion around mid-2018 that I don’t have a date for, the mother produced a positive result for methamphetamine with a result in accordance with mass spectrometry of 941 ug/L for methamphetamine. The cut-off for a positive test is 150 ug/L - so her result was six (6) times above the cut-off. I might add that this was at a time when she knew she was being drug tested.
On another occasion, at a date I do not have, she produced a positive result of 438, almost three times over the cut-off.
On 7 June 2018, she produced a positive result of 365 which is more than double the cut-off.
And then the most alarming result of all, on 26 October 2018, a result of more than 1,500 u/L, more than ten times the cut-off.
Only the mother knows how much methamphetamine she consumed on that day. But those numbers are alarming. They came at a time when she was under the watch of the court, and when she had the care of X who was young and vulnerable. She also had the care of J, who was also still young, though perhaps somewhat less vulnerable than X.
The mother’s drug results reflect an incapacity, or an inability, or an addiction. Labelling her consumption of drugs “foolish” would be to oversimplify the situation. It seems to me she could not help herself. There is no other logical interpretation.
It is true that since the child has been removed from her care by orders of the court, the mother has not turned up any positive drug tests, and I have no evidence of any positive drug tests since that disastrous result of 26 October 2018. But I do have other evidence which is of real concern to me.
Most notably annexure “A” to the father’s affidavit is an apparent order made on her MasterCard to purchase an item known as a “synthetic urine belt”. This is an item which, it would seem logically, is designed to assist the purchaser - or whoever the purchaser supplies it to - to evade urine testing regimes.
The mother said to me in the witness box that she had in fact purchased such an item for a “friend” in 2015. She claimed not to know exactly what it did, but apparently the mother was in the best position to buy this item for her friend because she was the one who had a MasterCard, or a credit card. When asked if she knew what she was buying, she said “to an extent”. When asked if she had used the belt herself, she said “No, I have not.”
The mother said that she purchased this belt in 2015. The evidence produced by the father, which by inference has come from the mother’s mobile phone, shows a belt purchase on 27 June 2018 which would put it right in the middle of the time when the mother was producing positive methamphetamine results to the Department. This of course raises great suspicion in my mind as to whether she took this step to try to evade testing knowing that she was producing positive results.
The mother complains that the father has hacked into her phone, or otherwise been able to manipulate her records. The provenance of this record is somewhat unclear to me because the father’s affidavit does not give any particular detail about it, save that it is apparently said to have come from the mother’s mobile phone, as became apparent in the course of the hearing.
It seems to me that there is certainly a real likelihood that the mother purchased this belt in June of 2018 as opposed to 2015. She was given the opportunity to provide her MasterCard account statements to show that there was no such transaction. She said that her accounts had been “locked” as a result of a fraud on her bank from a number of days ago, but she did go to the bank yesterday morning before day 2 of the trial to try to obtain a printout from the bank.
She picked, it seems, 27 June 2018 as the date to obtain a printout from the bank, which on one view makes sense. However, the credit card transaction (produced by the husband) is stated to have occurred at 10.22pm that night. It is a matter of common sense that credit card transactions regularly appear in a bank statement a day or two (or perhaps even more) after the event. It would have been much better for the mother to provide a larger window of time to prove that this transaction was not on her credit card. She only sought a statement in relation to the one day in question, and it was far from convincing to me.
Moreover, it was far from convincing that she was able to have her account “unlocked” for the purpose of printing out this one day only.
Her whole story was difficult to understand, and I was left with the uneasy feeling that the purchase was probably more likely than not made on 27 June 2018, as the father said. But even if I was wrong about that, the mother’s own admission to purchasing such an item in 2015 for a friend, even if I accepted that version, demonstrates on her part a desire or a capacity or willingness to try to cheat the system, something which, in the context of detection of illicit drugs, can do enormous harm to innocent people.
I would add that the mother did also attend upon the hospital in mid-2018 complaining of abdominal pain which is also around the time that this belt was purchased. She admitted to having used amphetamine on 19 June 2018, according to the subpoenaed material that is before me.
The mother’s life seems to me to have been a complete train wreck in 2017 and 2018, and this child was very much caught in the middle of it. It seems to me that the mother’s mental health and drug use are probably linked and that she has not done nearly as much as she has to do in order to clean herself up in terms of mental health and illicit drugs.
What concerned me was the mother’s evidence in this trial, despite everything that has happened in her life, that she really didn’t think methamphetamine affected her parenting. That is the answer of a drug addict who does not want to admit they have a problem, or it is the answer of someone who has no insight into the true effect of drugs.
There are other concerns in relation to the mother that I will touch upon briefly.
To say that she has engaged in horrific denigration of the father would be a fair summary. In the father’s trial affidavit, he annexes an email from the mother to him of 3 October 2018. She sent it in response to a polite request by him to be able to take X for a couple of days to go to Sydney on a train and take her to location O. The mother’s email response to the father was this:
Don’t you ever contact me again, you putrid, dirty old cunt. If you want to talk to me, talk to me through your solicitor. I don’t want nothing to do with you. Do you understand? And no, you can’t take X anywhere. You can’t fire the Court’s orders. I can’t let you have X. Good bye, you putrid shit cunt.
This is nothing short of an abusive, aggressive display by the mother which shows nothing but contempt for X’s father.
What is somewhat bizarre about this case is that notwithstanding the severe abuse that is levelled by one parent against the other from time to time – and the father is no angel in this regard either – the parties continue to maintain an at times amicable relationship which includes continuing their intimate relationship, as recently as the June/July holidays just gone.
In any event, I have little doubt that the mother at times displays aggression related to her own personality or mental health issues and that at times, she behaves in an aggressive and indeed, even unhinged manner. Likewise, I have evidence before me that the mother has engaged in serious abuse of the father’s ex-girlfriend and apparent friend, Ms E, which includes referring to her as a “putrid junkie” amongst other things. I will come to Ms E later.
The mother is also alleged to have perpetrated family violence against the father. Family violence is a matter that has arisen in these proceedings. And on her own case, the mother has engaged in some violence against him on occasion - most notably when she was, according to her own evidence, hitting him and spitting on him while he was driving their motor vehicle with X in the car in July of 2016. Her case is that she was calling the father a “paedophile” at that time, and that the father responded by becoming very aggressive and punching her in the mouth, causing two of her teeth to fall out. She then got into the back seat of the car.
The father’s version is that the mother was hitting him in the manner she admits to but also spraying Coca-Cola through the car, which I note was a hire car, and that he had had enough and so he hit the brakes causing her to career forward into the back of the front passenger seat. This allegedly caused her teeth to be knocked out and damaged.
The mother made a complaint to police about this matter, and originally, the father had an AVO taken out against him, although it was later withdrawn. The Police charged the father, but those charges did not proceed because they considered the mother to be an unreliable witness. The mother says that she was in the front passenger seat but when she was spoken to by Police, she had said she was in the rear passenger seat. So she gave two different versions of events.
It is quite impossible for me to make a finding as to exactly what happened in circumstances such as that. But I make clear that I consider that the mother was violent in hitting the father, and in spitting at him while he was driving a motor vehicle at 100 kilometres an hour. There is a real possibility that the father punched her in the mouth. I cannot make a positive finding about it, but I certainly see it as a real possibility. I do not see how this event does anything but cast a long shadow over both parents. Once again, the child was caught in the middle of this dreadful situation. But on the mother’s evidence, I am satisfied that she has on occasion behaved violently to the father. I will turn to his violence a little later.

In short, I have real and serious concerns about the mother, mainly in relation to mental health and drug use, as does the Family Consultant.
There is also the matter of the mother’s possible exposure of the child to undesirable characters, and to the possibility of the child being sexually harmed or psychologically harmed, arising out of a Pornhub channel that apparently the mother has set up.
I find all of this evidence bizarre. The mother’s case is that the father and she set up this channel - “(omitted)” - together. The mother told the Family Consultant in the first Family Report that she had uploaded videos of herself and the father, but then she told me that she had never uploaded any videos. She said that the father had shared videos that she had provided to him and only to him.
I find all of the evidence impossible to reconcile in any serious way. That said, I would observe that it seems to me that the father would have been more than happy to take advantage of whatever videos the mother would have posted, if any. And inevitably, further questions have to be asked in terms of the risk to the child in the mother’s care if apparently “strange men” were coming to the mother’s home, having seen videos that she had posted.
The mother admits sending a message to the father about someone called “Mr Q from Suburb G” coming to see her, apparently in response to seeing a video. But she says that the father was the one who showed the video or released the video to this man. I simply do not know what the truth is in this matter, but it adds to my level of concern about the mother’s care.
In terms of the mother, I should also add in completeness that in the second Family Report, she also admitted to the Family Consultant that she was still using drugs. At paragraph 33, the Family Consultant recorded that the mother was still using drugs to cope with emotional crisis, but indicated that the deaths of close friends in recent years has been a major trigger for her. She also said that her relationship with the father was a significant emotional trigger, and told the consultant that:
everything (was) a trigger, really.
The mother also conceded at paragraph 74 of the second Family Report that she had not gone through with the drug and alcohol counselling that had been recommended by the Department of Families and Communities in 2017 and 2018, which I have referred to earlier. Although the mother backed away from that evidence in the witness box, I consider that what she told the Family Consultant was accurate. She did not follow through; she should have.
The mother is also alleged to consume alcohol to excess, and there is evidence before me that she has done so on occasions. I accept that evidence.
On one occasion, she was pulled over by the Police in March 2018 with both children in the car. At the roadside test, she blew in excess of the legal limit for driving. Because she had no-one available to care for the children at the time, Police had to call another vehicle so that the children could be cared for while the mother was conveyed back to the Police station. This would have resulted in some degree of delay in the mother’s testing being completed, but I note that she blew under the limit at the station. Consequently was not charged in relation to drink driving although she was charged with apparently driving in a somewhat erratic manner, in that she was changing lanes without indicating.
The bottom line is - I have real and serious concerns about the mother’s care of the child.

Risk findings concerning the father:

In terms of the father, he is no angel.
He has a criminal history which includes drug offences, break & enter and stealing offences, driving offences, cultivating cannabis, malicious damage, some assault charges from the mid-1990s, possession of an unsecured firearm from the late 1990s, a common assault in 2007, and cultivating commercial quantities of cannabis, possessing firearms without a licence and possessing a drug in 2008.
He also placed a tracking device on the mother’s car in 2016, which resulted in him being convicted for stalking her. He tried to suggest that his tracking device was placed on the mother’s car out of concern for X’s wellbeing, or perhaps because he was concerned about the vehicle being stolen.
Perhaps some of his motivation related to X’s wellbeing, but I am far from satisfied that this was the primary motivator.
He has a criminal history.
He also has previous family violence orders that were made against him on behalf of the mother of his older children, Mr A Dale and Ms B Dale. I note that, when the father and their mother separated, Mr A Dale and Ms B Dale were placed with the maternal grandparents to be cared for rather than with the father. This was despite their mother having been deemed unsuitable to care for them because of her own issues, and from memory, I think she was in prison. But it is noteworthy that the father was not selected as the appropriate carer for Mr A Dale and Ms B Dale, but rather the grandparents were.
There is also evidence that the father has been physically abusive to Ms E and a family violence order was in place for her protection as well.
Of course, this dovetails nicely with what the mother says - which is that the father was violent to her on a number of occasions, and that he was behaving in a controlling manner towards her. She gives a number of examples.
She refers to an event at Christmas 2012, when she says that the father and his son Mr A Dale were physically abusive to her. I did not have Mr A Dale as a witness and I am not in a position to make positive findings about what occurred. I note that the father alleges it was the mother behaving aggressively and violently on this occasion, but certainly I am satisfied that there was a violent altercation.
The mother gives evidence about the father hitting her with a broom, perhaps a curtain rod, which is set out in her affidavit. She annexes a photograph which shows a very distinct bruise across her hip region, which she says was a direct result of the father’s assault. He denies this, and says that the mother was attacking him and that she effectively fell over and bumped her hip on the bench.
Having regard to the (albeit blurry) photograph, I struggle to accept that the injury would have been occasioned to the mother as the father suggests. It strikes me as a very distinct, marked bruise which would be more consistent with her being assaulted in the manner she suggests. I find her version of events to be more likely than not what happened.
There is another serious event of alleged family violence which occurred in 2015 and involved a car chase.
The mother’s case is that the father was chasing her and her friend R in a vehicle after they left his home. She says that they were at the father’s home, that he became angry, that they left out of fear, that the father was effectively chasing them in his car, and eventually the mother’s car rolled over. The mother’s case is that the father then brought the mother, R, and X, back to his home. X was unrestrained in the mother’s car at the time, and it is lucky that she was not seriously injured when the car rolled. The mother then stayed at the father’s home, it would seem, for the next day or so, although R was able to be transported back to wherever she had to go. At a later time the mother was again able to drive her vehicle.
The father’s version of events is that R was not welcome at his property, and that when he told her to go, the mother and R then drove off in a great hurry in a manner that was dangerous. Hence he followed them. He admits that their vehicle rolled.
R was not called as a witness in this case, and she is the only other adult who could have told me what happened. Certainly, the version of events given by the mother makes sense, but so too does the version of events given by the father.
As with the driving incident where the father allegedly punched the mother in the mouth, it would seem to me that both parents on this occasion behaved in a manner that was dangerous to this child. It was a serious event. Absent the witness R, it is not possible for me to be definitive in my findings about this issue, save to say that I have concerns about both parents.
The father has been a drug user and a significant alcohol abuser. In 2013, the father’s alcohol abuse had become so bad that he underwent some counselling at the behest of the Road Transport Authority just to be able to keep his driver’s license.
He claims that he sought help because of X and the desire to be a better dad, and this may be also true as well. To be fair, the father does seem to have significantly reduced his alcohol consumption.
In relation to drugs, the father has clearly used methamphetamine in the past on his own admission. He said in his trial affidavit that he had not taken drugs for two years, but he admitted in the witness box that he had used methamphetamine at a party on one occasion last year. It is to his credit that he admitted taking the drug in circumstances where, but for that admission, the matter could not otherwise have been proved.
Of course, it is also enormously against his credit that he would choose to take methamphetamine at all, and that it was offered to him at a social gathering does of course concern the court as to the sorts of social circles in which the father mixes, in which methamphetamine might be seen as something normal or acceptable.
In any event, I have concerns about the father’s past family violence orders. I have concerns about his past criminal history. I have concerns about his drug use and his alcohol use.
I also have concerns about his lack of insight in relation to Ms E. Ms E has been a real problem in this case, in that from the very outset the mother has wanted Ms E to have nothing to do with X. She seeks an absolute restraint, even now, that Ms E not be present when the father has X.
The father opposes such a prohibition on Ms E, because although he and Ms E do not have an intimate relationship any more, they apparently remain good friends and see each other regularly.
There was argument earlier in the proceedings about whether the interim “no contact” injunction concerning Ms E should be lifted. The court accepted the father’s argument and lessened the injunction - so that instead the injunction required that the father not allow Ms E to be left unsupervised around X.
What followed from the lifting of that injunction was a disaster. On 10 May 2019, as if this case could not get any worse, it did.
The mother attended for the handover that day to collect X. In my view, foolishly and with recklessness as to whether he was baiting the mother, if not actual intention to bait her, the father had X sitting on Ms E’s knee.
Given the extraordinary level of animosity, if not hatred, between the mother and Ms E – a hatred which defies any logical comprehension - this situation should never have been allowed to occur.
The mother’s version is that she collected X, and that Ms E threatened to “fucking smash (her) in the face”, and she then physically assaulted the mother. The mother defended herself. Both J and X witnessed this event. The mother was injured, and her injuries appear in her affidavit as photographs, from which it is clear that she is bleeding from the face. The mother’s evidence is that the father was there for the duration of the assault, but did not intervene, and indeed, was smirking about it.
The father claims not to have witnessed the assault, although he says that it was the mother who provoked Ms E.
Ms E was not called to give evidence in the case, but there is an AVO now in place protecting the mother from Ms E as a result of this event. Further, Ms E has been charged with assault occasioning bodily harm, and I understand that charge is coming before the Local Court in the near future.
It is not entirely clear to me exactly how the fight started. Certainly, the mother says that Ms E was insulting towards her. The father says that the mother was abusing Ms E.
What I am comfortably assured of is that Ms E was the one who instigated the physical attack, and I am also comfortably satisfied that the father showed a complete and utter lack of insight. He never should have allowed this situation whereby the mother would attend for handover and the child would be there, sitting with Ms E. I think it more likely than not that he intentionally baited her, but at the very least, he was acting recklessly.
In saying this, the father’s own affidavit deposes to numerous photographs he has taken which are annexed to his affidavit showing such angry and aggressive language from the mother as “Ms E’s a dog” scrawled on tree trunks and posts and the like.
The mother hates Ms E. Ms E hates the mother.
The mother’s evidence is that Ms E has left a voicemail for her saying:
You scraped your cunt out and fed it to your kids.
Also, the mother says that Ms E posted on Facebook that the mother was a bad mother who left syringes lying around.
Equally I have in the mother’s affidavit her own messages to the father, which include such gems as, in relation to Ms E, that she would be:
changing X’s last name so you can’t find her, so enjoy your putrid junkie, Ms E. That’s all you deserve, a letterhead. You’re one putrid child fucker. Tell her to go climb back in the abortion bucket where she belongs.
Et cetera, et cetera. And the rest is not even worth mentioning.
These two women despise each other, and each of them behave like immature schoolchildren, unable to control their behaviour. It is pathetic.
In any event, the father, in my view, bears a significant responsibility for what occurred on 10 May 2019. He failed. He should never have allowed this situation, whereby the child would be exposed to the “aggro” between these two women and to the violence which has then ensued. He takes no responsibility for it, and he should.
J was impacted by this event. In the interviews for the second Family Report, she told the Family Consultant that she was afraid that Ms E was going to kill her mother. So it impacted on J, who was clearly upset. Why would she not be?
As for X, she told the Family Consultant that:
Ms E punched Mum in the face at the pub, and I cried. Ms E doesn’t like Mum anymore. I don’t know why. Ms E put her rude finger up at me. Daddy said, “I don’t want to see her anymore.”
X was perturbed by the adults’ actions – understandably, in my view. So I have real concerns about the father and his attitude towards the mother, as demonstrated by what happened with Ms E and his baiting of her.
As against that, it is also clear the father has on occasion promoted time between the mother and X since the making of the orders of 15 November 2018, in excess of the time permitted under the orders.
I accept the mother’s evidence that in January 2019, the father gave her some extra overnight time with X to which she was not entitled after the orders, and which is incompatible with his concerns as to the level of risk he now says the mother poses. There is nothing he knows now that he did not know then - when he agreed to the mother having extra time.
There is one other issue raised in relation to risk, and that is the mother’s evidence in May 2016 that the father made a grotesque sexual comment to X. The mother gives evidence that she and the father were both drinking together, and that X had asked the father if she could have a lollipop, to which he responded by placing his hand on his penis and saying:
You can suck on this if you want.
The mother says she immediately replied:
What the fuck did you say? Why would you even think of saying something like that?
The father then responded that he did not mean it, he was just “off (his) head.” This is a curious and disturbing event that is alleged, but the mother did not put any questions to the father about it, and he has always denied doing it. The child has not made any disclosures of a sexual nature to anybody.
In the circumstances where the mother makes the allegation, it seems to me that there are only really two possibilities, having regard to all of the evidence before me.
The first is that the event did not happen, and that the mother imagined it or was otherwise perhaps affected by drugs or alcohol, and that it is a product of her imagination. That is a possibility. The other possibility is that he said it because he was “off his head” on drugs.
Because it is a serious allegation, I do not consider it appropriate to make a finding unless satisfied according to the standard of proof set out at section 140 of the Evidence Act. I am not able to find, in the circumstances, that the father did say this.
However, if he did say it - which is a possibility - then it would seem to me to be the sort of comment, grotesque as it is, that reflects somebody perhaps being “off their head” rather than an event that posed actual risk to the child. I say that because if the evidence was that the mother had walked past the room and the father was in there with the child on her own, saying that she should do this, that would have a much more sinister connotation to me than him saying it in front of the mother – which frankly, if it happened, sounds like drugs or stupidity talking, possibly both.
Only because the allegation is of such seriousness in its scope, I do not make a finding. But in any event, in the grand scheme of all of the circumstances of this case, and there being no follow-up about this matter at all, nor any questions put about it, I do not consider that it is a matter that takes me very far today.
I have real concerns about both parents, as I have made clear.

The Family Consultant’s evidence:

The Family Consultant had concerns about both parents.
In her first Family Report she had recommended that the mother undertake mental health counselling, which the mother has not really taken on board sufficiently.
The Family Consultant also recommended that the father do some things, which he has not done either. She recommended that he complete a program focusing on creating safe and respectful relationships for men who engage in coercive and controlling violence. When asked about it, the father said:
Why would I do that?
He did not seem to have much insight into the impacts of violence on X, except saying that it would not be good for her at all, which is an understatement.
When it was suggested to the father that he should have done that course, he responded:
I might just do that.
And of course, the first Family Report is now the better part of two years old. It is regrettable that the father has not undertaken such a course, because it would greatly assist him to understand the dangers of family violence and the corrosive impacts of violence on children.
Likewise, his lack of insight in relation to the confrontation between the mother and Ms E also leads into that issue as well. The father, in one view, has not really taken the recommendations of the Family Consultant any further than the mother has. Like the mother, in some ways, he lacks insight in relation to issues of violence.
The Family Consultant was of the very firm view that the appropriate course in this case in terms of risk management was to consider the two parents separately, but also to consider the different risks that they each pose to X.
She accepted that the father had a dark side to his personality, and certainly, I accept that evidence as well. Equally, she said that the mother at this time posed a far greater risk to the child’s wellbeing than the father did. She was primarily concerned about the mother’s drug use and her mental health, issues which in my view are linked, and her unregulated emotional state. She was also concerned about the mother’s apparent involvement on the Pornhub website, although I am somewhat less troubled by that than about the other matters. She was concerned about the mother’s capacity to properly care for X, given her longstanding drug and mental health issues, and given the Family Consultant’s view that the mother needed to undertake drug rehabilitation. The Family Consultant was concerned about the mother’s seeming lack of insight in that respect, particularly in relation to the impact of drugs.

I asked the Family Consultant whether it was “overkill” to draw the time with X and the mother back to daytime only, given that they have been having overnight time pursuant to the orders of the court made in December. The Family Consultant accepted that the older sibling, J, could potentially be a protective factor for X in the mother’s care, particularly as J gets older, but considered that from X’s perspective overnight time was very different to time during the day. Most particularly, a child is more likely to reach out for help from a neighbour or a friend in the daytime than they are at night time – which is probably a reasonable enough statement, in my view. The Family Consultant did not think it would be reasonable to expect J to have to care for her little sister if the mother was on drugs. She was of the view that daytime visits, as proposed by the father and the ICL, were the appropriate course if the court accepted her evidence that the mother’s risks to the child were greater and more pressing than the father’s risks.

Best interests:

I turn now to the specific section 60CC considerations.
In terms of the primary considerations, the court must consider the benefits to the child having a meaningful relationship with both parents.
The court considers that X would benefit from having a meaningful relationship with both parents in case. However, that meaningful relationship must be balanced against the need to protect X from physical or psychological harm from this being subjected or exposed to abuse, neglect or family violence.
In my view, both parents have exposed X to family violence. In my view, the mother has exposed X to neglect. In my view, that neglect is of such a serious nature that it would constitute “abuse” under the Act, particularly having regard to the records of the daycare centres.
Until the mother can fully and properly address her drug and mental health issues, the court is greatly concerned about the risks posed by the mother to X. The court is obliged to give greater weight to protecting X from harm than the weight to be given to the benefit of X having a meaningful relationship with both parents.
Pursuant to section 60CC(3), X is happy where she is. She is only young. Her wishes are but one consideration, and by no means are they an overwhelming consideration. But according to the second Family Report, X is quite happy with her dad.
Interestingly, in the context of the nature of the relationships in section 60CC(3)(b), although X has, in my view, a loving and close relationship with both of her parents, and particularly also with her sister J, it is clear that J thinks that X is going well where she is. Although J must be missing X, which would be entirely understandable, J made the observation to the Family Consultant that X was very well and happy living with her father, and she thought it was a good thing for X, and that she liked her school and was happy there.
The statements made by J reflect nothing but unconditional love towards her younger sister, and they do J great credit. J is a child who, for the record, seems to be reasonably well-rounded. The mother has primarily raised her, and J in my view has been exposed, inevitably, to a whole range of risk factors throughout her life, not only from her mother.
X has close and loving relationships with her family, and the court is determined to see that these continue as best they can, consistent with X’s best interests.
The parents have each participated in X’s life. The mother came to this court intending to be represented, but ultimately was unrepresented at trial. She did what she could, valiantly, to run this case on her own behalf, and I have no doubt as to her absolute dedication to her daughter. Running this case was no easy thing for her.
The question of the parents’ obligation to maintain the child does not really arise in this case.
As to the likely effect of any change in X’s circumstances, the father has provided evidence to the court that the child is well-settled in his care, and it should be recorded that she is doing well at the Town A School. She is achieving her goals academically and socially. She seems to be doing quite well at school. Her attendance is excellent. Unlike the time when X was in the mother’s care, there is no suggestion that her education has been impinged by lack of attendance or by any other overt indicators of neglect. I am satisfied the father has done a good job in providing the basics for this child in terms of a roof over her head and schooling.
If I were to move the child and place her with the mother, as she asks me to do, I would be putting her, in my view, at unacceptable risk, and I cannot as a matter of law take that risk.
In terms of practical difficulties and expenses, the parties live two hours apart. The mother is hoping to move closer. There are practical difficulties and expenses, and I have taken these into account but they are by no means the overwhelming feature of the case. Risk is the overwhelming feature of this case.
In terms of parental capacity, I have concerns about both parents, as I have indicated. My primary concerns in relation to parenting capacity at this time relate to the mother’s mental health and drug issues, but I am also concerned about the father’s attitudes, and particularly his past violence.
In terms of the child’s maturity, she is a young girl and the father is doing the best that he can to provide for her needs at this time. While both parents’ attitudes to the child and to the responsibilities of parenthood can be criticised, in my view it is fair to say that each parent is, warts and all, devoted to X.
I am satisfied, as I have indicated, that the father has been able to provide her with proper care in recent times.
I have already addressed the issues of family violence.
I am also concerned to make orders that are least likely to lead to the institution of further proceedings. There is not much I can do to foreclose the prospect of future proceedings, but it would not be in X’s interest for these parents to be back here again, litigating about her welfare, if it is reasonably avoidable.
What will need to happen before this matter comes back to the court is there will need to be evidence of a clear change of circumstances. Most notably from the mother’s perspective, evidence that she has undertaken serious drug rehabilitation and obtained meaningful assistance in relation to her related mental health issues, because she has the capacity, in my view, to be a good parent. There is no question about that.

Following the legislative pathway:

Turning to the legislative pathway, I am of the view that section 61DA(2) is engaged. I do not consider that the presumption for equal shared parental responsibility ought to be applied. These parties get on well –five percent (95%) of the time, and indeed have recently holidayed together and even continued an intimate relationship together. But it is the other five percent (5%) that they do not get on that will see them back in this court, and that will not be good for X, whose best interests must always be regarded by me as paramount.
I do not consider that the parents have a sufficiently functional relationship to make equal shared parental responsibility work. I do not think they can make it happen in X’s best interests.
In terms of the living arrangements and the parental responsibility orders, it seems to me that whoever has X in their primary care should have sole parental responsibility for making decisions about X.
I am of the view that, of the two parents, the safer option for X is that she continues to live with the father. I am driven to this view on the weight of the evidence.
I am also regrettably of the view, having regard particularly to the evidence of the Family Consultant and to the concerns that I have earlier identified, that to continue orders for overnight time between X and the mother would place X at unacceptable risk of harm. This does not mean that such orders as I intend to make cannot be revisited at a future time, hopefully not by a court but rather by consent of the parties, without the need for a further hearing. But at this time, the mother needs, in my view, to complete drug rehabilitation and obtain serious assistance for her mental health. I am also mindful that some – but by no means all - of the mother’s problems relate directly to things the father has done.

Conclusion:

The court considers that the appropriate orders to make are those set out at the commencement of these reasons. The orders promote a relationship between the mother and X insofar as it is safe, and which protect X, insofar as it is possible to do so, from unacceptable risk.

I certify that the preceding one hundred and ninety-nine (199) paragraphs are a true copy of the reasons for judgment of Judge Betts

Associate:

Date: 15 December 2020

[2019] FCCA 3942

23 August 2019

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness

Remedies