TEMPLETON & CHAMPION

[2016] FamCA 785

FAMILY COURT OF AUSTRALIA

TEMPLETON & CHAMPION [2016] FamCA 785

FAMILY LAW – CHILDREN – Final parenting orders – Best interests of the child – Extent of and conditions on the child’s time with the mother – Parental responsibility resolved by consent – child to live with father by consent – The mothers behaviour and mental health issues relating to drug and alcohol abuse – Risk factors in the child’s engagement with and time with the mother – Child’s time with the mother to be in protective circumstances –  Where it is in best interests of the child to make orders substantially as sought by the Independent Children’s Lawyer and the father.

Champness and Hanson (2009) FLC 93-407
Goode & Goode [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR [2010] HCA 4
Slater v Light (2013) 48 Fam LR 573

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

APPLICANT: Mr Templeton

RESPONDENT: Ms Champion

INDEPENDENT CHILDREN’S LAWYER: Louise Coady Family Lawyer

FILE NUMBER: PAC 2058 of 2012

DATE DELIVERED: 16 September 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 18 June 2016, 5 & 7 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Cairns

SOLICITOR FOR THE RESPONDENT: Fay Rose Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Mahony

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Louise Coady Family Lawyer

Orders

1. That the child B born … 2006 spend time with the mother as agreed between the mother and father in writing with such writing to include SMS or email communication and in default of agreement as follows:

   (a)       on the Sunday of the first weekend of each month (to coincide with the weekend that the child is to spend time with the maternal grandmother) as follows:

   (i)for a period of 6 months from the date of orders from 10 a.m. until 2 p.m.,

   (ii)for a further period of 6 months thereafter from 10 a.m. until 4 p.m.,

   (iii)thereafter from 9 a.m. until 5 p.m. (6 p.m. daylight saving time)

   (b)       that for the purposes of the child’s time with the mother as provided for above changeovers shall be effected at the McDonald’s Family Restaurant, Suburb N, NSW or as otherwise agreed between the mother and father in writing with such writing to include SMS or email communication.

2. That the mother is restrained from being under the influence of any illicit drug or alcohol and from smoking whilst the child is in her care.

3. That, subject to the following Order (4), the mother is entitled to attend at and be involved in any event or activity at the school attended by the child to which parents or others are invited or permitted to attend and participate.

4. The Mother shall not approach the Father, his wife or any members of the paternal family (apart from the child the child) during her attendance at any school or extra-curricular event and the Mother shall not approach the Father’s home.

5. That the Mother is permitted to obtain from any school which the child attends, copies of the child’s school reports, NAPLAN results and reports, newsletters, notes and any other material related to the child and his progress or activities at school which parents are ordinarily entitled to obtain and these Orders shall be sufficient authority to the school to release such information and material to the Mother.

6. The Mother may telephone the child at times as agreed between the Father and the Mother in writing and failing agreement, each Sunday between 5:30pm and 6:00pm when the child has otherwise not spent time with the mother, with the Mother to facilitate the call and the child shall be permitted to speak with his Mother with privacy and without distraction or interruption and the Father shall ensure the telephone service is on and charged in a mobile service area.

7. That the Mother is permitted to spend time with the child when the child is spending time with his Maternal Grandmother provided that the Father has given his written consent to the Maternal Grandmother and if the Maternal Grandmother invites the Mother to do so in writing or agrees for the Mother to do so in writing provided that any such time shall be on a day-time basis only with no overnight.

8. That subject to the preceding order the Mother is restrained from spending time or communicating with the child when he is spending time with the Maternal Grandmother other than in accordance with these Orders.

9. That in the event of a medical emergency or serious illness involving the child, the Father shall notify the Mother as soon as reasonably practicable and advise her as to the situation including the child’s condition, location and treating hospital or medical practitioner.

10. That the father shall forthwith do all things necessary to authorise and direct Dr C to provide to the mother at her expense such information as she may reasonably request in relation to the child’s ongoing treatment or prognosis.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Templeton & Champion has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2058  of 2012

Mr Templeton

Applicant

And

Ms Champion

Respondent

REASONS FOR JUDGMENT

1. The parties to the present proceedings are the applicant father and the respondent mother.

2. The child subject of the present dispute is B (the child), born in 2006. He is now 10 years of age.

3. The maternal grandmother was previously a party to the proceedings and issues as to her time with the child were determined by orders made on the 23 July 2015 that provided:

   a)That the child B born in 2006 spend time with the maternal grandmother as agreed between the father and maternal grandmother in writing, such writing to include email and SMS communication, and in default of agreement as follows:

   b)During school terms on the first weekend of each month commencing on the first Friday of that month from 3:00pm Friday to 5:00pm Saturday provided always that such time shall be suspended on the Father’s Day weekend with such time to occur in lieu at the election of the father on either the weekend before or the weekend after the Father’s Day weekend,

   c)From 9:00am Monday to 5:00pm Friday in the first week of the school holiday period occurring at the conclusion of school term 2 (the June/ July school holidays) or otherwise as agreed,

   d)During the Christmas school holidays from 9:00am on the second  Monday in January until 5:00pm the following Friday or otherwise as agreed,

   e)On the Sunday after the child’s birthday for a period of not less than 6 hours as agreed in writing, such writing to include email and SMS communication, and in default of agreement from 12 noon to 6:00pm,

   f)Approximate to but not on Christmas Eve or Christmas Day, during the day only, for a period of not less than 6 hours as agreed in writing, such writing to include email and SMS communication, and in default of agreement from 12 noon to 6:00pm on 23 December each year,

   g)That the maternal grandmother shall communicate with the child by telephone between 6:00pm and 6:30pm each Sunday if the child is not otherwise in her care that day and at such other times as agreed in writing such writing to include email and SMS communication and for the purpose of this order the father shall provide to the maternal grandmother a contact telephone number on which the child will be available and ensure that the child is available to receive such calls and shall afford the child reasonable privacy during such calls.

The aborted trial: June 2015

1. The proceedings as to the parenting arrangements for the child as between the father, mother and maternal grandmother were fixed for trial to commence on the 17 June 2015

2. At the commencement of the trial the Court was informed by the Independent Children’s Lawyer (ICL) that some of the significant issues in dispute had been resolved in that it was agreed that the father should have sole parental responsibility for the child and that the child should continue to reside with the father. Final orders to that effect were made by consent on the 17 June 2015.

3. The remaining issue relevantly for determination then was the child’s time, if any, with the respondent mother and, if there was to be time, the terms and conditions of that time in accordance with the child’s best interests including supervision of that time;

4. At the commencement of the trial the Court was informed that the mother was to be admitted to a long term residential drug and alcohol rehabilitation program the next day. However during the course of the first day of trial the mother fell ill and was taken by ambulance to hospital. The following day the Court was informed that the mother had been released from hospital and was later admitted to the rehabilitation program.

5. By agreement the mother’s application as to time with the child was stood over to a later date for directions and interim orders by consent were made facilitating the mother having supervised time.

6. The trial continued only as between the father and maternal grandmother culminating in orders set out above.

7. The trial as between the father and mother as to the remaining issue was relisted for hearing commencing 5 September 2016.

Context

1. It is appropriate notwithstanding the limited issue for determination to consider briefly the factual background.

2. The father at the time of trial was aged 32 and the mother aged 31.

3. The child was born as a consequence of a brief encounter between the parties in 2005. The child is the only child of the parties.

4. The mother and father had limited contact with each other during the mother’s pregnancy and the father had little input into the child’s care in the first year of his life. The mother asserts that the father was not supportive of her after the birth of the child and that she was assisted by her subsequent partners with the care of the child.

5. The mother’s relationship with the maternal grandmother soured after the maternal grandmother made a notification to the Department of Family and Community Services (“the Department”) when the child was about four months of age.

6. In July 2007 the child was admitted to hospital with serious bruising on his body and face and objective symptoms of neglect. On admission it was found that the child had previously sustained a spiral fracture to his right tibia. Investigations by the Department were unable to determine whether it was the mother or her then partner who perpetrated the injuries on the child.

7. On 16 July 2007 the Department made application for an emergency care order in the Children’s Court. On discharge from hospital the child was placed in the care of the paternal grandmother, Ms E Templeton. Living in the paternal grandmother’s household was the paternal grandfather, the father and also a paternal uncle.

8. Final orders were made in the Children’s Court on 17 December 2007 granting sole parental responsibility to the father until the child attained the age of 18 years. Under the terms of the final orders for the first 12 months the mother was to have contact with the child once per month for two hours supervised by the Department and on another occasion during the month supervised by a person assessed by the Department as suitable. Thereafter the mother’s time with the child was to be supervised by a person agreed to by the parties and failing agreement at a specialist contact centre.

9. For a period the mother’s time with the child was supervised by the maternal grandmother or by the father and various other family members. However by 2011 the father was unwilling to supervise the visits due to the mother’s inconsistency and the maternal grandmother’s relationship with the mother further deteriorated as a consequence of the mother’s alcohol abuse to the extent that she also refused to supervise the visits. For a period thereafter the mother’s time was supervised by a contact centre.

10. The father and his now wife commenced cohabitation in 2008 and she assisted him with the care of the child. The father and his wife moved to separate accommodation in 2009 and his wife then assumed the bulk of the care for the child whilst the father has been working and studying.

11. The father and his wife have two children of their relationship, H born in 2014 and J born in 2015.

12. There appears little doubt that the relationship between the father and his wife was placed under stress as a consequence of the background circumstances relating to the child and the difficult relationship with the child’s mother. There was an incident between the father and his wife in November 2011 involving a significant episode of family violence and they separated until January 2012. During this period the paternal and maternal grandmother’s assisted the father with the child’s care.

13. During 2012 the child spent time with the maternal grandmother but following behavioural issues that became apparent after the child had spent time with the maternal grandmother the relationship between the father and the maternal grandmother soured. From early 2013 the maternal grandmother spent little or no time with the child and to the father’s observation the child’s behavioural issues settled significantly.

14. Notwithstanding the final orders made in the Children’s Court, the Department provided their consent to this Court exercising jurisdiction in relation to the child.

15. On 19 June 2014 following an interim hearing in the Federal Circuit Court of Australia orders were made for the maternal grandmother to have time with the child.

16. Otherwise the proceedings were then listed for final hearing to commence on 8 October 2014.

17. The Family Report authored by Dr I and dated 11 September 2014 was released to the parties on 3 October 2014. The context of that report is discussed below.

18. On 9 October 2014 the final hearing before Halligan J in the Federal Circuit Court was vacated by consent, presumably as a consequence of issues raised by the report.

19. On that day orders were made in summary as follows:

    a)That the Department of Family and Community Services be requested to intervene in the proceedings,

    b)That the maternal grandmother’s weekend time with the child continue pending further order,

    c)That the child spend time with the maternal grandmother from 10:00am on 12 January 2015 to 10:00am on 19 January 2015,

    d)That telephone communication between the mother and the child pursuant to the previous interim orders now be between 7:00pm and 7:15pm and that telephone communication between the maternal grandmother and the child be between 7:15pm and 7:30pm,

    e)That pending further order the maternal grandmother shall not permit the child to come into contact with the mother other than in accordance with arrangements between the parents in terms of the Children’s Court orders made on 17 December 2007 with the parents to inform the maternal grandmother as to their agreement,

    f)That proceedings be transferred to the Family Court of Australia.

20. On 23 December 2014 a Registrar of this Court requested information from the Department as to their engagement in relation to the child and requested the Department intervene in these proceedings. The Department’s response was released to the parties on 5 March 2015(Exh C). The Department elected not to intervene in the current proceedings.

21. As a consequence of the mother’s history of drug dependency and alcohol abuse the father’s residential circumstances had been kept from the mother so as to prevent the mother attending at his home. The father had installed at his home an alarm and surveillance system for the protection of him and his family.

The Child: ADHD

1. On 1 April 2014 the child was seen by Dr C, paediatrician. Dr C’s file (Exh I) includes a report dated 11 April 2014 identifying the child’s then current problems as:

   a)Many features of ADHD,

   b)Oppositional defiant behaviour,

   c)Mild asthma,

   d)Early history of abuse and neglect or possibly an important contributor to his emotional dysregulation.

2. A review by Dr C dated 19 May 2014 observes:

   ..the overall clinical impression of Oppositional Defiant Disorder and ADHD are supported by the feedback forms completed by his parents and his class teacher. His teacher indicates that he is performing at Grade level across most of the key learning area but is starting to struggle with specific aspects of literacy especially spelling and handwriting. He struggles to fit in comfortably with his peer group because of his overbearing and intrusive nature. the child continues to be quite impulsive and easily distracted.

   …I have suggested a trial of Ritalin as an adjunct to other supportive measures in light of the ongoing difficult and challenging behaviours he is presenting with. I do think he needs strong and careful management with the patient’s steady hand and a consistent and firm approach.

3. Regular reviews thereafter demonstrate that the child continued to present with behavioural issues.

4. On a referral by Dr C the child attended upon Ms K, psychologist. The child was diagnosed as within the autism spectrum, meeting the level I severity rating requiring support for both the social communication and restricted repetitive behaviours domains.

5. Ms K reported that the child:

   a)Displayed a number of excessive interests and inflexible behaviours requiring psychological intervention,

   b)May be assisted by a psychologist with his understanding of social appropriateness, communicating with others in a less intrusive manner and in general “getting along with others” more effectively,

   c)Should have a speech assessment,

   d)Struggles to follow instructions or move through more complex activities with multiple steps,

   e)Should receive support in the school environment to ensure his academic, behavioural and social development.

6. The child has exhibited outbursts of violence including punching the father’s wife when she was pregnant.

7. The child was previously on slow release Ritalin medication on school days.

8. The child was reviewed by Dr C in late May 2016 with Dr C reporting optimistically to the child’s general practitioner in the following terms:

   … He has made quite steady progress and is achieving good academic results. He is in good health with growth continuing between the 3^rd and 10^th percentile. He has been on Ritalin but since the start of term 2 he has been attending school unmedicated and so far this seems to have not eventuated in any major deterioration although [the child] himself reports that he is a little more chatty in class. However he is completing his work and the school have not contacted his parents to raise any concerns. As a result we have therefore agreed to leave him off medication for the foreseeable future but are provided her with a new prescription for Ritalin in case the situation is deteriorating.

   In the meantime [the child] has made a new friend at school which is a great breakthrough. He is sleeping soundly and enjoying a reasonable appetite. I have arranged to review him again in 6 months unless other problems arise.

The Family Report: October 2014

1. The Family Report (Exh B) prepared by Dr I was released to the parties on 3 October 2014. She was not required for cross examination.

1. At the time the report was prepared the mother was seeking an order for the child to reside with her although her proposal was that the child primarily live with the maternal grandmother and spend progressively increasing periods of time with the mother until such time that the child lived with her full-time.

2. The mother further proposed that she and the maternal grandmother have equal shared parental responsibility for 12 months and that thereafter the mother have sole parental responsibility. The mother otherwise sought that the child spend alternate weekends with the father.

3. It is clear that at the time of the report interviews in August 2014 the father was struggling with his circumstances at home and was contemplating handing the care of the child over to the mother. The family reporter observed that the father presented as a concerned and caring parent for the child and became quite emotional and sensitive when discussing the trauma to which the child has been exposed. The father to the family reporter gave the impression of being somewhat rigid and inflexible, describing himself as “dogmatic”. This description is somewhat apt having regard to the father’s presentation during the hearing and his reluctance to consider appropriate compromise.

4. Clearly circumstances in relation to this child have moved on significantly since the initial context of the Family Report. Importantly, significant issues as to parental responsibility, primary residence and the surname of the child have been resolved with the consent of all parties.

5. The father in interview described the child as outgoing, trusting and articulate but also a liar and a child who does not listen. He described to the family reporter how he and his wife have tried to manage the child behaviourally and academically and provide a home environment that has been stable and secure.

6. At the time of interview the child was aged 8 years and 2 months. He presented as a talkative and outgoing child but also quite restless and at times he found it difficult to focus. The child was clearly cognisant of the conflict between the paternal and maternal families.

7. It is of great credit to the parties that they have resolved this significant issue in a very child focused way in accordance with the recommendations of the family reporter that there be a continuation of the status quo where the father has sole parental responsibility and that the child lives with him.

The trial

1. Trial directions were made on 26 April 2016 that provided for the mother and father to file one consolidated affidavit of their evidence in chief and one affidavit from each of the witnesses on which they intend to rely by no later than 28 days before the commencement of trial. It was further ordered that neither party may rely on any documents filed other than in compliance with the direction without leave of the court and in the event of non-compliance with directions the court would at its discretion either vacate the trial dates, list other matters with priority or deal with the matter on an undefended basis.

2. The mother filed her affidavit in support of orders sought by her on 2 September 2016. No objection was taken to her affidavit being filed out of time. The self-represented father filed no affidavit material in support of orders sought by him.

3. The trial proceeded on the basis that the father would be permitted to cross-examine the mother but would lead no evidence in chief. To facilitate the fathers cross examination the independent children’s lawyer was directed to cross examine the mother first with the father to follow thereafter.

4. The mother’s affidavit somewhat unnecessarily by reason of the limited issue for determination goes into significant detail in relation to the history of the child and her relationship with the father. More importantly it provides to the court an insight into the mother’s ongoing difficulties in relation to the use of cannabis and alcohol abuse.

5. The mother makes reference to her various admissions and/or engagement with the M  Clinic, a drug and alcohol rehabilitation service. Of great assistance to the court in considering the mother’s affidavit are the mothers records relating to her engagement with the clinic that comprised Exhibit E in the proceedings.

The January 2014 admission

1. The mother was admitted to the clinic on 15 January 2014 and discharged on 5 February 2014. Her discharge summary records cannabis and alcohol dependence for 15 years. At the time of her admission she had been using about “20 bongs per day – less at times” and over the last 5 years consuming up to a bottle of bourbon per day but currently a six pack of bourbon and Coke per day.

2. The mother was medicated with diazepam for anxiety during withdrawal and Citalopram for depression. The it was noted that the mother had “some difficulty adjusting to limit setting, episodic conflict with staff and other patients”. It was recommended on discharge that the mother continue with the outpatient today program at the clinic. The mother was provided with medication for ongoing depression on discharge.

The August 2014 admission

1. The mother was readmitted to the clinic on 20 August 2014 following a relapse to further cannabis use after she asserted “a friend offered me some”. She informed the clinic that she had since June 2014 been using 3 – 5 cones of cannabis per 24 hours saying that it “helps me with mood and anxiety”.

2. The mother revealed to the clinic that she had ceased her antidepressant medication Citalopram in about June 2014. On admission her urine screen tested positive for benzodiazepines and cannabis.

3. The mother was discharged on 9 September 2014 and provided on discharge with antidepressant medication Citalopram.

The First June 2015 Admission

1. The mother presented again at the clinic on 4 June 2015. Her presenting diagnosis was noted as cannabis use disorder and ongoing legal issues regarding child custody.

2. The mothers presenting history is recorded in the following terms:

   Long history of THC use. This is her 3^rd admission to the D and A unit at [M Clinic]. Last admission was in August 2014. Patient states she has not been using since her last discharge, but 2 weeks before her admission date a close friend died, she felt such intense grief that she went and bought some THC and started smoking again.

3. The mother was placed on a withdrawal scale with medication provided as required. The mother on 7 June 2015 elected to self-discharge against medical advice. She was provided with a reducing dose of diazepam.

The Second June 2015 Admission: The first trial dates

1. The mother was again readmitted to the clinic on 18 June 2015. The diagnosis on admission was cannabis use disorder and major depression. The mother is presenting history as noted in her discharge summary is:

   Self-presented with a history of THC abuse. Recent admission to [M Clinic] at patients self-discharged during her first week. Patient has been dependent on THC for 15 years. She had detoxed last year but relapsed in May 2015 secondary to a friend’s death.

2. A urine drug screen on 19^th of June 2015 resulted positive for cannabinoids and benzodiazepines.

3. After expressing concerns about her son and Centrelink issues the mother was given permission to discharge on 1 July 2015. It was noted “mental state stable at the discharge”. Recommendations for future management on discharge included abstain from cannabis, abstained from alcohol, attended day groups and continue with medications. The mother was provided with medication being Nortriptyline (an antidepressant) and Yasmin on discharge.

4. The mother provided a clear urinalysis test dated 26 August 2016 and asserts that she is not using drugs and has not done so since she entered rehabilitation for a 2^nd time in June 2015. She asserts that she continues to attend Alcoholics Anonymous meetings.

5. Yet apart from her own assertions she provides no documentary evidence of her ongoing attempts at rehabilitation.

6. Subsequent to orders made on 18 June 2015 providing for the mother to spend supervised time with the child she commenced spending time in accordance with the orders on 27 July 2015. Those visits have been supervised by an independent supervision agency that has provided a detailed reports are to the mother and to the father. Those visits have mostly occurred at the mother’s home. The child has had 13 supervised visits with the mother in the period from 27 July 2015 to 11 July 2016.

7. The mother proposes that her time with the child should progress to unsupervised time for longer periods and thereafter progress to include overnight time once per month.

8. Importantly the mother acknowledges that the child also spends time with the maternal grandmother one weekend per month and otherwise has weekend time with the father and his family.

9. The mother refers to her asserted aboriginal heritage through her father, although she has no knowledge about her father’s mob or any of her father’s extended family in Queensland. However the mother asserts that in the past 6 years she has reconnected with her aboriginal heritage by attending a women’s group at Willmot, west of Sydney. The mother is certainly at liberty should she wish to engage the child in aspects of her aboriginal heritage during periods that the child will spend time with her.

10. The mother presently resides in a three-bedroom housing commission accommodation that provides appropriate and comfortable accommodation for herself on prospectively for the child. Concerningly she remains unemployed and in receipt of job search centre link benefits. Certainly for her own benefit it is important that she persist in her endeavours to obtain gainful employment.

11. It is noted that she now has a driver’s licence and a motor vehicle.

12. The mother acknowledged that the child notwithstanding his mental health difficulties was coping well with the regime of supervised time that was in place at the time of the trial. She further acknowledged that it was important that she support the child being in the father’s household and that it would benefit the child to gradually extend periods of unsupervised day time with her.

13. In her oral evidence a possible changeovers at the McDonald’s Family Restaurant at Suburb N was suggested and she was amenable to that location.

The ICL’s view

1. At the commencement of the trial the counsel for the independent children’s lawyer informed the court that it was considered by the ICL that supervision would no longer be required but that the ICL did not support the commencement of overnight time for the child with the mother.

2. The ICL proposed (Exh C) the child spending time with the mother on the first weekend of each month on the Sunday initially for a period of 3 months from 9 a.m. to 12 p.m., thereafter for a further period of 3 months from 9 a.m. to 3 p.m. and thereafter from 9 a.m. to 6 p.m. This time would be on the same weekend that the maternal grandmother had time with the child from after-school Friday until Saturday evening.

3. In the context of the ICL’s proposal it was common ground that the father and mother resided only a short distance from each other and that there were no practical difficulties in such an arrangement.

4. The ICL further contended that the continuation of supervised time through a contact service was not optimal in the long term.

5. The ICL proposed that the mother continued to be permitted to attend school events, have telephone contact, obtain information and reports in relation to the child and engage with the child when the child was spending time with the maternal grandmother as provided for in interim orders made on 18 June 2015. The father did not oppose those arrangements

The fathers position

1. Ultimately the father put his position in the alternative. Firstly that there be a continuation of the present ongoing supervised time or in the alternative secondly that orders be made much as proposed by the ICL that did not provide for overnight time.

The mothers final position

1. Counsel for the mother in final submissions conceded that orders should be made as proposed by the independent children’s lawyer but with the additional provision that at the expiration of a period of 12 months the child’s time with the mother extend to overnight time.

2. Such a submission did not have regard to the unacceptable risk that may be presented to the child in the context of overnight time in the mothers household. The mother’s ability to remain alcohol and drug free notwithstanding the reasonable period of abstinence that she asserts is untested. She has a history over the last 15 years of serious cannabis and alcohol abuse and has had made various attempts at rehabilitation. The mother remains fragile in her financial circumstances, being dependent upon government benefits and it appears lacking in social and community support except for members of her church.

Parenting: the statutory pathway

1. The relevant principles in relation to parenting and interim proceedings are well settled Goode & Goode [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.

2. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.

   (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. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

Parental responsibility

1. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption relevantly does not apply where:

   a)        There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b)        …

   c)        If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA (4)].

2. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

3. The question of parental responsibility has been appropriately been resolved by agreement with the father to have sole parental responsibility for the child.

4. The question of the mother’s time with the child is the matter for determination. Issues of equal or substantial and significant time are not argued for by either party nor are they in the best interests of the child.

5. The issue is to be determined by reference to the best interest considerations set out in section 60CC of the Act

Best Interests

The primary considerations: s 60CC (2)

1. The primary considerations are:

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

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

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

Section 60CC(2)(a) – “meaningful” relationship

1. In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:

   … the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…

3. The child relationship with the mother is overshadowed by a history of neglect and abuse that engaged the Department of Family and Community Services to intervene in the child’s life ultimately placing the child with the father.

4. The issues as to the nature of the child’s relationship with the mother are also subject to the considerations that must flow from the child’s own mental health issues.

5. The question is how can the court fashion orders to promote the relationship of the child with the mother in a meaningful way. Long term supervision is not child focused and had been the subject of adverse comment.

6. In Champness and Hanson (2009) FLC 93-407, the Full Court said at 83,516:

   219.… the Full Court has expressed concern about the absence of some kind of review mechanism when orders are made for long-term supervised contact. Part of the concern, expressed in cases such as Hv K [2001] FamCA 687, is that the parties are left with “no mechanism for moving forward” and that the parent seeking to remove the supervision requirement will have difficulty in meeting the “changed circumstances” test in Rice v Asplund (1979) FLC 90-725.

7. More recently, in Slater v Light (2013) 48 Fam LR 573, the Full Court said at 591:

   69.… it is also relevant to the success of this ground that the orders did not at least provide an opportunity for the father to apply to vary the supervision arrangements at a later time.  That the father could bring such an application is no solution given that on the basis of Rice and Asplund he would need to establish significant changed circumstances before being permitted to have his case heard on the merits.

1. It is clearly necessary to find good reasons for an order for long term supervision to be made. In this matter the reason advanced by the father is his own expressed caution and circumspection as to the mother not presenting a risk to the child. It was put to him that the child now older is more capable of self-reporting as to any concerns. He conceded such was the case.

Section 60CC (2)(b) – need to protect

1. This is an overwhelming consideration in the context of this matter and must be given priority over issues as to relationship. In the light of the matters discussed above there appears to be significant risk factors in permitting overnight time until the father gains confidence in the mother’s “rehabilitation” and then such time can commence if agreed.

2. This consideration, which is to be given primacy, is supportive of the orders sought by the ICL and the father in the alternative.

The additional considerations: s 60CC (3)

1. Section 60CC(3) sets out the additional considerations:

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

   b)        The nature of the relationship of the child with:

   i)        Each of the child's parents; and

   ii)Other persons (including any grandparent or other relative of the child);

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

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

   ii)       To spend time with the child; and

   iii)      To communicate with the child;

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

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

   i)        Either of his or her parents; or

   ii)Any other child, or other person (including any grandparent or other relative of the child);

   with whom he or she has been living;

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

   f)        The capacity of:

   i)        Each of the child's parents; and

   ii)Any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

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

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

   i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

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

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

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

   k)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   i)        The nature of the order;

   ii)       The circumstances in which the order was made;

   iii)      Any evidence admitted in proceedings for the order;

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

   v)         Any other relevant matter;

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

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

2. The views of the child are not the subject of any evidence. In his circumstances such views in any event would be accorded little weight by reason of the overarching protective issues.

3. The relationship ongoing between the child and the mother is a work in progress and subject to the various reservations expressed above. The child has a good relationship with the father as his primary carer and the father’s household.

4. The father has had the primary obligation to make decisions about the child’s life with the mother’s role circumscribed by her drug and alcohol dependence.

5. The changes to the child’s circumstances are small and to be incremental to address the fathers concerns and the child’s needs for routine and certainty. There is no practical difficulty in the child maintaining relationships.

6. The mother’s long term capacity is at best problematic. In the foreseeable future it appears that she can offer the child maternal influence in the context of day contact only.

7. The mother asserts an aboriginal connection although her understanding of the nature and background of such is disturbingly little. She is able to engage the child in that aspect of her heritage in the time the child will spend with her.

8. There has been a sad history of violence and abuse for the child. These issues have been resolved in the context of the child’s now settled circumstances. There are no current domestic violence orders.

9. By giving the parties the ability to agree as to expansion of the child’s time with the mother it is hoped that orders to be made will obviate any further proceedings.

10. In the best interest of the child orders as sought by the ICL should be made together with the other orders referred to as agreed.

11. Orders will be made accordingly.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 16 September 2016.

Associate:

Date:  16 September 2016