Tilney and Liatos (No.3)
[2007] FMCAfam 1016
•21 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TILNEY & LIATOS (No.3) | [2007] FMCAfam 1016 |
| FAMILY LAW – Parenting – best interests of the child – disclosure of history of drug abuse and hepatitis C – substantial and significant time – presumption of equal shared parental responsibility. |
| Evidence Act1995 (Cth), ss.128, 132 Family Law Act 1975, Part VII, Division 1, Division 2, ss.60B, 60B (1)(a), (2)(a) – (e), 60CA, 60CC (1), (2), (2)(a), (3), (3)(b) – (d), (3)(f), (3)(i), (3)(l), (4), (4A), 61B, 61C, 61DA, 65DAA, 65DAA (2), 65DAC Federal Magistrates Court Rules 2001, Rule 15.09 |
| Cornwell v R [2007] HCA 12; (2007) 234 ALR 51 HG v The Queen (1999) 197 CLR 414 National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The `Ikarian Reefer’) [1993] 2 Lloyds Rep 68 Cross on Evidence (ed. J.D. Heydon) (Seventh Australian Edition) (Sydney: LexisNexis Butterworths, 2004) D. Edney & D. Deam, “Drug testing in family law,” (2006) 80 Law Institute Journal 48 J.D. Heydon, “Statutory Restrictions on the Privilege Against Self-Incrimination,” (1971) 87 Law Quarterly Review 214 Professor P. Parkinson, “Decision-making about the best interests of the child: The impact of the two tiers,” (2006) 20 Australian Journal of Family Law 179 |
| Applicant: | MS TILNEY |
| Respondent: | MR LIATOS |
| File Number: | CAM 1627 of 2006 |
| Judgment of: | Neville FM |
| Hearing dates: | 17, 18 September, 22 October, & 23 November 2007 |
| Date of Last Submission: | 23 November 2007 |
| Delivered at: | Canberra |
| Delivered on: | 21 December 2007 (Orders & Oral Reasons) 4 February 2008 (Written Reasons) |
REPRESENTATION
| Counsel for the Applicant: | Mr Millar |
| Solicitors for the Applicant: | Farrar Gesini & Dunn |
| Counsel for the Respondent: | Ms Tonkin |
| Solicitors for the Respondent: | Macphillamy's Lawyers |
ORDERS
Both parents will have equal shared parental responsibility for the child, A born in December 2005.
Subject to further Orders below, in the event that there are any positive drug tests for Ms Tilney, Order 1 and the presumption for equal shared parental responsibility will be revoked and or negatived.
A will continue to live with Mr Liatos.
A will spend time with Ms Tilney as follows:-
(a)For four days every week from 9:00am to 5:00pm, on days to be agreed between the parties, but failing agreement, on Monday through to Thursday;
(b)Each alternate weekend from 5:00pm Friday to 5:00pm Sunday;
(c)At other times as agreed between the parties; and
(d)All times that A spends with Ms Tilney for the next three years are to be supervised by one or both of Ms Tilney’s parents or by some other person mutually agreed between Ms Tilney and Mr Liatos.
For a period of three years from the date of these Orders, Ms Tilney will undergo twice weekly, random (chain of custody – supervised) urinalysis testing for amphetamines (or any illicit substance) as follows:-
(a)Mr Liatos will authorise his General Practitioner to nominate (without the mother’s prior agreement) the days that testing is to occur and Ms Tilney will undertake the testing by 5:00pm on the same day of the request.
(b)Ms Tilney will undertake the testing at A Pathology or another fully accredited laboratory in the Australian Capital Territory.
(c)Mr Liatos will direct his General Practitioner to notify Ms Tilney by telephone of the request by 10:00am on the day of the request.
(d)Both Ms Tilney’s and Mr Liatos’ General Practitioner will be entitled to receive a copy of the test results.
If any of Ms Tilney’s urinalysis test results prove positive for amphetamines (or any illicit substance), the time she spends with A pursuant to Order 4 will be suspended immediately and will only resume when Ms Tilney provides three consecutive weeks of clean urinalysis tests.
In addition to the above Orders, if there are two positive drug tests in one calendar year:
(a)Mr Liatos will assume sole parental responsibility for A until further order of the Court;
(b)Ms Tilney’s time with A will immediately, and until further order, be restricted to twice per week for four hours on each of those days; and
(c)She will immediately resume the random drug testing, which will continue for a further three years.
In December each year for a period of three years, Ms Tilney will undergo hair follicle testing, the results of which will be made available to both Ms Tilney’s and Mr Liatos’ General Practitioners.
Provided Ms Tilney’s drug tests have been clear for three years, A will at that time live with each of his parents on a week-about basis, as agreed between the parties, but failing agreement, the parent with whom A has not been living with during that week will collect him after school on Friday.
Ms Tilney will undergo annual hair follicle testing in December each year for a further two years after the shared care arrangement commences, the results of which will be made available to both Ms Tilney’s and Mr Liatos’ General Practitioners.
If the hair follicle testing pursuant to Order 8 proves positive for amphetamines (or any illicit substance) over the course of that calendar year, Ms Tilney’s time spent with A will revert back to the care arrangements in Orders 2 and 3, with the drug testing regime in Order 5 to be reinstated.
Once A commences school, he will live with each of his parents for half of each school holiday period, as agreed between the parties, or failing agreement, with Ms Tilney for the first half of the holidays in even numbered years, and the second half of the holidays in odd numbered years.
Notwithstanding these Orders, if Ms Tilney’s birthday or Mr Liatos’ birthday falls on a day when A would otherwise be living with the other parent, the parent with whom A is living will make A available to spend time with the other parent for three hours as agreed between the parties, but failing agreement, from 3:00pm to 6:00pm.
On A’s birthday each year, the parent with whom A is living will make A available to spend time with the other parent for three hours as agreed between the parties, but failing agreement, from 3:00pm to 6:00pm.
Notwithstanding these Orders, A will spend 10:00am to 5:00pm with Mr Liatos on Father’s Day, and 10:00am to 5:00pm with Ms Tilney on Mother’s Day.
The parent with whom A is not otherwise living on Christmas Day will spend time with A as agreed between the parties, but failing agreement, from 3:00pm on Christmas Day until 3:00pm on Boxing Day.
When A changes from one parent’s care to the other parent’s care, changeover will be as agreed between the parties, or failing agreement, the parent with whom the child has been living or spending time with will deliver A to the home of the other parent with whom A is about to spend time or live with.
Neither party will change A’s place of residence from the A/Q area without first obtaining the written consent of the other party.
A passport be issued for A and Mr Liatos be permitted to take A to Greece for a period of three weeks each year and Mr Liatos will ensure reasonable notice of A’s overseas travel and the itinerary shall be provided to Ms Tilney.
Each parent will notify the other parent of any medical issues, illnesses, appointments and/or emergencies relating to A while he is in the other parent’s care, as soon as is reasonably practicable.
A shall have a further Hepatitis C test within the next twelve months. The timing and circumstances of the testing are to be determined by agreement between Ms Tilney’s and Mr Liatos’ General Practitioners.
IT IS NOTED that publication of this judgment under the pseudonym Tilney & Liatos is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAM 1627 of 2006
| MS TILNEY |
Applicant
And
| MR LIATOS |
Respondent
REASONS FOR JUDGMENT
Introduction[1]
[1] These are the written reasons in relation to Orders that were made on 21st December 2007. On that occasion, an oral summary of the reasons was provided.
The object of legal proceedings is not to resolve inter-personal conflict (short- or long-term) between parents. Rather, to use the language of Part VII Division 1 of the Family Law Act1975 (“the Act”), the principal issue and paramount consideration in this litigation is to determine and make orders that provide for the best care, welfare and development of A, the 2 year old son of Ms Tilney and Mr Liatos. That said, it is nonetheless a hope that the finalisation of these proceedings and the making of orders that are considered by this Court to be in A’s best interests may bring some closure to, and facilitate some stability and order in, the recently discordant relationship between his parents. In two earlier, interim judgments I have referred at some length to the potentially noxious and destructive relationship that has unfortunately developed between A’s parents in recent times, and the risk it poses for each of them in the Court’s determination of parenting orders for their son.[2]
[2] See Tilney & Liatos (18th September 2007) [2007] FMCAfam 873, and Tilney & Liatos (7th November 2007) [2007] FMCAfam 917. I need only note the following from the latter judgment (p.7):
“Whatever the parties feel by way of justification for their obviously deepeningly strained, if not overtly noxious, relationship, doubtless their learned legal representatives have advised them, or will do so soon, that this Court is statutorily enjoined to consider, among a number of things, “the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.”
S.60CC(3)(c) of the Family Law Act1975. See also s.60CC(3)(i) and s.60CC(4).
This case concerns what should have been the relatively straight-forward exercise of determining what parenting order this Court should make, according to two year old A’s best interests. As will be explained in due course, the so-called `straight-forward course’ proved, in many respects, to be labyrinthine. With only perhaps slight over-statement, the intensity and intricacy with which the contest was engaged – at times by the parties, but also by some others – approached Dostoyevskyian proportions. These reasons will not and do not intend to follow that suit.
I mention the famous Russian author less because of the prodigious length of his novels but more so for the complex and dark features of the relationships of the protagonists he portrays. Thus so here: the proceedings were somewhat lengthy; some of the procedural pursuits – for example in relation to the large number of subpoenæ issued by Mr Liatos’s solicitor[3] – were tangled if not tortuous; there was, and to a certain extent there remains, a certain darkness that courses through the relationship of Mr Liatos and Ms Tilney, essentially due to Ms Tilney’s long undisclosed intermittent drug taking, and equally long undisclosed hepatitis C condition. Unsurprisingly, the recent revelation of both of these matters, and the circumstances in which it occurred, had and continues to have a stunning if not devastating impact on Mr Liatos.[4] As a consequence, and quite understandably, he does not trust Ms Tilney to be free of drugs in the future notwithstanding a significant drug-testing regime that has been in place for some months and a genuinely rigorous and lengthy regime of random drug-testing in the future. Mr Liatos’s view is that in the light of Ms Tilney’s conduct, she should be either excluded from A’s life, or alternatively, the time she spends with him should be heavily circumscribed.
[3] Oftentimes these subpoenæ were sought at very late notice. For example, on the second day of the hearing (18th September 2007), specific mention was made of correspondence between two of Ms Tilney’s treating specialists, Dr R and Dr C. It had already been well established that Ms Tilney’s past drug-taking and Hepatitis C condition were significant issues in the proceedings. Notwithstanding this early note of this correspondence, Mr Liatos’s solicitor prevailed upon a Registrar to issue, at short notice and only two days before the final hearing in late November, yet another subpoena – taking the total to 18 – this time to Dr C. Why it was not issued to Dr C much earlier, given that it was raised in September, was not explained. It certainly suggested either a lack of appropriate strategic planning and or more a belated exercise in fishing exploration rather than forensic preparation. To her credit, and with characteristic candour, when I raised my concerns with Counsel on the last day of the hearing about the large number and late notice of subpoenæ, Ms Tonkin forthrightly said “we take full responsibility if your Honour is critical of that.” Transcript (23rd November 2007) p.3.
[4] A number of these matters were canvassed in my judgment of 7th November, noted above.
The legislative and judicial pathways in making a parenting order of the kind under consideration in these proceedings are well established. In Goode v Goode, the Full Court of the Family Court stated:
… in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration … and the framework in which best interests are to be determined are the factors in s 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case. [5]
The Full Court (Bryant CJ, Finn and Boland JJ), continued:
… when making a parenting order in relation to a child, the court must apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[6]
... it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. …the court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.[7]
It is against this legislative and judicial pathway that the competing proposals of the parties, and the evidence in these proceedings, can and must be judged. These reasons proceed according to the following schema: (a) the competing proposals of the parties; (b) issues in dispute & relevant evidence; (c) expert evidence & the family consultant; (d) s.60B and s.60CC considerations; (e) s.61DA and s.65DAA considerations; (f) conclusion and orders.
[5] (2007) 36 Fam LR 422 at p.428 [10].
[6] Ibid, at p.435 [43]. Emphasis in original text. See also p.438 [56] and p.440 [65]. See Part VII, Division 2 – Parental Responsibility, of the Act. S.61B defines “parental responsibility”; s.61C prescribes that each parent has parental responsibility; s.61DA provides for a presumption of equal shared parental responsibility when a court makes parenting orders.
[7] Ibid, at p.443 [72].
A. The competing proposals of the parties
There were four days of hearing, not all of them fully utilised.[8] The proposals of the parties changed in the light of other developments.[9] The proposals may be simply, or at least summarily, stated as follows. The Regulation 7 Report, prepared by Ms C (a clinical psychologist) dated 21st July 2007, conveniently records what might be described as the original `arrangement/proposal’:
Both [parties] informed me that they are committed to a shared arrangement, understanding the importance of them both having a role in their son’s life. Mr Liatos was not specific about what shared arrangement he proposed. Ms Tilney wanted the current arrangement to continue except for the inclusion of two overnight periods of contact to her.[10]
[8] 17th – 18th September, 22nd October, & 23rd November.
[9] At the outset of the hearing, Counsel for Ms Tilney, Mr Millar, made an application under s.132, and formally sought a certificate under s.128, of the Evidence Act 1995 (Cth) in relation to evidence to be given by Ms Tilney concerning her use of illegal drugs. At the time of the application I noted that there was correspondence from Mr Liatos’s solicitor to the Court confirming that Ms Tilney’s use of drugs was a central consideration in the litigation. In the `interests of justice’ the certificate was granted. See Transcript (17th September 2007) pp.2-4. For a recent High Court discussion of the operation of the NSW counterpart of s.128, see Cornwell v R [2007] HCA 12; (2007) 234 ALR 51. For a historical consideration of the privilege against self-incrimination, see J.D. Heydon, “Statutory Restrictions on the Privilege Against Self-Incrimination,” (1971) 87 Law Quarterly Review 214 and Cross on Evidence (ed. J.D. Heydon) (Seventh Australian Edition) (Sydney: LexisNexis Butterworths, 2004) pp.773 ff [par.25065 ff], and especially at pp.790-793.
[10] Report of Ms C, 21st July 2007, par.3.1. The “current arrangement” then obtaining was that A slept every night at his Father’s and paternal Grandmother’s residence. He spent time with his Mother every day from 9.30am until 5.30pm every day except Sunday which A spent completely with his Father.
Very late in the litigation, the proposals of the parties reflected the gulf that had come between them, primarily because of Ms Tilney’s belated revelation about her drug-taking history and hepatitis C. In late September 2007, that is, after the first two days of hearing, Ms Tilney proposed that A live with her and that there be an abbreviated regimen of time spent between A and his Father, which included every second weekend from 5pm Friday until 5pm Sunday, and that until A commenced school, A would not spend more than two periods of seven days in each calendar year with Mr Liatos, to be taken as two separate periods rather than consecutive blocks of time. Upon starting school, A would spend one half of the school holidays with Mr Liatos as prescribed in the “Amended Minute of Orders Filed on Behalf of the Applicant Mother.”[11] Ms Tilney seeks that she and Mr Liatos have equal shared parental responsibility for A.
[11] This Minute is dated 23rd September 2007.
For his part, Mr Liatos proposed alternative orders. His primary position, set out in an undated “Minute of Orders”, received by the Court on 14th September 2007, was that he have sole parental responsibility for A and that his son “shall not spend time with his mother.” In evidence on 18th September, Mr Liatos said that an order seeking no time for A with his Mother was a “horrendous order.” I consider this proposal in evidence below.
The alternative proposal of Mr Liatos provided for limited time to be spent between A and his Mother, and that it be supervised by an `independent contact supervising service.’ The time proposed by Mr Liatos was for Ms Tilney to be with A for three hours, twice weekly. In addition, according to the proposal, Ms Tilney would spend two hours with A on Mother’s Day, two hours also on A’s birthday, and each alternate Christmas Day – also for two hours. Subject to Ms Tilney having weekly random, chain of custody-supervised urinalysis and blood testing for illicit drugs on one hour’s notice, Mr Liatos also sought orders whereby the parties would review the arrangements for A’s care in 2011, three months before A started school.[12]
[12] Another order sought by Mr Liatos was that A be issued a passport so as to permit his Father to take him to Greece for a period of three weeks each year to visit his extended family.
B. Issues in dispute and relevant evidence
It will be plain from what has already been said that, formally, the issue in dispute concerns the appropriate parenting orders in relation to A. The real and constant contest, however, related to Ms Tilney’s history of drug-taking (and disclosure of her hepatitis C condition) and its import for the parenting orders sought by the respective parties. Put another way, there was one pervasive reality that impacted on the proceedings, and therefore on any and every order considered by the Court: Ms Tilney’s history of drug-taking. So much was acknowledged not only in her evidence but also in the revised orders that she sought whereby she volunteered to undergo drug-testing for two years.
Evidence of Ms Tilney
Ms Tilney presented as a credible witness who expressed unconditional remorse about her drug-taking, and especially about concealing it, as well as her hepatitis C, from Mr Liatos. One tragic irony of her evidence is that her fear of losing her relationship with Mr Liatos because of her history of drug-taking and hepatitis C has been realised.[13] It can only be speculation what might have been had she been truthful with him from the start of their relationship.
[13] See Transcript (17th September 2007) p.37.
A singular problem for Ms Tilney, in the past, currently, and in the future, is both her history of drug-taking and her concealment of it, and of her hepatitis C.[14] Although she confessed her faults, and protested that she had under-gone what might be described as something approaching a conversion experience as a result of having A taken from her, she still has to deal with the long-term consequences or legacy of these actions – of intermittent drug-taking,[15] which she says occurred primarily in times of stress, and its concealment.[16] Doubtless too Ms Tilney’s conversion (if I may use this term) had an added gravitas due to the fact that A’s removal occurred in astonishing and confronting circumstances with the intimidating presence of a security officer ordered by Mr Liatos.[17]
[14] Ms Tilney claimed that she contracted hepatitis C from the processes of obtaining a tattoo, and not as a consequence of her drug use. Transcript (17th September 2007) p.20.
[15] She also stated that she had sought and obtained treatment, whilst living in the UK in 1990, for her drug use as well as for an eating disorder. Ibid., p.16. She said that she relapsed in the mid-1990s and resumed her use of amphetamines.
[16] Ms Tilney confirmed the concealment of her drug use on a number of occasions, and that she was wrong to do so. See Transcript (17th September 2007) pp.25 & 33.
[17] See ibid., p.31.
The Court also has to consider the measured evidence of the Regulation 7 consultant, Ms C, who observed that those who use drugs regularly understate both their impact, and the frequency of use.[18] This comment was not challenged. Applying this statement to the present facts and circumstances, it is impossible for the Court to determine with absolute confidence the veracity of Ms Tilney’s account of the frequency of and the circumstances in which she has used drugs. Put another way, how does this Court evaluate Ms Tilney’s evidence that she used drugs only on a relatively small number of occasions, then stopped using, and re-lapsed some time later? There has to be a question mark over her evidence in this regard. Certainly her consistent adherence to and compliance with randomised drug testing in recent months has established that she is not taking, and has not taken, drugs for some time. What must be certain and categorical, for A’s sake as well as for her own and Mr Liatos’s interests is that a stringent regime of drug-testing be established, and that it continue for a significant time into the future. An order to this effect will be made.
[18] Report, par.7.4.
Evidence of Mr Liatos
His evidence, like Ms Tilney’s, was credible, but with a rather different reservation to that expressed in relation to Ms Tilney. I have already stated, on a number of occasions, that his reactions to Ms Tilney’s revelations were, for the most part, entirely understandable. I have already indicated that I regard his taking, and especially his means of securing A by force, as astonishing. Mr Liatos was clearly motivated to protect A. He seemingly feared that A was at some risk while in his Mother’s care. The reality is, however, that to all intents and purposes, and indeed the evidence is that A had been well cared for by Ms Tilney and her parents. Indeed, Mr Liatos acknowledged as much in evidence.[19] Doubtless too, to some degree at least, Mr Liatos’s actions were charged by the emotional and stressful time that it undoubtedly was.
[19] Transcript (18th September 2007) p.135.
Mr Liatos is evidently very successful in his labour in the family business that is controlled to a substantial degree by his Mother, Mrs L. His evidence is that he works intensely, and for long hours. Doubtless he plans his various enterprises with precision. He brought the same precision to “securing” A. Clearly, he had formulated, with caution and quite some fore-thought, a plan to guarantee that A remained in his care. Mr Liatos’s denial that he had not intended A to be kept at his residence challenges, in certain respects, the evidence of him having the reports and other material from private investigators, who he employed, to monitor Ms Tilney.[20] Having obtained conclusive evidence of her drug-taking, he conceived and executed a plan that involved having present a security guard to ensure that there was limited access to A, and even more so to confront, challenge and to stop any attempt (however unlikely) to have A return with, or to, his Mother. By any measure, these actions were calculated in every respect and remain, in my view, action that was designed to be deliberately intimidating, if not more. Such a conclusion seems to me inescapable.[21] What other conclusion could there be when one parent organises a security guard to stop the other parent from having access to their child? Other descriptions could also readily be given of this action, but this will suffice.
[20] Ibid., pp.197-198.
[21] Mr Liatos used the term “removed” in his testimony. See Transcript (18th September 2007) pp.135-136. See also pp.197-198.
All of that said, Mr Liatos confirmed, and as I have indicated previously, I accept that he does not allow his concerns regarding Ms Tilney to be known or displayed to A. I also regard him as a person who would not only abide by any orders of the Court (although he indicated forthrightly that if certain orders were made he would certainly appeal them[22]), but no less importantly that he would – and he clearly has the capability to do so – work co-operatively with Ms Tilney and her parents for the good of A.[23] He also stated forcefully in the witness box that an order depriving A from any time with his Mother was “a horrendous order.”[24] Ms C stated in evidence that Mr Liatos’s proposal that there be no time spent between A and his Mother as completely unsatisfactory. She also stated that the disclosure of Ms Tilney’s Hepatitis C condition did not alter her recommendations. I agree with and accept her comments, which I discuss further below.
[22] Transcript (22nd October 2007) pp.40-41.
[23] See especially Transcript (22nd October 2007) p.27.
[24] See Transcript (18th September 2007) p.146 cf. p.147.
In the light of the evidence provided by the parties, and notwithstanding the various reservations that each now has regarding the other, I consider that both parents have A’s best interests at heart. And to the degree that each is capable of doing so, I consider Mr Liatos and Ms Tilney as having the requisite capacity to foster and to facilitate A’s relationship with the other parent.[25] Whatever their mis-givings, they are clearly determined people and each of them has shown that they are very capable of relating to each other concerning their son’s care and welfare. This is a matter that is directly relevant to s.60CC(2)(a) (regarding the benefit to the child of having a meaningful relationship with both parents), s.60CC(3)(c) & (f), and s.60CC(4) of the Act.
[25] See, for example, Mr Liatos’s agreement/acknowledgment that he would work with Ms Tilney, Transcript (18th September 2007) p.150. In later evidence he confirmed that he and Ms Tilney presented as a `united front’ and amiable when in front of A. He stated: “I try to keep still and understand, you know, Ms Tilney is his mother. And I want A to feel comfortable with both of us together.” Transcript (22nd October 2007) p.27. I accept this evidence.
Although Mr Liatos stated a number of times his distrust now of Ms Tilney, nonetheless he not only indicated his preparedness to work with her in relation to A’s care, but also confirmed that he did not wish to deprive A of his Mother. He also acknowledged the importance of A having contact with his Mother.[26]
[26] See Transcript (18th September 2007) pp.127, 140 & 143 cf. p.147.
In short, I take Mr Liatos’s inconsistent comments, on the one hand to prohibit or at least very severely to limit A’s time with Ms Tilney, and on the other hand, to acknowledge the importance of the Mother-child relationship, as being primarily a reflection of his immediate shock at the recent revelations of Ms Tilney’s drug-taking and hepatitis C. Indeed, at one stage in his evidence he confirmed that he `did not know what’s genuine or false with Ms Tilney any more.’[27] All of that said, I take as honest and sincere his commitment to work with Ms Tilney to ensure A’s best interests are pursued as the paramount consideration. Such an attitude is singularly relevant to the Court’s consideration of s.60CC(2)(a), as well as s.60CC(3)(c) and (i), and s.60CC(4)(b).[28]
[27] Transcript (18th September 2007) p.142.
[28] In this regard, see also the evidence of Ms Tilney, in the course of which she agreed (in cross-examination) with the question/proposition that “you [Ms Tilney] and Mr Liatos and A all have, as between son and mother and son and father, a loving relationship?” Transcript (22nd October 2007) p.57.
Mr Liatos readily and understandably advocated that Ms Tilney’s drug-testing regime should be “in a very tightly controlled situation”, and that it should occur for “three to five years, or something like that.”[29] I have already indicated that orders to that effect will be made.
[29] Transcript (18th September 2007) p.147.
Evidence of other (non-expert) witnesses
Four other witnesses gave evidence, apart from the experts who are considered below. They were Professor and Mrs T, the Applicant’s parents, Ms S, a close friend of Ms Tilney, and Mrs L, the Respondent’s Mother. Subject to what is said in a moment, it was no surprise that each of these witnesses supported the respective party on whose behalf they were called. This is not said as, and certainly should not be taken to be, a criticism of any of these witnesses. Each of them gave their evidence clearly and impressively. I accept their evidence without any qualification, including that of Professor and Mrs T who both confirmed that they were unaware of their daughter’s drug-taking.[30]
[30] Cf., the comments attributed to Professor T by Mr Liatos about his daughter’s drug-taking recorded in Ms C’s Report, par.5.17. In evidence, Professor T indicated that the conversation referred to by Ms C related not to Ms Tilney’s drug-taking but rather to her depression. See Transcript (17th September 2007) pp.90-91.
I also accept, without qualification, that A has a significant relationship with all of his Grand-parents. It is important that these relationships be protected and nurtured for his sake, not to mention the importance to the grand-parents themselves. Such matters are, of course, referred to in s.60CC(3)(b) & (d).
I wish to comment briefly on the evidence of Mrs L. I leave to one side the most curious situation whereby she was seemingly not going to be called, and that she became a witness late in the proceedings largely only after questions from the Bench about her non-appearance, the possible risk of adverse inferences, and that A lived with his Father at Mrs L’s home. By any measure, she was (and remains) a central “player” in the lives of A and his Father, as well as in various events that were the subject of considerable comment and cross-examination in the proceedings.[31] In any event, I mention her evidence primarily because Mrs L struck me as a person who genuinely had Ms Tilney’s interests at heart, as well of course as those of her grandson.
[31] Here I am referring to matters like the contest over the name of A; that is, whether he should bear any of the names of his maternal Grand-father, or, according to the Greek tradition, that he should only bear the name of his [recently deceased] paternal Grand-father. See, for example, the evidence of Mr Liatos: Transcript (18th September 2007) pp.150 ff and of Mrs L: Transcript (22nd October 2007) pp.33-36.
The relevance of Mrs L’s evidence is less her control of the family’s extensive, and obviously successful, business interests and Mr Liatos’s involvement in them,[32] but more so that she indicated her concern for Ms Tilney, both as A’s Mother as well as her personal anxiety about Ms Tilney’s history of drug-taking.[33] I took that concern to be genuine. It exhibited to me, albeit in a modest way in the larger scheme of the litigation, a willingness and support for the on-going relationship between Ms Tilney and her son A, subject to there being in place requisite protections regarding drug-testing. The relationship and support, albeit qualified (and understandably so), from Mrs L to the parties is a matter that seems to me to be comprehended by, or at least relevant to, s.60CC(3)(d).[34]
[32] See the evidence of Mr Liatos: Transcript (18th September 2007) pp.148-149.
[33] Transcript (22nd October 2007) p.38.
[34] I need not rehearse the tensions claimed and indicated by Ms Tilney regarding her relationship with Mrs L. Among other places, see Ms C’s Report at pars.5.30-5.35.
C. Expert Witnesses
There were three medical experts who provided evidence to the Court. They were Ms Voula Staikos, a forensic toxicologist from the Victorian Institute of Forensic Medicine; Professor Potter, from Canberra Hospital and the Australian National University,[35] and Professor Farrell, also from the Canberra Hospital and Australian National University.[36] Only Professor Farrell was an expert appointed pursuant to Rule 15.09 of the Federal Magistrates Court Rules.[37]
[35] Professor Potter is the Executive Director of ACT Pathology and Professor of Pathology at ANU and the Canberra Hospital.
[36] Professor Farrell is Director of Gastroenterology and Hepatology and Professor of Hepatic Medicine at ANU and the Canberra Hospital.
[37] Two other experts also gave evidence during the trial, Dr B and Dr C. Dr B is a psychologist, but is not medically trained. Ms Tilney has been seeing Dr B in relation to her drug use. According to Dr B, Ms Tilney’s risk of relapsing into drug use is “low.” This was challenged by Ms Tonkin in the course of cross-examination. Transcript (18th September 2007) pp.102ff. Dr C is Ms Tilney’s general practitioner, and has been the Tilney family’s GP for many years. Dr C’s evidence related to his treatment, including referrals to specialists, of Ms Tilney for depression, hepatitis C and drug use. Dr C’s testimony begins at Transcript (18th September 2007) p.158. In the scheme of things, the evidence of Drs B and C was and remains, in my view, secondary to the evidence of the experts considered in detail in these reasons. Those experts focus more specifically on issues relating to risk of infection regarding hepatitis C and or regimes, and the reliability, of drug testing. While not insignificant, the evidence of Drs B and C related more to treatment histories (past and present) of Ms Tilney.
Ms Staikos’s evidence related to hair follicle testing conducted on a sample provided by Ms Tilney. A Certificate of Analysis, dated 10th September 2007, was annexed to her affidavit of 12th September. Subject to comments noted below from the oral evidence from Ms Staikos, that Certificate confirmed that for a range of drugs, including methamphetamine and amphetamine, there was no detection within the prescribed range as specified in the certificate from the sample provided to her by Ms Tilney.[38]
[38] In cross-examination, Ms Staikos confirmed that it may not be possible to detect a low dose of amphetamines in a hair follicle test. She also confirmed that bleached hair, and hair dyes, among other things, can affect the hair follicle test. She also confirmed that there was no interference with Ms Tilney’s hair sample used in the test. Ms Staikos also confirmed that in hair follicle testing there was no correlation between drug dose and the presence of a drug in the hair, that this kind of testing cannot be used to determine the levels of drug use, nor very recent drug use (i.e. within seven days). See Transcript (18th September 2007) p.113.
Professor Potter’s evidence was confined to an affidavit sworn on 31st August 2007. Annexure “C” to it is her detailed report in response to a series of questions put to her by Mr Liatos’s solicitor. I note that Professor Potter was not a Court-appointed expert, but one whose evidence was provided on behalf of Mr Liatos. As with others, this is not said, nor is it intended, to cast doubt on Professor Potter’s expertise or evidence, which is to be assessed in accordance with the usual rules of evidence relating to expert witnesses.[39]
[39] In this regard, see the helpful remarks of Cresswell J in National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The `Ikarian Reefer’) [1993] 2 Lloyds Rep 68 at 81-82, and Gleeson CJ in HG v The Queen (1999) 197 CLR 414 at 427. The passages referred to in these cases are extracted in the compendious judgment of Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. His Honour’s exhaustive judgment, in which he surveys the law in relation to the duties and responsibilities of expert witnesses, and the concomitant responsibilities of Courts, begins at p.711.
The utility of Professor Potter’s evidence may be described as follows. First, she noted that there were high creatinine levels in a number of urine samples provided by Ms Tilney. Professor Potter advised that “[i]n individuals with normal kidney function, it is unusual for the creatinine concentration in the urine to be less than 1.8mmol/L in adults, if normal hydration and renal function is present.”[40] She commented further that low creatinine levels could indicate that dilution of urine has occurred. As she stated: “…one of the quick indicative tests that is done when a urine sample is presented for urine drug screen, is to check whether the urine creatinine concentration is consistent with concentration of the urine by the kidney.” She went on: “…the more fluid overloaded an individual, the lower the urinary creatinine concentration will be.”[41]
[40] Professor Potter’s Report (29th August 2007) p.3, answer to Q.13.
[41] Ibid. She later confirmed that one of the most common ways of concealing drug utilisation in the urine screening test is to provide highly dilute urine. That can be produced by drinking a large amount of water in the hours prior to providing the urine sample, and or by using a diuretic. Professor Potter also noted that given the range of variables involved in drug testing, “it is unlikely that testing urine more than 24 hours after using amphetamines would give a positive result, and in many cases in a shorter time also.”
Secondly, in answer to a later question, Professor Potter stated: “The pattern [of results] which is present suggests that a significant number of samples show a very unusual degree of dilution.”[42] She also noted that slightly less than half of the urine samples provided on Wednesdays had a creatinine level of less than 1.8mmol/L.[43]
[42] Ibid., p.4, answer to Q.14.
[43] Professor Potter confirmed that the test results she examined, from S Pathology, confirmed that there were no adulterants in the samples provided by Ms Tilney. Ms Tilney gave evidence that she never diluted any sample provided for testing. Transcript (17th September 2007) p.50.
I should note here that Professor Potter’s evidence related solely to urine-analysis provided by Ms Tilney prior to any Court orders, and certainly prior to later samples that were provided pursuant to orders that they be random and that there be a “chain-of-custody” process so as to ensure that no contamination or adulteration of the sample occurred.[44]
[44] The relevant orders were made on 18th & 27th September, 2007.
On a range of other questions regarding drug testing in relation to amphetamines, Professor Potter directed that they be put to experts in the areas of drug abuse rather than drug measurement.[45]
[45] In addition to Professor Potter’s evidence, for a helpful discussion of drug testing, see D. Edney & D. Deam, “Drug testing in family law,” (2006) 80 Law Institute Journal 48. In that article, the learned authors state that “amphetamines and similar agents may remain detectable in the urine for several days after use.”
Although Ms Tilney’s hepatitis C condition was the subject of regular comment in the course of the proceedings (for reasons largely canvassed already), in the light of the evidence of Professor Farrell, it ultimately proved to be an issue of lesser moment. It is not the less significant for that reason.[46]
[46] Professor Farrell’s Report is Exhibit Q; his brief evidence is at Transcript (23rd November 2007) pp.32-35.
In short, Professor Farrell’s evidence confirmed that the risk of A contracting hepatitis C was minimal. In the course of his Report, Professor Farrell confirmed the following: “There is no, zero possibility of HCV [hepatitis C virus] transmission in a normal domestic relationship with the following: (a) Sharing of cups, utensils, food, toilets, laundry facilities and day-to-day domestic contact; (b) physical contacts, such as kissing, cuddling and normal parent to child physical affection.”[47]
[47] Report, p.8. Professor Farrell went on to state: “In relation to sexual intercourse between adults, people with acute hepatitis C can transmit HCV-infection to their partner, but transmission between someone chronically infected and a sexual partner is virtually unknown.” Ibid. It was acknowledged that Ms Tilney has chronic hepatitis C.
Significantly, in answer to questions concerning the risk that Ms Tilney’s hepatitis C poses to A, Professor Farrell stated: “In relation to A … I believe there is no possibility that the child could acquire HCV infection from his mother under normal circumstances of behaviour, particularly given [the] proviso that she adheres to the standard minimisation practices.”[48]
[48] Ibid., p.10. Professor Farrell had earlier noted that hepatitis C was a very common condition and was never life-threatening, certainly not in the short-term.
In the course of his cross-examination, Professor Farrell indicated that a further test of A for hepatitis C should take place (a test for hepatitis C having taken place shortly before the hearing), for more abundant caution to exclude completely that A has hepatitis C, when he turned 2 years of age. An order to that effect will be made.
Evidence of the Family Consultant, Ms C
Ms C provided a detailed report, dated 21st July 2007, which became Exhibit P. She also gave evidence on the last day of the hearing.[49] To a certain degree, the material and comments contained in the Report must be seen through the prism of the later evidence concerning Ms Tilney’s drug-taking history. That said, in many ways, the July Report actually gives a more measured and perhaps truer account of A’s parents (i.e. their capacities as parents and as individuals, etc), and certainly one that is not coloured by their jaundiced relationship of more recent times.
[49] See Transcript (23rd November 2007) at pp.5-31.
In his submissions, Mr Millar, Counsel for Ms Tilney, made much of a distinction between what he described as `adult matters’, meaning those issues as between Ms Tilney and Mr Liatos arising out of the late notice of her Hepatitis C and the details of her drug-taking history, as opposed to issues pertaining directly to A’s parenting.[50] Ms C’s report actually gives extra support to Mr Millar’s distinction because she was able to observe and assess the parties prior to the revelations referred to. As such her comments are of particular assistance regarding the capabilities of A’s parents. As well, she could, therefore, in her oral evidence, compare and contrast what, if any, difference or impact the recent revelations made to the recommendations in her earlier Report. I will deal firstly with the Report; then I will comment on Ms C’s later evidence.
[50] See Mr Millar’s remarks, for example, at Transcript (23rd November 2007) pp.39-40.
Ms C noted [Report: par.3.1] that both parties informed her that “they are committed to a shared arrangement, understanding the importance of them both having a role in their son’s life.” She then recorded [par.4.1] that “the key issue in dispute is whether Ms Tilney continues to use amphetamines and how any continued use affects her parenting.” Thus, the issues in July 2007, as in September, October and November 2007, related to Ms Tilney’s drug use. With that being highlighted in early July – the dates of Ms C’s assessments of the parties – it is difficult not to agree with Mr Millar’s observation, noted above, to the effect that arrangements for the care and welfare of A were working well until the late disclosures in relation to Ms Tilney.
One of the curiosities about the conduct of the case is also highlighted by comments in Ms C’s Report. At par.5.15, she recorded Mr Liatos’s use of a private detective in the latter part of 2006 to check on Ms Tilney’s drug use/habit. Once conclusive evidence had been obtained, and Ms Tilney [and her Mother] confronted with it, he said, according to Ms C, that he still hoped that the situation regarding parenting of A might be sorted out [par.5.16]. The curiosity is that, notwithstanding the clear evidence of Ms Tilney’s drug use, and that she had admitted her use of illicit drugs,[51] up until shortly before the hearing Mr Liatos was still seemingly content to seek a shared-care arrangement with Ms Tilney regarding A’s care and welfare. Indeed, in par.5.22, Ms C recorded that Mr Liatos wanted “her [Ms Tilney] to slowly and steadily increase her involvement [with A].” Thus, it is not inaccurate to describe the situation between the parties as Mr Millar did.
[51] See Report, par.5.20. In that same paragraph, Ms C records: “Despite what happened [regarding Ms Tilney’s drug use] Mr Liatos said that they [he and Ms Tilney] were now… very amiable and civil to each other and that he really enjoyed A’s relationship with his other grandparents. …From A’s point of view, Mr Liatos thought that he was doing really well.”
Ms C described Mr Liatos [par.5.27] as a “very warm, trusting person who would be loathe to see the worst in people and too supportive for his own good. He would be at risk of being taken advantage of in personal relationships.” Both parties indicated to Ms C that they wished to resolve the situation without recourse to the Courts. Ms C also recorded [par.5.56]: “Ms Tilney’s test results at attachment 2 showed no signs of any psychopathology or of any current drug or alcohol abuse.”
In the course of her assessment, Ms C stated [par.7.2]: “The relationship between Mr Liatos and Ms Tilney foundered because of the cultural differences between them and because of Ms Tilney’s amphetamine abuse. Mr Liatos’ main concern now is whether or not Ms Tilney continues to use amphetamines. He has some suspicions that she does despite her clear drug tests.” This concern remained, and became somewhat magnified, during the hearing, notwithstanding a more stringent, random drug-testing regime in place.
Ms C also noted that Ms Tilney questioned whether her return to drug-use, post A’s birth, was related, not to ongoing problems regarding depression generally, but more so that she may have had post-natal depression. Ms C observed [par.7.3] that this could not be dismissed.
Ms C recommended in her Report [par.8.2] that Ms Tilney undergo `the most reliable, available drug testing for amphetamines.’ Provided that the drug testing was clear, she also recommended that “A’s current regime should continue except that he should sleep at his mother’s, at his maternal grandparents’ residence and under supervision, on Tuesday and Friday nights.”
Moving to her evidence in Court, the following may be noted summarily. First, Ms C rejected as “completely unsatisfactory” Mr Liatos’s proposal that A spend no or very limited time with his Mother.[52] Secondly, the revelation of Ms Tilney’s Hepatitis C condition was of no relevance to her recommendations.[53] Related to her rejection of the very limited proposal of time with A’s Mother, Ms C listed a range of risks for A not seeing Ms Tilney.[54] Put another way, Ms C indicated the importance of frequency of contact between A and his Mother, which should, in her professional opinion, include overnight time.[55] All of that said, Ms C’s views were also predicated upon there being strict external drug checks, and that these occur over a long period of time.[56]
[52] Transcript (23rd November 2007) p.14.
[53] Ibid., p.15.
[54] Ibid., pp.15-16.
[55] Ibid., pp.17 & 31.
[56] Ibid., pp.22 & 26.
I agree with Ms C’s professional assessments, both concerning the need for extended drug checks in relation to Ms Tilney, and her broader comments in relation to the parties, particularly with respect to their strong focus on A’s best interests, their general civility and capacity to work together (notwithstanding the strains and tensions in their personal relations) to protect and advance their son’s best interests. In this regard, Ms Tonkin noted on a number of occasions in the course of her submissions the “business-like manner” with which the parties have been able to work together in A’s best interests.[57]
[57] See Transcript ((23rd November 2007) pp.62, 66, 67 & 68.
Ms C’s comments in relation to the import – or lack of it – on her recommendations of the hepatitis C disclosure accord with the evidence of Professor Farrell. Moreover, I did not, and do not, take that any party formally challenged any part of Ms C’s testimony - either her oral evidence or what is set out in her Report. Indeed, Counsel for both parties contended that Ms C’s evidence was more critical than that of Professor Farrell;[58] and Counsel also referred to Ms C’s evidence in support of a range of propositions in the course of their submissions.[59] I accept Ms C’s evidence; it was professionally presented, measured and well-considered.
[58] Transcript (23rd November 2007) p.23.
[59] See, for example, Mr Millar’s submissions, Transcript (23rd November 2007) pp.41 & 42; Ms Tonkin (for Mr Liatos) submissions, Transcript (23rd November 2007) pp.63 & 71.
It remains to consider, to the extent necessary and not otherwise canvassed above, the respective formal submissions of the parties’ learned Counsel in the light of the jurisprudential regime prescribed by Part VII of the Act, and relevant judicial authority.
D . Submissions and Jurisprudence
Section 60B of the Act prescribes the objects of Part VII and the principles underlying it. Section 60B(1)(a) is especially important in this case (as in others of course) because of its insistence that children have the benefit of both parents having a meaningful involvement in their lives, to the maximum extent consistent with the child’s best interests.
Similarly, s.60B(2)(a) – (e) are equally crucial considerations for the Court in determining the appropriate parenting orders that are in A’s best interests. As should be apparent from these reasons, I have attempted to pay special attention to A’s `right to spend time on a regular basis, and communicate on a regular basis, with both of his parents’ and other people significant to his care (such as his Grand-parents). As always, and as should also be apparent from these reasons, this can only occur to the degree that A (and also Mr Liatos) can be assured, by scrupulous drug-testing, that Ms Tilney has not and does not relapse into drug use.[60]
[60] In relation to s.60B(2)(e), I note that Ms Tilney has rather unselfishly and quite readily agreed to any and all matters to ensure that A enjoys all aspects of his Father’s Greek heritage and culture. This includes, notwithstanding some contest seemingly with Mrs L, A being christened in the Greek Orthodox Church bearing only his paternal Grand-father’s name. I noted earlier in these reasons that the contest related only to A’s name and whether he should also bear his maternal Grand-father’s name. Among other places, see the evidence of Mr Liatos, Transcript (18th September 2007) pp.151-155, where he acknowledges Ms Tilney’s support for A’s immersion in Greek traditions and culture.
Pursuant to s.60CA, the Court is required to place A’s interests as the paramount consideration in making a parenting order. To determine what is in his best interests, the Court is enjoined to have specific regard to the primary and additional considerations set out in s.60CC(2) & (3).[61] To a significant degree, I have adverted to these matters rather regularly in the course of these reasons. Here I seek only to summarise and or accent particular aspects of them.
[61] For a helpful discussion of the so-called “two tier” system prescribed by Part VII of the Act, see Professor P. Parkinson, “Decision-making about the best interests of the child: The impact of the two tiers,” (2006) 20 Australian Journal of Family Law 179.
Primarily for reasons of protection in the event that Ms Tilney relapsed into drug use, I agree with the submission of Ms Tonkin that it is in A’s best interests that he reside with his Father, Mr Liatos. He should do so for a significant time yet. Certainly at least until there is a very substantial body of uncontested evidence from drug-testing that Ms Tilney is free, and has been free, from drugs for a very long time. I also agree with her submission that Mr Liatos is committed to acting in A’s best interests at all times and that “he is capable of putting A’s needs above his own.”[62] I also accept and agree with her submission that both parents are capable of working in a business like manner for the benefit of A. I have noted this on a number of occasions in these reasons, and its relevance to ss.60CC(3)(c) and 60CC(4). Section 65DAC is also relevant in this context.
[62] See Ms Tonkin’s written submissions (23rd November 2007) p.4.
In saying this, I am conscious that Ms Tilney has concealed her drug-taking from Mr Liatos and seemingly her parents for a significant time. She declared on a number of occasions that she did this because she was ashamed of her actions and, as I have noted above, that she feared (clearly prophetically) losing her relationship with Mr Liatos. Her concealment, explanation and contrition are factors, it seems to me, that are relevant particularly under s.60CC(4). Her contrition, counselling and drug-testing are factors to be considered under s.60CC(4A).
In relation to the primary considerations in s.60CC(2)(a) and (b), the balance that has to be negotiated or determined, in the light of his Mother’s admitted drug-taking (as well as use of alcohol, and taking prescribed medication[63]), is whether A is at such a risk in being in his Mother’s care that he should, thereby, be deprived of time that would otherwise ensure that he has the opportunity and benefit of a meaningful relationship with her. In my view, given the stringent drug-testing regime in place, and the evidence given by all parties that there have been no adverse incidents of any kind while A has been in his Mother’s care, A should not be deprived of significant time with her. I accent that my focus is on what is in A’s best interests.
[63] Ms Tilney’s prescription medication (for depression) was canvassed with a number of witnesses, such as Dr B and Dr C. Together with a contest about her use of alcohol, it was, of course, the subject of cross-examination by Ms Tonkin.
Put another way, to the degree consistent with his best interests, and ensuring that he is protected from any possible relapse, A should not be deprived of significant and substantial time with his Mother, the more so having regard to the fact that that time will continue to be supervised by one or both of his maternal Grand-parents, with whom A enjoys a very close relationship.[64] But as with all else, this remains conditional upon Ms Tilney continuing to test negatively with respect to drugs. To speak colloquially, `the ball is in her court.’ If she wishes to lose time with her son, she only has to relapse. The orders reflect the significant penalties she risks should she relapse.
[64] In this regard, I am here also noting the import of s65DAA where, as here, equal time between the parents is not ordered but “substantial and significant time” is. Such an order also accords with the evidence of Ms C, to which reference has already been made. The fact that the time between A and his Mother is supervised by his maternal Grand-parents is also relevant to s.60CC (3)(b).
Ms C gave evidence about the importance of time, including overnight time, between Ms Tilney and A. The orders reflect the need to proceed with overnight time with some caution. Such prudence is mandated by s.60CC(3)(d).
I do not find the evidence supports any conclusion – other than those already indicated – that the parents, or Grand-parents, lack any capacity to provide for A’s needs, pursuant to s.60CC(3)(f). Indeed, all the evidence confirms that A is doing very well, that he is well cared for, and that he is, to use the words of Ms C, “a much loved little boy.” After noting that his parents and Grand-parents dote on him, she states, in the same place: “To their credit both of his parents are kind about the other and committed to both of them being very involved in their son’s life.”[65] I have had the benefit of observing both parents over an extended period of time. I have already indicated that I agree with Ms C’s assessments of the parties and the respective proposals regarding A. It also seemed to me that the immediate acrimony during the hearing was essentially due to the late-breaking revelations. Ms C’s assessment in July 2007, and for other reasons already mentioned, suggests that the capacities of the parties should be considered in the wider perspective of the evident well-being and genuine attention to A’s welfare rather than being predominantly focussed on strains in the relationship of the parents.
[65] Ms C’s Report (21st July 2007) p.22.
The matters already canvassed, particularly regarding the capacities of the parents, are sufficient, in my view, to address the issues comprehended by s.60CC(3)(i). In saying this, I do not intend to down-play the often-mentioned drug-taking of Ms Tilney. Rather, I should be taken as indicating my concern to ensure that A has every opportunity to spend time with his Mother, and whereby she has (perhaps the last) opportunity to establish that she is free of drugs, and to do so over a long period of time. It is also in her interests, as well as A’s, that she put his interests ahead of any deficiencies that she perceives in herself, whether they be due to depression or anything else. She has promised to place A’s interests as paramount. Indeed, she has strenuously protested that she will do so. For his sake, and hers, I hope so. The consequences if she does not will be severe.
Pursuant to s.60CC(3)(l), the orders proposed, especially that A reside with his Father, in my view will be the one least likely to lead to further litigation.
In relation to s.61DA and the presumption of equal shared parental responsibility, while Ms Tilney’s actions, especially her concealment of her drug-taking from Mr Liatos, have seriously compromised the trust between she and Mr Liatos, their obvious capacities, history of being able to work together in A’s best interests, and the regime of drug-testing, indicate that the presumption should operate. In Dylan v Dylan, Carmody J said:
[Parental responsibility] … means that in exercising that responsibility they will have to co-operate with each other and make a genuine effort to reach consensus about matters affecting the care, welfare and development of their children.
This shared decision-making function and responsibility supports and reinforces the perceived advantages to children in having both parents participating cooperatively rather than competitively in all important aspects of their upbringing despite the potential for renewed conflict and increasing the risk of future litigation.[66]
I accept and adopt his Honour’s remarks, and commend them to the parties.
[66] [2007] FamCA 842 at [90]. See also the discussion of “parental responsibility and equal shared parental responsibility” by the Full Court in Goode v Goode (2007) 36 Fam LR 422 at 433-435 [29] – [39].
From what has been said, it does not follow, however, and certainly at least not immediately, that there should be equal time, pursuant to s.65DAA(1). For reasons already indicated, I think that s.65DAA(2) is the apt provision pursuant to which it is in A best interests that he spends substantial and significant time with his Mother. By virtue of the orders proposed, he will spend more time with his Father, which will necessarily also satisfy the same section.
For these reasons, I make orders as set out above.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: Renee Davidson
Date: 4 February 2008
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