Tommy and Harris

FAMILY COURT OF AUSTRALIA

TOMMY & HARRIS

[2009] FamCA 278

FAMILY LAW - CHILDREN – Parties agree the child should remain living with the father – In issue was the amount of time the child should spend with the mother, whether the child’s surname should be changed and whether the mother would be restrained from allowing the child to have contact with her partner – Risk assessment – Ordered that the child spend time with the mother each alternate weekend and for half of all school holidays, child’s surname to be changed so as to be a hyphenated composite of her parents’ surnames – Mother restrained from bringing child into contact with her partner until convincing evidence he is drug free

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61(C)(i), 61DA(2), 61DB, 64A, 65AA, 65DA, 65DAA(3), Pt VII
Crimes (Sentencing Procedure) Act 1999 (NSW) s 10

Arthur and Comben (1977) FLC 90-245
Beach and Stemmler (1979) FLC 90-692
Chapman and Palmer (1978) FLC 90-510
George and Radford (1976) FLC 90-060
Goode and Goode (2006) FLC 93-286
K v D (1968) 13 F.L.R. 430
Putrino and Jackson (1978) FLC 90-441
Ralph and Ralph (1977) FLC 90-292
R v. R (1977) 1 W.L.R. 1256
Sampson and Sampson (1977) FLC 90-253

APPLICANT:

Mr Tommy

RESPONDENT:

Ms Harris

FILE NUMBER:

NCC

1268

2007

DATE DELIVERED:

16 April 2009

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

The Hon Justice Ryan

HEARING DATES:

9, 10 & 11 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms D Hausman
SOLICITOR FOR THE APPLICANT:	Braye Cragg, Solicitors
COUNSEL FOR THE RESPONDENT:	Mr M Graham
SOLICITOR FOR THE RESPONDENT:	Toronto Legal
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms K Reynolds
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Adams & Associates

Orders

That in addition to the time provided in consent orders made 9 March 2009, the mother shall spend time with the child … (“the child”) born … May 2002 on each alternate weekend during school term from 5.00 pm on Friday until 5.00 pm Sunday.
That the father shall deliver the child to and collect the child from the maternal grandmother’s home at T.
That the mother is restrained from allowing the child to be in the presence of Mr S and/or Mr W.
That in the event the mother gives the father:
(a)nine months of three weekly chain of custody clear drug screens from Mr W,
(b)evidence that he has attended either Narcotics Anonymous or a drug counsellor, and
(c)a report from an appropriately qualified drug counsellor to the effect that the drug counsellor believes the risk Mr W will resume cannabis use is low, then insofar as Order (3) above applies to Mr W it is discharged.
That for twelve months from the date of these orders the mother is restrained from spending time with the child at the F Caravan Park.
That the child shall hereafter be exclusively known as ... Harris-Tommy.
That the parties shall forthwith do all things necessary, including making application and executing documents to effect an alteration of the registration of the name of the child on the Register of Births in the State of New South Wales from the surname Harris to the surname Harris-Tommy. In this regard, the father shall pay all costs associated with affecting the change.
That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC1268 of 2007

MR TOMMY

Applicant

And

MS HARRIS

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings concerning the parties’ daughter (“the child”) born in May 2002.
During the hearing the parties resolved a raft of matters, including that the child would continue to live with the father.
The key issues which remained outstanding concerned the amount of time the child would spend with the mother, whether the child’s surname should be a hyphenated composite of her parents’ surnames, whether the mother would be restrained from allowing the child to have contact with her partner, and other associated conditions imposed upon the mother spending time with the child.

Current orders

At the start of the hearing the following orders were made by consent:
1.That the child […] born on the […] May 2002 live with the father.
2.         That the child spend time with the mother as follows:
2.1During half of all school holiday periods as the parties may agree, or if agreement cannot be reached in writing seven days prior to the commencement of any school holiday period, then
2.2For the first half of each school holiday period commencing in odd numbered years, to commence at 5.00 pm on the last day of school term and to conclude at 5.00 pm on the day mid-way through the school holiday period.
2.3For the second half of each school holiday period commencing in even numbered years, to commence at 5.00 pm on the day mid-way through the school holiday period and to conclude at 5.00 pm on the last day of the school holiday period.
2.4The school holiday periods referred in Order 2.3 thereof will include pupil free days and public holidays which may occur at the commencement or conclusion of the holiday period.
2.5       On Mothers’ Day each year from 9.00 am to 5.00 pm.
2.6From 5.00 pm on the 24 December to 12.00 noon on the 25 December in even numbered years.
2.7Between 9.00 am and 5.00 pm on the birthdays of the mother and siblings of the child where such birthdays fall on a weekend.
2.8At such other times as may be agreed between the father and the mother in writing.
3.That the time spent by the child with the mother in accordance with Order 2 hereof be suspended during the following periods:
3.1       from 9.00 am on Fathers’ Day each year;
3.2       from 9.00 am to 5.00 pm on the father’s birthday each year.
4.That the mother provide for the use of the child on any occasion when the child is spending time with her overnight, a suitable bed in which the child may sleep on her own.
5.That on any occasion when the mother is not personally available to spend time with the child in accordance with the orders of the Court, or as otherwise may be agreed between the parties, then either the father or the maternal grandmother, […], shall be provided with appropriate notice by the mother and either the father or [the maternal grandmother] will then be at liberty to have the child spend that period of time in his or her care at the mother’s election.
6.That prior to the commencement of every period of time to be spent by the child with the mother, the mother inform the father where the child would be residing during that period if such residence is different to the mother’s usual place of residence at that time.
7.That the father and the mother have equal shared parental responsibility for the long term care, welfare and development of the child.
8.That each of the parties have responsibility for the day to day care, welfare and development of the child whilst ever the child is with that party.
9.That the mother be restrained from allowing the child to be in the presence of [Mr W].
10.That the father provide such consents and/or authorities as may be required by the school or schools the child attends to enable the mother to receive reports, school photograph order forms, letters or any other notices in relation to the child and to permit both parties to speak to the child’s teachers concerning her school performance.
11.That each party provide such consents and authorities as may be required by any medical practitioner treating the child to allow the provision to the other party or any medical report or reports in relation to the child.
12.That each party keep the other informed as to all sporting, religious, cultural and educational event (which come to the notice of that parent) in which the child is from time to time involved (or which relates to activities of the child although she herself might not be involved, for example Parent/Teacher interviews) and at which parents may attend and each parent be so at liberty to attend.
13.That each party at all times keep the other informed as to all medical, dental or other health related treatment being undertaken by the child and the identity of the treating professional.
14.That each party is to telephone the other as soon as practicable upon the happening of any of the following:
14.1    The child becoming seriously ill.
14.2    The child becoming hospitalized.
14.3    The child being involved in an accident.
15.That the parties keep each other informed of their current residential address and telephone number and any change to those details within 24 hours of such a change.
16.That each of the parties be restrained from discussing these proceedings or any other litigation involving the parties in the hearing or presence of the child, or allowing the child to view any documents associated with the proceedings or any other litigation involving the parties.
17.That each party be restrained from using obscene or inappropriate language in the presence of the child, and shall use their best endeavors to prevent other persons from doing so.
18.That the father and mother be restrained from denigrating the other parent, or any member of the other parent’s household, or partner or partner’s children or extended family members in the presence of the child or allowing any other person to denigrate the other parent or other members of the other parent’s household in the presence of the child.
19.That the parties ensure that any motor vehicle used for the transport of the child is fitted with appropriate and correctly installed child seats and/or restraints and that the child be seated in an age appropriate child seat when being transported in any motor vehicle.
20.      That neither party knowingly permit the child to be:
20.1In a motor vehicle driven by a person who does not hold a current New South Wales driver’s license.
20.2    In an unregistered vehicle that is driven by any person.
The outstanding issues will be determined within the context of these orders.

Background facts

In these reasons statements of fact are findings of fact.
The applicant father, Mr Tommy was born in April 1979 (“the father”).
The respondent mother, Ms Harris was born in February 1983 (“the mother”).
The mother’s de facto partner, Mr W was born in June 1980.
Mr S, who is the father of the mother’s two sons, was born in October 1983.
The parties met in July 2001. They dated for about two months during which the mother fell pregnant to the father. When the father learned the mother was pregnant he ended the relationship.
In late 2001 the mother commenced a relationship with Mr S. The mother’s relationship with Mr S was chaotic and marred by his violence, drug abuse and criminal behaviour. For a significant period of this relationship the mother and her children lived with Mr S.
In May 2002 the subject child was born. At this time the mother was 21 and the father was 23.
In October 2002 an officer of the New South Wales Department of Community Services informed the father of the child’s birth. This is the first the father knew of the child’s birth. The mother had made no attempt to contact the father and he had made no attempt to find out if the child had been born. However since about October 2002 the father has had regular and significant contact with the child.
In September 2003 J was born. J is the mother’s first child to Mr S.
When J was about four months old Mr S and his mother kept him from the mother for about four months.
In October 2004 the mother’s son, L was born. Mr S is L’s father.
On 16 December 2004 the parties entered into consent parenting orders. In summary, the orders provided that the child live with the mother and spend time with the father two days each week, and for block periods which, from the date the child commenced kindergarten, extended from six individual weeks to half school holidays. Until these orders were varied, with minor variations the father spent time with the child as the orders provided.
In about September 2005 the mother and Mr S separated. Although separated their relationship continued.
In March 2006, at the mother’s request, the father paid the rental bond and rented premises in his name at T for her and the children. This was on the basis the mother would thereafter pay the rent. Although the father made this arrangement on the condition that Mr S would not be part of the household, within a short period of time, the mother allowed Mr S to move in.
In mid-June 2006 Mr S moved to Queensland. At about the same time the mother was evicted from the T premises. This was the sixth or seventh time the mother had moved house within approximately 12 months. After the mother departed the father paid approximately $3,000 to cover her arrears of rent and damage to the property.
In mid-September 2006 the mother took the children to Queensland where they stayed with Mr S.
In early October 2006 the mother contacted the father terrified that Mr S would harm her and the children as he said. She asked the father to urgently arrange for her and the children’s return to Newcastle. The father obliged and paid for the mother’s and children’s air tickets so that they could return quickly to Newcastle, which they did.
Within about two weeks, the mother returned to Queensland where, although she and the children stayed with her uncle, they spent considerable time with Mr S. Indeed this was the primary purpose of the trip. Because of Mr S’s threats and violence she again contacted the father and asked him to pay for her and the children’s airfares. This time the father refused.
Despite Mr S’s threats and violence the mother went to the Gold Coast and left J with Mr S who again refused to return him. As the mother’s affidavit sworn 18 October 2006 reveals she was fully aware that she was leaving the child with an abusive and out of control drug addict. It comes as no surprise that on the mother’s application a recovery order was issued as a consequence of which the police retrieved J.
For two weeks in early 2007 the mother stayed with Mr S and the children at his brother’s home. When the father discovered this he removed the child.
At the commencement of 2007 school year the child started kindergarten at N Public School. The child attended regularly and the school regarded her as settling in reasonably well.
In mid-February 2007 Mr S and his brother moved to Melbourne.
On 4 April 2007 the father’s sister collected the child from the mother. The child, by arrangement, went with the father’s family to Fiji.
On 10 April 2007, the agreed return date, the father’s mother delivered the child to the maternal grandmother, it being the father’s understanding that the mother was temporarily absent. In actuality, the mother, J and L were spending a couple of weeks with Mr S.
On 11 April 2007 final parenting orders were made between the mother and Mr S. In summary, the orders provided that the mother would have sole parental responsibility for J and L and they would live with her. J and L were to spend time with their father as agreed between their parents.
On 12 April 2007 the maternal grandmother informed the paternal grandmother that the mother had not returned from Melbourne and she needed to make arrangements for the child’s care whilst she was at work.
On 13 April 2007, without the mother’s knowledge, the father collected the child from Ms H. Ms H is Mr S’s mother. At this time, the father was working in Sydney full-time and living at his mother’s home in Newcastle. The father enrolled the child in day care four days per week. Because of his work and travel commitments, during the week the paternal grandmother was primarily responsible for the child’s care. The reality of the situation was that until the father obtained work in Newcastle the child saw little of him during the week.
The mother returned to Newcastle on 17 April 2007. The following day she requested the father to return the child which he declined.
The father commenced these proceedings with his application for parenting orders filed on 19 April 2007.
The mother filed an application for parenting orders in the Federal Magistrates Court on 24 April 2007. Those proceedings were subsequently transferred to this Court.
In late April 2007 the mother was raped. The rapist was known to the mother and Mr S. The mother contacted Mr S, who was still in Melbourne, and told him what had occurred. He obtained funds from Centrelink and returned to the mother’s home so as to “deal with” her rapist. Put simply he returned for the specific purpose of assaulting the mother’s rapist. Armed with a knife taken from the maternal grandmother’s home, at a time when the mother but not the maternal grandmother was present, Mr S confronted the rapist. What then transpired is unclear. At some stage later that day Mr S cut his wrists in J’s presence.
The parties’ parenting applications came before the Court on 9 May 2007. That day, by consent interim orders were made which provided that the child live with the father and spend time with the mother each Wednesday for four hours at the child’s day care centre supervised by the paternal grandmother. Because the child had not seen the mother for about four weeks, arrangements were made for a brief visit at the day care centre that afternoon. When the mother informed the paternal grandmother that she did not have enough money to travel to the day care centre, the paternal grandmother gave her the taxi fare. The mother accepted the taxi fare but did not visit the child at the day care centre that day.
In June 2007 the mother and Mr W commenced a relationship.
On 28 June 2007, Mr S told his mother that he was minding J and L for a few days. Mr S’s mother notified the Department of Community Services of her concerns about the mother and Mr S’s care of the children.
On 24 July 2007, by consent, the Court made interim orders which relevantly provided that the child would spend time each week with the mother from 9.00am Saturday until 4.00pm Sunday. The orders provided for regular telephone contact between the child and the parents and restrained the mother from allowing the child to be in Mr S’s presence.
In October 2007 the father started full time work in Newcastle. He and the child moved into a rented two bedroom apartment in P Street, Newcastle. Since then the father has been overwhelmingly responsible for the child’s day to day care.
In about November 2007 the mother commenced cohabitation with Mr W.
At the commencement of the 2008 school year, the child began school at E Public School where she repeated kindergarten.
On 28 February 2008 a 12 month apprehended violence order issued against Mr S for the mother’s protection. The mother has not had contact with Mr S since.
In February 2008 the father and the child moved into a two bedroom rented unit at W Street, Newcastle. This is where he and the child currently reside.
On 15 June 2008 the child returned from a weekend with the mother. That evening whilst bathing the child, the paternal grandmother observed a bird drawn on the child’s stomach. The child told the paternal grandmother that Mr W drew the bird. The child was upset, not in response to the drawing but the paternal grandmother’s reaction to it. It is the paternal grandmother and the father’s opinion that the drawing was inappropriate, not because of its nature but because of its location on the child’s body and that it was completed by an adult male unrelated to the child. The father contacted the mother and then spoke with Mr W. The mother interpreted the father’s comments as accusing Mr W of being a paedophile which accusation she relayed to Mr W. Whilst the mother’s interpretation of the father’s remarks bore little relationship to his words, the end result was an argument between the father and Mr W and ongoing soured relations.

In June 2008 the mother’s child A was born. Mr W is A’s father. Thus at 25 years of age the mother had four children under seven by three fathers.
On 24 June 2008 the Court made further interim orders which included an increase in the child’s time with the mother so that it commenced each weekend after school Friday and continued until 4.00pm Sunday. Provision was made for the child to have one half of the end of terms 2 and 3 2008 school holidays with the mother. A Family Report was also ordered and the Court made the following notations:
7.That the parties agree that equal time orders are inappropriate.
8. The List of Issues are as set out below:
8.1[The child’s] relationship with each of the parties.
8.2[The child’s] relationship with the paternal and maternal grandmothers.
8.3[The child’s] relationship with [Mr W].
8.4The parenting capacity of the mother and the father.
8.5The effect of any change in [the child’s] living arrangements, particularly given [the child’s] attachment history.
8.6The relationship between the father and the mother.
8.7The relationship between the father and [Mr W].
8.8[The child’s] wishes and the weight that can be attached to them.
8.9The mother’s relationship with [Mr S].
8.10[The child’s] relationship with her siblings.
8.11Possible difficulties and consequences of [the child] spending every weekend with the non-resident parent given the distance between the households and social and school networks.
8.12When in the mother’s care, whether she provides appropriate care to ensure [the child’s] physical safety.
8.13Any other matter which in the opinion of the Family Consultant may impact on [the child’s] welfare.
In mid-August 2008, because the lease on the mother and Mr W’s home expired and the rent increased, the mother and the three children moved back to the maternal grandmother’s home at T. Mr W moved in with his parents who also live in T.
On 17 September 2008 following release of the Family Report, the issues were further refined. The remaining issues were noted by the Court as being:
1.The Court notes the parties and Independent Children’s Lawyer agree with the opinions expressed by the Family Consultant in her report dated 19 August 2008 concerning issues 8.1 (but not to the extent it is suggested the mother may be the child’s primary attachment figure), 8.2, 8.6, 8.8 and 8.10. These matters are no longer issues in the proceedings.
2.The outstanding issues are thus 8.3, 8.4, 8.5, 8.7, 8.9, 8.11 and 8.12 being:
8.3 [The child’s] relationship with [Mr W];
8.4 The parenting capacity of the mother and the father;
8.5 The effect of any change in [the child’s] living arrangements, particularly given [the child’s] attachment history;
8.7 The relationship between the father and [Mr W];
8.9 The mother’s relationship with [Mr S];
8.11 Possible difficulties and consequences for [the child] spending every weekend with the non-resident parent given the distance between the households and social and school networks; and
8.12 When in the mother’s care, whether she provides appropriate care to ensure [the child’s] physical safety.
On 18 September 2008 the father filed an application seeking orders which restrained the mother from bringing the child into contact with Mr W. Before this application came before the Court, he filed an Amended Application in a Case seeking additional orders the effect of which would be to restrain the mother from permitting the child to ride in any motor vehicle driven by a person without a current driver’s licence or in an unregistered vehicle.
On 1 October 2008 an interim order was made which restrained the mother from permitting the child to be in the presence of Mr W. The mother has twice breached this order.
On 30 October 2008 an interim order was made by consent to the effect that neither party would allow the child to be a passenger in an unlicensed vehicle or a vehicle driven by a person without a current driver’s licence.
Following an altercation between the mother and her brother, the mother said she decided to move out of the maternal grandmother’s home. Whilst it is beyond dispute that there was a physical altercation between the mother and her brother, the maternal grandmother’s evidence is that she asked the mother to vacate the home partly because of this incident but also because of Mr W’s conduct following it. On this and all other areas where their evidence conflicts I prefer the maternal grandmother’s evidence.
On 25 November 2008 the mother, Mr W and the three children moved into a rented caravan at F Caravan Park.
On 9, 10 and 11 March 2009 the final hearing took place.

The father’s circumstances and proposals

The father resides with the child in a rented two bedroom apartment in Newcastle. He has a sound work history and presently works full-time. The father’s working hours are flexible and he is able to take the child to and from school each day, except on Friday afternoons when presently she goes to the mother. Three afternoons each week the child attends school based after school care from where the father collects her. Two afternoons each week the father takes the child for private tuition in reading, writing and arithmetic. The child has struggled with these core subjects and her teacher recommended extra tuition. This is paying dividends with the gains reinforced by the father’s greater attention to helping the child with homework.
The father is single. He has never married nor been in a long term live-in relationship. The subject child is his only child. When his financial circumstances permit it, he plans to purchase a home in the Newcastle region and it is likely he will live in the region indefinitely.
The paternal grandmother provides the father with practical support and guidance with the child’s care. The paternal grandmother resides with the paternal step-grandfather at D Street.. Their home is located a short distance away from the property where the father is residing with the child. The paternal step-grandfather is a professional whose professional office is attached to the paternal grandparents’ home. The paternal grandmother works in an administrative capacity for her husband. Because of the nature of the paternal grandmother’s employment she is able to assist the father with before and after school child care when needed. Previously, when the father was working in Sydney, the paternal grandmother had a significant hands-on role in the child’s day to day care.
The father enjoys a good relationship with his mother, step-father and sister with contact between them occurring frequently. The paternal grandparents have a son, J, who is the same age as the child. Both children are very close.
The father has a constructive relationship with the maternal grandmother. To the extent needed, they are able to communicate about the child and are comfortable dealing with each other. The father is content to travel to and from the maternal grandmother’s home for the child’s change-overs and the maternal grandmother is agreeable that he does so. There is no history of unpleasantness between the father and maternal grandmother and it is unlikely there may be in the future.
In response to the father’s concerns expressed about the mother’s environment, including particularly Mr W’s and Mr S’s drug abuse and criminal behaviour, the mother produced evidence of the father’s criminal antecedents. The mother’s point being that irrespective of which parent the child is with, the risk of exposure to a drug and/or criminal milieu is similar. As a juvenile the father was convicted of stealing from a charity box, as well as breaking and entering at a tennis club. In mid-1998 he was charged and later convicted of negligent driving after he lost control of his car at a roundabout, as well as driving without “P” plates. In about December 2003 the father’s driver’s licence was suspended because of outstanding speeding and parking fines. The father paid approximately $1,200.00 in fines in October 2003. The father was unaware his driver’s licence was suspended and continued to drive. In December 2004 the father was apprehended driving the wrong way along a one-way street. This is when he learned his driver’s licence had been suspended. Although charged with driving whilst suspended, no conviction was recorded.
In April 2006 the father was convicted of common assault. More serious charges arising from the same incident were withdrawn. During the course of his work as a security guard the father pushed a hotel patron in the chest. This is the incident which led to the father being charged and convicted of common assault in April 2006. The father pleaded guilty with the charges dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The father has never used drugs nor been the subject of an apprehended violence order. The father has never been convicted of any drug-related offences.

The mother’s circumstances

The mother, Mr W, J, L and A live in a rented 18 foot long caravan at F Caravan Park. Attached to the caravan is a canvas annexe in which the mother has stored her furniture. It has a table and chairs for dining. The family sleeps in the caravan. The adults share a double bed, A has a portable cot which is put up at night and there is a single bunk bed in which one of the boys sleep. Twice the child has slept on the floor while spending time with the mother.
Recently, Mr W built a second bunk bed so that the child could have her own bed while staying with the mother and the boys share a bunk when she is there.
There is an amenities block reasonably close by to the caravan. This is where the family showers and toilets are located. The amenities block is divided by gender. There is a bucket in the caravan for use, if needed, at night, which fortunately thus far no-one has.
The caravan park is located on a road which comprises a major access route. Although traffic is relatively light, there is a significantly heavy truck load. Partially fenced, the caravan park is not secure in the sense that children are able to wander (and have wandered) across the road and into adjacent bush. Unless young children are supervised the safety risks are self-evident.
The mother and Mr W agree their living arrangements are less than ideal and long-term, insufficient to meet the child’s needs. Each is hopeful that in the foreseeable future they may be able to move into either Department of Housing accommodation or private rental premises. Because of the mother’s prior poor record as a tenant, she is likely to find it difficult to rent in the private rental market. If the mother is rejected on ten private rental applications, she understands that the Department of Housing will place her on a priority waiting list. Although the mother made much of the prospect that her as yet to be submitted application for a private rental house at G may bear fruit, the evidence suggests little reason for optimism. The mother and Mr W may wish it was otherwise, however for the short to medium-term they and the three children are likely to remain residents of the caravan park.
Before the mother would answer questions concerning her financial circumstances she sought and was given a s 128 certificate under the Evidence Act 1995 (Cth). This is because the mother has failed to disclose to Centrelink that she is in a de facto relationship with Mr W. From Centrelink the mother receives $500.00 per week.
Mr W is self-supporting. He works as a building contractor and has recently commenced with a new master contractor with whom he hopes to continue to work full-time with additional reasonably regular weekend work. Between them the mother and Mr W have two motor vehicles neither of which is registered. Mr W needs to spend about $1,200.00 on parts in order for his motor vehicle to be roadworthy. Presently, Mr W relies on a work colleague to take him to and from work.
As the mother is an unlicensed driver and now disqualified from holding a driver’s licence, Mr W’s parents take J and L to and from school and pre-school respectively. J has ADHD and L is developmentally delayed. He attends a special day care centre where he participates in an early intervention program.
The mother has never had paid employment and has no plans to either acquire workplace skills or to pursue even part-time work in the future.
The mother’s criminal history can be found in Exhibit “N”. On 30 August 2000 the mother, who at the time was a juvenile, was convicted of aggravated robbery, resisting an officer in the execution of duty, and destroying/damaging property. For the first offence the mother received 200 hours community service and for the remaining two was sentenced to the rising of the court. On the same day the mother was convicted of being carried in a conveyance without consent of the owner (two counts) for which she was placed on 18 months probation.
On 30 April 2008 the mother was convicted of using an uninsured motor vehicle, being an unlicensed driver and using an unregistered registrable motor vehicle in relation to each of which the mother received a s 10 dismissal. On 27 August 2008 the mother was convicted of being a never licensed person driving on a road (second offence) for which she received a 12 months s 9 bond, $73 court costs and disqualification from driving until 27 August 2011.
The mother has never used drugs.
In February 1999 Mr W was convicted of a large number of larceny offences, five concerning property worth more than $2,000, 19 concerning property worth less than $2,000, breaking and entering a building, plus three other associated offences. In relation to all offences, Mr W received a three month fixed term of imprisonment.
Mr W was convicted in February 2003 of driving whilst licence cancelled for which he received a 12 month bond and was disqualified from driving for 12 months.
On 2 March 2005 Mr W’s former partner obtained an apprehended violence order against him.
On 4 April 2005 Mr W was convicted of possessing a prohibited drug (cannabis) for which he was fined $100 plus court costs of $63.
It was difficult to reconcile the mother’s and Mr W’s evidence concerning his drug use. As to the later, Mr W sought and was granted a s 128 certificate concerning his drug use. The mother agreed that she deliberately sought to mislead the Court with regard to aspects of her relationship with Mr W, her financial circumstances, and her future residential arrangements. As a reading of the transcript would reveal, these concessions were made after inconsistencies in the mother’s oral evidence were so apparent her credibility fell away. The mother admitted that Mr W is addicted to cannabis. She said he used cannabis on average three or four times a week. Because the mother does not want the children exposed to his cannabis use, she said he smokes cannabis in the caravan when the children are in bed, or, if they are awake, visits other caravan residents in order to do so. The mother had last seen Mr W smoke cannabis on the Friday prior to the hearing.
Initially Mr W denied he is a drug addict. As cross-examination concerning his failure to provide clean drug screens in order to trigger unsupervised visits with his own son proceeded, he eventually agreed he is. Mr W does not agree that 20 years of drug use has had an adverse affect upon him or that there is any reason why the father or the Court should be concerned about his involvement in the child’s life. Mr W made it as clear as one possibly could that he has no intention of reducing his cannabis use, even if this continued to seriously adversely impact upon his relationships. Although the child had not reported seeing Mr W’s drug paraphernalia which he keeps in the caravan, or him and others smoking cannabis, the father says there is an unacceptably high risk that in the mother’s environment so long as she resides with Mr W, this will occur.
The mother has a good relationship with the maternal grandmother. The mother’s sister and her children live in Sydney. It does not appear that the mother and her sister or their children regularly spend time together. The mother is estranged from her brother. Although the mother would prefer to not do so, she is comfortable spending weekends at her mother’s home. This is an arrangement the maternal grandmother is willing to facilitate for the next 12 months or so.
The maternal grandmother was an impressive witness. She is committed to supporting each of her children and keen to maintain her good relationships with her grandchildren. The maternal grandmother has had a significant role in the child’s life as a consequence of the child living in the same home for a considerable period and, since the mother vacated her home in November 2008, ongoing regular visits.

The general law in parenting cases

Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.
Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimum outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below:
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.

In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.
Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence s 60CG. Ultimately, the weight attached to each factor is a matter for the Court’s discretion.
The sequence of determining parenting orders is important. If the court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability of the child spending equal or substantial and significant time with its parents (s 65DAA). In the context of s 65DAA “consider” means a consideration tending to a result, or to consider positively the making of an order: Goode and Goode (2006) FLC 93-286. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. The concept of substantial and significant time is defined in s 65DAA(3) and occurs where:
(1)the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(2)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(3)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The child’s best interests remain the overriding consideration.
Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above. Similarly, where the Court has decided against maintaining equal shared parental responsibility s 65DAA considerations do not apply.

Principles concerning a change of child’s surname

The principles governing change of a child’s surname were set out by the Full Court of the Family Court in Chapman and Palmer (1978) FLC 90-510. In that case the Full Court of the Family Court (Evatt CJ, Asche and Marshall S JJ) held at 77,674-77,675:
The general principle appears to be that the court will not intervene to prevent a parent from changing the surname of a child in the custody or care and control of that parent (or to direct that a name be restored where a change has occurred), unless the court is satisfied that the change was made without the consent of the other parent and that it does not promote the welfare of the child. The same principle applies when the court is asked to direct that a surname be restored where a change has already occurred. In deciding the issue in each case there is no onus of proof. It is for the court to balance in its discretion the factors for and against change. The guiding principle is that the welfare of the child is the paramount consideration. It must stand above the wishes or proprietary interests of the parents.
The factors which are relevant to the Court's decision in this matter have been considered in a number of cases: George and Radford (1976) FLC 90-060 (Watson S.J.); Arthur and Comben (1977) FLC 90-245 (Demack S.J.); Sampson and Sampson (1977) FLC 90-253 (Fogarty J.); Ralph and Ralph (1977) FLC 90-292 (Murray J.); Putrino and Jackson (1978) FLC 90-441 (Lusink J.) Several of these cases refer to the need to balance the short term embarrassment to the child against the long term effects of changing the child's surname. This approach was also adopted by Menhennit J in the earlier case of K v D (1968) 13 F.L.R. 430 at p. 433. Some judges have emphasised the short term embarrassment which a child may undergo by virtue of bearing a different name from that of his mother and the household in which he is living. In Ralph (supra), Murray J thought (at p 76,552) that what an adult may regard as short term embarrassment may seem an eternity of awkwardness for a child going through the important formative years of primary schooling. This view was echoed by Ormerod L.J. in the Court of Appeal (R v. R (1977) 1 W.L.R. 1256). The embarrassment and awkwardness felt by the child is a factor relevant to the child's welfare and should be considered.
Other judges have tended to stress the long term effects of a change in name and the possible confusion of identity which may arise for a child (see Menhennit J in K v D at p 433). In George and Radford, Watson J at p 75,297 took the view that:
… a sense of personal identity is important. The imposition on a child of a name not his own can contribute to a feeling of confusion in that child.
Lusink J in Putrino and Jackson (p 77,254) also thought that the confusion of identity arising from a change in name would far outweigh the short term embarrassment for the child. Murray J, on the other hand, thought that confusion of identity could be increased if a child bore a name different from that of his or her mother (p 76,553). Each case will present different circumstances and the decisions should be regarded as drawing attention to factors which are relevant to take into consideration. The short and long term effects of the change of name and the confusion of identity which may arise for the particular child if his or her name is changed or is not changed should be considered along with the other relevant factors.
The Court in Chapman and Palmer (supra) went on to hold at 77,675-77,676:
We believe that each such case should be approached in an even-handed manner with the object of making a decision that will promote the welfare of the child. To summarise, the factors to which the courts should have regard in determining whether there should be any change in the surname of a child include the following:
(a) The welfare of the child is the paramount consideration.
(b)The short and long term effects of any change in the child’s surname.
(c)Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.
(d)Any confusion of identity which may arise for the child if his or her name is changed or is not changed.
(e)The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage.
(f) The effect of frequent or random changes of name.
In Beach and Stemmler (1979) FLC 90-692 Connor J was of the opinion that the Full Court in Chapman and Palmer did not mean to restrict the considerations merely to the matters listed above, and hence other considerations are possible. Connor J referred to Pylarinos and Reklitis (1979) FLC 90-609, where McCall J took into account the wishes of a 13 and a half year old child when permission was sought to change her surname, a factor which in Connor J’s view was properly taken into consideration in that case. His Honour then proposed to take into account the criteria set out in Chapman and Palmer as well as the following matters (at 78,693):
·       the advantages both in the short term and in the long term which will accrue to the children if their name remains as it is now.
·       the contact that the husband has had and is likely to have in the future with the children.
·       the degree of identification that the children now have with their father.
·       the degree of identification which the children have now with their mother and their stepfather.
·       the degree of identification which the children will have with the child that is about to be born to their mother and any likely confusion in the future if their father's surname is restored.
·       the desire of the father that the original name be restored.

Applying the law to the facts

Each of the parties said they have, and wish to maintain, a meaningful relationship with the child. They agree that notwithstanding their concerns about each other, their daughter needs the opportunity to reap the benefits of meaningful relationships with each of them. The Family Consultant reported that the child loves both her parents and considered that it is beneficial to promote the benefits of these relationships. As to the Family Consultant’s evidence generally, which was unchallenged, I attach significant weight.
Concerning the child’s relationships with the parents, the Family Consultant said:
[The father] was not involved in [the child’s] life until she was 7-8 months of age and it took a period of time for her to develop a relationship with him. [The mother] would have been [the child’s] primary attachment figure for at least a significant part of her life until she came into her father’s care in April 2007. At that stage, [the father] was working in Sydney and [the child] and he lived with the paternal grandparents, […]. [The child], according to both parents missed her mother following the move to her father’s care. Over the last 15 months [the child] has developed a good relationship with [the father] which has strengthened since he returned from working in Sydney in November 2007….[The child] still has a strong attachment to her mother but has also developed a relationship with [the father].
Since the Family Report was completed the child’s relationship with the father has strengthened whilst her relationship with the mother has come under pressure. This is because on a number of occasions the mother failed to take her for the weekend pursuant to the orders of this Court and did not avail herself of the opportunity for block periods during Christmas 2008/2009 school holidays. In a relationship sense, whether during school term the child spends each alternate weekend or two weekends in three with the mother, from the child’s perspective the outcome is relatively insignificant. Both options provide the child with an appropriate opportunity to gain the benefits of a meaningful relationship with the mother.
Section 60CC(2)(b) concerns the need to protect a child from physical and psychological harm and being subjected to or exposed to abuse, neglect or family violence.
There is no suggestion that whilst in the father’s care the child will be exposed to a risk of harm.
The mother has never mistreated the child.
Insofar as the mother is concerned, the risk issues predominately arise as a consequence of her choices of partner and a disconcerting pattern of prioritising her relationships with her partners over her parental responsibilities. For example, notwithstanding the mother’s firsthand knowledge of Mr S’s serious drug abuse, his violence towards the mother and others, serious threats to harm their children and two suicide attempts, the mother repeatedly brought the child into contact with him. In doing so, for years, the mother failed to protect the child from a high risk of abuse, family violence, and concomitant physical and psychological harm. While there is no violence or abuse in the mother’s relationship with Mr W and he has never mistreated her children, the mother has repeatedly placed her relationship with him ahead of her parental responsibilities. This is not however evidence of future risk of abuse, neglect or exposure to family violence. My point is simply that should such a risk develop, if not in the mother’s current relationship but in the future, I have real reservations that the mother would act to ensure the child was protected. This is a finding which warrants modest weight.
Section 60CC(3)(a) concerns the child’s views. The child told the Family Consultant that she wants to live with her mother, brothers and sister but if the mother continued to live with Mr W she preferred to live with the father. Aware of the strength of the child’s views, the mother chose to reside with Mr W and agreed to orders that the child live with the father. The child perceives Mr W as angry and described him as “mean”. The child’s description accords with my observations of Mr W’s demeanour and attitudes. Having seen him in the witness box it is easy to see how this child found him intimidating. Mr W does not have any particular attachment to the child and it is unlikely that he puts the effort into his relationship with the child which he puts into his relationship with J, L and A. For at least 12 months and for the foreseeable future he has decided against maintaining a relationship with his son.
The significance of these matters is that if Mr W is substantially involved in the child’s visits with the mother his presence is likely to detract from the child’s comfort with the situation. It will serve to reinforce her views in favour of spending time with the father rather than the mother. This is a finding to which I attach reasonable weight.
By s 60CC(3)(b) I am required to consider the nature of the child’s relationship with each of the parents, grandparents and other significant parties. I accept the Family Consultant’s evidence and opinion that the child:
[h]as a close relationship to her paternal grandparents and her maternal grandmother. They have all been closely involved with her and both on interview and observation it was clear that there is a mutual and loving relationship between [the child] and her grandparents.
Irrespective of whether the child spends alternate or two or three weekends with the mother her relationships with her maternal grandmother is unlikely to be affected. If history proves me wrong the father is likely to act and ensure any negative impact is immediately addressed and if appropriate make arrangements directly with the maternal grandmother to increase the child’s time in her company.
Concerning the child’s relationship with her siblings the Family Consultant reported that:
[The child] has a good relationship with her two brothers, [J] and [L]. She stated that she enjoyed spending time with them and her mother and doing things ‘without [Mr W]. She also stated that she now wants to do things including her sister [A]. [The child] enjoys a very close relationship with her Uncle [J]. All of these relationships are important to [the child’s] sense of identity and happiness. Now that she is at school unless she has reasonably regular weekend and holiday time in both sides of her family, her relationships with the side of the family with whom she has limited contact will be somewhat compromised.
This opinion lends strong support to an equal distribution of the child’s leisure time between her parents. If, as the mother and the Independent Children’s Lawyer proposed, the child spends one weekend in three with the father this provides little opportunity for their relationship to include free and easy happy times. It severely limits her capacity to form neighbourhood friendships or strengthen school based friendships through out of school contact. Long term this is socially isolating and is likely to inhibit the child’s capacity to develop age appropriate independence. It would also make it harder for the father to maintain the child’s relationships with her paternal relatives. These are all matters to which I attach reasonable weight.
I have previously made findings concerning the child’s relationships with her parents which do not require restatement. They are findings to which I attach significant weight.
By s 60CC(3)(c) I am required to consider the willingness and ability of each of the child’s parents to encourage and facilitate a close and continuing relationship between child and the other parent. The father, with the paternal grandparents’ support, has shouldered the overwhelming burden of transporting the child between her two families. Although much was made of his evidence that he and his family do not respect the mother, these views have not and are unlikely to be communicated to the child.
The father and his family have a clear focus on the child’s well-being and are concerned that the mother appears unable to prioritise the child’s interests ahead of her own. Although the mother is unhappy with the way she perceives the father has unjustifiably taken over the child’s care, she has not exposed the child to her private opinions of the father. Both parties understand the importance to their daughter of continuing her relationship with the other parent. I was most impressed by the father and the paternal grandmother’s demonstrable commitment to the child’s relationship with her mother. The evidence is replete with examples of them going to considerable lengths to ensure the child’s contact with the mother in circumstances where, left to the mother’s efforts, contact would not have occurred. The father and his family have shouldered overwhelmingly responsibility for the child’s movements between the parents’ homes. The paternal grandmother agreed to supervise visits and gave the mother taxi fare to enable her to spend time with the child. Before the father was aware of the full extent of the risks Mr S presented to the child, the father agreed to a final order that she live with the mother. When the orders did not address 2008/2009 Christmas school holiday arrangements, the father proposed extensive time for the child to spend with the mother.
Neither party has denigrated the other within the child’s hearing.
The mother has conceded that the child’s best interests lay with an order that she continued to live with the father. Implicit in the mother’s stance is the recognition of the value to the child of her relationship with the father and her obvious willingness to promote it.
From when the child was about 8 to 12 months old and April 2007 the mother consistently facilitated regular contact between the child and the father. Although the father did most of the running around to ensure this occurred, it occurred with the mother’s co-operation and without her attempting to make the situation difficult for the father. It is to both parties’ credit that not withstanding the very difficult issues which they have been required to contend, each has persistently demonstrated their willingness to promote the child’s relationship with the other parent. Undoubtedly, this has been to the child’s benefit.
Between them the parties appear to realise the importance of promoting the child’s relationship with each other, which stance is enduring and in the child’s best interests.
Section 60CC(3)(d) concerns the likely effect of changing the child’s circumstances. Presently the child is used to spending most weekends with the mother and her siblings. On the mother’s application, this will reduce by two nights each 21 days and by the father’s application four nights each 28 days. Reducing the amount of time the child has with the mother and siblings in the manner the father proposed would eventually slightly impact upon her relationships with them. Although she will maintain good relationships with her siblings and the mother the likelihood is that these would weaken in favour of stronger relations with the father, J and the paternal grandparents. With stronger relations with the father and paternal relatives their influences on her will strengthen. From the child’s perspective this is likely to promote superior social skills and have her more attuned to widely accepted social mores. The child’s sense of identity will not be compromised and although she is unlikely to immediately understand why she spends less time with the mother and siblings, as time passes the child will adjust without her happiness or overall well-being being compromised.

The mother and Independent Children’s Lawyer submit that the practical reality of an injunction restraining the mother from bringing the child into contact with Mr W is that the amount of time she spends with the child would be less than even the father’s proposed orders. There is limited public transport between the caravan park where the mother resides and the maternal grandmother’s home at T, where change-over usually takes place. Even though I am satisfied the mother has been driving without a licence far more than her convictions suggest, the mother submits the Court would not make orders which increased the probability she would continue to offend. With this submission I agree.
If the mother genuinely believed she would continue living for only a few more weeks at the caravan park, it is difficult to understand why she focused so extensively on the logistical difficulties of travel between the caravan park and T while she is disqualified from driving. The importance attached to this issue in the mother’s case reinforced my comfortable satisfaction that the duration of the mother’s residence in the caravan park is likely to be longer than the mother claimed. It is likely Mr W will shortly register his car in which case, he is able to at least deliver the mother and children to the contact change-over point. It is about 15-20 minutes by car from T to the caravan park. Provided the maternal grandmother was available, which the evidence suggested she usually would be, she is likely to agree to do the driving involved in returning the mother and child to the caravan park. The father or the maternal grandmother could collect the child at the same place at the end of each visit. If the mother spends time with the child at the maternal grandmother’s home the injunction proposed by the father would not restrict Mr W from delivering the mother and collecting her from the maternal grandmother’s home. These findings reveal the mother’s argument concerning the degree of difficulty imposed upon her spending time with the child if Mr W is excluded, to be overstated.
The mother also used the transport issue to explain her otherwise inexplicable failure to spend time with the child after the 30 October 2008 restraint on the child’s contact with Mr W was ordered. On at least two occasions the mother failed to spend time with the child even though she knew the father had delivered the child to the maternal grandmother’s home. These occasions are different to those offered to the mother by the father, for block periods during the 2008/2009 Christmas school holidays. In this regard, the father’s solicitors wrote to the mother’s solicitors on 17 November 2008 and enclosed his proposed schedule for the mother to spend time with the child over the forthcoming school holidays. This was a well structured proposal which would have enabled the child to have about half of the school holidays with the mother, divided up into various shorter periods and including from noon Christmas Day until 4 January 2009.
It is unclear whether the mother’s solicitors received the letter, but it is beyond dispute that the mother did not. Curiously, the mother did not herself submit her own proposal to the father concerning the 2008/2009 school holidays. Without first discussing it with him, the mother retained the child at the end of the first weekend following the end of term. In response to the father’s enquiry the mother simply said she would be keeping the child for half the school holidays. The mother had made no plans for Mr W to stay elsewhere during this period and I infer they intended to ignore the restraining order. In the event and threatened with an urgent application that she return the child, on 21 December 2008 the mother handed the child to the father at the caravan park. The mother did nothing further about spending time with the child over the Christmas school holidays. It was the father who arranged for the child to go to the maternal grandmother’s for Christmas Day. On discovering this, in breach of the restraining order, the mother took the child to Mr W’s family for Christmas Day. The mother did not see the child again prior to this hearing in March 2009.
With little difficulty the mother would have been able to arrange to spend time with the child at the maternal grandmother’s home, or have Mr W vacate the caravan for specific periods in order to have the child there. The mother did not ask Mr W to vacate the caravan, nor make arrangements to spend time with the child on the weekends when the father continued to deliver her to the maternal grandmother’s home. Mr W, with no real inconvenience to anyone, could have stayed for weekends or slightly longer periods at his parents’ home, perhaps elsewhere with friends. The mother and Mr W’s failure to make these arrangements is another example of her willingness to place her own interests ahead of the child’s. So that it is clear, this failure to spend time with the child had nothing to do with a lack of transport and everything to do with the mother’s willingness to place her partner’s interests ahead of the child’s. It is a similar dynamic as resulted in the mother repeatedly exposing the three elder children to a high risk of harm from Mr S.
The effect of these findings is that I agree with the parties that there needs to be a reduction in the amount of time the child has with the mother so as to enable her to strengthen her ties with the father, paternal relatives and the community where she primarily lives. While this will have a slightly negative impact on the child’s relationships with her mother and siblings, in the long term the advantages outweigh the disadvantages.
Section 60CC(3)(e) concerns the practical difficulty and expense of a child spending time and communicating with a parent. I have already made findings concerning these matters which do not require repeating.
The father is willing to deliver the child to the maternal grandmother’s home and collect her from the same place at the end of the mother’s time. On Friday afternoons this is about a 45 - 60 minute journey each way and about 30 minutes each way the rest of the week. This makes the times the father suggested for changeover reasonable and consistent with his finishing work, collecting the child from school, preparing her for the weekend and arriving on time but without too great a rush.
When the mother moves from the caravan park she hopes to reside in the T/G area which makes the maternal grandmother’s home a reasonable change-over point. G is about 10 - 15 minutes from T. If the mother planned to cooperate with not having Mr W present at her home when the child was there, I would have been more favourably disposed to an order that the father deliver to and collect the child from the mother’s home at least until the mother is eligible to obtain a driver’s licence. The maternal grandmother said that the mother can use her home even when she is not present. Although it creates some but not insurmountable difficulty for the mother, irrespective of where the mother spends time with the child, changeover will be at the maternal grandmother’s home.
Section 60CC(3)(f) concerns the parties’ capacity to provide for the child’s needs. This is an important matter and is one of the pivotal components of the father’s arguments for restrictions upon the circumstances in which the mother spends time with the child. It is intrinsically linked to the father’s concerns that the mother does not appreciate the importance to the child of good role models or protecting her from exposure to anti-social behaviour, whether that is behaviour which places the child at risk or which, if adopted by the child would put her at odds with community norms and thus deprive her of the optimal chance to reach her potential.
The father submitted that the mother knowingly and irresponsibly failed to protect the child from a high risk of harm from Mr S. The risk was evident from his addiction to hard drugs, criminal behaviour, threats to kill the mother and children, physical abuse of the mother and the risk that having attempted to kill himself in front of one of the children and another time attempted suicide he may do so in the child’s presence. The mother’s response to these grave and legitimate concerns was that she obtained, with police assistance, an apprehended violence order for her protection from Mr S approximately 12 months ago and there is no risk she will resume contact with him. This approach is deceptive in its simplicity and ignores the objective reality that previously the mother exposed the child to years of contact with Mr S in a situation which she knew, from the child’s perspective, was highly risky.
It is good luck rather than responsible parenting by the mother which resulted in the child not being harmed whilst the mother resided with Mr S. The child, however, clearly witnessed violent and abusive behaviour the effects of which may only be known with time. There is a real prospect that the child suffered emotional damage as a consequence of residing with Mr S.
Similar, but nowhere near as extreme, issues arise as a consequence of the mother’s relationship with Mr W. There is no violence in their relationship. However, because of it the child is living with a long-term cannabis addict who sees no reason why he should stop using illegal drugs. Mr W keeps his cannabis and bongs in the caravan and smokes cannabis where he lives. His friends smoke cannabis. Mr W and the mother said he does not smoke in the child’s presence and the child has not seen him using cannabis. However, on the Friday prior to the hearing, Mr W smoked cannabis in the caravan whilst the other children were in bed. The duration and extent of his addiction is such that I accept it is only a matter of time before the child witnesses Mr W using cannabis. At some stage she will realise it is illegal.
It is feasible the mother’s relationship with Mr W will fail. Mr W made it plain he does not plan to marry the mother and intimated he may take up a longstanding job offer in far western Queensland. However, for so long as the mother resides with Mr W the risk the child will be exposed to illicit drug use remains unacceptably high. In these circumstances it will be all but impossible for the parties to convincingly persuade the child that drug abuse is illegal and harmful. This is because in the child’s mother’s home it has tacit acceptance. There is no similar risk in the father’s home or environment. Although sadly one sees with increasing frequency cases in which both parent’s abuse drugs and drugs are inevitably part of a child’s life, this is not such a situation. Constraining the conditions upon which the mother sees the child in the manner the father contends for maximises this child’s chance to enjoy the remainder of her childhood unaffected by drugs and believing the anti-drugs message her father, his family and the community convey. Although one cannot be certain about the outcome, the father’s approach maximises the chance the child will not be lured into believing drugs are a safe and acceptable facet of life. This is a finding to which I attach significant weight. It weighs heavily in favour of the father’s application for a restraining order concerning Mr W. This evidence also reinforces the importance of orders which strengthen the father’s influence over the child.
Whilst the mother lives independently of the maternal grandmother, the father submits the Court would be concerned about the milieu in which the mother resides and to which the child would be exposed. He highlighted the mother’s anti-social behaviour, in particular social security fraud, her plans to deceive the Department of Housing about her relationship with Mr W, her pattern of choosing partners who are drug addicts and more significantly involved in criminal activity than he has been and that presently she lives in an environment which all parties agree does not meet the child’s accommodation and physical needs. There is considerable force in the father’s contentions.
In response, the mother highlighted the father’s criminal antecedents. The gravamen of her submission was that there is little to distinguish the mother’s milieu from the father’s. I do not agree. The father’s criminal antecedents are not as substantial as Mr W, or anywhere near as extensive as Mr S’s. The father’s most recent conviction is 2006 whereas Mr W’s is 2007. Mr W continues to engage in criminal conduct whereas the father does not. The father is more mature and treats his obligation to give the child the best possible environment seriously. The prospect that he would jeopardise his daughter’s future through future criminal conduct is slight.
On the other hand, the risk of the child’s exposure to an anti-social milieu, including criminal conduct, in the mother’s environment is high. Although the child will not appreciate the significance of aspects of life with the mother, as time passes and increasing maturity she will. So as to reinforce positive role model messages and minimise the anti-social messages inherent in the mother’s environment, the father’s approach to the frequency and duration of weekend visits with the mother promotes the child’s long-term interests. Although the frequency still involves a degree of risk, because of the child’s attachment to the mother and the importance of her relationships with her half-siblings, the child’s overall well-being requires that these risks are taken.
Section 60CC(3)(g) concerns the maturity, gender, lifestyle and background of the child and parents. I do not accept that for gender reasons the mother is better able to provide for certain of the child’s emotional and developmental needs. At this stage because of the child’s greater attachment to the mother this is likely to be true. However, as time passes and as the child’s attachment to the father strengthens she will increasingly look to him for her primary emotional and developmental needs which the father is more than adequately equipped to meet. Where the father lacks experience, the paternal grandparents will fill the void.
There are no other factors, beyond those discussed earlier in this judgment which the section requires to be considered.
Sections 60CC(3)(h) - (k) issues have already been addressed or do not require consideration.
Section 60CC(3)(l) requires that the Court considers an order that will be least likely to lead to further proceedings. The mother submits that the imposition of onerous and unnecessary conditions on her time with the child is likely to lead to a worsening relationship between the parties and a greater potential for contravention proceedings. It is submitted that allowing the mother substantial and unrestricted time with the child lessens the chances of further proceedings. With this submission I agree. However, where the restrictions promote the child’s short and long-term physical and emotional well-being, the risk of future proceedings should be and are afforded less significance.
However, in order to minimise the risk of future proceedings, the orders will provide that the mother may trigger a discharge of the injunctions concerning Mr W if there is convincing evidence he no longer uses cannabis. After 20 years of cannabis use, she would need to demonstrate at least nine months when he has not used drugs to bring his risk of relapse into reasonable limits. For the same reason, she would need to demonstrate that he has attended drug counselling or Narcotics Anonymous and provide the father with a report from an appropriately qualified person which indicates his risk of relapse is assessed as low.
It is my understanding that cannabis has a sufficiently long half-life that three weekly drug urine tests are probably sufficiently spaced to capture its presence. Mr W complained about the costs of drug screening but with respect to him, he spends more on cannabis than three weekly drug urine screens would incur. If three weekly clear drug screens for nine months are provided, as well as the report to which I have made reference, the injunction against the mother permitting the child to have contact with Mr W will be discharged. So that is clear, I do not accept that Mr W’s drawing the bird on the child’s stomach in the mother and her half-siblings’ presence and at a time where the boys had similar drawings is a reason to restrict Mr W’s contact with the child.
There is considerable overlap between s 60CC(3) and s 60CC(4) and (4A). There are no further factors which s 60CC(4) and (4A) requires the Court to consider. In the past, there have been instances where each party has taken decisions about the child without appropriately consulting the other. Although communication between the parties is difficult, with the maternal grandmother’s generous assistance there is sufficient communication for the parties to agree and the Court supports an order that they share parental responsibility.
Because of the mother’s financial circumstances, she does not contribute to the child’s financial support. The father appropriately accepts the reality of the situation. Nonetheless, it is important to acknowledge that the father is solely responsible for the child’s financial needs.

Conclusion

Although the parties will have equal shared parental responsibility equal time or substantial and significant time with the child’s mother is contra-indicated.
This is a sad case. For the first five years of the child’s life, she lived with the mother and her half brothers. Although the mother’s living situation was far from ideal, the child was loved by her mother and half brothers and is strongly attached to them. The child’s strongest attachment remains with the mother and from April 2007 she has begun a difficult re-adjustment as she spends more time with the father and less with the mother and half siblings.
It is beyond dispute that the father willingly supported the child’s relationship with the mother and recognised the importance to the child’s emotional and psychological well-being that she be able to reside with the parent to whom she was primarily attached. It is only when he appreciated the unacceptably high risks to the child that continuing to live with the mother entailed, that the father changed his approach. Unlike the mother, the father has persistently demonstrated a sound understanding of the child’s needs and ability to focus on them. Nonetheless the changes to the child’s life around April 2007 have come at considerable emotional cost to her. The process of transition, from the mother to the father’s care is well advanced and it is appropriate to take the next step by increasing the father’s time with the child and reducing the mother’s so as to reinforce the long-term benefits to the child of primarily being under the father’s influence.
The sadness evident in the child’s desire to live with the mother and siblings provided that Mr W is not part of the household is passing. If the child was not strongly attached to the father or believed she was unsafe with him, her desire to live with the mother would have been unqualified.
As is abundantly clear from the judgment, the father has established it is in the child’s short and long-term interests to be protected from exposure to drugs and for orders which promote this outcome. This is achieved through his approach to restraining the mother from bringing the child into contact with Mr W, giving her a solid base during her leisure time with the father and for the time being restraining the mother from taking her to the caravan park where she resides. It is noteworthy and surprising that the mother was not willing to even pay lip service to compliance with injunctions. When the mother explained she would comply with order only if the father did, she made it clear that she believes compliance with restrictions with which she disagrees is optional. In this regard the mother is wrong and materially damaged the prospects she could defeat the father’s applications for restraining orders. Until the mother gave this evidence I was leaning towards dismissal of the father’s restraining orders applications as possibly being overly cautious but tempered by the likelihood the mother would proffer appropriate undertakings. Regrettably the mother’s attitude to existing and future restraining orders was so poor that she tipped the evidentiary balance in favour of the father’s approach.

The best protection for the child from drugs and an anti-social milieu is to limit her exposure to it and restrain the mother from bringing the child into contact with her partner unless there is strong evidence he is drug free. This necessitates an injunction against the mother taking the child to the caravan park. There the probability is she will have contact with Mr W and presently at least, other drug users. Although the father argues for a permanent injunction, as the child matures aspects of the risks diminish or are offset by the potential damage to her relationship with her mother and siblings. This applies particularly to the risks associated with being at the caravan park if the mother still lives there. The maternal grandmother said her home is available for the mother to spend time with the child at her home for about twelve months. At that time there is a chance the mother will still be living at the caravan park. If the injunction continues beyond that date the potential is that the child’s relationship with her mother will be seriously compromised, through lack of continuing contact, and as will the child’s happiness. By then the child will be sufficiently under her father’s influence that she is likely to report anything at the caravan park which concerns her and follow his strict instruction. Although less than ideal this approach is necessary in order to maintain meaningful relationships between the child and her siblings.
The only outstanding issue concerns the child’s surname. The father wants to add his surname so that the child is known as “Harris-Tommy”. This is an issue which the child raised with him on a number of occasions. She finds it embarrassing when questioned at school about why her name is different to her father’s or whether the father is actually her father. She became upset after the father was questioned by a travel agent in her presence about his relationship to a child with a different surname. The child was sufficiently troubled by these matters that she has raised the issue a number of times with the mother. The mother provided the child with strategies she could adopt to explain why the child carries the mother’s and not the father’s surname. Nonetheless the child remains unhappy with the present situation.
Some of the mother’s children have composite surnames. Dealing with the children in chronological order, J’s surname is Harris-S, L’s is Harris, the subject child’s is Harris and A’s is Harris-W. I have found it difficult to understand why the mother so strongly resisted the child’s desire to have her father’s surname as part of her own, in circumstances where two of the mother’s four children carry hyphenated surnames which include their father’s surnames. In response to this, the mother said that the child had always been known solely by the mother’s surname and she considered there to be no good reason for change.
This would be the first time the child’s surname was changed. Changing the child’s surname does not give rise to confusion of identity. Indeed to the contrary, it enhances the child’s sense of her own identity in that she would be publicly acknowledged as the child of both parents. It accords with the child’s views and shields her from questions about her relationship with her father which she considers embarrassing.
Although it will mean the mother’s four children have different surnames the elder three know they have different fathers and once A is old enough to understand the children will all appreciate the situation. Amongst the sibling group, changing the child’s surname is unlikely to be confusing or have any impact upon the sibling relationships. I am strongly persuaded it is in the child’s best interests that she carries both parents’ surnames. So as to most closely align it with her siblings’ surnames she will have her mother’s name first and her father’s second.
For these reasons I make the orders identified at the commencement of this judgment.

I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan.

Associate:

Date: 16 April 2009

[2009] FamCA 278

16 April 2009

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Costs

Injunction

Procedural Fairness