Trentham and Simons

[2014] FamCA 237

FAMILY COURT OF AUSTRALIA

TRENTHAM & SIMONS [2014] FamCA 237

FAMILY LAW – CHILDREN – Undefended hearing – Father failed to engage in final stages of proceedings – Concerns in respect of father’s chronic and ongoing drug use – Nature of the child’s relationship with the father – Father’s attitude and responsibilities of parenthood – Whether the child should spend time with the father and if so, whether such time should be subject to restrictions – Protection from harm – Best interests of the child

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

Goode & Goode [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
MRR & GR [2010] HCA 4

APPLICANT: Ms Trentham

RESPONDENT: Mr Simons

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Penrith

FILE NUMBER: PAC 5925 of 2011

DATE DELIVERED: 11 April 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 4 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Katsinas

SOLICITOR FOR THE APPLICANT: Alan Rigas Solicitors

THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Penrith

Orders

1. That all previous Orders in respect of the child C, born … 2003, (“the child”) be discharged.

2. That the mother is to have sole parental responsibility for the child.

3. That the child is to live with the mother.

4. That the child spend time with the father on such conditions as is agreed to by the mother in writing, with such writing to include SMS or email communication.

5. That a copy of these Orders be sufficient authority for the father to contact the schools attended by the child from time to time, and seek all relevant information about the education of the child and to receive all reports, notifications and the like that are relevant to the child.

6. That the father and his family members be permitted to attend any and all school functions, concerts, athletic events, fetes and the like that a parent would normally be invited to attend.

7. That a copy of these Orders be sufficient authority for either parent to contact any medical practitioner or specialist, and seek to obtain all relevant information about any treatments, medication, prescriptions and the like that are relevant to the child.

8. That each party within forty-eight (48) hours of the date of these Orders provide to the other party the names and address and contact numbers for all current treating medical practitioners and/or specialists for the child and will provide to the other party details of any new treating doctors or allied health professionals for the child within seven (7) days of the appointment of a new doctor or specialist.

9. That each party, within seventy-two (72) hours of any change, inform the other of their new address or contact telephone number.

10. That each party, as soon as practicable, inform the other in the event that:

    (a)       The child suffers a serious accident;

    (b)       The child is hospitalised; or

    (c)       The child is referred for specialist medical attention.

11. That all non-emergency communications between the parents in relation to the child be by SMS text message.

12. That all outstanding applications and cross-applications be dismissed.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5925 of 2011

Ms Trentham

Applicant

And

Mr Simons

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These are the second set of parenting proceedings in relation to the child C, (“the child”) who is 11 years old.

2. The first proceedings were initiated by the father in 2004 in the Federal Magistrates Court, with Orders being made on 2 June 2005 for the child to live with the mother and to spend time with her father, progressing to alternate weekends once the child was of school age.

3. The current proceedings were initiated by the mother in December 2011. Initially, the father participated in the proceedings and was represented by a solicitor. The father has disengaged from these proceedings. He filed a Notice of Discontinuance on the 28 January 2014 and has failed to attend recent Court events or have a legal representative attend on his behalf.

4. The father was put on notice that the proceedings would proceed to hearing and be determined on an undefended basis if he or someone on his behalf failed to attend on 4 March 2014.

5. As there was no appearance by or on behalf of the father on 4 March 2014, the matter was heard in his absence.

The relationship

1. The parties commenced a relationship in about 1997 and were in an on/off relationship for about six years, but did not cohabit on a full time basis during their relationship. The mother acknowledges that during the early part of their relationship, the parties smoked marijuana together.

2. The child was born in February 2003, and this was about the time that the parties’ relationship ceased.

After the end of the relationship

1. Following separation, the child and the mother’s daughter from a previous relationship (now an adult) spent time with the father on alternate weekends in the Newcastle area.

2. In about late 2003, the mother moved with her two daughters to Queensland to be closer to family supports.

3. In about 2004, the father commenced the first set of parenting proceedings in the Federal Magistrates Court, as it then was.

4. In about mid-2005, the mother returned with the child and her elder daughter to New South Wales (following successful Court action by the father). The mother appealed the decision in respect of relocation back to New South Wales but was unsuccessful.

5. On 2 June 2005, Orders were made in the Federal Magistrates Court, as it then was, in summary as follows:

   a)That the child to live with the mother;

   b)That the mother and the father to have joint responsibility for the child’s long-term care, welfare and development;

   c)That the child spend time with the father at times agreed between the parties, and failing agreement:

   i)Until the child commences school, from Thursday 12.30 pm to Sunday 12.30 pm each alternate weekend;

   ii)Once the child commences school, from Friday 3.00 pm to Sunday 3.00 pm each alternate weekend;

   iii)At times on special days;

   iv)For one half of school holiday periods commencing in the December 2005 school holiday period; and

   v)Telephone contact each Wednesday between 5.00 pm and 6.00 pm;

   d)That at all contact visits with the child the father be accompanied by a responsible adult who, in the event of the father suffering an epileptic fit, be responsible for the safety and wellbeing of the child;

   e)That the father and any accompanying adult be restrained whilst the child is in his care, on a without admissions basis, from drinking alcohol to excess, from taking illegal drugs, from engaging in illegal activity or from bringing the child into contact with persons taking illegal drugs or engaged in illegal activities; and

   f)That the parties each be restricted to continuing to live within a radius of 250 kilometres from a particular post office – Suburb A in the father’s case and Newcastle in the mother’s case.

6. Since the making of the Orders in June 2005, the child spent time with the father in accordance with those Orders until about mid-2011.

7. From about 2010, the child has attended school at B School.

8. During the 2011 mid-year school holidays when the child was spending time with the father in the Newcastle area, the child telephoned her mother and asked to be returned into the mother’s care. The mother says the child reported being smacked by the father’s then partner, not having her own bed to sleep in, the father smoking marijuana and appearing to sell marijuana from his home.

9. The mother sets out word-for-word passages of conversations in her affidavit that she says she and the child had, and also as between her and the father and his partner.

10. On 17 July 2011 the mother collected the child from the father’s home. The child told the mother that she did not have her own bed to sleep in at the father’s home and that there were cockroaches everywhere. A short while later the child said:

    … He has a bottle and puts a hose in the side and it does a sound like bulbba bulbba bulbba. He smokes in the laundry and blows it out the window.

11. From July 2011 until early 2012, the father did not spend time with the child.

12. On 17 October 2011, the parties attended a private mediation but were unsuccessful in settling the matters in dispute between them.

13. In late October 2011, the mother says that a news story came onto the television with pictures of a “bong” and that the child said, words to the effect, that it was like what her father has “but his isn’t for drugs his is just for smokes” and that she has to knock on the laundry door, wait for the father to blow the smoke out the window and put the “bottle” away before he opens the door so she can go out into the backyard.

14. In early November 2011, the father called the mother wanting to spend time with the child in Sydney on the Sunday of the upcoming weekend. The mother told the father the child was available on Saturday morning but not on Sunday, but the father was unhappy with this and he screamed at her over the telephone.

15. Later in November 2011, the father called the mother wanting to spend time with the child in Sydney on the upcoming weekend. The mother declined to let him see the child because of the abuse she had received from him on the last occasion and because of her concerns about his drug use.

16. In December 2011, the mother commenced these proceedings.

17. In mid-January 2012, the mother’s sister says the child reported to her that the father sells “smoke” from his home and that she gets a lot of kittens because one of the men who comes to the father’s home to buy “smoke” gives her a new kitten as her other kittens keep getting stolen.

18. In late January 2012, the child told the mother about having many kittens at the father’s home and said that:

    Well, Dad sells his smoke and somebody knocks on the door like every five minutes and they have all sorts of stuff and this one guy always has kittens so he gives them to me.

    … Do you know Dad takes them into the kitchen and sells the smoke in the kitchen and I’m not allowed to go in there

    The child said she knew what was happening in the kitchen because:

    … I just say I need a drink or I need to feed the cat or something and just go in and you know the bit of gold paper at the top of your cigarette packet… he wraps it up in that.

19. Shortly after this, the child repeated that the father sells “smoke” in the kitchen of his home in front of the mother and her partner.

20. On 28 February 2012, interim Orders were made by consent by Federal Magistrate Henderson, as she then was, suspending the previous Orders of June 2005, and pending further order, for the child to live with the mother and spend time with the father each alternate Saturday for a three hour period at a play centre in Suburb A, supervised by the mother. The Orders also provided for the child to have telephone contact with her father each Wednesday and Sunday nights.

21. In March 2012, the child told the mother that the father and his then partner sell “twennyfivers” from their home. She explained to the mother that:

    … He puts it on the scales and wraps it up and sells it to his customers. Its called a twennyfiver. Sometimes the people smoke it there and other times they take it home.

    The child said that “they have lots of friends who come over and buy it and the friends pay $25.00 for a smoke”.

22. From late March to July 2012, the child spent no time with the father, but continued to speak to him by telephone two or three times per week. The mother says she stopped facilitating the father’s time because of what she says was his aggressive behaviour towards her.

23. On 30 April 2012, Federal Magistrate Henderson, as she then was, made Orders for the appointment of an Independent Children’s Lawyer to represent the child and for the parties do all things to enrol at D Contact Centre. Her Honour also made interim Orders by consent for the child to spend time with her father each alternate Saturday at the contact centre, on a supervised basis.

24. In October 2012, Federal Magistrate Henderson, as she then was, adjourned the proceedings to allow the father to continue his contact centre time and to progress the father’s treatment of his marijuana use.

25. Since about July 2013, the father has missed contact centre visits with the child. The mother notes three occasions in particular – one in July, one in August and one in November 2013. The contact centre staff contacted her on these occasions, informing her that the father had not attended and to come and collect the child.

26. On 16 August 2013 the proceedings were transferred to the Family Court.

27. Since about August 2013 the father stopped telephoning the child, despite being able to do so twice per week pursuant to the Court Orders. Later that month, the mother found the child upset and crying because the father had not telephoned her. The mother suggested the child call her father but the child said she did not want to.

28. During August and September 2013, there was no telephone contact between the child and the father.

29. In October 2013, the child telephoned her father to say hello. The mother helped facilitate the call but then left the child in privacy initially. She later overheard the child saying to her father on the telephone that it would be best for visits to occur “in the contact centre”.

30. In November 2013, when the father failed to attend at the contact centre to spend time with the child, the mother says the child cried upon leaving the centre.

31. On Christmas Day 2013, the mother says the father failed to contact the child. The mother suggested the child call her father but each time she suggested this, the child said “I will later”, or words to that effect.

32. On 18 January 2014, the mother underwent a random urinalysis drug test at the request of the Independent Children’s Lawyer and her test results were negative. Neither the mother’s solicitors nor the Independent Children’s Lawyer have received test results as requested from the father.

33. On 28 January 2014 the father filed a Notice of Discontinuance and, noting the father’s discontinuance in the substantive proceedings, the matter was listed for an undefended hearing.

34. On 23 February 2014, the mother received a letter from a coordinator of D Contact Centre advising that there was an incident during contact between the child and the father at the centre on 18 January 2014. The coordinator reported that the father said he would not be returning to the centre for any future visits and informed the mother of a “considerable number of incidents with [the child]’s father, where it has been necessary for staff to intervene and stop inappropriate behaviour by her father towards [the child]”, and that despite the child enjoying seeing her father, “she struggles with his behaviour and then attempts to manage him in a more adult way, having to take responsibility to try and control his behaviour.” The coordinator noted the centre staff having ongoing concerns regarding the father’s inappropriate and sometimes abusive behaviour, and that future scheduled visits would be suspended. The centre raised concern for the child’s psychological wellbeing in continuing contact with her father.

35. The contact centre had sent a letter to the father dated 23 January 2014 advising him that the centre was cancelling all future scheduled visits due to his behaviour.

36. On 25 February 2014, there was no appearance by or on behalf of the father when the matter was before the Court. Orders were made discharging a previous Order that the father be personally served with the Orders of             28 January 2014, together with a letter informing the father the undefended hearing would proceed on 4 March 2014 in his absence. An order was made for substituted service upon the father via his sister by prepaid post.

37. On 25 February 2014, the mother’s solicitor caused a copy of the Orders of      28 January 2014 to be sent to the father’s sister by prepaid post, together with a covering letter. The prepaid envelope was delivered to the father’s sister’s address on 26 February 2014.

38. On 4 March 2014, the matter came before the Court for an undefended hearing and the father failed to appear. The matter proceeded to be heard in his absence and Judgment was reserved.

39. Currently, the child lives with the mother and her partner, Mr S, in Suburb E. The mother’s partner works to support the family. The child continues to attend at B School in Suburb A, and from the evidence before the Court, appears to be doing average at school.

The mother’s proposal

1. The mother seeks orders that, in summary, provide:

   a)That previous Orders in relation to the child be discharged;

   b)That the child live with the mother;

   c)That the mother have sole parental responsibility of the child;

   d)The father and members of his family be permitted to attend any and all school functions and events that a parent would normally be invited to attend;

   e)The father be able to obtain information from the child’s school and medical practitioners;

   f)The parties keep each other advised of their addresses and contact telephone numbers; and

   g)The parties communicate by SMS text message, save for in the event of an emergency.

2. The mother seeks no order in respect of the child spending time with the father, or communicating with him.

3. The Independent Children’s Lawyer supports the orders proposed by the mother and says they accord with the child’s current wishes.

The Family Consultant’s Report

1. A Family Report was prepared for the Court’s assistance on 12 July 2013 by Family Consultant Mr F. The report is based on interviews with and observations of the parties, the mother’s partner and the child in late June and early July 2013. The consultant also had reference to documents filed in the proceedings and the Orders of June 2005.

2. The consultant found the child to present as having a maturity beyond her then 10 years of age, and found her to be “very communicative and very self-assured”. Her behaviour and development the consultant found to be of a “good age appropriate standard”.

3. The consultant found the child to have strong and functional attachments to her mother and her step-father. It was clear to the consultant that the child enjoys a “very loving family environment”.

4. In respect of her attachment with the father, the consultant viewed the child to also have a “very strong and functional albeit, a propensity for [the child] to be somewhat protective of her father was noted”. They were seen to enjoy a very mutually loving relationship.

5. The consultant noted that the child has enjoyed considerable and unsupervised time with her father from an early age until mid-2011at his home. Their time together was unilaterally stopped by the mother following reports the mother says the child made in respect of her time at the father’s home. The father has denied the allegations, but the consultant viewed that the child appeared during interview to somewhat corroborate the mother’s version of events and the living circumstances at the father’s home. The consultant viewed the mother’s concerns for the child’s welfare in her father’s care to be “reasonably founded and corroborated”, and, indeed, part of her duty as a parent to ensure her daughter is safe from harm.

6. The father reported to the consultant that he has used marijuana since about the age of 15 years, which he says is to control his epileptic fits, and that he will not give it up. The father does not view his drug use or domestic circumstances as impeding his capacity to parent the child. The consultant found the warm and loving father-daughter relationship to provide some support to this contention.

1. The consultant noted, at the time of his interview in July 2013, that the father had recently ended his long-term relationship with his then partner, Ms R, and that there was no chance of reconciliation between them. The father reported his partner taking out an Apprehended Violence Order against him. 

2. The consultant found the child to, overall, have a high level of personal adjustment and assessed that the parenting by both the mother and the father has been of a good quality.

3. As to what time the child is to spend with the father, the consultant viewed that this should be determined having regard to the father’s parenting capacity balanced against ensuring the child’s safety in his care. The consultant noted that many parents are able to successfully parent children despite adverse personal circumstances, such as substance abuse. He was of the view that:

   Although [the father]’s chronic and ongoing use of marijuana is significantly less than ideal and so may be his domestic circumstances … there is no particular evidence that [the father]’s substance abuse or that his domestic circumstance have, over a long period of time, adversely affected [the child]’s emotional and personal development or placed [the child] in an abusive or dangerous situation.

   Further, the consultant noted there to be no suggestion the father has ever or would ever in the future intentionally harm the child.

4. The consultant viewed that unless the Court deemed it necessary to protect and ensure the child’s safety, orders along the lines of those sought by the mother “would likely be over restrictive of the father / daughter relationship”. Given the father and the child have a close and loving relationship, the consultant was of the view that if orders that are unnecessarily restrictive are put in place it “might, as [the child] moves into adolescence, lead to a situation where she may become resentful of the parental circumstances that have been imposed upon her.”

5. The consultant therefore made the following recommendations, in summary:

   a)That it would be in the child’s best interests to spend only ongoing supervised paternal time if the Court finds that unsupervised time with the father would place the child in “a dangerous situation and / or at risk of harm”.

   b)Failing a finding that the child would be at risk of harm or in a dangerous situation in the event of unsupervised time with her father, it would be reasonable for the child to spend unsupervised time with the father at his home “subject to the father maintaining the privacy of his marijuana use and aspects to his lifestyle that would be unsuitable for exposure to a ten year old girl”. Restrictive orders could be put in place in this regard.

   c)If the Court were to find the father is unable to keep his marijuana use private, together with adverse aspects of his lifestyle, from his daughter at his home, it may be appropriate for unsupervised paternal time to occur not at the father’s home, and their time not include overnight time.

The Issues for Determination

1. The primary issue in this case is what orders are now in the best interests of the child.

2. The relevant principles in relation to parenting proceedings are well settled: see Goode & Goode [2006] FamCA 1346. The Full Court in Goode (supra) provided a “framework” as to how applications for parenting orders are to be determined.

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

4. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.

6. The presumption does not apply in respect of final proceedings where:

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

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

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

8. The High Court in MRR & GR [2010] HCA 4 has affirmed the legislative “pathway”.

9. These proceedings were commenced prior to 7 June 2012.

Best Interests of the children: The Additional Considerations: s 60CC(3)

1. The Court has had regard to each of the additional considerations set out in section 60CC(3) of the Act. The relevant considerations are set out below.

Views and maturity of the child

1. The Family Consultant in interview in mid-2013, when the child was 10 years old, found the child to be mature beyond her years and “very confident, articulate and communicative”. The child had reported enjoying visits to her father’s home but had also reported the allegations corroborative of those of the mother. She reported enjoying her time with the father at the contact centre but stated the time they spent together went too quickly.

2. In mid-2013, the child stated an express wish to resume visits at her father’s home “when he has a house and ‘gets his stuff’ (furniture).” She stated that her father lives on his own and she would like to keep him company and that she calls him every night in this regard. The consultant found the child to be aware of her father’s circumstances and somewhat protective towards him. Since that time, the mother has given evidence that the child has been disappointed and upset when the father has not telephoned her at scheduled times, when he has failed to attend for time at the contact centre and when she has suggested the child telephone the father on occasion the child has not wanted to or been dismissive of the suggestion.

3. At the hearing, the Independent Children’s Lawyer indicated that she had recently met with the child and that the child’s wishes accorded with the orders sought by the mother. The Independent Children’s Lawyer submitted that the orders proposed by the mother were in the child’s best interests at this time.

4. It is the Court’s view that some weight should be placed upon the views of this 11 year old child, especially in light of the Family Consultant’s uncontested perception that the child is mature beyond her age.

Nature of the child’s relationship with her parents and other significant persons

1. The Family Consultant found the child to have a “very loving family environment” in her mother’s home. The consultant found the child to have a strong and functional attachment with the mother and her step-father.

2. The consultant also found the child to have a warm and loving relationship with her father. She enjoys seeing him and spending time with him. The consultant observed the child to run up to her father and give him a warm embrace at the start of their observation together, to hold his hand in the playroom and to warmly embrace and kiss him at the end of their observation time together. Their relationship the consultant found to be a “very mutually loving relationship”, but the child is also somewhat protective of her father.

3. There is evidence from the contact centre staff, however, that the father has acted inappropriately towards the child during recent contact visits and as such the Centre ceased facilitating his time with the child in early 2014. The coordinator of the Centre noted concerns for the child’s psychological wellbeing, despite observing the child enjoying spending time with her father.

4. The child has a step-sister, the mother’s elder daughter of a previous relationship. Whilst her step-sister does not currently live in the mother’s home, the child has a relationship with her and sees her at times whilst at the mother’s home.

5. The father’s previous partner Ms R no longer forms part of the child’s family matrix, with the father and Ms R ending their relationship in about 2013.

Willingness and ability of the child’s parents to facilitate a close and continuing relationship between the child and the other parent

1. Both of the parents accept the child has a loving relationship with the other parent. The father acknowledges that the mother is a very good mother.

2. The Family Consultant found the mother’s allegations in respect of her reason for unilaterally suspending the child’s time with the father to be corroborated by the child’s own reports. The consultant formed the view that the mother’s concerns were genuine and reasonable and her actions were justified as part of her parental duty in protecting the child from harm.

3. The mother maintains concerns that the father will not change his lifestyle in respect of his drug use and related activities.

4. Provided certain safeguards are in place to protect the child from being harmed in the father’s care, both parents have a willingness and appreciation of the importance of the child’s relationship with the other parent.

The likely effect of any change in the child’s circumstances

1. This factor is relevant in respect of whether the child should spend time with her father, and if so, whether the time should continue to be supervised. The child’s time with her father supervised at the contact centre was suspended in January 2014. There is no evidence before the Court that the child has spent time with or had telephone contact with her father since this time.

2. Whilst the child has appeared to enjoy spending time with her father in the past, the father has disengaged in these proceedings and appears not to have made endeavours to maintain his relationship with the child recently.

3. The current circumstance is that the child is not spending time with her father and the mother’s proposed orders would leave this issue unresolved.

4. The Family Consultant was of the view that the child should spend some time with her father provided she is not placed in any risk of harm, and their time should not be unnecessarily restricted as this may adversely affect her in her adolescent years in that she may become resentful of the parental circumstances imposed upon her.

5. If the Court were satisfied the child’s time with her father should be resumed, there needs to be consideration as to what protective arrangements should be put in place to ensure the child is not exposed to any harm in his care. As the father has disengaged in these proceedings and has not complied with drug testing to date, the Court is unable to assess what risk of harm may arise in the father’s care and exactly what protective measures may need to be put in place. The Court is not able to be satisfied as to the appropriateness of the father’s residence in respect of the child spending overnight time with him, or whether the time should be restricted to day time and not take place at his residence. There are too many unknowns which cannot be answered in light of the father discontinuing in the proceedings.

6. Whilst the Family Consultant was of the view it may benefit the child to resume time with her father (subject to protection from any risk of harm), the Court cannot be satisfied the child would be safe to do so on the evidence available. However, the child is of an age that any concerns that arise out of her time, if any, with the father can be conveyed by her to the mother with the mother then able to deal with such concerns in terms of appropriate conditions that she may impose on the father’s time with the child. An order to facilitate this is appropriate.

Practical difficulty and expense in the child spending time with and communicating with a parent

1. No particular difficulties are raised in this regard. This is despite the child in the past having spent alternate weekend time with the father in the Newcastle area.

2. If the father’s time were to resume with the child, it appears some practical difficulties and expense would arise at least from the travel involved between the parent’s residences to facilitate any time. The parties live some distance apart - the mother and the child live in the western Sydney area and the father, as far as the Court is aware, in the Newcastle area.

3. Alternatively, if supervised time were to resume, the parties would either need to agree upon a family member or friend to facilitate such time, or find a contact centre other than D Contact Centre to facilitate such time, or involve a private supervision service, which would be at some considerable cost.

4. The mother should be empowered to address these issues in terms of the father’s time, its facilitation and appropriate conditions for time.

Capacity of each parent and other significant persons to provide for the child’s needs, including emotional and intellectual needs

1. The Family Consultant viewed both parents as having provided “good quality” parenting to the child, viewing both parents as capable, other than the issues relating to the father exposing the child to his drug use and non-conventional lifestyle.

2. The consultant observed the father to respond to the child in “an appropriate and child focused manner”, but also observed the father in play with the child to ask some emotionally-laden questions.

3. The primary concern is the father’s chronic and ongoing drug use. The father asserts he will not cease to use marijuana as a means to treat his epilepsy, which would inevitably put the child at some risk if the child were to spend time with him. Whilst the consultant acknowledges that this is significantly less than ideal, he found no evidence that the father’s drug use or domestic circumstances have, over a very long period of time, adversely affected the child’s emotional or personal development or placed the child in an abusive or dangerous situation. Further, the consultant found no indication the father has ever or would in the future intentionally harm the child.

4. However, the contact centre staff have observed inappropriate behaviour by the father leading to their suspension of the father’s time at D Contact Centre. They have raised concerns of psychological harm by the father upon the child.

5. The father’s disengagement in these proceedings and not making any attempts to resume his relationship with the child do not show him to be focused on the child’s emotional needs.

Attitude to the child and responsibilities of parenthood

1. The Family Consultant viewed the mother’s concerns for the child’s welfare in the father’s care as genuine and reasonable and justified her suspending the father’s time. There was corroboration of her concerns in respect of the child’s reports to the consultant. The consultant viewed her actions as protective and in line with her parental duties.

2. The father’s drug use and exposing the child to same is of concern. Whilst the Family Consultant observed that parents with adverse personal circumstances such as substance abuse can successfully parent children, it appears the father has not been able to keep the matter private from the child when the child has been in his care. It appears to have not adversely affected his parenting capacity, nor impacted upon the child’s development, but it is not to the father’s credit that he has exposed the child to this matter.

3. It would be appropriate for the father to be restricted in the future, if the child is to spend time with him, so as not to expose the child to his drug use. Such a condition may be imposed by the mother.

4. The mother has given evidence that the father has missed contact centre visits since July 2013 and has at times not telephoned the child in accordance with scheduled calls as per the previous Orders. This has created upset for the child. Further, the contact centre has stopped facilitating supervised time as of the end of January 2014. If the father is not able to prioritise his relationship with the child, it is not in the child’s interests to be anticipating to spend time with or communicate with her father when he may not take up the opportunity and disappoint her.

5. In light of recent events, the Court is not minded to put in place orders that may create some anticipation in the child that she will see her father when there is no evidence that the father will do so.

Family violence

1. There are no allegations of family violence between the parents in this matter.

2. It appears the father’s previous partner Ms R has in the past struck the child whilst the child has been spending time at the father’s home. The father has since separated from that partner and so any future concerns in respect of Ms R are overcome in this regard.

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

1. The father made a comment to the Family Consultant that these proceedings would be “the last court case” that he would be involved in in respect of the child’s parenting. Therefore, whatever orders are made, it appears from the father’s perspective that he will not instigate any further proceedings.

2. If orders are put in place for the child to spend time with the father and the mother were to form the view at a point in time that the child was at again exposed to some risk of harm in his care, it appears that the mother would act protectively, which may lead to her instigating further proceedings to change the parenting arrangements so as to remove the child from any such risk of harm. However, if orders are made providing the mother to place appropriate conditions upon the father’s time with the child, if any such time is to occur, this may reduce the likelihood of the mother bringing further proceedings.

3. The Court is minded to make orders that provide certainty to the mother and the child as to future arrangements should the father re-engage with the child.

The Primary Considerations: s 60CC(2)

1. The primary considerations are:

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

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

2. In applying the considerations set out in this subsection, the Court is to balance these considerations.

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

1. In Mazorski & Albright [2007] FamCA 520, Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:

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

2. It is clear that the child would benefit from having a relationship with her father, provided that she is protected from any harm to which she might be exposed to in the father’s care. The mother can facilitate this appropriately.

3. However, there is no evidence before the Court in light of recent events that the father would be willing to take up the opportunity to spend time with or communicate with the child if positive orders were put in place for him to do so.

Section 60CC(2)(b) – need to protect

1. This is the crux of this case other than the father’s attitude in respect of maintaining a relationship with the child. If the father was willing to maintain a relationship with the child, and provided protective measures imposed by the mother were put in place so that the child would not be exposed to any adversities in respect of the father’s drug use and lifestyle, it would be in this child’s best interests to continue a relationship with her father, particularly as she is soon to embark on adolescence.

2. It appears the father/daughter relationship and the child’s wellbeing has endured the father’s ongoing drug use in the past. However, the father was not at times diligent in ensuring the child was not exposed to his drug use or this aspect of his lifestyle.

3. The contact centre staff has raised concerns in respect of the father’s inappropriate behaviour towards the child during supervised time potentially causing her psychological harm. The father’s behaviour may be explained to some degree by the unnatural and restrictive environment of a contact centre. His behaviour may be not as concerning if it is to take place in a more natural setting, however, the Court cannot be satisfied of this and needs to balance the benefit of the child’s relationship against the need to protect the child from harm.

4. The Family Consultant found the child to be mature beyond her years and very confident, articulate and communicative, which would likely assist in her raising any concerns in respect of the father’s care with her mother, if they arise, and as she has done in the past at a younger age.

5. Whether the father will take up the opportunity to spend time with the child if any orders are put in place for him to do so is problematic. The Court is mindful to not place the child again in an expectant situation where she may be disappointed by her father’s failure to maintain their relationship and, in any event, cannot identify with any particularity the risks of harm the child may be placed in in the father’s care given his failure to undertake drug testing and disengaging in these proceedings. The mother, no doubt in consultation with the child, will be able to agree to time between the father and child on such terms as she may consider appropriate.

The presumption of equal shared parental responsibility

1. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility. That presumption may be rebutted in circumstances set out above.

2. The mother is seeking an order for sole parental responsibility. It appears that in recent times the mother has felt threatened by the father and has found him to be aggressive and abusive towards her. The parties also have had communication difficulties in the past. There is no evidence of the parties having communicated in respect of matters regarding the child’s health, education and other important matters.

3. The father has disengaged with the child and these proceedings.

4. Overall, the Court is satisfied that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for the child. Such an arrangement, as a consequence of the matters discussed above, would be simply unworkable. The mother is the one actively engaged in the child’s life and can keep the father informed of important decisions made. She should have sole parental responsibility.

5. As the Court will not be making an order for equal shared parental responsibility, it is not required to consider the matters set out in s 65DAA. 

What time, if any, the child is to spend with her father?

1. Having regard to the father’s disengagement with these proceedings and spending no time with the child since early 2014 (as far as the Court is aware), the Court cannot be satisfied he would take up the opportunity to spend time with the child if any positive orders were put in place facilitating him to do so.

2. If the father’s time with the child were to resume, it is difficult to, with any precision, pinpoint what protective measures would need to be put in place to ensure the child is protected from any physical or psychological harm in the father’s care. Whilst the Family Consultant formed the view that it would be in the child’s best interests to maintain a relationship with her father, provided she was protected from any harm, in light of their very mutually loving relationship, this has to be balanced against the risk of harm, which is difficult to assess until the strength of any re-engagement with the child is known.

3. It is clear that the father is not willing to cease his marijuana use and therefore there appears to be some ongoing risk of harm that the child will be exposed to his drug use and/or his lifestyle in this regard, if time were to resume.

4. In light of the child going into adolescence, her current wishes and her maturity beyond her years, the Court is not minded to make any positive order for the father’s time with the child to resume.

5. The Court cannot be satisfied that the child would be safe from any risk of physical and/or psychological harm in his care. In particular, other than the ongoing concerns in respect of the father’s drug use, the Court is not minded to put in place orders that the father may not comply with and which may therefore cause some disappointment to the child.  The mother will, if she considers it appropriate, facilitate the child’s time with the father and upon conditions she deems appropriate.

6. For the reasons set out, Orders are made as set out at the forefront of these Reasons for Judgment.

I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 11 April 2014.

Legal Associate:      

Date:    11 April 2014