Whitlock & Howerton
[2023] FedCFamC2F 583
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Whitlock & Howerton [2023] FedCFamC2F 583
File number(s): TVC 897 of 2021 Judgment of: JUDGE JENKINS Date of judgment: 24 May 2023 Catchwords: FAMILY LAW – parenting – relocation – one child aged 8 – child with autism spectrum disorder – severe developmental delay – child requires speech therapy, physiotherapy and occupational therapy – child has behavioural issues – living with the father in City B, South Australia – mother lives in Town C, New South Wales – mother has moved multiple times during proceedings – both parties have a history of illicit substance use – father still using cannabis – allegations of family violence – allegations of excessive discipline – risk to the child – father has difficulties with reading and writing – ability of parties to meet the child’s needs – commitment to parenting – relocation of child not allowed – injunctions with respect to family members Legislation: Family Law Act 1975 (Cth) s 60CA, 60CC Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Godfrey & Sanders [2007] FamCA 102
Division: Division 2 Family Law Number of paragraphs: 109 Date of last submission/s: 5 May 2023 Date of hearing: 1-5 May 2023 Place: Adelaide Counsel for the Applicant: Ms Damon Solicitor for the Applicant: Nicholas James Lawyers Counsel for the Respondent: Ms Betro Solicitor for the Respondent: Tindall Gask Bentley Counsel for the Independent Children’s Lawyer Mr Praolini Solicitor for the Independent Children’s Lawyer Legal Services Commission ORDERS
TVC 897 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WHITLOCK
Applicant
AND: MR HOWERTON
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
order made by:
JUDGE JENKINS
DATE OF ORDER:
24 MAY 2023
THE COURT ORDERS THAT:
1.All previous Orders be discharged.
2.The father have sole parental responsibility for the child X born 2014 save that prior to making any long term decisions for X, including changes to his school or major medical decisions, the father notify the mother in writing prior to that decision being made, consult the mother as to her views on the decision and endeavour to reach an agreement with the mother. In the event the parties are unable to agree the father be thereafter at liberty to make that decision without the consent of the mother.
3.X live with the father.
4.X spend time with the mother as follows:
(a)During the school term, on the weekend of the fifth week of the school term, from the conclusion of school Friday until the commencement of school Monday with such time to take place at City B;
(b)For 65% of each school term holiday period at times to be agreed between the parties and failing agreement as follows:
(i)During all short school holidays with such time to commence on the first Saturday of the school holiday period, and conclude on the second Wednesday of that school holiday period (i.e. - 11 consecutive nights);
(ii)During long school holiday periods:
A.In the 2023/24 long holidays and each alternate year thereafter, for the first 28 days of the school holiday period with such time to commence on the first Saturday of the school holidays;
B.In the 2024/25 long holidays, and each alternate year thereafter, for the last 28 days of the school holiday period, with such time to conclude on the Saturday immediately before the start of the school term; and
C.At such further or other times as agreed between the parties.
5.In the event the mother is unable to spend time with X in the terms set out herein, the mother shall provide to the father written notice of the same at least 28 days prior to the commencement of that period.
6.The arrangements for X spending time with the mother pursuant to paragraph 4 herein shall be as follows;
(a)The mother shall book and pay for all flights for herself and X at the commencement of time; and
(b)The father shall book and pay for all flights for himself and X at the conclusion of X’s time in the mother’s care.
7.Handovers, which do not take place at school, take place as follows;
(a)At the commencement of X’s time with the mother, by the mother travelling to V Airport to collect X; and
(b)At the conclusion of X’s time with the mother, by the father travelling to collect X from the D Airport.
8.X communicate with the mother via zoom, or such other video chat service as the parties may agree in writing from time to time, on three (3) occasions each week as agreed, or failing agreement, at 4.30pm (SA time) on each of Monday, Wednesday and Friday.
9.Notwithstanding any other orders, X communicate with the parent whose care he is not in on special occasions, via zoom, or such other video chat service as the parties may agree in writing from time to time, as follows NOTING all times are SA time:
(a)On Christmas Day, at 10.00am;
(b)On New Year's Day at 10.00am;
(c)On Father's Day/Mother's Day at 10.00am; and
(d)On X’s birthday, and each of the parties' birthdays, at 10.00am if a non-school day, or 6.00pm if a school day.
10.The father shall do all things and sign all documents as may be necessary to;
(a)Engage a counsellor to assist in improving the relationship between the father and X and follow the reasonable recommendations of such counsellor, including remaining engaged with such counselling as recommended; and
(b)Obtain a mental health care plan from his GP, and subsequently engage with a psychologist and follow the reasonable recommendations of such psychologist, including remaining engaged with such treatment as recommended.
11.The parents shall:
(a)Engage with services to support their cessation, and abstinence from, illicit drug use for such period as may be recommended by such support service;
(b)Remain compliant with any mental health treatment plan provided for by their treating mental health practitioner, including but not limited to the attendance at appointments, and compliance with medication;
(c)Communicate in relation to the care, welfare, and development of X by SMS text message or telephone;
(d)Immediately advise the other parent in the event of any injury or illness suffered by X which requires treatment at a hospital, and thereafter each parent be at liberty to attend at any facility where X is being treated or has been admitted;
(e)Be at liberty to attend upon and make enquiry of any medical practitioner, dentist, counsellor, therapist, allied health practitioner, or NDIS professional upon who X ordinarily attends from time to time and obtain copies of all records and/or reports relating to X, with production of these orders to be sufficient authority to do so;
(f)Be at liberty to attend at X’s sport's days, school concerts, parent/teacher nights and other events to which parents are ordinarily invited PROVIDED THAT the parents shall not approach one another unless expressly invited by the other to do so;
(g)Be at liberty to obtain copies of all school newsletters, reports, photographs and the like at each parent's sole expense with production of these orders to be sufficient authority to do so; and
(h)Keep each other advised of a mobile telephone number on which they can be contacted for the purposes of the arrangements prescribed by these orders and X’s care, welfare, and development generally and advise the other of any change to these details within 48 hours.
12.Each party is restrained by injunction from:
(a)Physically disciplining X;
(b)Using illicit substances, or consuming alcohol to excess, within 24 hours of X coming into their care or while X is in their care;
(c)Consuming medicinal cannabis other than as prescribed by a doctor in accordance with the prescription;
(d)Knowingly allowing X to be exposed to drug use, paraphernalia or from remaining in the vicinity of any person under the influence of illicit substances;
(e)Discussing these proceedings or the allegations made in these proceedings with X or permitting any other person to do so;
(f)Discussing X’s care arrangements with him (beyond the need to explain the nature and effect of these Orders), or from exposing X to discussions relating to his care arrangements;
(g)Abusing, denigrating, or criticising the other party to or in the presence or hearing of X or allowing any other person to do so; and
(h)Leaving X in the care of Mr E or Mr F without another adult present.
13.The mother and father have leave to provide a copy of these orders to the following:
(a)X’s school;
(b)The NDIS;
(c)X's allied health professionals;
(d)X's paediatrician.
14.All extant applications be dismissed and the matter removed from the active and pending list.
15.The appointment of the Independent Children's Lawyer be discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS
INTRODUCTION
This is a matter involving one child, X, aged eight.
The applicant mother, Ms Whitlock, is currently 38 years old. She has not re-partnered.
The respondent father, Mr Howerton, is currently 41 years old. He has also not re-partnered. The father has an adult child from a previous relationship, Mr G.
X currently lives with his father in City B, South Australia.
The mother lives in Town C, New South Wales. Her application is to have X relocate to live with her there.
The father seeks orders for X to remain living with him in City B.
Each party proposes identical orders that X spend time with the other parent for 65% of the time in the school holidays.
At the conclusion of the evidence, the Independent Children’s Lawyer (“the ICL”) supported X remaining in the father’s primary care.
BRIEF HISTORY
The parties commenced a relationship in or about 2009 and separated in or about September 2018.
Both parties were users of illicit substances at the commencement of their relationship.
The parties initially lived in Town H but moved to the Region J to move away from “peers and friends” who were using drugs.
In 2014 the parties moved to City B shortly after X was born. The parties recommenced using illicit substances in 2015.
Both parties continued to use illicit substances on a regular basis during the relationship.
After separation X lived with the mother, however it appears her use of illicit substances worsened in 2020 such that in or about late 2020 the father took over X’s primary care.
The mother relocated to Queensland in mid-2021. In her Trial affidavit she says she “fled” City B but in her cross-examination she says she needed to leave to “get better”.
Despite this, the following month the mother returned to City B and unilaterally removed X to City K, Queensland. The mother subsequently filed her application in these proceedings on 12 July 2021.
On 18 August 2021 orders were made for X to be returned to the father’s care in City B. He has remained living there ever since.
In mid-2021 the mother relocated to Melbourne, Victoria. On 21 February 2022 she sought orders that X live with her there.
In mid-2022 the mother moved to Adelaide and in her affidavit filed 13 September 2022 she indicated her intention to stay in Adelaide to be closer to X.
However, in her Trial affidavit filed 30 March 2023 she informs the Court that she relocated to Town C two months later. In any event, she remains living there and now seeks that X live with her in that location.
EQUAL SHARED PARENTAL RESPONSBILITY
The mother has raised serious concerns about the father’s parenting and the welfare of X in his care, including allegations of family violence. Despite this, she proposes orders that the parties have equal shared parental responsibility for X.
The father’s position was that whoever has residence of X should have sole parental responsibility.
The ICL now proposes the father have sole parental responsibility.
Having heard the entirety of the evidence, I find that it would not be in X’s best interests for there to be an order for equal shared parental responsibility. The parties are completely unable to communicate or to make decisions together in any meaningful way. I find that it would be in X’s best interests for his primary carer to have sole parental responsibility but for that parent to notify the other and seek their input before making any major long term decisions for X.
Accordingly I do not need to consider whether there should be an order for equal time or even substantial and significant time, nor whether these arrangements are reasonably practicable. As such, I am at large to consider X’s best interests.
DETERMINING BEST INTERESTS
Pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”) the child’s best interests are the paramount consideration when making a parenting order.
Section 60CC of the Act sets out the matters to be taken into consideration when determining best interests.
There are two primary considerations, the first of which is that I need to consider the benefit to the child of having a meaningful relationship with each of his parents. Secondly I must consider the need to protect the child from harm.
If there is conflict between those two considerations, then greater weight must be given to the need to protect a child from harm.
THE PRIMARY CONSIDERATIONS
Meaningful Relationship
Ms L, who prepared the Family Report (dated 31 January 2023) in this matter, was of the opinion at paragraph 172 that:
Given [X’s] age and stage of development, it is likely that a positive relationship could be maintained with a non- residing parent in a different State in Australia. The relationship would be maintained by regular telephone/video communication during the week and substantial time during school holiday periods.
I note that the proposed orders provide for this time and in addition the parties have agreed to a mid-term weekend visit.
In my view, the parties’ proposed orders would provide for a meaningful relationship with the other parent, if not an optimal one.
In the case of Godfrey & Sanders [2007] FamCA 102 at paragraph 36, Kay J noted that:
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
Risk
The mother asserts in her Case Outline prepared for Trial that:
[X’s] historic and continued exposeure [sic] to the father’s domestic violence and drug and alcohol abuse places him at a high risk in the father’s care and has had and will contionue [sic] to have a highly detrimental effect on [X].
Nonetheless in final submissions I was not asked to make a finding that X was at unacceptable risk in the father’s care. In any event I have to be satisfied that the orders I make are in X’s best interests, and drugs, family violence and excessive discipline of X are live issues.
Drug Use
The ICL submits, and I accept, that on the evidence the Court ought to be concerned about the current status of both parties’ drug use. Both parties have an extensive history of using illicit substances. Both have criminal records for driving under the influence of drugs and/or alcohol with X in the car. Furthermore, it is not in dispute that the father used illicit substances as recently as April 2022 and the mother in July 2022, and neither party has complied with the most recent order to undergo a hair follicle test within the time frame ordered.
At an earlier hearing I requested the Department for Child Protection (“the Department”) to intervene but they have chosen not to. They did however conduct an investigation and prepare two detailed reports which are now exhibits in this case. I found those reports to be of great assistance in this matter.
In terms of the parties’ evidence, both say they no longer use illicit substances. The father says he has used cannabis for pain for twenty years and now, albeit very recently, has obtained a prescription for medicinal cannabis.
Each party has engaged to some degree with a drug and alcohol service. Whilst the father’s counsellor did not give evidence, the father in his own evidence showed insight into the possibility of relapse and the need to be vigilant. He gave practical examples of tools he has used in that regard. I found his evidence on this point to be credible and persuasive.
This is to be contrasted with the mother who did not acknowledge any real possibility of relapse, if she remained in Town C. Whilst she mentioned some strategies for relapse prevention she did not mention the specific tools as outlined by her counsellor in her evidence, for example mindfulness. I also had reason to question the mother’s commitment to her treatment given her evidence about her engagement with services was inconsistent. In her Trial affidavit she says she “immediately registered for further drug and alcohol counselling through [M Services]”. Yet in her affidavit filed in September 2022 she says she registered with “[N Services]”.
It is submitted for the mother that the Court should be satisfied that she has not used illicit substanes since July 2022 and that even then it was a one off use. She says on the contrary due to the father’s failure to provide hair follicle tests, the Court should be concerned about his ongoing drug use.
However, I am not satisfied on the evidence that the mother has not used illicit substances since July 2022. I only have the mother’s evidence, and the evidence of her psychologist Ms P (which was essentially based on what she was told by the mother) that the mother did not use illicit substances between July 2022, and her clean hair follicle test in December 2022. However I have formed the view that I cannot accept the mother’s evidence on this issue.
Furthermore, the mother’s evidence as to her “one off” use in July 2022 was contradictory. In two affidavits she says a date which was the middle night of the weekend she had X in her care and yet in the witness box she says she used illicit substances on the way to the airport on the following day, after she dropped X back to the father. Furthermore, her drug and alcohol counsellor says she used illicit substances for a three day period not one night. The mother asserts that the counsellor had conceded at least one error in her report so therefore was unreliable but I do not accept such a premise and such a significant discrepancy ought to have been put to her for her comment.
Consequently when the mother says she did not do the hair follicle test in November 2022 for financial reasons, I do not accept her evidence. I also do not accept that she did not do a random urine screen for the Department in September 2022 because she had COVID, especially considering she chose to board a commercial flight the following day. It also appears that despite filing an affidavit in September 2022 stating she was remaining in Adelaide, that having been asked to do a random urine screen that same day, she made an abrupt decision to fly to Town C and live there.
I find that, given the mother visited City B in or about September 2022, which on her evidence was a trigger for her drug use, and that she failed to do both a random urine drug screen and a hair follicle test following that visit, that on the balance of probabilities she used illicit substances during that visit.
In terms of the father, although I cannot make a positive finding that he has used illicit substances on any particular occasion, given his failure to comply with the Court orders for testing, I cannot be satisfied that he has not used illicit substances since April 2022.
I find that based on all of the evidence before the Court there is a risk that both parties are still using or may again use illicit substances in the foreseeable future. However there are certain safeguards in place for X. Firstly if X remains in the father’s care, X’s teachers and treating health professionals provide a protective measure for him. They are closely engaged with X and likely to report any concerns. In terms of the mother, she lives with her mother, Ms Q, who gave evidence that she would report any drug use by the mother to the father’s parents. Whilst in either case the measures are not guaranteed to protect X from harm, they do give the Court a certain level of comfort.
In regard to the father’s cannabis use, his evidence was that he has used cannabis for pain management for about 20 years, following an injury when he was 19 or 20 years old. The father says that he has tried various methods of pain relief over the years, but cannabis was the most effective. Nonetheless, he was criticised for doing so illegally, firstly without a prescription and more recently despite having a prescription, he was smoking cannabis without the use of a vaporiser as per the prescription.
The father has now agreed to an injunction that he only use cannabis as prescribed. His evidence was that he waits for X to go to sleep before he uses cannabis and that he does so outside; albeit the door is open so he can hear X. I am of the view the father would do everything he could to ensure X was not exposed to that smoke or vapour.
In terms of the father’s alcohol use, his evidence is that he drinks mainly on weekends however he conceded drinking two or three beers on at least two of the nights during the hearing and one beer before the Family Report interviews. Whilst it is not ideal that the father appears to rely on alcohol when he is extremely anxious, this is not unusual in our society and I am comforted by his honesty in that regard. The Court would not otherwise have been aware of his alcohol use during the proceedings.
I was not presented with any medical evidence as to the impact of the father’s cannabis use and/or the combination of his use with alcohol on his parenting abilities and/or his mental health generally. The father says if there was a medical emergency he would be able to call an ambulance. I have no evidence either way. However any risk appears to be mitigated by the father’s evidence that he uses cannabis after X goes to bed and it appears to be limited use. This is in addition to the safeguards I have already mentioned. It is also apparent that there have not been any incidents of concern in the father’s care and X is thriving in spite of any such use. This is a matter to which I shall return further in this judgment.
Family Violence
It is common ground there was family violence between the parties during the relationship however there is a dispute as to the extent of that violence.
The father concedes there were arguments and at times he swore at the mother. He also acknowledged for the most part, that although the parties endeavoured to remove themselves from X’s presence, X would have heard the fighting. The father was apologetic that X had been exposed to the parties’ arguments, stating “it was not good enough” and hopes that X has not been permanently affected. The father conceded that he could benefit from a course on family violence as “you can take something out of anything”.
The mother asks the Court to make a finding that she was subjected to physical violence and threats of harm by the father. However her Counsel acknowledged it would be difficult to find any one of the specific incidents alleged by the mother occurred given the inconsistent evidence given by the mother.
The mother’s evidence as to family violence was indeed inconsistent both as to the detail and the timing of particular incidents. These differences arose as and between her application for an intervention order, a document containing a dot point summary for the Magistrate’s Hearing and the application and her affidavit material filed in this matter. It was also clear from the mother’s cross-examination that she was struggling to recall with any specificity when key incidents occurred. I do not propose to go through each of those inconsistencies save to observe that the more serious allegations, in particular those involving the mother being held up by her throat against a fence and the father throwing an axe at her, were only included in her Trial affidavit, leading to the possibility the additional details are a recent invention.
Counsel for the mother submits, and I accept, that victims of family violence are often poor historians and that in addition the mother’s evidence would have been impacted by her heavy drug use at the time. However where the Court is asked to make a finding of such serious violence the Court must apply the Briginshaw test, a principle which arose from the case of Briginshaw v Briginshaw (1938) 60 CLR 336. That is, the more serious the allegation the more substantial the evidence that is required to make a finding on the balance of probabilities.
In this case I not only have the mother’s inconsistent evidence but there is also the mother’s failure to produce the threatening text messages. The mother’s reason for not producing the texts is that they were contained on a phone which was in a storage facility in Adelaide. I do not accept the mother was incapable of getting somebody to retrieve the phone from storage. I consequently draw an inference that the text messages either do not exist or would not have corroborated her version of events.
Counsel for the mother says that the mother’s assertion that the father subjected her to physical violence is corroborated by X in the Family Report. It was submitted that X was a reliable historian however it is apparent that some comments made by X were inconsistent with other evidence before the Court. For example, X in the Family Report is reported to say “my Dad kicked my Mum out of my Dad’s house” which contradicts the mother’s version of events. He also says “I don’t like my Dad” which is contradicted by the observations in the Department’s report of home visits where it was noted that X “was observed to seek out [Mr Howerton] for reassurance and spontaneous hugs”. Ms L also states she cannot completely discount the possibility of maternal influence. Consequently given these inconsistencies, the inability to test the evidence and X’s age, maturity and special needs, I am not prepared to put any weight on his comments as to family violence.
As the mother’s evidence is inconsistent, X’s evidence is unreliable, the texts have not been produced and the allegations of physical violence and threats of harm were entirely denied by the father, in applying the Briginshaw test I am unable to make a finding that the father committed acts of physical violence against the mother or threatened her with harm.
The mother also alleges that X was repeatedly smacked by the father until he was red. She does not provide any temporal or other details about when this was said to have occurred. Further to this, these allegations were never reported to authorities and these details were not included in her earlier affidavit material. The father admits smacking X but he goes on to say that it was when he was much younger and only in brief response to X being at risk, for example, running on the road. He says he has since learnt other methods of parenting such as removing his iPad. Ms L could also not discount maternal influence. I am unable to make a finding that X was subjected to violence as alleged by the mother. In any event, the mother told Ms L that during the period that X has lived with the father, he has not disclosed any incidents of physical harm.
The Department’s Investigation
I have also had the benefit of the Department’s investigation in this matter.
The Department conducted a home visit to the father’s home in August 2022 and again about one week later. They reported no concerns for X in regard to the home environment.
Since that time they have met with the father in September 2022, October 2022 and November 2022. They ultimately concluded that X is “safe” in the father’s care.
I also note that the mother left X in the father’s care in mid-2021 and that in the Family Report she says that if the father relocated to Town C she would agree to equal shared care. In addition, she proposes that the father spends time with X for 65% of the holidays. It is difficult to reconcile any of this with the mother’s alleged concerns.
Ultimately I am satisfied on the totality of the evidence that X is not at an unacceptable risk of harm in the father’s care.
THE ADDITIONAL CONSIDERATIONS
X’s wishes
I have already addressed the unreliability of X’s comments in the Family Report. I also note that Ms L’s evidence was that X was quite tired on the day of the assessment as he had to rise early that morning to catch a plane. In addition, X is eight years of age and on Ms L’s evidence presents at an age more like a six or seven year old due to his developmental delay. He also has Autism Spectrum Disorder (“ASD”). For all of these reasons I do not intend to place any weight on X’s wishes either in the Family Report or said to be expressed elsewhere in the evidence.
The nature of the relationship with X and each of his parents
Ms L observes in the Family Report at paragraph 167 that:
[X] presented as having a significant attachment to [Ms Whitlock]. This would be consistent with his attachment history with respect to [Ms Whitlock] having been his primary caregiver.
In regards to the father, she reports that X initially resisted spending time with the father at the assessment. However, she also conceded under cross-examination that X may have been reacting to not having spent much time with Ms Whitlock and/or was quite tired at the time.
In addition, the observations of Ms L appeared in contrast to those of the Department in their home visits which were as follows:
During the visits [X] interacted candidly with the departmental workers and was eager to show his toys. [X] happily recounted fishing trips and visits to the local park with [Mr Howerton]. During the visit, [X] was observed to seek out [Mr Howerton] for reassurance and spontaneous hugs. [X] was observed to approach [Mr Howerton] to have his needs met and, [Mr Howerton] was observed to respond appropriately to [X] such as helping him set up his remote control car, and to provide a drink.
[X’s] school, [R School] and, service provider [S Services], report that [X] is well supported by [Mr Howerton] in both regular and consistent attendance and scaffolding [X’s] learning. The school and [S Services] report that [Mr Howerton] is interested in [X’s] progress and actively seeks feedback in order to support [X] further.
(as per the original)
On the evidence I cannot distinguish between X’s current attachment and the strength of his relationship with either his mother or father.
The likely effect of any changes in X’s circumstances
On the evidence, it appears X may be impacted by whatever orders are made as he is likely to continue to miss the parent with whom he is not living.
In addition X may be impacted by changing service providers in the event he moves to Town C. I note this would result in not one but two changes of service providers. However Ms L asserts that this is likely to happen in the public sector anyway and that it would have a more significant impact if it was someone like a psychologist with whom rapport is important.
I am however concerned that if X relocates to Town C, that he may have to move again. The mother’s evidence is that she is living with her mother and will go wherever her mother goes. In this regard, her mother is living in Town C for work, however she is 66 years of age and has no fixed contract. In addition the mother has not always lived with her mother. In 2021 the mother moved to Victoria and stayed there despite her mother not joining her for a significant period. I do not accept the mother was unable to move from Victoria due to COVID restrictions in mid-2022. The mother also subsequently moved to Adelaide (without her mother) and only moved to Town C, according to her cross-examination, because she was not able to secure housing in Adelaide.
The father on the other hand has lived in the home in City B, which was bought for him by his parents, for seven years and is unlikely to move.
I accept that the mother does not have the same privilege of having a house provided to her, and relies on rental accommodation, however she has not just moved house but has moved interstate on at least four occasions thus far.
The practical difficulty
The parties live a significant distance apart and the travel between them requires three different flights. The father has not been working and receives a carer’s payment for X. The mother works two jobs but has a limited income. Nevertheless, both agree to share the cost of the travel.
Ability to meet X’s needs
X has been diagnosed with ASD and developmental delays.
It is apparent that whilst in the mother’s primary care between August 2020 and December 2020, X only attended two sessions of occupational therapy. Having said that, it is also clear X only attended two further sessions in the father’s care between December 2020 and May 2021.
Nonetheless, it is not in dispute that X has regularly attended speech pathology since early 2022 and physiotherapy since mid-2022. It is also apparent on the evidence that X’s attendance at school and his behaviour has improved since coming into the father’s care.
In the Department report dated November 2022 the Department stated that they consulted R School in August 2022. They were told X presents extremely well at school and has a very good attendance record and importantly the father “has a successful relationship with the school, maintaining good communication, is supportive of [X] and, is responsive to requests from the school”.
X’s school reports confirm that he has made significant progress with his behaviour and that the 2022 end of year report states that he had “a tremendous year” and was attending full time. Whilst X is now attending reduced hours, this is not a reflection on the father but rather of a change in the ratio of teachers to students and because of a particular student with whom X clashes. The evidence shows the school and the father are aware of the issue and it is being managed appropriately.
It is evident that the father has also engaged consistently with X’s allied health professionals. As part of their investigation the Department reported in September 2022, with reference to the speech pathologist, that the father is:
…highly engaged with the service ensuring that [X] consistently attends appointments. The speech pathologist stated that [Mr Howerton] regularly contacts the service to check on [X’s] progress and to request feedback. It is reported that [Mr Howerton] extends [X’s] speech therapy by continuing to work with [X’s] goals in the home environment.
(as per the original)
In addition, the father gave specific evidence about some of the challenges facing X including his toileting and his diet. He was keen to learn the right strategies for X, for example with respect to toileting, so as not to frighten him and put him off the process. He is also eager to work with the occupational therapist who is shortly to commence treatment with X in regard to both of these issues.
The father has been attending a parenting program with Ms T on a fortnightly basis. Ms T has prepared a report for the father in which she says:
[Mr Howerton] has clear consistent daily routine and structure on how he cares for [X], it has predictability and procedural function, he understands how to meet [X’s] needs that is child focussed for him to thrive in his home environment, school and community. [Mr Howerton] has a good understanding of co-parenting challenges and has welcomed all types of learning that would benefit him in his circumstances. He has attended sessions with the goal of increasing his knowledge on communication skills, domestic violence, alcohol and other drugs, mental health with the intent to increase positive outcomes of respectful behaviour that is supportive of the coparent relationship and is able to identify co-parenting challenges in a variety of ways when discussing family matters.
(as per the original)
The father has not only attended various courses with Ms T, he was clearly able to articulate what he has gained from those courses. His evidence about the Circle of Security Course was not only detailed but showed a clear understanding of how a child benefits from having trusting relationships with various people in his life, including the mother. This was a level of insight not often seen in our Court.
Having heard the father’s evidence, both the content and the manner in which it was delivered, I accept that he has not only gained a great deal from these courses but that he wishes he had done them earlier and that he is keen to do more. I also accept his evidence that he now regrets not having been more involved with X during the relationship and that he is very much relishing his current opportunity to assist him with his special needs. Although the father acknowledged that caring for X was stressful at times he said he “loved it”.
Nonetheless, it is argued for the mother that whilst the father is a “good enough parent”, she is better able to meet X’s needs. She points out for example, that the father has deficits with reading and writing, which mean that he will be limited in his ability to assist X going forward with homework and any other educational assistance. The mother is concerned that as X gets older and the homework becomes more complicated that the father will have increased difficulty assisting X. The mother, who has no such difficulties, says she is better placed to assist X in this regard.
The mother also relied upon a school enrolment form which the father completed to illustrate the father’s limitations and potential risk to X. In particular, the father mistook the word diabetes for disability on that form. Whilst this is a mistake that could arguably have serious consequences, I find that such consequences are generally unlikely, given the father usually has assistance by someone reading the documents to him. Secondly, he uses tools such as his phone to assist with the meaning of words he does not understand. Finally, and more importantly, X’s service providers and his teachers are all clearly in communication with each other and those services are managed by U Service, a service provided to the father by S Services.
The mother also asserts that the father has limited family support in City B, whereas she has the support of her mother in Town C. This is true, however history shows that regardless, X has thrived in the father’s care.
On the other hand, the mother’s ability to meet X’s needs in the past has been problematic. In 2020 when the mother was his primary carer, X’s attendance at school was poor, his engagement with services was poor and his behaviour far worse. The mother argues that 2020 coincided with the peak of her illicit substance use, being daily on her case from 2020 until mid-2021 and that it is therefore not representative of her current ability to care for X.
However I am not satisfied that since the mother says she has been drug free, that she has endeavoured to actively engage with X’s teachers and treating health professionals. The mother says the father stopped her accessing information and that she tried to engage with the school but they would not provide her with same. However it was clear from her own correspondence to the school in August 2022 that the school offered to send her the reports and confirmed her address. The mother says she never received those reports but is silent about any attempts to follow this up with the school.
Furthermore, orders were made on 15 July 2022 that authorised the mother to receive information from the school. Despite this, the mother maintained to the Department in late 2022 that the father was preventing her from accessing the information. The orders also enabled the mother to attend parent teacher interviews and yet on the evidence she never endeavoured to do so.
Of equal concern in this case is the mother’s insight into X’s needs, in particular the impact on X of her actions in unilaterally moving him to City K in mid-2021. The mother justifies this move on the basis that she was concerned about X’s welfare as she says the father had failed to contact her for some time. However, the mother’s evidence on this issue was inconsistent. In one part of her evidence she says the lack of contact was for 11 weeks, however in another part of her evidence, she states 8 weeks. It seems it could only have been a month or so at the most. In any event the mother was able to visit with X and reassure herself that there were no concerns and having done so did not allege that there were any immediate risks to X’s welfare.
In addition, the mother could not concede that this sudden move had any impact on X. Her evidence was that he was excited for the plane trip and that he was otherwise fine in her care. However, this appears highly unlikely given the independent reports about X’s behaviour at that time. In particular the Child Development Unit (“CDU”) report from mid-2021 says as follows:
[X’s] communication abilities continue to be affected greatly by his difficulties with his emotional regulation. When [X] becomes dysregulated, he will often become upset and hide under a blanket and/or yell and scream with aggressive behaviours e.g. Throwing items, hitting. These periods of dysregulation can be triggered by anything from having to hop off the phone to a book not ending how he expected it to. Sometimes these periods will be brief and [X] can be redirected to activities while other times [X] cannot be redirected or re-engaged in the session.
(as per the original)
The mother also enrolled X in a new school in Queensland which required X to start with significantly reduced school hours. Furthermore, the mother did so knowing, on her own evidence, that she never intended to remain in Queensland but was shortly moving to Victoria. This showed a total disregard for X’s needs.
Furthermore, although the mother has received written reports through S Services in relation to X’s treatment she has not had any conversations with his allied health professionals, either in relation to his care generally or how he would cope with a move to Town C.
Conversely, having heard the evidence, I find that since X has come into the father’s care, the father has gradually sought to improve his understanding of X’s needs. The father to his credit acknowledges that he had little to do with X’s care during the relationship. He says that at the time he had little confidence due to his issues with reading and writing and due to his appearance, thus he stayed in the background. He now regrets that and his commitment has now been demonstrated through his actions. I find that he is now not just a “good enough parent” but rather has enabled X to thrive not just in his education but in his behaviour and general wellbeing.
The attitude to X and the responsibilities of parenting
Part of the role of a parent is to promote a relationship with the other parent. The mother asserts that the father has not done so and as evidence of this asserts that the father has not always enabled her to speak with X over the phone. However the mother conceded under cross‑examination that of over 200 phone calls he missed only about 18 in approximately a 19 month period. The father’s evidence was that sometimes X may be overtired or had a bad day and it was preferable to delay the call. This seems entirely appropriate. The father said that he often offered make up calls as well as additional calls for example when X had bumped his head or had a good day fishing or “doing something fun”. He said X loves to send a video or a picture of what he has done and that he had a photo of his mother on his door. The father described X as a “mummy’s boy” and said he wanted them to have a good relationship. Having heard the entirety of the evidence, I accept the father genuinely seeks for X to have a good relationship with the mother.
The mother also raised the issue of the father’s role modelling in terms of smoking cannabis around X and asserted that Mr G’s cannabis use was evidence of intergenerational issue. I cannot find on the evidence that this is the case. The father says and I accept that he did not smoke cannabis in front of Mr G until he was 18 years of age and that Mr G has not used it for over a year.
CONSIDERATION OF THE PROPOSALS
Advantages of X relocating to Town C:
(a)X would live with his mother, who was his primary carer from birth until about December 2020;
(b)He would live with his grandmother who is a significant figure in his life;
(c)X would live in a house where there is no risk of exposure to daily cannabis use;
(d)The mother may be able to provide greater home assistance with his learning as he grows older;
(e)Town C is a larger town and is likely to have a greater choice of service providers for X.
Disadvantages of X relocating to Town C:
(a)X would only be able to see his father during the holidays, by FaceTime and one weekend per term and would no doubt miss his father;
(b)He would be removed from City B, his friends, the community and from the home he has known since birth;
(c)X would be removed from living near his aunt and uncle and cousins who attend his school;
(d)X would be removed from his school;
(e)He would be removed from services which he has been engaged with since early and mid-2022;
(f)The mother may move again, requiring another change in X’s living arrangements, school and service providers.
Advantages of X remaining in City B:
(a)X would live with the father, who has been his primary carer since December 2020;
(b)He is likely to remain in City B for the remainder of his childhood;
(c)He would be able to see his aunt, uncle and cousins on a regular basis;
(d)X would remain in the house he has lived in for most of his life;
(e)He would remain in the community and have the same friends;
(f)X would remain at the same school with the teachers who are familiar with his special needs;
(g)He would be treated by the same services;
(h)The father has a proven track record of being able to ensure his special needs are met and he has improved since being in his care.
Disadvantages of X remaining in City B:
(a)X would not live with the mother who was his primary carer until December 2020;
(b)X would only be able to see his mother during the holidays, by FaceTime and on one weekend per term and would no doubt miss his mother;
(c)He would not get to see his grandmother on a regular basis;
(d)He would be at risk of exposure to cannabis use in the father’s home;
(e)The father may have less ability to assist X with his homework as he gets older.
DETERMINATION
Having taken all of these matters into consideration I determine that it is in X’s best interests to remain in City B with the father. He is not just a ‘good enough parent’ but his parenting has resulted in a substantial improvement in X’s school attendance and behaviour. He appears to be thriving in the father’s care. He is also settled in the City B community and is linked in with services in that area. The father has family there and owns property there and therefore he is unlikely to move. Whilst the father has limitations on his ability to read and write, he has found tools to assist him and appears highly motivated to do whatever is in X’s best interests. The father has clearly gained from the courses he has engaged in thus far and his work in particular with Ms T. He also has the assistance of other services such as U Service.
The mother may well be able to provide the same level of care to X as the father or indeed better care however this is untested. Furthermore I do not believe she has made every attempt to be involved with X’s schooling or indeed any attempt to be involved with his treating health practitioners. I am also concerned about the stability of the mother’s housing. Whilst she lives with her mother now, she has not always done so. The mother otherwise has no real ties in Town C other than employment, and has a history of not placing X’s needs first when moving.
Accordingly, I propose to make orders in terms of the Minute handed up by both parties and which it was agreed save for where X would live and orders that flowed from that.
With respect to the injunctions, it seems to me that both uncles have concerning histories. There are allegations that the father’s brother was imprisoned for serious offences and hid contraband in the father’s roof. In regards to the mother’s brother, his home was raided by the police in relation to serious offences, although I understand he was never charged. In such circumstances there appears sufficient concern to justify the injunctions in the terms sought. In making those injunctions I have considered the impact on each of the parents and on X and have formed the view that the potential risk to X outweighs the inconvenience to the parties of ensuring that X is not left alone with either of the uncles.
However I do not propose to make the injunction in regard to Mr G. The mother seeks the injunction based on Mr G’s cannabis use and the allegation he has assaulted X. In regard to the former, the father’s evidence is that Mr G was a teenager when he used cannabis and that he is no longer using. In regard to the latter, I am unable on the evidence to determine whether this occurred, the only evidence being what X has reportedly said and I have already commented on why his this is unreliable. In any event, Mr G and X are siblings and ought to have the opportunity, in spite of their age difference, to enjoy each other’s company, separately to the father. I am also satisfied that the father would act protectively if there were any concerns for X in Mr G’s care. Ultimately, I find the balance of convenience favours the relationship between Mr G and X over any risk that Mr G may pose to him.
For all the foregoing reasons, I make the orders as are set out at the beginning of this judgment.
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 24 May 2023
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