Whittaker and Bardot

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHITTAKER & BARDOT

[2015] FCCA 183

Catchwords:
FAMIILY LAW – Children – undefended – child with mother – father seeks live with order – child’s views – concerns child parenting mother.

Legislation:

Family Law Act 1975, Part VII, ss.11F, 60B, 60CA, 60CC & 65DAA

McCall v Clark (2009) 41 Fam LR 483
Mazorski v Albright (2007) 37 Fam LR 518

Applicant:

MS WHITTAKER

Respondent:

MR BARDOT

File Number:

ADC 4211 of 2013

Judgment of:

Judge Cole

Hearing dates:

13 & 14 November 2014

Date of Last Submission:

12 December 2014

Delivered at:

Adelaide

Delivered on:

30 January 2015

REPRESENTATION

Applicant:

Self-represented

Solicitors for the Applicant:

No appearance

Counsel for the Respondent:

Mr Graeme Hemsley

Solicitors for the Respondent:

Joliman Lawyers

Counsel for the Independent Children's Lawyer:

Ms Vanessa Lee

Solicitors for the Independent Children's Lawyer:

Georgina Parker Lawyers

ORDERS

That the child X born on (omitted) 2003 live with the father.
That the parties have equal shared parental responsibility for the said child.
That the mother spend time and communicate with the said child as follows:
(a)from 5.00pm on Friday to 4.00pm on Monday on the Victorian Labour Day weekend;
(b)from 5.00pm on Friday to 4.00pm on Monday on the Queen’s Birthday weekend;
(c)from 5.00pm on Friday to 4.00pm on Sunday on Mother’s Day weekend;
(d)for 10 days of the Victorian gazetted school term holidays at times agreed and in the absence of agreement, for the first 10 days of the school term holidays;
(e)for one half of the Victorian gazetted Christmas school holidays at times to be agreed and in the absence of agreement:
(i)from 4.00pm on 4 January 2015 for one half of the Christmas school holidays and each alternate year thereafter; and
(ii)from 4.00pm on 24 December 2015 for one half of the Christmas school holidays and each alternate year thereafter
(f)by telephone at reasonable times; and
(g)at other times as may be agreed between the parties.
That the mother be in substantial attendance during all times the said child is in her care.
That for the purpose of handovers, the mother and/or her nominee and the father and/or his nominee collects and delivers the said child from McDonald’s Restaurant in (omitted).
That if either party is running late for handover then they shall send a text message to the other party advising the estimated time of arrival.
That each party shall:
(a)keep the other party advised at all times of their current residential address and telephone number and notify the other party within seven (7) days of any change;
(b)advise the other party immediately in the event that the said child suffers any serious illness or injury;
(c)authorise any medical practitioner or health professional upon which the said child may attend from time to time, to communicate with the other party in respect to the said child’s medical condition and/or requirements;
(d)do all things necessary to authorise and/or facilitate all schools at which the said child may attend, from time to time, to:
(i)provide the other party at the expense of the other party copies of all school reports, notices and photographs in relation to the said child; and
(ii)communicate with the other party either by telephone, in writing or by personal attendance, in respect to the said child’s progress.
That the mother be at liberty to attend all school functions that is usual for mothers to attend including but not limited to sports days, working bees, parent teacher interviews and Mother’s Day functions and shall not otherwise attend at the school unless specifically requested to by the school.
That the mother be at liberty to attend all sporting events and extra-curricular activities that the said child participates in.
That for 24 hours immediately prior to the commencement of any time spent with the said child (including any period during which the said child lives with her) and during all such time spent, the mother be restrained by injunction from ingesting, consuming or using, or otherwise being under the influence of, alcohol and/or any legal or illegal drug or substance, save and except for:
(a)any legal medication prescribed for the relevant party by a registered medical practitioner and taken or used by the mother strictly in accordance with such prescription; and
(b)any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets, or taken or used by the mother strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
That the mother and the father be at liberty to provide a copy of the orders to any one or more of the following:
(a)the Principal or delegate of the Principal of the school attended from time to time by the said child; and
(b)any medical practitioner and/or allied health professional attending upon the said child.
That each of the parties by themselves and/or their agents be and are hereby restrained by injunction from:
(a)harassing or assaulting the other party;
(b)denigrating, rebuking or belittling the other party to or in the presence or the hearing of the said child, and from allowing the child to remain in the presence of any other party who may be so doing;
(c)discussing these proceedings to, with or in the presence or hearing of the said child and from permitting any other person to do so;
(d)exposing the said child to conflict or disagreements between the mother and the father or between any other person in the household;
(e)telephoning the other party save for an emergency concerning the said child;
(f)exposing the said children to illicit drugs or anyone adversely affected by illicit drugs and/or alcohol.
The appointment of the Independent Children’s Lawyer be discharged.
The proceedings be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4211 of 2013

MS WHITTAKER

Applicant

And

MR BARDOT

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by the father for orders that the parties’ child X born on (omitted) 2003 live with him.
The proceedings were commenced by the mother in November 2013 seeking recovery of the child when she was withheld by the father. The mother was represented at the time by counsel with some experience in family law.
Unfortunately the mother has ceased to engage in the proceedings and I will refer to that later in these Reasons when looking at the history of this matter. The mother’s solicitor filed a Notice of Withdrawal on 15 July 2014.
The mother did attend before this Court in September 2014 and was told in plain terms that she was required to engage in these proceedings or she would risk orders being made that she may not agree with. Sadly she appears not to have heard that message.
The father seeks orders that X live with him. It is unclear if this is still opposed by the mother.

Background

The father was born on (omitted) 1982 and is aged 33 this year. The father is employed as a (occupation omitted) by (employer omitted). He injured his spine at work has returned to work on a work plan which consists of three hours per day three days per week. He is currently on light duties.
The mother was born on (omitted) 1985 and is aged 29 this year. The mother is engaged in home duties. The mother has a daughter from another relationship namely Y, who will be aged seven this year. In addition, she has a son Z who lives with his father and spends regular time with the mother.
The parties commenced cohabiting in or about 2002.
After approximately one month, the parties moved to (omitted) to live with the mother’s uncle until they were able to find their own accommodation. After arriving in (omitted) the parties kept travelling and eventually stopped in (omitted), Queensland.
Around this time they discovered the mother was pregnant and she returned to reside at her father’s home in (omitted) South Australia.
The father returned to (omitted) with his brother and was subsequently joined by the mother a few weeks later. They resumed their relationship.
X was born on (omitted) 2003. The father was present at the birth.
When X was six weeks old the father obtained another job although the hours, on his evidence, meant that his relationship with the mother suffered.
The parties subsequently separated when X was approximately 18 months old.
The father moved from Victoria to South Australia to be closer to the child for a short period of time however due to the lack of work, was required to obtain a job as a (occupation omitted) in (omitted). He stayed there for eight weeks before moving back to Victoria.
Between 2005 and mid-2010, the father concedes that he did not spend time with or communicate with X. His evidence is that he tried a number of avenues to attempt to find the mother but it was to no avail. He did not issue court proceedings as he could not afford it nor was he eligible for Legal Aid.
In mid to late 2010, following contact received from the mother, the father spent three weeks with X in South Australia. During this time the mother asked the father to care for the child while she attended rehabilitation for her alcohol addiction. Following that, the father returned to Victoria with the child.
X remained with her father living in (omitted) from late 2010 until June 2012. The mother spent time with the child on two occasions during this period.
In early 2012 the mother started having more regular contact with X by telephone. In mid-2012 the mother advised the father that she was doing well and was in a settled relationship. She further stated that she would like X to come home.
The father made enquiries of the maternal grandfather who also lived in (omitted) and was assured the mother had gotten herself back on track.
The father’s evidence is that he asked X what her wishes were and was told that she missed her mother, but more so her sister Y, and wanted to move back.
For the first month after she returned home, he was in regular communication with X. Difficulties however began to be encountered with the mother, on his evidence, telling him the phone was playing up, it was not charged, or there was not enough credit for her to call back.
As a consequence he was unable to spend time with X from August 2012 to April 2013. In April 2013 however the maternal grandfather brought X to visit the father during the school holidays.
In July 2013 the father suffered an injury to his back. He was solely reliant on Centrelink benefits and due to financial constraints was unable to travel to South Australia to spend time with X until October 2013.
In October 2013, the father travelled with his brother to South Australia to spend time with X. They visited the mother’s home and their evidence is that there was a smashed large window at the front of the house. The parties agreed that he could take X home for a week. While they were discussing this, the mother commenced smoking a bong in front of X. The father’s evidence is that he asked her to stop however she was not concerned. He then asked X to pack a bag and they left shortly after.
Following his return to (omitted) he made further enquiries with friends and the maternal grandfather in (omitted). His evidence is the information he received suggested that the mother had relapsed.
As a consequence, he decided not to return the child. On 11 November 2013 the mother filed her initiating application with this Court. On 19 December 2013 orders were made for the delivery up of the child and an injunction granted restraining the mother from consuming drugs or alcohol whilst the child was in her care with the mother to undergo random drug testing.
The child was returned to the mother’s care on 26 December 2013.
The father communicated with the child on a regular basis but did not spend time with the child until the April school holidays.
Requests were made for the mother to undergo random drug tests on 29 January and 20 February 2014. The mother failed to comply.
On 6 March 2014 the mother submitted to a drug test at the request of her former solicitor. The test proved positive for cannabis and amphetamines.
On 18 March 2014 the mother failed to comply with a request for a random drug test.
On 9 April 2014 an order was made for a Family Report. Orders were also made for the mother to file and serve an affidavit attaching her drug test results of 9 March 2014 and explaining those results.
The mother filed an affidavit on 14 April 2014 to which I will refer later in these Reasons.
The mother and X attended upon Ms J for the purposes of a Family Report. The report was published on 10 June 2014.
The report recommended that in the event that the Court finds the mother is continuing to use drugs, the child live with the father.
On 25 June 2014 the matter was listed for trial with the mother and the father being represented at that time. The mother had been ordered to attend at court in person on the adjourned date noting the concerns about the mother’s compliance with court orders. The father was present however the mother failed to attend. The mother was ordered to file an affidavit explaining her failure to attend at the hearing. Nothing was received.
In July 2014 the mother’s solicitors withdrew.
The father spent time with X in the July school holidays with the parties agreeing for X to travel by air.
On 3 September 2014 the mother failed to appear. The Court attempted to phone the respondent mother without success. The mother was ordered to attend court in person on 25 September 2014 noting an application may be made for her arrest in the event of failing to do so.
On 25 September 2014 the mother appeared in person. Orders were made for the father to spend time with X for the September/October school holidays. The mother was informed of the trial date and the need for her to engage lawyers to help her in the proceedings.
On 4 November 2014 the matter was listed for non-compliance, the mother having been advised by mail. A number of attempts were made to telephone the mother without success. An order was made for the mother to attend court in person on 13 November 2014 (the first trial date) noting that an application may be made for her arrest in the event of her failing to attend.
In accordance with the usual practice a sealed copy of the order was forwarded to the mother’s mailing address. On 13 November 2014 however the mother failed to attend. Counsel for the father made an application to proceed on undefended basis and liberty was granted to counsel to proceed in the absence of the mother.
In the course of the proceedings, the father, with the assistance of his counsel, Mr Hemsley, provided a series of SMS messages from the mother. They were admitted without objection by the Independent Children’s Lawyer into evidence as exhibit “C”. The first page of the exhibit, due to difficulties with the downloading of the information, was copied by counsel for the father in his own hand.
The text messages show that at 2.00pm on the day before the trial the father contacted the mother to remind her that the final court hearing was tomorrow and Friday. The mother in her response said (and I paraphrase some of these words):
a)“I can’t make it”
b)“Can you arrange to sign off with your lawyer. I don’t have one can’t afford it Mr Bardot. Just had to pay X’s camp fees.”
The father responded asking the mother to “try her best because on the paperwork the Judge has put that a warrant may be issued if we don’t turn up and we don’t want that”. He goes on to say “you should have told me I would have helped”. The mother responds “if we both don’t go it gets thrown out Mr Bardot. If you show up I get a warrant”.
Further on in the exchange the mother says “I thought she (the father’s lawyer) would do up some paperwork for me to sign. Don’t worry. They’ll have to arrest me. Just some more shit to deal with. No biggie. It’s all falling apart anyway”. She goes on to say “are you going to take her away?”.
The father says “No” and then goes on to say “That’s why I gave you her phone number, that’s no good bill”.
The mother responds that “it’s all good. I’ll just move to Vic Mr Bardot. There is nothing here for me. I want to be close to her”.
The exchange continues over the next day with the mother in one part saying “this sucks. They’re going to give her to you anyway. She is stressing”.
It is open to me and I would conclude that the mother was aware of the proceedings and had made no effort to contact the Court. She knew that her failure to attend may result in an order that her child live with the father.
I would add that attempts were made to telephone her by the father’s counsel, and counsel for the Independent Children’s Lawyer. I was advised that she had spoken with the Independent Children’s Lawyer earlier, however there was no progress made.
There may be many reasons for the mother’s failure to engage in these proceedings. One of them may well be that the mother was not prepared to make a decision and in leaving it to the father to press the matter through the court, could then absolve herself of any responsibility for her daughter moving to live with the father in Victoria.
It is not disputed that the father and the mother have a good relationship. Since the order was made for the delivery up of the child they have been able to communicate in respect of the father’s time with the child on her school holidays amongst other things.
In addition, the father had been able to provide the child with a mobile phone for which he paid approximately $50 a fortnight to ensure the child had credit and was able to talk with him. As a consequence he was in regular daily communication with his daughter.
As the child was able to maintain the phone and keep it charged, there was also some suggestion that this was often the best way of contacting the mother and I refer, on this point amongst other things, to the evidence of the report writer when detailing her efforts to contact the mother.
The relationship between the parties, including what I saw of their SMS communication before and on the first day of trial, would suggest a certain respect for each other. It is therefore difficult to see how this did not translate into a settled agreement.
Unfortunately, this did not occur and the evidence proceeded. The trial concluded on the basis that the child’s school report was due within seven days. An order was therefore made for the report to be filed by the Independent Children’s Lawyer on or before 21 November 2014. The report was finally filed on 12 December 2014.
It is also unfortunate that the Independent Children’s Lawyer did not have the opportunity to speak with the child.
X, without notice on the part of the mother, had changed schools moving from the (omitted) Primary School to the (omitted) Primary School in the fourth term of 2014. It was left to the father to explain the change of school from his discussions with the mother and his daughter, him having found out after the event. It would appear from his evidence that the change was brought about as a result of bullying and that X had reported being happy and settled in her new environment.
Had the Independent Children’s Lawyer been aware of this, a discussion with X’s old and new teachers may have been of some assistance to the Court, including evidence as to how she presented each day and how she participated in the school proceedings. The report received in December 2014 provides some insight into areas where X needs improvement but does not otherwise assist me.

The evidence

The respondent father relies on:
a)his Response to the Initiating Application filed on 19 December 2013;
b)his Affidavits filed on 16 December 2013 and 30 October 2013;
c)the Affidavit of his brother filed on 18 December 2013; and
d)the Notice of Risk.
The father was available to provide evidence and was cross-examined. His brother was not available and it was not sought to call him to give evidence.
The Independent Children’s Lawyer relied on the report writer and the family report was admitted into evidence. The report writer was subjected to cross-examination.
The report writer, following the comments that X may be protective of her mother, did express some concern that she may be placed in the position of having to parent her mother.
One example of this was the difficulties encountered in arranging for the interviews to occur which culminated in her having to contact the mother by telephoning X.
Another example was X denying seeing her mother smoking a pipe despite the mother saying the child had seen her and knew what a pipe was.[1]
[1] Family Report dated 2 June 2014, 61.

The law

The relevant legislation is contained in Part VII of the Family Law Act 1975 (“the Act”).
Section 60B sets out the objects of Part VII and the principles which underlie those objects. The objects are addressed in the considerations the Court must have regard to in s.60CC.
Section 60B(2) of the Act provides that:
The principles underlying those objects are that (except when it is or would be contrary to a child’s best interest):
(a)children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have the right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)the parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act states that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC sets out how a Court determines what is in the child’s best interests and points to a consideration of the matters set out in sub‑ss.(2) and (3) (per s.60CC(1)).
Those matters will be addressed in these Reasons.
Should I decide that there be equal shared parental responsibility then I must, pursuant to the provisions of s.65DAA of the Act, consider whether in these circumstances the child should spend “equal time” or “substantial and significant time” with each of her parents. These considerations include whether such an order would be:
a)in the best interests of the child; and
b)whether the child spending equal time with each of their parents is reasonably practicable (see s.65DAA(1)(a) and (b)).
I will refer to these matters later in these Reasons.

Section 60CC primary considerations

(2)(a) The benefit to the child having a meaningful relationship with both of the child’s parents

It is not apparent in the case of either party, having regard to the documents filed by the mother, and the submissions of the Independent Children’s Lawyer that there is no benefit to the child having a meaningful relationship with both of the child’s parents set out above.
The parties acknowledge that there is a benefit to the child in having a meaningful relationship with the other parent. They cannot however, agree on how that should be conducted; the father’s position being the child needs to be with him in Victoria while the mother’s position is currently unknown.
The Full Court in McCall v Clark (2009) 41 Fam LR 483[2] noted with approval the decision of Brown J in Mazorski v Albright (2007) 37 Fam LR 518 where her Honour concluded that:
A meaningful relationship is one which is important, significant and valuable to the child. It is a qualitative adjective not a strictly quantitive one.[3]
[2] McCall v Clark (2009) 41 Fam LR 483, 122.
[3] Mazorski v Albright (2007) 37 Fam LR 518, 26.
The Full Court went on to conclude that:
The Court should consider and weigh the evidence at the date of hearing and determine, how, if it is in the child’s best interests, orders can be framed to ensure the child has a meaningful relationship with both parents.[4]
[4] Ibid, 119-120.
In considering the meaningful relationship that the child should have with each of her parents, one cannot ignore the fact that with the mother in (omitted) and the father in (omitted), the parties are located some 1200km apart. The maintenance of the meaningful relationship therefore becomes a strong topic.

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

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

The father’s concerns relate to the mother’s alcoholism and her drug abuse. The mother has failed a number of requests to undergo drug testing in accordance with the orders of this Court.
She did undergo a drug test in March 2014, which showed positive results for cannabinoids and methamphetamine. In accordance with orders of this Court, the mother subsequently filed an affidavit to explain the positive results in the test.
Her evidence was that she had attended at her solicitor’s office on 5 March for an appointment after having missed several appointments with the solicitor prior to that.
In accordance with her solicitor’s request she undertook the test at (omitted) the following morning. She conceded at paragraph 7 of her affidavit that she smoked cannabis sometimes at the end of the day one to two times per week but only when the children were in bed. She said she did not realise that there was an order prohibiting her from smoking cannabis as of 19 December 2013.
The mother goes on at paragraph 8 to admit that she had partaken of smoking methamphetamine on the weekend of 2 March 2014. She again said she did not realise there was a prohibition against her consuming alcohol or illicit substances whilst the child was in her care pursuant to the Order.
She further conceded that her solicitor had sent a copy of the Orders however she did not always read her legal mail as it stresses her out. In her words she states “I admit I am my own worst enemy about this. Some of my mail has also gone astray. In the past the children have collected the mail and not told me”.
At paragraph 9 of her affidavit, the mother states that on the weekend she consumed methamphetamine, a couple of her girlfriends had come over and one of them had bought the drug. Her partner Mr S and she had attended a birthday barbecue at one of her girlfriend’s and her partner’s home. Her friend had just had a small tiff with her partner and as she was about to leave the party at about 9.00pm, she and another girlfriend offered to come over and help with the painting and spring cleaning that night.
The girlfriend whose birthday it was, offered to bring something to smoke and she agreed. She concedes she made the wrong choice that night. She notes that they sat around and smoked the methamphetamine then got stuck into the renovation of her daughter Y’s room. Y was sleeping in X’s room at the time her room was being decorated.
She assembled a bookshelf and did a general tidy up and sorted out old clothes to go to the Salvation Army with the help of her friends. The friends left at about 2.00am and she went to bed at 4.00am. Not surprisingly she goes on to say that this was “one off” and does not happen often.
She then attempts to make the point that the father has told her over the telephone he does not take issue with the cannabis smoking. The issue of her consuming methamphetamines was not raised in his affidavit material but has since been raised in correspondence from his solicitor and also at the child dispute conference ordered pursuant to s.11F of the Act.
She says she is under the care of Dr M at the (omitted) Surgery in relation to her anxiety problem and to help her combat any further drug use.
Without the mother being present, the suggestion that she was unaware of the prohibition on illicit substances is unbelievable as is the suggestion that the father had no issue with her smoking cannabis, when the point is clearly made in his first affidavit about his surprise and distress at the mother smoking a bong in front of the child.
Furthermore there appears to be no recognition of the fact that she and her girlfriends having been to a party, decide to come home, smoke methamphetamine, and continued to work on renovating a room whilst the children are asleep next door. How this can be done without waking the children is an open question.
There is therefore cause for concern that the child is at risk, taking into account the mother’s explanation for the consumption of illicit substances and the positive drug test.
There is also cause for concern in view of the fact that following that event a further request was made for a drug test, which was not complied with. In those circumstances it is difficult to have any confidence that the mother’s undertaking not to consume illicit substances and to follow the directions of her doctor can in any way be relied on.

(3) Additional considerations are:

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

X has been given an opportunity to express her opinion to the Court on at least two occasions.
In the course of the Child Inclusive Conference conducted on 13 March 2014 (and I note the report reads 2013 and that this is a typographical error) X then aged 10 “expressed a clear view that she wanted to stay with her mother and spend holiday time with the father. She stated that she wanted this to be at her discretion”.
The report writer went on to note it was unclear to the writer that X was being somewhat guarded about her experiences with the mother so she would be able to stay with her, or whether she had fewer emotional concerns about her life experiences. Given that X had moved into her father’s care for a period of two years at a turbulent time in her mother’s life, some recognition of this upheaval would have been expected. However X focused on more concrete issues such as “the father not allowing her to go out the front of their home without his presence compared to her mother allowing this but watching out the window”.
Then in the family report, the report writer noted:
When asked what she wanted to say to the Judge the child said, I really, really love both parents and really want to live with them both but I don’t like (omitted) and I really love my little sister. I don’t know what I would do without my Mum or my Dad. I get lonely sometimes at my Dad’s without my brother and sister. There is nothing really to do. At Mum’s I have (omitted) who is my age and we are just alike. Life is not normal without my little sister stirring me up. The child expressed a clear view that while she wants to live with both parents, she would prefer to remain in the care of her mother.[5]
[5] Family Report, 51.
The report writer went on to note:
The child articulated her proposal very clearly: “I want to live with my Mum and spend the whole two-week holidays with Dad, not getting back and having a few days at home but just getting back in time to go school on Monday. At Christmas I want to have three weeks with each, spending Christmas with a different parent each year. I want to spend every second Easter with Dad.[6]
[6] Ibid, 58.
Counsel for the father acknowledges the child’s views and concedes that given her age the view should be taken into account however refers me to the report were the report writer says:
The child loves both her parents and she has clearly thought about how she wants her time distributed between them. She has an understanding of what it is like for her to live with each of her parents and their strengths and weaknesses. Her views are very important, but being ten she does not have a full understanding of the possible long-term impacts of the decisions that are about to be made about where she will live.[7]
[7] Ibid, 59.
The matter was raised with the father during the course of the trial. It was put to him that insisting on the child coming to live with him he may be at risk of damaging his relationship with his daughter rather than enhancing it. His response was that he acknowledged the risk however felt in view of the mother’s alcohol and drug taking tendencies that he had little choice in all of the circumstances.
The father’s evidence on this issue presents as child focused in all the circumstances.

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

(i) each of the child's parents; and

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

It is not disputed that the child has a good relationship with her mother. What exactly is the nature of the relationship with the mother, however, is another issue. In particular I note the comments of the report writer where the child was asked if she was protective of the mother to which the child replied “Yes! Me and mum like this friends. Their mum go out like friends. Mum will always know how I am feeling by the look on my face. If I’m said she knows how to cheer me up. If mum feel sick I will make glass of water or fit something same as I would do with my dad”.[8]
[8] Ibid, 55.
There are a number of concerns about the mother’s behaviour. They include the fact that the mother in the course of proceedings chose to partake in methamphetamine. I do not accept that the mother was unaware that there were concerns raised about her cannabis and methamphetamine use. The concerns were clearly outlined and addressed in the court documents and the court orders. In spite of this she was unable to comply for the sake of her daughter if nothing else.
In addition, the mother has been aware of these proceedings. She admits that she is her own worst enemy and has been unable to comply with the directions of this Court. This means that she has not been prepared to step up and take responsibility for her daughter’s sake. If she is unable to do this, then what are the other things that she avoids that require her daughter to step in for her on her behalf.
There is a genuine concern which is not answered because of the lack of any assistance from the mother, as to the daughter having to be the parent in this relationship. If Mum gets stressed the daughter has to step in, if Mum does not have the relevant information, the daughter is required to provide it. An example of this is that the mother’s inability to keep her phone charged or in credit. The evidence would suggest that if someone wished to contact the mother, then they would be best to telephone the daughter who would then arrange for the mother to call back. This is unacceptable. If the simple budgeting and management of a mobile phone escapes the mother then what other responsibilities are falling on this young child’s shoulders.
The evidence supports a conclusion that the child has a good relationship with her father. It would also support a conclusion that the child has a good relationship with the paternal grandfather who resides in the same house.
The father in undertaking this move has placed that relationship at risk. Nevertheless, he considers he has little option and his viewpoint must be acknowledged particularly in view of the lack of any assistance from the mother.

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

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

(ii) to spend time with the child; and

(iii) to communicate with the child

The father has undertaken extraordinary steps to try and ensure the safety of his daughter. He has been diligent in pursuing these proceedings, has undertaken the lengthy trip from (omitted) to personally attend in Court, on several occasions, and has complied with the directions of this Court.
The mother in her earlier affidavits puts forward the position that she is an anxious person who is unable to attend to these matters. She does not provide any medical evidence that would assist her.
I note that she was originally represented by the Legal Services Commission in (omitted). I therefore have difficulty in understanding what difficulty, if any she may have had in providing her lawyer with instructions.
I do not understand what event or what circumstances were of such importance as to make her unable to participate in these proceedings and put forward her position that her daughter should remain in her care. What was of such significance that it took priority over her daughter?
On the evidence before me, it would appear an obvious conclusion that the mother has failed in her engagement with this Court, to properly participate in making decisions about the long-term issues for her child.
There is no criticism levelled at the father, and since he has in the mother’s words been reunited with his daughter, he appears to have taken all reasonable steps to participate in decision-making, spending time and communicating with his daughter.

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

The extent that either parent has fulfilled or failed to fulfil the obligations to maintain the child has not been the subject of evidence or submissions in these proceedings.

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

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

The child will be living with her father some 1200km from her former residence. Whilst these living arrangements are not new to the child, her having previously lived with the father in (omitted), it must be acknowledged that the effect of the change will be significant.
While X has been there before, having lived there for approximately two years, and is familiar with the primary school and has friends there, she will not be able to spend time with her siblings or her mother save and except for long weekends and school holidays.
The distance presents a significant barrier, and it is possible that the father may not be thanked for his efforts in having X to come and live with him.
The alternative however is to leave the child with the mother with whom there are significant concerns regarding her alcohol and illicit substance abuse.
Her explanation of the positive drug test, combined with her failure to instruct her legal representatives to assist her, point to a chaotic lifestyle that may not be appropriate for a child such as X.
It is significant that X has previously spent time in this community and on the father’s evidence still has friends and relatives who will be there when she moves to reside with him.
It is also significant that X has recently changed schools and it would appear that another change at this stage of her life would not be detrimental.

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

The practical difficulty of X spending time with and communicating with her mother and her siblings in (omitted) is significant and substantial.
The father’s proposals, taking into account the circumstances of the parties are sensible and pragmatic.
There is some suggestion that the mother may move to Victoria to be closer to X. That will remain to be seen and does not affect this decision.

(f) the capacity of:

(i) each of the child's parents; and

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

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

The mother’s capacity appears to be limited. There are grave concerns that the mother is acting in such a manner that the child may be parenting her.
There are also grave concerns that the mother is continuing to abuse illicit substances and alcohol.
Those concerns are not assisted by the mother’s failure to engage in these proceedings or even provide her (omitted) solicitors with instructions.
Those concerns are further enhanced by the mother’s failure to contact the court taking into account that numerous attempts were made to have her engage in this matter during the course of the trial.
There are no such concerns raised in respect of the father.
It is acknowledged that the father will continue to work with (employer omitted).
The father has the support of the paternal grandfather and his extended family in the (omitted) area.
In the absence of any useful evidence from the mother, I am left with the position that I must consider that the father has the greater capacity to properly provide for the needs of this child particularly when the mother was unable to engage in proceedings to determine where the child should live.

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

X is now 11 years old and has expressed wishes on two occasions, not including her desire to return to (omitted) in 2012.
The difficulty for X is that while she may be best friends with her mother, there are strong concerns that she may be placed in a position where she is in fact required to parent her mother. In other words, she is expected to be amongst other things, the responsible person who keeps her mobile phone in credit and charged.
X has the right to enjoy her childhood. Her mother is a parent and has to accept the responsibility to step up and act as a parent. She has to date failed abysmally.
The concerns are such that I consider it appropriate that there be a change of the living arrangements for this young child so that she can enjoy being a member of the family with a responsible adult to look out for her.

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

This is not an issue in these proceedings.

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

Again the question must be asked, what is going on in the mother’s life that is of such importance that it overshadows these proceedings?
The father has participated in these proceedings out of his concern for the safety and welfare of his daughter.
The mother instituted these proceedings to ensure that the child remain living with her. Since that time she has done little, if anything, to allay the fears and concerns expressed by the father.
Whilst it is possible to acknowledge the father’s attitude to the child and the responsibilities of parenthood, there is nothing on which I can rely in respect of the mother.

(j) any family violence involving the child or a member of the child's family

This is not an issue that was pressed in these proceedings.

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

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

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

(v) any other relevant matter

This is not an issue that was pressed in these proceedings.

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

It is difficult without the participation of the mother to make a full assessment of what orders would be least likely to lead to the institution of further proceedings.
At present on the evidence before me I am of the view that the concerns of the father, which to some extent appear to be supported by the actions of the mother, outweigh the concerns I have regarding the outcome of any significant change in this young child’s life.
I therefore consider on the evidence before me the option of changing the child’s residence is to promote the best outcome at present.

Conclusion

The Independent Children’s Lawyer took the position that there should be no change. Amongst other things, it was a matter of weight to the Independent Children’s Lawyer that the child was 11 and had expressed a strong view that she preferred to live with the mother and spend time with the father during school holidays.
Whilst the Independent Children’s Lawyer acknowledged that there was some merit in the father’s complaints about the mother, it was considered that the effect on X of a change in residence will be significant in circumstances where the parties live some 1200km apart. It was also considered that the impact may not be positive with the child who has expressed strong views and her wishes have not been respected.
It was noted that both parents appeared to have cared for X adequately and they did not appear to have any government intervention particularly in the case of when X was residing with her mother. This is particularly noted in view of the father’s proposal for X to spend holidays with her mother.
I accept this matter is finely balanced. I accept that there are concerns about the possible damage to the father’s relationship and forcing X to change her living arrangements.
I am however gravely concerned about the mother’s abuse of illicit substances and alcohol and her failure to engage in these proceedings.
I have formed the view that something needs to be done so that this child can enjoy her childhood and not have to accept the responsibilities of parenthood at this young age.
I would therefore make the orders set out at the commencement of these Reasons accordingly.

I certify that the preceding one hundred and fifty five (155) paragraphs are a true copy of the reasons for judgment of Judge Cole

Date: 30 January 2015

[2015] FCCA 183

30 January 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies