WYMAN & TODD

[2015] FCCA 15

FEDERAL CIRCUIT COURT OF AUSTRALIA

WYMAN & TODD [2015] FCCA 15

Catchwords:
FAMILY LAW – Parenting dispute – parents in relationship for about three years but never living together – relationship over before child born in late 2012 – father spending limited time with child – father lacking parenting skills and dismissive of courses designed to assist him – father failing to undertake drug tests – whether time should be suspended – whether final or interim orders appropriate – dispute over child’s name – interim orders made as sought by Independent Children’s Lawyer.

Legislation:  
Family Law Act 1975, s.60CC

Applicant: MR WYMAN

Respondent: MS TODD

File Number: MLC 11859 of 2012

Judgment of: Judge Burchardt

Hearing dates: 27 and 28 October 2014

Date of Last Submission: 28 October 2014

Delivered at: Melbourne

Delivered on: 19 January 2015

REPRESENTATION

The Applicant: In person

The Respondent: In person

Counsel for the Independent Children’s Lawyer: Ms Stavrakakis

Solicitors for the Independent Children’s Lawyer: Victoria Legal Aid

INTERIM ORDERS

1. Paragraphs 2, 3, 4 and 7 of the orders dated 1 October 2013 be discharged and paragraphs 7 and 9 of the orders dated 14 August 2013 be discharged. 

2. The child X (“the child”) born (omitted) 2012 live with the mother. 

3. The child born (omitted) 2012 spend time with the father as follows:

   (a)For 4 hours each Wednesday and Saturday from 10:00 am until 2:00 pm;

   (b)As otherwise agreed between the parents in writing. 

4. All time spent referred to in order 3 herein shall be in the substantial attendance of either the paternal grandmother or paternal aunt. 

5. Changeover shall occur at the mother’s residence. 

6. The father forthwith enrol, attend and successfully complete:

   (a)A Parenting Program through Lifeworks ((omitted)) or Tuning into kids program ((omitted)). 

   (b)A Post Separation Parenting Program through Lifeworks ((omitted)) or Catholic Care ((omitted)) and provide the mother and the Independent Children’s Lawyer with a copy of certificate of completion. 

7. The mother and child attend upon and complete a Sleep Improvement Program with (omitted) Child and Family Health Service and provide proof to the father and the Independent Children’s Lawyer of completion of the program or assessment that she has been assessed as not required to attend. 

8. In the event the father attends any changeover appearing to the mother as being under the influence of alcohol or drugs or is more than 15 minutes late for changeover, without having given written notice to the mother that he will be late, the mother will be at liberty to suspend the father’s time spent for that period without the mother having breached any orders referred to herein. 

9. The mother and father will keep each other advised, in writing, as to their current address and telephone contact details and advise each other, in writing, within 24 hours of any change to such details. 

10. The father will not consume any illicit substances or be effected by any illicit substances and/or alcohol during any time spent with the child. 

11. The mother and father shall be restrained by injunction from calling the child by any name other than “X”. 

12. The mother and father shall be restricted by injunction from:

    (a)Denigrating, abusing or insulting the other parent in the presence or hearing of X or permitting any third person from doing so. 

    (b)Exposing X to any family violence. 

13. Paragraph 8 of the orders made 14 August 2013 (relating to the father’s drug testing by the Independent Children’s Lawyer) remains in full force and effect. 

14. All extant final applications be otherwise adjourned to 19 & 20 November 2015 at 10:00 am. 

15. The mother, father and X attend upon a Family Consultant as nominated by this Honourable Court for the purposes of the preparation of an updated Family Report. 

16. All parties file and serve any affidavits they seek to rely upon 14 days prior to the final hearing. 

17. All parties file and serve an Outline of Case 3 days prior to the final hearing. 

18. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

19. Pursuant to Rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.

IT IS NOTED THAT:

A.The mother has already enrolled in Catholic Care Post Separation Parenting Program. 

B.Family Consultant Ms P prepared a Family Report dated 29 September 2014.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 11859 of 2012

MR WYMAN

Applicant

And

MS TODD

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a parenting dispute about the best interests of a young child, X born (omitted) 2012.

2. The applicant father seeks that orders be put in place for X to spend time with him on an unsupervised basis, essentially forthwith.  The mother’s position as ultimately articulated is coextensive with that of the Independent Children’s Lawyer. 

3. The Independent Children’s Lawyer’s position up until the commencement of the proceeding proposed final orders with a regime whereby X spend increasing amounts of time with his father albeit conditional upon various matters essentially to do with the father’s capacity to actually look after X in an effective way. 

4. Because of the way the evidence came out, however, the Independent Children’s Lawyer has proposed interim orders for a spend time regime with the paternal grandmother or paternal aunt in substantial attendance and the Independent Children’s Lawyer additionally seeks compliance by both parents with interim orders as to parenting courses, drug screens and the like. 

5. For the reasons that follow, I am going to make the orders sought by the Independent Children’s Lawyer. 

The materials filed by the parties

1. The father’s initiating application filed 24 December 2012 sought that the child live with the mother and spend time with him ultimately for eight hours per day on Saturdays and that an Independent Children’s Lawyer be appointed. 

2. The father’s affidavit in support filed contemporaneously asserts, and this appears to be common ground, that the parties met through family members in about 2006, began dating in 2008 and became engaged in 2009.  The parties did not marry. 

3. The father’s affidavit asserted that the mother was extremely religious and that this was what ultimately led to separation.  The affidavit deposed to the cessation of all contact between the mother and the father prior to X’s birth.  He deposed that he attended the hospital to see the child but was forbidden to hold him by the mother’s family.  At paragraph 12, the father deposed:

   “Prior to the birth of the child, the Respondent Mother and I had discussed naming the child X but she named the child X.”

4. The father went on to say he had had limited contact with the child and wanted to see him on an increasing basis.  He deposed that his last contact with the child was on 14 August 2012. 

5. The mother’s response filed 27 February 2013 proposed that the child live with the mother and spend supervised time with the father twice per week for two hours.  It also sought that the father undergoes supervised drug screen tests and attends an anger management program, together with the removal of the name X from the child’s birth certificate. 

6. The mother’s affidavit filed on 27 February 2013 confirms X’s date of birth and the dates of the relationship.  The mother deposed that the parents never lived together but separated in December 2011 (paragraph 5) “mainly due to religious differences and the father’s behaviour when he used drugs”. 

7. The affidavit deposed to difficulties arising out of the fact that the mother is (religion omitted) and the father was allegedly a (religion omitted).  The mother deposed to abusive text messages sent by the father to her and the limited time the father had spent with X. 

8. The mother deposed that the father had sought a different name to X and she annexed as T-1 a copy of the birth certificate showing X’s name as X. 

9. The mother went on to depose to the father’s use of cannabis and her resultant concerns.  She sought that all time be supervised and that X’s name be removed from the birth certificate. 

10. The mother filed a further affidavit on 3 July 2013.  She deposed to time spent between X and his father and iterated a complaint that the father had brought a friend with him, in breach of Court orders to spend time with X, and that the friend had been intimidating to her.  She further deposed that the father was frequently late at times when he was supposed to be spending time with X. 

11. The mother deposed to an incident on 20 April 2013 when the father arrived to collect X who was asleep in the pram.  The father’s endeavours to wake X up led to an argument between the parties and the mother deposed that in order to protect X, she hit the father and he retaliated by assaulting her.  Both parties phoned the police.

12. Intervention Order proceedings followed. 

13. The mother’s account of time spent between 11 May 2013 to the date of the affidavit is unremarkable, but the mother did also complain of the husband’s failure to undertake drug screens as required. 

14. On 20 October 2014 the mother filed an amended response.  She sought sole parental responsibility for the child, the removal of the middle name X and a regime of time spent on Saturdays, Tuesdays and Wednesdays for four hours in each instance. 

15. The mother sought that this time be conditional upon the father undertaking appropriate courses and the return of the child by 12:00 pm on Sunday to enable the mother to attend church.  She further sought that the time be supervised by the paternal grandmother or paternal aunt. 

16. The mother’s trial affidavit filed in support adds little to earlier material save that I note that following the hearing before the Court on 1 October 2013 the parents agreed that time would be extended to three hours each week on Wednesdays and Saturdays. 

17. In particular, the mother noted the objections by the father which would have the effect of preventing the mother from taking X to church and emphasised the importance of this in her life and that of X. 

18. The father filed an amended initiating application on 23 October 2014.  It should be noted that at this point he was still legally represented.  He sought equal shared parental responsibility and subject to completion of a parenting program with Lifeworks, increasing time, including ultimately half school holidays and time from 10:00 am Saturday to 5:00 pm Sunday. 

19. The father’s affidavit filed on the same date adds little to the material previously filed.  I note that the father did depose at paragraph 17 that since Court orders on 4 March 2014 “I spent time with X in accordance with the Orders”.  During the initial period of contact, the respondent mother supervised this contact. 

20. The father referred to and purported to adopt the recommendations of the family report.

The Family report

1. The family report of Ms P dated 29 September 2014 self-evidently speaks for itself.  Neither parent sought to cross-examine Ms P and I note the accurate submission of the Independent Children’s Lawyer that the decision not to cross-examine was taken at a time when both parties were legally represented.  It follows that save to the extent that it might be internally inconsistent (which it is not) or is overtaken by the march of the evidence, I am minded to accept what is in it. 

2. I note that the father was late to his appointment with the family report writer and I note the finding at paragraph 13, page 7:

   “Although Mr Wyman was polite and engaged with the interview process, throughout the interview he demonstrated a disregard for Court orders, and other forms of professional advice.”

3. At paragraph 18, page 8, Ms P recorded:

   “In a discussion about the incident at supervised time that led to family violence between the parents, Mr Wyman explained that he was attempting to wake X so he could spend time with him, and Ms Todd was attempting to prevent him from doing this.  Mr Wyman demonstrated low levels of understanding that his role as a father might involve caregiving duties other than simply playing with X.  Mr Wyman dismissed caregiving activities such as changing X’s nappy or feeding him as activities that “women” should take responsibility for, and he acknowledged that when he spent time with X he left those activities to his mother, sister, or Ms Todd if she was present.”

4. At paragraphs 20-23, Ms P recorded:

   “20.  In a discussion around how the Parenting Orders Program might assist the parents to understand and negotiate together around X’s needs, Mr Wyman said that he had not attended the program and had no intention of attending it in the future.  He claimed that despite being a first time father, he already knew about children’s needs and was dismissive of the idea that a parenting program might be of assistance to him.  He said he had only agreed to attend the program because at the Child Inclusive Conference, the family consultant, Mr S had advised him that the program would assist his co‑parenting communication with Ms Todd.  Mr Wyman said that as he is no longer having any difficulties with co-parenting communication, he doesn’t need to attend. 

   21.  Mr Wyman provided an equally unsatisfactory explanation to his refusal to provide clean urine screens as ordered.  He said that on the day of Court he was assured he could provide urine screens without incurring costs.  However, as the samples he provided demonstrated low creatinine levels they required further assessment and he incurred costs of $30 on three occasions.  Mr Wyman acknowledged in the past he had misused cannabis, but said this was no longer a problem.  He explained that the low creatinine levels were not a result of attempts to “flush” indications of substance misuse from his urine, but because a nurse had advised him to drink a large volume of water to ensure he was able to provide a urine sample.  Mr Wyman said that due to the costs he had incurred he was not willing to provide any further urine screens. 

   22.  In a discussion about the parental dispute over X’s name, Mr Wyman explained that this would be resolved by Ms Todd calling X “X” when he was in her care, and Mr Wyman calling him “X” when he was in Mr Wyman’s care.  He was dismissive of explanations that this might cause additional confusion to X that may contribute to the risk of poorer outcomes following family separation.  Mr Wyman said that he had been called both “(omitted)” and “(omitted)” as a child, and it had not been harmful to him. 

   23.  Overall Mr Wyman presented as focused on his own needs and wishes, unwilling to engage with support services or consider professional advice, and with low levels of insight about X’s developmental needs.”

5. The interview with Ms Todd was, in my view, unremarkable.  She reported an improved relationship with Mr Wyman, noting that he had recently taken X on a few outings by himself.  She was concerned about overnight time because she wanted Mr Wyman to have more practice of caring for X alone before further time took place.  When Mr Wyman took X to the zoo, X became distressed at one point and the father telephoned her so that she could soothe him.  She believed that the father’s home is unsuitable (something the father himself had said) and sought that time be spent at the paternal grandparents’ home. 

6. Ms Todd reported that she had attended four sessions with a counsellor at CatholicCare but had not attended the Post-separation Parenting Program because the father was not doing so either. 

7. Ms P noted that X still had no regular sleep routine and recommended that it would be difficult to transition to sleeping overnight in an unfamiliar location accordingly. 

8. Ms P noted that while the mother was aware that Mr Wyman had not provided any clean drug screens, she appeared unconcerned.  At paragraph 33, page 13 Ms P recorded:

   “Overall, Ms Todd presented as more anxious about Court processes than the concerns she raised about Mr Wyman’s parenting proposals when she had legal counsel.  This raises the possibility that in her efforts to avoid unrepresented attendance at Court, she might consent to parenting arrangements that may not be in X’s best interests.”

9. At paragraph 43, page 16 Ms P recorded:

   “X and Ms Todd used the work (sic) “(omitted)” frequently in their play, as had Mr Wyman and X.  During the observation Ms Todd explained that “(omitted)” was X’s name for himself.  This suggests that X is actively exploring his identity and may be confused by his father introducing an alternative name for him.”

10. The evaluation section of the family report speaks for itself.  I paraphrase by noting the reluctance of both parties to go to Court because of the risks of being disadvantaged.  I note that at paragraphs 49-50, page 18, Ms P recorded:

    “49.  The presentations of both parents at interview raise concerns about their ability to negotiate appropriate parenting arrangements in other ways.  Ms Todd’s presentation was highly reminiscent of a victim of violence who is attempting to ensure personal safety through acquiescent behaviour.  The concerns she had raised in affidavit material when legally represented, were no longer of concern to her when it appeared that by pursuing an appropriate resolution to these concerns would result in further Court attendances.  Mr Wyman’s presentation was that of an individual who is confident he can behave in whatever way he wants, for example continue to make arrangements he may not honour in future, because he believes that there will be no ramifications or consequences.  The parents’ presentations raised concerns that the unequal distribution of publicly funded legal support may be assisting a possible ongoing pattern of coercive controlling behaviour on the part of Mr Wyman, and that Mr Wyman was not strongly child focused. 

    50.  In relation to the central issue of progressing Mr Wyman’s time with X, Ms Todd’s concerns appear to be that Mr Wyman has insufficient parenting skills to progress beyond caring for X for more than four hours at the moment.  As the parents have only recently introduced periods of unsupervised time, and as Mr Wyman reports a refusal to engage with services, or perform certain parenting tasks that might assist him to develop parenting skills, the only appropriate assessment that can be made regarding Mr Wyman’s future development of parenting skills is that it will be slow.”

11. At paragraph 51 on page 19 of the report Ms P continued:

    “… In the interests of furthering the development of the positive relationship witnessed between X and his father, it is likely they would both benefit from the transition to overnight time not being rushed, and by overnight time being supported by the presence of either the paternal grandmother or aunt.  A transition to X spending overnight time with Mr Wyman will also be assisted by X having a stable sleep routine.  It is likely that X will benefit from attendance with one or both parents at a sleep programme as recommended by his medical practitioner.”

12. Ms P went on to make recommendations to progress the father’s time consistent with the material in the report.

13. It should be noted that I have not dealt with the oral report given by Mr S pursuant to the section 11F process in August 2013 as it has been well and truly overtaken by events. 

The submissions made and evidence given at Court – the father

1. The father explained that he was now qualified and seeking full-time employment.  He wanted time to commence on Saturdays and Sundays between midday and 4:00 pm for two months and then increase to six hours per day.  Following the completion of the courses he proposed to undertake he was seeking time from Saturday at 5:00 pm until Sunday at 4:00 pm. 

1. Having been called to give evidence and adopted his affidavits as true and correct, the father explained that he was now running his own business (duties omitted).  He may be called in to work on Saturdays but will finish by 4:00 pm. 

2. Under cross-examination by counsel for the Independent Children’s Lawyer, the father confirmed that his first clients were achieved two weekends ago.  He is seeking, however, a full-time job from Mondays to Fridays. 

3. When it was put to him that the mother wanted time to finish by 1:00 pm on Sundays because it was important for her to go to church, he agreed that the mother was very religious.  He said he had no issue with X’s faith.  He himself was Christian but had not attended church for a long time.  He said that four hours per day was not enough and, noteworthily, asserted that he would come to Court again if he does not get what he wants in this proceeding.  

4. He said that X sleeps until 10:00 am or 11:00 am but that if he woke up early, a spend time regime from 9:00 am until 1:00 pm would be okay.  He said it was more important for X to spend time with him than to go to church.  He confirmed that time would be spent at his mother’s house because there was trouble at the place where he actually lived (with a neighbour who is violent to his wife).  He also confirmed he does not have a cot. 

5. The father confirmed that although he had told the family report writer that he would not undertake a post-separation parenting course, he had since been told by his counsel that it was important for him to go through steps, including a toddler’s course. 

6. When pressed with the remarks at paragraph 38 of the family report about nappy changing and the like being women’s business, he said he was just being facetious.  He said it was a common thing for women to change nappies but he did not say it was women’s work. 

7. The father was taxed with his failure to undertake drug screen tests and said that he was not willing to do so because of the costs.  It emerged in cross‑examination that a number of tests had either not been undertaken or had revealed the presence of cannabis. 

8. The father asserted that the family reporter writer was wrong to say he would not comply with Court orders and he further asserted he had no anger management problems. 

9. He said he had had some unsupervised time with X at the zoo recently and he was strongly opposed to the orders proposed by the Independent Children’s Lawyer that the mother be able to cancel his time if he appeared to be under the influence of alcohol or drugs.  He initially accepted that a three-month period of the paternal grandmother supervising time would be satisfactory but then appeared to complain that this should not be the case. 

10. The father confirmed that he can communicate with the mother but they cannot agree. 

11. When pressed about the pram incident in April 2013, the father said this was a miscommunication and that the mother had misunderstood his intention and had assaulted him.  When it was put to him that he was pushing the pram, he replied rhetorically, “Why can’t a father do that?”

12. The father confirmed that X is healthy and happy and was well looked after by the mother and confirmed that he would undertake the post-separation parenting course. 

13. The father was cross-examined about the use of the name X.  He asserted that this had been agreed when the mother was pregnant but that she changed her mind and called the child X. 

14. The father said time could not start at 10:00 am on the weekends in the event that he had a client.  He said it was okay to increase to overnight time now. 

The evidence of the mother

1. The mother confirmed that she sought that the father spend time with X on Saturday, Tuesday and Wednesday from 10:00 am until 2:00 pm at the paternal grandmother’s residence.  Any time on Sunday should conclude at 1:00 pm.  She had already herself commenced a post-separation parenting course and agreed with the order proposed by the Independent Children’s Lawyer as to the cessation of time in the event that the father appeared to be under the influence of drugs or alcohol. 

2. Under cross-examination by the Independent Children’s Lawyer, the mother confirmed that her regime of time was directly interrelated with the fact that X attends childcare on Monday and Friday.  She said that 10:00 am until 2:00 pm was an appropriate regime because X is awake at 8:00 am to 8.30 am at the latest.  She confirmed that the increase to three visits per week had only happened in about the last eight months.  She also said on Wednesdays and on Saturdays she allowed one or two hours of time.  She would take X to a shopping centre or swimming.  Under further cross-examination it emerged that the father stopped taking X to his own mother’s house in about December 2013 or January 2014 and that time, in fact, had recently been spent at her own home.  For the last one to two months the father spends time with X unsupervised, but it emerged that what actually really happens is that the mother takes the child downstairs where she lives and the father plays with X outside with the mother looking on. 

3. On the occasion of the visit to the zoo, X was happy when he was leaving but then started crying for his mother.  The father called the mother for assistance and X eventually settled. 

4. The mother said she would prefer time to be supervised by the paternal grandmother as the father cannot change nappies. 

5. The mother conceded that she wants help with X’s sleeping, and she said that more recently X cries during the night after spending time with his father.  She had not told the father about this because he becomes offended easily. 

6. The mother said four hours’ time with the father was okay and it could not be supervised forever.  She was prepared to accept a supervision period of six months.  She wanted any overnight time to be at the paternal grandmother’s because most of the father’s friends take drugs at his house and there will always be drugs there. 

7. The mother went on to give evidence, not in her affidavits, that the father used to sell cannabis and that he had told her only two months ago that he was selling cannabis.  She herself does not take drugs.  She said it is very difficult to tell if the father is using drugs as he uses eye drops. 

8. The mother accepted that the end point of the spend time regime might be from Saturday 10:00 am until Sunday 1:00 pm. 

9. She confirmed that she has always been of (religion omitted) faith and that she attends church every Sunday and that some of her extended family attends also.  There are family gatherings after church in some instances. 

10. The mother sought an order for sole parental responsibility and said that the parties could only communicate if the father had his way.  If not, he cuts her off. 

11. The mother said she put X into childcare when he was one year old, because she wanted him to socialise, despite the father's disagreement.  The father, however, was ultimately impressed by the improvement in X’s speech that resulted. 

12. The mother confirmed again that she was undertaking a post-separation parenting course with CatholicCare but she said this would not help the parties much because the father always wants his own way.  

13. Nonetheless, the mother confirmed that it was important that X sees his father.  The mother said he needs to bond with his father and the father loves his son. 

14. The mother confirmed she does not have a strong relationship with the paternal grandmother and none whatever with the paternal aunt but she was satisfied that X would be okay with the father, provided one of these persons was present. 

15. The mother undertook to complete a sleep program recommended by her General Practitioner.  She denied hitting X and said she had not seen the father hit him. 

16. The mother gave evidence about the pram incident in April 2013.  She said the father wanted to wake X and kept pulling at the pram and was swearing at her.  The pram was about to fall so she slapped the father and called the police.  The father also called the police. 

17. The mother confirmed that she called X by that name from the start of his life and said that it confuses him to be called X. 

18. The mother confirmed that X is awake at 8.30 am at the latest and would be ready to see his father at 9:00 am.  He sleeps between about 4.30 pm to 5:00 pm for two to three hours. 

The submissions of the Independent Children's Lawyer

1. The Independent Children's Lawyer proposed interim orders.  X was to spend time each Wednesday and Saturday with the father for four hours between 10:00 am and 2:00 pm or as agreed in writing. 

2. The father's time was to be conditional upon substantial attendance of either the paternal grandmother or paternal aunt, this being a matter recommended by the family report and endorsed by the Independent Children's Lawyer. 

3. Counsel pointed out that in fact the evidence now showed that such time as the father had had, had been supervised. 

4. It was submitted that X needs stability and predictability and that it was noted that the family report recommended four hours twice per week.  The family report noted that the father had said he might not comply with Court orders and the mother had not complied with the post‑separation parenting course that had been ordered. 

5. Counsel noted that no concrete recommendation had been made about overnight time and the Independent Children's Lawyer's position was that it was not certain whether overnight time should start. 

6. Counsel noted that the father now adopted the position that he would undertake the courses he had previously neglected or refused to undertake, but also noted that he had not complied with the drug screen tests required of him. 

7. While counsel noted that the mother had not made a major issue of this in her affidavit material but still sought supervised time, the mother was now alleging that the father was dealing in drugs. 

8. Counsel went through the proposed schedule of orders noting that the father's objections on financial grounds to some courses were misconceived. 

9. I note that counsel was clear in her submissions that time could only now proceed on a cautious basis in light of the matters that had most recently emerged, including the fact that time had in fact been supervised by the mother and the revelations made about drugs. 

10. Counsel submitted that the father should be restrained from calling the child by any other name than X, and pointed to the confusion identified by the family report writer. 

11. Counsel submitted that it was inappropriate to make an order for parental responsibility in circumstances where these were interim orders only. 

Submissions of the mother

1. The mother was happy to adopt the submissions of the Independent Children's Lawyer. 

Submissions of the father

1. Mr Wyman submitted that effectively he would be restricted to four hours of time once per week if he does get a job, as Wednesdays would not be possible.  He opposed the ongoing requirement for supervision and said it would be hard to be with his son unless on his own.  He took issue with the proposed order that time be cancelled if he appeared to be under the effect of drugs and said the mother would use this to limit his time. 

2. So far as X's name was concerned, the father undertook to call him (omitted) and said he would call him X later.  He said he would tell him in some two to four years that this was the name he had given him and would, I infer, revert to call him by that name at that time. 

Findings about the credit of the witnesses

1. Although the father took issue with some of the things he had said to the family report writer, no challenge has been made to the family report writer in cross‑examination and I accept that the father said the things he was alleged to have said. 

2. The father was not a good witness.  His demeanour, by which I mean what he said and the way he said it, was entirely consistent with Ms P's observations of him.  Like Ms P, the father impressed me as a man who was of the clear view that he could do what he wished without negative consequences.  His answers to cross‑examination about his drug testing were utterly unconvincing.  His denial of asserting that changing nappies was woman's work was likewise wholly unbelievable.  His assertion that he was merely being sarcastic is not one I accept.  He said what he meant to Ms P.  He has but little in the way of direct parenting skills. 

3. Likewise the April 2013 incident clearly happened as the mother said it did.  Once again I regret to say that the father's evidence about this matter was utterly unconvincing. 

4. One area of the father's evidence I do accept is that he may well seek to come to Court again if he does not get what he wants.  This is consistent with his general position as I find it.  

5. The father's assertion that he had now, so to speak, seen the light and would undertake and benefit from the courses he has refused to undertake thus far must be approached with considerable caution.  His evidence was not given in any very convincing way. 

6. By contrast, the mother was an excellent witness who in my view responded directly and convincingly to cross‑examination.  Her evidence about what happened when the father took X to the zoo was given with transparent sincerity as was her version of the April 2013 incident. 

7. While a number of the things the mother revealed in her evidence had not been in her affidavits, I entirely accept Ms P's observation that the mother presented as somebody suffering from a measure of traumatisation and seeking to be submissive and avoidant as a result.  I further note that the mother at no stage denigrated the father's love for the child and I accept her answers that it is important for X to have a relationship with him. 

Findings about the facts

1. I have no doubt that this relatively ephemeral relationship was marked by controlling behaviour on the part of the father.  Agreement is only possible when he gets exactly what he wants.  He was palpably keen to have the dispute between him and the mother dealt with by what he would describe as agreement or negotiation, these being outcomes likely to be favourable to him. 

2. The parties separated (if you can use such a word when they never lived together) in 2011 prior to X's birth.  The father has had little time with X since.  This reflects the mother's reservations about the father's conduct generally and her very understandable and proper concerns as to his capacity as a parent.  The father, as Ms P indicated, is well attuned to the parts of his relationship with X that involve play and leisure time but plainly struggles with the nuts and bolts of parenting.  This should not be seen as excessively critical despite the father's slightly misogynist view of the world, because parenting is always problematic for every parent at its inception.  Of its nature, it has to be learnt by experience and practice and the father has not had the opportunity for much of it. 

3. The father's drug use is a matter of very considerable concern albeit that the drug screens referred to by the Independent Children's Lawyer are of some antiquity.  Given that the father has been, more probably than otherwise, dealing in cannabis, it is imperative that this aspect of his behaviour be clarified beyond doubt.  If he loves his son the father will find the money to pay for his drug testing. 

4. I have considerable reservations as to the extent to which the father will comply with Court orders.  His history is not convincing.  I will deal with the issue of X's name when I deal with the matters directly in issue between the parties. 

Should there be interim or final orders

1. Given the fact that the father has not spent unsupervised time with X and given the very significant issues about the father's possible drug use, it is immediately apparent that the Independent Children's Lawyer is correct to submit that the Court should not make final orders at this time. 

2. It is equally obvious, this being an interim hearing, and given that there has been family violence in any event, that the Court should not apply the presumption as to equal shared parental responsibility as being in X's best interests. 

3. Given that the presumption is not applied, and given that equal time and substantial and significant time within the meaning of the Family Law Act 1975 (“the Act”) are not contemplated by any party, it is clearly appropriate to move to consider the orders that will best promote X's best interests by reference to the matters in s.60CC of the Act.

The primary considerations - section 60CC(2)

1. There is no doubt that there is a clear benefit to the child in having a meaningful relationship with both his parents (s.60CC(2)(a)).  The materials taken as a whole, and more particularly the family report, make it clear that this is so. 

2. While it is clear there has been family violence, as I have already stated, there is no suggestion that X is at risk of physical or psychological harm in the care of either parent is a result of abuse, neglect or family violence.  In particular, there is no suggestion that the father would be physically violent to X. 

The additional considerations - section 60CC(3)(a)

1. Given his age, X has expressed no views but it is clear from the family report that his primary attachment is to his mother. 

Section 60CC(3)(b)

1. The relationship between the mother and X is holy unremarkable.  She has been his primary carer since birth and he has a close and bonded relationship with her. 

2. The nature of X’s relationship with his father is slightly more difficult.  X plainly loves his father and the father plainly loves him.  Nonetheless, the father’s lack of insight as described by the family report suggests that he “was not strongly child focussed (paragraph 49),” and that at paragraph 51:

   “there are indications that X’s temperament and developmental progress may increase the difficulties Mr Wyman faces in developing his parenting skills.  X presented as having a strong personality and he is clearly progressing through the identity development stage of refusing to comply with requests.  At observation Mr Wyman demonstrated little insight into this stage and responded with an authoritarian approach.  Both parents report that Mr Wyman telephones Ms Todd for parenting advice, and during the observation he admitted to tiring quickly as a result of X’s energy and demands.”

3. In the circumstances while, as the family report noted, X has a positive relationship with his father, it is in a sense somewhat untested as the father has not had unsupervised time with X and has not developed, on one view, any significant parenting stills.  This means that the relationship with his father has not, by any means, settled into a clear pattern of every day activity. 

Section 60CC(3)(c)

1. There has been little opportunity for the parents to make long‑term decisions about X’s future, save that the mother has effectively ensured that he has been brought up in the (religion omitted) faith.  The father’s failure to press a challenge in this regard does him no discredit in my view.  He has accepted the reality of the situation.  The father, in my view, has sought properly to spend time with the child although I note the various difficulties referred to by the family report and summarised immediately above. 

Section 60CC(3)(ca)

1. The mother has undoubtedly fulfilled her obligations as a parent.  The father has not been, as I would find, wilfully deficient in this regard but the march of events has meant he has had little opportunity to maintain the child.  He does not appear to have contributed in any significant way financially but in this regard I note that he has until recently been a student.  It may well be that he would have struggled to assist in any significant way in any event. 

Section 60CC(3)(d)

1. This is an important subsection in the circumstances of this case.  X has never spent any extensive time with his father on his own.  Indeed on the only occasion that emerges with any real clarity from the evidence, namely the trip to the zoo, he was at least for a while distressed and required the assistance of his mother to sustain the experience.  In my opinion, the evidence points conclusively to the proposition that the submission of the Independent Children’s Lawyer should be accepted.  Progress should be slow, safe and sure.  Any significant immediate separation from his mother is likely to be damaging and upsetting to X.  

Section 60CC(3)(e)

1. Nothing in the material suggests that expenses are in themselves a significant matter in regard to X spending time with his father.  The practical difficulty, however, of X spending time with his father is that his father is not adept in the day-to-day care of a small child.  This difficulty can, however, be ameliorated as the Independent Children’s Lawyer seeks by ensuring that the time that X spends with his father is spent at the home of the paternal grandmother and with either the paternal grandmother or paternal aunt in substantial attendance. 

Section 60CC(3)(f)

1. As already indicated, the mother is well able to provide for X’s needs.  The father is capable of doing so in the sense of providing him with love and affection and with playing with him.  As the family report noted, however, the father lacks insight in a number of ways and it is appropriate that he undertake the courses that the Independent Children’s Lawyer proposes to assist him in this regard. 

Section 60CC(3)(g)

1. There is nothing about the mother’s maturity, sex, lifestyle and background that in my view require particular attention.  I note her profound religious faith to which the father does not object.  This will cause her to bring her son up in the faith to which she has herself subscribed and there is nothing of any moment in that.  The father’s lifestyle is a matter of concern.  The mother’s, albeit late and unheralded, evidence which I accept that the father may have been selling drugs in the last two months, and undoubtedly told the mother that he was, is a matter of significant concern.  The drug screen testing proposed by the Independent Children’s Lawyer will address this issue as best it can be. 

Subsection 60CC(3)(h)

1. This is irrelevant. 

Section 60CC(3)(i)

1. Although these matters are important, the attitudes of the parents to the child, which are uniformly loving, and the responsibilities of parenthood, in which the father presently has some deficiencies, are already sufficiently indicated above. 

Section 60CC(3)(j)

1. As already indicated more than once there has been family violence in this case but it is not at a level that now impacts in any significant way. 

Section 60CC(3)(k)

1. Once again, while there have been family violence orders, they do not now seem to be of any moment. 

Section 60CC(3)(l)

1. While I would infer that the father would wish this court proceeding come to an end, the position adopted by the Independent Children’s Lawyer and supported by the mother is plainly in X’s best interests.  There is simply not enough known about the father’s drug use as a result of his failure to comply with drug screen testing to contemplate final orders at this stage.  Furthermore, the identified deficiencies in the father’s competence as a parent need to be addressed before any significant expansion of time with X can occur. 

Section 60CC(3)(m)

1. The matter that emerges in my view from the materials as a whole that is a concern additionally to the other matters already described is the father’s obvious distain for Court orders and the probability that he will conduct himself as he sees fit in the future as the family report writer observed.  The father’s remark that if he did not get what he wanted in this proceeding he would simply return to Court again, shows a disturbing degree of self-centeredness and an inherent lack of appreciation that Court orders, when made finally, are the end of the matter.  I have no doubt that he has tended to control the mother in the past and will seek to do so in the future.  It is very possible that cultural considerations, given that both as I understand it are from Tigray (although the father did make a reference to Sudan at one point), may impact upon the way the parties interrelate.  All of this only goes to reinforce the desirability of making the orders on an interim basis as the Independent Children’s Lawyer seeks. 

X’s name

1. This is part of the case that is, perhaps, somewhat concerning.  The child has always lived with his mother who has christened him X and calls him X.  The child is clearly being called X by the father who chose that name.  The father does not seem to understand that referring to him by a different name, even if it is one that X may be developing himself ((omitted)), is only likely to confuse him as the family report writer noted. 

2. X, at the age of two, it would appear, is just starting to develop in a significant way and it is vital that his sense of identity not be confused.  Given that he will live for the vast preponderance of time with his mother, he should be called X. 

3. It is plainly desirable that the father be restrained, as the Independent Children’s Lawyer seeks, from using any other name.  I remain concerned that the father said in Court that, in effect, he would wait for three or four years and then, as it were, seek to reintroduce X as the child’s name. 

4. A name of a child is not a proprietary interest belonging to the parent.  The name of the child is an integral part of his or her identity and both parents need to understand that whatever they may have wished for in the past, this is an issue capable of being seriously damaging to X’s best interests and it is for that reason, not for any partisan view of the parties, that the Court is acceding to the position of the Independent Children’s Lawyer.  

Conclusion

1. All the orders sought by the Independent Children’s Lawyer make eminent sense.  Although the father is strongly opposed to an order that the mother be in a position to suspend the father’s time in the event that he attends under the influence of alcohol or drugs or is more than 15 minutes late for changeover without notice, it is clear that that order should be made.  The father says the mother will use this simply to suspend time and it is of course possible that that may occur.  The mother, however, needs to understand very clearly that any such pattern of behaviour by her is only likely to damage her case at final hearing of the matter very strongly.  The mother, like the father, impressed me as being articulate and intelligent.  She will read these reasons for decision and I have no reason to doubt she will understand that the order thus made is not an empowering measure that she is entitled to use in any sort of capricious way.  It must be used for its express purpose and not for any other reason. 

2. The other orders sought in my view speak for themselves and are designed to address various difficulties in the parents’ capacity to understand and care for X and there will, therefore, be interim orders in the form proposed by the Independent Children’s Lawyer.  Subject to submissions, the trial will be heard on 19 and 20 November 2015 at 10:00 am. 

I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  19 January 2015