AS & NB
[2005] FMCAfam 338
•5 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AS & NB | [2005] FMCAfam 338 |
| FAMILY LAW – Parenting – competing interim residence applications – mother alleged alcoholic – father allegedly violent. |
Family Law Act 1975 (Cth)
Cowling’s Case (1998) FLC 92-801
| Applicant: | AS |
| Respondent: | NB |
| File Number: | NCM 939 of 2005 |
| Judgment of: | Sexton FM |
| Hearing date: | 4 July 2005 |
| Delivered at: | Newcastle |
| Delivered on: | 5 July 2005 |
REPRESENTATION
| Solicitors for the Applicant: | The Family Law Firm |
| Solicitors for the Respondent: | Anne Day & Associates |
THE COURT ORDERS UNTIL FURTHER ORDER:
That the parties have joint responsibility for making decisions about the long term care, welfare and development of the children of the relationship, AMB born 22 January 2001, now 4 years and MIB born
1 August 2003, now almost two years.
That the mother have responsibility for making decisions about the day to day care of the children when they are in her care and the father have responsibility for making decisions about the day to day care of the children when they are in his care.
That until Wednesday 13 July 2005, AMB remain living with the father and MIB remain living with the mother provided that she remains living with the maternal grandmother, Ms MS and the maternal grandmother or her partner, Mr TM, supervise such residence and in the event the mother changes her place of residence, MIB remain living with his maternal grandmother and Mr TM.
That for a period of 3 weeks commencing Wednesday 13 July 2005, both children reside with the mother, supervised by the maternal grandmother or Mr TM from Wednesday at 4.00 p.m. until Saturday at 4.00p.m each week, provided that the mother remain living with the maternal grandmother, and in the event the mother changes her place of residence, the children reside with the maternal grandmother for the same periods and it is noted that in the event the mother moves to ZZ during the 3 week period, the maternal grandmother will visit the mother with the children at ZZ at times permitted by the Manager of ZZ.
That from Wednesday 10 August 2005, provided that the mother is living at ZZ, or at the residence of the maternal grandmother, the children reside with the mother as follows:
(a)Each alternate Wednesday from 4.00p.m. until the following day Thursday, at 4.00p.m commencing 10 August 2005.
(b)Each alternate Thursday from 4.00p.m. until Saturday at 4.00p.m commencing 18 August 2005.
(c)At all other or alternate times as agreed between the parties.
In the event the mother is not living at ZZ or at the residence of the maternal grandmother, the children will reside with the maternal grandmother during the mother’s residence periods referred to in Order (5) herein and it is noted the mother will make the necessary arrangements with the maternal grandmother to have supervised contact with the children during those periods, provided that if the maternal grandmother is not able to care for the children, the children will reside with the father during the mother’s residence periods.
That the children reside with the father at all other times.
For the purpose of residence changeovers, unless otherwise agreed between the parties or between the father and the maternal grandmother, the father or the paternal grandmother shall collect and deliver the children to and from the maternal grandmother’s residence or to and from ZZ.
That the mother, forthwith upon admission to ZZ, provide the necessary authorities to enable ZZ to provide regular reports to the father as to the mother’s progress during the period of her residence and the mother to provide the necessary authorities to enable the family report writer to contact ZZ to discuss the mother’s progress at the time of preparation of the family report.
That the children have liberal telephone contact with the other parent when in each party’s care and the parent with whom the children are residing shall facilitate such contact.
That within 4 weeks of order, the father do all things and sign all documents necessary to authorise the day care centre attended by the children to provide information concerning the children’s welfare and progress to the mother, upon her reasonable request.
That each party notify the other party as soon as practicable if either of the children require any emergency medical treatment or hospitalisation whilst in the care of that party.
That each party notify the other party in writing of any change to his or her residential address and/or landline and mobile telephone number not less than 14 days before such change takes place.
That neither party denigrate or permit any other person to denigrate the other party or any member of the other’s party’s family or household in the presence of or hearing of the children or any of them.
That each party be restrained from swearing or behaving abusively in the presence or hearing of the children or either of them.
That each party be restrained from discussing these proceedings or any matter connected with these proceedings in the presence of the children or either of them.
That the mother provide a copy of these Orders and Reasons for Judgment to the Manager of ZZ forthwith upon her admission.
That pursuant to Section 65DA(2) 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 Annexure A and these particulars are included in these orders.
THE COURT FURTHER ORDERS:
That these proceedings be adjourned for final hearing before me at the Parramatta Registry in Sydney at 10.00a.m. on 21 November 2005 for two days.
That the applicant pay the trial fee or obtain a waiver of that fee by
4 p.m. on 7 November 2005.
That the parties file and serve any affidavits upon which they intend to rely at hearing by 4 p.m. on 7 November 2005.
That pursuant to section 62G of the Family Law Act, a family report be prepared addressing identified in the memorandum on the court file.
That each party have liberty to re-list in relation to the implementation of these orders at 3 days notice.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT newcastle |
NCM 939 of 2005
| AS |
Applicant
And
| NB |
Respondent
REASONS FOR JUDGMENT
Applications
These are proceedings for interim parenting orders in relation to two children, AMB born 22 January 2001, now 4 years [“AMB”] and MIB born 1 August 2003, now almost two years [“MIB”].
These proceedings were commenced by the mother who filed an application on 11 April 2005 seeking residence of the children on a final and an interim basis and a recovery order in relation to AMB.
At hearing, the mother amended the orders she sought on an interim basis. She asked that her residence order become operative shortly after providing evidence from ZZ to her solicitor that she has been accepted and has commenced her residence there and that accommodation is available for the children. She sought an order that ZZ advise the court and the parties’ solicitors if the mother leaves or the children are absent otherwise than in accordance with these orders and the children will then be returned to the maternal grandmother or the father. The mother sought flexible orders in relation to the children’s contact with their father, depending on the father’s availability. Mr Coyle for the mother said the mother would agree in effect to a shared care arrangement pending further order.
The father filed his response on 15 April 2005 seeking, on an interim basis, residence of the children, an order that the children have contact with the mother one weekend per month and half school holidays as long as she resides with the maternal grandmother and is supervised by the maternal grandmother.
At hearing, the father amended the orders he sought in relation to contact, to an order that, until the mother enters ZZ, the children have 4 nights on alternate weekends with the mother at the home of the maternal grandmother and in Sydney at any time, upon the mother giving the father notice. Once the mother enters ZZ, the children have contact one night on each alternate weekend and one night during each week.
Orders were made by His Honour Justice Purdy on 21 April 2005 which provided for AMB to remain living with the father and MIB to remain living with the mother until further order of this court.
Both parties were represented at hearing.
Background
The mother was born on 24 September 1968. She is 36 years old.
The father was born 26 August 1967. He is 37 years old. The father was married previously and has two children aged 12 and 9 from that marriage. Those children live with their mother at CH and see the father by agreement with their mother.
The father works full time in the parties’ nursery business known as RGC, located close to the father’s residence. The mother is not in paid employment.
The parties commenced living together in or about October 1998.
There are two children of the relationship, AMB now 4 and MIB, nearly 2. MIB suffers from what was referred to as a “slightly incompetent heart valve” for which he has required specialist care but otherwise the children are well.
In March 2004 MIB was admitted to STGH for assessment and the Department of Community Services was contacted. This led to MIB living with the maternal grandmother. The father said the parties then separated, that AMB went to live with the maternal grandmother in June 2004 and the mother joined the children at her mother’s residence when she was discharged from a rehabilitation facility in July 2004.
The mother says the parties separated in June 2004 when the mother left the former matrimonial home in the Sydney Metropolitan area to live with her mother and her partner, Mr TM on their 6 acre property in Northern New South Wales.
In February 2005 AMB moved to live with the father in the Sydney Metropolitan area.
AMB attends day care on Mondays and Tuesdays, close to the father’s residence and place of work.
At the time of hearing, MIB was living with the mother at the home of the maternal grandmother in Northern New South Wales and AMB was still living with the father in the former matrimonial home.
Issues
The court was asked to decide the question of interim residence of the two children.
The relevant law
The overriding principle in determining parenting issues is that the best interests of the children are the paramount consideration. The Full Court in Cowling & Cowling (1998) FLC 92-801 held that in determining an interim residence application, the best interests of the child will normally be best met by ensuring stability in a child’s life pending a full hearing of all relevant issues. The Full Court held that if a child is well settled the child’s stability will usually be promoted by an order providing for a continuation of that arrangement. The Full court said where a child is not in a well settled environment at the date of hearing, some limited evaluation of the matters referred to in s.68F(2) needs to be undertaken to ensure the child’s best interests are promoted.
Evidence and findings
It was conceded by the mother that she suffers from alcohol dependence, and that she has suffered from this condition since well before the birth of the children. The mother has had a number of hospital admissions since AMB’s birth as a result of her alcohol dependence, her most recent admission being March 2005. The father deposed to the mother also suffering from depression. It was conceded by the mother and corroborated by the maternal grandmother in her oral evidence that after a period of abstinence between late March and early June 2005, the mother had relapsed and was still drinking at the time of hearing. The documents tendered in the hearing from the NSW Police Service, the Mater Hospital and the Department of Community Services corroborate evidence of the mother’s continuing alcohol abuse. The mother gave very little detail of the impact of her alcoholism on her relationship, her children or her mother and her mother’s partner. However, the mother conceded she had been unable to attend court on 21 June 2005 as a result of being intoxicated. In her affidavit sworn
6 May 2005 the mother said she was no longer drinking and had enrolled in the alcohol rehabilitation course at ZZ, a live in course, where mothers can reside with their children. She deposed to planning to complete the course and then to seeking accommodation independently of her mother. In her later affidavit sworn 1 July 2005 the mother deposed to relapsing from a period of abstinence on or about 6 June 2005 and to an intention to apply for admission to ZZ when the interim proceedings are finalised. She said the management told her they could not accept her while court proceedings are current. She annexed a statement from the office administrator of ZZ which states the residency programme usually extends from 9-12 months. It states that there are special facilities offered for children of the residents.
The mother relied on:
·Her affidavits filed 6 May and 1 July 2005;
·The affidavit of her solicitor, David Coyle, filed 6 May 2005;
·The affidavit of her mother, Ms MS, filed 6 May 2005.
The mother deposed to caring for the children after separation until February 2005 when the father removed AMB from her care without her consent. Mr Coyle on her behalf, submitted that on the principles enunciated in Cowling’s Case the court should make an order that AMB and MIB live with the mother at ZZ, as this was close to the status quo prior to the father removing AMB in February 2005, and best promoted the children’s stability. The father opposed the children living in a rehabilitation facility.
The mother said in her affidavit that between separation and January 2005 the father had contact with the children on only about 6 occasions despite her open invitation to him to visit the children in Northern New South Wales at any time. However, on 5 October 2004 the father came to Northern New South Wales uninvited and took AMB. The next day the mother said the father threatened to burn the house down, the police were involved and he was taken to the RPAH for a psychiatric assessment. AMB was returned to the mother the following day.
On 27 February 2005 the parties agreed to AMB having contact with the father for about a week or so. The mother said two weeks later she went to Sydney to work on the books of the parties’ business and to collect AMB. She said the father assaulted her while she was staying at the Sydney Metropolitan home. He later forced her into his car and took her back to Northern New South Wales, and took AMB back with him to Sydney, where she has remained apart from the Easter period when the mother deposed to AMB staying with a close friend of the mother’s and later to staying with the father’s first wife in CH.
The mother complained of the father being violent and abusive prior to their separation. She detailed incidents of the father’s aggression and loss of temper. She deposed to the father punching her to a state of unconsciousness, slapping her face and to threatening her. She said he was convicted of assaulting her in October 2003 and she obtained an AVO against him. She deposed to the father pouring rum on her head in March/April 2004 and trying to light it with a cigarette lighter. She complained of the father downloading pornographic material. The mother deposed to the father losing his temper with AMB when she was 18 months old, and dropping her onto a timber floor. She deposed to the father having a limited relationship with MIB who was a difficult baby as a result of suffering intestinal pain.
The maternal grandmother deposed to observing the father behaving inappropriately at times and to displaying a quick temper.
The father relied on:
·His affidavits filed 15 April 2005, 19 April 2005 and 27 June 2005.
The father denied ever being physically violent towards the mother though acknowledged they had been involved in heated arguments and that he had been convicted of assault in October 2003. His version of the events deposed to by the mother was markedly different and related to the mother’s alcohol abuse. For example, in relation to the petrol incident, the father said he tried to take a bottle of rum from the mother and the police were called resulting in him consenting to an AVO without admissions. He denied pushing or hitting the mother but admitted being angry when he came home to find the mother drunk and AMB needing to be fed. He said the mother sometimes rang him 4-5 times an hour. He himself sought an AVO against the mother for himself and the two children in or about April 2005. In relation to AMB’s move from Northern New South Wales to live with him in February this year, the father said he had visited the children on 20 February 2005 and stayed overnight. He said the mother was drinking and was clearly intoxicated. The maternal grandmother asked him to take AMB as she said caring for two children and her alcoholic daughter was too much for her. He deposed to this conversation between the maternal grandmother and the mother: “You are losing custody. I can’t cope anymore. I am giving NB AMB”. The mother said “you are not taking my dog.” Although the maternal grandmother denied this conversation, she conceded she told the father she was struggling with the load she was carrying. The father, in his latest affidavit, deposed to conversations with the maternal grandmother and Mr TM last month when he realised the strain they were under trying to manage MIB and the mother. This was despite their obvious love for MIB.
In January 2005 the father said the mother came to Sydney to complete a BAS statement for the business. She came into the father’s room in the early hours of the morning and threatened to kill herself. The father said the mother came to Sydney in March 2005 and was drinking methylated spirits and mouthwash. She had fallen several times and was admitted to hospital overnight. The father said he drove her back to her mother’s on 21 March 2005.
The father said he agreed that the children should live with the mother and her mother immediately after separation, because he was working and the mother was unable to manage the children alone because of her alcohol dependence. He made efforts to arrange contact with the children after separation, but had difficulties making satisfactory arrangements given his long working hours. He annexed to his affidavit correspondence from his solicitor in relation to his proposals for contact. He said he was aware the maternal grandmother was struggling with so much responsibility and after collecting AMB in February, expected MIB to follow as he thought the maternal grandmother needed a break.
According to the father, the incident when he kept AMB overnight in October 2004 occurred after the mother removed financial records from his home after spending a week at his home drinking.
The father said he regarded it as very important that the children live together. He said AMB was missing MIB and he did not think they should be separated again. He said if his application for interim residence was successful, he would try to arrange day care on some of his working days at BSLDC centre where AMB attends two days a week now, and attended from the age of 6 months. He said MIB also attended for a short time prior to the parties’ separation. He said his mother was arranging to move closer to his home in the Sydney Metropolitan area and would help him with the children. He said his mother was now working at the GC in the coffee shop on weekends and hoped to change her working arrangements to spend more time there. She was currently available to help every Thursday. He said he has casual help in the garden centre and if necessary would employ someone for additional hours. He said he could be more flexible in his work arrangements to ensure time to care for the children. He said he was confident he had the skills necessary to care for the children as he had cared for them many times prior to the parties’ separation. He said AMB was doing well since she moved to live with him. He said he would consult a paediatrician about MIB’s general progress and health. The father proposed the maternal grandmother and Mr TM visit the children whenever possible. He recognised the importance of the children’s regular ongoing contact with the mother. He set out his proposals in relation to the children’s care in some detail in his latest affidavit.
Findings
In interim proceedings of this kind where the parties are not cross-examined, I am not able to make findings in relation to the factual disputes between the parties nor findings as to either party’s credit. However, I am satisfied on the basis of the evidence of both parties and the maternal grandmother that the mother’s dependence on alcohol is a serious and longstanding problem and has had a tragic impact on her ability to care for the children. I am satisfied the mother is incapable of caring for the children in her present condition and has been depending on her mother and Mr TM to act as the children’s parents for much of the period since July last year. I am satisfied the mother has lost sight of the needs of the children as a result of her condition. The father described a terrible incident relayed to him by Mr TM when about 3 weeks ago, Mr TM left clear instructions for the mother in caring for MIB while he went out. On arriving home some hours later, he found MIB screaming, having been neglected by the mother all day, and the mother asleep in another room. I have no doubt that at times the father has behaved inappropriately and until these proceedings commenced has accepted the assistance given him by the maternal grandmother without taking all the necessary steps he might have himself to accept his parental responsibilities. However, I am satisfied the father is now committed to caring for both children, as he has been for AMB for several months and is committed to lifting the load from the maternal grandmother’s shoulders, realising it is possible the mother may not recover in the short term.
There is almost no evidence before me as to how the children are managing in their present circumstances. AMB has seen very little of her brother in the last 5 months and very little of her mother. MIB has seen very little of his father and his sister and as I said during the course of the hearing, I have concerns about MIB leaving his maternal grandmother, Mr TM and his mother, given his young age and his limited recent contact with his father. The maternal grandmother gave some short oral evidence in these proceedings. She is very supportive of her daughter and very attached to her grandchildren, but she asked me to limit her obligations in relation to transporting the children and I am satisfied she is tired and her role as a substitute parent should be decreased over time. I accept her evidence when she said it has been a terrible situation living with an alcoholic daughter.
As said earlier, it was submitted on the mother’s behalf that the court should follow the principles set out in Cowling [paragraph 28]. It was submitted that given the very young ages of the children, the history of parenting arrangements between the parties during the marriage, the proposed arrangements for the children’s care in the foreseeable future by each party, the children’s stability can be best promoted by a residence order in favour of the mother. It was submitted that the arrangements which pertained after separation, when the children were with the mother and the maternal grandmother can continue at ZZ where the mother’s care of the children can be supervised by the staff of the centre.
It was submitted on the father’s behalf that the status quo has been unsatisfactory for the children and that’s why this hearing was necessary. Mr Boyd for the father said the mother’s behaviour has been so unreliable that to leave the children with her would pose an unacceptable risk to them. Mr Boyd submitted that the mother had tried rehabilitation in the past unsuccessfully, and although the mother should be encouraged in her endeavours to overcome her addiction, it should not be at the expense of the children’s welfare. He submitted the mother should have regular contact with the children if she entered ZZ but the children should reside primarily with the father.
I am not satisfied this is a case where there has been a satisfactory status quo which should continue in the interests of the children. The maternal grandmother and her partner played the substantial parenting role after separation until February 2005 when the father took over AMB’s care. They have continued to parent MIB. The mother has abstained for no more than a few weeks. The children are living apart from one another. The present situation cannot continue.
This is a sad and difficult case. I have no doubt the mother wants to get better. However, there is no evidence before the court at this stage, to satisfy me the mother is in a position to accept the majority responsibility for the children’s care. In fact the evidence is to the contrary. The mother has to focus on getting well. At this interim stage, I am satisfied that as long as the children have regular contact with the mother, and MIB is given the opportunity over a few weeks to adjust to the care of his father while still seeing his mother and maternal grandmother very regularly, the children’s interests will best be served by orders which will provide for the children to spend the majority of their time with the father. The orders I will make provide for AMB to continue Day Care on Mondays and Tuesdays each week as she is presently, in preparation for school starting for her next year.
I am satisfied the orders I have made are in the best interests of the children on an interim basis.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Sexton FM
Associate: Collette McFawn
Date: 5 July 2005
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