B & S-B
[2007] FMCAfam 962
•26 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & S-B | [2007] FMCAfam 962 |
| FAMILY LAW – Parenting orders – interim – principles to be applied – factors considered – mother’s mental illness – father’s criminal and drug history. PRACTICE AND PROCEDURE – Whether power to transfer proceedings to Family Court of Western Australia – no power. |
| Family Law Act 1975 (Cth), ss.60B, 60CC(2), (3), (4) and (4A), 61DA(1) & (4) and 65DAA(1) & (3) Federal Magistrates Act 1999 (Cth), ss.3, 39(1), (2) & (4) and 42 Federal Magistrates Court Rules 2001 (Cth) rr.1.03 and 16.01 The Constitution Ch III |
B & B [2007] FMCAfam 82
Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346
Goodall v Nationwide News Pty Ltd [2007] FMCA 218
Hungerford & Tank [2007] FamCA 637
L & T (1999) FLC 92-875
T & N (2003) FLC 93-172
| Hassall & Steele (Eds), Federal Magistrates Court Guidebook (Sydney: Thomson Law Book Co) P. Parkinson, ‘Decision-making about the best interests of the child: The impact of the two tiers’ (2006) 20 AJFL 179 |
| Applicant: | R G B |
| Respondent: | A S-B |
| File Number: | NCC 1511 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 28 September 2007 |
| Date of Last Submission: | 28 September 2007 |
| Delivered at: | Newcastle (by Lapthorn FM) |
| Delivered on: | 26 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hannaway |
| Solicitors for the Applicant: | Hannaway Lawyers |
| Counsel for the Respondent: | Ms Manning |
| Solicitors for the Respondent: | Aboriginal Legal Service of Western Australia |
ORDERS THAT UNTIL FURTHER ORDER
The parents have equaled shared parental responsibility for the child A C B born 28 March 2000.
The child live with the father.
The child spend time with the mother as follows if the mother is in the P M Area:
(a)During non-school holiday periods:
(i)From 5.00pm to 8.00pm on any Monday and Thursday;
(ii)From 9.00am to 6.00pm on Saturday.
(b)During gazetted New South Wales school holidays
(i)From 9.00am on the first Saturday to 9.00am on the second Saturday of the non Christmas school holidays;
(ii)From 9.00am on the fourth Saturday to 9.00am on the sixth Saturday of the Christmas School holidays.
(c)At any time agreed between the father and the mother.
(a)The mother may communicate with the child by telephone on Monday, Wednesday and Friday (when not spending time with the child) between 6.00pm and 7.00pm for not more than ½ hour;
(b)The mother is to initiate the call to the father's telephone number informed to the mother under Order 6;
(c)The father is to ensure that the child is available to take the mothers call;
(d)The father and the mother may agree on such other telephone communication as they see fit.
Neither party shall consume or be under the influence of illicit drugs during any time spent with the child.
The parties shall keep each other informed of their current residential addresses and telephone numbers, and will notify each other within 24 hours of any change to their residential address or telephone number.
The father will notify the mother in the event that the child is seriously injured, and will authorize medical practitioners to provide information to the mother.
The father will authorize the child’s school to send to the mother copies of reports, school photograph application forms and newsletters and any other school documents as requested by the mother.
The child A C B born 28 March 2000 is to be separately represented, and the Legal Aid Commission New South Wales is requested to arrange such representation.
Both parties must provide to the Legal Aid Commission New South Wales copies of any relevant orders and reports forthwith.
Both parties must provide the Legal Aid Commission New South Wales with copies of any applications and affidavits on which the party relies forthwith.
The Registry Manager is requested to forward a copy of these orders promptly to the Senior Solicitor, Family Law Litigation, of the Legal Aid Commission New South Wales.
The mother's application for transfer of the proceedings to the Family Court of Western Australia is dismissed.
The matter is adjourned to 9.30am 26 November 2007 for a directions hearing.
All extant applications for interim orders by both parties are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1511 of 2007
| R G B |
Applicant
And
| A S-B |
Respondent
REASONS FOR JUDGMENT
Introduction
A C B[1] was born on 28 March 2000.
[1] “Child”.
Her parents are the applicant, R G B[2] and A S-B.[3]
[2] “Father”.
[3] “Mother”.
The parents separated in 2004 or 2005, having married in 2002, having lived together since 1991.[4]
[4] Affidavit of R G B, sworn 8 May 2007, paras. 4, 5, & 8.(“Father’s First Affidavit”); Mother’s Affidavit, sworn 13 August 2007, paras. 3 and 6 (“Mother’s Affidavit”).
The Child presently lives with the Father in P M in northern New South Wales. The Child lived with the Mother in Western Australia, but was removed by the Father in November 2006. The Child had lived variously in Western Australia and New South Wales with both or one of the parents until November 2006.[5]
[5] Father’s First Affidavit, para. 9; Mother’s Affidavit, paras. 3-9.
In this case the Father seeks interim orders that the Child continue to live with him. The Mother seeks orders that the Child be delivered up to her in Western Australia, and therefore live with her. Various ancillary orders are also sought.
Issues
The issues in this case are:
a)whether equal shared parental responsibility ought be ordered, or whether one of the parents ought have sole parental responsibility;
b)whether the Child should be delivered up to the Mother in Western Australia, and therefore live with the Mother in Western Australia, or live with the Father in New South Wales;
c)dependent upon the outcome of the delivery up/live with issue, how much time the Child ought to spend with each parent;
d)whether the Father ought to be drug tested;
e)whether an independent children’s lawyer ought to be appointed; and
f)whether proceedings ought to be transferred to the Family Court of Western Australia.
Hearing and Orders
This matter was heard in the Newcastle duty list on 28 September 2007. At that time the Court made orders, until further order, as follows:
(1) The parents have equaled shared parental responsibility for the child A C B born 28 March 2000.
(2) The child live with the father.
(3) The child spend time with the mother as follows if the mother is in the P M Area:
(a) During non-school holiday periods:
(i) From 5.00pm to 8.00pm on any Monday and Thursday;
(ii)From 9.00am to 6.00pm on Saturday.
(b) During gazetted New South Wales school holidays
(i) From 9.00am on the first Saturday to 9.00am on the second Saturday of the non Christmas school holidays;
(ii)From 9.00am on the fourth Saturday to 9.00am on the sixth Saturday of the Christmas School holidays.
(c) At any time agreed between the father and the mother.
(4)
(a) The mother may communicate with the child by telephone on Monday, Wednesday and Friday (when not spending time with the child) between 6.00pm and 7.00pm for not more than ½ hour;
(b) The mother is to initiate the call to the father's telephone number informed to the mother under Order 6;
(c) The father is to ensure that the child is available to take the mothers call;
(d) The father and the mother may agree on such other telephone communication as they see fit.
(5) Neither party shall consume or be under the influence of illicit drugs during any time spent with the child.
(6) The parties shall keep each other informed of their current residential addresses and telephone numbers, and will notify each other within 24 hours of any change to their residential address or telephone number.
(7) The father will notify the mother in the event that the child is seriously injured, and will authorize medical practitioners to provide information to the mother.
(8) The father will authorize the child’s school to send to the mother copies of reports, school photograph application forms and newsletters and any other school documents as requested by the mother.
(9) The child A C B born 28 March 2000 is to be separately represented, and the Legal Aid Commission New South Wales is requested to arrange such representation.
(10 )Both parties must provide to the Legal Aid Commission New South Wales copies of any relevant orders and reports forthwith.
(11) Both parties must provide the Legal Aid Commission New South Wales with copies of any applications and affidavits on which the party relies forthwith.
(12) The Registry Manager is requested to forward a copy of these orders promptly to the Senior Solicitor, Family Law Litigation, of the Legal Aid Commission New South Wales.
(13) The mother's application for transfer of the proceedings to the Family Court of Western Australia is dismissed.
(14) The matter is adjourned to 9.30am 26 November 2007 for a directions hearing.
(15) All extant applications for interim orders by both parties are dismissed.
The Court told the parties that it would deliver reasons for judgment at a later date.[6] These are those reasons.
[6] The delivery or publication of reasons for judgment at a later date is a course open to this Court. The Court is to act as informally and expeditiously as possible: Federal Magistrates Act 1999 (Cth), ss.3 and 42, (“FM Act”); Federal Magistrates Court Rules 2001 (Cth) r.1.03 (“FMC Rules”), and the FMC Rules expressly provide for the Court to give any judgment or make any order at any stage in a proceeding: r.16.01; and to use streamlined procedures: r.1.03. The Court, whilst not expressly a superior court is not an inferior court either, exercising powers in relation to concurrent jurisdiction with the Family Court in many aspects of the FL Act, and with the Federal Court in many areas (including, for example, workplace relations and bankruptcy), and to the exclusion of the Federal Court in many aspects of migration law, where this Court now exercises the original jurisdiction of the High Court with the power to issue prerogative relief. The combination of powers and jurisdiction make it clear that the Court is neither superior nor inferior (in the traditional nomenclature), but rather the lowest level Ch III Court under the Constitution, and one with power to make orders and deliver judgment separately.
Interim Parenting Orders – principles and procedures
The judgment of the Full Court of the Family Court of Australia in Goode & Goode[7] concerned interim parenting orders. The Full Court of the Family Court of Australia in Hungerford & Tank,[8] a case concerning final orders, said that the failure to follow the steps laid out in Goode was an error of law. The steps identified in Goode are as follows:
[7] (2006) 206 FLR 212; [2006] FamCA 1346 (“Goode”).
[8] [2007] FamCA 637 at para. 62 per Warnick, May and Boland JJ.
“(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”[9]
[9] Goode, FLR at 235-236 per Bryant CJ, Finn and Boland JJ; FamCA at para. 82 per Bryant CJ, Finn and Boland JJ. See also B & B [2007] FMCAfam 82 at paras. 2-5 per Wilson FM (“B & B”).
Equal Shared Parental Responsibility
The FL Act presumes that there will be equal shared parental responsibility.[10] The presumption is rebuttable.[11]
[10] FL Act, s.61DA(1).
[11] FL Act, s.61DA(4).
In this case each parent seeks sole parental responsibility. Various matters were put against each parent by the other parent.
The Father says the Mother:
a)has psychiatric conditions which make her unfit to take responsibility for the Child;[12]
b)failed to take care of the Child when the Child was living with her in Western Australia leading up to late November 2006;[13] and
c)failed to take care of her other Children (by two other fathers other than the Father).[14]
[12] Father’s First Affidavit, paras. 31-36, 38 and 126.
[13] Father’s First Affidavit, paras. 39, 61, 64 and 66.
[14] Father’s First Affidavit, paras. 57-59.
The Mother says the Father has a drug and criminal history which makes him unsuitable to care for the Child.[15]
[15] Mother’s Affidavit, paras. 2, 3, 6, 7 and 23.
Time Spent
The Court must consider whether the Child spends equal time with each parent, that being presumed to be in the best interests of the Child.[16] Equal time with each parent is qualified by a requirement that it be reasonably practical.[17]
[16] FL Act, s.65DAA(1)(a).
[17] FL Act, s.65DAA(1)(b).
In this case equal time is impractical. The parents live at opposite ends of the Australian continent. It will therefore be necessary for the Court to determine which parent the Child is to live with, and having determined which parent will be the live with parent, how the Child can spend time with the non-live with parent, and whether it be substantial and significant time, or other time.[18]
[18] FL Act, ss.65DAA(3) and 60CC; Goode FLR at 236 per Bryant CJ, Finn and Boland JJ; FamCA at para. 82(g)-(j).
The question therefore becomes how much substantial and significant time, or other time, the Mother should spend time with the Child. To determine this question it is necessary to have regard to the relevant primary and secondary considerations in, and underlying objects of, the FL Act.[19]
Primary Considerations – section 60CC(2)
[19] FL Act, ss.60CC(2), (3), (4) and (4A) and 60B.
Benefit to the Child of having a meaningful relationship with both parents – section 60CC(2)(a)
There is no doubt that the Child ought have a meaningful relationship with both parents, and if the Child does so the Child will, or will be likely to, benefit from that relationship.[20]
[20] P. Parkinson, ‘Decision-making about the best interests of the child: The impact of the two tiers’ (2006) 20 AJFL 179 at 184.
In this case because of the issues that each of the parents has it will be difficult for the Child to have a meaningful relationship with both parents. The issues of the parents are compounded by the geographical distance between them. It is, nevertheless, not an optimal relationship which is prescribed by the legislation, but rather a meaningful relationship, which must mean the most meaningful relationship possible in all of the circumstances of a particular case.
In this case, the factors set out above (and the factors considered below in relation to the best interests of the Child):
a)favour equal shared parental responsibility;
b)the Child spending time with the non-live with parent.
Risk of Harm to the Child – section 60CC(2)(b)
Mental illness
The Father asserts that the Mother has a mental illness, in that she suffers from bi-polar disorder.[21] The Mother says that she does not suffer from bi-polar disorder, but rather depression.[22]
[21] Father’s First Affidavit, paras. 31-32.
[22] Mother’s Affidavit, para. 13.
On 24 November 2006 the Father says that the maternal grandmother rang him and told him that:
a)the Mother was unwell in the psychiatric ward of F Hospital;
b)the Child was “extremely neglected”; and
c)asked the Father to come to P to collect the Child.[23]
[23] Father’s First Affidavit, paras. 38-40.
By 25 November 2006 the Father was in P, and says that he met with the Mother in hospital as arranged by the maternal grandmother.[24] The Father says the Mother consented to the Child going to New South Wales with the Father, and in fact made a phone call to facilitate the necessary arrangements. Because the Mother says that she was not prepared to allow the Child (or any of her other children) to be cared for by the maternal grandmother,[25] the Father’s assertion that the Mother made the arrangements seems to make sense. However, the Mother disputes that she gave consent and says that the Child was removed “without my consent or prior knowledge”.[26] In any event, having collected the Child the Father flew back to P M on 26 November 2006.[27]
[24] Father’s First Affidavit, paras. 41-46.
[25] Mother’s Affidavit, para. 9.
[26] Mother’s Affidavit, para.18.
[27] Father’s First Affidavit, paras. 41-50.
The Father says that he has regular contact with the Mother’s sister and the Mother’s sister says that the Mother is “not well”, “talks about suicide”, “is mental”, “talks to herself”, is “like a zombie” and “talks really slow”.[28] The Mother says that the sister has told her that she did not say these things to the Father.[29] It is not possible to resolve that dispute on the evidence as it presently stands. Nor is it possible to determine the dispute as to whether or not the Mother consented to the Child coming to New South Wales. Based on the evidence however it cannot be in dispute that the Mother has some form of mental illness, and although she says it is depression,[30] the Court notes that she been diagnosed with a form of psychosis.[31] Further, it is evident that the maternal grandmother was sufficiently concerned for the welfare of the Child in November 2006 for her to call the Father and indicate that he ought to come and collect the Child.[32] The Mother, in any event, thought the Child “would be alright for a while with her father until I recovered.”[33]
[28] Father’s First Affidavit, para.126.
[29] Mother’s Affidavit, para.17.
[30] Mother’s Affidavit, para.13.
[31] See para. 24 below.
[32] Father’s First Affidavit, para.40.
[33] Mother’s Affidavit, para. 13.
The Mother says that she fell ill in September 2006, was psychotic and “very unwell”, ultimately being diagnosed with “organic thyroxin psychosis.”[34] The Mother was hospitalised for a further three days in November 2006, and it was during this hospitalisation that the Father removed the Child to New South Wales.[35]
[34] Mother’s Affidavit, para. 8.
[35] Mother’s Affidavit, para. 9.
In January 2007 the Mother was hospitalised for two months.[36]
[36] Mother’s Affidavit, para. 11.
The Mother now has an “official carer”.[37] The Mother’s official carer is her brother and the Mother lives with her brother, his girlfriend and four of her six children (excepting the Child and her oldest child)[38].
[37] The precise meaning of this term was not explained, or able to be explained, to the Court by Counsel in the course of the interim hearing.
[38] Mother’s Affidavit, para.11.
The Mother sees a psychiatrist every two months, has weekly home visits from a psychiatric nurse and a therapist, and has Aboriginal social worker support.[39]
[39] Mother’s Affidavit, para.14.
The Mother says that she is not bi-polar but depressive and is not suicidal.[40]
[40] Mother’s Affidavit, para. 13-14.
The Mother was readmitted to hospital in August 2007 for four days to regularise her medication.[41]
[41] Mother’s Affidavit, para.12.
Care of the Child and other children generally
The Father says he asked about the other children when the Mother was in hospital at the time that he arranged to collect the Child.[42] The Father says that she told him that:
“I don’t care. They’re old enough. They’ll learn by their mistakes.”[43]
[42] Father’s First Affidavit, para.51.
[43] Father’s First Affidavit, para.52.
Assuming the very youngest child (at that time was aged 2-3) is excluded, the Mother would have been talking about four children aged from nine to ten years old to fifteen to sixteen years old. There is no denial of this statement by the Mother.
In January 2007 the Father says that he was contacted by the maternal grandmother concerning the Mother’s intentions with respect to the Child. It would appear that the Mother had expressed some intention of applying for a recovery order, or at least perhaps a delivery up order, for the Child. The Father says that the maternal grandmother told him that the four older children (those referred to in the immediately preceding paragraph) had been reported to “welfare”, but “welfare” had been unable to find them, and those children had been living on the streets for a period of time.[44]
[44] Father’s First Affidavit, paras. 54-59.
The Mother says that she was in hospital in September 2006 and arranged for all six children to be looked after by a cousin. She says that the cousin neglected them. The three oldest children were living on the streets for some time. The Mother then came out of hospital, seemingly temporarily, and arranged for the children to go into the care of her brother’s ex-wife. The Mother says that she asked the Department for Community Development for help, but they refused or failed to arrange foster care for the children. The Mother says that she refused to allow the Department for Community Development to allow the maternal grandmother to look after the children, but is aware that the maternal grandmother did look after the older children for a while.[45] The Mother says that she resumed care of all six children on her discharge, and that on her subsequent readmission to hospital for three days in November 2006, the Father came and took the Child with the assistance of the maternal grandmother and without her consent or prior knowledge.[46]
[45] Mother’s Affidavit, para. 9.
[46] Mother’s Affidavit, paras. 10-11 and 23.
The Mother went back into hospital for two months in January 2007. She does not say who looked after the other five children during this period of hospitalisation.[47]
[47] Mother’s Affidavit, para. 11.
Since March 2007 the Mother says that she has cared for all of the children, except the Child, and the oldest of the children, who is on custody remand in a juvenile detention centre.[48]
[48] Mother’s Affidavit, para. 11.
As indicated above, the Mother presently lives with her brother and his girlfriend, her brother being her official carer. In relation to her existing arrangements the Mother says:
“D [her brother] does much of the housework including washing clothes and cooking food, while I look after the children’s needs with assistance from the F Hospital’s Family Support.”[49]
[49] Mother’s Affidavit, para. 12.
There is no indication from the Mother as to what she does by way of looking after the children’s needs, but it is evident that whatever is done is done with assistance, and that the brother does a substantial amount of the everyday caring by washing clothes and cooking food. The paucity of details contained in the Mother’s description of the current arrangements is such as to cause the Court concern, for it seems she has no particular idea or plan about the care of the Child, or the other children.
Care of the Child and the father’s drug use
When the Father took the Child from Western Australia he graphically describes her then condition as:
a)skinny;
b)malnourished;
c)with big grazes on her knees;
d)with matted hair;
e)with nits in her hair; and
f)with her stomach sticking out,
in a word “ill”.[50]
[50] Father’s First Affidavit, para. 61.
The Father took the Child to see a doctor in P M, who described her stomach as “not too bad”, and prescribed antibiotics for the Child’s knees, which were infected, and on which the Father now says there are “large scars”.[51]
[51] Father’s First Affidavit, para. 62.
The Father also says that the Child was very scared when she first came back to New South Wales, and used to have dreams, waking up in the night screaming.[52]
[52] Father’s First Affidavit, paras. 66-68.
The Father also says that the Child had holes in her teeth, and complained of pain, and has since had two teeth removed and filled, with a further tooth to be filled.[53]
[53] Father’s First Affidavit, paras. 79-80.
The Father says that the Mother has lived in at least forty different houses over the last eleven years, and moves every few months.[54] It is apt to note that for significant periods of this eleven years the Mother and Father were living together.
[54] Father’s First Affidavit, paras. 107-108.
The Mother’s Affidavit does not deny any of the Father’s evidence concerning the condition of the Child at the time the Child was taken by the Father to New South Wales.
The Father says that:
a)he has treated the nits;
b)has been feeding the Child good food and cooking her healthy nutritious meals;
c)the Child is generally fit and healthy;
d)the nightmares have stopped;
e)he and the Child go to the park together;
f)he and the Child watch TV together;
g)he helps the Child with her homework;
h)the Child goes swimming at a heated swimming pool each Saturday morning; and
i)the Child has toys, dolls and a push bike.[55]
[55] Father’s First Affidavit, paras. 63, 65, 69, 72-77.
The Child has her own bedroom in a two bedroom unit rented by the Father.[56]
[56] Father’s Affidavit, sworn 22 August 2007, para. 5 (“Father’s Second Affidavit.”).
The Child has been going to a local primary school for all of 2007, thus far, and the Father walks to and from school with her.[57] The Child is doing well at school and the Father has spoken to the teacher on a number of occasions.[58]
[57] Father’s First Affidavit, paras. 97 & 99; Father’s Second Affidavit, paras. 8-10.
[58] Father’s First Affidavit, paras. 98 & 100-101; Father’s Second Affidavit, para. 9.
The Mother concedes that the Child has strict times for play, dinner, bath and TV.[59] That at the very least indicates that the Father is taking ordered steps to care for the Child.
[59] Mother’s Affidavit, para. 21.
The Father’s mother lives in close proximity to his residence. She spends time with both the Father and the Child. The Child calls her “Nan”. The Father says the Child has a close relationship with the paternal grandmother.[60]
[60] Father’s First Affidavit, paras. 82-85; Father’s Second Affidavit, para.3.
The Father admits to having been in gaol twice:
a)in 2000 for breaking and entering, at a time he says he was using marijuana, and spent one year of a two year sentence in gaol; and
b)in 2004 for unlicensed driving for three months.[61]
[61] Father’s First Affidavit, paras. 110-113.
The Father asserts that he no longer uses drugs.[62] However, his Counsel advised the Court at the interim hearing that the Father had been admitted into a detox unit because of the use of drugs immediately preceding the interim hearing. There is no indication that criminal charges were involved and the stay in the detox unit was seemingly not to be a long one. However, it does indicate that the Father continues to use drugs.
[62] Father’s First Affidavit, para. 111.
The Mother says that the Father went to gaol for two years in 2000 for drug related offences, and that the Child was in her care during that period.[63] On the Father’s release from gaol in 2002 the Mother and Father were married. However, the Mother says that in September 2003 the Father again began to abuse drugs and she took the children to Western Australia to spend time with the maternal grandmother. She returned to New South Wales with the children in December 2003. The Mother says that the Father was again remanded in custody in mid 2004 for further drug offences. He was released to do a drug program, but the Mother says that he again began to abuse drugs and she separated from him in September 2004 eventually returning to Western Australia in 2005 with all of the children. The Mother says that the Father was sentenced to twelve months goal in 2005 and was not released until 2006.[64]
[63] Mother’s Affidavit, para. 3.
[64] Mother’s Affidavit, paras. 3-4 and 6-7.
On the basis of the available admissible evidence it appears that the Father uses drugs, probably marijuana. There is little doubt that drug use has the ability to affect the welfare of a child and parenting capacity, for if a parent who uses drugs “cannot be free and alert from substance abuse … [the parent] cannot properly care for young children who would rely upon … [the parent] to have their needs met.”[65] However, caution must be exercised. In L & T the Full Court of the Family Court said:
“It would not be, in our view, a proper exercise of the “welfare” power for a Court to place limits on a parent’s conduct unless it could be demonstrated that those limits were necessary for the welfare of the child. Even then, careful consideration would need be given to the right of the parent to conduct their life as they see fit.”[66]
[65] T & N (2003) FLC 93-172 at 78, 761 per Moore J.
[66] (1999) FLC 92-875 at 86, 392; [1999] FamCA 1699.
In this case the evidence of drug use by the Father cannot be said to give rise to any present demonstrable link between the Father’s drug use and the welfare of the Child or the Father’s parenting capacity. There is simply nothing on the evidence which establishes that the circumstances of the Child’s welfare or the Father’s parenting would be any different, or sufficiently different to warrant adverse conclusions being drawn, if she did not use drugs, particularly marijuana to which this case is limited.
It is therefore not appropriate to order that the Father undergo drug testing, or to impose any relevant conditions or restraints, save that neither parent be under the influence of illicit drugs when living with or spending time with the Child.
Overall, the Court has come to the view that the Child is receiving, and is likely to receive, a better standard of care living with the Father rather than the Mother, and notwithstanding the Father’s drug use, there is less risk of harm to the Child living with the Father than the Mother. This factor therefore favours the Child continuing to live with the Father.
Other considerations – section 60CC(3)
Views expressed by the Child – section 60CC(3)(a)
No admissible views were expressed by the Child.
Relationship of the Child to parents and other significant persons – section 60CC(3)(b)
The Father has been in and out of the Child’s life. He has been in prison for at least two periods, on his own admission, of fifteen months during the Child’s life. The Mother asserts that he has been imprisoned for a longer period but it is not possible to resolve this dispute on the evidence presently before the Court. However, in the time that the Child has lived with the Father recently (some ten months at the time of hearing) the Father appears to have built a close, caring and loving relationship with the Child. For example, he assists the Child with the homework, watches TV with her, takes her swimming on Saturday mornings and walks to and from school with her.
The only other person of significance on the Father’s side appears to be the paternal grandmother. She lives in close proximity to the Father and Child. The Child calls her “Nan”, and they appear to have a close relationship.[67]
[67] Father’s First Affidavit, paras.82-85; Father’s Second Affidavit, para.3.
The Mother appears to have been the primary carer for the Child until November 2006. On the available evidence the quality of that care is clearly in question. The Mother’s evidence does not address the quality of the care afforded to the Child whilst the Child was in her care, and does nothing to allay concerns arising from the parlous condition of the Child when she was taken to New South Wales by her Father in November 2006.
The Mother gives no evidence of the nature of her relationship with the Child. She says that the Child is part of a large family and that her siblings miss her.[68] The Child has five other half siblings. Two older brothers aged sixteen and ten. The oldest brother is in juvenile detention. She has two older sisters aged fifteen and thirteen. On the evidence, at least three of these children, and possibly four, have spent some time in the last twelve months living on the streets. It now appears that they are living with their Mother with her brother. The youngest half sibling is aged two and the product of an unfaithful relationship by the Mother while married to the Father.[69]
[68] Mother’s Affidavit, para.18.
[69] Father’s First Affidavit, paras. 18, 20, 22-30; Mother’s Affidavit, para.4.
The maternal grandmother appears to have also had a role in endeavouring to care for all of the children, and, at least in part, her intervention has resulted in the Child living with the Father since November 2006.
Given the sibling relationships, the presence of the Mother and her brother, and the maternal grandmother, this is a factor which would ordinarily favour the Mother. However, one has to look at the quality of the relationship concerned. In this case, the Child was clearly in a very poor state of health whilst living with the Mother. The Mother’s other children have lived on the streets, and the eldest is in juvenile detention. Two factors are most telling in this regard:
a)the Mother says nothing of the nature of her relationship and interaction with the Child, in the way that the Father does in relation to daily events, such as homework, school, TV, going to the park and swimming; and
b)it was the maternal grandmother who called the Father to come and take the Child to New South Wales.
In the circumstances, the Court is satisfied that the quality of the relationship between the Father and the Child, and (on the limited evidence available) the Child and paternal grandmother, is of sufficient quality and strength to outweigh the fact that the Mother, and a number of half siblings and relatives reside in Western Australia with whom the Child has previously had a relationship, noting that they are not relationships which appear to have been of significant benefit to the Child in the past.
Parental facilitation and encouragement of a close and continuing relationship between Child and other parent – section 60CC(3)(c)
The Father does not give evidence about this matter to any significant degree. He does however note that the Child does not ask about the Mother and does not want to talk about her.[70]
[70] Father’s First Affidavit, para.78.
The Mother says that she initially rang or tried to ring the Child every day after she went to New South Wales.[71] The Mother asserts that the Father has made phone contact difficult and says that recently when she rang she was told by the Child that it was play time and to ring back later, but when she rang back in the evening the phone was not answered.[72] The Mother does however note that she was aware that the Father has strict time for the Child to play, for dinner, bath and watching TV.[73]
[71] Mother’s Affidavit, para.15.
[72] Mother’s Affidavit, para.21.
[73] Mother’s Affidavit, para.21.
Neither parent gives any particularly detailed evidence as to how they would go about facilitating or encouraging a close and continuing relationship between the Child and the other parent in the event that they are the live with parent.[74] On the evidence it is apparent that the Father may not have been as diligent as possible in ensuring that the Child contacts the Mother regularly, or in allowing the Mother to contact the Child regularly, to facilitate a close and continuing relationship.
[74] Father’s First Affidavit, paras. 114-121; Mother’s Affidavit, para.23.
This is probably a factor which overall is neutral in an assessment of with which parent the Child ought live.
Likely effect of changes in the Child’s circumstances – section 60CC(3)(d)
The Child has now been with the Father for ten months at the time of hearing. The Child is settled in year one at school. The Child is healthy and well cared for, and looked after by the Father or his mother. The Father has given evidence of his involvement with daily and weekly activities (homework, walking to and from school, watching TV and swimming on Saturdays) with the Child as well as the involvement of his mother with the Child.
There is clearly a concern in relation to the Father’s involvement and exposure to drugs. The Court has to be cognisant of the effect that the Father’s involvement with drugs might have on the welfare of the Child. On the evidence of the Child’s time with the Father there is no cause for concern, save for his recent admission to a detox unit. Whilst of concern, that admission does not appear to have affected the Child (at least on an interim basis there is no evidence of that).
The Court has to balance the Child’s care and welfare whilst living with the Father against the evidence of the Child’s care and welfare whilst the Child was living with the Mother, and what might happen if the Child were to return to Western Australia. It suffices to say that the Court is not satisfied that the Mother would be the primary carer of the Child, she being under the care of an official carer herself. It seems more likely that her brother, who is her official carer, will be primarily responsible for the care of the Child. The condition of the Child when the child was taken to New South Wales, raises significant concern about the Mother’s capacity to care for the Child in any event.
The Court is satisfied that there would be an adverse effect on the Child if she were to be removed from her current settled circumstances in New South Wales. The Court is not satisfied that the level of care presently afforded to the Child would be given to the Child in Western Australia.
On balance this factor favours the Child continuing to live with the Father on an interim basis.
Practical difficulty and expense of Child spending time and communicating with parents – section 60CC(3)(e)
The geographical distance between the parents means that it will be difficult for the Child to spend much time with the non-live with parent.
The geographical difficulties are compounded by the parties poor financial circumstances. Both parties financial circumstances are such that it is not realistically possible to set in place a regular regimen of visits by the Child to the non-live with parent as the cost of air travel is beyond the parent’s means, at least on a regular basis.
This factor is neutral: but it means that the Child will have to live with one or other parent, and that it will be impracticable for the non-live with parent to spend substantial and significant time with the Child on an interim basis.
Capacity to provide for the needs of the Child – section 60CC(3)(f)
Both parents are, as indicated above, in poor financial circumstances. The Father, however, has in the ten months that he has had the Child seemingly provided a safe home and regular meals for the Child, together with meeting the Child’s other daily needs in terms of school and various activities.
It is apparent that the Mother was not able to provide for those types of needs of the Child prior to the Child being taken to New South Wales in 2006.
On the basis of the evidence the Mother has provided to the Court, the Court is not confident that the Child’s care would not revert to what it was prior to November 2006.
The Court also notes that the Mother does not appear to have had any concerns about the Father looking after the Child while she was in hospital. She says:
“As I was ill and in hospital, I thought that A would be alright for a while with her father until I recovered.”[75]
[75] Mother’s Affidavit, para.13.
That statement rather takes the edge off the Mother’s alleged concerns about the welfare of the Child because of the Father’s drug use and the possible effect of that on the welfare of the Child.
The Father has demonstrated a capacity to provide for the needs of the Child within the limitations of his poor financial circumstances, and notwithstanding the concerns about his drug use. The Mother has not demonstrated that capacity, and there is nothing in her material to demonstrate that she is better able to provide for the needs of the Child on an interim basis.
This factor favours the Child continuing living with the Father on an interim basis.
Maturity, sex, lifestyle and background of Child and Parents – section 60CC(3)(g)
This matter is adequately dealt with in the preceding paragraphs of the Reasons for Judgment.
Aboriginal and Torres Strait Islander Child – section 60CC(3)(h)
The Mother’s father was apparently Aboriginal. The Child has, according to the Father, not had much to do with the Aboriginal culture.[76] The Father does however note that if the Child wants to know more about Aboriginal culture in the future that he is happy to assist her.[77]
[76] Father’s First Affidavit, paras.89-90.
[77] Father’s First Affidavit, para.91.
The Mother alleges that the Father has told her that he wants nothing to do with Aboriginals.[78] Otherwise, the Mother gives no details relevant to the Child’s aboriginal heritage.
[78] Mother’s Affidavit, para.16.
For interim purposes there is insufficient evidence for the Court to draw any conclusions about the Child’s aboriginal heritage and culture.
Attitude to the Child and parental responsibilities – section 60CC(3)(i), (4) and (4A)
This matter is adequately discussed in the preceding paragraphs in the Reasons for Judgment.
Family Violence or Family Violence Orders involving the Child or a member of the family– section 60CC(3)(j) and (k)
There is no evidence of family violence or family violence orders in this matter.
Order less likely to lead to further proceedings – section 60CC(3)(l)
This is not a consideration in this matter which is listed for further directions on 26 November 2007.
Consideration
Having had regard to all of the factors, both primary and secondary set out above, the Court considers that, for interim purposes, the best interests of the Child are served by the Child living with the Father. In particular the Court notes that:
a)there is less risk of harm to the Child whilst living with the Father. This is not withstanding the Father’s drug use and his recent admission to a detoxification unit. The Mother’s psychiatric illness renders her unable to look after herself, she has an official carer. The condition of the Child when the Child was living with her is the clearest evidence of her inability to care for the Child and the risk of harm to the Child if the Child lives with the Mother. To some degree that is reinforced by the circumstances of the four oldest children, the oldest of whom is in juvenile detention and the other three of whom have from time to time been living on the streets whilst in the care of their Mother or other persons. Put simply, there is a greater risk of harm to the Child in the care of the Mother than in the care of the Father;
b)the qualitative relationship between the Father and the paternal grandmother and the Child in P M is better than that between the Mother, and the Child’s other half siblings and relatives in Western Australia;
c)the Child’s circumstances are such that she is presently settled, healthy and well cared for, and the likely effect of change on an interim basis by returning her to Western Australia, is for reasons outlined above, such that it would have an adverse effect upon her; and
d)the Father has demonstrated a capacity above and beyond that of the Mother to provide for the needs of the Child notwithstanding that both the Father and Mother are in poor financial circumstances.
Transfer to the Family Court of Western Australia
The Mother sought transfer of these proceedings to the Family Court of Western Australia.
There is no power in this Court to transfer proceedings to the Family Court of Western Australia. There is a power to transfer proceedings to the Family Court of Australia but not otherwise.[79]
[79] Federal Magistrates Act, 1999 (Cth), s.39(1), (2) and (4) (“FM Act”).
Were it necessary to consider a transfer proceedings, based on matters to which the Court must have regard and outlined in s.39(4) of the FM Act, the Court would have come to the conclusion that a transfer of the proceedings would not have been ordered because:
a)there are no proceedings with respect to an associated matter pending in the Family Court of Western Australia;
b)the resources of this Court are sufficient to hear and determine proceedings;
c)there is nothing in the interests of the administration of justice which requires the proceedings to be heard in Western Australia rather than New South Wales, and facilities (video-link[80] and telephone) are available to allow witnesses in Western Australia to be heard in New South Wales;
d)the case does not appear to involve questions of general importance;
e)it is unlikely that if the proceeding is transferred that it will be determined at less cost in the Family Court of Western Australia;
f)the question of convenience to the parties if the proceeding is transferred is probably neutral, given the distance the parties are apart geographically, one party or the other is going to be significantly inconvenienced by the matter being heard in this Court in New South Wales or the Family Court of Western Australia in Western Australia;
g)it is likely that the proceeding will be heard earlier in this Court, given that proceedings have already commenced and there is a further directions hearing on 26 November 2007;
h)there is no evidence that the availability of particular procedures appropriate to this class of proceeding favours a transfer;
i)the wishes of the parties are neutral, the Father wishing to keep the proceedings in this Court in New South Wales, the Mother wishing to transfer proceedings to the Family Court of Western Australia; and
j)it is unlikely that the hearing of the matter would take longer than two days.
[80] See for example Goodall v Nationwide News Pty Ltd [2007] FMCA 218, a case “which provides detailed guidance for any litigant and legal advisors in relation to the matter of video-link evidence in the court”: Hassall & Steele (Eds), Federal Magistrates Court Guidebook (Sydney: Thomson Law Book Co) at para. 2.1550.
Conclusion
In all the circumstances, and having regard to all the factors outlined above, the Court has determined that the Child ought to live with the Father on an interim basis pending final hearing. Orders will also be made to facilitate regular tri-weekly telephone communication with the Mother, and for the Mother to spend time personally with the Mother if she is in the P M area.
It is appropriate that an independent children’s lawyer be appointed in this case and an order to that effect has been made.
Other usual ancillary orders have also been made.
For the reasons set out above the Court concluded that there was no power to transfer the proceedings to the Family Court of Western Australia, but that if there were, based on the usual factors for consideration of transfer of proceedings, the Court would not have transferred the proceedings in any event.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: M Hewitt
Date: 26 November 2007
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