Bissell and Joss

[2007] FamCA 531

FAMILY COURT OF AUSTRALIA

BISSELL & JOSS [2007] FamCA 531

FAMILY LAW - CHILDREN – Final parenting orders – Mother’s drug use - Relevance

FATHER: MR BISSELL

MOTHER: MS JOSS

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER: MLF 44 of 2006

DATE DELIVERED: 17 May 2007

PLACE DELIVERED: Albury

JUDGMENT OF: Brown J

HEARING DATE: 17 May 2007

REPRESENTATION

COUNSEL FOR THE FATHER: Mr Cronin

SOLICITOR FOR THE FATHER: Pogson Cronin

COUNSEL FOR THE MOTHER: The mother consenting in writing

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms Robb

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Robb & Associates

Orders

WITH THE CONSENT OF THE MOTHER AND FATHER,
IT IS ORDERED

1. That the parents have equal shared parental responsibility for the children of the relationship, namely the elder daughter born on … October 1999 and the younger daughter born on … July 2002. 

2. That the children of the relationship live with the applicant/father.

3. That the children of the relationship spend time with the respondent/mother, as agreed between the parties, but including:

   a.Each alternate weekend from after school on Friday afternoon until 2.00pm on Sunday afternoon.

   b.During each short school term vacation period as agreed between the parties.

   c.During each Christmas school vacation period as agreed between the parties.

   d.For a period on Mother’s Day as agreed between the parties.

   e.For a period on each of the children’s birthdays as agreed between the parties.

   f.For a period on the mother’s birthday as agreed between the parties.

   g.For an extended period on Christmas Day as agreed between the parties.

4. That the children spend time with the applicant/father on any of the following days and time which are not otherwise days or times on which the children live with the applicant/father:

   a.For a period on Father’s Day as agreed between the parties.

   b.For a period on each of the children’s birthdays as agreed between the parties.

   c.For a period on the father’s birthday as agreed between the parties.

   d.For an extended period on Christmas Day as agreed between the parties.

5. The mother engage in an individual drug and alcohol counselling program. 

6. That the mother be restrained from amphetamine use whilst the children are in her care.

7. That the father complete a post-separation parenting course and the mother attend a parenting program.

8. That pursuant to section 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 and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto and entitled “Parenting orders – obligations, consequences and who can help” the particulars of which are included in this order.

IT IS ORDERED

1. That all extant applications be otherwise dismissed.

IT IS DIRECTED

1. That these proceedings be removed from the List of matters awaiting finalisation.

2. That all documents produced pursuant to subpoena filed herein be returned forthwith to the party or institution producing same.

3. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

4. That the appointment of the independent children’s lawyer be discharged.

5. That pursuant to s.65DA(2) and s.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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

FAMILY COURT OF AUSTRALIA AT ALBURY

FILE NUMBER: MLF 44 of 2006

MR BISSELL

Applicant

And

MS JOSS

Respondent

REASONS FOR JUDGMENT

1. The parties began living together soon after meeting.  To use their words, they lived together “on and off”, finally separating in 2003.  They have two daughters; the elder daughter is seven and the younger daughter is nearly five. 

2. The father is 38.  He works as a concreter for some 25 hours a week, and also receives Centrelink benefits.  He has not re-partnered and has no other children.

3. The mother is 31.  She is engaged in home duties and also receives Centrelink benefits.  In 2006 the mother formed a relationship with Mr J.  Within a few weeks, Mr J commenced a term of imprisonment.  The mother has three other children.  She had her first child, K, now nearly 16, when she (the mother) was only about 15.  K has been reared by her maternal grandparents.  She presently lives in Queensland with her paternal grandfather, a man who had had significant problems with alcohol abuse and violence but who, the mother says, is now “reformed”.  The mother also has a son, L, who is 12.  He lived with her until recently, but is now living with his father.  He stills sees her regularly.  Her other son, A, is 10; I cannot say whether he sees his father. 

4. After the parties separated, the two daughters lived with the mother.  Initially, they had only limited contact with the father, but that increased to regular and frequent time with him.  In December 2005 the children moved to live with the father, at the mother's request.  That was not intended to be a long-term arrangement however the father swiftly filed proceedings, in the Local Court, seeking that they live with him.  The mother opposed his application. 

5. On 10 February 2006, orders were made providing for a week and weekabout living arrangement and the applications were transferred to this Court.  By agreement, the arrangement was varied and the children have been spending eight nights with the father and six nights with the mother in each fortnight. 

6. In evidence are affidavits sworn by the father and his mother, and a family report, prepared by Ms D, on which I place weight.  A number of documents were tendered this morning by the independent children's lawyer.  The mother filed no affidavit and has not appeared today.  She has been unrepresented since 31 January 2007.  She has consented to orders put forward by the father.

7. The parties ask that final parenting orders be made, by consent.  They propose that the children continue to live with the father and spend time with the mother on alternate weekends (from the conclusion of school on Friday to 2.00 p.m. on Sunday) and, by agreement, during school holidays and on special days.  The independent children's lawyer has taken the view that she cannot consent to orders in those terms, for reasons to which I will briefly refer.  Hers is a responsible position.  She has put evidence before the Court to assist in determining the applications and agrees they should be determined today, based on the evidence now available.

8. The father rents a four-bedroom home in V, which he shares with a male friend, Mr W.  Mr W's presence is one of the matters of concern to the independent children's lawyer, as he has a number of criminal convictions.  The one that clearly concerned her is a conviction for rape in 1979, for which Mr W was sentenced to eight years imprisonment.  It is a serious conviction but, as the father submitted, it is a conviction for a crime which occurred almost 30 years ago.  The Court has no other evidence in relation to it. 

9. The father's evidence is that Mr W has shared the house with him (and with the children when they are with him) for the past three and a half years.  Earlier, Mr W lived with the parties for a period.  His evidence is that Mr W's behaviour has never caused him any concern.  He has never acted inappropriately to the children and they have never made any complaint about Mr W.  Mr W has daughters of his own, aged 14 and 16.  On occasions, they stay overnight in the home he shares with the father; the father's evidence is that those girls have a good relationship with his two daughters.

10. The mother lives in a ministry house in W, about 25 minutes from the father’s home.  Although the earlier order provided for her to make every effort to obtain a house closer to the children's school, (S Primary School) she has not done that.  To ensure stability in schooling, during periods the children live with the mother, the father has collected the elder daughter from her every morning and driven her to school.  The elder daughter has thus been able to stay at the same school, despite the shared parenting arrangement.  The younger daughter is in daycare about six days a fortnight.

11. I have no evidence of the crime for which the mother’s partner was convicted, or of his prior convictions, omissions which concerned the independent children’s lawyer.  Without the mother’s partner’s date of birth, police were unable to respond to a subpoena.  The mother has a history of involvement in violent relationships, in which she has been physically and verbally abused.  The children have been exposed to that abuse of her.  She has a history of amphetamine use, and alcohol abuse.  She had a turbulent and disrupted childhood and adolescence. 

12. When with Ms D, the mother was full of good intentions.  She spoke of getting off drugs, and attending drug and alcohol counselling.  She has not done so.  Given her history, and her failure to engage with these proceedings since the family report was released, the Court cannot be optimistic about the likelihood of change.  That is another matter that concerned the independent children’s lawyer, as the proposed orders provide for the children to spend time with their mother.

13. Ms D reported that the elder daughter is a cheerful and articulate child, who said she wanted to live with her father, because her friends were there.  The interaction of the father with both his daughters was very positive, warm and appropriate.  He was gentle with them and they were very polite and cooperative.  When the mother was observed by Ms D, L and A were with her.  The interaction was generally amicable but the mother was very loud and abrupt, particularly with A.  Ms D thought the mother would benefit from attending a parenting program.  Ms D recommended that the mother should attend drug and alcohol counselling which, at that time, the mother said she was prepared to do.

14. Ms D saw no reason for the parties not to have shared parental responsibility, despite the mother's amphetamine use.  She thought it was important that the father not denigrate the mother; he needed to learn to separate his own relationship with her from his parental relationship.  Her recommendation was that the children live with the father and spend time with the mother, that there be injunctions in relation to amphetamine use, orders for the mother to attend alcohol and drug counselling and that both parents undertake a parenting course.  The father has done the parenting program recommended; the mother has not.

15. The mother, despite her non attendances, has made clear her agreement to the orders now put forward by the father.  I am confident she consents to their making.  They provide for the parties to have equal shared parental responsibility.  For the reasons advanced by Ms D, I do not find it would be in the children’s best interests to spend equal time with both parents. 

16. The orders proposed by the parties include no provision enjoining the mother from amphetamine use when the children are with her, an order recommended by Ms D and sought by the independent children’s lawyer.  Not long ago, a Court would not make an injunction which restrained a person from doing something which was illegal.  I understand the independent children's lawyer's reason for seeking the order.  However, the reality is that the mother is a long-term amphetamine user.  It is clear from the evidence that it was her amphetamine use, and her refusal to desist, which was the reason the father left the relationship.  The mother herself told Ms D that.  That is indicative of the father’s abhorrence of her drug use and its impact on her. 

17. The father’s evidence is of being careful to monitor the mother’s behaviour and of regularly checking on the children when they are with her.  Nevertheless, he sees the positives for the children in having a relationship with her.  He submits that she should not be cut out of the children's lives because of that amphetamine abuse, so long as he is confident he can ensure their safety and security when with her.  I accept his assurances of being alive to the risks, and of his confidence those risks are not unacceptable.  If the mother’s amphetamine use were to spiral, and she posed an unacceptable risk to the children, I am confident he would not let her see the children alone and would seek the discharge or suspension of the orders. 

18. I do not propose to make any order requiring the children not to be brought into contact with Mr W, again accepting the father's assessment, based on many years’ experience. 

19. The evidence supports a finding that the father has been looking after the children well.  They had a number of problems when in their mother's care, including very poor dental hygiene; the younger daughter had 11 teeth removed last year.  Since settling with him, the elder daughter has improved her school performance and is now reading.  The mother is probably experiencing some problems with A, which may not be unusual with a boy of his age and in his family circumstances but she has a lot on her plate.

20. The Family Law Act 1975 stresses the importance of parents agreeing about parenting their children, whenever possible. In my judgment the parties should be commended for reaching this agreement. Their relationship in the past has been acrimonious. The father has been able to focus on the children’s best interests and do his best to ensure they have a meaningful relationship with their mother. He spoke with Ms D of the importance of them maintaining their relationship with L and A, and while unconvinced the mother is abstaining (or will abstain) from drug use, could see the benefit to the two daughters of spending time with their mother and siblings, while living most of the time in the safer and more stable environment of his home. I am satisfied he will monitor their care when with her and take all steps necessary to ensure they are not put at physical or emotional risk. In these circumstances, I find it appropriate to make the orders sought by the parties.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Brown

Associate: 

Date:  06/06/2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BISSELL & JOSS