C and R - [2002] FMCAfam 186

FEDERAL MAGISTRATES COURT OF AUSTRALIA

C & R

[2002] FMCA fam 186

FAMILY LAW – Residence – best interests of children – parents’ use of cannabis.

Family Law Act 1975
B and B: Family Law Reform Act 1995 (1997) FLC 92-755

Applicant:

S J C

Respondent:

D J R

File No:

HBM 38 of 2001

Delivered on:

5 July 2002

Delivered at:

Launceston

Hearing Date:

26 & 27 June 2002

Judgment of:

Roberts FM

REPRESENTATION

Counsel for the Applicant:

Mr P McVeity

Solicitors for the Applicant:

McVeity & Associates

Counsel for the Respondent:

Mr D Crampton

Solicitors for the Respondent:

Levis Stace & Cooper

ORDERS

That the Orders of this Court of 1^st November 2001 and 26^th March 2002 be and are hereby discharged.
That Z J C R born 5^th November 1996 and J X C R born 5^th November 2000 (“the children”) reside with D J R (“the Father”).
That the Father have the sole responsibility for the day to day care, welfare and development of the children.
That S J C (“the Mother”) have contact with the children as follows:
(a)Each second weekend from 5.00pm on Friday until 6.00pm on Sunday (extended to 6.00pm if the Monday is a public holiday);
(b)For one half of each school holiday period;
(c)On Mother’s Day from 10.00am until 6.00pm if such is not otherwise during a contact period;
(d)In 2002 from 3.00pm on Christmas Day until 3.00pm on Boxing Day and in every second year thereafter;
(e)In 2003 from 3.00pm on Christmas Eve until 3.00 pm on Christmas Day and in each second year thereafter;
(f)On such other occasions and on such terms as may be agreed between the parties from time to time;
That for the purposes of contact the Mother is to collect the children from the residence of the Father at the start of each contact period and the Father is to collect the children from the residence of the Mother at the end of each contact period.
That neither party purchase, sell, use or be under the influence of any non prescription drugs (including cannabis) while the children are in that party’s care.
That neither party permit the children to remain in the presence of any person purchasing, selling, using or being under the influence of any non prescription drugs including cannabis.
That the matter be otherwise removed from the Active Pending Cases List.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
LAUNCESTON

HBM 38 of 2001

S J C

Applicant

And

D J R

Respondent

REASONS FOR JUDGMENT

Background & Applications

The Applicant S J C (“the Mother”) was born on 15^th July 1975. The Respondent D J R (“the Father”) was born on 1^st December 1975.
They commenced a relationship in 1995, which ended at the time of their final separation in May 2001. There are two children of that relationship, Z J C R born 5^th November 1996 (“Z”) and J X C R born 15^th November 2000 (“J”).
At the time that the parties separated in May 2001, the Mother left with J (who was only six months old at the time) and Z remained with his father.
The Mother filed an Application in this Court on 13^th September 2001 seeking both interim and final orders in relation to residence of both children with the Father to have contact in fairly usual terms of alternate weekends, half school holidays and on special occasions.
The Father filed a Response on 15^th October 2001. In that document he sought final and interim orders that Z reside with him and J reside with the Mother. He sought that each party have contact on defined terms with the child not residing with that party.
When the matter first came before the Court on 1^st November 2001, interim orders were made by consent which provided for Z to reside with the Father and J to reside with the Mother. The interim contact orders provided for the Mother to have contact with Z weekly, but on a fortnightly rotational basis which provided for Z to be with her for approximately three and a half days in one week and approximately two and a half days in the next week.
Those interim consent orders also provided for the Father to have contact with J of approximately one and a half days per week.
Those interim orders also provided that neither party:
“use or be under the influence of non-prescribed drugs (including cannabis) while the children are in their care” or “permit the children to remain in contact with any person who is under the influence of non prescribed drugs.”
On 26^th March 2002 further interim orders were made by consent that did not change the interim residence or contact regime but made some interim specific issues orders. They included an order that neither party:
“purchase, sell, use or be under the influence of drugs (including cannabis)”
while the children were in that party’s care or:
“permit the children to remain in the presence of any person purchasing, selling, using and/or under the influence of drugs (including cannabis).”
Also included were orders that J M (“the mother’s partner”) not exercise corporal punishment on the children and that she ensure that the children are not left unsupervised in his presence.
On 6^th June 2002 the Father filed an Amended Response which he sought residence orders in relation to both children and reasonably detailed contact orders which provided for the Mother to have contact on a weekly basis in addition to school holidays, special occasions and the like.

The Law

Section 60B of the Family Law Act 1975 (“the Act”) states:
60B(1) [Object of Part] The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
60B(2) [Principles underlying object] The principles underlying these objects are that, except when it is or would be contrary to a child's best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children.
Section 65E of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The Family Law Act provides in subsection 68F(2) that the Court must consider a number of factors when determining what is in a child’s best interests.
In B and B: Family Law Reform Act 1995 (1997) FLC 92-755 the Full Court of the Family Court of Australia (consisting of Nicholson CJ, Fogarty and Lindenmayer JJ) considered the interrelationship of Sections 60B, 65E and 68F. They said:
“Section 65E is the fundamental section in relevant proceedings under Pt VII. It makes it clear that the best interests of children is the paramount consideration. The interrelationship of s 60B, 65E and 68F was the essential issue in this appeal. It is also central to the correct approach to be adopted in all cases under Pt VII where the best interests of the children is the paramount consideration.
A court which is determining issues under Pt VII starts from that essential premise and it remains the final determinant. In that process the Court is required to have regard to the provisions contained in s 68F(2) and s 60B.
Section 68F(2) makes it clear that the Court must consider the various matters set out in paras (a)-(l). In stating "any other fact or circumstance" para (l) underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.”

The Evidence

Both parties relied upon the affidavit sworn in support of the interim orders that they sought and upon a trial affidavit. Both parties were cross-examined.
The Mother’s partner also swore and affidavit and he was cross-examined.

Credit

I must say from the outset that I was not particularly impressed by the truthfulness of either party. It seemed quite clear that both were willing to manipulate the truth as it suited them.
For example, an incident took place outside the Court during one adjournment in which the Mother and the Mother’s partner stated that the Father used quite crude language to describe them and the evidence that had been given. The Father flatly denied that he had spoken to them in such terms.
It seems quite clear to me that the Father was not telling the truth and the unlikelihood of the Mother and her partner making up such a story and then reporting it to the Mother’s counsel within minutes of the Court resuming defies belief.
An example of the Mother’s lack of candour is to be found in her version of what occurred on Mother’s day this year. The Father says that the Mother was to collect Z at noon but she arrived at 10.00am He says that they were not ready and he suggested to the Applicant that she come back later. He says she was not happy about that and that after they had spoken and he went back inside, the power was turned off. When he checked the fuse box he found that the power had been switched off. The Mother had gone by that time and the Father subsequently noticed that a plant had been:
“ripped out of the planter box and thrown on the ground”.
The Mother’s version of that event was that when she arrived she turned the power off and on again immediately to attract the attention of the Father and Z. It is also her evidence that she had J on her hip and when she turned around J’s foot made contact with the plant and, presumably, removed it from the planter box.
Having heard the evidence of both parties in relation to this incident, I am quite convinced that the Father’s version is the correct one.

Discussion

It is my intention to review the evidence in light of the relevant parts of subsection 68F(2).
Although it appears that the Father has asked Z where he would prefer to live, I do not believe that his age or maturity is such (being only five years old) that the Court should be influenced by anything that he said. Indeed, it seems highly likely that anything he said to any questioning by the Father would be likely to favour the Father anyway.
The nature of the relationship with the children with each of the parents and with other persons is obviously relevant.
In this regard, it seems to me to be reasonably clear that both parties have a good relationship with both the children, although the Father’s relationship with J is likely to be less well established, simply because of the child’s age and the more limited time that he has spent with him since the parties separated in May last year.
I am required to consider the likely effect of any changes in the children’s circumstances, which include the likely effect on the child and any separation from either of his parents or any other child or other person with whom he or she has been living with. In this regard, both parties, through their counsel have stated to me that the ideal situation would be for the two children to be living together. Neither party saw the separation of these two siblings as the preferred option.
For a little over a year Z has been living mainly with his father, but he has been entitled to have contact pursuant to the Consent Orders that averages three days per week.
There was some dispute on the evidence as to whether or not the parties had agreed upon Z being returned to his Father early on one occasion or whether it was the child’s wish. Having considered that evidence, I am of the view that the Mother returned Z early to the Father because the child requested it and not because of any prior agreement.
For the child Z to be removed from the Father’s home to reside predominantly in the Mother’s home will involve a significant change to his life. This is because the child has been living primarily with his Father for the past thirteen months and because the Mother’s household involves some extended family.
I accept the Mother’s evidence that the Father refused to allow her to take Z at the time of separation and I am satisfied that he probably did that for selfish motives. However, the fact that Z has been living primarily with his father for the last thirteen months is clearly a factor that I must take into account.
As things stand at the moment, the Father is living on his own and he has assistance from his own mother from time to time when he needs it in relation to childcare. His own mother did not swear an affidavit or give any evidence, but the Father was not seriously challenged in relation to his evidence about that.
The Mother lives with her partner and four of his five children. Those children are aged eleven, seven, four and three. In addition, his son aged ten spends each second weekend and half the school holidays at their home.
They currently reside in a six bedroom home. However, they resided in a much smaller home until fairly recently.
It is clear, that if Z is to leave the home of his father and reside with his mother, that would involve a significant change in his life. Currently, he is the only child residing primarily with his father but if he was to reside with his mother, he would be one of six children residing in that household.
Z currently attends a primary school in Devonport and neither party is suggesting any change to that.
I also must take into account the fact that J has been living primarily with his mother for the past thirteen months. Indeed that thirteen month period would be more significant in J’s life because he is not yet two years old and the contact that he has had with his father has been more limited than the contact that Z has had with his mother.
There is no practical difficulty or expense in relation to contact, because both parties are residing in the Devonport area in Tasmania.
I am required to consider the capacity of each parent or of any other person to provide for the needs of the children, including their emotional and intellectual needs. In this regard, the evidence of the parties’ drug use is particularly relevant.
It is quite clear from the evidence of the Mother that she is a daily user of cannabis. Further, her partner is also a daily user of cannabis, but it seems clear from his evidence (which I accept) that he requires less cannabis per day.
It was the Mother’s own evidence that she uses a “bong” to smoke cannabis every evening and on some evenings she smokes that bong twice. She says that she only does this after the children have gone to bed and never in the house. It is her evidence, and her partner’s evidence, that the cannabis is kept in a container in a locker in the shed and that they both get their cannabis from that container in the locker each evening. The Mother says that she uses the bong to smoke her cannabis in the shed even if it is blowing a gale and her partner smokes a joint outside.
I am very firmly of the view that the Mother and her partner would have no hesitation in smoking cannabis inside the house, especially on cold, wet and windy nights.
It is of some significant concern to me that the Mother and her partner continue to smoke cannabis on a regular basis, notwithstanding that the Mother consented to two sets of orders that required her not to do so and that the Police have twice caught her partner. In this regard, he has convictions for selling cannabis and growing. It is his evidence that he was particularly unlucky in that he was caught selling cannabis on the one and only occasion that he ever did it and that he only ever grew one plant, the remnants of which were discovered by the Police approximately eight months after he grew it. Frankly, I do not believe him.
Both the Mother and her partner gave evidence that they purchase their cannabis supplies approximately once per month. They also stated that the children have been taken to homes where cannabis is sold but not at any time that it was actually being sold. However, it is clear that the Mother and her partner are very much involved in the local drug scene.
One must have significant concerns for the welfare of children in the household of the Mother and her partner. It is not hard to imagine that an emergency situation could arise one night when both the Mother and her partner are under the influence of cannabis and they would not be able to respond properly.
On the Mother’s own evidence, it seems likely that she is in that state almost every night.
Although the Father was not particularly forthcoming in his affidavit material about his cannabis consumption, I accept his evidence that he has realised that to be a better parent, he needs to give up cannabis. Further, I accept his evidence that he is making a very real effort to do that and that he has sought the assistance of a drug counsellor.
It may well be that the proceedings in this matter have acted as a “wake-up call” to him in relation to drug abuse. However, it is quite clear that these proceedings have not been such a “wake-up call” to the Mother. She has not modified her drug consumption at all.
These factors in relation to drug consumption show to me that while the Father is not by any means a perfect parent, he does have a better attitude to the responsibilities of parenthood.
I am required to consider exposure to abuse and violence. In this regard it is quite clear to me that both parties are abusive to the other and neither really gives any thought to the fact that the children may be present. I have little doubt that the parties are equally responsible for their very bad relationship. Certainly, neither appears to have made any real effort to improve that relationship.
There is evidence that at least on one occasion the Mother’s partner has used corporal punishment to discipline Z. The Father and his counsel sought to make much of that evidence but I do not regard it as being particularly significant. In this regard, there is no evidence that the child was harmed in any way by the action of the Mother’s partner.
I have given very careful consideration to all the factors set out in subsection 68F(2) and I gave very serious consideration to maintaining the status quo of Z residing primarily with his father and J residing primarily with his mother. However, I find that the Mother’s failure to understand what her own drug taking is doing to her as a parent is the factor that tips the scales in favour of both children residing with the Father. While it is clear that the Father is not a perfect parent, it is also clear to me that he is the better of the two parents.
The Father displays an arrogance that he needs to temper and he needs to realise that his abuse of the Mother in the presence of the children can only harm them.
Notwithstanding my comments about the Father I am of the view that the interests of Z and J are better served by them living with their father and having regular contact with the mother.
It is my intention to make orders that provide for the children to reside with their father and for the Mother to have regular contact.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Roberts FM

Associate:

Date: 5^th July 2002