CKL and CVD
[2003] FMCAfam 129
•7 April 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CKL & CDV | [2003] FMCA fam129 |
| FAMILY LAW – CHILDREN – Residence – Best Interest of the child – Family Violence issues. Family Law Act 1975, ss.60B. 65E, 68F(2) |
| Applicant: | K L C |
| Respondent: | D V C |
| File No: | PAM 25 of 2003 |
| Delivered on: | 7 April 2003 |
| Delivered at: | Parramatta |
| Hearing Date: | 7 April 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitors for the Applicant: | Burston Cole & Co |
| Solicitors for the Respondent: | No appearance by or on behalf of the Respondent |
ORDERS
The child A A C, born 9 May 2001 is to reside with the applicant mother who shall be responsible for the long-term and day-to-day care, welfare and development of the said child;
The respondent father is to have contact with the child each alternate Sunday from 9 am to 5 pm commencing on Sunday 20 April 2003;
For the purpose of exercising contact pursuant to these orders, the respondent is to collect the child from the mother's residence at the commencement of contact and the mother is to collect the child from the father's residence at the conclusion of contact;
The father is restrained from entering, or attempting to ender, into the mother's home at any time;
I grant liberty to either party to apply in respect of contact issues on 14 days notice. I require a transcript of my reasons for this decision. The application will be removed from the pending case list.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM25 of 2003
| K L C |
Applicant
And
| D V C |
Respondent
REASONS FOR JUDGMENT
The application before the Court is an application by the mother of a little boy called A A C, born on 9 May 2001. The applicant seeks orders that A should reside with her and that she should have the sole responsibility for his care, welfare and development and that the father should have contact with that child. In the application she said that she sought supervised contact.
The father filed a response on 29 January. At that stage he was legally represented. He sought what was in effect a joint residence application, although in effect it was residence with the mother and fairly generous contact to the father. The contact that he sought, or the residence as he called it, was every second Saturday from 9 am to 5 pm and each alternate Sunday from 1 pm till 7 pm for a period of four hours on Tuesday and Thursday of each week. Otherwise the child would reside with the mother.
The parties attended Court on 3 February and entered into interim orders. They are both legally represented. The interim orders made on that date was that the child should reside with the mother and that he should have supervised contact with the father each Sunday from 2 pm to 6 pm for two months on a Sunday and then contact would occur on a Saturday. Contact was to be supervised by the maternal grandmother for the first month and then by the paternal grandmother for the second month.
Parties attended counselling on Wednesday, 19 February and the counsellor noted in the memorandum that residence was not in issue and that there were was some agreement about contact and specific issues. The matter has gone over today for final hearing. The parties had negotiated a settlement but that settlement fell down as a result of an incident where the mother alleges that the father was violent to her as recently as yesterday.
The situation is that the matter came before the Court today. The father elected not to attend nor was he legally represented. He was called and did not answer the call and I note that the time is now 5 minutes to 4. The matter was listed for hearing at 2 pm.
The mother gave evidence that the child has resided with her all of his life. There has been a supervised contact arrangement in force for some months and there is no evidence before me to indicate that that did not work. There was certainly an altercation between the parties yesterday and that is a matter that does cause some concern. Nevertheless, the mother has indicated that she wishes to proceed today on the basis of the material before the Court.
The basic principle, of course, set out in s.65E of the Family Law Act the Court must act in the best interests of the child. I am mindful of the principles set out in s.60B of the Family Law Act and I am mindful that under s.68F(2) there are a set of paragraphs that contain matters which will assist the Court in deciding what is in the best interests of the child.
Now, this child was born on 9 May 2001, therefore, he is too young for the his wishes to be sought or considered. There is no evidence as to the relationship between the father and the child other than the fact that he has been exercising contact, although there is evidence that the child has lived with the mother since birth and she as provided all normal functions expected of a mother for this child. She is certainly mindful of his welfare.
There are violence issues to be considered and there is the need to protect the child from harm. I am concerned about the fact that the mother has given evidence of an incident which she said happened yesterday, 6 April, in the presence of the child in the father's house where the father grabbed the mother by the throat and, in fact, pushed her against a cupboard.
She left the house with the child and, in fact, telephoned police. She has not applied for an Apprehended Violence Order at this stage and there is no Apprehended Violence Order in force. The mother has indicated though that notwithstanding this act of violence she has no difficulty about the father attending at her premises to collect the child for contact, although she would seek an order that he only comes to the front door and not enters the house. She has no fears about going to the father's house at the conclusion of contact.
I am satisfied that this is a matter where it is in the best interests of the child that the child should reside with the mother. The father should have contact. The mother suggests, and there is no evidence to conclude otherwise, that each alternate Sunday from 9 am to 5 pm would be appropriate and the mother suggests that the father should collect the child at the commencement of contact from her home and she would collect the child at the conclusion of contact.
I am satisfied that that is appropriate at this stage. If the father wishes to make a further application then I will give him liberty to apply in respect of the contact issues. The fact that he has chosen not to attend Court today to my mind is strong evidence as to his view of these proceedings.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 15 April 2003
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