CLA & JDC
[2006] FMCAfam 290
•8 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CLA & JDC | [2006] FMCAfam 290 |
| FAMILY LAW – Children – residence – contact – four children – where applicant mother did not attend for preparation of Family Report – where applicant mother did not attend court for final hearing – best interests of the children – weight given to children’s expressed wishes – alcohol issues – need to make orders to protect the children’s safety whilst on contact. |
| Family Law Act 1975 (Cth), ss.65E,68B, 68F, 68G Federal Magistrates Court Rules 2001, r.13.03A |
| Applicant: | L A C |
| Respondent: | D C J |
| File Number: | NCM 459 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 8 June 2006 |
| Date of Last Submission: | 8 June 2006 |
| Delivered at: | Newcastle |
| Delivered on: | 8 June 2006 |
REPRESENTATION
| Applicant: | No appearance |
| Solicitors for the Applicant: | Not legally represented |
| Counsel for the Respondent: | Mr Gorton |
| Solicitors for the Respondent: | Greg Tyler & Associates |
ORDERS
That the children of the relationship S A C-J born 16 October 1993, S L C-J born 4 December 1996, T L C-J born 22 August 2000 and P L C-J born 29 January 2002 live with the Respondent father.
That the Applicant mother have contact with the said children at such times as the mother and father agree, with the mother to collect the children from the father’s residence at the commencement of contact and to return the children to the father’s residence at the conclusion of contact.
That the mother’s contact with the children may include each Christmas Day at times arranged by the mother and father.
That the mother must inform the father not later than two (2) days prior to any proposed contact if she wishes to have contact with the children.
That the mother’s contact with the children may include each of the children’s birthdays at times arranged by the mother and father.
The mother’s contact with the children may include Mother’s Day in each year at times arranged by the mother and father.
The mother is not permitted to exercise contact with the children on Father’s Day in each year.
The mother is to have the sole responsibility for the day to day decisions concerning the children’s care, welfare and development whilst they are with her.
The father is to have the sole responsibility for the day to day decisions concerning the children’s care, welfare and development whilst they are with him.
The father and the mother are to have joint responsibility in consultation with each other for making decisions concerning the long term care, welfare and development of the children.
The father must authorise the principal of the school attended by the children from time to time to provide to the mother upon issues copies of each school report, school newsletter, any other reports on progress at school and the children’s behavioural issues and any notification to parents of events affecting the children and events to which parents are normally invited including parent teacher nights and sporting and social occasions.
The father must authorise any health or welfare professional attended by the children to supply to the mother copies of any reports affecting the health and welfare of the children and further notify the mother of the names and contact details of any health or welfare professional attended by the children.
Each party must inform the other immediately by the best means available in the event of a child being admitted to hospital for emergency treatment or being treated by ambulance crew or being taken to a medical practitioner for urgent treatment following any accident, injury or sudden illness.
The father is restrained from denigrating or criticising the mother to the children or to any other person in the presence or hearing of the children.
The mother is restrained from denigrating or criticising the father to the children or to any other person in the presence or hearing of the children.
For the personal protection of the children the mother is restrained from consuming alcohol or illicit drugs for twelve (12) hours prior to any contact period or during contact.
For the personal protection of the children the mother is restrained from bringing all or any of the children into contact with R W or taking all or any of the children to the residence of R W during any period of contact.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCM 459 of 2005
| L A C |
Applicant
And
| D C J |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for orders for the residence of four children of the relationship of the parties. At present, the four children, all girls aged between 4 years and 12 years old, are living with the father, who is the respondent to the application. The application was listed for final hearing at 10:00 a.m. today but the applicant has not appeared. I left the matter in the list whilst I dealt with other matters, but there has been no message from the applicant or anyone on her behalf. The respondent father is present with his counsel. He has brought a witness to court with him. I have decided to apply the provisions of rules 13.03A (c) and (e) by dismissing the mother’s application and proceeding with the hearing in respect of the orders sought by the father in his Amended Response.
Background
The father and mother commenced cohabitation in August 1992.
There are four children of the relationship:
a)S R C-J born 16th October 1993;
b)S L C-J born 4th December 1996;
c)T L C-J born 22nd August 2000; and
d)P L C-J born 28th January 2002.
The parties separated in November 2002. The children remained living with the mother. Initially the father exercised extensive contact but after disagreements between the parties the mother obtained an Apprehended Violence Order against the father in the M Local Court. The father deposed that he consented to that order and contact continued.
The father was charged with a breach of the Apprehended Violence Order in July 2004 and was placed on a good behaviour bond for a period of six months.
Contact between the father and the children became less frequent.
The father would collect the children from school for contact but he deposed that on occasions the children would not be at school. The father deposed that he also became concerned about the mother’s consumption of alcohol.
On 14th January 2005 the child S was delivered to the father by the father of a school friend who reported that he had been unable to contact the mother to return the child to her. The father deposed that he found the mother asleep and under the influence of alcohol. After an altercation, the father took the three eldest children with him.
On 23rd February 2005 there was an incident at a supermarket in B when the mother attempted to remove the three older children from the father’s care. The Police intervened and directed that the three older children should remain with the father and P should remain with the mother.
The mother commenced these proceedings by filing an application on 23rd February 2005. On 2nd March 2005 in this Court Donald FM ordered that all four children were to live with the father until an interim hearing could be held.
An interim hearing took place on 5th April 2005 at which both parents were legally represented. Donald FM made orders that the mother should have defined contact with the children.
The mother exercised contact but on occasion was late in collecting the children for contact or in returning them after contact. On a number of occasions the mother did not attend for contact at all. The father deposed that the mother did not exercise any contact after
16th April 2006.
The mother’s solicitor, Mr Coyle, filed a Notice of Ceasing to Act on 8th November 2005.
The application was set down for final hearing on 8th June 2006.
The Court ordered that a Family Report should be prepared.
The Report, which was prepared on 18th May 2006, noted that the writer had been unable to make any contact with the mother. Consequently, the report was prepared after interviews with the father and the children.
The hearing
The mother did not attend the hearing of her application. She appears not to have filed any further affidavit material. I heard evidence from the father and from his mother, the children’s paternal grandmother, L D J. Both the father and the paternal grandmother made a positive impression as being concerned about the children’s welfare.
Conclusions
In deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration (Family Law Act, s.65E). In determining what is in a child’s best interests, the court must consider the matters set out in subsection (2) of s.68 (see s.68F (1)).
The court must consider any wishes expressed by the children and any factors, such as the child’s maturity or level of understanding that the court thinks relevant to the weight that should be given to those wishes (s.68F (2)(a)). The court may inform itself of the children’s wishes by having regard to anything contained in a family report under s.62G(2) (see s.68G). The family report in this case has been prepared by L V, a counselling psychologist who is well-known to the court as the writer of many family reports.
S, the eldest child, is described as “a mature and self assured girl” (Family Report paragraph 17) who expressed positive views about living with her father but worries about her mother. She would like to see more of her mother provided that she did not have to visit the mother at the home of the mother’s friend R W.
The second child, S, expressed a view that she is happy living with her father but misses her mother. She, too, did not wish to visit the home of R W.
T, now aged 5 years and 6 months, expressed a positive view about living with her father but confessed to missing her mother.
She became tearful when discussing this issue with the counsellor (Family Report paragraph 28). Like her elder sisters, T did not like the mother’s friend Mr W.
P, the youngest child, did not express a preference. She told the counsellor that her mother and father were her favourite people.
Whilst not bound by the children’s expressed wishes, I propose to have regard to them (Harrison & Woollard (1995) 18 Fam LR 788; FLC 92-598; Brear & Corcoles-Alfaro (1997) 22 Fam LR 219. I give more weight to the wishes of the two older girls, due to their ages and, in S’s case, her maturity as noted in the family report, but I do not disregard the wishes of T (R v R (2000) 25 Fam LR 712; FLC 93-000; Joannou & Joannou (1985) FLC 91- 91-642. T did not express a wish either way. I take particular note of the fact that the three older girls miss their mother but do not wish to exercise at the home of Mr W.
It appears clear that the children have a strong relationship with their father and see him as a stable, loving influence in their lives. The children miss their mother but do not see her as a reliable figure and are disappointed about her lack of contact with them.
The evidence indicates that the children would not react positively to a return to the care of their mother. The children had been missing school when they were in the care of their mother and were concerned about their mother’s dependence on alcohol.
The parents live in the same general area, so there is no geographical difficulty about exercising contact. The father has given evidence that he recognises the need for the children to have contact with their mother and the difficulty appears to arise from the fact that the mother has missed contact on a number of occasions. The father has given evidence of his concerns about the mother driving a motor vehicle when she has been drinking, and there is evidence that the mother has been so affected by alcohol that she has been unable to supervise the children at all.
The family report refers to the father’s awareness of the need for the children to have contact with their mother (Family Report paragraph 33) but also raises concerns about the mother’s ability to have contact with the children in safety:
It seems essential that Ms C commit to consistent contact with the children in a safe environment where they are not at risk. At present her life circumstances seem ambiguous and her capacity to have the children overnight does not seem to assure them the safety they need. The children themselves are indicating that they do not want to have contact with Ms C’s partner when they visit their mother.[1]
[1] Family Report paragraph 33
The father appears to me to have a greater capacity to provide for the needs of the children, especially their emotional and intellectual needs. It is the father who has made arrangements for the children to attend school regularly and he has made arrangements to deal with the physical needs of P by taking her to see a dietician at J H H. He seems to have provided the children with a stable home life with the aid of his mother, who gave evidence about her role in the care of the children.
The mother appears to have difficulty in maintaining a regular contact arrangement with the children, which has caused them distress and unhappiness. The father gave evidence that the two older children had missed a number of days at school while in their mother’s care.
I am not satisfied that the children would be safe from physical or psychological harm if they were to live with their mother or to have unlimited contact with her. The mother’s dependence on alcohol, her apparent mental health issues and her relationship with R W are all causes for serious concern. For the father,
Mr Gorton of Counsel tendered the medical records of M H, showing that the mother was admitted on 18th March 2006. At that stage she reported use of marijuana and amphetamines and complained of the breakdown of her relationship with “R” who, she said, had physically assaulted her.
The mother’s relationship with R W, if it is ongoing, leads to concern about the children’s welfare. A printout of the NSW Police Court History Convictions for R P W born 21st January 1970, tendered by the father’s counsel, shows convictions for assault on 2nd October 1992 and 20th July 1998. On that occasion Mr W was also sentenced to three months’ periodic detention for contravening an apprehended domestic violence order.
On 25th June 1998 Mr W was fined $150.00 for contravening an apprehended domestic violence order. On 31st October 2001
Mr W was convicted of assault and placed on a seven month suspended prison sentence.
More seriously, on 30th January 2003 Mr W was convicted of two counts of contravening an apprehended domestic violence order and one of assault occasioning actual bodily harm. He received sentences of seven months imprisonment subject to release on parole after one month.
I am satisfied that the children should not be brought into contact with R W, who has a history of convictions for violence. The mother’s report that Mr W had assaulted her and the father’s claim in his affidavit that Mr W threw a punch at him[2] are cause for concern, as is the father’s claim that the mother spent some time in a refuge in October 2005 as a result of harassment by R W.[3]
[2] Affidavit of Dennis Charles Jordan 30th May 2006, paragraph 25.
[3] Affidavit of Dennis Charles Jordan 30th May 2006, paragraph 115.
The father has demonstrated an appropriate attitude to the responsibilities of parenthood by his maintenance of a stable home, with the assistance of his mother, and his attention to the children’s schoolwork and sporting activities. The mother has had difficulty in maintaining contact with the children, due to her apparent problems with drugs and alcohol and her problematic relationship with R W.
It is significant that the mother was not able to be contacted for the preparation of the family report and has not attended court for the hearing of these proceedings.
Conclusions
I am satisfied that the children’s welfare will be enhanced by an order that will ensure that they continue to live with their father in the residence he shares with his mother. It is in the children’s best interests to maintain contact with their mother, but I am mindful of the concerns raised in the family report about the need for the mother to provide a safe environment for contact to be exercised. The children’s wishes that they not have contact with R W are matters to which I give a great deal of weight, and I consider that the evidence of Mr W’s history of violence strongly indicates that the children’s safety requires an injunction against their being brought into contact with him. I also consider that the children’s personal safety calls for an order restricting the mother’s drinking when she wishes to exercise contact. I am not satisfied that overnight contact is appropriate at this stage.
It is for these reasons that I propose to make orders for residence and contact and injunctions under s.68B of the Family Law Act for the personal protection of the children.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 14 June 2006.
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