D and D
[2001] FMCAfam 315
•19 November 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| D & D | [2001] FMCAfam 315 |
| FAMILY LAW – CHILDREN – Contact – Prior drug and criminal history by applicant – successful completion of Drug Court program – no unacceptable risk – graduated contact ordered – ss 65E, 68F(2) Family Law Act 1975 (Cth). |
| Applicant Father: | L N D |
| Respondent Mother: | R D |
| File No: | ZP1265 of 2001 |
| Delivered on: | 19 November 2001 |
| Delivered at: | Parramatta |
| Hearing Date: | 14 November 2001 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Solicitors for the Applicant: | Marsdens Solicitors DX 5107 CAMPBELLTOWN |
| Solicitors for the Respondent: | Dignan & Hanrahan DX 5113 CAMPBELLTOWN |
ORDERS
IT IS ORDERED BY CONSENT:
That J V D born 19 April 2000 live with the respondent mother.
IT IS ORDERED:
That the father have contact with the child as follows:
(a)That up until 15 December 2001, supervised contact as made available by Centacare Children’s Contact services at Campbelltown, the dates and times as designated by the service.
(b)On 31 December 2001, 7 January 2002 and 14 January 2002 unsupervised contact from 10.00am until 1.00pm.
(c)Commencing 20 January 2002 each Sunday from 10.00am to 4.00pm until 31 March 2002.
(d)From 14 April 2002 until the child’s 3rd birthday, from 10.00am Sunday until 4.00pm Monday each alternate weekend.
(e)From the weekend following the child’s 3rd birthday from 5.00pm Saturday until 5.00pm Monday each alternate weekend.
From when the child commences school the father to have unsupervised contact as follows:
(i)Each alternate weekend from 5.00pm Friday to 5.00m Sunday, to be extended to 6.00pm Monday in the event of a long weekend.
(ii)For one (1) week during each mid year school holidays and in the event that the parties cannot reach agreement the first week, to commence 6.00pm the day after school finishes.
(iii)For two weeks during the Christmas school holidays, the father to give the mother at least four weeks written notice of when contact will commence.
That the father have contact with the child from 9.00am 24 December 2002 to 12noon Christmas day 2002 and each alternate year thereafter.
That the father have contact with the child from 12.00noon Christmas day until 6.00pm Boxing day each alternate year thereafter.
That the father have contact with the child for four hours on the child’s birthday.
That the father have contact with the child for four hours on the father’s birthday.
That the father have contact with the child from 9.00am to 6.00pm on Father’s day in each year.
For the purposes of contact the mother shall deliver the child to the father at the commencement of contact at B Park at the corner of
M Street and St P’s Crescent, L and the father shall return the child to the mother at the same location at the conclusion of contact periods.In the event of the child suffering a medical condition or requires medical attention while exercising residency or contact;
(a)The other parent is to be notified as soon as practicable.
(b)That the parent be provided the full details of the practitioner or medical facility as soon as practicable.
(c)That the medical practitioner or medical facility be advised that the parents have access to the children’s medical records and information upon request.
That the mother make arrangements at the child’s school/pre school as follows;
(a)That the father receive a copy of all school reports for the child.
(b)That the father receive notification of all school activities that he might desire to attend.
(c)That the father is informed of parent/teacher nights and that the school is informed that he would like to attend.
(d)In the event the child is taken from the school for an emergency, remedial or correctional treatment, that the Father be informed as soon as is practicable.
Unless otherwise specified in these orders, weekend contact is suspended during school holidays. It shall be resumed the first weekend following the commencement of each school term if the father exercised holiday contact during the first half of the holidays and on the second weekend after school resumes if he exercised contact during the second half.
IN THE EVENT THAT Mother’s Day falls during a period when the child would otherwise be with the Father, contact shall conclude at 6.00 p.m. on the Saturday night immediately preceding Mother’s Day.
That all exhibits are to be returned at the expiration of one calender month unless an Appeal is lodged.
That the party who issued any subpoena collects that subpoenaed material and returns it to the owner within 7 days.
All outstanding applications are otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP1265 of 2001
| L N D |
Applicant Father
And
| R D |
Respondent Mother
REASONS FOR JUDGMENT
The proceedings
These proceedings comprise an application for parenting orders, in particular contact orders concerning the parties’ son, J V D born
19 April 2001.
The applications
L N D ("the father") filed an amended application on 14 November 2001. At the commencement of the hearing his advocate tendered a minute of order that identifies the orders sought by him. The orders sought are as follows:
1.Until Saturday 15th December 2001 supervised contact at the Centrecare Contact Centre.
2.On 23rd December 2001 to 31st March 2001 unsupervised contact every Sunday from 10.00am to 4.00pm.
3.From 14th April 2002 until the child commences school each alternative weekend from 5.00pm Saturday to 5.00pm Monday.
4.From when the child commences school each alternate weekend from 5.00pm Friday to 5.00pm Sunday.
5.Half of school holidays.
In essence, he conceded that the mother should have residence of the child and that there should be a stepped regime for his contact to the child.
R D ("the mother") filed an amended response on 18 May 2001. At trial she also sought orders that were different in from those contained in her response. Exhibit A comprises correspondence by the mother’s solicitors to the father’s solicitors which sets out the orders sought by her in these proceedings. The orders sought are as follows:
1.The child to reside with the mother.
2.The child to have initial supervised contact with the father.
3.The child to have contact with the child until February 2002 each week for approximately two (2) hours.
4.Thereafter the father to have contact with the child each Sunday for four (4) hours..
Background facts
The father was born on 19 April 1972. He is 29 years old. The respondent’s date of birth is not in evidence before me.
The parties commenced a relationship in April 1999. They did not cohabit. Their relationship terminated not long after the mother found out that she was expecting the parties’ child. J is both parties’ only child. They resumed their relationship two weeks prior to J’s birth and the father was present when he was born.
After the child was born the father exercised contact each week from Sunday evening through to Monday morning. This contact was exercised at the mother’s place and was supervised by her. The arrangement was one that caused both parents a degree of discomfort and the mother decided towards the end of August 2000 that she did not want the father coming to the home to exercise contact in the future.
After a gap of three weeks, contact resumed and was exercised each Sunday at about lunchtime for one or two hours. This arrangement broke down on 6 October 2000 after an argument between the parties. The mother said that she would not agree to any further contact. The father applied for and was granted legal aid for the purposes only of a legal aid conference. There were a number of attempts by the Legal Aid Commission of New South Wales to secure the mother’s co-operation to attend mediation funded by the Legal Aid Commission. She failed to attend a conference in November 2000. Another conference was scheduled on 27 March 2001 that she failed to attend. At that stage the father determined that it was necessary to commence proceedings. Hence he commenced an application on
9 April 2001 in the Family Court. Those proceedings were later transferred to the Federal Magistrates Court.
The matter was listed for hearing on 21 August 2001. That day the mother asserted that the child’s paternity was then an issue. As a consequence the matter was adjourned to enable paternity DNA testing to be carried out. The results of the testing reported on
4 October 2001 that the father is the child’s father to a 99.98 per cent degree of probability. The mother concedes that the applicant is the child’s father.
The issues
The issues that comprised the focus of the hearing are these:
·The nature and extent of the father’s criminal antecedents and his drug history. The issue that arose was his capacity as a consequence of this history to meet the child’s needs and his appropriateness as a role model.
·The child’s difficulty separating from his mother. The mother’s evidence is that the child suffers from separation anxiety which is demonstrated by breath-holding tantrums. He is also prone to these tantrums when in the mother’s care.
·The effect on the child of developing his relationship with the father at the rate the father proposes or delaying the establishment of more substantial contact as the mother would have it and the effect that would then, by contrast, have on the child’s relationship with the father.
The father’s proposals and current circumstances
The father lives with his partner, D M and her ten year old son, K. They live at 1 A Place, M F. Ms M purchased the home four weeks ago. It is registered in her sole name and the mortgage is also in her sole name. She is in full-time employment with Centrelink as a family assistance officer. K’s father is in prison and has had no contact with his son for four years. Sadly this was a relationship, that is, between Ms M and K’s father that was marked by extreme domestic violence. She has had an apprehended violence order operative for at least the last four years. She does not anticipate that there will be difficulties with K’s father when he is released from prison. Partly because he does not know where she is and because she is protected by an apprehended domestic violence order. I accept her evidence in this regard.
The father is a tattooist in permanent employment. He does not work Mondays. At present he works most Saturdays, starting at about 10.00am or 11.00am. Thus he takes K to school most mornings. Until recently he did not work Wednesdays. During school holidays he cared for K on Mondays and Wednesdays while Ms M was at work. He has strong support from his father who has also managed to maintain a strong relationship with Ms D. He proposes a stepped program for his contact to his son, a proposal that is demonstrably child-focused. He is obviously impatient to develop his relationship with his son but understands the need to develop this gradually, having regard to the child’s age and general adjustment.
A significant matter in these proceedings has been the father’s prior criminal antecedents and his abuse of drugs. Annexure A to the father’s affidavit filed on 17 August 2001 contains his criminal antecedents. It is a 17 page record which, given his age, is quite an extraordinary one. His record relates to fraud and theft offences in the main. There are also driving offences and possessing a prohibited weapon. Other than the driving offence, the offences are all related to his drug history. His drug history is a significant one. It is best summarised in the probation and parole report. This was an exhibit in the proceedings. The report is dated 9 November 2000 and was prepared for the purposes of the father’s participation in the drug court program. He had by that stage largely completed the program.
The exhibit summarises the father’s drug history as follows:
“Mr M stated that he used marijuana from the age of 13 and later used amphetamines and ecstasy. He further stated he smoked heroin between the ages of 18 and 24. Following the death of his mother in 1996 he stated that he became addicted to the substance until he commenced on the drug court program in October 1999. The service and drug records indicate his performance on the program has been exemplary. The offender stated that he committed the offences to support his drug habit which escalated when his mother died. He expressed contrition for his actions in relation to the harm done to the victims and also for his reduced capacity to obtain more suitable employment due to his criminal record.”
Having entered the drug court program the father was able to stop using drugs. It is now two years since he has abused any form of illicit drug. It is clear that there is no challenge to the veracity of the father’s evidence about his cessation of drugs. I accept his evidence that he is drug free and find that he is likely to continue to be so. This is to his credit.
The mother’s proposals and current circumstances
The mother lives in rented accommodation with her brother J. She is not in paid employment and has been able to care for the child on a full-time basis since his birth. In 2002 she proposes that the child will be placed into long day care or preschool one day per week. She plans to return to TAFE one or two days a week and to acquire skills as an aerobic instructor. She impressed as a competent and caring mother who is very focused on her child’s development. She is estranged from members of her family. Her closest relationships appear to be her brother and her grandmother. She believes the father’s proposals for the introduction of extended contact are overly ambitious and do not take into account sufficiently the child’s age, the comparatively limited contact that he has had with the father and his difficulties separating from her as evidenced in particular by breath-holding tantrums.
Contact resumed on 30 June 2001 pursuant to orders made in this court. The father has exercised contact between 9.45 am and 12 noon alternate weekends each month at the Central West Contact Service. Because the contact has been limited the mother says the court should proceed cautiously.
Relevant law
Contact orders and specific issue orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to section 65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle. Section 60B(2)(b) has particular relevance in these proceedings. It provides in effect that children have a right of contact on a regular basis with both their parents and other people significant to their care, welfare and development. Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the child’s best interests.
In deciding the contact arrangements that would promote the best interests of a particular child the court must consider the various matters set out in section 68F(2). Its subsections comprise a list of matters that must be considered to the extent that each is relevant in the particular case. Paragraph (l) permits the court to take into account any other fact or circumstance that the court thinks is relevant. This ensures that the infinite variety of individual children’s circumstances can be addressed. B v B Family Law Reform Act (1997) FLC 92-755.
Section 68F(2) – Determining the child’s best interests
Wishes
This child is not yet two. There is no submission that he has any wishes that should be taken into account in the proceedings. That is so.
The nature of the child’s relationship with each of the parents and other persons
J has lived all of his life with his mother. She is his prime caregiver. There is no suggestion that there is other than a happy and healthy parent/child relationship. This is the relationship that provides J’s stability and primary security. The orders I make must ensure that the relationship is nurtured and is not disrupted. The father’s relationship with the child is developing. Contact stopped between October 2000 and the end of June 2001. In the life of this child that was a very significant gap in contact. The initial visit at the contact centre was difficult for the child and both of the parents. He quite clearly had difficulties separating from his mother and was distressed for most of the visit. That has changed and recent contact visits have proceeded well. Contact no longer takes place under the strict supervision of the contact supervisor. It is exercised in the play area outside the premises and the child and the father have been able to be actively engaged in one-on-one activities. The child has started to call his father “Dada”. I accept the father’s evidence as to the quality of the contact that is now enjoyed between he and the child. Thus I am satisfied that the child has indeed established as good a relationship as could be expected in the circumstances with the father. He knows who his father is. He is comfortable in his father’s care. There are now no separation anxieties apparent at the commencement of contact.
The child has been reluctant to leave his father’s care at the end of contact. This is not in any way to be construed as a rejection of the mother in favour of the father, rather it indicates that the child has a happy time in his father’s care and doesn’t want that time to be cut short. It shows the developing quality of the relationship between the child and the father. I am satisfied that it is time to take the next steps in developing the relationship that the child and father enjoy. Because I am satisfied that the mother is such a competent mother she will be able to help the child manage each transitional phase that the orders will provide for without undermining the child’s sense of stability and security.
The likely effect of any change in the child’s circumstances
This is a significant issue in the proceedings. The mother proposes that overnight contact not commence until the child is three. She submits that earlier overnight contact will be too much for the child to manage. She emphasises a cautious approach. Whilst I understand the rationale for the submission I do not agree with it. The periods of contact will lengthen during the next few months so that I am satisfied by the time the child is two years old, in April 2002, he will be able to spend an overnight visit with his father on a regular basis. I do not agree with the submission made on the father’s behalf that the contact should become overnight contact for two nights from the time the child is two years old. That is not a period of time that I am satisfied the child could cope with. It would be too long for him to be away from his mother. This is particularly so in circumstances where the mother only uses her grandmother as a babysitter. She does not allow the child to be cared for by other people. The mother implicitly acknowledges that by the time the child is two he will be able to spend longer periods away from her than he is at the present time. This acknowledgment is to be found in the fact that she is making arrangements at present for the child to commence long day care. I am satisfied that the mother would not have started on those arrangements unless she is satisfied that the child would be able to successfully manage the transition to the longer periods away from her.
Not making the changes proposed by the father will delay the development of a much deeper relationship between the father and child. This is a relationship that has the opportunity to develop meaningfully and to become one of the most important relationships that this child will have. It is in his interests that that relationship be securely developed in accordance with the child’s development and the father’s capacity. It’s in the child interests in the long term that this relationship is developed solidly at this time. I was satisfied having heard the father and his partner D, that they are both competent and caring people. I have no doubt that if Mr D at times may be anxious in his role as a parent in an unsupervised contact for the first time, that he will be ably assisted by his partner. She has reared a ten year old boy largely on her own, in the early stages in very difficult circumstances. K is doing well at school and has adjusted well to the introduction of the father into his life. I am satisfied that she will sensitively and carefully complement the father’s care of J during periods of contact.
Parents’ capacity to meet the child’s needs
I have already made findings about this and will not repeat them. I am satisfied that both parents have the capacity to adequately meet the child’s physical, intellectual and emotional needs. The father will need to speak to the mother’s medical practitioner, as he said he will, about the child’s breath-holding tantrums. He gave very considered evidence about this. I am satisfied that if he has any difficulties during contact that can not be met by either he or D, then he will as he said he will, make contact with the child’s mother and if necessary bring contact to an end earlier than the orders provide for. He will certainly have the capacity with the information provided by the medical practitioner and the mother to deal with the child’s breath-holding tantrums.
The child’s maturity, sex and background
I have already made findings about this and do not repeat them.
Protection of the child
The affidavit evidence suggested that there may be a need to protect the child from the father’s criminal activity and drug abuse. I am satisfied that the father has abandoned his life of crime and his use of illegal drugs. There is always a risk that a person who has engaged in drug abuse and criminal behaviour to the extent that the father has that he will revert to some form of crime or drug abuse. In this matter those issues are intrinsically linked. I am satisfied that the father’s criminal activities in the main result from his drug addiction. He has been free of drugs for two years. The probation and parole report to which I have made earlier reference speaks in positive terms about the father’s recovery and the commitment he has made to being drug free.
I accept his and his partner’s evidence that he has been drug free throughout their relationship. Whilst as a matter of theory a history of drug abuse by definition creates a risk of further drug abuse in the future I am satisfied that in the circumstances of this matter that that risk is a minimal one. I was impressed by the duration of the father’s recovery and his commitment to being drug free. Provided he remains motivated, he presents no unacceptable risk to the child of exposure to criminal activity or inadequate parenting as a consequence of drug usage.
The parties’ attitude to the responsibilities of parenting
These parties are young. They are committed parents and have the child as a primary focus of their lives. I am satisfied that in their role as parents both have a positive attitude to the involvement of the other in the child’s life. The father makes no challenge to the mother’s continuing care of the child. He conceded a residence order in her favour. He spoke positively when giving evidence about the mother’s capacity to meet the child’s needs. The mother’s attitude to the father as a parent has been more cautious. This is understandably so given his prior drug and criminal history. I was satisfied, however, that by the conclusion of the proceedings the mother had a much better understanding of her responsibility as a parent to promote the child’s relationship with the father and that she will do so in the future.
Achieving finality
It is in the child’s and parties’ interests that there is an end to litigation. There is always a possibility in parenting matters of further proceedings. I take that into account. The orders I make are orders that will move through the next stages of the child’s life. They are stepped and will take into account his developing independence and maturity. They will deal with the issue of contact once the child starts school.
Conclusions
I am satisfied that contact should develop at a pace that is more consistent with the proposals suggested by the father than by the mother. This is because the child’s relationship with the father has developed itself and is an important one. The father has the capacity to meet the child’s physical, intellectual and emotional needs during periods of contact. I am not satisfied that the child is yet ready nor will be by the time he is two for periods of overnight contact that are longer than one overnight period. That length of time in my view is too long for this child to be away from his mother. The parties agree that the next two periods of contact should continue at the Central West Contact Service. Thereafter the contact will be exercised away from the service. It will be limited to periods of three hours initially and occur for that time on three occasions. The father’s evidence is that he plans to exercise this contact on his own rather than crowd the child out with too many participants during contact. This approach is sensible. Thereafter the contact will be from 10 am to 4 pm until the child’s second birthday. There will be travel involved for the child and father of about one hour at each end of contact. The parties agree that contact changeovers should take place in the park nearby to the mother’s home. It will take the father about one hour to return with the child to his home at M F. The whole of contact should not be taken up with travel, a factor that I take into account. Once the full day contact starts the father will have the opportunity to take the child back to his home and slowly introduce the child to his partner and K.
On the child’s second birthday the contact will become one night overnight. From the time the child has his third birthday he will be settled sufficiently in overnight contact that the contact can extend to two nights each alternate weekend. I have not ordered contact on Saturday because that is when the father works. This will mean that the contact the mother currently provides for the child with her father on Sundays will be seriously disrupted. However, it is important that the child’s father be able to work and earn an income as he does on Saturdays. I accept his evidence that Saturdays is one of the busy days in the tattoo parlour. There is no evidence to suggest that the mother can’t re-organise the child’s visits with her father to a day other than Sunday. On balance I must give priority to the child’s relationship with his own father.
The parties agreed during the course of the proceedings that they would provide one another with information concerning health matters that may arise during the course of contact periods and they will be ordered to do so. Similarly the mother agreed that she would provide the father with information concerning the child’s preschool and schooling so that if he wished to become involved in activities at the child’s school he will be able to do so. She will be ordered to provide that information. The orders I make I am satisfied will logically progress the father’s contact and relationship with the child. It will not undermine the child’s stability nor his adjustment. His relationship with his mother will not be undermined. The father has the skills to adequately care for the child during periods of contact. It’s in the child’s best interests that the orders be made in the form I indicated at the commencement of these reasons. By the time he starts school, holiday contact should be included so that the child and father can enjoy longer periods together. This will enrich their relationship in the short and long term.
For these reasons I make the orders identified at the commencement of this judgment.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 10 January 2002
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