G & S - [2005] FMCAfam 423

FEDERAL MAGISTRATES COURT OF AUSTRALIA

G & S

[2005] FMCAfam 423

FAMILY LAW – Residence of child – consideration of need to protect child from risk of harm.

Family Law Act 1975 (Cth)

Applicant:

Respondent:

File Number:

(P)MLM 9633 of 2001

Judgment of:

Phipps FM

Hearing date:

18 August 2005

Delivered at:

Melbourne

Delivered on:

24 August 2005

REPRESENTATION

Counsel for the Applicant:

Ms Scherman

Solicitors for the Applicant:

Hallett West Johnston

Counsel for the Respondent:

Ms Cranenburgh

Solicitors for the Respondent:

Reale Lawyers

ORDERS

THAT all previous orders in relation to the child Z born 6 August 1999 be discharged.
THAT both the father and mother have joint responsibility for making decisions concerning the child’s long term care, welfare and development.
THAT the child reside with the father and he have responsibility for making decisions concerning the child’s short term care, welfare and development.
THAT the mother have contact with the child as follows:
(a)Each alternate weekend from 5.00pm Friday until 5.00pm Sunday;
(b)For a period of 9 nights in each mid-year term holiday commencing at 5.00pm on the last day of school;
(c)For one half of the Summer School holidays and in default of agreement, the second half;
(d)(i) In 2006, from 4.00pm on the Thursday before Good Friday until 4.00pm Saturday;
(ii)In 2007, from 4.00pm Easter Saturday until 4.00pm Monday;
(e)On the child’s birthday as follows:
(i)If a school day, for 3 hours commencing immediately after school;
(ii)If a non-school day, the child shall alternate living with the mother and the father commencing with the mother, from 5.00pm on 5 August until 5.00pm on 6 August.
(f)From 4.00pm Christmas Eve 2005 until 4.00pm Christmas Day 2005 and each alternate year thereafter.
(g)From 4.00pm Christmas Day until 4.00pm Boxing Day 2006 and each alternate year thereafter;
(h)Telephone contact each Wednesday at 6.30pm unless the mother has classes on a Wednesday in which case at 6.30pm on a day she nominates;
(i)The child shall live with the father each Father’s Day weekend from 5.00pm Saturday until 5.00pm Sunday;
(j)The child shall live with the mother each Mother’s Day weekend from 5.00pm on the Saturday until 5.00pm Sunday.
(k)For the purposes of contact changeover:
(i)The mother shall collect the child from the father’s residence;
(ii)The father shall collect the child from the mother’s residence;
(l)Contact otherwise as agreed.
THAT the parties shall keep each other advised of:
(a)Any major medical or dental issue concerning the child;
(b)Any change of address or telephone number.
That the party that does not have residence of the child be entitled to:
(a)Attend all usual school events such as concerts, school sports, parent-teacher interviews;
(b)Receive all usual school notices and reports and photographs (at their own expense).
THAT both parties be restrained from denigrating the other in the presence of the child.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 9633 of 2001

Applicant

And

Respondent

REASONS FOR JUDGMENT

Introduction and evidence

This is an application concerning residence and contact for a child of the parties.
The parties were married on 20 March 1999 having lived together for about a year prior to the marriage. They separated in September 2001 and were divorced on 9 September 2003. The husband is aged 34 and the wife is 33.
There is one child of the marriage, Z born 6 August 1999. The mother has two other children. B was born on 21 July 1992 and aged thirteen years. She resides with her father. The other child is C born 14 February 2003 aged two and half. He resides with the mother and A, who is C's father. Mr A is the mother’s partner.
Both parties acknowledge that during their marriage there was excessive drinking of alcohol and use of marijuana. The father alleges that the mother used "speed ". The mother denies this. The mother alleges significant violence against the father in this period. The father says that there were arguments and pushing and shoving. He denies the extent of the mother’s allegations of violence. At the time of the birth of the child, the parties were residing in a caravan at the rear of the mother's parent’s residence.
On 6 March 2002, final orders were made by consent in the Federal Magistrates Court providing for the child to live with the mother and for the father to have contact three consecutive weekends in a four week cycle from 6.00pm on Friday until 6.00pm Sunday.
The father says that from about October 2003 onwards, the child resided with each party for about half of the time. The mother disputes this assessment, but accepts that there were periods of time beyond the contact periods during which the child was with the father.
After the parties had separated, the mother commenced residing with Mr A. The relationship deteriorated into one of drinking, use of marijuana and violence. This resulted in intervention by child protection officers of the Department of Human Services in April and May 2004. At the time, Z and C were residing with the mother and Mr Anderson.
The mother exhibited to her affidavit the Department of Human Services reports in relation to its involvement. They describe several incidents involving violence, some in the presence of Z. The mother acknowledges excessive use of alcohol and use of marijuana causing the violent incidents.
The events of April and May 2004 and the intervention of the Department of Human Services meant that the child Z came into the care of the father. He filed an application for residence on 25 May 2004, the application which the Court is now dealing with. On 27 May 2004, interim orders suspended the previous orders, and provided for Z to reside with the father, and for the mother to have contact each Saturday from 10.00am to 4.00pm supervised by her parents.
Further orders were made on 25 June 2004 which continued the same arrangements for residence and contact with the addition of an undertaking by the maternal grandparents to supervise the mother’s contract and ensure that the mother and child had no contact with Mr A.
On 27 May 2005, the Melbourne Children's Court made an interim accommodation order in relation to the child C to Mr A with conditions that required both the mother and Mr A to accept visits from and to cooperate with the Department of Human Services and for them to attend various courses and assessments.
The Department of Human Services involvement continued until April 2005. By that time, Mr A and the mother were reconciled and living together with C. The mother's evidence is that she attended alcohol and drug counselling and other courses and had ceased drinking alcohol and using drugs.
For a time she was taking prescribed anti-depressant drugs, but she stopped taking those. She said she did this because her drug tests were showing Benzodiazepan. The psychologist, Mr Hodgman, prepared two reports. In the first report, he had concluded, based on evidence provided by a Drug and Alcohol counsellor the mother was seeing, that the mother had an addiction to Benzodiazepan. The mother said that the Benzodiazepan was in the anti-depressant drug she was taking so she stopped taking them to show that she was in fact drug free.
The mother said that now the relationship between her and Mr A was stable and free of violence.
The father said that after the parties had separated, he had gone to live in a Christian community at Mount Evelyn. He had attended alcohol and anger management courses and no longer had an alcohol abuse problem or used the illicit drugs. He said that the Christian network with which he became involved continues to support him.
In January 2003, the father commenced living with G. They were married in December 2004. They have one child, T born 8 January 2004. Ms G is pregnant with a second baby due in November.
G gave evidence. She and the father described a stable and happy relationship. They both said that Z gets on very well with T, his younger sister.
The father and Ms G reside in a three-bedroom house which is owned by Ms G's father. They pay rent. The father says he visits his father who lives in the country. His mother is in a nursing home but they bring her home from time to time. Z gets on well with them both.
G comes from a large family, and the evidence of both the father and Ms G is that they have a lot to do with them. She has a mother and father, four brothers and sister and six nieces and nephews. They see a lot of them. Z gets on well and calls Ms G's parents by normal grandparent terms such as nana and grandpa. The father and G say he says this because he follows the other children.
The mother resides with Mr A and C. Her elder daughter, B, aged 13, has contact with her mother every second weekend. They live in a four-bedroom home which they are buying.
Two reports were prepared by Mr Hodgman. The first is dated 30 September 2004. For the purpose of this report, he interviewed both parties, the child, Mr S, P’s father, the maternal grandmother, R and the mother's daughter, B.
The mother told Mr Hodgman she had used marijuana for a month, but was not anymore. She had said she had given up drinking alcohol two months before.
She told Mr Hodgman that she had been the victim of domestic violence by her three partners, including the father. She alleged that the father had pushed her into the oven while she was holding Z and that on another occasion, he had slammed the bathroom door into the shower about 15 times. She told him that the main issue for her was for Zachary to be returned to her.
The father told Mr Hodgman that his health was excellent. He stated that he was not taking any illicit drugs. He had last taken marijuana in 2001/2002. He drinks alcohol very rarely. To Mr Hodgman, the father denied any physical violence towards the mother.
Mr Hodgman said he had the distinct impression that Z was well aware of the awkward situation he was in – trying to please both parents. In the first report, Mr Hodgman expressed a strong opinion that both parents had been and were currently trying to influence Z to their line of thinking.
Mr Hodgman observed Z interacting with both his parents. He said that Z and his father spoke spontaneously and with no hesitation or concern towards each other. When he met his mother he ran joyfully into her arms. His behaviour was bright and lively.
B told Mr Hodgman that she liked seeing Z every second Saturday. When Mr Hodgman raised the topic of discipline with reference to the father, B said he had broken a window over Z’s head. She said that he did something with "budgie and dog-killed them". She told Mr Hodgman that the husband had pushed the wife into the oven.
Mr Hodgman referred to reports by Dr Blandthorn, psychiatrist, of

18 June 2004 and Ms Pryor, Family Drug and Alcohol counsellor of

28 June 2004. Dr Blandthorn stated that the mother described using marijuana since the age of 15 and for a number of years had been a daily user. Mr Hodgman referred to these reports after expressing concern that when he directly questioned the mother about the extent of her drug and alcohol history that she replied initially "yes – odd "dope" (marijuana) for a month". Mr Hodgman said that to the mother's credit, she informed him that she had been directed by the Department of Human Services to undertake drugs screenings.
Ms Hodgman recommended in his first report that Z continue to reside for the present with his father. He recommended that the mother have a minimum period of three months with no positive drug and alcohol screens before there was overnight contact.
Mr Hodgman's second report is dated 8 August 2005. The mother told him that she considered herself the better parent because she was his biological parent. She said she got on with her partner very well. One matter which was of concern to Mr Hodgman was that the mother told him that the child had said that his father had told him about the death of the father's brother. He said his father had told him that the brother had put a gun in his mouth and blown his head off.
Mr Hodgman discussed with the father Z's progress, his relationship with his current wife, and his work.
When Mr Hodgman observed Z with his mother he noted her attempts to engage Z. She mentioned a number of age-appropriate subjects and attempted to be demonstrative to Z. Z was not cooperative. When seen with his father, Z appeared to be well settled. However, Mr Hodgman said that it was important to remember that Z accompanied his father to the interview which would account for him being at ease.
Mr Hodgman interviewed Z. He asked him how he got on with his mother and he replied "good". He asked how he got on with his mother’s partner, A, his stepbrother C and his stepsister B. He replied that B's mean. Mr Hodgman asked Z where he would choose to live and he replied "Dad’s place". When asked why he made the choice, he replied "I don't know why". Mr Hodgman's opinion was that he did not want to disappoint either parent, so he did not want to elaborate on this statement.
Is his oral evidence, Mr Hodgman said that this latter reply was given in a quiet voice. Mr Hodgman saw it as a very hard thing for someone Z's age to have to express as a choice.
Mr Hodgman reviewed the five Department of Human Services reports. They concerned the mother and Mr A. The report of

3 December 2004 showed that both had adhered to the conditions of the Interim Protection Order and had made positive changes to their lives. The report of April 2005 stated that the mother and Mr A had followed all procedures laid down by the Department and the Department recommended that the Supervision Order concerning C be revoked.
Mr Hodgman said that during his interview, Z informed Mr Hodgman that he was experiencing some difficulty in his relationship with B. Mr Hodgman said this could be expected as there is a seven-year age gap. Both children have different interests given their developmental stages. Mr Hodgman said he had taken into consideration that there is an amount of teasing between siblings.
Mr Hodgman said that he was given a number of drug screening results for both parents. The latest drug screening for the mother, undertaken on 4 May 2005, had a warning that the mother's creatinine level in the drug screening sample was below 1.8 mmol/L. The report suggested dilution of the sample and possible false negative results.
Mr Hodgman spoke to a technician at the laboratory which did the test. He said there were two possible explanations. The specimen could have been sabotaged or the mother could have been drinking water-known in the trade as "flushing", for example, having three glasses of water before giving a sample. This could give a false negative result.
Mr Hodgman said he was providing this information for the Court. He recommended that the wife undergo at least a couple of drug screens and results be given to the Child Representative.
Mr Hodgman noted that an issue of concern between the parents, especially for the mother, was the vexed issue of the father allegedly borrowing money from the maternal grandmother and the money not having been paid back. Mr Hodgman said he was very concerned at the allegation from the mother that Z had been told that his father's brother had allegedly placed a gun in his mouth and blown his head off.
Mr Hodgman's recommendation in the second report was that it would be in the best interests of Z to remain in his father's home with generous access to the mother. He said he was well settled in his school environment and was learning to adjust to both households where he had stepbrothers and stepsisters at various ages. Mr Hodgman said that the mother appeared to have made tremendous progress in her life and both households had considerably improved their family parenting and home routines.
There are a number of matters which the mother's case raised as concerns. Two are those from Mr Hodgman's report above, Z being told of the father's brother's death and the window being broken over Z by the father. B's reference to the death of the dog and the budgie were not matters of great concern to the mother. She said that what B had said was that the father kicked the dog. She said the budgie had died and the father had put it in the rubbish bin rather than have a proper burial, and that was what B was referring to.
The other matters were these. The mother said that the father had told Z that he had been banned from the schoolyard for the rest of the year because he had been throwing sticks. She claimed that the father and P were encouraging Z to call P "Mum". She said that Z had given P a Mother's Day card to that effect. She said that Z had told her that he had been punished for not eating mushrooms. She was concerned that the father had not consulted her before enrolling Z in primary school. Another matter raised was that the father had a debt to the mother's parents, although not so much a matter of concern in relation to Z.
The father dealt with each of these matters in his evidence. He said that his brother had committed suicide some years before. He said he told Z because Z knew that the father had had a brother. He told him his brother died but he did not tell Z how he had died. He said it was well known amongst his relatives and others that Z would come in contact with how his brother had died. He had shot himself. Z could have heard it from a number of sources.
The father acknowledged that in an incident prior to separation, he hit a window in anger and had cracked it. He denied that glass scattered over Z or B. He said he had been locked out by the wife and was angry. He was not proud of the incident.
The father said Z and two other boys had been on the school oval throwing sticks at cars in the street. One driver stopped and reported them. They were confined to classrooms during breaks in classes for the rest of the term, which was about two weeks. The father said that at home, Z had been punished by being deprived of television for a period. Z had written a letter of apology to the driver. The father considered that the school had dealt with the incident appropriately.
Both the father and G denied encouraging Z to call P "Mum" or that he did. They said they were careful to tell Z that he had a mother and a stepmother. G said that Z had made two Mother's Day cards. Both referred to Mum but that was because it was a printed piece of paper that the children were given to stick onto the cards.
As for the mushrooms, the father said that Z, like many children, did not like vegetables. He said they were having a barbecue and mushrooms had been cooked on the barbecue. When put in front of Z, he had made such a fuss that he was sent to his room. He was punished, not because he would not eat mushrooms but because of the way he had behaved.
The father acknowledged that he had borrowed money from the mother's parents. His car needed repairs and at one stage he had borrowed about $3,000.00. He said there were other matters where the mother's parents had assisted financially and were claiming the money as loans.
The father acknowledged that he had not consulted the wife about the choice of school. He had not considered it necessary.

Relevant law

Parenting orders are dealt with in Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”).
Section 60B sets out the objects of Part VII and the principles which underlie those objects. The four principles are:
(1)Children have a 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.
(2)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.
(3)Parents share duties and responsibilities covering the care, welfare and development of their children.
(4)Parents should agree about the future parenting of their children.

Section 65E provides that in determining whether a particular parenting order should be made, the best interests of the child is the paramount consideration.
Section 68F sets out matters which must be taken into account in determining what is in the best interests of the child.

Section 68 considerations

Some issues of fact have already been dealt with. As necessary, other findings are included with the s.68 considerations.

The child’s wishes

Z told Mr Hodgman, when asked, that he wanted to live at his father's place. Given Z's age and qualifications Mr Hodgman expressed, not much significance can be given to this statement.

The nature of the children’s relationships

Zachary has an excellent relationship with each of his parents and siblings. He has complained of bullying by B, but this was not a matter of concern to Mr Hodgman. The father did not see it as a matter of concern. He said he and the mother had discussed it and she had said, if necessary, she would change B's contact time so she would not be there with Z. It has not been necessary to do this.
Until May 2004, the mother was Z's primary carer. Her case is that now she has overcome her difficulties, she should resume that role. It was submitted on her behalf that because the father was employed, his wife Pe is the primary carer, not him. The father works at night from about 9.00pm until about.5.00am cleaning aircraft at Melbourne Airport. He says that when he comes home, he takes Z to school and then sleeps and gets up in time to pick him up from school. Z is in bed before he goes to work. His evidence shows that he takes a significant day-to-day role in Z's care.

The likely effect of any changes in the child’s circumstances

Z has been residing with the father since May 2004 with generous contact with the mother. Any change in circumstances would be unlikely to affect his relationship with either parent or other people in his life.

Practical difficulties and expense associated with contact

The father resides in Albion and the mother in Narre Warren. Travelling time can be less than an hour or significantly more than an hour depending on the time of day and therefore traffic. It is not a significant consideration.

Capacity of the parents to meet the children’s needs

Each parent has the capacity to provide for the needs of the child, including his emotional and intellectual needs. Each has suitable accommodation.

The children’s maturity, sex, background and other characteristics

The child is a five year old boy. Other than that arrangements must be appropriate for a five-year-old boy, there is no significance in this consideration.

The need to protect the children from physical or psychological harm caused by abuse, ill treatment, violence or other behaviour

In April and May 2004, Zachary was exposed to domestic violence and the consequences of his mother's drug and alcohol use. The Department of Human Services intervention meant that neither C nor Z were in the care of the mother, and contact was supervised. That was necessary for their protection.
The mother's evidence is that she is not using alcohol and drugs and her relationship with Mr A is stable. Mr A was not called to give evidence. The explanation offered by counsel for the mother was that her solicitor did not want to incur the expense of preparing an affidavit. The absence of an affidavit from Mr A was raised as an issue by counsel for the father at the commencement of hearing. There were two days of evidence and then a break of six days before final addresses. No application was made for the filing of an affidavit by Mr A nor to call him to give evidence without first filing an affidavit.
Mr Hodgman referred to the possible false negative result of the mother's last drug test in May 2004. The mother's explanation was that since she had stopped drinking alcohol and using drugs, she had put on weight and so she had started exercising. This meant that she drank a lot of water.
She admitted that the child representative had written to her solicitor asking for another drug test or drug tests. She said she had gone to her doctor and asked for another test. She had had an illness and the doctor had misunderstood what tests were needed. She had been tested for the wrong thing, not illicit substances.
The explanation is unsatisfactory. What she had been through meant that the mother knew the importance of drug testing for her claim that she was the better person to care for Z. The drug test result contained a clear warning of a possible false negative. The child representative had asked for more testing. Mr Hodgman discussed the possible false negative result with the wife. She was cross-examined about it. Given the break between evidence and final addresses she could have, even at that late stage, obtained another test. There were four months between her last drug test, with the warning of the possible false negative result and hearing.
Mr Anderson was a potentially important witness. He lives with the mother and could give evidence relevant to the wife's disposition, particularly her abstinence from drinking alcohol and use of drugs.
The mother has had long-term problems with alcohol and drug use. Z has been exposed to the risk of harm because of the mother's alcohol and drug use in the past. She now says that it is in the past but there is an absence of important evidence which would have assisted in assessing whether or not this was so. Overall, the evidence shows that there is risk of Z being exposed to harm from his mother relapsing into drug and alcohol use with the attendant difficulties, including domestic violence.
The father acknowledges problems with alcohol and use of drugs in the past, and so an unhappy relationship with the wife. He acknowledges arguments and pushing and shoving. He acknowledges hitting a window and cracking it. He denies the extent of the violence the wife alleges. This may be a matter of perception on each side. Whichever view is taken, what occurred were matters of risk for any child involved.
The husband described in detail how he had dealt with his problems by obtaining the support of a Christian community and attending courses. He has since remarried and is in a stable relationship with his second wife, G. He has steady employment. His wife G gave evidence. She impressed as a stable influence in the life of the husband.
The risk of the husband reverting to his previous drug and alcohol use and associated behaviour is low.

Any family violence involving the children or any member of the children’s family and family violence orders

Family violence matters have been dealt with in the preceding paragraphs.

The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents

Both parents plainly love the child and wish to do their best for his welfare.
The mother raised a number of matters of concern. These and the father's explanations have already been described. None of them raise any significant concerns about the father's attitude to the child and responsibilities of parenthood.

Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children

This is not a consideration.

Any other fact or circumstance the Court thinks relevant

This is not a consideration.

Conclusion

Z is settled and doing well in his current environment. Mr Hodgman puts this forward as a reason for his opinion that the situation should continue. The evidence shows that Mr Hodgman's concern that the possible false negative test in the mother's last drug test should be investigated was justified. He has been the primary carer since may 2004.
The mother's history of drug and alcohol use and the attendant problems is a significant factor in this case. The evidence leaves considerable doubt about her claim that she has solved these problems. The need to protect Z from the risk of exposure to harm, combined with the other factors, leads to the conclusion that his best interests will be served by continuing to reside with his father.
Contact arrangements are largely agreed, whatever the result of the residents dispute. Three matters arose.
The father proposed three hours contact on the child's birthday, if a school day commencing immediately after school and if a non-school day, commencing at 1.00pm. The mother proposed the whole of the day if a non-school day alternating between the parties. The father agreed to this.
The father proposed telephone contact each Wednesday at 6.30pm. The mother is studying and may have classes on that day and so a provision to allow for that has been included.
There is agreement that contact changeover should be at each party's residence. The father proposes that the mother collect Zachary from his residence and he collect Z from the mother's residence. The mother wants this reversed. The reason is associated with the travel. Friday at 5.00pm is the peak time and traffic is heavy. The father, in his evidence, said that he had agreed, and it had been happening, that on Friday afternoons the mother was collecting Z earlier at 3.30pm to 4.00pm and so missed the worst of the traffic. In addition, what was put on his behalf was that on Friday, if he was travelling to the mother's residence, he would be travelling with the peak hour traffic whereas the mother would be travelling against the peak and traffic.
In terms of the best interests of the child, the less time spent travelling the better. The father's proposal does achieve this because of the peak hour traffic considerations. In addition, there is no reason why the past flexibility will not be continued so that the mother can collect Z earlier and miss the worst of the traffic.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date: