Giang and Ducley
[2011] FMCAfam 736
•24 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GIANG & DUCLEY | [2011] FMCAfam 736 |
| FAMILY LAW – Children. |
| Family Law Act 1975, s.60CA |
| Applicant: | MS GIANG |
| Respondent: | MR DUCLEY |
| File Number: | SYC 6298 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 24 June 2011 |
| Date of Last Submission: | 24 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 24 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Reid |
| Respondent: | No Appearance |
| Solicitors for the Independent Children’s Lawyer: | Rowley & Associates |
ORDERS
The child [X] born [in] 2005 is to live with the Mother.
The Mother is to be solely responsible for all decisions relating to [X]’s care and welfare, both day to day and long term.
The Mother is to continue her involvement with Community Services and the “Brighter Futures” programme for as long as the Community Services case workers deem it appropriate.
The child is to spend time with the Father at the following times:
·Each Sunday from 9:00am until 5:00pm
·Each Father’s Day from 10:00am to 5:00pm if said day does not fall on a contact weekend. Similarly, the child shall be returned to the other at 10:00am on Mother’s Day if said day occurs on a contact weekend.
·On the Father’s birthday, if the said day does not fall on a contact weekend for a period of not less than 2 hours.
·On the child’s birthday if the said day does not fall on a contact weekend for a period of not less than 2 hours. Similarly, the child shall spend not less than 2 hours with the Mother if the child’s birthday falls within a contact weekend.
·At any other time as agreed between the parties.
The Father shall have sole responsibility for decisions regarding the child’s day-to-day care, welfare and development during the time the child spends with him.
The Father is to notify the mother at least 4 hours in advance if he is not coming to collect the child for the purposes of contact.
The Father is to refrain from consuming alcohol whilst the child is in his care.
Each parent shall notify the other of any change in his/her address within 72 hours of making such change. The Father will not be able to collect the child if he has not informed the Mother of his change of address.
Each parent is to notify the other as soon as practical of any emergency or health related matters concerning the child that may arise whilst in either his or her care.
THE COURT NOTES THAT:
The Mother gives her undertaking to the Court to continue her attendance at AA and to refrain indefinitely from alcohol consumption.
The Mother gives her undertaking to the Court to ensure that the child is not exposed to any domestic violence of any kind.
IT IS NOTED that publication of this judgment under the pseudonym Giang & Ducley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6298 of 2010
| MS GIANG |
Applicant
And
| MR DUCLEY |
Respondent
REASONS FOR JUDGMENT
The application before the Court is an application by the Mother of a child called [X], who was born [in] 2005, for [X] to live with her and, in fact, to continue to live with her, subject to time spent with the child’s father and subject to certain undertakings that the Mother will give in respect of alcohol consumption and ensuring that the child is not exposed to any domestic violence.
It is an application that was originally commenced by the child’s grandmother in October 2010. At that stage, the Mother had a number of difficulties relating to alcohol which caused the grandmother a degree of concern and the child’s father had also been drinking heavily.
The concerns that were raised related to the welfare and the safety of this child, especially as far as heavy drinking was concerned and of the risk of domestic violence. All proceedings where the Court is seeking to make a parenting order must have, as the paramount consideration, the best interests of the child and in these proceedings, the best interests of this little girl have been kept well and truly in the forefront.
An Independent Children’s Lawyer was appointed due to the Court’s concerns and I acknowledge the constructive and helpful work performed by the Independent Children’s Lawyer in these proceedings. The situation has changed so that the maternal grandmother has stepped out of the role of applicant and the Mother has made her own application.
The Mother has done so because over a number of months, she has made serious and positive efforts to deal with the question of the consumption of alcohol and as she told the Court today, she is three days short of being alcohol free for nine months.
The Mother’s efforts and achievements in this regard should be the subject of praise because what she has done is not only attempt to deal with this issue for her own benefit, but also for the benefit of her child. The Mother has shown, in my view, an ability to consider her daughter’s needs which goes very much towards a positive attitude towards embracing the responsibilities for parenthood.
The Court considers the best interests of the child which is the requirement placed upon it by section 60CA of the Act by dealing with the primary considerations which are set out in subsection 60CC(2), and the additional considerations set out in subsection 60CC(3).
The primary considerations involve the benefit to the child of having a meaningful relationship with each of her parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. I am satisfied on the evidence that I have heard today that it is to [X]’s benefit to have a meaningful relationship with both of her parents.
The Father is no longer represented and has elected not to attend Court. However, the Mother has attended Court. She has given evidence and has been subject to cross‑examination both from counsel, the Independent Children’s Lawyer and from some questions from the bench.
It is the Mother’s evidence that she has made arrangements for [X] to have her own mobile telephone so that she can make calls to her father and receive calls to her father.
The Father is in a new relationship and has recently become a father again and [X] has been able to participate in that event by going over to see and spend time with the new baby which, to my mind, is a very positive situation.
The Mother, however, has given evidence that she is mindful of the difficulties that have arisen in the past, to the extent that not only is she working seriously to deal with alcohol, but she is concerned to make sure that the Father does not relapse into heavy drinking, and she has told the Court that if the Father were to appear to her to be affected by alcohol, that she would not consent to [X] spending time with him, because she is aware from 11 years of being with him, of the disastrous consequences of the Father being involved with alcohol. She wishes to make sure that [X] is not subjected to that. The Mother also gives very telling evidence that, after 11 years, she knows when he is affected by alcohol and is able to act from a position of knowledge.
In my view, the Mother is taking steps, both in her own behaviour and in the monitoring of the behaviour of the Father, to ensure that this child is not placed at risk of harm for those reasons. Clearly [X] is only a young child. She is six, she turned six on [date omitted]. The Court does not have direct evidence of her views, but in my situation that is not necessary. She has been represented by the Independent Children’s Lawyer and the Independent Children’s Lawyer supports the proposals that have been made, which would involve this child continuing to live with her mother, spending time with the Father and involving the safeguards that have been set out in the earlier interim orders.
The Court made orders on 6th April this year on an interim basis that provided for [X] to live with the Mother, who should be responsible for decisions relating to [X]’s care and welfare, both day to day and long term. In other words, that the Mother has the sole parental responsibility for the child. I still consider that that is appropriate. The orders made require the Mother to continue her involvement with, amongst other things, the Brighter Futures program, and I have heard evidence that that is exactly what the mother is doing. The Court made orders about the child spending time with her father and clearly, the Mother is making sure that that takes place and facilitating that arrangement, whilst at the same time maintaining a watchful eye on the Father as far as his alcohol is concerned.
It would appear to me that the Mother, on her evidence, is taking steps to promote the relationship with the child’s father, subject to ensuring that she is not placed at any risk of harm whilst doing with the Father.
This is a matter where there have, in the past, been issues of violence, but I am satisfied that the steps that the Mother has taken and is taking have gone a long way to protect the child from such matters in the future. The Court should, when making orders, endeavour to make the order that would be least likely to lead to the further institution of proceedings involving the child. I am satisfied that the orders proposed will achieve that aim.
In my view, there should be a finality to litigation and this is the time that final orders should be made. I am asked by counsel for the Mother and supported by counsel for the Independent Children’s Lawyer to make as final orders, Orders 1 to 9 that were made on an interim basis on 6th April 2011. I am satisfied that it is in [X]’s best interests for the Court to do just that.
I am also asked to note the undertakings previously given by the Mother, which were undertakings 10 and 11 on 6th April. They relate to continuing her attendance at AA, to refraining indefinitely from alcohol consumption and ensuring that the child is not exposed to any domestic violence of any kind.
In my view, the Mother has given evidence today that she has been doing exactly what she has undertaken to do and so the Court has no hesitation in accepting those undertakings as to her future actions, and so I note those undertakings as well.
I congratulate the Applicant Mother for the significant steps that she has taken and it is quite clear that she has taken those not just for her own benefit, but also because she too has placed the best interests of her child right in the forefront of her consideration. Accordingly I, having made those orders, I will remove the application from the list of cases awaiting finalisation.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 20 July 2011
0
0
1