HOROWITZ & COLE
[2011] FMCAfam 1001
•2 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOROWITZ & COLE | [2011] FMCAfam 1001 |
| FAMILY LAW – Interim parent – father’s long term persistent drug use poses unacceptable risk to children – mother untruthful witness thereby limiting the ability to make findings. |
| Family Law Act 1975, ss.60CC(2)(a), (2)(b), (3), (3)(d) and (4), 68L, 91B |
| Applicant: | MR HOROWITZ |
| Respondent: | MS COLE |
| File Number: | DUC 27 of 2011 |
| Judgment of: | Dunkley FM |
| Hearing date: | 2 August 2011 |
| Date of Last Submission: | 2 August 2011 |
| Delivered at: | Orange |
| Delivered on: | 2 August 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Cunnighams, The Law Practice |
| Solicitors for the Respondent: | Gelin Murdoch Spinks |
ORDERS
That all prior parenting orders are discharged.
The mother shall have sole parental responsibility for the medical issues relating to [X] born [in] 2007, [Y] born [in] 2008 and [Z] born [in] 2009. The children shall live with the mother.
The children shall spend time with the father:
(a)Each Monday between 10 am and 5 pm.
(b)Each Thursday between 10 am and 5 pm.
(c)At such other times as the parties agree.
Each period of time shall begin in the foyer of the [M] Police Station, unless the parties otherwise agree in writing, with the mother to deliver the children to the father at the beginning of each period and the father to return the children to the mother at the end of each period.
Each party shall keep a written record of the pick-up and drop-off times and if either parent is more than 20 minutes late that fact is to be brought to the attention of the officer at the desk at [M] Police.
Neither party shall use nor consume any illicit drug.
Each party shall provide a urine sample and a chain of custody setting pursuant to the relevant Australian standard so as to enable a full drug screen not less than twice each calendar month, each sample to be given at least 12 days apart. Each party shall cause a copy of those results to be forwarded by their solicitor to the other party’s solicitor and the independent child lawyer within 72 hours of the report becoming available.
The father shall within 14 days contact the cannabis clinic, [B] and engage with that clinic as frequently as he is advised by an officer of that clinic.
The mother shall within 14 days contact the Department of Human Services, Community Services, [M] and engage with the Brighter Futures program or similar program to which she is recommended by the officers of the department.
Pursuant to section 91B of the Family Law Act the Department of Human Services, Community Services is requested to intervene in these proceedings. Upon request from the said department the court is to forward and provide to that department copies of all documents relevant to the proceedings before the court to enable it to consider the request to intervene in these proceedings.
Pursuant to section 68L of the Family Law Act an independent children’s lawyer is appointed for the children. I request Legal Aid New South Wales provide such representation. The parties are to forward to Legal Aid New South Wales, Parramatta office forthwith all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant documents.
I list this case for further directions at 10 am on 4 November 2011.
I direct that a copy of these reasons be taken out and provided by my associate to Federal Magistrate Coker sitting in the Federal Magistrates Court at Townsville relevant to the ancillary proceedings involving the mother or father of [N].
It is noted that the solicitors for the father will approach the Local Court at [M] on 3 August 2011 in an attempt to request that court to vary the existing apprehended violence orders so as to make them compatible with the orders that have been made today.
The father can provide a copy of these orders to the cannabis clinic at [B].
The mother can provide a copy of these orders to the Department of Human Services, Community Services at [M].
IT IS NOTED that publication of this judgment under the pseudonym Horowitz & Cole is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ORANGE |
DUC 27 of 2011
| MR HOROWITZ |
Applicant
And
| MS COLE |
Respondent
REASONS FOR JUDGMENT
These are interim parenting proceedings relating to [X], aged four, who was born [in] 2007, [Y] aged three, who was born [in] 2008 and [Z] aged 21 months who was born [in] 2009.
The father filed an initiating application in the [M] Local Court on
30 November 2009. The mother filed an initiating application in the [B] Local Court on 8 December 2009. Each did so without knowledge that the other had done so. The mother’s initiating application was given an earlier return date than the father’s, that is, on 14 December 2010. The mother’s initiating application proceeded on an ex parte basis and an order was made for the children to live with the mother and for her to have sole parental responsibility. The proceedings were then otherwise adjourned to a date in January. The father subsequently filed a response in the Local Court at [M] on 19 January 2011. It is that response that sets out the orders that he seeks from the court today.
The documents that became exhibit B in the proceedings indicate that the father was arrested by the police on 10 December 2010 whilst he was driving in [M]. The children were not with him. They were located by the police and the Department of Human Services at [address omitted], [M] and returned to the mother’s care pursuant to the order made in [M] Local Court on 14 December 2010. For convenience I will treat the mother as the applicant in these proceedings and the father as the respondent. In so doing, that has no forensic significance.
The mother seeks orders for sole parental responsibility, for the children to live with her, and for the children to spend supervised time with the father three hours once a week.
The father seeks orders for sole parental responsibility, that the children live with him, and for the mother to have supervised time with the children. He also seeks that an independent child lawyer be appointed.
Background
·[In] 1961 the father was born.
·[In] 1978 the mother was born.
·[In] 2002 the mother’s child from a previous relationship, [N], is born.
·November 2005 the mother says the parties started to live together.
·February 2007 the father says that the parties started to live together. The discrepancy in those dates has no forensic significance in these proceedings.
·[In] 2007 [X] was born.
·[In] 2008 [Y] was born.
·[In] 2009 [Z] was born.
·The mother says that the parties separated some time in August 2010.
·The father says the parties separated some time in September of 2010. Again that discrepancy has no forensic significance in these proceedings.
·On 8 December 2010 an interim apprehended violence order is made in the Local Court at [M] with the protected person noted as the mother and the defendant noted as the father. A copy of that interim order has been provided to me and became exhibit C in the proceedings. The father is denies the behaviour complained of, and a defended hearing of the Apprehended Violence Order complaint is to occur.
An interim apprehended domestic violence order has also been made in the [M] Local Court naming the father as the protected person and the mother as the defendant. The mother is defending those proceedings.
Each of those proceedings has a hearing date of 11 November 2011 at [M].
The interim apprehended violence order protecting the father became exhibit D. The terms and conditions of the interim apprehended violence orders are different. The one that protects the father from, and names the mother as the defendant, contains standard orders 1(a), (b) and (c). The apprehended violence order that names the mother as the protected person and the father as the defendant contains standard orders 1(a), (b) and (c) and an additional order 4 that the defendant, that is the father, must not go within 50 metres of the premises at which the protected person, that is the mother, may from time to time reside or work or other specified premises and that the defendant, that is the father, must not approach, contact or telephone the protected person, that is the mother by any means whatsoever except through the defendant’s legal representatives or as agreed in writing or as permitted by order or directions under the Family Law Act as to counselling, conciliation or mediation.
By agreement, the solicitor for the father is to approach the Local Court at [M] tomorrow, 3 August 2011, to seek to vary the apprehended violence order as it protects the mother by adding an additional clause 6 which would enable the parties to come into the presence of each other pursuant to a family law order for the purposes of changing over of their children for a time with order.
On 24 December 2010 the mother and the children moved into public housing in [M].
On 19 January 2011 the [M] Local Court made orders for the father to have time with the children on Thursdays and Fridays between nine and five and that he not consume or take any non-prescription drug for 12 hours before the children come into his care.
Issues
The issues that have to be determined at this interim hearing are:
·Who should have parental responsibility for the children?
·With whom should the children live?
·What time should the other parent spend with the children should that time be supervised?
The Evidence
Mother’s Evidence
The mother says that the father was controlling of her and abusive towards her throughout their relationship.
She says the father has a long history of drug and violence offences.
She says that she was the children’s primary carer. She says that she saw the father daily using drugs, being amphetamines and cannabis whilst they lived together.
She says that the Department of Community Services became involved with the family in January of 2010.
In April of 2010 the mother sent her son, [N], to Queensland to spend time with his father.
She says that [N] was returned to Sydney airport but through lack of knowledge of when he was to be arriving she did not collect [N]. [N]’s father retrieved him, and now [N] lives with his father as a result of interim orders made by Federal Magistrate Coker in the Federal Magistrates Court at Townsville. Those proceedings are ongoing in that registry.
At the time of separation the mother and the children moved to a women’s refuge. She says that they lived there from 18 September 2010 to 18 November 2010.
She says that on 18 November 2010 she moved with the children to a friend’s house in [M]. On 29 November 2010 she says that whilst she was at that home the father arrived at the home and took the children with the assistance of another person. She then sought assistance from the Department of Community Services, police and the [M] Local Court.
She says that since the children were returned to her care on 10 December 2010 the father has stalked and harassed her.
She says that [Y] is in good health, that [X] has an [medical] problem and that [Z] was born with a [omitted] deformity.
She and the children now live at [address omitted], [M] in housing provided to them by a public authority. She has provided clean urinalysis certificates dated 10 December 2010, 24 December 2010, 4 January 2011 and 27 July 2011.
She says that she is sometimes late to changeovers when the children are to spend time with the father because she has to walk as public transport cannot get her there on time. On some of those occasions she says the father has not waited for her to deliver the children to him.
If she accesses public transport being a bus she says that the earliest she can get to changeovers is 10 am.
The mother asserts the children have been offered a preschool place on Fridays.
She provided no evidence as to the evidence that she placed before the Federal Magistrates Court at Townsville.
She gave no evidence as to her criminal history.
Father’s Evidence
He lives at [omitted]. He says that is about 48 kilometres from [M]. He has a motor vehicle.
He says he is in receipt of a disability pension as a result of a [omitted] injury.
He denies ever physically assaulting the mother.
He says that the mother was a regular drug user whilst they lived together.
He says that the mother has been untruthful in affidavits either to the Townsville Federal Magistrates Court or the Federal Magistrates Court at Orange. He has annexed some affidavits that she filed with Townsville Federal Magistrates Court and notes that those affidavits indicate that she said in those affidavits that she and he lived in what is described as a wonderful lifestyle with no domestic violence and no drug use.
He admits two periods of incarceration in 2004 and in 2008 for possessing marijuana and amphetamines and on one occasion for a firearms offence being in 2004.
He says the mother has a criminal history and is currently on a 12 month bond.
He says that he was the primary carer of the children whilst the parties were together. He admits that he continues to smoke cannabis at least three to four times a week.
He says that on 29 November 2010 he secretly observed the mother inject herself with what he describes as amphetamines whilst she was at her friend’s house. He says that was the reason that he collected the children and removed them from the mother. He says the mother at that time was heavily drug affected.
He did not call any evidence from any other person who was with him on that day.
He says he has been told, without stating the source of that belief, that [X]’s [medical] problems and [Z]’s [omitted] deformity may have been caused by the mother’s amphetamine use during pregnancy.
He says that in April 2010 at the mother’s request he cared for [X] and [Y] whilst the mother travelled to Townsville with [Z] for the proceedings involving her older child [N] in the Federal Magistrates Court.
The Determination of this Case
Parental Responsibility
The mother has either lied to the Federal Magistrate in Townsville or to me or to both about the existence of family violence and drug use in her relationship with Mr Horowitz. Absent cross-examination it is not possible to determine to which Federal Magistrate she has lied.
Consequently any assertion she makes must at this time be assessed very cautiously especially as she gives no reason or explanation as to the discrepancy in her affidavits.
Throughout submissions the mother persisted in comments and glances at the father to the extent that I had to have her lawyer stop and speak to her about her behaviour.
There is in existence, as I have said, interim apprehended violence orders. Those are defended. The hearing is listed in November of 2011. Given the contradictory evidence of the mother and the caution that I must exercise I am unable to make findings about family violence.
Given the mother’s behaviour in court today I am certain that the parties are poor communicators, so poor that they cannot co-parent at this time.
Given the medical difficulties of [X] and [Z] and the parties’ communication problems one party will need to have sole responsibility for medical issues relating to the children.
Apart from that, the Family Law Act with respect to parental responsibility will, in the interim, apply. The parent with whom the children are to live will therefore need to exercise parental responsibility with respect to medical issues. Given the father’s continued drug addiction the children will, by virtue of that, have to live with their mother. Consequently, she will have sole parental responsibility for the children’s medical needs, only.
With Whom Shall the Children Live?
The mother says that she no longer uses drugs. Her urinalysis certificates gives some assurance about this but there is a big gap between the January 2011 and July 2011 certificate about which I cannot be certain given the mother’s untruthfulness. The father, however, has a longstanding drug problem dating back to at least 2004 and probably earlier. He admits to a current marijuana use of at least three to four times a week.
Pursuant to section 60CC(2)(b) this persistent drug use disqualifies him as a live-with parent as the risk of the children being exposed to psychological harm or abuse or neglect is unacceptable in his care.
Marijuana users are not emotionally available to their children in the way that it is necessary to parent children of the young age of [Y], [X] and [Z].
The likely physical and emotional effects on the father from his long-term regular marijuana use is such as to place the children at an unacceptable risk of neglect. Indeed at the time of his arrest on
10 December 2010 he was driving the streets of [M] without the children. This is confirmatory of the unacceptable risk. So fundamental is this risk that it significantly outweighs the other factors in section 60CC(2)(a), (3), (4).
In assessing those factors in the absence of section 60CC(2)(b) the same result would have eventuated by reason of section 60CC(3)(d), that is, it would have been a significant change for the children to move to live with their father having lived solely with their mother since December 2010.
Should the father cease his drug use the final parenting decision will be a much more finely-balanced affair given the attitudes displayed by the mother in Court today.
What time should the children spend with the parent whom they do not live?
The mother argues for supervised time. That is at odds with her actions in April 2010 when she travelled to Townsville and left some of the children, that is, the older two children with their father. Clearly she was of the view that the father, despite what she says about him, did not present a risk to the children at that time or, alternatively, she did not care, being too focused on other issues. The continuation of the order made on 19 January 2011 for the non-use of drugs and the father’s willingness to engage with the cannabis clinic means that daytime visits unsupervised do not expose the children to the level of risk that a live-with order would.
By moving the visits from Thursday and Friday, to Thursday and Monday will enable the children to have the benefit of attending a preschool on Friday. The change in days will more equally space the periods throughout the week. Having regard to the children’s ages even spacing will maximise the potential for the maintenance of their relationship with their father.
Attendance at preschool will become possible by the order that I make. By attending preschool the children obtain the benefits of some socialisation and there is an independent party to assess the development of the children and assess their needs.
More regular spacing of the time with order will also enable each party to assess the other as to whether they remain drug abstinent.
Changeovers inside the police station by reporting to the officer at the desk if one party is more than 20 minutes late will enable monitoring of parental volatility. Such volatility was evident in the court today. Each parent is to keep a running record of the drop-off and pick-up times and bring it to the attention of the officer at the desk if the other parent is more than 20 minutes late.
Changing the start time to 10am will enable the mother to access public transport and remove the excuse for her lateness. It will make the order reasonably practicable.
Ancillary orders
Both parties consent to the appointment of an independent child lawyer. Both parties consent to an intervention request being directed to the Department of Human Services. Both consent to an order prohibiting drug use. The father consents to an order to engage with the cannabis clinic at [B]. The mother consents to an order to engage with the Brighter Futures program through the Department of Human Services.
Conclusion
The orders made serve to provide protection to the children, reduce the risk, and enable them to maintain a relationship with their father on strict conditions.
Equal time and significant and substantial time are not in the children’s best interest, for reasons of the father’s long term drug use.
By enabling the mother to use public transport the orders are reasonably practicable.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Dunkley FM
Date: 21 September 2011
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