Kahn and Egan
[2012] FMCAfam 600
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KAHN & EGAN | [2012] FMCAfam 600 |
| FAMILY LAW – Children – interim parenting arrangements – young child – allegations untested – cautious approach indicated. |
| Family Law Act 1975 |
| Applicant: | MR KAHN |
| Respondent: | MS EGAN |
| File Number: | ADC 977 of 2012 |
| Judgment of: | Kelly FM |
| Hearing date: | 20 April 2012 |
| Date of Last Submission: | 20 April 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 20 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Eid |
| Solicitors for the Applicant: | Andrew Hill & Co |
| Counsel for the Respondent: | Ms Hume |
| Solicitors for the Respondent: | Caldicott & Co |
UPON NOTING the father does not concede the need for drug screen testing.
THE COURT ORDERS DURING THE PERIOD OF THE ADJOURNMENT THAT:
The child [X] born [in] 2008 live with the mother.
The child [X] spend time with the father as follows:
(a)for a period of six weeks, each Wednesday from 11.00am until 5.00pm; and
(b)thereafter the visits may extend to conclude at the end of the mother’s working day if agreed to by both parties.
[X]’s time with the father will take place in the presence of the paternal grandmother.
The mother or the maternal grandfather is at liberty to remain present for the first one hour of such visits as may take place for the next four weeks.
In the event the mother intends that she or her nominee remain present for the first one hour, then handover take place at the home of the paternal grandmother and thereafter with the father collecting [X] from the mother’s workplace.
Handovers at the conclusion of the time take place with the mother or her nominee collecting [X] from the paternal grandmother’s home or from a neutral location to be agreed between the parties.
The father is restrained from consuming any illegal drugs for a period of 24 hours prior to or during any time he spends with the child [X].
[X] spend further supervised time with the father through the [N] Children’s Contact Centre with the visits to take place on dates and at times to be nominated by that Centre.
Each party must:
(a)contact the [N] Children’s Contact Centre within 14 days to arrange an appointment for assessment for suitability for supervised time;
(b)attend the assessment;
(c)comply with any appointments made by the Contact Centre for supervised time;
(d)comply with all reasonable rules of the Contact Centre; and
(e)comply with all reasonable requests or directions of the staff of the Contact Centre, including any request to vary handover times and/or handover location.
The parties obtain a report from the Contact Centre at their mutual expense upon four (4) visits taking place.
The father participate in random urine drug screen testing on no more than one occasion per month as requested by the mother on the following conditions:
(a)the father do submit to a urine test for the presence of illegal drugs and/or substances and for the purposes of such testing the provision of the urine sample is to be personally supervised and observed by a qualified medical practitioner or their authorised delegate in accordance with the chain of custody protocol specified in AS/NZ 4308:2008;
(b)that the mother’s solicitor do forward a written request to the father or the father’s legal representatives;
(c)that the father submits to the said tests within 24 hours of receipt of the said written request; and
(d)that the father forward a copy of the results of such tests to the mother’s solicitors as soon as they become available.
The matter is adjourned to 7 August 2012 at 11.00m for further consideration.
IT IS NOTED that publication of this judgment under the pseudonym Kahn & Egan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 977 of 2012
| MR KAHN |
Applicant
And
| MS EGAN |
Respondent
REASONS FOR JUDGMENT
To their credit, the parties have reached agreement about certain issues, such as drug screen testing and initial supervision, albeit the father does not concede there is any need for drug screen testing at this time. However, they have been unable to agree about an appropriate regime of time for [X] to spend in the father’s care.
[X] is still a very young child, not yet 4 years old. At this stage of the proceedings, I can only concur with the comment made by Ms T, to the effect that both parties are clearly trying to co-operate. From the father’s point of view, he is trying to address the mother’s concerns by agreeing to drug screen testing. From the mother’s point of view, she is acknowledging of [X]’s right to a relationship with both of his parents.
Both parties are putting forward proposals that are sensible and child-focused. This augers well for their future parenting negotiations in the years ahead, and from [X]’s point of view, it is clear that the more issues about which his parents can agree while he is growing up, the happier his childhood will be.
The mother continues to hold significant concerns regarding the father’s parenting capacity, but also his lifestyle choices. These issues remain in dispute, by and large. For the time being there is a concession by the father, and accepted by the mother, that the paternal grandmother could assist by providing a supervisory role during [X]’s time spent in his father’s care. However the mother also seeks to remain present, in order to try and assist [X] in re-establishing his relationship with the father, in circumstances where she says that the child has been resistant and has been demonstrating some reluctance and degree of discomfort when spending time in his father’s care.
The mother says, quite properly, at paragraph 18, this may be related to the child’s age and that’s entirely possible. It may not represent any failure on the part of the father in terms of his relationship with [X] and his parenting capacity overall. It may simply be that [X] is a toddler who is going through some separation issues. Having said that, the father does not concede that [X] is experiencing any difficulties at all. From his perspective, [X]’s time in his care is proceeding perfectly well.
Taking into account each party’s position, it may be that allowing some time to pass with the benefit of structured court orders may assist both parties to bring a more neutral perspective to the whole situation. In my view it is appropriate to adopt some caution at this point in time. Some commitment to progressing [X]’s relationship with the father on a steady but slow basis can, in fact, pay dividends in the longer term as [X] then progresses to spend longer time in his father’s care.
The mother would prefer an outcome where she and/or her father are available for the first few visits. An arrangement where the mother or her father is present for the whole time may firstly, limit the length of time available but also make it difficult for [X] to develop a sense of ongoing comfort and trust in his father’s parenting. In reality, if a child of this age seeks comfort or reassurance, he or she will invariably turn to the parent or adult they know best and have the deepest emotional attachment with.
On balance, I am inclined to put in place a regime where the mother is at liberty for her or her father to be available for the commencement of the first few visits and to remain present for an hour or so to ensure [X] is able to settle down without any difficulty. Some limited involvement of the mother is appropriate, but not beyond that.
In terms of the length of time, it seems to me that a regime of weekly visits for a few hours is an appropriate starting point. This is the view expressed by Ms T, she having met with the parties today. I think, given the present tensions between the parties, a regime of more frequent visits, while positive in one sense for [X] in terms of having more time with his father, may also add further tensions to the overall family dynamic in terms of additional handover requirements. That may not be productive for [X] in the longer term. I conclude that a set regime for [X] to spend a few hours in his father’s care at least once a week is appropriate.
I see no good reason not to follow the sort of regime that was in place previously for about five or six hours. The father might have to concede that sometimes [X] still needs a nap when the child is in his care across the whole of the afternoon – that would not be an unreasonable outcome, given [X]’s age.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Kelly FM
Date: 21 June 2012
0
0
0