KRUEGER & KRUEGER
[2010] FMCAfam 805
•26 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KRUEGER & KRUEGER | [2010] FMCAfam 805 |
| FAMILY LAW – Children – Parenting Orders – best interests of the children – drug issues – family violence order in force – sole parental responsibility. PRACTICE & PROCEDURE – Where respondent did not attend hearing – where the Court proceeded with the hearing generally. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 60CG, 61DA Federal Magistrates Court Rules 2001, Rule 13.03C |
| Applicant: | MR KRUEGER |
| Respondent: | MS KRUEGER (ALSO KNOWN AS MS H) |
| File Number: | SYC 2137 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 26 July 2010 |
| Date of Last Submission: | 26 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Reeve |
| Solicitors for the Applicant: | Marsdens Law Group |
| Respondent: | No appearance |
ORDERS
That all previous parenting Orders in relation to the children [X] born [in] 2004 and [Y] born [in] 2007 are hereby discharged.
That the Applicant Father shall have sole parental responsibility for the children [X] and [Y].
That the children [X] and [Y] live with the Applicant Father.
That the said children spend time with the Respondent Mother as agreed between the parties.
That the Respondent Mother be restrained from consuming illicit drugs or alcohol prior to or during spending time with the children.
IT IS NOTED that publication of this judgment under the pseudonym Krueger & Krueger is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Sydney |
SYC 2137 of 2010
| MR KRUEGER |
Applicant
And
| MS KRUEGER (also known as MS H) |
Respondent
REASONS FOR JUDGMENT
Application
The Applicant is the father of two boys, aged five and two. He seeks orders that the children should live with him and that he have sole parental responsibility for them.
The Mother has not filed a Response or an affidavit, nor has she appeared at Court.
Background
The background facts are taken from the affidavit of the Father sworn on 30th March 2010. He is 29 years of age, having been born [in] 1980. The Mother was born [in] 1984. The Mother’s name was Ms H, although the Father has deposed in his affidavit sworn 30th March 2010 that she now goes by the name of Ms K.
The parties did not live together but had a relationship that commenced in about 2000. There are two children of the relationship:
a)[X], born [in] 2004; and
b)[Y], born [in] 2007.
The boys live with the Father and his present partner, Ms M, with whom the Father has been living since late 2006. The Father and Ms M have a child of their own, [Z], who was born [in] 2008.
The child [X] initially lived with the Mother, although he spent time with the Father on a regular basis.
On or about 20th April 2007 the parties entered into consent orders at the Fairfield Local Court providing that [X] should live with the Father and the Father would have sole parental responsibility for him. [X] would spend time with the Mother as agreed between the parties. The Mother was still using the name Ms H at that stage.
The younger boy, [Y], was born [in] 2007. He largely lived with the Mother until 19th February 2010, when an incident occurred which led to the Father seeking an Apprehended Violence Order.
The child came into the Father’s care on 25th February 2010.
On 23rd March 2010 the Local Court at Liverpool made an Apprehended Violence Order against the Mother for a period of
12 months. Apart from the standard orders, the Court made an order that:
The defendant must not go within 100 metres of the premises at which the protected persons[1] may from time to time reside or work, or other specified premises.
[1] The father and the two boys
The Father made application to this Court on 9th April 2010. On 24th May 2010 the Father attended Court with his solicitor but the Mother did not. Orders were made ex parte that:
a)[Y] would live with the Father;
b)The two children would spend time with the Mother as agreed with the Father; and
c)The application was listed for an undefended hearing on 26th July 2010.
An order was also made for substituted service of the application, the Father’s affidavit.
The Father attended Court with his solicitor on 26th July 2010 and gave oral evidence. The Mother did not attend Court and was not represented. Where a party is absent from a hearing, the Court may proceed with the hearing generally or in relation to any claim for relief (Federal Magistrates Court Rules 2001, Rule 13.03C(e)).
Evidence
The Father’s evidence is that the Mother has had a drug dependency problem with heroin for some years. She is currently on a methadone program. She was addicted to heroin at the time of [X]’s birth and was obliged to remain in hospital for four weeks. The child had medical difficulties with drug dependence and withdrawal from birth.[2]
[2] Affidavit of Mr Krueger sworn 30.3.2010 at paragraphs [23]-[25]
The Mother was on methadone at the time of [Y]’s birth.
The Mother’s behaviour, whilst using heroin or the amphetamine drug Ice, has been erratic and at times violent or threatening. [X] was living with the Father from April 2007 and would spend time with the Mother. [Y] was living with the Mother and would spend time with the Father.
On 22nd February 2010 the Mother collected [X] from school by arrangement with the Father. She did not deliver the child to school until 10:00am the next day and did not pick him up from school that afternoon. The Deputy Principal rang the Father, who went and collected him.
On Thursday 25th February, the Mother delivered the child [Y] to the Father’s sister, who then delivered him to the Father. [Y] has lived with the Father since then.
The Father gave evidence that he and his present partner Ms M live with the two boys and [Z], the boys’ half brother. They are bringing the boys up together and the children have a good sibling relationship. [X] and [Y] have a good relationship with Ms M and at times address her as “Mum”. They maintain contact with their maternal grandmother, their maternal aunts and their cousins.
The Father said that he and the Mother are able to communicate “When she is thinking straight”, i.e. when she is not on drugs, but at present “She’s gone bad again”.
Conclusions
The best interests of the children are the paramount consideration when making parenting orders (Family Law Act 1975, s.60CA). The primary considerations are the benefit to the children of having a meaningful relationship with both parents and the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence (s.60CC(2)).
In my view, these needs are best met by the children living with the Father in his household. It is also in their best interests to be together, not only with each other but with their half-brother (s.60CC(3)(b)).
I am not satisfied that the Mother, whilst she is addicted to heroin or other hard drugs, has the capacity to provide for the children’s needs (s.60CC(3)(f)). On the evidence before the Court, the Father has that capacity.
Whilst there is a presumption that it is in the best interests of the children for a child’s parents to have equal shared parental responsibility, the presumption does not apply if a parent has engaged in abuse of a child or has engaged in family violence (s.61DA(2)). The Mother’s drug dependency and consequent violent behaviour mean that equal shared parental responsibility does not apply.
There is a family violence order in force, which places restrictions on the Mother’s behaviour (s.60CG). I am satisfied that the Father is I a position to assess the risk to the children from violence or neglect at the hands of the Mother, depending on his assessment as to whether she is affected to or using drugs at the time.
The sad reality for the Mother is that while she remains drug dependent her time with her children must necessarily be limited, for the children’s own sake.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 30 July 2010
0
0
2