Lamb and Vernon
[2011] FMCAfam 470
•19 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAMB & VERNON | [2011] FMCAfam 470 |
| FAMILY LAW – Children – parenting orders – best interests of the children – parental responsibility – sole parental responsibility – whether parties should have equal shared parental responsibility for the children – supervision – whether father’s time with the children should be supervised. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 61DB, 62G, 65DAA |
| Lamb & Vernon [2010] FMCAfam 1372 Goode & Goode [2006] FamCA 136; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MR LAMB |
| Respondent: | MS VERNON |
| File Number: | SYC 2189 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 10 and 11 May 2011 |
| Date of Last Submission: | 11 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 19 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Johnston |
| Solicitors for the Applicant: | Johnston Vaughan Solicitors |
| Counsel for the Respondent: | Mr Ladopoulos |
| Solicitors for the Respondent: | Moira Ryan Partners |
| Counsel for the Independent Children’s Lawyer: | Mr Maddox |
| Solicitors for the Independent Children’s Lawyer: | Marsdens Law Group |
ORDERS
All previous parenting Orders are discharged.
The respondent mother is to have sole parental responsibility for the children [X] born [in] 2007 and [Y] born [in] 2009.
The children [X] and [Y] are to live with the mother.
The children are to spend time with the father until [date omitted] 2012 as follows:
(a)From 9:00 am to 5:00 pm each Saturday;
(b)From 4:00 pm to 7:00 pm each Wednesday;
(c)For a period of three (3) hours on Father’s Day, on the father’s birthday and on each of the children’s birthdays;
(d)From 9:00 am until 12 noon on Christmas Day 2011;
(e)At such other times as the parties shall agree; and
(f)The father’s time with the children as provided by this Order is to be in the presence of the father’s wife MS P for a period of six (6) months from the date of these Orders.
From [date omitted] 2012 until the child [Y] starts formal schooling the father is to spend time with the children as follows:
(a)On alternate weekends from 9:00 am on Saturday until 5:00 pm on Sunday;
(b)From 4:00 pm to 7:00 pm each Wednesday;
(c)For a period of three (3) hours on the father’s birthday and on each of the children’s birthdays;
(d)From 9:00 am to 6:00 pm on Father’s Day in each year;
(e)From 12 noon on Christmas Day until 4:00 pm on Boxing Day in 2012 and all even numbered years thereafter; and
(f)At such other times as the parties shall agree.
From and after the time that [Y] starts school until she attains the age of seven (7) years the father is to spend time with the children as follows:
(a)On alternate weekends from 5:00 pm on Friday until 5:00 pm on Sunday PROVIDED THAT if the Monday immediately following the weekend is a public holiday until 5:00 pm on the Monday;
(b)From immediately after school until 7:00 pm each Wednesday;
(c)For a period of three (3) hours on the father’s birthday and each of the children’s birthdays;
(d)From 9:00 am to 5:00 pm on Father’s Day in each year;
(e)From 5:00 pm on Christmas Eve until 12 noon on Christmas Day in all odd numbered years;
(f)For five (5) consecutive days commencing on the first day of each of the Autumn, Winter and Spring school holidays;
(g)For two (2) blocks of five (5) consecutive days in the Christmas/January school holidays at times agreed by the parties; and
(h)At such other times as the parties shall agree.
From and after the time that [Y] attains the age of (7) years the father is to spend time with the children as follows:
(a)On alternate weekends from 5:00 pm on Friday until 5:00 pm on Sunday PROVIDED THAT if the Monday immediately following the weekend is a public holiday then until 5:00 pm on the Monday;
(b)From immediately after school until 7:00 pm each Wednesday;
(c)For a period of three (3) hours on the father’s birthday and on each of the children’s birthdays;
(d)From 9:00 am to 5:00 pm on Father’s Day in each year;
(e)For half of each school holiday period, being the first half in odd numbered years and the second half in even numbered years;
(f)From 5:00 pm on Christmas Eve until 12 noon on Christmas Day in all odd numbered years and from 12 noon on Christmas Day until 4:00 pm on Boxing Day in all even numbered years; and
(g)At such other times as the parties shall agree.
Each parent is to have reasonable telephone time with the children during the times that the children are in the care of the other parent between the hours of 6:30 and 7:00 pm or such other time as the parties may agree.
All contact changeover is to occur as agreed but failing agreement at Hungry Jack’s Restaurant in [omitted].
Each party is to do all things necessary to enrol in and complete the Keeping in Contact program offered by Unifam within six (6) months of the date of these orders.
For a period of twelve (12) months from the date of these orders the father is to do all things necessary to undergo monthly chain of custody urinalysis testing for Methadone Metabolites (EDPP), Opiates, Amphetamine type substances, Benzodiazepines, Cannabis Metabolites and Cocaine metabolites in accordance with the relevant Australian and New Zealand standards and the father is to provide the results of such testing to the mother within three (3) working days of such results becoming available.
The father is to do all things necessary to comply with any reasonable recommendation made by the Independent Children’s Lawyer regarding drug and alcohol counselling within twelve (12) months of the date of these orders.
The father is restrained by injunction from administering to himself or otherwise using any prohibited drugs.
The parties are restrained by injunction from using any form of physical chastisement on the children or permitting any third person to do so.
The mother is to do all things necessary to inform the father of any medical, educational, cultural or religious organisations attended by the children and is to authorise the father to attend on any such organisation to obtain any information relating to the children.
The mother is to provide to the father in a timely manner copies of all notices received from the children’s school and details of all functions or parent teacher nights and other activities to which parents of children attending that school are normally invited.
The mother is to keep the father informed of all significant matters about the welfare and education of the children.
Each parent must as soon as reasonably practicable notify the other parent in the event of a medical emergency involving the children whilst the children are in their respective care.
Both parents are restrained by injunction from denigrating or criticising or using insulting or threatening language to the other parent in the presence or hearing of the children or permitting any third person to do so.
The mother must purchase an exercise book to be used as a Communication Book and the mother and father are to write in the book any matter to be communicated to the other parent regarding the welfare of either or both of the children such as illness, medication or the child’s commitments and such book is to conveyed with the children to the parent then caring for them.
AND THE COURT NOTES THAT if the father either:
(a)Fails to provide the results of the urinalysis as provided in Order 11 above; or
(b)Produces a result that is not a negative result for each drug tested
this will be taken to be a significant change in circumstances for the purposes of any new application.
IT IS NOTED that publication of this judgment under the pseudonym Lamb & Vernon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2189 of 2010
| MR LAMB |
Applicant
And
| MS VERNON |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for parenting orders by the father of two young children, [X], aged three and [Y], aged two. The children live with their mother and have been spending time with their father in accordance with interim orders made on 26th November 2010.
Orders Sought
The Independent Children’s Lawyer has proposed Orders that would provide that:
a)The mother should have sole parental responsibility for the children;
b)The children should live with the mother in a gradually increasing arrangement, spread out over five year period, until the younger child [Y] attains the age of seven years;
c)The father’s time with the children should be in the presence of the father’s current wife for the first six months;
d)The venue for changeover between the parents should be changed to the Hungry Jack’s Restaurant in [omitted], New South Wales;
e)The parties should attend the Keeping in Contact program;
f)For the next twelve months the father is to undergo monthly chain of custody urinalysis testing for the presence of drugs;
g)The father is to be restrained from using any prohibited drugs; the parties are to use a communication book; and
h)Other ancillary orders.
The father consents to most of the orders proposed by the Independent Children’s Lawyer, except that he seeks equal shared parental responsibility with the mother and he proposes orders giving him further time with the children. He also wants to increase the rate of change in the graduated increase of orders, so that overnight time with the children should commence in December 2011, rather than the “arbitrary” date of 1st July 2012 proposed by the Independent Children’s Lawyer.
The mother agrees with the orders proposed by the Independent Children’s Lawyer except that she believes that the father’s time with the children should continue to be supervised for a period of twelve months.
Issues
The issues between the parties appear to be:
a)Whether the father’s time with the children needs to be supervised for twelve months or whether the time should be in the presence of the father’s current wife for a period of six months;
b)Whether the parties should have equal shared parental responsibility or the mother should have sole parental responsibility for the children;
c)Whether the father’s time with the children should be increased to overnight from December 2011 or 2nd July 2012;
d)Whether the father should have additional time with the children on such special occasions as Father’s Day, the children’s birthdays and the father’s birthdays.
Background
The father was born [in] 1969. He is now forty-one years of age.
The mother was born [in] 1972. She is thirty-eight years of age.
The father has a daughter named [Z] from his previous relationship with Ms F. [Z] was born [in] 1997 and lives with her mother.
The parties in this matter commenced their relationship in November 2000. They commenced living together in 2007, although their accounts vary as to whether it was in January or September of that year.
There were proceedings in the Family Court of Australia at Newcastle between the father and Ms F about parenting orders for [Z] and in August 2007 orders were made that the father should spend time with her each Monday in [omitted].
The parties’ first child [X] was born [in] 2007.
The parties’ second child, [Y] was born [in] 2009.
The parties separated on 24th February 2010 when the mother left the parties’ home, taking the children with her. She moved into the home of her mother, Ms C.
The father did not spend time with the children between 4th March and 7th June 2010.
On 12th April 2010 the father filed an application for parenting orders in respect of the children.
The application was returnable on 7th June 2010. On that date the parties attended a Child Dispute Conference with a Family Consultant. They entered into interim Consent Orders on that day, which provided that:
i)The children would live with the mother;
ii)The father would spend time with the children each Wednesday and Saturday between the hours of 10:00 am and 1:00 pm;
iii)The father’s time with the children was to be supervised by an employee of the Dial an Angel organisation at his expense;
iv)Changeover between the parents was to be at the McDonald’s Family Restaurant at [omitted]; and
v)The father was restrained from approaching the mother at changeover.
The mother had applied for an apprehended Violence Order against the father. On 19th August 2010 the father consented to a final apprehended Violence Order which named the mother as the protected person.
On 26th November 2010, after an interim hearing on 19th November, the Court made interim orders that:
a)The children would live with the mother, who was to have sole parental responsibility for them;
b)The father was to spend time with the children:
i)Each Saturday from 9:00 am until 5:00 pm; and
ii)Each Wednesday from 4:00 pm until 7:00 pm.
c)The children’s time with the father was to be supervised; and
d)An Independent Children’s Lawyer was to be appointed.
The father married Ms P [in] 2010.
On 14th February 2011 the application was listed for final hearing. A Family Report under the provisions of s. 62G of the Family Law Act was ordered.
The application was heard on a final basis on 10th and 11th May 2011.
Evidence
Oral evidence was given by the Family Consultant who prepared the Family Report, Ms M, by the father, the father’s new wife Ms P, the father’s mother, Ms L, the father’s sister Ms S, the mother, her mother, Ms C, and by Ms F. Mr D, a clinical psychologist, gave evidence by telephone.
The father’s evidence was that he had previously used marijuana but he no longer did. He said that the mother had also used marijuana. He said that he still drank alcohol, but only in small quantities – “one or two beers”.
The father admitted that he had had a problem with anger in the past, but only in his relationship with the mother. He said that he had never been angry with his present wife. He accused the mother of having been violent to him. He has completed an anger management course.
The father’s current wife, Ms P, gave evidence that she was currently in Australia on a student visa but was applying for a visa based on her relationship with the father. She said that if the father became angry with the children she would make him calm down. If he were to hurt the children she would ring the mother and tell the Police. She denied that she would ever smack the children. She said it was “not alright” for a husband to hit his wife.
The father’s mother, Ms L, gave evidence about events that had occurred during the time the parties were together. She was aware that her son had smoked marijuana in the past and denied that she had condoned it. She said that the mother had complained to her about the father’s use of marijuana and his abusive behaviour.
Ms L gave evidence about an argument between the father and the mother about the mother’s complaints that the father was spending too much time with his daughter [Z].
The father’s sister Ms S gave evidence that the mother had complained to her about the father being abusive to her. She agreed that he had “a temper”. She denied that she had a negative opinion of the mother.
The mother gave evidence that she was still very uneasy when the father was around. She denied that she had caused injuries to the father as he had alleged. She was still concerned about the father spending unsupervised time with the children but, initially, in the presence of his present wife. She feared that Ms P might have divided loyalties. She said that she did not believe in smacking children at all.
It was put to the mother in cross examination that her evidence had not been believed by a Magistrate in proceedings concerning breach of the Apprehended Violence Order. She replied that the Magistrate had just said that the matter was “not proved”.
The mother denied that she had been violent towards the father or that the incidents between them had been precipitated by her slapping him. She denied that she had smoked marijuana during the time the parties had been together.
She conceded that the father loved the children and agreed that it was appropriate for him to spend time with them on occasions such as Father’s Day and at Christmas. She was reluctant to agree that the children should start spending time with their father overnight from the end of 2011 because she felt the children were too young.
The mother said that she wanted the supervision of the father’s time with the children to continue until the children became more mature. She told counsel for the Independent Children’s Lawyer, Mr Maddox, that she was not in a financial position to contribute to the cost of the father’s time being supervised.
The mother said that she no longer believed that the father was addicted marijuana but said she was concerned about the possibility that he might go back to using the drug.
Ms C, the mother’s mother, agreed that she had been present at most of the changeovers between the parties. She denied that she had caused any problems between the parties at the changeovers or had affected an otherwise cordial relationship between the mother and the father.
Ms F gave evidence on behalf of the mother. She said that she wanted to support the mother’s application that the father’s time with the children should be supervised. She said that the father had hit her during their relationship.
Ms F gave evidence that the child [Z] was now estranged from the father. She conceded that [Z] had been admitted to hospital on
29th April after an altercation with her concerning the child’s relationship with a 16 year old boy of whom the mother disapproved.
Ms F conceded that she had been diagnosed with bipolar affective disorder and has extreme highs and extreme lows. She also conceded that she still held a deep anger towards the father because of what she believed that he had done to her daughter. She believes that he had sexually abused her.
The Family Report
The Family Report in this matter was prepared by Ms M. For the purposes of her report she interviewed the following:
a)The father;
b)The mother;
c)The father’s wife, Ms P; and
d)Ms C,
Ms M observed the children with their father by himself and with his the father and Ms P. She later observed the children with their mother by herself and then with the mother and Ms C.
In the Report, Ms M identified the issues in dispute between the parties as:
· Parental responsibility
· Whether the time that the children spend with their father should continue to be supervised
· When the children should spend unsupervised time with their father
· The degree and nature of the family violence which occurred during their relationship
· Whether Mr. Lamb’s behaviour towards Ms Vernon warranted the Apprehended Violence Orders that have been made against him.[1]
[1] Family Report 9 May 2011 at page 7 [9]
As to the final issue referred to above, it is not the function of this Court to make any finding about whether an Apprehended Violence Order made by the Local Court was warranted. That is entirely a matter for that Court.
Ms M noted that the father had since filed an Amended Application in which he proposed that the children live with him and the mother in a week about arrangement, but she had not discussed that proposal with either parent.
I note that this particular application was not pressed at the hearing.
The Family Report describes both children as “well-cared-for and healthy looking children”.[2]
[2] Family Report 9.5.2011 at 16 [34]
Ms M referred to the fact that she believed that [X] had been diagnosed as suffering from a Global Developmental Delay.[3]
[3] Ibid
The children were observed to be comfortable with their father. [Y] was observed to cuddle her father and make frequent eye contact with him, but [X] did not show any physical affection towards him and said little.
Whilst it was difficult for the Family Consultant to assess the father’s relationship with [X], due to the child’s limited interaction with him, the father’s relationship with [Y] was described as “close”. The father’s wife entered the room and interacted predominantly with [X].
The children were observed to interact with their mother in a comfortable and relaxed manner. They seemed happy to include their grandmother in their play. Ms M commented that:
Both children seemed more relaxed with their mother than with their father.[4]
[4] Ibid at 17 [38]
In her evaluation, Ms M stated that that the father’s application for an equal time in a week about arrangement in July 2012 was not recommended, due to the children’s young ages:
Recent research has indicated that children who are young, that is under eight years of age, and whose parents are in a conflictual relationship do not do well in an equal time arrangement. Given the ages of the children, [X]’s particular problems and the conflictual relationship between the parents it is clean that an equal time care cannot be recommended in this matter.[5]
[5] Ibid at 21 [49]
The Family Consultant recommended that:
a)The children should live with the mother.
b)If the Court determines that the children are unlikely to be exposed to abuse or danger whilst in their father’s care, then they should spend time with their father each Saturday from 9:00 am to 4:00 pm with changeovers at a contact centre.
c)The children should also spend Wednesday afternoons with their father.
d)The Court should consider overnight time with the father once [Y] is three years old.
e)Both parents should complete a Parenting Education Course.
f)The mother should provide the father with details of [X]’s treating health professionals.
Ms M’s evidence was unshaken in cross-examination.
The Drug and Alcohol Assessment
Mr D, a Clinical Psychologist, prepared a Drug and Alcohol Assessment Report on the father. For the purposes of his report, Mr D was provided with copies of the relevant applications, affidavits and Court orders. He also interviewed the father.
Mr D made the following recommendations:
a)In the light of the father’s current abstinence from cannabis, no reasons were identified to suggest impairment or risk to the children’s physical and emotional safety and wellbeing.
b)Continued urine drug screening on a monthly basis for a period determined by the Court may assist the father’s ongoing abstinence and provide documentary evidence of any substance use problems that might occur.
c)The father may benefit from some form of drug and alcohol counselling.[6]
[6] Affidavit of Mr D 29.4.2011 Annexure “A” at pages 17 and 18.
Mr D gave oral evidence and was cross-examined by counsel for the mother and for the Independent Children’s Lawyer. He noted that the father had told him that the mother had also used cannabis but this did not impact on his assessment. He further said that the only negative aspect of the Orders proposed by the Independent Children’s Lawyer to the effect that the father should undergo a monthly chain of custody urinalysis testing would be the cost of such a procedure. He did not have any difficulty with the proposed order relating to compliance with a reasonable recommendation about drug and alcohol counselling.
Submissions
Counsel for the father submitted that the father sought an order for equal shared parental responsibility. He said that the presumption that equal shared parental responsibility would be in the children’s best interests had not been rebutted.
Mr Johnston also submitted that the proposed date for the commencement of overnight time with the children, namely 2nd July 2012, was “arbitrary” and that the time should start in December 2011.
It was further submitted that there was no unacceptable risk that the father would harm the children. The children are able to communicate their needs. There was, he submitted, no need for the continuation of supervision, which was an expensive process.
Mr Ladopoulos, for the mother, submitted there should be a continuation of supervision for a period of twelve months. Without criticising the father’s present wife, there was a possible conflict involving divided loyalties in having the father’s time dependent only on her being present.
It was further submitted that equal shared parental responsibility was inappropriate. There had been violence in the parties’ relationship, which removes the presumption. In any event, the parties’ level of communication and the mother’s anxiety would make equal shared parental responsibility unworkable.
Further, the commencement date of July 2012 for overnight time with the father was consistent with the recommendations of the Family Report.
Counsel for the Independent Children’s Lawyer, Mr Maddox, submitted that the mother was a strong person who would not be devastated by an order for unsupervised time. The risk to the children was not such as to warrant the continuation of supervision.
As to sole parental responsibility, Mr Maddox conceded that Ms M was ambivalent on the subject. There was a possibility of conflict between the parties. There is evidence of violence in the relationship of the parties so the presumption did not apply. The proposed orders provided for the father to be kept informed about all significant matters concerning the welfare of the children.
The Relevant Law
Section 60CA of the Family Law Act provides that, in deciding whether to make a parenting order, the Court must regard the best interests of the children as the paramount consideration. The Court determines what is in children’s best interests by considering the matters set out in subsections 60CC(2) (which are the primary considerations) and 60CC(3) (which are referred to in the Act as “additional considerations”).
The Court is required by subsection 60CC(4) to consider the extent to which each of the children’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent. Further, where the parties have separated, the Court must have regard to events that have happened and circumstances that have existed since the separation occurred (see s.60CC(4A)).
I have considered all of those matters.
When making a parenting order, the Court is required by subsection 61DA(1) to apply a presumption that it is in children’s best interests for their parents to have equal shared parental responsibility (see Goode & Goode[7]). However, subsection 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with the parent has engaged in:
a)abuse of the child or another child who, at the time, was a member of the parent’s family; or
b)family violence.
[7] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
If there is an interim parenting order in relation to a relevant child, the Court must, in making a final parenting order, disregard the allocation of parental responsibility made in the interim order (see s.61DB).
If a parenting order does provide that children’s parents are to have equal shared parental responsibility, the Court must then consider whether spending equal time with each parent would be both reasonably practicable and in the children’s best interests (see subsection 65DAA(1)).
If the Court does not make that order, the Court must then consider whether it is reasonably practicable and in the children’s best interests for the children to spend substantial and significant time with each of their parents (s.65DAA(2)).
I have considered all of those matters, also.
Conclusions
There is now a considerable amount of common ground between the parties, and the father has not pressed his application for the children to spend equal time with each parent.
The parties remain apart on the question of parental responsibility. There is evidence of family violence during the relationship. Documents subpoenaed from the NSW Police show that the father was placed on an Apprehended Violence order which remains in force until 7th July 2011. The mother is the protected person.
On 19th August 2010 at [omitted] Local Court, the father was placed on bonds with supervision by the NSW Probation Service for contravening a prohibition or restriction contained in an Apprehended Violence Order and stalking and intimidation and was given a suspended sentence for common assault. Those bonds are still in force.
In my view, the presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them does not apply.
I am not persuaded that the parties’ level of communication and mutual trust is high enough for equal shared parental responsibility to be at all viable.
In determining what is in the best interests of the children, the Court must consider whether it is in their best interests to have a meaningful relationship with each parent. I am satisfied that it is. The father wishes to have a relationship with the children and the Family Report supports the view that he has a good relationship at least with [Y].
It is noteworthy that the father has persisted with this litigation to obtain a final parenting order and has complied with the interim orders made by consent and after a defended interim hearing. Those orders provided that his time with the children was restricted and was to be supervised. The father has complied with those requirements. The supervision has involved him in ongoing expense.
The Court must also consider the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The father has attended an anger management course. He has abstained from the use of cannabis and restricted his consumption of alcohol. He no longer lives with the mother.
The report from Mr D supports the father’s claim that he is not likely to harm the children.
I am satisfied that there is no unacceptable risk of harm to the children at the hands of their father in spending time with him.
The children are too young for their views to be considered.
There is some evidence of the parents’ willingness and ability to facilitate and encourage a close and continuing relationship between the children and the other parent. The father seeks orders that the children would continue to live with the mother. The mother said in evidence that she did not dispute that the father loved the children and was prepared to agree to orders that would allow him to spend time with the children, including consenting to arrangements that were not included in the Minute of Orders sought by the Independent Children’s Lawyer.
The proposed changes to the children’s circumstances will be gradual. They will spend time with their father together, and they have been spending time with him since consent orders were made on 7th June 2010. There is no evidence of any adverse consequences of the father’s time with the children.
There has been a practical difficulty and resultant expense in the children spending time with their father because up to the present time it has been supervised by paid supervisors. I am of the view that there is no evidence of unacceptable risk of harm to the children in their father’s care, which means that supervision may be discontinued.
It will not cause hardship or additional expense for the father’s time with the children for the next six months to be in the presence of his wife, Ms P. There is evidence from the Family Report that she has an existing positive relationship with the children.
The parties live in two suburbs of Sydney so there is no lengthy travel involved in their going from one party to another. The parties have agreed that the changeover can be at a Hungry Jack’s Restaurant at [omitted].
I am satisfied from the Family Report and other evidence, including the affidavit of Ms L, sworn 5th May 2011, that the parties and the maternal grandmother have the capacity to provide for the children’s needs.
The children are still young. [X] is a little boy who was born [in] 2007. He is therefore three years and six months old. He has been diagnosed as autistic by Dr O, a paediatrician.
[Y] is a little girl was born [in] 2009. She is therefore only two years old.
Notwithstanding their differences, the parents have a positive attitude to the responsibilities of parenthood. The mother’s objections to some of the orders proposed stem from her concerns for the welfare of the children. The father seeks more time with the children. It is hard to criticise a father who wants to spend more time with his children and play a meaningful role in their lives.
There is evidence of family violence and there is a current family violence order in force. I have taken notice of the evidence of Ms F. I do not doubt that there may have been violence in her relationship with the father but her belief that the father sexually abused the child [Z] has not been proved.
It would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children. In my view, this can only be achieved by endeavouring to make orders that are clearly in the best interests of the children.
The parties have separated and it is highly unlikely that they will reconcile. It is relevant that the father has remarried (s.60CC(4A)). His wife has given oral evidence and has been observed with the children for the purposes of preparation of the Family Report. She may well have a positive influence on the father.
In my view, there is no further need for supervision of the father’s time with the children. It would be desirable for the father’s new wife, Ms P, to be present whilst the father spends time with the children over the next six months. This may or may not set the mother’s mind at rest.
It appears to be most desirable to deal with the father’s previous history of drug abuse. I propose to follow the recommendations of Mr D in this regard. The father must abstain from the use of drugs and, whilst it will cost money, he must submit to urine drug screening for a period of twelve months to ensure that he does not relapse into use of cannabis.
I also propose to take note of the recommendations contained in the Family Report. Ms M recommended that the Court consider overnight time with the father once [Y] attains the age of three years[8]. She will turn three on [date omitted] 2012 and I am satisfied that overnight time should start straight after that date.
[8] Family Report at 22 [53]
The mother is concerned that the children should not be smacked. I propose to order that the parties are restrained by injunction from physically chastising the children.
The Independent Children’s Lawyer recommends that the parties should use a Communication Book. Due to the low level of communication between them at present and noting that a family violence order is still in force, I consider that this is useful idea and I will order accordingly.
I have considered whether an order should be made restraining the maternal grandmother, Ms C, from attending with the mother on changeover. I am not prepared to make an order to that effect. The mother has given evidence that she still feels “uneasy” or “uncomfortable” in the presence of the father and the presence of the maternal grandmother may assist the mother in this regard.
The way to reduce or remove the mother’s uneasiness about the father is for him to act politely at all times during the changeover and ensure that the children are well looked after whilst in his care.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 19 May 2011
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