Lamb and Vernon

Case •

[2010] FMCAfam 1372

•

26 November 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LAMB & VERNON [2010] FMCAfam 1372
FAMILY LAW – Children – Parenting – Interim parenting orders – two children living with the mother – boy aged 3 years and a girl aged 18 months – where family violence order in force – whether unacceptable risk – supervision – violence issues – drug use issues – appointment of Independent Children’s Lawyer – overnight time with father not appropriate due to the young age of the girl.
Family Law Act 1975, ss.60CA, 60CC, 61DA, 61DB, 65DAA, 68L
Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286
In the Marriage of Patsalou (1994) 18 Fam LR 426; FLC 92-580
In the Marriage of JG and BG (1994) 18 Fam LR 255; FLC 92-515
Re K (1994) 17 Fam LR 537; FLC 92-461
Applicant: MR LAMB
Respondent: MS VERNON
File Number: SYC 2189 of 2010
Judgment of: Scarlett FM
Hearing date: 19 November 2010
Date of Last Submission: 19 November 2010
Delivered at: Sydney
Delivered on: 26 November 2010

REPRESENTATION

Counsel for the Applicant: Mr Johnston
Solicitors for the Applicant: Johnston Vaughan Solicitors
Solicitor for the Respondent: Mr Crawford
Solicitors for the Respondent: Moira Ryan Lawyers Pty Ltd

ORDERS UNTIL FURTHER ORDER:

  1. All previous parenting orders are discharged.

  2. That the children [X] born [in] 2007 and [Y] born [in] 2009 live with the Respondent Mother who is to have sole parental responsibility for the said children.

  3. That the Applicant Father is to spend time with the children [X] and [Y] as follows:

    (a)Each Saturday from 9:00am until 5:00pm; and

    (b)Each Wednesday from 4:00pm until 7:00pm.

  4. That all time spent by the Father with the said children is to be supervised by such person or persons as the parties shall agree.

  5. The interests of the children [X] born [in] 2007 and [Y] born [in] 2009 are to be independently represented and the Legal Aid Commission of New South Wales is requested to arrange such representation.

  6. The solicitors for the Applicant Father and the Respondent Mother are to forward to the Legal Aid Commission copies of all applications, responses, affidavits and other relevant documents for the use of the Independent Children’s lawyer when appointed within seven (7) days.

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

  1. This is an application for interim parenting orders relating to the parties’ two children, [X], who is three years old, and [Y], who is only eighteen months.

  2. The children currently live with the Mother and the Father has been spending time with them from 10:00am to 1:00pm on Wednesdays and Saturdays. The time that he spends with the children has been supervised.

Orders sought

  1. On 20th October 2010 the Father filed an amended application in a case seeking to vacate the earlier consent orders and seeking to spend time with the children until further order as follows:

    a)In week one on from 4:00pm until 8:00pm on Tuesday and from 4:00pm on Thursday until 10:00am on Friday, and again from 8:00am until 6:00pm on Saturday; and

    b)In the alternate week, from 4:00pm on Thursday until 8:00am on Friday and from 8:00 am to 6:00pm on the Saturday.  

  2. In her response to the amended application filed on 5th November 2010, the Mother sought orders to this effect:

    a)That she have sole parental responsibility for the children;

    b)That the children live with her;

    c)That the Father spend from 9:00am to 12:00 noon each Saturday with the children under the supervision named people;

    d)That the Father spend time with the children at other times agreed between the parties supervised by a representative of the Dial an Angel organisation; and

    e)That an Independent Children’s Lawyer be appointed.

Background

  1. The Father was born [in] 1969. He is almost 41 years old.

  2. The Mother was born [in] 1972. She is 38 years old.

  3. The Father was previously married to a woman named Ms F. There is one child of that marriage, [Z], who was born [in] 1997. [Z] lives with her mother.

  4. The Mother and Father commenced living together in September 2007. Their first child, [X], was born [in] 2007. Their second child, [Y], was born [in] 2009.

  5. The parties separated on 25th February 2010 when the Mother moved out of the parties’ home with the children.

  6. The Father commenced proceedings for parenting orders in this Court on 12th April 2010.

Issues in dispute

  1. The Father claimed in his initiating affidavit sworn on 8th April 2010 that he had not seen the children since 4th March. He described the Mother as “insecure”, “unstable” and “difficult to live with”.

  2. The Mother, in her affidavit sworn 4th November 2010, raises the following issues about the Father:

    a)She claims that the Father is addicted marijuana;[1]

    b)She claims the Father drinks heavily;[2]

    c)She claims that the Father has been violent towards her. And

    d)She claims that the Father has used abusive language to the children.  

    [1] Affidavit of Ms Vernon 4.11.2010 at paragraph [23]

    [2] Ibid at [28]

Relevant considerations

  1. In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (Family Law Act 1975, s.60CA).

  2. The Court determines what is in children’s best interests by having regard to the primary considerations set out in s.60CC(2) and the additional considerations set out in s.60CC(3). The Court must also consider, where possible, the extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent (s.60CC(4)). And, where the child’s parents have separated, events that have happened and circumstances that have existed since the separation occurred.

  3. I have done so in this case.

  4. The Court must also consider the presumption in s.61DA of the Act that it is in the children’s best interests for their parents to have equal shared parental responsibility and consider whether that presumption should apply in the particular circumstances of the case (see Goode & Goode[3] ).

    [3] [2006] FamCA 1346; (2006) FLC 93-286

  5. If the Court does decide that it is in the children’s best interests for the parents to have equal shared parental responsibility, the Court must have regard to the considerations in s.65DAA(1), which relate to the children spending equal time with each parent.

  6. In this case, I have decided not to make an order that the parents have equal shared parental responsibility. Rather, I have decided to order that the Mother have sole parental responsibility for the children, until further order.

  7. This means that, when it comes to making a final parenting order in relation to the children, the Court must disregard the allocation of parental responsibility in these interim orders (Family Law Act, s.61DB).

Submissions

  1. Counsel for the Father, Mr Johnston, submitted that the Father was not seeking parental responsibility for the children. What he is seeking is one overnight contact time and the time on Tuesday in each week.

  2. Mr Johnston also submitted that supervision of the children’s time with the Father was only necessary if there was an unacceptable risk of harm to the children. There were practical difficulties and expense in having supervision by a person from Dial an Angel. The cost was quite an onerous burden on the father. The Father has demonstrated that he can look after the children.

  3. It was further submitted that the Mother did not appear to be willing to promote the children’s relationship with the Father.

  4. For the Mother, Mr Crawford submitted that the Mother’s proposal was that there needed to be supervision. The child [X] is autistic, and the little girl [Y] is only 18 months old.

  5. One concern was that of violence by the Father, which was not just directed at the Mother. The Father has a history of violence, which he set out:

    ·A conviction for assault at Dubbo Local Court on 16th May 1990

    ·Convictions for assault and malicious damage at Newtown Local Court on 10th December 2007

    ·An apprehended violence order issued by the Kogarah Local Court on1st July 2009

    ·Convictions for assault, contravening and apprehended violence order, stalking and intimidation, cultivating a prohibited plant and possessing a prohibited plant at Burwood Local Court on 19th August 2010.

  6. In addition, the Mother has concerns about the Father’s involvement with cannabis.

Consideration

  1. This is a matter where the primary considerations under s.60CC(2) of the Act are particularly relevant, being:

    a)The benefit to the children of having a meaningful relationship with both of their parents; and

    b)The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

  2. There are cases where the need to protect the children from harm is so great that it assumes more importance than any other consideration. In an interim hearing, such as this, it is not always possible to make findings of fact where there is conflicting evidence.

  3. In this case, however, there is evidence of the Father’s criminal convictions for offences of violence. There has also been an apprehended violence order issued.

  4. Family violence is clearly a relevant issue and has been discussed in a number of judgments, including In the Marriage of Patsalou[4], to which Mr Crawford referred, and In the Marriage of JG and BG[5]. The Court will have regard to the fact that family violence may be directly or indirectly relevant to children’s welfare in a variety of ways, and may be relevant even where it is not directed at or witnessed by the children.

    [4] (1994) 18 Fam LR 426; FLC 92-580

    [5] (1994) 18 Fam LR 255; FLC 92-515

  5. Habitual drug use is also a matter of concern. It is the Mother’s view that the Father is “addicted to marijuana” and would smoke marijuana 4 or 5 times a day. The Mother deposes:

    The effect of use of this drug on [Mr Lamb] is that he was not responsive or would not react to any communication or activities that were occurring around him.[6]

    [6] Affidavit of Ms Vernon 4.11.2010 at [23]

  6. Whilst it is important that the children have a meaningful relationship with their father, the concern about their safety from harm is such that supervision of the Father’s time with them is still indicated. The evidence is, of course, untested, but the Court needs to adopt a conservative approach until the evidence can be tested.

  7. Clearly, this is a case where the Court should consider that the children’s interests should be independently represented by a lawyer under the provisions of s.68L of the Act. The circumstances come within the guidelines set out in Re K[7].

    [7] (1994) 17 Fam LR 537; FLC 92-461

  8. In my view, the Father should spend time with the children twice a week, noting their very young ages. I am not of the view that it is appropriate for [Y] to spend overnight time with the Father, as she is only 18 months old. Overnight time should wait until [Y] is two years old, by which stage she will have developed more of a bond with her mother and will have experienced a consistency of care from her. It does not seem to be appropriate for [X] to spend overnight time with his father by himself at this stage.

  9. There should continue to be some sort of supervision to protect the children from harm or neglect, but utilising the services of the “Dial an Angel” company, good though they may be, seems to be overly expensive and probably not warranted. There should be other people who can assist.

  10. It is important that the children spend relatively short periods of time with the Father on a frequent and regular basis, so that a consistent routine is developed and the children will feel comfortable being in the care of their father.

  11. Appropriate parenting arrangements can be revisited once the little girl [Y] passes her second birthday.

  12. The Father does not seek equal shared parental responsibility and it does not seem appropriate, given the degree of conflict between the parties at present. This is an issue that can be revisited on the final hearing.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date:  8 December 2010


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Goode & Goode [2006] FamCA 1346