M and B
[2004] FMCAfam 468
•18 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & B | [2004] FMCAfam 468 |
| FAMILY LAW – Children – contact – supervised contact – drug issues – violence issues. |
Family Law Act 1975 (Cth), ss.60B; 65E
| Applicant: | R J M |
| Respondent: | R A B |
| File No: | PAM343 of 2003 |
| Delivered on: | 18 March 2004 |
| Delivered at: | Parramatta |
| Hearing Dates: | 20 January & 9 March 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Carr |
| Solicitors for the Applicant: | Legal Aid Commission of NSW |
| Counsel for the Respondent: | Mr Roberts |
| Solicitors for the Respondent: | Peter Cornock & Associates |
ORDERS
That the child J D M, born 16 June 2000, is to live with the respondent mother.
The applicant father is to have contact with the child J:
(a)at the Central West Contact Service for six (6) months, or for no more than twelve (12) contact visits, whichever occurs last;
(b)provided that the father has attended at the Central West Contact Service as set out in Order 2(a), and has complied with Order 5 below, then unsupervised contact on alternate Saturdays, four (4) Saturdays from 10.00am to 1.00pm commencing on the second Saturday following the last contact visit at Central West Contact Service;
(c)provided the father has exercised the contact set out in Order 2(b), then from 10.00am to 5.00pm on alternate Saturdays for four (4) Saturdays thereafter;
(d)provided that the father has obtained suitable accommodation, including a separate bedroom for the child J, and provided that the father has exercised the contact set out in Order 2(c) above, then from 10.00am on Saturday until 5.00pm on Sunday until 31 January 2005;
(e)from 1 February 2005 on alternate weekends during school term time, and 5 pm on Friday until 5 pm on Sunday.
(f)Also from 1 February 2005, on alternate weekends during school term time from 5.00pm on Friday until 5.00pm on Sunday;
(g)on Father's Day in each year from 10.00am until 5.00pm, commencing on Father's Day 2004;
(h)for not less than two (2) hours on the child's birthday in each year at a time agreed by the parties; and
(i)at such other times, if any, as the parties agree.
For the purposes of exercising contact as set out in Orders 2(b) and 2(c), the father must collect the child from the mother's residence at the beginning of each contact period and return the child to the mother at her residence at the conclusion of each contact period.
For the purpose of exercising contact, as set out in Orders 2(d) and 2(e), the father must collect the child from the mother's residence at the beginning of each contact period and the mother must collect the child from the father's residence at the conclusion of each contact period.
The father must provide fortnightly urinalysis reports showing that he has not consumed any prohibited drug to the Central West Contact Service for each contact visit referred to in Order 2(a).
Neither the father nor the mother is to consume or administer to themselves any prohibited drug during the time that the child is in their care or for twelve (12) hours beforehand.
Neither the father nor the mother is to denigrate or criticise or use offensive language to the other party in the presence or hearing of the child or permit any third person to do so.
All documents produced on subpoena may be returned after one (1) month.
The application is removed from the pending cases list.
FEDERAL MAGISTRATES |
PAM 343 of 2003
| R J MISFUD |
Applicant
And
| R A B |
Respondent
REASONS FOR JUDGMENT
The application before the Court is an application by the father for orders for contact with the child, J D M.
J was born on 16 June 2000. The father originally commenced proceedings in the Local Court of New South Wales and sought contact through that Court. The orders originally sought were for relatively standard contact, including alternate weekends, birthdays, Father's day, Christmas holidays, et cetera.
The orders sought in the father's application, however, are not the orders which the father indicated through his counsel that he would be seeking in the course of the final hearing.
The mother has filed a response in which she seeks orders that J reside with her, and there is no issue between the parties that residence should be with the mother and that the child should be with the mother, and that the father should have contact once a fortnight on giving
72 hours notice, that he should abstain from alcohol or any
non-prescribed drug for 24 hours prior to any contact, and that the contact itself should be supervised by the mother.
The orders now sought by the father provide for a graduated scheme of contact, either commencing with unsupervised contact on alternate Saturdays or, in the alternative, commencing with supervised contact through the Central West Contact Service.
The father would prefer to commence unsupervised contact immediately, but the contact service is his fall back position. And the orders proposed set out a graduated contact program. And it is clear that the father's legal advisers obtained their revised instructions as a result of some of the recommendations in the family report. I will deal with the family report later.
The parties met when they were quite young. The father was born on 28 August 1980. He is 23 years of age. The mother was born on
8 October 1984, she is still 19 years of age. The parties relationship commenced in September 1998, and there is evidence that both parties commenced at least the occasional use of cannabis or marijuana.
The father commenced residing with the mother in September 1999, first at the father's parent's residence and then in a separate unit in Gladesville. The child J was born on 6 June 2000. There were some moves from one residence to another. The mother alleges violence by the father towards her, which the father denies. The relationship deteriorated during the year 2000 and by November of that year the parties had separated.
The father says that he had attempted contact on a number of occasions, but contact was sporadic and unsatisfactory.
The matter has had a somewhat chequered history as far as hearing dates are concerned, and for one reason or another this matter did not commence in September 2003, as for some reason the father was not able to attend Court on that date, and a fresh hearing date was set for 20 January 2004.
There have been Legal Aid conferences and interim arrangements for contact. The father has alleged that there have been occasions when the mother has not made the child available for contact.
Unfortunately, it is also the case that there have been a number of occasions when the father, for one reason or another, has not been available to exercise contact. He went to D, where his parents have moved prior to Christmas, and spent approximately a month there. He was not in a position to exercise contact at that time.
The matter came on for hearing on 20 January and was adjourned part heard until 9 March. Unfortunately, there were several occasions where the father did not take advantage of the contact that was arranged, and he has been subject to some criticism by the mother's legal advisers accordingly.
It is a matter of some relevance that there are allegations of drug abuse by the father, and in fact the father has until comparatively recently been unemployed. The father said that he is no longer involved with drugs.
The relationship between the father and the child has been somewhat strained as a result of the infrequency of contact for one reason or another.
A family report was ordered and was prepared by the regulation 8 welfare officer, Mr Norman Goodsell, who was formally a counsellor of the Family Court. Mr Goodsell, in the course of this report, interviewed both of the parties and observed the child's interaction with the father.
It is significant that Mr Goodsell noted that at the time the father was requesting overnight contact, he admitted that he did not have suitable accommodation for overnight contact at that stage. This was in September 2003. Mr Goodsell went on to say in paragraph 60 of his report, and I quote:
One received the impression that R -
meaning the father:
- would welcome any improvement on the current situation, even if it fell short of his official application.
The counsellor observed the father with the child, who was initially reluctant to part with the mother, but settled with the father and they played some games. The father was reported as being attentive to the child, helping him not only with play tasks but also to blow his nose. The counsellor reported that the parties related happily but there were no signs of open affection.
The recommendations from the counsellor were interesting. Paragraph 75 he says:
Despite the mother's comments about the father's motivation and parenting, Mr M demonstrated the potential to play a more significant role in his son's life. It seems most unlikely that this would occur if Ms B -
that is the mother:
- continued to supervise contact, as she would be inclined, perhaps unknowingly - to encourage J to be dependent on her during visits rather than relate to his father. The gradual period of building some independent contact with his father would be more beneficial to J. It is recommended that this be supervised by a contact centre for a period of at least six months prior to the father exercising unsupervised daytime contact. It is considered that overnight contact should only be contemplated after the father has established a pattern of satisfactory unsupervised daytime contact, and he is able to show that suitable accommodation will be provided.
Further, given the serious allegations of the mother, it is recommended that Mr M subject himself to drug testing on a weekly basis for the entire period prior to commencing unsupervised contact.
The counsellor went on to say that these things would be a test of the father's motivation, as well as allowing him the opportunity to develop his relationship with the child, and should serve to lessen the mother's fears of unsupervised contact.
The counsellor was not cross-examined and the family report stands unchallenged. The father, the mother and the mother's sister all gave evidence.
The proceedings blew out considerably as far as time was concerned. Counsel for the applicant, Ms Carr, had indicated on 20 January a proposed hearing time of some three hours. The unfortunate reality was that the matter was part heard on 20 January, and occupied virtually the entire hearing day of 9 March.
The cross-examination was lengthy, and to my mind lengthier than it need have been for what should not have been a difficult contact case.
I am mindful of the provisions of s.60B of the Family Law Act. Subsection 1 contains the object of part 7 of the Act, which is to ensure that the children receive adequate and proper parenting to help them achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
Subsection 2 of s.60B sets out the principles underlying those objects, which are, unless contrary to a child's best interests:
(a)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together, and
(b)Children have a right of contact on a regular basis with both their parents, and with other people significant to their care, welfare and development, and
(c)Parents share duties and responsibilities concerning the care, welfare and development of their children, and
(d)Parents should agree about the future parenting of their children.
Those are the principles set out, and those are the principles that must guide this Court in making a decision.
It is regrettable that the father has had little contact with the child J, and it is fair to say that a significant part of that lack of contact has been brought about by the father's inability to comply with arrangements set out in interim orders. Any Court would be concerned about the drug history of the father, and to a lesser extent, the mother. The father was saying that he is off all drugs, as is the mother, and it must be quite clear that the situation will remain for there to be contact orders.
There is no issue that J should continue to live with the mother, and I will be making that order.
I am not satisfied that the grounds have been shown that would indicate that contact should be supervised on a long term basis, and I am persuaded by the family report that supervision of contact by the mother is likely to be counter-productive.
The mother has some cause for concern about the welfare of the child, especially as the relationship between father and child is not a particularly strong one at this stage. The father does have the motivation to play a role in his son's life, and appears to possess at least some of the attributes required for successful parenting. It is regrettable that he and the mother cannot cooperate, although they have managed to make some contact arrangements and there is evidence of the mother putting herself out to some extent to comply with contact orders.
The mother's proposal for contact to be supervised by herself, with each contact being arranged on an individual basis, is not, to my mind, practical. The father's original orders, to which he no longer clings, were also orders that a Court would have been reluctant to meet due to the father's lack of contact, lack of experience with this child and drug history.
I do note, however, that the father has sought a different set of orders through the minutes prepared by his legal advisers, Ms Carr and
Ms Sabih. I commented earlier that the minute of orders, or the orders sought in that minute, seem to reflect the recommendations and criticisms contained in the family report, and indeed it appears to me that the father's legal advisers have taken careful consideration of the family report to make a proposal which would comply with the recommendations of the counsellor.
This is a matter where I am of the view that graduated contact should commence. I am not of the view that it should commence as unsupervised contact. It would be helpful in view of the mother's allegations against the father and vice versa, if the initial contact periods were at the Central West Contact Service, but that once the father has attended there satisfactorily then unsupervised contact can commence, somewhat conservatively at first but as the father gains more confidence and experience, the contact periods can be increased.
I am, however, largely persuaded that the orders sought by the father in the minute of orders submitted to me on 20 January are orders that should be given very serious consideration by the Court.
I propose to make the orders set out in the schedule at the beginning of these reasons.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 6 September 2004
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