M and G
[2003] FMCAfam 271
•11 July 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & G | [2003] FMCAfam 271 |
| FAMILY LAW – Children – contact – best interests – drug and alcohol issues – child aged 5 years – scope of jurisdiction to make orders in the child’s interests – no power to make a “free-standing” order that a party attend a medical practitioner and undergo treatment – contact order may be made on conditions. |
Family Law Act 1975, ss.65D; 67ZC; 68B; 68F
D’Agostino (1976) FLC 90-130
Noye (1978) FLC 90
Evans (1978) FLC 90-435
Spry (1977) FLC 90-271
Stirling (1978) FLC 90-463
L v T (1999) 25 Fam LR 590; FLC 92-875
| Applicant: | A C M |
| Respondent: | K J G |
| File No: | NCM 4106 of 2002 |
| Delivered on: | 11 July 2003 |
| Delivered at: | Parramatta |
| Hearing dates: | 17 and 18 June 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr De Dassel |
| Solicitors for the Applicant: | Curtis Delaney Gray |
| Counsel for the Respondent: | Mr Bateman |
| Solicitors for the Respondent: | Cragg Braye & Thornton |
ORDERS
The child S S M born 2 February 1998 is to reside with the Respondent mother.
Until 26 January 2004 the Applicant father is to have contact with the said child as follows:
(a)each second Sunday commencing on 29th June 2003 from 10.00 am until 5.00 pm, except on Mother’s Day in each year;
(b)for not less than one (1) hour between the hours of 4.00 pm and 5.00 pm if that day falls on a school day and for a period of four (4) hours between the hours of 2.00 pm and 6.00 pm if that day falls on a day when the child is not required to attend school or at such other times as the parties shall agree;
(c)on Father’s Day between the hours of 10.00 am and 5.00 pm if that day does not fall on a Sunday when the father is usually entitled to contact pursuant to Order 2(a);
(d)each Tuesday during school term time from the end of school until 6.00 pm; and
(e)at such other times as the parties shall agree.
The father is restrained from:
(a)drinking any alcoholic liquor or smoking any prohibited drug or otherwise administering to himself any prohibited drug during any contact period or for twelve (12) hours beforehand;
(b)taking the child into any enclosed space where people are smoking; and
(c)bringing the child into contact with the paternal grandfather if the grandfather is drinking alcoholic liquor or is intoxicated.
The father is to have further contact with the said child from and after 27 January 2004 on condition that he enrols in the following programs as directed by the Manager Mediation at the N Registry of this Court and is to attend those programs regularly:
(a)an Anger Management program;
(b)an Alcohol and Other Drugs counselling program; and
(c)a Parenting After Separation course.
The father is to authorise the manager or other person responsible for each of the courses or programs referred to in Order 4 above to provide a written report about his attendance at such course or program to the Manager Mediation and the parties’ lawyers.
From and after 27 January 2004 on condition that the father proves that he has enrolled in the programs and course set out in Order 4 above the father is to have contact with the said child as follows:
(a)each alternate weekend during school term time from 9.00 am on the Saturday until 5.00 pm on the Sunday and each Tuesday from after school until 6.00 pm;
(b)for the first half of each of the school holiday periods in each year except the Christmas/January school holiday period commencing at 9.00 am on the day after school term finishes and concluding at 5.00 pm on the middle Saturday of the school holiday period;
(c)for a period of two (2) weeks in January in each year from 9.00 am on 2 January and until 5.00 pm on 15 January in each year commencing on 2 January 2005;
(d)from 11.00 am on Christmas Day to 6.00 pm on Boxing Day in 2004 and each alternate year thereafter;
(e)from 9.00 am to 5.00 pm on Father’s Day in each year if that day does not fall on a Sunday when the father is usually entitled to contact pursuant to Order 6(a);
(f)for not less than two (2) hours on the child’s birthday if that day falls on a day when the child is required to attend school and for not less than four (4) hours between the hours of 2.00 pm and 6.00 pm if that day falls on a day when the child is not required to attend school; and
(g)at such other times as the parties shall agree.
Contact is not to be exercised on Mother’s Day.
If the child’s birthday falls on a day when the father would normally be entitled to contact pursuant to these Orders the father shall arrange for the child to spend four (4) hours with the mother if that day falls on a day when the father would otherwise be entitled to contact.
The mother is to have the responsibility for decisions concerning the long term care, welfare and development of the child.
The parties are to be responsible for decisions concerning the day to day care welfare and development of the said child when the child is in the care of that party pursuant to these Orders.
NOTED that the mother wishes to take the said child to spend the Christmas period with her family at G in the State of Queensland at Christmas 2003 and alternate Christmas periods thereafter.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
NCM 4106 of 2002
| A C M |
Applicant
And
| K J G |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for contact brought by the father of a little girl who is five years old. She was born on 2nd February 1998 and she lives with her mother. There is no issue between the parties about the fact that she should continue to live with her mother.
Background
The parties resided together from about November 1996 until April 1998. There was the one child of the relationship, the little girl called S. The parties separated in April 1998, after a number of instances where the mother says that the father used violence towards her, particularly when he was affected by alcohol or prohibited drugs.
The father commenced proceedings in the Local Court of New South Wales at S, seeking orders that he should have regular contact with S. The mother filed a Response, in which she sought orders that the father should commence by having supervised contact with S for two hours on alternate Sundays. The Local Court made interim orders on 29th May 2002 providing that the father should have contact from 12 noon until 4.00 pm on alternate Sundays. The father was ordered not to be affected by drugs or alcohol when exercising contact. The proceedings were also transferred to the Family Court at N.
On 8th July the Family Court transferred the proceedings to this Court. On 26th August 2002 this Court ordered a Family Report and listed the proceedings for final hearing on 17th March 2003. There were interim orders made by consent on that day providing that contact would continue on the same basis and the father was to attend
“a post separation parenting course approved of by the director of Primary Dispute Resolution, Level 2, B Street, N, addressing the following matters:
a) Anger management;
b) Drug and alcohol management
c) The best implementation of contact.”
The father commenced counselling with Ms A H, a counsellor with Centacare. He attended three sessions with her.
The proceedings were listed for final hearing on 17th June 2003. The parties conducted negotiations and came close to resolving the issue of contact. They agreed to deal with outstanding issues by means of submissions on the papers, and counsel for each party made submissions that afternoon. I took further submissions on some limited issues on the following evening, the 18th June.
Issues
The issues between the parties relate to the way in which contact is to take place and the mother’s concern about the father’s drinking, use of prohibited drugs and his tendency towards violence. She told the counsellor who prepared the Family Report that she accepted that the child needed contact with the father.
Evidence
The father now resides with his father. The mother has formed a new relationship with a man named J A and told the writer of the Family Report that they are engaged but do not live together.
The author of the Family Report, Ms T, reported that she had spoken to Ms H, of Centacare, about her counselling of the father. The conversation is described in this way:
“Ms H stated she saw the father on three occasions and spent time talking with him about managing stress, identifying triggers for his anger and ways to engage his child. Ms H stated the father did not seem to accept that he had problems with his anger but seemed enthusiastic in regard to engaging his daughter. The father apparently made no further appointments.”[1]
[1] Family Report, paragraph 31.
Ms T reported the father as having told her that he drinks two large bottles and two schooners of beer on average each afternoon and evening and more on weekends. He does not, however, consider himself to have a problem with alcohol. He also told her that he “only uses marijuana socially.”[2]
[2] Ibid, paragraph 34.
The father denied that he had a problem controlling his anger and only became aggressive with the mother and Mr A because the mother knows “how to push his buttons.”[3] He agreed that he had not accessed anger management or drug and alcohol counselling because he did not believe that he had a problem with either.
[3] Ibid, paragraph 35.
Ms T reported the mother as saying that the relationship with the father broke down because of his alcohol and drug use and his alleged abusive behaviour. She said that the father had had contact with the child on previous occasions but had concentrated more on trying to revive the relationship between them.
Ms T observed the child with the father, and noted that the interaction was positive, although she reported that the father “seemed unable to take the adult role in the relationship.”[4] Nevertheless, the child appeared to enjoy the interaction with the father and separated appropriately from him.
[4] Ibid, paragraph 91.
There is evidence that the S Local Court made an Apprehended Violence Order against the father on 16th January 2002, to operate for a period of 12 months. There is no evidence of a current Apprehended Violence Order.
Material subpoenaed from the NSW Roads and Traffic Authority shows that the father has come under notice for three offences involving alcohol since he obtained his NSW Drivers Licence on
23rd November 1992.
On 29th June 1994 at the S Local Court he was fined the sum of $200.00 for driving with the middle range prescribed concentration of alcohol in his bloodstream. He was disqualified from holding or obtaining any drivers licence for a period of three months.
On 15th January 1997 the father was again dealt with by the Local Court for driving with the middle range prescribed concentration of alcohol. He was also before the court for driving whilst his licence was cancelled. On this occasion, he was disqualified from holding or obtaining a drivers licence for 12 months for the PCA offence and a further 6 months for driving whilst his licence was cancelled. He was placed on a good behaviour bond and required to perform 100 hours Community Service.
The father was again before the Court for a middle range PCA offence on 16th August 2000. He was required to perform 200 hours Community Service and was disqualified for three years from 20th May 2000, the date of the offence.
The father may not believe that he has a problem with alcohol, but it seems clear that he has a problem with drinking combined with driving. I note that he has now received two Community Service Orders for driving offences, and he has three convictions for drink driving offences within just over six years. A further conviction for this offence could well see him receive a custodial sentence.
Submissions
Counsel for the mother, Mr Bateman, submitted that any additional contact between the father and the child should be conditional on the father undertaking courses on parenting after separation, anger management and drug and alcohol abuse. He was critical of the father’s performance in only attending before Ms H for counselling on three occasions and in his inability to admit that he has any problem with drugs or alcohol. He went on to submit that the father should attend on a medical practitioner to access these facilities, and provided the name of a Dr I, of S Heights Medical Centre, who apparently bulk bills Medicare, so that the father would not be put to any expense. Mr De Dassel, counsel for the father, had expressed concerns about the father being required to attend on specialist medical practitioner for reasons of cost.
Conclusions
When dealing with parenting orders, it is clear that the Court can place restrictions or conditions on contact, such as requiring supervision (D’Agostino (1976) FLC 90-130 at 75,613), not bringing a child into the presence of a particular person (Noye (1978) FLC 90-409;
Evans(1978) FLC 90-435 at 77,208) or the accepting of undertakings
(Spry (1977) FLC 90-271; Stirling (1978) FLC 90-463).
The Court can also make injunctive orders to safeguard the welfare of a child or a parent of a child or some other person who has a residence order, a contact order or a specific issues order in relation to a child. This power is given to the Court by section 68B of the Family Law Act. I propose to make such orders, restraining the father from drinking alcohol or administering to himself any prohibited drug at times during or before the times when he is to exercise contact. I also propose to restrain the father from taking the child into any enclosed space where people are smoking or bringing the child into contact with his father, the child’s paternal grandfather, when that person is drinking alcohol or is already intoxicated.
The Court does not have the power, however, to require a person to attend upon a psychiatrist (or, it would seem, any other medical practitioner) to undergo any program of treatment unless it is as a condition of a parenting order. It was held by the full Court of the Family Court in L v T (1999) 25 Fam LR 590; FLC 92-875 at 86,393, that, whilst there is power to order a party to attend a psychiatrist and undergo treatment as a condition of contact or residence, there is no such power under sections 65D, 67ZC, 68B or 114 to make a non-conditional or “free-standing” order to this effect.
I am concerned that to impose conditions on the father that he undertake drug and anger treatment or an anger management program when he clearly does not appreciate the need for either may place the father in a position where he finds it too difficult to meet the requirements before he can have contact with his child. There is evidence before me to show that contact, with appropriate safeguards, is beneficial to this child, and I believe that there is a need for more contact than that which has been prescribed by the interim orders made by the S Local Court. Accordingly, I have made certain orders for contact that can be put into place immediately and will last until 26th January 2004. There will then be a further, more extensive set of orders that will come into effect from 27th January 2004, but they will be conditional upon the father attending programs to address the issues raised by Ms T in the Family Report.
It is for these reasons that I make the orders set out at the commencement of this judgment.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 10 July 2003
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