Marginson & Nighy

[2007] FamCA 82

FAMILY COURT OF AUSTRALIA

MARGINSON & NIGHY [2007] FamCA 82

FAMILY LAW - CHILDREN - With whom a child lives - Status quo - Drug addiction – Violence - Aboriginality.

APPLICANT: Mr Marginson

RESPONDENT: Ms Nighy

FILE NUMBER: NCF 25 of 2006

DATE DELIVERED: 08 February 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: MULLANE J

HEARING DATE: 22 January 2007

REPRESENTATION:

COUNSEL FOR THE APPLICANT: Mr Bateman

SOLICITOR FOR THE APPLICANT:

Messrs Paul Stubbs Law Office, DX 7151

Kempsey

SOLICITOR FOR THE RESPONDENT:

Mr Winder as Agent for Messrs Douglas Hannaway

Solicitors, 30 Murray Street, Port Macquarie    2444

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER :

Mr Geary

SOLICITOR FOR THE APPLICANT:

Messrs Attwaters, Solicitors

DX 7846, Newcastle

Orders

1. The child of the parties C born in April 2002 is to reside with the father.

2. Until he commences school C is to spend time with the mother in accordance with the Orders of 13 September 2006.

3. Once C commences attending school he is to spend time with the mother as follows:

   3.1in school terms each second weekend from end of school Friday to start of school Monday (Tuesday if Monday is a public holiday or pupil free day);

   3.2for the first half of each school vacation commencing in an odd numbered year and the second half of each school vacation commencing in an even numbered year;

   3.3     on occasions significant to his Aboriginal culture;  and

   3.4by telephone each Tuesday and Thursday between 7pm and 7.3pm to be implemented by the father ensuring the mother is telephoned and C is available to speak with her and has privacy for the call once made.

4. Despite any other order made today Order 3.1 is to be implemented by the mother collecting C from his school at the start of the period and delivering him to school at the end of the period.

5. The father must ensure that he does not attend in person, or by anyone on his behalf, within 50 metres of C’s school within 10 minutes of when contact under Order 3.1 is to start or end.

6. The parties are to have equal shared parental responsibility for C.

7. By consent Orders and Notation are made in terms of paragraphs 1 to 11 and A of the document titled “Minutes of Orders”, dated 22 January, 2007, filed herein and as set out hereunder:

   “1The change-over for the purpose of implementation of [C] born [in]April 2002 (“the child”) spending time with the mother shall unless the parties otherwise agree, be in the front of [K] police Station, [K].

   2That the mother shall not bring or cause to be present [Ms C] at changeovers.

   3That the mother and the father shall each notify the other parent, should the child require emergency medical treatment or hospitalisation whilst the child is in that parent’s care pursuant to Orders of the Court.

   4That the father shall do all acts necessary to authorise any school that the child attends to forward to the mother upon her request and at her expense copies of the child’s school reports, newsletters, class photos and school notices relevant to the child’s education.

   5That the mother shall not remove the child from the [M] district without the father’s prior written consent.

   6That the mother shall forthwith upon delivery to her or to her solicitors on the record in these proceedings duly signed and return to the father a consent form to enable the child to be christened within the Catholic church, and the mother is at liberty to attend any such Christening.

   7That neither party shall denigrate the other party in the presence or hearing of the child or permit the child to hear any other person denigrate the other party.

   8That neither party shall consume illicit substances during any period that the child is in that party’s care pursuant to Orders of this Court or for a period of 12 hours prior to any such period occurring.

   9That the time for Order 1(a) of 13 September 2006 is altered to be from 9am until 5pm on Monday, Friday and Saturday of each week.

   10That the mother have communication with the child by telephone on each Tuesday and Thursday between 7pm and 7.30pm, the mother to initiate the call to the father’s telephone number […] or […] (when reinstated) and the father shall inform the mother when the second number has been re-established.

   11That the child spend time with the mother from 9am to 5pm on Mother’s Day.

   NOTATION:

   A.These Orders are additional to the parenting orders of 16 November, 14 December 2005 and 13 September 2006.”

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCF 25  of 2006

Mr Marginson

Applicant

And

Ms Nighy

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This was a hearing of proceedings regarding the care, welfare and development of the child, C, who turns five in April.  The parties are his parents and C is represented by an independent lawyer.

2. Agreement has been reached on a series of orders between the parties relating to changeovers and various other parenting issues.

THE EVIDENCE

1. The evidence comprises the Minute of Orders agreed to by the parties and the independent lawyer for the child, the list of documents, the amended application of the father filed 4 September 2006, the response of the mother filed 14 December 2005, the affidavit of the father of 29 November 2006, his affidavit of 13 December 2006, his affidavit of 18 January 2007, the recovery order dated 16 February 2005, the orders of 14 December 2005, 13 February 2006, 21 June 2006, and 13 September 2006, and also the welfare report written by Mr O and released on 15 December 2006.

THE BRIEF BACKGROUND

1. The parents both have a history of drug addiction problems and also a background involving some violence.  The parties cohabited in Sydney till 2002 and then in K until about August 2004.  Since then C has generally been in the father's care and residing in K.

2. Interim orders were made on 16 November 2005 in the K Local Court for C to live with the father and have contact with his mother on Tuesdays from 10 am to 2 pm at the Neighbourhood Centre.   But the mother was banned from the Centre on 12 December 2005 and the Centre refused to allow contact changeovers to occur there on further occasions.

3. There were then further consent orders on 14 December 2005 in the K Local Court.  They were interim orders and provided for C to live with his father and have contact with his mother.  They also provided for the mother to have responsibility for decisions as to the day to day care, welfare and development of C when he was in her care and the father to have all other parental responsibilities for the child.

4. There were also orders restraining the parties regarding their use of illicit substances, from denigrating each other to C or from moving from the M area.  There were also orders regarding arrangements for christening C and notifying each other about medical issues and keeping each other informed of his or her address and telephone number.  The proceedings were then transferred to the Family Court of Australia at Newcastle.

5. On 21 June 2006 further interim orders were made by consent to provide that C's contact with his mother be reduced from eight hours each Monday and Friday to six hours each Monday and Friday.  On 13 September 2006, there were further interim orders by consent so that C's time with his mother was defined as:

   (a)      9 am to 6 pm each Monday, Friday and Saturday;

   (b)      2 pm to 6 pm on Christmas Day;

   (c)      10 am to 3 pm on his birthday;

   (d)      such other times as the parents agree.

6. The welfare report was prepared by a psychologist, Mr O, and was released on 15 December 2006.  His preparation included reading extensive documents including records produced on subpoena and after interviews of the parties, C, the paternal grandfather and the mother's daughter, T.  There were also interviews of the parties and observations of interactions between C and the father and the paternal grandfather and C and the mother.

7. Mr O concludes the report with evaluations and recommendations:

   Evaluation:

   71       The limit identified to this report is that [the mother] has repeatedly indicated that she plans to submit a current affidavit but has not done so yet.

   72       It is of concern that both parents have a history of chronic poly-substance abuse.  The history is well documented throughout the extensive subpoena documents.  It is of concern that both parents appear to be continuing to use illicit substances.  [The father] states that he continues to use marihuana on a daily basis.  [The mother] states that she has not used substances for a considerable period although subpoenaed material strongly suggests that this is not true and that [the mother] is continuing to use illicit substances.

   73       It is of concern that despite both parents agreeing that [C] should be christened, the parents have not been able to agree on the details of who the Godparents should be and as a consequence no arrangements have been made for [C] to be christened.

   74       It is of concern that there does not appear to be any obvious opportunity for [C’s] cultural needs to be met in respect of his Aboriginality at the present time.

   75       It is pleasing that at least in the environment of the Family Court, the parents were able to make child focussed co-parenting arrangements about the time that [C] would spend with each parent over the coming hours and days.

   76       The impact of [the father’s] proposal will be that the current situation would continue with [C] living predominantly with [the father] and [C] spending time with [the mother] on alternative weekends and during school holidays.

   77       The impact of [the mother’s] proposal will be that [C] will spend significantly more time with [the mother], and also with [C’s] half sister, [T], than [C] currently spends with [the mother] and [T].  [The mother’s] proposal will require [C] to either have his primary residence changed from the home of [the father] to the home of [the mother] or for [C] to establish a primary residence with [the mother] as well as with [the father].

   78       It is my view that while both parents have a long history of behaviour which would seriously compromise their ability to parent in both the short term and long term, [C’s] best interests are likely to be met if he was to live predominantly with [the father] and spend substantial time with [the mother].  The time that [C] spends with [the mother] should include blocks of time that would allow [the mother] to foster [C’s] relationship with his extended family including his maternal grandmother.  It appears as though [C’s] extended family such as his maternal grandmother represent the best opportunity to foster [C’s] Aboriginal cultural needs.

   79       It is my view that both parents should have equal shared parental responsibility for long term decision making for [C].

   80       It is my view that [C] should not spend equal time with each parent due to the inappropriate level of communication between the parents and the long history of verbal and other abuse associated with communication between the parents and associates of the parents.

   81       It is my view that [C] should spend and communicate with both parents for culturally significant occasions such as birthdays and religious and / or culturally relevant events.  It is important that both parents actively support and promote [C’s] cultural heritage including but not limited to his Aboriginal culture.

   Recommendations:

   82       It is recommended that both parents have equal shared parental responsibility for long term decisions for [C].

   83       It is recommended that [C] live predominately with [the father] and spend substantial time with [the mother] on alternative weekends during school terms from after school on Friday to before school on Monday (three nights each fortnight) and for half of all school holidays.

   84       It is recommended that [C] spend time with each parent on culturally significant occasions.

   85       It is recommended that telephone contact should be age appropriate, liberal and unrestricted and guided by common sense.  In the absence of co-operative child focussed arrangements, telephone contact should be for mid week occasions each week on Tuesday and Thursday between 7.00pm and 7.30pm.

   86       Further investigation of the issues of the appropriateness of [C] spending time overnight with a parent should be undertaken if either parent is convicted of a criminal offence.

CONCLUSIONS

1. The Court accepts the evidence in the documents. There is a presumption of equal shared parental responsibility under the Family Law Act. The evidence does not establish that it would be contrary to C’s interests for the parents to have equal shared parental responsibility, so there should be such an order.

2. It would be contrary to C’s interests to order that he spend equal time with his parents or significant time with his mother.  His father has been his primary carer for more than two years and his time with his mother in that period has been very limited.  Until C starts school his interests are best served by being with his father and spending time with his mother in accordance with the orders of 13 September 2006.  Once he starts school he should spend time with her as follows: 

   1.1In school terms each second week from end of school Friday, to start of school Monday (Tuesday if it is a public holiday or a pupil free day);

   1.2for the first half of each school vacation commencing in an

   
   

   odd-numbered year and the second half of each school vacation commending in an even-numbered year;

   1.3      on occasions significant to his Aboriginal culture;

   1.4by telephone each Tuesday and Thursday between 7 pm and 7.30 pm to be implemented by the father ensuring the mother is telephoned and C is available to speak with her and also has privacy for the call once made.

3. Notwithstanding the agreement of the parties regarding changeovers, the changeovers for weekend contact should be implemented by the mother collecting C from his school at the start of contact and returning him there at the end of contact.  This is intended to avoid attendance of the father or anyone on his behalf and thereby avoid C being exposed to adult conflict or misbehaviour.

4. The Court is satisfied that otherwise the orders agreed upon by the parents and the independent lawyer for the child are in C's best interests.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mullane

Associate: 

Date:              19 February 2007 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MARGINSON & NIGHY