N and S (No.2) - [2002] FMCAfam 216

FEDERAL MAGISTRATES COURT OF AUSTRALIA

N & S (No.2)

[2002] FMCAfam 216

FAMILY LAW – Application for residence orders – alternate weekend contact – denigrate – child’s best interest – child’s wishes – illicit/illegal drugs – heroin – alcohol abuse – methadone program – apprehended violence order.

Family Law Act 1975, ss.60D, 60D(2)(b), 68F(2)

H & W (1995) FLC 92-598
Brighton & Brighton (1995) FLC 92-570

Applicant:

S N N

Respondent:

R S

File No:

ZP 1898 of 2001

Delivered on:

13 March 2002

Delivered at:

Parramatta

Hearing dates:

7 & 8 March 2002

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Stewart

Solicitors for the Applicant:

Ms Coleman
Kings Lawyers

Counsel for the Respondent:

Ms DeVere

Solicitors for the Respondent:

Ms Vincent
Watts McCray

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

ZP 1898 of 2001

S N N

Applicant

And

R S

Respondent

REASONS FOR JUDGMENT

Application

The application brought by the mother is that the child of the relationship, a girl called S who was born on New Years' Eve 1994 and is now seven years of age should reside with her and that the respondent father should have defined but certainly quite reasonable contact. The father's application is that S should reside with him.
The contact arrangements suggested by the mother are reasonably standard and include such familiar arrangements as alternate weekends, Friday to Sunday, extension of those contact weekends to a Monday if there is a public holiday, the usual half of school holidays alternating Christmas Day, periods of time on the birthday, children being with the appropriate parent on Mothers' Day and Father's Day and a provision for further contact as the parties can agree.
The mother seeks further other orders restraining the respondent from consuming alcohol and administering to himself illicit or illegal drugs. There are orders sought whereby the respondent should not denigrate the applicant or discuss the proceedings with the child, S.
For his part the father's application is, not only that S reside with him but that there be alternate weekend contact, a Wednesday afternoon to evening during school term time, the usual half of school holidays, reasonable arrangements for Christmas and Mothers' Day and telephone contact with the proviso again that S should be with him on Father’s Day.
Neither of the arrangements proposed by the competing parents is controversial and each set of arrangements proposed indicates on the part of the parties and their legal advisers an acceptance of the fact that each parent should play a significant role in this child's life.
The history of the relationship is that the father is 43 years of age, the mother is 38. The parties commenced living together in October 1993 and separated in May last year. The mother commenced these proceedings. There was a brief reconciliation which regretfully did not take off and there were some interim orders made by consent also in the month of June and those orders provided the present situation whereby the child, S, lives with the father in the home. The mother lives elsewhere and there are contact arrangement.
The father's life history has been somewhat chequered. He has had an involvement with illicit drugs not the least of which has been heroin and, perhaps because of this, he has in the past been involved in crime to the extent of spending some periods of time in prison. He came out of prison in 1993 and has not, to his credit, been involved in the criminal justice system since then. He did come out of prison, however, with a heroin habit which has not been so easy for him to sweep away.
In fact, in 1994, he commenced a methadone program under the supervision of his treating psychiatrist, Dr Samard. It would be nice, but unrealistic, to say that once he went on to the methadone program his involvement with heroin ceased. It certainly reduced but at times it appears he has succumbed to the temptation to involve himself with heroin. There have been allegations, and some admissions, that at time he sold some of his take-away doses of methadone and it appears that one way or another he managed to obtain heroin. He says, and he told the counsellor who prepared the family report, that heroin is twelve months behind him. The mother is not so sure.
The mother's allegations are that the father has, certainly since 1994, used heroin and has been well and truly under its influence. She is also of the view that he has at times abused alcohol and has been well and truly under its influence. It is these issues which, in the mother's mind, pose a stumbling block to the father in presenting himself to the Court as a suitable person to be a full time parent for S.
The father sustained an industrial accident which brought about a permanent injury. Whilst he received a compensation payment which facilitated the purchase of a house, the other side of the coin has been his inability to return to full time work. This has been one of the reasons why he has been chronically short of money although the mother says that his involvement in the purchase of illicit drugs has been a factor. The mother's evidence is to some extent supported by her parents. Her mother gave evidence and whilst she indicated that it was not she who had said that the father had actually taken items of theirs indirectly that had come through via the mother's father.
There is certainly evidence on the father's chronic shortness of money that has led to him pawning items and later redeeming them. It would not be unfair to the mother to characterise her view of the father's ability as a money manager as not being a high opinion. Another factor which the mother puts forward as a difficulty as far as the father is concerned is the father's own mother, who did give evidence, the paternal grandmother. Indeed, it transpires that she now resides with the father in the home to assist him with the care of S. The mother says, however, that the father's mother has had a history of abusing alcohol and that by the evening after she has consumed an amount of alcohol in the mother's view the paternal grandmother is not capable of assisting anyone through intoxication.
The grandmother, who did give short evidence, was cross-examined as to her consumption of alcohol. She did not shy away from the fact that she liked a drink but she denied abuse of alcohol and the evidence stands to my mind that the fact that the mother, ie., the father's mother, the paternal grandmother, consumes alcohol on a regular basis but I am not satisfied that it has been proved to the requisite civil standard that she regularly or frequently so abuses alcohol as to be incapable of assisting the father with the child.
Another issue which has arisen is that the child, S, is reported as displaying signs of nervousness or instability particularly at night when she is reluctant to remain sleeping in her own bed in her own room every night but will from time to time make her way either to the father's bed or the paternal grandmother's bed. Certainly the evidence which is not disputed by the mother would suggest to the Court that this child suffers for a need for reassurance which hopefully may be resolved by the completion of these legal proceedings. It is certainly clear that S is aware of these proceedings and to some extent they are looming in her mind.
The child, S, attends the Mt Annan Public School and a comprehensive report entitled "A Progress Report" has been tendered in evidence. The report shows that S is well settled at the school. The comments are very largely positive. It appears that she is happily and consistently working. There is, of course, room for improvement but it does appear this little girl is at a school which suits her and which meets her educational needs. Indeed, the mother for her part accepts that Mt Annan Public School is the most suitable school for S at this stage and even if her application for the child to reside with her on a full time basis were successful she has indicated to the Court that she would not now intend to remove S from the Mt Annan Public School but would allow her to continue her primary education there.
I would comment that I see this approach by the mother as being an approach to her credit. It indicates an ability to consider the child's welfare and best interests apart from the mother's own immediate needs or wishes or the mother's short-term convenience.
There has certainly been a history of acrimony between the parties not only leading to the separation but at times since. Indeed, there is an apprehended violence order in force where the mother is the protected person. That order was made at the Camden Local Court on 12 July 2001 after the latest and most final separation. That order is in force for a period of 12 months. The order is in general terms containing the statutory prohibitions and usual injunction against the defendant not to assault, molest, harass, threaten or otherwise interfere with the protected person. There are no specific restrictions on the father apart from those which are basically an exhortation to him to do little more than obey the law of the State of New South Wales. It is, of course, a matter that I will be taking into account and I will deal with it specifically a little later in the morning.
The mother has consented to some interim orders on 18 June which led to the child residing at least for the time being with the father and the mother having contact. It is significant that the mother says that the grounds for her consent to those orders are related to the fact that it was a busy Court day, it was unlikely, in a legal adviser's view, that an application that the child reside with her on an interim basis be reached. She was concerned about not having contact at all and saw an interim arrangement which would at least guarantee her contact which she claimed the father had denied her and saw that at least as a way of getting some relationship going with her father. She was distressed and the matter was before the Court on the next occasion that the Federal Magistrate then presiding declined to change the residence arrangements pending the final hearing of the matter.
It is the mother's position that she has always been seeking to have S reside with her. She has given evidence that, to her view, the father has presented with symptoms of intoxication of alcohol between then and the hearing dates of this matter. There has also been one rather suspicious incident in November of last year where the father and another man with whom he was travelling in a motor vehicle in Cabramatta of all places came under notice to police. Police reported finding a syringe in the car. The father denies accelerating away from the police.
He was not charged with any offence but a person with history of involvement with illicit drugs being found in a suburb like Cabramatta which has regrettably in the last decade acquired a notoriety for the sale and administration of illicit drugs, particularly the so-called hard drugs, certainly leads to if nothing else a suspicion on the part of the mother, the mother's legal advisers, that the father's involvement with hard drugs is not nearly as far behind him as he would have the Court believe.
The mother, in fact, obtained an affidavit from one Neil Leslie Hayes in which Mr Hayes deposed to some incidents where he and the father had been involved in some dealings with drugs including the father selling some of his methadone and Mr Hayes' allegations that the father had in fact purchased heroin and in fact administered that heroin to himself. The affidavit has had a chequered history. There have been more submissions about the receipt of Mr Hayes' evidence than any other matter in this case due to first of all Mr Hayes' admissions in his affidavit to matters which could tend to incriminate him in some offence against the laws of New South Wales although Mr Hayes is past the stage of worrying about appearing any Court in New South Wales as Mr Hayes has recently died.
The father was cross-examined about the material contained in Mr Hayes' affidavit. He largely denied it. He has admitted the involvement with heroin in the past. He has admitted some dealings with some of his methadone which certainly involve his making do on less methadone and selling some to make money which does not do him credit. He indicates, in fact, that he has not only gone off heroin completely but that he has, under the supervision of his psychiatrist, Dr Samard, weaned himself off methadone although that, he says, has only recently happened. There has been some material produced from Dr Samard showing prescriptions from December 1993 until 2001 being the trade name for methadone. The amount prescribed on a regular basis began at 110 milligrams, went up to 120, down to 105, back to 110, up as high as 130 and reduced through to 110 down to 80 and down to 45. The father now says he is not on methadone at all.
The Counsellor who prepared the family report expressed some concern about the father's involvement with illicit drugs and his statements of his recovery from involvement. Page 5 of the report, Mr Goodsell, an experienced Regulation Aid Counsellor and formerly a Counsellor in the Family Court, refers to the father as saying:
He stated that he only consumed one or two beers a day and did not take heroin now but he admitted using it only 12 months. He said he planned to stop using methadone in two weeks' time but it must now be claimed that he had attempted to do this in the past yet went back to taking heroin. When pressed about the state of his health, Mr Schallenmueller stated that his psychiatrist, Dr Samard, would vouch for his complete recovery. Without clear and strong medical reassurance about his present state of health and recovery from drug and alcohol abuse one would have concerns about Mr Schallenmueller's ability as the resident parent to consistently provide for S's emotional and material needs.
The mother, through her Counsel, has submitted that whilst there is some evidence from Dr Samard and from the father himself that this falls short of the clear and strong medical reassurance referred to by Mr Goodsell.
I should say at this point that involvement under medical supervision in a methadone program would not of itself disqualify a person in the eyes of the Court from undertaking the responsibilities of a parent. People who involve themselves with illicit drugs are in fact encouraged to take steps to rid themselves of this involvement. For most of them it is well nigh impossible to go what is known as cold turkey and there is an encouragement to go on to program such as methadone program often mixed with prescription of a drug called Buprenolphene which can be of great assistance in the methadone program.
People who involve themselves in such a program under medical supervision do so with the intention of ridding themselves of an involvement with illicit drugs which has health problems, difficulties in functioning in life and a necessary involvement in the criminal scene. It is far preferable for people to be on a methadone program with a view towards eventually getting off methadone and making a complete recovery. No-one says that getting off illicit drugs is easy and people do fall behind from time to time and not everyone succeeds on a methadone program but it is well known to the Courts that many people, in fact, do succeed especially where they have supervision of one sort or another. Indeed, the New South Wales Drug Court provides supervision as well as medical supervision which goes to show that people who are on a program as I said are not disqualified from taking a parenting role.
The father is not otherwise in employment and certainly has the time available to take on the parenting role. The mother is in full time employment. Clearly, that has an involvement on her time but again it should be made clear that a parent being involved in full time employment to support herself and, at least partly, the child can hardly be seen as a disqualifying feature in being a full time parent. There are millions of Australians who are in employment and looking after a child, or children, without the assistance of another parent. Indeed, people being in employment is something which our society encourages and the mother cannot at all be blamed for that. Indeed, she should be praised.
What then should the Court do in respect of this situation which has been an essentially interim situation? I have considered this controversial material from the late Mr Hayes. As I said, there have been denials, there have been allegations that the father's involvement in drugs up to the early part of 2001. There is no evidence of his being involved, at least through the late Mr Hayes, later than a year ago but, certainly, somewhat later than the father's rather optimistic "not having touched drugs for twelve months" that he gave to the Counsellor in November of last year because at that stage, too, he was still on a methadone program although he had indicated that he was going to get off it soon and in fact he has given evidence that he has.
Now, of course, a cynic might compare the timing of the father's going off methadone completely and attempting to succeed without any medical assistance as being related to the application before the Court. This is hardly a criticism, to my mind, if indeed the father has succeeded in this because for many people forthcoming Court proceedings regarding the future of the residence of their children is a matter of considerable importance to them as it should be. If that is an encouragement to them to continue to put aside involvement in innocent drugs and attempt to guarantee them health in the community that is in fact something that should be encouraged. If it is a motivating factor to encourage people to rid themselves of that involvement then one can only see the positive side of it.
There are a number of principles that need to be considered in dealing with parenting proceedings. When a Court exercising jurisdiction under the Family Law Act is considering the making of parenting orders concerning a child section 64E of the Family Law Act must be followed. This section lays down that the Court must regard the best interests of the child as the paramount consideration. The best interests of the child is perhaps the golden thread that runs through the Court's dealings with parenting matters.
The Court also looks at the various principles set out in section 60D of the Family Law Act. They are matters that the Court takes into consideration except when the application of any of them is or would be contrary to the child's best interest. Those principles refer to the child's right, in fact, to have the parenting of both parents where possible and involvement with other people significant to their care, welfare and development. Sub-section 60D (2)(b) refers to involvement with other significant people and quite clearly grandparents are contemplated amongst others in such matters. Indeed, each parent in the case before me today sees a role for grandparents. The father, with his assistance of his mother who now resides with him, with assistance with S and the mother, who sees the involvement with S with her parents who live not too far away and indeed S has spent some time staying overnight with her maternal grandparents at times when S has been otherwise in the care of her mother.
As I said, the best interests of the child is the golden thread that runs through material under the Family Law Act concerning children. Section 68F(2) of the Act sets out a number of matters that a Court must consider when determining what is in a child's best interest. There are 12 of them in all from subsection 68F(2)(a) through to (l) inclusive. Not all of them will be relevant in every case but all of them must be considered as the Court has done in this matter. Section 68F(2)(a) requires the Court to consider any wishes expressed by the child, any factors such as the child's maturity and level of understanding may be considered to be relevant to the weight the Court should give those expressed wishes. Incidentally, the child's maturity, as well as the child's sex and background, are also to be considered under subsection 68F(2)(f).

There are a number of ways in which the wishes of the child can be ascertained. In many cases, the competing parents will provide evidence of that themselves. Independent evidence can be made available to the Court. Independent views at times, if the children are separately represented. In many cases it is done by means of a family report and in this case, as I said, a family report was prepared by Mr Norman Goodsell. In the preparation of his report, Mr Goodsell interviewed the mother and the father, interviewed the child, S, interviewed the mother's parents. He did not interview the father's mother and it would appear that the role played by the father's mother, certainly as it now is, may not have been brought to Mr Goodsell's attention.
He also observed interactions in play between S and both parents. It's fair to say that the father's comments about the interactions between S and her father and S and her mother are both positive.
The family report, in particular, reports S as saying she loved both parents and rather quaintly said: "I like Dad two inches more". Counsellor's view was that this seemed due to her greater exposure to him over recent times. She mentioned the activities that they did together. Described daily routines such as walking to the local park and feeding the ducks. S's impressions of her parents' environments, said Mr Goodsell, was similar. She liked aspects of both places. No strong preferences were evident. Counsellor was concerned about S's reference to the father "talking funny" which Counsellor took as his speech having been slurred. No explanation was given as to what that was although an adult may well see that as an indication either of the father being affected by a drug or by alcohol. The evidence doesn't go further than that.
The wishes of the child have been considered in some detail by the Full Court of the Family Court of Australia in H. & W. reported in (1995) FLC 92-598. Fogarty and Kaye JJ of that Court held that the wishes of the children were important and proper and realistic weight should be attached to any wishes expressed by children. As a matter of practical day to day experience, the problem in this area usually relates to the ascertainment of the wishes of the child, their interpretation and assessment in the face of conflicting evidence. Against that background, the Court will attach varying degrees of weight to a child's stated wishes depending upon, among other factors, the strength and duration of the wishes, their basis and the maturity of the child including the degree of appreciation of the child of the factors involved in the issue before the Court and their longer term implications. Ultimately, the overall welfare of the child is the determinant.
In that same case, Baker J held that the child's wishes must not only be considered but must be shown to have been considered in the reasons for judgment of the trial judge. Furthermore, if the trial judge decides to reject the wishes of the child then clear and cogent reasons for such a rejection must be given particularly if the separate representative, if there is one, submits that the Court should give effect to such wishes. The wishes of children should not be discounted simply because they are expressed by children. The weight to be given to the wishes of a child depends upon the individual child and an assessment of the validity of the wishes must be made by the trial judge in an individual case.
Well, that guidance from the Full Court is, with respect, very clear. There is certainly independent evidence through the family report of this child's positive views towards both parents and the environment in which they reside. There is some evidence of a slight preference towards the father, the "two inches more", which the Counsellor saw as due to the child's greater exposure to the father.
S lives with her father most of the time and has contact with the mother. She is seven years of age. She is certainly of an age and a state of maturity where some consideration would be given to her wishes. They are obviously not as well formed as, say, the wishes of a child of 13 or 14 but they should not be discounted and I am certainly of the view that if the Court were to make a decision that, say, the child were to live on a full time basis with the mother that S would feel some sadness in that regard not because she dislikes her mother because she clearly loves her mother but because of her regard for her father. As I said, the child is of an age where her wishes should be given some weight.
The Court must also consider the nature of the relationship of the child with each of the child's parents and with other persons. There is clear evidence that this child has a good relationship with each parent. The competing proposals involve S having regular and frequent contact with the paternal grandmother and with the maternal grandmother and grandfather. I am of the view that each of these proposals, notwithstanding the mother's allegations of the paternal grandmother's abuse of alcohol of which I am not satisfied can be substantiated to the extent that it would be a hindering factor
I am of the view that the involvement of the child with grandparents at each side is desirable. I am mindful of the words of the words of Treyveaux J of the Family Court, now sadly deceased, in the case of Brighton, Brighton, Brighton, Mackley, reported again in 1995, FLC 92570.
His Honour considered the desirability of a child having contact with grandparents in the light of the welfare of that child being of paramount consideration. He said:
“It is very important for children's proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is part of a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family”.
Now the residence proposals of each parent would involve this child having an involvement with all three grandparents, through residence, through contact.
Subsection 68F(2)(c) required the court to consider the likely effect of any changes in the child's circumstances, including the likely effect of separation from a parent or any other child or any other person with whom that child's been living. If, as I said the mother's application were granted and S were to live with her, I am of the view that S would form some sad view of the fact that she was spending a lot less time with her father and it may well be, although there is no strong evidence to this fact, that she would - whilst she would certainly have less time with her paternal grandmother, this may possibly be a factor which S would consider on a negative basis. The evidence doesn't allow the court to speculate any further than that.
It is also important to consider the practical difficulty and expense of a child having contact with a parent. In this case, whilst the parents don't live in the same suburb, that they are in Narellan and Green Valley, there is some distance between them, but it's not as if they're on the other side of Sydney from each other. Indeed, the mother, in her consideration of the welfare of the child, took the view that she should consider the Mt Annan Public School, which is certainly nearer to the father than to the mother, and clearly the mother has considered the question of travel to and from school as part of her daughter's best interests, and whilst travel may be a relatively minor point, if the mother resided where she did and the child went to school at say Berowra or Cowan, the travel to and from school could well be a feature of some negativity for a child residing in school like Bathurst, but clearly the travel involved is not so far from the parents' residences, that going from one residence to another is going to be a hindrance, or not in the child's interest. The court must also consider the capacity of each parent to provide for the needs of the child including emotional and intellectual needs.
Well now, each parent has been observed by the counsellor as having a positive relationship with this child. There has been spontaneous interaction between S with both parents. Mr Goodsell didn't consider one interaction closer than the other. The parents have different styles, but they're different individuals. S was leaving her mother at the time when the counsellor observed her, was that she was clearly upset, she said, "I love you Mummy", nevertheless she settled quickly when her father re-entered the room. Certainly the counsellor was of the view that the child would be comfortable and happy living in either household.
The intellectual needs of the child are, of course, and the emotional needs of the child are matters which are clearly in the forefront of the minds of both parents. Her intellectual needs to some extent are being met by her involvement with the Mt Annan Public School, an involvement which the mother supports and intends to continue. As I said, this is an indication by the mother of her understanding of the need for a child who is making good progress at school to continue to do so without disruption.
The father is reported as making some efforts to teach S to speak German, he being of a German background, and this, to my mind, is not only a positive indication of an intellectual understanding by the father, but also an emotional one. This too is a factor which leads towards a child's feeling of place, place in the world, feeling of roots and that part of her background comes from the German culture. If there's some knowledge of the language there, that can only be a positive step.
I am of the view that the actions and attitudes of the parents show that each one has a capacity to provide for the child's emotional and intellectual needs.
I mentioned earlier subsection 68F(2)(f) about considering the child's maturity, sex and background. Well she's seven years of age, she's a little girl, she has a background where she resides in the Australian community. Her father has considered the fact that he has a German background, he's taken that into account. The father has arranged for his mother to assist him with the care of S, which is very useful as S is a little girl.
The mother, of course, has an involvement similarly, and it's quite clear that an involvement between mother and daughter is most important.

I am of the view that each parent again has a great deal to offer this little girl who is seven and has a mixed background, as she does.
The court must also take into account the need to protect the child from physical or psychological harm, either by being directly subjected or exposed to abuse or treatment, violence or other behaviour or by seeing or hearing another person being subjected or exposed to such ill treatment. It is regrettable that there have been scenes of acrimony within the household. The mother is reported by the father as having made her way into the house and used abusive language to him. The father is reported by the mother as having behaved in a violent and threatening way and indeed, there is an apprehended violence order.
There is no suggestion that either parent has exposed this child to any physical harm or any intentional psychological harm, but I would comment that exposure to domestic violence or abuse is a contra indication as far as a child is concerned and children suffer by observing such circumstances, which causes the court a great deal of concern. The father, at times, is extremely protective, he expressed some concerns in the witness box about the mother allowing S to spend time staying overnight with a friend called Montana, in the home of Montana's father, where there was apparently a New Years Eve party going on. New Years Eve I note is the child's birthday. The father was of the view that he didn't know who Montana's father was, was not therefore certain that he was a suitable person to have some responsibility for the welfare of his daughter overnight. He was critical of the mother for not reassuring him that she knew this man and that he was a fit and proper person.
This indicates a protective attitude by the father, which is to his credit. The evidence, however, satisfies me that the mother has satisfied herself that Montana's father was a suitable person and that she too is alive for the need to protect the child.
The court must take into account the attitude to the child and of the responsibilities of parenthood displayed by each parent. Now, the mother sees the father's history of involvement with illicit drugs or abuse of alcohol, as a contract indication of his ability as a parent in this regard. I have previously commented on the father's involvement in that. One of the things that the mother however takes the view about is that if she plays a greater role in the child's life, either as the resident parent or as a joint resident, this gives her a greater opportunity to monitor the interaction between father and child, so that if there are involvements by the father in abuse of alcohol or of use of illicit drugs, which would affect his capacity as a parent, then the mother would be more aware of it than as, if you like, as a contact parent, to use a phrase.
The family report contains comments by the parents about parenting and the interaction between the parents. At page 2 of the report, the counsellor reports father is saying that his main stated reason for wanting residence was his claim that S strongly wished this to happen. He also mentioned his greater availability in his new house at Mt Annan, because now he lives in rented accommodation. Mr Schallenmueller clearly felt proud of his home and showed a photograph of the place. Mr Schallenmueller did not foresee difficulties with contact, regardless of the residence outcome. In fact, he suggested joint parental responsibility and more contact with Ms Nabi, an indication that he saw no difficulties in the mother/daughter relationship. It is also a indication to my mind of the father's willingness to accept the fact that both parents have a role to play with this child.
Similarly the mother is reported at page 3 of being concerned about the father's, in her mind, lack of proper supervision, she'd notified the Department of Family Services, she talked to the child attending counselling because of some difficulty at school. She discussed her own approach to parenting, and the counsellor reports her as being able to nominate age appropriate behaviour and rules, as well as conveying understanding of the child development issues.
She again referred to the drug and alcohol dependence, although conceding that the father was in fact well meaning and she indicated as a fall back position perhaps, failing full residence for daughter, Ms Nabi told the counsellor, she would ask for shared residence rather than contact, as she considered that to be more in keeping with her daughter's needs.
I have previously referred to family violence and I note there is a current family violence order, an apprehended violence order, which is in force until July of this year. It is in general terms and it doesn't restrict the father to do otherwise than to behave himself, to use the vernacular, and obey the law of New South Wales and not threaten or intimidate or assault the mother. Indeed, the father is in fear that when the mother comes to the home in respect of contact, that he complains that she drives into the drive and makes her way into the house, doesn't wait outside. From his evidence he inferred that he was of the view that the mother's not concerned about him at all.
Court must look at whether it would be preferable to make an order that wouldn't lead to any further litigation between the parties. This may well be a pious hope, but if there is a resolution of the matter which is in S's interest, I am of the view that each parent has the capacity to accept the importance of S's needs and if each parent was satisfied that the orders made were in the child's best interests, although not necessarily the parents wishes, the parents would be less likely or either parent would be less likely to indulge in further litigation. The court also looks at any other relevant fact or circumstance.
It is quite clear that the father's history with illicit drugs is the question mark that hangs over this matter, certainly from the mother's point of view. There is not the evidence which supports the mother's contention that there is a current involvement in illicit drugs by the father. There is no guarantee that he will never re-offend, and I use the term re-offend advisedly, because the administering to oneself of an illicit drug, is an offence in the State of New South Wales and will continue to be so. But the state of the evidence is that the father has been on a methadone program for a number of years under medical supervision, there is some evidence to show that the dosage of that has gradually been reduced. The father has shown he's had the incentive to get off methadone and he appears now to be. I'm of the view that that evidence stands and that's evidence that I can take into account. What then is the appropriate form ?
After consideration of the evidence and all of the factors that I've referred to, I am of the view that this is a case where the court would look at a strict regime of shared residence. It would involve the child remaining at the current school, but the mother has already indicated her understanding of the need for that to happen and, as I said, that is a point in her favour, it's definitely to her credit, even though it will cause her some inconvenience, rather than let the child go to school outside the Green Valley area.
Each parent has in fact referred to shared residence in speaking to the counsellor. The father in fact referred to it again in his oral evidence in his cross-examination, it's a matter that's in his mind and a concept that he appears willing to embrace. He told the counsellor that he was of the view that there was joint parental responsibility would be of assistance, he suggested that this would be a way for the mother to have more contact and, as I said, the counsellor took it as seeing no difficulties on the father's part of the mother/daughter relationship.
The mother referred to this very issue in speaking to the counsellor. She considered that to be more in keeping with the daughter's needs. Certainly gives her the opportunity to monitor S's welfare, her nutrition, he school attendance and, in fact, to gain a better indication as to whether the father is in fact abusing alcohol, which he says he's done in the past or whether if the worst comes to the worst, that he's fallen back into the grip of heroin or another illicit drug.
It must clearly be stated that if the father were to have to resume an involvement with heroin or some other illicit drug of that nature, that this may well be a ground for the court to re-examine the arrangements and the court would certainly have concerns if the father were to slip back into this drug habit that he says that he has now put behind him.
For the reasons contained in the 65 preceding paragraphs, I make the orders set out in the attached schedule.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Scarlett FM

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