Percy and Denzel (No 2)

[2010] FamCA 1251

FAMILY COURT OF AUSTRALIA

PERCY & DENZEL (NO. 2) [2010] FamCA 1251

FAMILY LAW – CHILDREN – Best interests of the child – Final orders – Where the mother has a history of alcoholism which has now receded – Where the mother is now dependent on opioids for the treatment of an injury – Whether there is an unacceptable risk to the child in spending time with the mother unsupervised – Where there is much conflict between the parties

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(1), 60CC(2), 60CC(3)

McCall & Clark (2009) FLC 93-405

APPLICANT: Mr Percy

RESPONDENT: Ms Denzel

INDEPENDENT CHILDREN’S LAWYER: Jeanine Lloyd, Jeanine Lloyd & Associates

FILE NUMBER: CAF 183 of 2006

DATE DELIVERED: 15 December 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 13 – 15 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Godstchalk

SOLICITOR FOR THE APPLICANT: Gordon Garling Moffitt Lawyers

THE RESPONDENT: Self-represented litigant

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms J. Lloyd

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Jeanine Lloyd & Associates

Orders

IT IS ORDERED THAT:

1. The father of K, born … November 2003 (“the child”), will have sole parental responsibility for the child with the following qualifications: that the father will inform the mother, Ms Denzel, about:

   a.   All serious medical issues relating to the child;

   b.   The names of the child’s medical practitioners and any other practitioners of a similar sort, be they dental practitioners or psychologists upon whom the child may be attending;

   c.   Details about the child’s schooling including any information about the child’s progress.  (However such a requirement will be satisfied by the father’s authorising any school that the child attends to provide information to the mother at her own expense); and

   d.   Any major events in the child’s life including important visits either by the child or to the child and about the child’s activities.

2. The father will authorise and direct the following people to provide information to the mother upon her request;

   a.   The child’s school, his school teachers and any counsellor at the school (in the last-mentioned case subject to normal professional confidentiality); and

   b.   The child’s doctors, dentists, therapists or other medical or allied professionals including information about his treatment, his diagnosis and his prognosis from time to time.

3. Notwithstanding these Orders the father will have the right to make decisions about the child’s long term care, welfare and development.

4. The child will primarily live with his father.

5. The child will spend time with his mother as follows;

   a.   On the last weekend of each month for a period of two hours at the Inter-relate Family Centre either on Saturday or Sunday as may be arranged between the parents.  Such time may occur on any other weekend by arrangement between the parents and with Inter-relate if they so agree;

   b.   The mother may file an Application to vary the requirements of that Order and any other Orders that follow in these Orders about the time that she will spend with the child but may not do so before 25 November 2012.  I NOTE that at that time the child will be nine years old.  However, if so filing the mother must, on filing the Application, at that time, also file an Affidavit and/or provide other evidence demonstrating that she has complied with the recommendations of Professor S in his most recent reports.  A copy of those recommendations is annexed to these Orders.  I NOTE in relation to these recommendations and in particular to recommendation number two that the mother will seek to be totally abstinent from opiate drugs rather than her taking a longer-acting maintenance opioid (as was the alternative recommendation).

6. The child may also spend time, by arrangement with his father, with his maternal grandmother at her home in New South Wales.  During such periods the child’s mother may also be present but if she is so present the time spent will be for two hours only unless the parents otherwise agree.  The frequency of such visits of the child to his maternal grandmother will be not greater than once per month, unless the parents otherwise agree.

7. The father will arrange for the child to have some time not exceeding two hours with his maternal grandmother and with his mother if she is able to be there at the grandmother’s house on Christmas Day each year.

8. The child’s mother may attend any of the child’s school functions other than parent‑teacher interviews. 

   a.   The mother may arrange for a separate parent-teacher interview with the child’s teachers and attend such interview;

   b.   A copy of these Orders may be given to the child’s existing school teachers and any new teacher that he may have from time to time; and

   c.   The mother being and is hereby restrained from removing the child from the school or from any place at which any school function that she is attending is held.

9. Neither of the parents will say in the presence of the child, nor will permit any other person to say in the presence of the child any unkind, unpleasant or critical things about the other parent.

10. In relation to the existing costs Order of $600.00 ordered to be paid by the child’s mother to the child’s father in earlier proceedings, I direct that that sum will be paid by monthly instalments of $100.00 the first of which is to be paid on 15^th January 2011 and $100.00 each month thereafter.

11. The matter is removed from the Pending Cases List.

12. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.  Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.

IT IS NOTED that publication of this judgment under the pseudonym Percy & Denzel is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 183 of 2006

MR PERCY

Applicant

And

MS DENZEL

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By way of introduction, before I indicate the orders I am making, I say and confirm that in coming to the conclusions I have been guided by the Principles and Objects for Part VII of the Family Law Act1975 (Cth) (‘the Act’) relating to children matters (s 60B refers). In accordance with s 60CA of the Act, I place the best interests of K as the paramount consideration in the orders I propose to make.

2. In this matter, my Reasons for Judgment are these.  I have a great deal of sympathy for the mother.  She is a person who has suffered from a serious addiction to alcohol in the past.  This is a matter that is acknowledged by her and by a number of other people.  Sadly, that addiction has been replaced in part by an opioid addiction, or an addiction to opioid products.  I emphasise that this is not on the basis that she is injecting heroin or taking heroin or taking any other similar drug, but rather that this is a result of her taking prescribed medicines to alleviate her back pain.  In this context, she is, I am satisfied, doing what she can at present to reduce her dependence upon Oxycontin, and is taking steps to overcome her addiction.

3. I am, however, satisfied on the evidence from Professor S that the mother exhibits and continues to exhibit symptoms which indicate that there is still a serious dependence and one which can only satisfactorily be said to have been eliminated when Professor S’s recommendations have been complied with and a reasonable period of time has elapsed. 

4. I note that Professor S’s indication of what would be a reasonable time in this context is three years.  I am conscious of the fact that the order I have made, which would enable the mother to reapply to this Court to vary the orders about the time she spends with the child is two years.  I made the order for an earlier period to enable (a) her to demonstrate at an earlier period that she has, in fact, overcome her addiction, and (b) if there is a contest about whether or not this has occurred to ensure that contest will be completed by the time the child turns 10 years old.

5. I should indicate also by way of a preliminary comment to my Reasons for Judgment that I am satisfied that in general terms, the evidence given by the father and by his mother, for that matter, has been truthful.  I say this contrary to the obvious belief and the submissions from the mother that is not the case.  In situations where there is a dispute in the evidence between what the father says happens and what might otherwise be suggested to have happened, I accept the father’s evidence in these proceedings.  Such a finding does not extend to other proceedings, nor does it extend to matters or proceedings that may have been before the Court in the past.  Otherwise, where in my judgment I otherwise indicate that something is a fact, it constitutes, on my part, a finding of fact that that is the case (if such a finding may be necessary).

6. Under the terms of the Act, I am obliged to put the child’s interests as my paramount consideration.[1]  In this regard, I note that the mother has suggested that the child would never be in any danger if he is with her.  I should perhaps say that I accept that that would certainly be her intention.  I am not, however, on the evidence I have before me, including the mother’s demeanour in Court and also the evidence of Professor S, and to some extent, the evidence of what happened under supervision at the Interrelate Centre, satisfied that there would not be some difficulties for the child if he were with his mother at present.

   [1] Family Law Act 1975 (Cth) s 60CA.

Parental Responsibility

1. The Court is obliged in considering matters under Part VII to operate on the presumption under s 61DA(1) of the Act that there should be equal shared parental responsibility for the child. That presumption is capable of being rebutted and is rebutted in certain circumstances, which are not applicable here. It is, however, open to the Court in accordance with s 61DA(4) to be satisfied that the presumption is rebutted on the basis that it would not be in the child’s best interests. In this matter, as is apparent from the orders I have made, I do not believe it would be in the child’s best interests for there to be equal shared parental responsibility.

2. The communication between the father and the mother is almost non-existent.  The ability on the part of the two of them to agree on almost anything in relation to the child is difficult.  They are separated geographically, which means that it is also physically difficult for them to be able to consult personally, that is, assuming that they were capable of doing so in a way that would be of benefit to the child.  In such circumstances, it is important that one of the child’s parents should have the responsibility and the authority to make decisions which would be in his best interests, for the long term and on a day-to-day basis.  And in this regard, that person at the moment should be the child’s father, and that is the order that I have made.

3. As a consequence of my not making an order for equal shared parental responsibility, I am not obliged to necessarily consider the question of whether the child should spend equal time with his parents or substantial and significant time with his parents in accordance with s 65DAA of the Act. Nevertheless, it is important, in determining what it is in the child’s best interests that I should, where I am able to do so, make determinations that would ensure that the time he does spend with his mother is, in the circumstances, meaningful and significant.

The bests interests of the child: the primary and additional considerations

1. I turn, then, to the issues set out in the Act which I am to take into account in deciding what is in the child’s best interests. Section 60CC sets out a number of these matters in two categories. There are two primary considerations[2] which I am obliged[3] to take into account. Section 60CC(2) relevantly provides that these are:

   (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

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

   [2] Family Law Act 1975 (Cth) s 60CC(2).

   [3] Family Law Act 1975 (Cth) s 60CC(1).

2. I believe, in these circumstances, that, for the reasons I have indicated above, although I do not believe that the mother would ever intentionally harm K, that there is some risk for him at present, a risk which is unacceptable, for her to have unsupervised time with the child.  I, however, accept that it is important that the child continues to have a proper and meaningful relationship with his mother, to the extent that that is possible in the circumstances which presently prevail. 

3. “Meaningful relationship” means different things to different people, and is not aligned exclusively with the amount of time that a child might spend with the parent, but includes the way in which the child can relate to the parent (see generally McCall & Clark (2009) FLC 93-405). In some circumstances, a meaningful relationship may, as in this case, only be capable of being constituted by very limited time for the child with the parent.

4. The other considerations I am to take into account are the views[4] expressed by the child that I think are relevant and the weight to be given to them.  I acknowledge that in this instance, at his young age, K’s views are unlikely to be determinative of any process between his parents.  Equally, he should not be placed in a situation where he is the “meat in the sandwich” between the disputes of his parents as to where he should live and the time he should spend with each of them.  So far as I can reasonable determine from the evidence before me, including the report in the Interrelate diaries, it seems that the child enjoys the time with his mother.  I am satisfied from the evidence of the father and his mother that the child has a good and comfortable relationship with his father, and is comfortable in living where he is.

   [4] Family Law Act 1975 (Cth) s 60CC(3)(a).

5. I am directed to look at the nature of the relationship with the child with each of his parents and with any other persons. [5]  K’s relationship with his father, I have already commented upon.  I am satisfied on the evidence before me, (which I accept,) that he has a good relationship with his father and with his paternal grandmother and his grandfather.  So far as his maternal grandmother is concerned, I expect that he will have a good relationship with her, and it is important that people in the mother’s extended family should be part of the child’s life.  Accordingly I will make orders that I have about the time he will spend with the maternal grandmother, notwithstanding that there was no evidence from her in these proceedings, as one might have expected there could have been.  It would have certainly been of some assistance to me.

   [5] Family Law Act 1975 (Cth) s 60CC(3)(b).

6. So far as the child’s relationship with his mother is concerned, I do not doubt for a moment that it is a loving relationship.  It is a relationship which must be preserved, even though it must be limited by the physical circumstances and the medical requirements of the mother.  Much has been made in the course of these proceedings by the mother about what she asserts is the unwillingness and the inability of the father to facilitate and encourage a close and continuing relationship between the child and the mother.[6]  I indicated before that where there was a conflict of evidence about these matters, I would in general terms accept the evidence of the father.  In this regard, I do accept his evidence on this matter.  I note also the evidence his mother, which, interestingly, was corroborative of many of the things the father said, notwithstanding that in some cases, the questions directed to him by the mother came out of what might be popularly known as “left-field”, and would not have been matters that they would reasonably have conferred about before they came to Court or prepared evidence so that it was coincidental.  I regarded their evidence as being properly corroborative of each other and honestly given.

   [6] Family Law Act 1975 (Cth) s 60CC(3)(c).

7. I accept that the father does and continues to desire that the child should have a proper relationship with his mother – subject only to the child’s best interests and welfare. 

8. So far as the mother is concerned, it is difficult in some respects to determine whether she is willing to facilitate a relationship between the child and the father or not.  That consideration is not as important in the light of the orders I am making, but as a reason for the orders, I am concerned that the mother still has insisted during these proceedings on going through matters that have long since ceased to be relevant to the day-to-day activities of the child.  I accept that as a self-represented litigant, her task is difficult.  I accept that it is difficult for her to necessarily determine those things which are directly relevant to the proceedings before the Court.  But nevertheless, the attitude that was expressed by her in the sorts of questions she asked was not consistent with the child’s best interests.

9. The orders proposed by the mother were that the child would live with her and spend time with the father. This would represent a major change in the child’s circumstances,[7] and one which, in my opinion, would not operate in his best interests. In this regard, the change would be a significant difference from the child’s present life in which he receives the support and benefit and love and affection from his father and grandparents in settled circumstances, where he has been for most of his young life. That would also be a reason for making the orders that I have made.

   [7] Family Law Act 1975 (Cth) s 60CC(3)(d).

10. There are difficulties in the child’s spending time with and communicating with his mother.[8]  This is a matter of degree.  This situation has been improving.  It has improved in recent times, although the ability of the parents to communicate is limited.  I hope that will improve but it may not.  In either event, there is nothing much I can do about that in these orders.  I note that there is an avenue of communication opened by the orders and by the willingness of the parents to participate through the mother’s mother.  I hope that everyone will take advantage of that to develop a proper web of communication for the child.

    [8] Family Law Act 1975 (Cth) s 60CC(3)(e).

11. The capacity of each of the child’s parents and other people to provide for his needs, including his emotional and intellectual needs,[9] at the moment are best covered by the observation that the child’s father and grandmother provide those things on a day-to-day basis in an appropriate way.  I do not doubt that the child would derive benefit from being able to have more time with his mother, both emotionally and intellectually.  Nevertheless, for reasons that I have otherwise indicated, this is not possible at the present point. 

    [9] Family Law Act 1975 (Cth) s 60CC(3)(f).

12. The attitude to the child, and to the responsibilities of parenthood,[10] as demonstrated by each of the parents, has adequately been already covered by what I have said above.  I do not doubt the commitment of the mother to doing what she believes to be best for the child.  I do, however, doubt her ability at present to understand what are effectively the proper responsibilities of parenthood she, in her circumstances, must exercise.  I am not satisfied that she has the capacity at present to develop an attitude which puts others ahead of herself in her calculations in relation to the child’s best interests.

    [10] Family Law Act 1975 (Cth) s 60CC(3)(i).

1. There are no matters of family violence which bear upon the orders I am making at this point.[11] 

   [11] Family Law Act 1975 (Cth) s 60CC(3)(j) & (k) refers.

2. While I am asked under the Act to make orders on the basis that it would be preferable that there would be no further proceedings about the child,[12] it is only with some optimism and hope, rather than expectation, that I could make any orders at this point. 

   [12] Family Law Act 1975 (Cth) s 60CC(3)(l).

Conclusion

1. Accordingly, for those reasons, it seems to me that the orders that I have made are appropriate, and are in the child’s best interests. 

2. The matter is otherwise finalised.

Costs

1. There was a foreshadowed application for costs. If it were in the father’s mind to make an application for costs, this is not a matter in which I would likely consider it to be appropriate for there to be an order for costs. While I will consider any application, it seems to me that unless there were some circumstances which, for various reasons, have not been able to be put in evidence, there is nothing which presently would displace the primary presumption under s 117 of the Act.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on Wednesday, 15 December 2010.

Senior Legal Associate:

Date: 4 February 2011