Pound and Anor & Fisher and Anor (No. 2)
[2007] FamCA 1527
•6 December 2007
FAMILY COURT OF AUSTRALIA
.
| POUND AND ANOR & FISHER AND ANOR (NO. 2) | [2007] FamCA 1527 |
| FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Best interests |
| Family Law Act 1975 (Cth) |
| APPLICANTS: | Mr & Mrs Pound |
| 1st RESPONDENT: | Ms Fisher |
| 2nd RESPONDENT: | Mr Fisher |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Hearl |
| FILE NUMBER: | SYC | 7767 | of | 2007 |
| DATE JUDGMENT DELIVERED: DATE ORDERS MADE: | 6 December 2007 7 December 2007 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 6 December 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANTS: | Ms Hausman |
| SOLICITOR FOR THE APPLICANTS: | Hugh Byrne |
| SOLICITOR FOR THE 1ST RESPONDENT: | Ms Quirk |
| SOLICITOR FOR THE 2ND RESPONDENT: | Mr Greig |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Hearl |
Orders made 7 december 2007
That pending further order of the Court the children, L (born … January 1998) and J (born … September 1999) (“the children”) live with the maternal grandparents, Mr and Mrs Pound (“the maternal grandparents”).
That Order 1 be implemented by the maternal grandparents collecting the children from the mother’s residence on the afternoon of Sunday, 9 December 2007 by 4.00pm unless otherwise agreed between the parties.
That pending further order of the Court and subject to the mother ensuring that Mr B not be present during the relevant period, the children spend time with the mother:-
3.1from after school on Friday until before school on Monday each alternate weekend during school terms, the first such period to commence as and from Friday, 14 December 2007;
3.2in each other week from after school on Wednesday until before school on Thursday, the first such occasion to be on Wednesday, 12 December 2007 and each alternate week thereafter during school terms;
3.3at such other times as the parties may from time to time agree; and
3.4from 4.00pm on Monday, 24 December 2007 until 2.00pm on Christmas Day, 25 December 2007.
That the time to be spent by the children with the mother pursuant to Order 3.1 shall recommence on the first weekend following the commencement of the 2008 school year and the time to be spent by the children with the mother pursuant to Order 3.2 shall recommence on the second Wednesday of the 2008 school year and such sequence is to apply in each subsequent school term during 2008 and beyond, if appropriate, until such time as final orders are made.
That pending further order of the Court and subject to the mother ensuring that Mr B not be present during the relevant period, the children spend time with the mother as agreed during school holiday periods but in the absence of agreement for blocks of four (4) days with a similar gap between such periods of time.
That the children spend time with the father as agreed and in the absence of agreement as follows:-
6.1for a period of two (2) days in Sydney during the 2007-2008 Christmas school holiday period;
6.2for two (2) weeks during the 2007-2008 Christmas school holiday period in the second half of such holidays on the Gold Coast in Queensland;
6.3for one (1) weekend in each school term on the Gold Coast with the father and the maternal grandparents to share the cost of the children travelling between Sydney and the Gold Coast in Queensland and return.
That pending further order of the Court the children be permitted telephone communication with the parties as follows:-
7.1with the father each Tuesday and Thursday between the hours of 6.00pm and 7.00pm (New South Wales time);
7.2with the mother on any day of the week between the hours of 6.00pm and 7.00pm (New South Wales time) other than on Tuesdays and Thursdays, when the time shall extend to 7.30pm; and
7.3with the maternal grandparents at any time when they are in the care of either the mother or the father.
That in order to facilitate the telephone communication referred to in Order 7 above all of the maternal grandparents, the mother and the father are to provide to each other a landline and, if available, a mobile telephone number at which the children may be contacted and to ensure that, if required, the children are assisted to make any calls whilst in the care of the respective parties and to do all such things as may be necessary to facilitate such communication and, further, each party shall provide the children with privacy during the course of any such telephone communication.
That in the event any telephone number for any of the parties changes then that party shall provide details of any such change to all other parties within twenty-four (24) hours of such change.
That pending further order of the Court the mother be restrained from bringing the children into the presence of Mr B or from allowing the children any telephone or other communication with Mr B.
That pending further order of the Court all parties be restrained from changing the children’s school from M Primary School at H and all parties do all such things as may be necessary to ensure the children continue at that school for the 2008 school year.
That the mother ensure the children’s school clothes, school equipment and an appropriate quantity of other clothing, toys and possessions of the children are provided to the maternal grandparents at the time the children move to reside with the maternal grandparents pursuant to these orders.
That the parties liaise with Ms F of the Family Court of Australia, Counselling Service or the Court expert as appropriate to arrange such counselling for the child, J as may be recommended by Ms F or the Court expert with Unifam, Centacare, Anglicare or such other organisation or person as may be recommended, the cost of such counselling to be paid for by the maternal grandparents.
That these proceedings be referred to the Case Coordinator for allocation to a Judge’s docket for hearing within the Less Adversarial Trial system.
That pending the allocation of this matter to a Judge’s docket any issue arising with respect to these orders may be referred to her Honour Justice Boland with liberty to restore on the giving of twenty four (24) hours notice to all other parties and to the Court.
That the Independent Children’s Lawyer have photocopy access to documents produced under subpoena and, further, that the Independent Children’s Lawyer be at liberty to provide to the legal representatives of the parties copies of such material and the legal representatives are entitled to receive such material on condition that copies are not released to the parties and that no further copies will be made and that the copies of such material will be kept by the legal representatives.
Each of the parties is restrained from the following:-
17.1discussing any aspect of the court proceedings with either of the children;
17.2denigrating any other person being a party to these proceedings including their partners.
IT IS NOTED that the maternal grandparents have indicated that the mother may attend at their home at any reasonable time for the purpose of visiting the children.
IT IS NOTED that publication of this judgment under the pseudonym Pound & Fisher is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 7767 of 2007
| MR & MRS POUND |
Applicants
And
| MS FISHER |
1st Respondent
And
| MR FISHER |
2nd Respondent
EX TEMPORE REASONS FOR JUDGMENT
introduction
On 14 November I dealt with an application filed by Mr Pound and Mrs Pound in which they sought parenting orders in respect of their two grandchildren, L (aged nine nearly 10 years), and J (aged eight years). The application was opposed by Ms Fisher, the children’s mother. On that occasion the mother was not legally represented and had only been recently served with her parents’ application. The children’s father, Mr Fisher, had not received a copy of the application and participated in the hearing by telephone.
I made a number of orders by consent on that day, including an order that restrained the mother from bringing the children into the presence of a gentleman, Mr B, with whom she had previously lived and with who she was re-establishing a relationship. I also delivered ex tempore reasons for judgment which I incorporate into these reasons.
I also made an order for the appointment of an Independent Children’s Lawyer, and Mr Hearl was appointed by the Legal Aid Commission of New South Wales to represent the children.
The matter was listed before me to hear the competing interim parenting applications on 23 November 2007 but was, by consent, adjourned on that day until today.
For convenience in these reasons, when I refer to Mr Pound and Mrs Pound jointly, I will refer to them as “the grandparents”, and when I refer to them individually I will refer to them as the maternal grandfather and maternal grandmother respectively. I will refer to Mr Fisher as “the father” and Ms Fisher as “the mother”.
In her affidavit of evidence-in-chief filed in these proceedings the mother sought a certificate under s 128 of the Evidence Act 1975 (Cth) (“the Evidence Act”) in respect of certain paragraphs of her affidavit. I have requested the mother’s solicitor to identify those paragraphs, and will ask her to provide details of those paragraphs to my associate, so when I take out a certificate they can be readily identified. The mother also sought to rely on an affidavit of Mr B, and Mr B similarly sought a certificate under s 128 of the Evidence Act in respect of certain paragraphs of his affidavit. None of the parties oppose the granting of such certificates.
Taking into account the matters discussed in the Full Court in Ferrell and McTaggart (trustees for the Sapphire Trust) and Ors & Blyton (2000) FLC 93-054 at paragraphs 81 to 93 in the exercise of my discretion, I determined it was appropriate to grant both the mother and Mr B such certificates.
The orders now sought by the grandparents and the mother and the father in respect of the children can be summarised as follows:
a)The grandparents seek interim and final orders that the children live with them and that they spend time with the mother and the father. They also seek interim orders that the mother be restrained from bringing the children into the presence of Mr B and from taking the children outside of the Sydney metropolitan area.
b)The father seeks interim orders that the children live with the maternal grandparents and that they spend time - and this is in his application - including two weeks at Christmas with him and that the mother be restrained from bringing the children into the presence of Mr B. By way of final orders the father seeks that he and the mother have equal shared parental responsibility for the children, that the children live with the father and spend time with the mother. The final orders as sought by the father in his application do not include any order for the children to spend time with the grandparents. Today before me Mr Grieg, the father’s solicitor, has very properly conceded that the father is in a position where he needs to re-establish his relationship with the children. He has also indicated that the father now seeks some time with the children in Sydney at the commencement of the 2007/2008 Christmas holidays, and block contact with the children in Queensland. He is presently enjoying communicating with the children by telephone and he wishes such communication to continue.
c)The mother, in her formal document, seeks interim and final orders that the children live with her and spend time with the grandparents each alternate weekend and for four weeks of the school holidays. She also seeks orders that the children spend four weeks of the school holidays with the father, being two periods in Queensland and two in New South Wales, and that he have telephone contact with the children.
At the commencement of the hearing before me today the mother sought the discharge of the injunction restraining her from bringing the children into the presence of Mr B. However, during the course of the proceedings the mother's solicitor advised she was instructed that the mother would consent to the continuation of an order restraining her from bringing the children into Mr B’s presence.
Background
The maternal grandfather is aged 74 years. His occupation is stated as being business proprietor. In April 2007 he suffered a slight stroke and was hospitalised. He deposes that his health is now good.
The maternal grandmother is aged 71 years. She also describes her occupation as business proprietor, and in the recent past she has suffered from breast cancer. Her current evidence is that her health is also now good.
The grandparents have three adult children of whom the mother is the youngest. The grandparents own a home at C, New South Wales.
The mother was born in January 1970 and she is accordingly aged 37 years.
The father was born in January 1970 and he is also aged 37 years. He resides on the Gold Coast. He deposes to being engaged in part-time work assisting his father run a transport service.
The mother resides in a three-bedroom home at H, New South Wales. She is engaged in full-time home duties. The home, which I will refer to as the H property, is owned by the grandparents.
The mother and father were married in January 1995 and separated in December 2003.
The mother and father have two children who are the subject of these proceedings. L was born in January 1998 and J was born in September 1999. Both children currently attend M School at H. The child L, who suffers from mild autism, is in year three, and the child J is in year two.
In March 2005 the mother and father signed Terms of Settlement finalising financial arrangements on the breakdown of their marriage and making arrangements for the care of the children. Orders were made in accordance with the Terms of Settlement in the Local Court at Kogarah in April 2005. The orders provide for the children to live with the mother and have reasonable contact with the father as agreed between the parents. It is not in dispute that the father has not had substantial contact with the children for some time.
Pursuant to the orders the father transferred his interest in the former matrimonial home at H (“the matrimonial home”) to the mother. The mother retains the matrimonial home, which is subject to a mortgage to GE, and also the loan to the grandparents. The maternal grandfather says he has made all payments in respect of the mortgage, a second mortgage secured by the mother, and council and water rates in respect of the matrimonial home.
The mother deposes to her proposal to sell the matrimonial home. She also deposes to proposing to move out of her present accommodation and obtain rented accommodation. Material filed today puts in dispute some issues over the matrimonial home, but those are really matters for the final hearing and do not involve the issues I need to determine today. The mother lived in the matrimonial home until February 2007, although she spent some time living in rented accommodation at K.
Some time after the mother and father’s separation the mother commenced a relationship with a man who she refers to as N. She does not give his surname in her affidavit material. The mother says that while living with N he introduced her to illicit drugs, and in particular, amphetamines and speed.
In April 2004 the mother deposes to being raped by a friend of N, however she did not report the sexual assault to the police. In the period leading up to May 2005 the mother was convicted of a number of traffic offences.
In May 2005 the mother was arrested for her traffic offences and incarcerated for several days at A Detention Centre. The maternal grandfather arranged for legal representation for the mother and for her to consult a psychiatrist, Dr S. Dr S’ report, which the mother did not dispute was accurate, sets out a history reported by the mother to Dr S which includes a history of depression and the mother’s illicit drug use.
In April 2004 the mother met Mr B. The mother says when she met Mr B she was aware he had a criminal record and that he had been addicted to heroin. She says:
When I met him I understood he was clean and had been on the methadone program.
The mother says when she commenced seeing Mr B she was using speed and continued such use during the relationship. She also deposed to trying heroin a few times but said she was addicted to speed, not heroin. The mother acknowledges that she used speed in conjunction with anti-depressants prescribed by her psychiatrists.
The mother deposes to an incident, which I can only describe as an extremely frightening incident, when she was in the car with Mr B and the child J, and the man she alleges perpetrated the sexual assault on her approached the car, pulled a hand gun and demanded Mr B get out of the car. She also deposed the man made serious threats against her.
In January 2006 an incident occurred while the mother was living with Mr B in the matrimonial home. Mr B was charged with assault and subsequently sentenced to six months’ imprisonment. An apprehended violence order (“AVO”) for the protection of the mother and the children was made in the Local Court at Blacktown for a period of two years commencing on 1 February 2006, which, on my calculations means that the order will expire on 1 February 2008. Notwithstanding the terms of that order, the mother has had Mr B at the H property, and they have resumed their relationship.
The mother made application to the Blacktown Local Court for the discharge of the AVO for the protection both of herself and the children. In her affidavit she deposes to that matter being before the Local Court on 5 December, but today I was advised the matter has been listed for mid December 2007.
On 7 January 2006 while in the police station or its precincts following the assault by Mr B, the mother wrote to members of her family. The mother does not dispute writing the letter but says at the time she wrote the letter she was affected by drugs. The mother does not dispute the accuracy of the letter in respect of the assault on her by Mr B, but says other information in the letter concerning Mr B’s behaviour was fabricated by her to gain her family’s assistance. I will return to this letter later in these reasons.
From February 2006 until April 2007 the children lived with the grandparents at their home at C. The mother saw the children on J’s birthday, on Christmas Day, and on one occasion when the maternal grandfather took the children to a park to see the mother. The grandparents assert the mother did not attempt otherwise to see the children. The mother disputes the grandparents’ assertion and says when she attempted to telephone the children she was prevented by the grandparents from contacting them. The grandparents assumed responsibility for all of the children’s care, financial responsibility for them and transporting them to and from school.
According to the maternal grandfather in February 2007 the mother enrolled in a methadone program. The mother says she commenced on the methadone program in June 2006. She deposes to presently receiving 65 milligrams of methadone and that she is required to have a clean urine sample each week. The mother says her methadone dose has been increased from 50 milligrams to 65 milligrams due to the stress of these proceedings. On instructions from her solicitor I was told that the mother attends the methadone clinic three times per week. This evidence is inconsistent with the report tendered on the mother’s behalf from the T Clinic, which, although undated, refers to the mother having a current dose of 70 milligrams of methadone syrup, and that she has four take-away doses three times a week.
At about the time the mother commenced attending the T Clinic, the grandparents assert they reached agreement with the mother that they would rent a property for her in close proximity to the children’s school, that the children would move back in with her, but with assistance provided to her by the maternal grandfather moving into the house. It was agreed that the mother would not associate with Mr B. The mother concedes such an agreement was reached, but said she did so in order to have the children returned to her and she was unhappy with the agreement.
After approximately two months in the rented property the grandparents purchased the H property. The mother, the maternal grandfather and the children moved into that property. The maternal grandfather remained living in the H property until August 2007 when he suffered a slight stroke. The maternal grandmother provided assistance to the mother during the maternal grandfather’s hospitalisation and convalescence.
As a result of her traffic convictions the mother is disqualified from driving until 2012. The maternal grandfather, during the period he lived in the H property, said the mother walked the children to school and then went to the methadone clinic. The maternal grandfather provided the mother with cabcharge vouchers to facilitate her attendance at the clinic.
During the October 2007 school holidays the children spent time with the grandparents at their home at C and returned to the H property on 15 October 2007.
The maternal grandfather asserts from 15 October 2007 Mr B moved into the H property with the mother and the children.
The mother says she supports the children currently from her Centrelink benefits with some assistance from Mr B and “a great deal of assistance from [the maternal grandfather].” She also receives the minimum child support payment of $26.00 per month from the father.
The mother asserts the children are happy in her care and they have a close relationship with Mr B. Mr B says on his release from gaol he recommenced his relationship with the mother and from October he would go over to the H property two or three times a week. He denies that he and the mother have lived together since his release from incarceration.
Mr B deposes that he was born in July 1981 and he is aged 26 years. He has a child from a previous relationship who is aged five. He does not see the child. He says he moved in with the mother in April 2004.
In paragraph 20 of his affidavit Mr B deposes to his criminal record. He says:
I have a criminal record relating to;
a.Carrying a conveyance – I was sitting in the passenger seat of a stolen car. This occurred when I was about 17 years and I received a bond;
b.Possession of drugs – a small amount of heroin – about $20 worth – 0.03 gram when I was 17 years and I received a fine.
c.When I was 18 years I was charged with 2 robberies, with a dangerous weapon, and detained for advantage. The persons were two people who owed me money. I detained them and made them go to a bank to pay me money they owed me. As a result I was incarcerated for one year in gaol.
d.I had a driving offence whilst I was unlicensed – I received a fine and my license [sic] was disqualified there was also a problem with the car that I purchased and the matching paperwork.
e.The second last incident was the AVO and assault charge relating to the incident specified in January 2006.
f.As a result of those charges I was sentenced with six months gaol but I did.
Mr B also deposes to “a pending case in relation to a break and enter that happened a couple of years ago,” against him. He is presently on bail and is due to stand trial in the District Court of New South Wales in February 2008. He says that he denies the charges against him.
Exhibits in these proceedings
In these proceedings the exhibits have featured very strongly today. In support of her case the mother’s solicitor tendered, without objection, two undated letters from the T Clinic, being the methadone clinic attended by the mother and Mr B. Annexed to the letter are pathology reports of urine screens for the mother and Mr B, dated in Mr B’s case for the period 16 July 2007 to 23 November 2007. Mr B’s address, interestingly, is recorded as at the matrimonial home. His urine test for benzodiazepine on 16 July 2007 was positive. All screens not surprisingly were positive for methadone. The mother’s drug screens are also, as would be expected given her attendance at the methadone clinic, all positive for methadone, but also positive on 15 March 2007, 7 March 2007 and 19 February 2007 for cannaboids.
Much reliance was placed by counsel for the grandparents and also the Independent Children’s Lawyer on records produced under subpoena by the New South Wales Police. Of particular importance in my view is the history in those records disclosing significant domestic violence involving Mr B commencing in December 2005 and culminating with the incident on 23 January 2006. Without going into precise detail, I am satisfied that the police records corroborate, to a large degree, the version of events given by the children to the maternal grandfather of this incident, and also in the mother’s handwritten letter annexed to the maternal grandfather’s affidavit which I referred to earlier in these reasons.
I accept that much of the material in the parties’ affidavits is controversial and I am unable on this interim application to determine such matters. However, I do have regard to, and take into account Mr B’s extensive criminal record from documents produced under subpoena from the NSW Police Service, parts of which include:
Crt Date Court Name Charge Date Charge No
Status Offence Sentence…
09/12/1999 Burwood Local Court 13/10/1999 H 7733932
CV 006 Goods given other not Convicted S80AA Warrant
Entitled reasonably to issue : (SDC 31863)
Suspected stolen
CV 005 Furnish false information/ Convicted S80AA Warrant
Statement to Licensee to issue : (SDC 31863)
CV 002 Receive Stolen Property - Convicted S80AA Warrant
Theft – Misdemeanour to issue :
<=$2000-T2
CV 001 Goods in Personal Custody Convicted S80AA Warrant
Reasonably suspected being to issue :
Stolen
CV Possess Prohibited Drug Convicted S80AA Warrant
(2 counts) to issue :31/07/2000 Burwood Local Court 24/02/2000 H 10054498
CV 001 Possess prohibited drug - Convicted S80AA Warrant
33737391 (First Instance to issue : (SDC 31863)
Warrant – 33737391)
…03/11/2000 Sydney District Court …/12/1999 H 8064395
CV 001 Assault with intent to rob Imprisonment : 3 years
armed with offensive commencing 06/04/2000
weapon-S1 concluding 05/04/2003 non
parole period with
conditions : 1 year
commencing 06/04/2000
concluding 05/04/2001
release subject to supv drug
and alcohol psychological
counselling and/or treatment
(DC 344306) court case
reference no 00/11/0691
CV 004 Robbery while armed with Imprisonment : 3 years
dangerous weapon-S1 commencing 06/04/2000
concluding 05/04/2003 non
parole period with
conditions : 1 year
commencing 06/05/2000
concluding 05/04/2001
release subject to supv drug
and alcohol psychological
counselling and/or
treatment (DC 344306) court
case reference number
00/11/069101/12/2000 Central Local Court 29/08/1999 H 7521738
CV 001 Possess Prohibited Drug Imprisonment : 1 Month
commencing 06/04/2000
(DTBD) (LC 30730)01/12/2000 Central Local Court 31/07/2000 H 10850655
…
CV 003 Possn Proh Drug (First Imprisonment : 1 month
Instance Warrant - commencing 06/04/200034061274) (DTBD)
CV 004 Possn Proh Drug (First Imprisonment : 1 month
Instance Warrant - commencing 06/04/200034061320) (DTBD)
CV 001 Steal property in dwelling- Imprisonment : 6 months
House <=$2000-T2 commencing 06/04/2000
CV 002 Goods in custody of other Imprisonment : 6 months
reasonably suspected commencing 06/04/2000
stolen
CV 006 Unlawfully obtained goods Imprisonment : 6 months
(first instance warrant - commencing 06/04/2000
34061293)
CV 007 Unlawfully obtained goods Imprisonment : 6 months
(first instance warrant - commencing 06/06/200034061303)
CV 008 Attempt to dispose of Imprisonment : 6 months
stolen goods (first instance commencing 06/04/2000
warrant – 34 0 61311)31/01/2002 Newtown Local Court 31/08/2001 H 12725813
…
EV 004 Possess Prohibited Drug Imprisonment : 1 month
Commencing 01/11/200116/08/2004 Blacktown Local Court 19/07/2004 H 21590303
…
EV 002 Goods in personal custody Convicted S25(2) Warrant
suspected being stolen to issue :
(Not M/V)
EV 001 Goods in personal custody Convicted S25(2) Warrant
suspected being stolen to issue :
(Not M/V)…
01/03/2005 Blacktown Local Court 19/07/2004 H 21590303
EV 002 Goods in personal custody Bond S9 : 2 years supv
suspected being stolen NSW Prob Service drug
counselling
EV 001 Goods in personal custody Bond S9 : 2 years supv
suspected being stolen NSW Prob Service drug
counselling
…20/03/2006 Blacktown Local Court 22/01/2005 H 23144369
CV 002 Goods in personal custody (Call up) Imprisonment :
suspected being stolen 6 months commencing
(Not M/V) 19/03/2006 (EECO 3181)22/06/2006 Blacktown Local Court 19/07/2004 H 21590303
CV 002 Goods in personal custody (Call up) Imprisonment :
suspected being stolen 6 months commencing
(Not M/V) 19/03/2006 (EECO 3181)CV 001 Goods in personal custody (Call up) Imprisonment :
suspected being stolen 6 months commencing
(Not M/V) 19/03/2006 (EECO 3181)22/06/2006 Blacktown Local Court 19/03/2006 H 51672001
EV 002 Maliciously destroy or Imprisonment : 3 months
damage property commencing 19/03/2006
EV 003 Contravene apprehended Imprisonment: 3 months
domestic violence order commencing 19/03/2006
EV 004 Common assault-T2 Imprisonment : 6 months
Commencing 19/03/200622/06/2006 Blacktown Local Court 20/03/2006 H 26199510
EV 001 Maliciously destroy or Imprisonment : 3 months
damage property commencing 19/03/2006
<=$2000-T2
(Exhibit “B”)
Relevant law
The application before me, as I have already indicated, is an interim application. Such applications are truncated applications heard on the papers and without testing of evidence. They are necessarily abridged and Judges have a difficult task of trying to endeavour what is in the best interests of children on limited evidence. They are proceedings brought under Pt VII of the Family Law Act 1975 (Cth). That part was substantially amended by the Family Law Amendment (Shared Parental Responsibility) Act (2006) (Cth). The Act does not distinguish between interim and final parenting orders.
In my reasons for judgment delivered on 13 November 2007 I set out the provisions of the Act as to who may apply for a parenting order. The relevant section contemplates an order can be brought by parents and any other person interested in the welfare of the children. I also set out the objects and principles of the Act and I incorporate into these reasons those parts of my judgment dealing with the relevant law.
Section 64B(2) provides that a parenting order may “deal with one or more of the following”:
(2) A parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
(d) if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e) the communication a child is to have with another person or other persons;
(f) maintenance of a child;
(g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
(h) the process to be used for resolving disputes about the terms or operation of the order;
(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).
Note: Paragraph (f)--a parenting order cannot deal with the maintenance of a child if the Child Support (Assessment) Act 1989 applies.
Section 64B(3) provides as follows:
(3) Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long‑term issues in relation to the child.
The most significant matter, however, of course, is that in making a parenting order the Court must regard the child’s best interests as the paramount consideration. That provision is contained in s 60CA of the Act. In determining what is in a child’s best interests the Court must have regard to matters in s 60CC, including primary considerations (s 60CC(2)) and additional considerations (s 60CC(3)).
In making a parenting order the Court must apply a presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility for the child (s 61DA). Section 61DA(2) provides, however, that in certain circumstances the presumption does not apply.
In this particular case there is no evidence before me that would rebut the presumption in relation to the mother and the father, but the focus of this case, somewhat unusually, is between essentially the maternal grandparents and the mother.
As noted in Goode & Goode (2006) FLC 93-286 at paragraph 13, the relevance of the presumption, if applied, is that it triggers the application of s 65DAA. That section says the Court must consider the child spending equal or substantial or significant time with each of the parents in certain circumstances.
Section 61DA(3) provides that the Court may, in appropriate interim parenting cases, not have regard to the presumption of equal shared parental responsibility. In Goode the Full Court sold the section is not to be interpreted in a broad exclusionary manner.
I am satisfied, however, in this case, that it is appropriate for me in the unusual circumstances of the case not to have regard to the presumption of equal shared parental responsibility as between the mother and father, and in these reasons I will say nothing further about the presumption, or it triggering s 65DAA.
What is relevant, though, is how the Full Court says an interim parenting application ought to be determined, and that is set out at paragraphs 81 and 82 Goode which is in the following terms:
81.In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82.In an interim case that would involve the following:
(a)identifying the competing proposals of the parties;
(b)identifying the issues in dispute in the interim hearing;
(c)identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Discussion
As I have already indicated, this case has some unusual features in that it involves both the children’s parents and the maternal grandparents. It was brought to the Court on short notice on an urgent basis.
Mr Hearl, who now represents the children, in his most helpful submissions to me, indicated that in this application the real focus is on the risk to the children that they will be exposed to abuse if they remain in the mother’s care, including psychological abuse, because of the ongoing potentially abusive relationship between the mother and Mr B. He balanced that consideration (and noted how finely balanced it was) having regard in particular to J’s needs, and the effect any separation from the mother would have on J.
In Goode the Court said that a Judge dealing with one of these applications should look at firstly the matters which are not controversial. So far as I can determine those matters include, and so far as I have set these matters out already, they can be considered the uncontroverted facts:
·each parties’ age and occupation;
·the relevant dates of separation of the mother and father and the orders made to finalise their property and parenting issues;
·the mother’s addiction to drugs, including amphetamines, and some heroin use, commencing in at least April 2004 and continuing at least until 2006;
·the mother’s traffic convictions and loss of her licence until 2012;
·Mr B’s criminal record and the pending charges against him;
·Mr B’s assault on the mother in January 2006 and the fact that he was sentenced to six months’ imprisonment;
·that an AVO was granted for the protection of the mother and the children against Mr B in February 2006 for a period of two years;
·that the mother and Mr B are each on a methadone program;
·the present housing arrangements for the mother, her ownership of the matrimonial home and the grandparents’ ownership of the H property and the C home;
·that the children lived with the grandparents from February 2006 to April 2007 and that the maternal grandfather lived with the mother from April 2007 until August 2007 when he suffered a mild stroke;
·that there was an agreement between the mother grandparents made in about February 2007 that the children would be returned to her if she accepted support and assistance from the grandparents and did not resume her relationship with Mr B;
·that the child L suffers mild autism;
·that the mother has recommenced her relationship with Mr B;
·that the mother did seek the lifting of the injunction made on 14 November 2007 restraining Mr B coming into the presence of the children but now would consent to such an injunction remaining in force;
·and that the AVO for the protection of the mother and the children has not yet been dismissed, although the mother proposes to have it dismissed so far as it relates to herself.
As I have already noted, there are a number of undisputed matters which I cannot resolve on this interim application.
The matters that I think are of significance and that I must take into account are first, that the children have been exposed to significant violence in the care of the mother. The police report in relation to the incident on 23 January 2006 shows that the children were present in the house, were taken by the mother to the bedroom and were sitting in the bedroom with the mother; that Mr B made a large hole in the bedroom door and confronted the mother; that the mother told the children to stay in the room and she walked into the kitchen area and was followed by Mr B. The mother was near the hallway and Mr B approached her with a black-brown walking stick with a red dragon picture. Mr B held this in his right hand and confronted the mother, the mother and Mr B were in a struggle and the mother was hit with the walking stick. She ran into the bedroom and closed the door and armed herself with a baseball bat and was physically assaulted. Ambulance officers attended and checked her injuries. She declined to be taken to hospital.
As Mr Hearl carefully pointed out, the police records also disclose from 2005 a serious history of the mother calling police for assistance and obtaining an interim apprehended violence order against Mr B. Those included incidents on 21 December 2005, 25 December 2005 and 29 December 2005. Those incidents were some time ago but they demonstrate a very abusive relationship between the mother and Mr B. Neither the mother nor Mr B have, in my view, really acknowledged the seriousness of the abusive relationship, and in fact it appears to me their affidavit material appears to downplay those aspects of their relationship.
Secondly, the police records indicate that the mother and Mr B are still, in the vicinity of the methadone clinic, exposed to a drug milieu, and it also of concern particularly as the children attend the methadone clinic, or have attended the methadone clinic with the mother.
Thirdly, the mother’s period of asserted drug rehabilitation is of short duration and is untested. The urine screens tendered in the exhibit cast some doubts about the reliability of her evidence and that of Mr B. At least, there is some recent cannaboid use by the mother and benzodiazepine use by Mr B.
I am very conscious of the primary considerations set out in s 60CC(2), namely that is the need to enable the children to maintain a meaningful relationship with the mother and father. That meaningful relationship, though, must be one where the children are not exposed to, or potentially exposed, to a risk of abuse.
There is no evidence before me on this interim application of the views of the children that I can take into account. I have absolutely no doubt that the mother dearly loves L and J, and that she is anxious to maintain her care of them. I accept from the psychiatrist’s report she has had a tragic and difficult history of depression, and the most unfortunate drug use. I have much sympathy with her position in endeavouring to overcome an illicit drug habit.
I am also satisfied that the maternal grandparents have been - and I use the word advisedly - sterling grandparents. At an age when they ought to be able to enjoy their grandchildren they have taken on an enormous responsibility. They have shouldered financial responsibility for these children, and provided a most protective environment for them. They have given of their time unstintingly in the children’s best interests. I have no doubt that in their care the children would be completely safe and would be well looked after. I have some concern about their ability to continue to do so on a long-term basis, simply having regard to their respective ages and state of health, and the age and demands of, active young children. I also have regard to the fact that for anyone having a child with a mildly autistic disability there is an added burden. I commend them for the efforts they have made in respect of these children.
I think it is a great tragedy that the father has not been able to maintain a meaningful relationship with the children. I am satisfied the sort of orders that he seeks are sensible ones, and will enable him to re-establish a most important relationship in the children’s lives. If anything comes out of these proceedings, if it is the re-establishment of that relationship then there is something positive and good.
I have taken into account very much the needs of J and her relationship with her mother. The relationship of each of the children with their mother is a most important one. She has been substantially involved with their lives. To her credit too, I accept that after the assault she realised she had serious disabilities, that she was unable to care for the children properly and she consented to them living with the grandparents at that time. That, to me, shows some insight by her into the needs of the children.
I also take into account her frank admissions in her affidavit material of her drug use, that the children did not receive the level of care by her at periods of time that they should have, and it may be at the end of the day, at a final hearing, when all the evidence is tested, she will be shown to have been on the path to and continued her rehabilitation program and be an appropriate parent to resume the full-time care of the children.
It seems to me, however, at the moment there are some matters that swing the balance in favour of leaving the children with the grandparents. Those matters include the mother’s lack of perception about the destructive nature of her relationship with Mr B, the inappropriateness of having the AVO removed initially both in respect of herself and the children, and her emotional and some financial dependence on Mr B particularly as I have some real doubts about Mr B’s present drug use, based on the police records and his drug screens, and because of his impending criminal trial.
I am satisfied on this interim application that the mother’s emotional fragility demonstrates that she has made poor decisions in the past, and may make poor decisions until she can sort out her priorities, her relationship with Mr B, and the need for the children to be protected from potential abuse.
Conclusion
In this finely balanced case, I am satisfied it is appropriate for the children to live on an interim basis with the grandparents, and have regular and frequent time with the mother in the absence of Mr B and also time with the father.
I have not, in the limited period of time I have had available, been able to craft orders with the particularity that I would like. I propose to give some indication of the orders that would reflect my reasons for judgment.
I am satisfied there needs to be some arrangement for the mother to have time with the children for Christmas, now, I have indicated 4.00pm Christmas Eve till 2.00pm Christmas Day. Often families have arrangements and they would want something else and that might not fit, but what I am suggesting is there needs to be a Christmas period for the children with the mother. Given the ages of the children, I think they would probably like to be with their mother to open their presents on Christmas morning.
So far as the father’s holiday contact is concerned, during the forthcoming school holiday periods it could either be as agreed between the grandparents or what is proposed by the father. He should have some time with the children in December and continue the telephone contact. If that cannot be agreed, I would provide the telephone contact two nights a week, Tuesdays and Thursdays, between 6.00pm and 7.00pm New South Wales time, not Queensland time.
Because of the matters raised by Mr Hearl about his concerns about J, that he should consult with the Director, Child Dispute Services, Ms F or Associate Professor Q to arrange for individual counselling with a counselling from an accredited organisation, such as Centacare, Anglicare or Unifam for J, it such counselling recommended by Ms F and/or Associate Professor Q. The counselling is to be paid for by the maternal grandparents.
I would propose some block periods of contact with the mother during the school holidays, and what I would envisage is that that would be reasonably short periods of time, periods of three to four days with the mother and then the children coming back to the grandparents.
The orders must commence in an orderly way for the children. The children should not be distressed by suggesting these orders need to come into effect tonight. There is still an injunction in place and the mother is on notice now of the requirement to comply with that order.
I propose an order requesting the Case Co-ordinator to allocate this matter to a Judges docket as soon as possible and until that happens I am in the Sydney Registry until 21 December and, if necessary, the matter can be listed before me on 24 hours notice to my associate until it is allocated into the docket.
I am balancing here what Mr Hearl had to say to me and I have decided that it would be less traumatic for J to have some overnight time with her mother and to have some degree of normalcy. I am trying to look to the future in this matter. I am trying not to look just at what is happening today. There is a very long way to go for these children. From everything I have heard on the three occasions this matter has been before me from the maternal grandparents, I am satisfied if they were satisfied that the mother was on a rehabilitation course these proceedings may not go to a final hearing, and that what they had been and are wanting to do is to minimise their involvement and maximise the mother’s involvement, provided that is safe for the children.
On balance, it seems to me a regime where J and L, are moving between houses and having some overnight contact, gives the mother an opportunity to sort out in her life, including where she is going with Mr B. So I think the balance of one overnight per week, plus the three nights on the weekend with the mother, and the remainder with the grandparents is about the right balance.
I certify that the preceding eighty one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland
Associate:
Date: 7 December 2007
Key Legal Topics
Areas of Law
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Civil Procedure
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Administrative Law
Legal Concepts
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Judicial Review
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Standing
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Procedural Fairness
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Abuse of Process
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Costs
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