Rafael and Palko
[2011] FMCAfam 189
•3 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAFAEL & PALKO | [2011] FMCAfam 189 |
| FAMILY LAW – Children – Parenting Orders – Interim Orders – best interests of the child – parental responsibility – equal shared parental responsibility – risk of harm to child – whether child should spend equal time with each parent – whether child should spend substantial and significant time with each parent – child aged three years and one month – child living with the father – alcohol issues – whether child’s interests should be independently represented – Independent Children’s Lawyer – appointment of Independent Children’s Lawyer. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 61DB, 65DAA, 68L |
| Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 L v T (1999) 25 Fam LR 590; FLC 92-031; [1999] FamCA 1699 Re K (1994) 17 Fam LR 537; FLC 92-461 |
| Applicant: | MS RAFAEL |
| Respondent: | MR PALKO |
| File Number: | SYC 7328 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 March 2011 |
| Date of Last Submission: | 1 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 3 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Hausman |
| Solicitors for the Applicant: | Wilshire Webb Staunton Beattie |
| Counsel for the Respondent: | Mr Mikalic |
| Solicitors for the Respondent: | Collins & Thompson |
ORDERS UNTIL FURTHER ORDER
That the Applicant Mother and the Respondent Father have equal shared parental responsibility for the child [X] born [in] 2008.
That the child [X] shall live with the Father.
That the child [X] is to spend time with the Mother:
(a)From after pre-school on Tuesday until the commencement of preschool on Friday in each week;
(b)From 5:00pm on the day before Mothers’ Day until 5:00pm on Mothers’ Day;
(c)From 5:00pm on Christmas Eve until 1:00 pm on Christmas Day;
(d)For a period of not less than four hours on the Mother’s birthday if that day does not fall on a day when the child would be spending time with the Mother in accordance with Order (3)(a); and
(e)For a period of not less than four hours on the child’s birthday if that day does not fall on a day when the child would be spending time with the Mother in accordance with Order (3)(a).
Order (3) above is subject to the following conditions:
(a)That the Mother shall continue to reside with her parents Ms R and Mr R at [address omitted], [S] in the State of New South Wales;
(b)That the Mother must not consume any alcohol at any time when the child [X] is spending time with her or for twelve (12) hours beforehand; and
(c)That the Mother must submit to pathological testing to determine the presence of alcohol in her bloodstream on one occasion in each week and provide a copy of the test results to the Father’s solicitors and to the Independent Children’s Lawyer when appointed within three (3) working days of receiving the result of each test.
That as provided by section 68L of the Family Law Act 1975 the interests of the child [X] born [in] 2008 are to be independently represented by a lawyer and Legal Aid NSW is requested to arrange such representation.
The parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed within fourteen (14) days from the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Rafael & Palko is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7328 of 2010
| MS RAFAEL |
Applicant
And
| MR PALKO |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the Mother of a little boy named [X] who is three years old. [X] lives with his father. The Mother is seeking interim orders that would see that [X] spends more time with her. The Father opposes those orders, claiming that the Mother’s time with the child should be supervised because of her recent history of excessive drinking.
There is agreement between the parties that an Independent Children’s Lawyer should be appointed.
Background
The parties commenced living in a de facto relationship in about May 1999. They separated on 2nd May 2010.
The Mother has a child by her previous marriage, [Y], who was born [in] 1996. He lived with the Mother from the date of his parents’ separation in about December 1998 and he has spent gradually decreasing amounts of time with his father. [Y] is currently living with the Respondent.
The Applicant and the Respondent have one child, [X], who was born [in] 2008. He attends pre-school on Tuesday and Friday each week and is currently living with the Respondent.
The relationship between the parties deteriorated in the years following [X]’s birth. The Mother commenced drinking heavily on her own admission by Christmas 2009, when she says that she hit “rock bottom’.[1] She acknowledges that her drinking habits prior to separation “may have been regarded as excessive on occasion”[2] but she deposes that this is no longer the case. She has undertaken blood alcohol tests as arranged by her medical practitioner, Dr H, and annexes copies of those results to her affidavit, along with a letter from Dr H dated
10th July 2010.[3] The test results are negative.
[1] Affidavit of Ms Rafael 19.11.2010 at paragraph [16]
[2] Ibid at [19]
[3] Ibid at Annexure “A”
The parties separated on 2nd May 2010 when the Applicant left the home at [W], where the parties had been living. She claims that it was at the insistence of the Respondent. The two children, [Y] and [X], remained living with the Respondent.
The Applicant moved in with her parents at [S].
The Respondent deposes that in November 2010 [Y] went to live with his mother but returned about ten days later. He remains living with the Respondent.[4] He also deposes that the Mother has continued to drink to excess since separation[5] and has commenced to take drugs, apparently cannabis.[6]
[4] Affidavit of Mr Palko 21.2.2011 at paragraph [25]
[5] Ibid at [18]
[6] Ibid at [20]
From the time of separation until 12th December 2010, the Applicant deposes that she was seeing [X] from Tuesday afternoon after pre-school until about 5:30pm on Thursday of each week.[7] However, there was an incident on 12th December when the Applicant, her parents and her brother went to the home at [W] to collect some personal belongings. The Respondent was not present but [Y] was in attendance. An altercation took place between [Y] on the one hand the Applicant’s brother and, to a lesser extent, her father, which led to the Police applying for Apprehended Domestic Violence Orders against the Applicant’s father and brother. Interim orders were made and the applications have been adjourned, apparently for defended hearing, to 15th of this month at [H] Local Court.[8]
[7] Affidavit of Ms Rafael 19.11.2010 at [8]
[8] Affidavit of Ms Rafael 18.2.2011 at paragraph [3]
Since that incident, the Mother claims that her time with [X] has been severely curtailed. She deposes that since around 9th December 2010 she had made numerous requests to the father to allow her to see [X]:
…but the only contact I have been allowed by the Respondent without him being present was for a few short hours on Christmas Day and for a couple of hours at a Community Park on
[date omitted] this year for [X]’s birthday…Apart from this I have only seen [X] at his preschool on Friday afternoons. This is something I have instigated myself, sop that I could at least see my son.[9]
[9] Ibid at [2]
The Father does not deny that he has placed restrictions on the Mother spending time with [X]. In his affidavit sworn on 21st February 2011 he deposes:
Following the incident I have been warned several times by the police that they did not think it was safe for [X] to be left at [Ms Rafael]’s parents’ house, especially as he could not fend for himself at his age if there was any violence. This coupled with [Ms Rafael]’s alcohol and drug abuse, drink-driving and history of leaving the children in my care or her parents’ care while she went to see her boyfriend in Queensland has lead[10] me to be very concerned about letting [X] spend time with her at her parents’ house. I have however told [Ms Rafael] that she can see the children whenever she wants at a park close to my home. I also know that [Ms Rafael] see [X] at the childcare centre and I never attempted to stop her from doing that.[11]
[10] Sic
[11] Affidavit of Mr Palko 21.2.2011 at paragraph [30]
The parties attended a Child Dispute Conference on 21st February 2011. There was no agreement about the amount of time that the Mother should spend with [X]. The Family Consultant noted that parental responsibility and the question of with whom the child should live were not issues at this stage. She did note that there was high conflict between the parties and a lack of trust between them. The Apprehended Violence Order against members of the Mother’s family in respect of the older boy, [Y], was seen as an issue impeding resolution, as was the fact that there were past unresolved issues about how the parties’ relationship ended.
The Family Consultant recommended that:
a)A family report should be prepared;
b)A drug and alcohol assessment relating to the Mother should be prepared; and
c)An Independent Children’s Lawyer should be appointed.
Issues
The Family Consultant noted these issues between the parties:
·How much time the Mother should spend with [X].
·Whether the Mother should be supervised when [X] spends time with her.
·The Father’s allegations that the Mother abuses alcohol and that [X] is not safe in her care.
·The Mother’s concern that the Father is restricting [X] from spending time with her.
·The Father will not agree to [X] travelling in a car with the Mother.
Submissions
Counsel for the Mother, Ms Hausman, submitted that the Mother was the child’s primary carer since his birth until the parties separated, at which time she would have been the child’s primary attachment parent. However, since separation the Father has dictated the Mother’s time with both [X] and with [Y].
Although the maternal grandmother, Ms R, had cared for [X] at least one day each week since he was about four months old, the child has had no contact with her since the 9th December 2010. The Father makes no complaints about the grandmother.
The Interim Apprehended Violence Order relates to an incident between the Mother’s father and brother on the one hand and the child [Y] on the other. The proceedings are to be defended. The AVO proceedings do not involve either [X] or the Mother.
Whilst the Mother has conceded that she had previously drunk alcohol to excess, she is no longer doing so, as witness the urinalysis certificates that she has produced. She resides with her parents at [S]. They are aware of her past abuse of alcohol. The Mother does not consume alcohol when [X] is in her care.
The Mother denies the Father’s allegations of drug abuse or of driving under the influence of alcohol. She has been driving for over twenty years without any offences. The evidence relied on by the Father is hearsay and is vague and uncorroborated.
The child does not need supervision in his mother’s care.
Counsel for the Father, Mr Mikalic, submitted that there was a risk of harm to the child because of the Mother’s behaviour and that his time with the Mother should be supervised. He submitted that the maternal grandmother would be a suitable supervisor but the grandfather would not, because of the incident involving [Y].
Orders sought
By her application filed on 19th November 2010, the Mother seeks interim orders:
i)That the parties have joint parental responsibility for [X];
ii)That [X] should live with her from 5:30pm each Tuesday until 1:00pm on the following Saturday;
iii)That [X] should live with the Father from 1:00pm on Saturday until 5:30pm on Tuesday;
iv)That [X] spends time with the Mother on Christmas Eve and until 3:00pm on Christmas Day;
v)That [X] should spend Easter Sunday from 9:00am to 3:00pm with the Mother;
vi)That he should spend equal time with each parent on his birthday;
vii)That the Mother should submit to blood alcohol testing once a week and refrain from drinking whilst either [X] or [Y] are in her care; and
viii)Other ancillary orders.
Counsel for the Mother confirmed that she sought time with the child from Tuesday to Saturday each week.
By his response filed on 21st February 2011, the Father seeks interim orders that:
a)He should have sole parental responsibility for both [X] and [Y];
b)That both children should live with him;; and
c)That the Mother should have supervised contact with both children at a supervised facility for a 3 hour period once a week.
The Father is not [Y]’s natural father and there are no parenting orders in his favour. The natural father had not been served with any documents. The interim hearing only dealt with issues concerning [X].
The relevant law
Section 60CA of the Family Law Act 1975 provides that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
The Court determines what is in the child’s best interests by considering the matters set out in subsections 60CC(2) (the primary considerations) and 60CC(3) of the Act (the additional considerations). The Court must also consider the extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent (s.60CC(4)) and, where the parents have separated, any events that have happened circumstances that have existed since the separation occurred (s.60CC(4A)).
When making a parenting order, the Court is required by s.61DA(1) of the Act to apply a presumption that it is in the child’s best interests for his or her parents to have equal shared parental responsibility for the child. In particular, when the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied (s.61DA(3)) (see Goode & Goode[12]).
[12] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
In making a final parenting order, the Court must disregard the allocation of parental responsibility made in the interim order (s.61DB).
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the Court is required by sub-section 65DAA(1) of the Act to consider whether:
a)The child spending equal time with each parent would be in the best interests of that child; and
b)Whether it would be reasonably practicable.
If the Court does not make such an order, sub-section 65DAA(2) provides that the Court must consider:
a)spending substantial and significant time with each of his parents would be in the child’s best interests; and
b)whether it would be reasonably practicable.
Substantial and significant time is defined by sub-section 65DAA(3) to include both days that fall on weekends and holidays and holidays and days that do not.
I have considered all of the matters referred to above and I will specifically to those that are relevant.
Conclusions
The orders to be made today will only concern [X]. Matters pertaining to the older boy, [Y], should only be considered once his natural father has been served.
[X]’s best interests are the paramount consideration. I am required to consider:
a)The benefit to him of having a meaningful relationship with both parents; and
b)The need to protect him from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The child clearly has a meaningful relationship with his father but, since December, his time with his mother has been severely restricted. This needs to be increased significantly, even if not to the extent sought by the Mother.
If the Mother consumes alcohol to excess, this will pose a risk of harm to [X], possibly by way of neglect or, if the Mother is driving whilst under the influence of alcohol, by way of the danger of actual harm. Accordingly, I propose to make a parenting order subject to certain conditions (see L & T[13]). Those conditions will be:
a)
an order that the mother continues to reside with her parents at
[S];
b)a prohibition of the consumption of alcohol when [X] is spending time with the Mother or for twelve hours beforehand; and
c)the necessity for the Mother to continue being tested to determine the presence of alcohol in her bloodstream.
[13] [1999] FamCA 1699; (1999) 25 Fam LR 590; FLC 92031
I am not satisfied that there is any persuasive evidence that the Mother is administering to herself any illicit drugs.
I am not concerned that the allegations in the Apprehended Violence proceedings would raise any concern that the maternal grandfather poses any threat to [X]. There is no evidence of any sort that the maternal grandmother is other than a positive influence on the child’s life.
[X] is too young for his views to be sought.
Thee is no evidence to suggest that the child has other than a positive relationship with both of his parents, but there is a concern that his relationship will suffer if he continues to spend so little time with his mother and under such artificial conditions as he is currently doing. He needs to spend significantly more time with his mother.
The evidence suggests that [X] has a positive relationship with his maternal grandparents, especially his grandmother, who has looked after him on a regular basis since he was a young baby. This relationship should be encouraged, which can be done of the Mother spends time with [X] whilst she continues to live at her parents’ home.
I am concerned that the Father’s recent actions appear to show a lack of willingness on his part to facilitate a close and loving relationship between [X] and his mother. A similar observation does not seem to apply to the Mother.
In my view, the likely effect of a change in the child’s circumstances by increasing the amount of time he spends with his mother and, as a result, his maternal grandparents, will be to his benefit, by fostering and strengthening those relationships. The increased time with the Mother should not lead to any dilution or diminution of what appears to be a strong relationship with his father.
Whilst the level of communication between the parties is poor and there is a corresponding lack of trust between them, there should not be any practical difficulty with [X]’s spending time with both parents. The parents live in nearby suburbs. It is a matter of public knowledge that the distance by car between [W] and [S] is not great.
The Father appears to have the capacity to cater for [X]’s physical and intellectual needs, and it has not been suggested that he does not love his child. Indeed, his actions appear to be based on a desire to protect the child from physical harm or neglect. However, he may be underestimating the child’s emotional need to spend time with his mother.
[X] is only young. He only turned three on [date omitted] this year. There are no unusual characteristics about the child that take him out of the mainstream of Australian culture. He is neither Aboriginal nor a Torres Strait Islander (s.60CC(3)(h)).
The question of family violence is worrying, as there is evidence of an incident between the child’s half brother, [Y], on the one hand and the child’s maternal grandfather and uncle on the other. This has led to intervention by the Police and applications for an Apprehended Violence Orders against them, with [Y] named as the person in need of protection. Interim orders have been made and the Court has been told that the matter is to be defended. That matter has not been heard by [H] Local Court at this stage.
The bulk of the allegations appear to be against the Mother’s brother, who does not live with the grandparents. On the evidence before this Court, the allegations against the grandfather appear to be relatively minor. However, that is a matter to be decided by the Local Court and this Court will wait to see what action that Court takes.
There are no allegations against the Mother in those proceedings. The evidence is that neither [X] nor his father was present during the incident that led to the Apprehended Violence proceedings.
It would be preferable to make the orders that would be least likely to lead to the institution of further proceedings in relation to the child. This involves an exercise in prediction, which the Court is not particularly well-equipped to do. However, I believe that if the Court makes orders that provide that the Mother should spend time with the child from Tuesday afternoon until Friday morning each week, with the balance of the time spent with the Father, both parties will see that [X] is going into an ordered, structured routine which will allow him to have a meaningful relationship with each of his parents and with his maternal grandparents. This must, of course, be subject to restrictions being placed on the Mother in order to assist in protecting the child from harm. If the Mother were so foolish as to drink alcohol to excess whilst the child was spending time with her, then I have no doubt that the Father would consider further legal action.
On an interim basis, I consider that an order should be made that the child should live with the Father.
I turn to the question of parental responsibility, which must be considered on an interim parenting application. The Mother seeks equal shared parental responsibility whilst the Father asks the Court to order that he should have sole parental responsibility for the child.
Subsection 61DA(3) of the Family Law Act provides that when the Court is making an interim parenting order, the presumption applies that it is in the best interests of the child for his parents to have equal shared parental responsibility, unless the Court is satisfied that it would not be appropriate in the circumstances for the presumption to be applied when making that order. It is not the case that the presumption of equal shared parental responsibility is at large; the party seeking sole parental responsibility must establish to the Court’s satisfaction that it would not be appropriate in the circumstances for the presumption to be applied when making the interim parenting order.
In this case, I am not satisfied that the Father has been able to lead evidence sufficient to persuade the Court that it would not be appropriate in the circumstances for the presumption to be applied. I intend to order that, until further order, the parties shall have equal shared parental responsibility for the child [X].
In any event, the question must be considered afresh at a final hearing. Section 61DB of the Act requires the Court to disregard the allocation of parental responsibility made in the interim order when considering making a final parenting order.
However, having made an order that [X]’s parents are to have equal shared parental responsibility for him, the Court must now consider whether spending equal time with each parent would be in his best interests and is reasonably practicable. I am not persuaded that equal time would necessarily be in [X]’s best interests at this time, as the Mother needs to establish that she is not going to consume alcohol to excess, which would clearly pose a risk to the child if the Mother were intoxicated whilst he was in her care. It is too early for the Court to be satisfied on that issue.
The present level of mistrust between the parties would also make an equal time arrangement less than reasonably practicable. The Father needs to be confident that the Mother can look after their child without resorting to inappropriate alcohol consumption.
The Court is then required to consider whether it would be in [X]’s best interests to spend substantial and significant time with each parent, and whether it is reasonably practicable. In my view, it is reasonably practicable, given the fact that the parties do not live very far away from each other. I also propose to order that changeover takes place at the child’s pre-school, so that the parents do not need to meet. This will avoid the possibility acrimonious exchanges between them in the child’s presence.
As [X] has not spent a great deal of time with his mother from early December 2010 until recently, I am of a view that substantial and significant time with her would be in [X]’s best interests. He is already spending substantial and significant time with his father.
The time that I propose that [X] should spend with his mother each week will go from Tuesday after pre-school until Friday morning before pre-school. There will also be time spent on Mother’s Day, the Mother’s birthday and at Christmas.
[X] does not attend pre-school five days a week. He goes on Tuesdays and Fridays. The Mother will spend time with him when he is not at pre-school, and her mother can spend time with him on the Wednesday when the mother is at work. The Mother will also have the experience of looking after [X] when he returns from pre-school and sending him off to pre-school on Friday mornings. Thus, she will be able to keep up with his doings at pre-school and any issues that may arise there. The Father will be in a similar position.
This appears to me in the circumstances to constitute substantial and significant time within the meaning of subsection 65DAA(3).
The Family Consultant recommended that the child’s interests should be independently represented by an Independent Children’s Lawyer. Counsel for the parents indicated that their respective clients consented to that course.
[14] (1994) 17 Fam LR 537; FLC 92-461
The Court, when considering making such an order, should consider the guidelines laid down by the Full Court of the Family Court in
Re K[14]). In this case, it appears that there is an apparently intractable conflict between both parents and the conduct of the Mother is alleged by the Father to be anti-social, by way of abuse of alcohol that it seriously impinges on [X]’s welfare.
The Father raises the question of family violence by the Mother’s brother and father, although there is no allegation that it is directed at [X].
I am satisfied that the child’s interests should be independently represented by a lawyer and I will make such an order under the provisions of s.68L of the Family Law Act.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 10 March 2011
0