Ramsay and Wade
[2012] FMCAfam 1436
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAMSAY & WADE | [2012] FMCAfam 1436 |
| FAMILY LAW – Children – parenting – parenting orders – interim orders – best interests of the children – family violence order – substance abuse issues – allegations of abuse of one of the children by a cousin – supervision of time with children. |
| Family Law Act 1975, ss.4, 4AB, 60CA, 60CC, 61DA, 61DB, 65DAA, 67Z, 67ZBA, 67ZBB, 68B Family Law Regulations 1984 (Cth) Sch.8, reg.12BB Crimes (Domestic and Personal Violence) Act 2007 NSW s.16 |
| B and B (1993) FLC 92-357 In the Marriage of Bieganski (1993) 16 Fam LR 353 |
| Applicant: | MR RAMSAY |
| Respondent: | MS WADE |
| File Number: | SYC 5648 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 December 2012 |
| Date of Last Submission: | 10 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2012 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Deo |
| Solicitors for the Applicant: | Marsdens Law Group |
| Counsel for the Respondent: | Ms Obradovic |
| Solicitors for the Respondent: | Navarro & Associates |
| Independent Children’s Lawyer: | Mrs Court |
| Solicitors for the Independent Children’s Lawyer: | John Spence & Associates |
ORDERS
UNTIL FURTHER ORDER
All previous parenting Orders are discharged.
The Respondent Mother is to have sole parental responsibility for the children of the marriage [X] born [in] 2008 and [Y] born [in] 2010.
The children [X] and [Y] are to live with the Mother.
The Applicant and the Respondent are to keep each other advised at all times of their residential address, residential telephone number and an emergency contact telephone number.
The Applicant and the Respondent are to inform each other of any change to their telephone numbers within twenty-four (24) hours of such change.
The children [X] and [Y] are to spend time with the Father at the home of the Father’s parents:
(a)Each Wednesday from 4:00pm until 7:30pm;
(b)Each Sunday from 9:00am until 11:30am;
(c)On Christmas Day 2012 from 9:00am until 11:30am;
(d)On Father’s Day from 9:00am until 11:30am: and
(e)At such other times as the parties shall agree.
The time spent by the Father with the children [X] and [Y] in accordance with Order (6) above is subject to the following conditions:
(a)All times are to be under the direct supervision of the paternal grandmother MRS R on her consenting in writing to observe all of the requirements of these Orders;
(b)The children are not to be brought into contact with their cousin [Z] at any time;
(c)The Father is not to consume any alcoholic drink at any time when he is spending time with the children or for twenty-four (24) hours beforehand;
(d)The Father is not to administer to himself any prohibited drug at any time when he is spending time with the children or for twenty-four (24) hours beforehand.
(e)The Father must submit for chain of custody urinalysis upon request by the Independent Children’s Lawyer as follows:
(i)on no fewer than two (2) occasions in each month including on weekends as randomly nominated by the Independent Children’s Lawyer;
(ii)under supervision;
(iii)such testing is to take place on the same days as the request is made by the Independent Children’s Lawyer;
(iv)the urinalysis testing is to be conducted in accordance with the Australian/New Zealand Standard 4308:2008: Procedure for the collection, detection and quantitation of drugs of abuse in urine;
(v)the Father must forward a copy of each urinalysis test result to the Independent Children’s Lawyer and the Mother’s lawyers within forty-eight (48) hours of his receipt of the test result; and
(vi)the Father must pay for the testing.
The consent in writing to be signed by the paternal grandmother
MRS R must refer specifically to the conditions on supervision set out in Order (7) above.
The arrangements in Order (7) above will not come into force until the form of consent referred to in Order (8) above is filed at the Court and sealed copies are served on the solicitor for the Respondent and the Independent Children’s Lawyer.
IT IS NOTED that publication of this judgment under the pseudonym Ramsay & Wade is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5648 of 2012
| MR RAMSAY |
Applicant
And
| MS WADE |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Father for parenting orders in respect of the parties’ two children, [X], aged four, and [Y], aged two. The children currently live with their mother, the Respondent.
The Father filed an Application for parenting and property orders on 21st September 2012, in which he seeks interim orders that:
a)the parties should have equal shared parental responsibility for the children;
b)the children should continue to live with their mother; and
c)the children should spend time with the Father:
i)each Wednesday from 4:00pm to 7:30pm; and
ii)each Sunday from 9:00am to 7:30pm.
The Mother opposes these orders. In her Response, filed on 5th November 2012, the mother seeks orders that:
a)the Father undertake an assessment by a psychiatrist with expertise in drug and alcohol addiction as to:
i)his parenting capacity; and
ii)any risks the children may face while in his care;
b)the children should spend time with the Father at a contact centre once a fortnight, subject to the Father:
i)having monthly drug and alcohol testing;
ii)continuing with drug and alcohol treatment;
iii)enrolling in a parenting course; and
iv)enrolling in a sexual abuse and protective behaviour program.
c)The Father is to be restrained from:
i)bringing the children into contact with a particular cousin, [Z];
ii)consuming alcohol or using prohibited drugs during or before spending time with the children; or
iii)driving the children whilst unlicensed or under the influence of drugs or alcohol.
The Mother also seeks orders in the form of an injunction under s.68B of the Family Law Act 1975, restraining the Father from assaulting, molesting harassing, threatening or otherwise interfering with her, the children, the children’s maternal grandparents or their maternal uncle. The Mother also seeks orders restraining him from intimidating or stalking herself and these other people, going within 50 metres of her residence or place of work, approaching her within 12 hours of consuming alcohol, damaging her property and other matters.
On the same day that she filed her Response, the Mother filed a Notice of Child Abuse, Family Violence, or Risk of Family Violence. In that document, the mother claimed that her son had reported to her that his 13 year old cousin, [Z], had abused him by:
a)placing a cookie in his bottom;
b)touching the tip of his penis; and
c)pulling his pants down and kissing him on various parts of his body.
On 5th November 2012 the parties entered into Interim Consent Orders providing that:
a)the children would live with the Mother;
b)each parent would keep the other advised of their residential addresses, telephone numbers and emergency contact numbers;
c)the Father was restrained from consuming alcohol and using prohibited drugs during or 12 hours before spending time with the children; and
d)the Father was at liberty to contact the children by telephone by calling the mother’s mobile phone between 5:30 and 6:00pm each Monday, Thursday and Saturday.
The parties were directed to attend a Child Dispute Conference with a Family Consultant, which they did on the afternoon of 5th November 2012. The Family Consultant reported that there was no agreement between the parties and recommended the appointment of an Independent Children’s Lawyer.
On 7th November 2012 an Order was made that the interests of the children should be independently represented by a lawyer under the provisions of s.68L of the Family Law Act.
Evidence and Submissions
The Independent Children’s Lawyer, Mrs Court, submitted that it was common ground that:
a)the children should live with the Mother; and
b)the Father would be restrained from using illicit drugs.
Mrs Court further submitted that the Father’s prior history should not affect the children spending time with their father at the home of the paternal grandmother. The mother had previously consented to this arrangement.
It was further submitted that the Father’s prior conviction for driving with the prescribed content of alcohol in his bloodstream was a concern, as was the existence of an Interim Apprehended Domestic Violence Order against the father.
The Independent Children’s Lawyer raised the concern that if arrangements for the Father to spend time with the children were to wait until a place at a supervised contact centre were to become available, it would be six months until the children saw their father.
The Father relied on the following affidavits:
a)his affidavit of 19th September 2012 filed in support of his originating Application; and
b)the affidavit of his mother, Mrs R, sworn on 28th November 2012.
The Father deposed in his affidavit that he first experimented with marijuana when he was 16 or 17 years old and started using “speed” ( a form of methamphetamine) when he was in his early 20s. His drug use escalated between the ages of 27 and 30, during which time it had become apparent that there were problems in his marriage. He stated that he used drugs “as a coping mechanism”.[1]
[1] Affidavit of Mr Ramsay 19.9.2012 at [33]
He claims that he has been sober since January 2012 and has had approximately 18 weeks of treatment from a psychologist.
The Father deposed that when the parties separated in January 2012 there was an arrangement that he would see the children each Wednesday from 4:00pm to 7:30pm and each Sunday from 9:00am to 7:30pm, on the conditions that:
a)his mother would be present during those times; and
b)no overnight time would take place.
The Father went to state that in July the mother told him that their son [X] had complained that his nephew, [X]’s cousin, aged 13, had put a biscuit up his bottom. The father said that he was shocked at the allegation.
The Mother reported the allegations to JIRT, who investigated the matter and later closed the case. The Father deposed that it was difficult to believe the allegations, because:
·The biscuit incident allegedly took place upstairs in the paternal grandparents’ home, but the children were downstairs the whole time.
·The children are not allowed upstairs on their own.
·The children were in the presence of adults the whole day, himself, his sister, his parents and his brother in law.
The Father deposed that the Mother had significantly restricted his time with the children since then and he had last seen them on 26th August.
The Father set out in his affidavit that there are current proceedings for an Apprehended Violence Order against him in [F] Local Court, which he stated were for mention on 21st October 2012. A copy of the Application is annexed to the Applicant’s affidavit and it can clearly be seen that the Application was returnable on 21st September. 21st October 2012 was a Sunday.
The Father deposed that he intended to defend the Application.
The Father also relied on an affidavit by his mother, Mrs R. Her affidavit was largely corroborative of the Father’s affidavit. She stated that she had taken her duty as a supervisor of her son’s time with the children very seriously and had done her best to comply with the Mother’s requests about the care of the children.
Mrs R deposed that the Mother had stopped allowing the children to come to her home in early July 2012 and it was in early August that her son told her of the allegation of the child [Z] abusing [X] by putting a biscuit in his bottom.
At paragraph [31] of her affidavit Mrs R described this as “an extraordinary allegation” and set out in sub-paragraphs (a) to (g) why she formed that view.
The Mother relied on her affidavit of 6th December 2012 and the affidavit of her mother, Ms P sworn 10th November 2012.
In her affidavit the Mother set out in detail the Father’s drug taking, which continued throughout the marriage. She also described his excessive drinking. On one occasion, the Father arose from the bed and urinated on the bedroom carpet. She deposed that the Father sought medical help in 2011 at her insistence.
The Mother stated in her affidavit that the Father spent time with the children from separation in January 2012 until 22nd July 2012, when [X] disclosed the incident involving his cousin.
The Mother also set out a telephone conversation with the parental grandmother on 19th April 2012, where she told her that the Father had a drug and alcohol problem. She said that Mrs R did not believe that her son was using drugs.
The Mother deposed that she met the father in a park on 2nd August 2012 and told him of [X]’s allegation that his cousin had put a cookie in his bottom. The Father did not believe the allegation.
The Mother annexed to her affidavit a copy of a letter from Dr L dated 29/10/2012 in which he states that he examined the child on 23rd July 2012. The letter states (relevantly):
Examination showed some redness around the anus and a small healing anal fissure noted at 12 o’clock. Although a small healing anal fissure could be from other causes e.g. from passage of hard motion, the co-incidence of having a tear from hard motion at the same time as the child’s disclosure of the above incidence would be unusual especially as he has not had a history of constipation.[2]
[2] Affidavit of Ms Wade 6.12.2012 Annexure “A”
In her affidavit the Mother deposed that throughout the marriage the Father displayed “aggressive and controlling behaviours” and “inappropriate discipline on [X]”.[3] She also claimed that she originally left him in September 2009 for about 6 or 8 weeks, and when she was packing the car to leave with [X], the Father was shouting at her “fucking bitch” and “slut”.[4]
[3] Ibid at paragraph [44]
[4] Ibid at [46]
The Mother stated that the last time the Father spent time with the children was on 26th August 2012, but he again “acted in an aggressive manner” towards her. As a result, she reported the matter to the police and applied for an Apprehended Domestic Violence Order.[5]
[5] Ibid at [52]
On 21st September 2012 the Local Court of NSW at [F] made an Interim Apprehended Domestic Violence Order against the Father. A copy of that Order and the application for the order are annexed to the Mother’s affidavit at Annexure “B”.
The affidavit of Ms P, the Respondent’s mother, annexes a copy of a statement she made in support of her daughter’s application for an Apprehended Domestic Violence Order.
The Father’s solicitor, Ms Deo, told the Court that her client was not a disqualified driver. Also, although there was an Interim Apprehended Domestic Violence Order imposed by the Local Court, the Order was made without admissions by the Father. The hearing had not been reached on 6th December and was adjourned until 1st February 2013. Ms Deo tendered a copy of the interim ADVO.
As to the abuse allegations, the Father disagreed that supervision was needed, but if the Court were of a mind that the Father’s time should be supervised, then the paternal grandmother would be available.
It was put to the Court that the Father would be agreeable that the 13 year old cousin, [Z], would not be brought into contact with [X].
Ms Deo also submitted that the Father was willing to undergo urinalysis testing to detect the presence of illicit substances in his system.
Ms Obradovic of counsel for the Mother submitted that there were serious allegations of abuse of the child [X] at the home of the paternal grandmother. The Father did not believe that the abuse had happened. There was a serious risk of further abuse of the children in the care of the paternal grandmother because the child [Z] visited the grandmother’s home regularly.
The Relevant Law
Section 60CA of the Family Law Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections 60CC(2) and (3) of the Act.
The matters in subsection 60CC(2) are the primary considerations and concern:
a)the benefit to the children of having a meaningful relationship with both parents; and
b)the need to protect the children from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence.
Greater weight must be given to the consideration about the need to protect the child or children from harm set out in paragraph (2)(b) (see subsection 60CC(2A).
The term “family violence” is defined by subsection 4AB(1) of the Act:
4AB(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
The additional considerations are set out in subsection 60CC(3). They include such matters as the views of the children and the weight that should be given to those views, the nature of the relationship of the children with each parent and other persons, including grandparents, the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long-term decisions, to spend time with the children and to communicate with them, and various other matters, including the children’s maturity, sex, lifestyle and background.
Again, any family violence involving the child or a member of the child’s family is a consideration under paragraph (j) of s.60CC(3), as is the existence of any family violence order that applies or has applied to the child or a member of the child’s family (see paragraph (k) of s.60CC(3)).
The term “family violence order” is defined by s.4 of the Act:
family violence order means an order (including an interim order) made under a prescribed law of a State or Territory to protect a person from family violence.
An Apprehended Domestic Violence Order made by the Local Court of New South Wales under the provisions of s.16 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) is a family violence order under s.4 of the Family Law Act by virtue of Schedule 8 and reg.12BB of the Family Law Regulations 1984 .
Where the Court is making a parenting order, Subsection 61DA(1) the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply in cases of abuse or family violence (see s.61DA(2)) and may be rebutted by evidence that satisfies the court it would not be in the child’s best interests for the presumption to be applied (s.61DA(4)).
The presumption applies when the Court is making an interim order unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied.
If the Court does make an order for equal shared parental responsibility, the Court is then required to consider the child spending equal time with each parent or substantial and significant time with each parent, under s.65DAA.
All of the above matters have been considered and all relevant considerations have been taken into account.
Conclusions
The Father wishes to spend time with his two young children. Ideally, he would prefer this to happen without any supervision or other restriction. He does not take issue with the Mother’s parenting skills but he certainly takes the view that it is of benefit to the children to have a meaningful relationship with him as well as their mother.
However, the Mother has raised concerns about:
a)the Father’s prior drug use;
b)the Father’s prior substance abuse;
c)her allegations of violence and intimidation by the Father towards her; and
d)the claimed abuse of [X] by his 13 year old cousin.
All of these matters are seen by the Mother as exemplifying the need to protect the children from physical or psychological harm. This need is one of the primary considerations set out in s.60CC(2) and must be given greater weight than the consideration in paragraph (a) of s.60CC(2).
The Mother filed a Form 4 Notice of Child Abuse, Family Violence, or Risk of Family Violence on 5th November 2012 referring not only to the alleged abuse of [X] but to allegations of family violence by the Father against the Mother, her brother and [X].
Where such a notice under either subsection 67Z(2) or 67ZBA(2) is filed, the Court is required to take action under subsection 67ZBB(2) as soon as practicable after the notice is filed and, if appropriate, within 8 weeks after the notice is filed (s.67ZBB(3)).
Under subsection 67ZBBH(2):
The court must:
(a)consider what interim or procedural orders (if any) should be made:
(i) to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and
(ii)to protect the child or any of the parties to the proceedings; and
(b)make such orders of that kind as the court considers appropriate; and
(c)deal with the issues raised by the allegations as expeditiously as possible.
In this case, the Court dealt with the requirements under s.67ZBB by:
a)making orders by consent on 5th November 2012 restraining the Father from consuming alcohol or using prohibited drugs during or for 12 hours before spending time with the children;
b)directing the parties to attend a Child Dispute Conference with a Family Consultant on 5th November;
c)appointing an Independent Children’s Lawyer on 7th November; and
d)hearing an application for interim parenting orders on 10th December.
It is noteworthy that the issues of family violence and the existence or otherwise of a family violence order form part of the additional considerations in s.60CC(3) – paragraphs (j) and (k) respectively.
The Mother had applied for injunctive orders under s.68B but this was not pressed by the Mother’s counsel. There is a current Interim Apprehended Domestic Violence Order that was made by [F] Local Court on 6th December 2012, only four days prior to the hearing. The Orders made were the Standard Orders:
(a)The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
(b)The defendant must not engage in any other conduct that intimidates the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
(c)The defendant must not stalk the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
The protected persons in the Interim ADVO are:
a)The Respondent Mother;
b)The children [X] and [Y]; and
c)The Mother’s parents.
In the circumstances, there does not appear to be a current need for an injunctive order under s.68B.
It is also a consideration under s.60CC(3) that the Court should consider any views expressed by the children (s.60CC(3)(a)). However, the children are too young for any weight to be given to their views. In any event, the children’s interests are represented by the Independent Children’s Lawyer.
The Father’s drug and alcohol issues are a concern and the Court must take a cautious approach to ensure the safety of the children. There should be a prohibition on the Father consuming alcohol or using any prohibited drug when he is spending time with the children, but the restriction should operate for a period of 24 hours beforehand, rather than the previous 12 hours to which the Father consented.
In addition, the Father must submit himself to chain of custody urinalysis on no fewer than two occasions each month, at times randomly selected by the Independent Children’s Lawyer.
There remains the question of the children’s safety whilst spending time with their father. There is no allegation that the Father was involved in the alleged abuse of [X]. The allegation was made against the child’s thirteen year old cousin. What has concerned the Mother is the fact that neither the Father nor his mother, [X]’s paternal grandmother, have given the allegation any credence whatsoever. Indeed, it is the Mother’s evidence that until April this year the paternal grandmother was not even aware of the Father’s drug problem.
How, then, can it be argued that the paternal grandmother can be at all suitable as a supervisor of her two young grandchildren? It has been held that in most cases it is undesirable for friends or family to supervise children when the children are spending time with one parent, as:
Family and friends are not neutral but will usually, as is the case here, have an opinion as to whether any harm has occurred or whether any risk exists.[6]
[6] In the Marriage of Bieganski (1993) 16 Fam LR 353 at 369 per Fogarty, Baker and Purvis JJ. It is also reported as B and B (1993) FLC 92-357
However, in the absence of any other proffered supervisor, the only alternative would be a supervised contact centre, which, on the submission of the Independent Children’s Lawyer, would involve a wait of six months before any time with the Father could start. At the ages of these children, such a delay would be undesirable.
There is no complaint that it was the Father who abused [X]. A ban on the children being brought into contact with the alleged perpetrator, the cousin, would appear to be a suitable way of protecting [X] from harm.
As for the Father’s drug and alcohol issues, the proposed ban on the Father using drugs or consuming alcohol during or for 24 hours beforehand combined with the requirement for regular urinalysis will provide a means of reducing the risk of harm to the children.
In those circumstances, the paternal grandmother can be considered as a supervisor. However, before this supervision can start, the paternal grandmother must sign a form of consent referring specifically to all of the conditions on the Father. That consent must then be filed at the Court and sealed copies must be served on the Mother’s solicitor and the Independent Children’s Lawyer.
Whilst these conditions may sound draconian, the best interests of the children are the paramount consideration and these conditions are intended to protect the children from physical or psychological harm.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 6 February 2013
2
0
0