SABOTA & MACKEY
[2011] FMCAfam 12
•11 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SABOTA & MACKEY | [2011] FMCAfam 12 |
| FAMILY LAW – Children – interim parenting orders – family violence issues – whether father’s time spent with the children should be supervised – best interests of the children – where there are allegations of drug abuse – need to protect the children from harm. |
| Family Law Act 1975, ss.11F, 60CA, 60CC, 61DA, 61DB, 62G, 68L |
| Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422 |
| Applicant: | MS SABOTA |
| Respondent: | MR MACKEY |
| File Number: | SYC5662 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 22 December 2010 |
| Date of Last Submission: | 22 December 2010 |
| Delivered at: | Sydney |
| Delivered on: | 11 January 2011 |
REPRESENTATION
| Solicitor for the Applicant: | Watts McCray |
| Solicitors for the Respondent: | Sid Hawach & Co |
| Solicitors for the Independent Children’s Lawyer: | CBD Legal |
ORDERS
That all previous parenting orders are suspended;
That the children [X] born [in] 2001 and [Y] born [in] 2007 live with the applicant mother.
That the applicant mother and the respondent father attend the Children’s Contact Service at the [K] Interrelate Family Centre or a similar organization nominated by the Independent Children’s Lawyer for the purpose of completing the Intake Process to facilitate the children spending time with the father.
That until further order, the children are to spend time with the father as follows:
(a)For one (1) hour per fortnight or per month in accordance with availability supervised at the [K] Interrelate Family Centre or similar organization nominated by the Independent Children’s Lawyer;
(b)At the further advice and availability of the [K] Interrelate Family Centre for a further two (2) hour period per fortnight supervised at the [K] Interrelate Family Centre or similar organization;
(c)Subject to further advice and availability of the [K] Interrelate Family Centre for a further three (3) hour period per fortnight supervised at the [K] Interrelate Family Centre or similar organization; and
(d)At any other time as agreed between the parties.
That the father shall be entitled to send letters, cards and gifts to the children and for the purposes of this Order the mother shall ensure that all letters, cards and gifts are delivered to the children and the mother shall send the father confirmation of receipt of the letters, cards and gifts and that she delivered those items to the children.
That the father must submit himself to a registered pathology facility for urinalysis for the collection, detection and quantification of drugs of abuse in urine upon a written request by the Independent Children’s lawyer to his solicitor.
That the urinalysis must be conducted in accordance with the Australian/New Zealand Standard 4308:2001 Procedure for the collection, detection and quantification of drugs of abuse in urine.
That the Independent Children’s Lawyer on no more than five (5) occasions nominate dates for the father to submit himself to a pathology facility for urinalysis on a random basis for collection , detection and quantification of drugs of abuse in urine within
24 hours of the nominated dates.
That the father must do all things necessary to provide a copy of the drug screening reports referred to in these Orders to his solicitor and his solicitor is to forward a copy of the drug screening report to the Independent Children’s Lawyer within seven (7) days of receiving such report from the father.
That the Independent Children’s Lawyer is to have liberty to relist the matter on seven (7) days notice for any appropriate reason including the father returning a positive urinalysis result, or non-compliance with the urinalysis referred to in these Orders.
That supervised time between the father and the children in accordance with Order (4) will not commence until the father has produced to the Independent Children’s Lawyer and the mother’s solicitor a copy of a drug screening report which has been undertaken in accordance with Australian/New Zealand Standard 4308:2001 being the chain of custody requirement within seven (7) days.
Without prejudice that the father is to attend a certified Anger Management Course and must provide a certificate upon completion to his solicitor to be provided to the Independent Children’s Lawyer.
That both the mother and the father are restrained from using any form of physical discipline on the children.
That the mother must do all acts and things necessary to facilitate compliance with these Orders by making the children available to attend the [K] Interrelate Family Centre to spend time under supervision with the father.
That the Independent Children’s Lawyer may change the location of the contact centre if another location is available at an earlier time to supervise time between the father and the children.
AND THE COURT NOTES:
A.The father has completed treatment through the Drug and Alcohol Counselling Service at Rockdale.
B.The mother is obtaining counselling through [omitted] Hospital and Community Health Services.
C.The mother and the children are engaging with the Brighter Futures program.
D.The Independent Children’s Lawyer will endeavour to obtain reports from the [K] Interrelate Family Centre for the purpose of evaluating and increasing the time the children spend with the father.
IT IS NOTED that publication of this judgment under the pseudonym Sabota & Mackey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC5662 of 2010
| MS SABOTA |
Applicant
And
| MR MACKEY |
Respondent
REASONS FOR JUDGMENT
Applicant
This is an application for interim parenting orders by the mother of two children, a girl aged nine years and a little boy aged three years and ten months. The mother seeks interim and final orders that the father should spend no time with the children.
The father opposes that application and seeks orders that the children should spend time with him on alternate weekends, on Tuesday and Thursday afternoons, on their birthdays and for half of the school holidays.
Orders Sought
The mother seeks interim orders that:
a)The orders made by the [omitted] Local Court of New South Wales, Family Matters, on 17th July 2002 with respect to the child [X] born [in] 2001 be discharged;
b)That the mother should have sole parental responsibility for the day to day and long term care of the children [Y] born [in] 2007 and [X] born [in] 2001, including obtaining passports for the children;
c)That the children should live with the mother; and
d)That the father should spend no time with the children.
By his Response, filed on 30th November 2010, the father seeks interim orders:
a)That the children live with the mother;
b)That the parties have equal shared parental responsibility for the children;
c)That the children should spend time with the father:
i)
On alternate weekends from 3.30 pm on Friday until
6.30 pm on Sunday;
ii)Each Tuesday and Thursday from 3.30 pm until 6.30 pm;
iii)For four hours on the children’s birthdays;
iv)For half of each NSW school holiday period;
v)On Father’s Day from 10.00 am until 6.30 pm;
vi)By telephone no less than twice a week; and
vii)At such other times as the parties agree.
d)The father seeks other ancillary orders, including a non-denigration order.
The Independent Children’s Lawyer has tendered a Short Minute of Order, suggesting the following orders (summarised):
a)That all previous parenting orders be discharged;
b)That the children live with the mother;
c)That both parents attend the [K] Contact Centre or similar to complete the intake process;
d)That the children spend time with the father at times to be supervised by [K] Contact Centre;
e)That the father be entitled to send the children letters, gifts and cards;
f)That the father attend urinalysis for the detection of illicit drugs and provide the results to the Independent Children’s Lawyer;
g)That supervised contact should not commence until the father has produced a drug screening report;
h)That the father should attend an anger management course;
i)That neither party use physical discipline on the children; and
j)That the mother should cooperate with the father in relation to the children spending time with him.
There is no issue about the children living with the mother. On 6th December 2010 the parties entered into Interim Consent Orders providing that the children should live with the mother.
Issues in Dispute
The mother seeks that the father does not spend any time with the children because she claims that he has been violent and abusive towards her and the children. She also claims that he has taken illicit drugs and that he sells them to others.
The father deposes in his affidavit that he has never assaulted the children. He denies that he uses drugs or sells drugs.
Background
The mother was born [in] 1973. The father was born [in] 1976.
The mother and the father were in a relationship for about thirteen years, from 1994 to 2007. They separated on various occasions, until the mother finally separated from the father in 2007.
There are two children of the relationship.
[X] was born [in] 2001.
[Y] was born [in] 2007.
There have been earlier proceedings between the parties. Parenting orders were made on an ex parte basis by the [omitted] Local Court Family Matters on 17th July 2002 relating to [X]. Those orders provided that:
a)The mother should have sole responsibility for the day to day and long term care, welfare and development of the child [X];
b)That [X] should live with the mother;
c)That the father should have reasonable contact with the child;
d)That the paternal grandmother be restrained from having unsupervised contact with the child;
e)That the father be restrained from removing the child from the Commonwealth of Australia or from the State of New South Wales;
f)That the child’s name be placed on the Airport Watch List; and
g)Other ancillary orders.
The mother later obtained an Apprehended Violence Order against the father. A further order was obtained in 2004.
On 16th August 2010 the mother obtained an interim Apprehended Violence Order against the father. The order covered the mother and the two children. This arose out of an incident where the mother claims that the father assaulted by kicking her on the right leg.
The application was heard on a defended basis at [omitted] Local Court on 28th October 2010 and was dismissed.[1]
[1] See affidavit of Mr Mackey 13.12.2010 at paragraph [16]
The father has spent time with [X] and later [Y] since the parties separated, usually supervised by the mother.
The father was shot in the leg in an incident in about May 2010 and subsequently spent some time in hospital.
The applicant commenced proceedings by filing an application and affidavit in support on 8th September 2010. The application came before the Court for the first time on 8th November 2010. The respondent appeared, represented by a solicitor, and directions were made for him to file a Response and other documents.
On 6th December 2010 the parties entered into the consent order that the children should live with the mother and an order was made under s.68L of the Family Law Act 1975 that the children should be independently represented.
On 17th December 2010 the Independent Children’s Lawyer, Ms K appeared for the first time. The application was adjourned to Monday 20th December 2010, on which day an order was made under s.11F of the Family Law Act that the parties should attend a Child Dispute Conference with a Family Consultant, which they did that same day.
No agreement was reached at the Child Dispute Conference. The family consultant noted the mother’s allegations of:
a)Family violence;
b)Sexual assault;
c)Controlling and coercive behaviour;
d)Inappropriate behaviour;
e)Drug abuse; and
f)A low frustration tolerance on the part of the father.
The family consultant also noted:
a)The father’s denials of the mother’s allegations;
b)The father’s claims that the mother is responding to the fact that he has a girlfriend;
c)The father’s claim that the mother made [X] watch a film that caused her to be afraid of him;
d)The father’s claim that the mother has “brainwashed” [X];
e)The father’s criticisms of the mother’s care of the children; and
f)The father’s allegations that the mother is spiteful and has returned clothes that the father has bought for the children.
The application was listed for interim hearing on 22nd December 2010.
Evidence
The mother relied on the following documents:
a)Her Initiating Application;
b)Her affidavit sworn on 6th September 2010; and
c)Her affidavit sworn on 20th December 2010.
The father relied on:
a)His Response;
b)His affidavit of 29th November 2010;
c)His affidavit of 13th December 2010;
d)The affidavit of Ms F of 17th December 2010; and
e)The affidavit of Ms M of 17th December 2010.
The mother’s solicitor, Mr Todd, tendered the following documents, without objection:
a)Some tagged pages of New South Police Force Computerised Operational Policing Systems printouts dated 9/8/2010, 6/5/2010, 20/9/2009 and 13/4/2009 (Exhibit 1);
b)[Omitted] Hospital Alcohol and Other Drugs Service Intake and Referral Form 29/1/2010 and associated documents (Exhibit 2); and
c)The father’s criminal antecedents from the NSW Police (Exhibit 3).
It is the mother’s evidence that her relationship with the father was marked by violence and abuse towards her and the children from 2002 onwards. She states that:
I live in fear of [Mr Mackey] and fear for the safety of the children.[2]
[2] Affidavit of Ms Sabota 6.9.2010 at paragraph [17]
The mother deposes that the father telephones her about every three weeks and demands that she brings the children to see him. If she refuses, he uses aggressive and profane language towards her.[3]
[3] Ibid at [20]
Her mother used to assist her by supervising the children when they were with the father but eventually she declined to continue, saying that the father’s abusive and threatening language really scared her.[4]
[4] Ibid at [21]-[22]
The mother further deposed that:
a)The children would often spend only half an hour with the father;[5]
[5] Ibid at [23]
b)The father would not want to see the children when he was with a girlfriend;[6]
[6] Ibid at [24]-[26]
c)The mother does not believe that the father’s home is safe because the house has been shot at or the family’s cars have been burned;[7]
[7] Affidavit of Ms Sabota at [29]-[31]
d)The father has sold illicit drugs since 2000;[8]
e)The father has taken illicit drugs on many occasions;[9]
f)The father was shot in the leg in a dispute involving drugs in about May 2010;[10]
g)The father has been verbally and physically abusive towards herself and the children;[11]
h)The father has sexually assaulted her in the presence of one or other of the children;[12]
i)The child [Y] has displayed sexualised behaviour;[13]
j)[X] is very frightened of the father;[14]
k)[Y] would call the mother “a fucking bitch” at the instigation of the father;[15]
l)The father would encourage [Y] to kick other children;[16] and
m)The mother fears that the father may try take the children away from her;[17]
[8] Ibid at [32]
[9] Ibid at [33]-[38]
[10] Ibid at [39]
[11] Ibid at [40]-[58]
[12] Ibid at [59]-[65]
[13] Ibid at [66]-[67]
[14] Ibid at [68]-[70]
[15] Ibid at [72]-[73]
[16] Ibid at [74]
[17] Ibid at [93],[94] and [97]
In her affidavit sworn on 20th December 2010 the mother deposes that the father has not spent time with the children overnight or without her being present, except for one occasion, nor has his time with her exceeded more than two to three hours.[18]
[18] Affidavit of Ms Sabota 20.12.2010 at paragraph [2]
The mother is not confident that either of the father’s sisters Ms F or Ms M would be able to supervise the father’s time with the children, because they are unable to manage his misbehaviour.[19]
[19] Affidavit of Ms Sabota 20.12.2010 at [7]
The mother has commenced to attend the Brighter Futures program to assist her in her dealings with the father.[20]
[20] Ibid at [8]
The documents from the NSW Police comprising Exhibit 1 show:
a)A police officer expressing serious concern on 16th August 2010 that the children may be harmed by the father;
b)On 6th May 2010 the father was involved in an altercation with two men at [omitted] and after he left the premises he was involved in a further altercation which resulted in one discharging a hand gun at the father, wounding him in the leg;
c)The father was arrested on 20th September 2009 in an intoxicated condition at [omitted] and subsequently charged with various offences;
d)On 15th April 2009 the father was arrested by police when affected by an illegal drug; and
e)The father has come under notice for abusive and threatening behaviour on various other occasions.
The documents comprising Exhibit 2 relate to the father’s assessment by the [omitted] Hospital & Community Health Service Alcohol and Other Drugs Service who had been referred in January 2010 by the NSW Probation and Parole Service after he was placed on a suspended sentence.
Exhibit 3 comprises the father’s criminal antecedents. The father’s criminal history shows convictions for the following offences:
a)Assault police;
b)Common assault (two offences);
c)Drive with middle range prescribed quantity of alcohol;
d)Drive whilst disqualified;
e)Use offensive language;
f)Demand property with menaces.
The father received a sentence at [omitted] Local Court on
21st September 2009 of two years imprisonment which was suspended on his entering into a bond for a period of two years, conditional upon his being supervised by the Probation Service and obey all reasonable directions for counselling, educational development and drug and alcohol rehabilitation.
The father deposed that he was unemployed and the sole carer for his mother. After he and the mother separated, he would spend time with [X] approximately twice a week.[21] He continued to have a sexual relationship with the mother, who became pregnant on two occasions but terminated those pregnancies.[22]
[21] Affidavit of Mr Mackey 29.11.2010 at paragraph [18]
[22] Ibid at [27]-[28]
The mother became pregnant with [Y] at a time when he and the mother were trying to get back together again. He was always “a main caregiver” for the children.[23]
[23] Ibid at [[29]-[31]
The father denied that he had been violent [X].[24] He claims that the mother has made numerous false allegations to the police about him, driven by jealousy because she believes that he has a girlfriend.[25]
[24] Ibid at [33]
[25] Ibid at [34]-[35]
The father denies:
a)having physically or emotionally abused the children or the mother;[26]
b)swearing in front of the children;[27] or
c)having sex in front of either of the children.[28]
[26] Ibid at [36]
[27] Ibid at [37]
[28] Ibid at [38]
The father is critical of the mother’s care of the children, claiming that she:
a)Does not feed them properly;[29]
b)Swears at the children or in their presence;[30] and
c)Disciplines the children by hitting them.[31]
[29] Ibid at [39]-[40]
[30] Ibid at [41]
[31] Ibid at [44]
The father denies that he intends to take the children away and claims that he has tried to make arrangements to spend time with them, but the mother has refused to let him see them.[32]
[32] Ibid at [42]-[43], [48]-[49]
In his affidavit of 13th December 2010, the father deposes that:
a)
He was randomly shot by a stranger from a passing car on
5th May 2010;
b)He has never sold drugs nor used drugs;
c)He has never assaulted his children; and
d)His sisters Ms F and Ms M have a loving relationship with the children and would be able to supervise his time with them.
The father annexed to his affidavit a drug screening report dated
3rd December 2010 showing that none of the following were detected:
a)Methadone Metabolite;
b)Opiates;
c)Amphetamine;
d)Benzodiazepines;
e)Cocaine Metabolites;
f)Barbiturates; or
g)Cannabinoids
The affidavit of the father’s sister Ms M states that she:
a)is 22 years of age;
b)is in full-time employment;
c)has a loving relationship with the children; and
d)would be more than happy to supervise his time with the children.
The affidavit of the father’s sister Ms F states that she:
a)is 28 years old;
b)gave birth to a daughter on [date omitted] 2010;
c)lives at home on a permanent basis;
d)would be willing to supervise the father’s time with the children; and
e)has a very good relationship with them
Submissions
The Independent Children’s Lawyer has prepared a Minute of proposed orders which provide for supervised time between the father and the children, subject to the father undertaking urinalysis to detect the presence of illicit drugs.
Ms K, the Independent Children’s Lawyer, submitted that there should be supervised time at a contact centre. There should be no unsupervised time, noting that the father is currently on a suspended sentence for two years. It would be appropriate for the parties to attend at the [K] Contact Centre in January for the purposes of an assessment.
The Independent Children’s Lawyer was of the view that this was a case that would benefit from a Family Report.
The father’s solicitor, Ms Saldaneri, submitted that her client agreed with all of the proposed interim orders, but was concerned that there would be no contact with the children until February. There would be a further two months where the children would not see their father, who had not seen them since October.
As to the allegation of abuse against [X], there were no charges of assault made against the father. The Apprehended Violence Order went to a final hearing in the Local Court and was dismissed. There are no other allegations of physical violence.
Ms Saldaneri submitted that there should be supervised contact for at least two hours a week. The paternal aunts, Ms M and Ms F, who were both on affidavit, would be available as supervisors. She also submitted that telephone contact between the children and their father would be appropriate.
However, the suggestion of telephone contact was opposed by the Independent Children’s Lawyer, who said that she had interviewed [X], who did not want to talk to her father on the telephone.
The mother’s solicitor told the Court that his client consented to the orders sought by the Independent Children’s Lawyer. The sisters would not be proper supervisors, for the reasons set out in the mother’s affidavit of 20th December 2010.
The mother’s solicitor prepared a comprehensive Case Outline Document, setting out submissions on the various matters relevant to s.60CC of the Family Law Act.
He submitted that the mother, notwithstanding her fears for her own safety and the safety of the children, and her dissatisfaction with the:
a)the father’s inability to care for the children;
b)the lack of appropriate supervision; and
c)the grossly inappropriate environment that is the father’s residence,
had facilitated the father spending time with the children in accordance with the orders made in 2002.
Further, there was a need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. In particular, Mr Todd referred to these points:
a)The father has dealt in drugs since about 2000;
b)The father makes no admissions about his drug use, and the toxicology test provided with the father’s affidavit was of limited value;
c)The father has suffered a gunshot wound in a way that was inconsistent with his affidavit evidence;
d)There has been a significant history of family violence;
e)The father has sexually assaulted the mother;
f)[Y] has exhibited some disturbing behaviour as a result of the instances of sexual assault in his presence; and
g)The children need to be protected from psychological harm as a result of the father’s behaviour.
The Applicable Law
Section 60CA of the Family Law Act sets out that in deciding whether to make a particular parenting order in relation to children, the Court must regard the children’s best interests as the paramount consideration.
In order to decide what is in the children’s best interests, the Court must consider:
a)the primary considerations subsection 60CC(2) of the Act;
b)the additional considerations in subsection 60CC(3);
c)the extent to which each parent has fulfilled, or failed to fulfil, his or her responsibilities as a parent; and
d)where the children’s parents have separated, events that have happened and circumstances that have existed since the separation occurred.
I have done so in this case.
The Court must also consider the presumption in s.61DA of the Family Law Act that it is in children’s best interests for their parents to have equal shared parental responsibility for them, and consider whether that presumption should apply in the particular circumstances of the case (see Goode & Goode[33]).
[33] [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422
In the circumstances of this case, where the relationship between the parties is strained and there are allegations of family violence, I consider that it would be inappropriate for the resumption to be applied.
In any event, s.61DB of the Act provides that, when making a final parenting order, the Court must disregard the allocation of parental responsibility made in the interim order. The matter can be considered at the final hearing.
Conclusions
The principal issue that the Court must consider is the risk of harm to the children. The evidence has not been tested, but the Court must give weight to the evidence going to violence, abusive behaviour, and illegal drug use on the part of the father. It is not in issue that the father sustained a gunshot wound in an incident in May 2010, and the circumstances as reported by the Police differ greatly from the account deposed to by the father.
Where the Court is concerned about the risk of harm to the children, it must err on the side of caution and look to supervision of the father’s time with the children. That is the position of the Independent Children’s Lawyer and neither party opposes that approach.
I am not satisfied that there should be no time spent by the father with the children at this stage. However, I note that there is evidence that the older child, [X], does not wish to speak to the father at this stage. This comes both from the mother’s affidavit of 6th September 2010 and from a submission by the Independent Children’s Lawyer, who has interviewed the child.
The Court is required to consider the views expressed by the children and give those views such weight as the children’s maturity and level of understanding would indicate is appropriate (see s.60CC(3)(a)). In this case, [X] is 9 years old and her view would be given some weight at this stage.
Essentially, I propose to follow the approach suggested by the Independent Children’s Lawyer and make orders that would allow time with the children under supervision at a Contact Centre.
At the request of the father’s solicitor, I have already ordered that the parents should attend the [K] Contact Centre or a similar organization nominated by the Independent Children’s Lawyer for the purpose of completing the intake process to facilitate the children spending time with the father.
I am not prepared to make an order at this stage about either child speaking to the father on the telephone, but this can be revisited at an appropriate time in the future. Also, I am not at this stage persuaded that the father’s sister, or either of them, should supervise the father’s time with the children, but this, too, can be revisited at a suitable time in the future if there is more evidence that would support such an order.
I will certainly order that the parties should attend upon a Family Counsellor for the preparation of a Family Report under the provisions of s.62G of the Act for the purposes of the final hearing.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 11 January 2011
0