Saville and Meyer
[2012] FMCAfam 276
•17 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAVILLE & MEYER | [2012] FMCAfam 276 |
| FAMILY LAW – Children – contact. |
| Family Law Act 1975, Part VII, ss.60B, 60CA, 60CC, 61C, 61DA, 64B, 65DAA Liquor Act 2007 (NSW) |
| Rice v Asplund (1979) 6 FamLR 570 Goode & Goode (2006) FLC 93-289 |
| Applicant: | MS SAVILLE |
| Respondent: | MR MEYER |
| File Number: | NCC 323 of 2008 |
| Judgment of: | Myers FM |
| Hearing dates: | 15, 16 and 17 February 2012 |
| Date of Last Submission: | 17 February 2012 |
| Delivered at: | Newcastle |
| Delivered on: | 17 February 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Davies |
| Solicitors for the Applicant: | The Charlestown Law Firm |
| Solicitors for the Respondent: | Self Represented |
| Counsel for the Independent Children’s Lawyer: | Ms O’Rourke |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW Newcastle |
ORDERS
All previous parenting orders in relation to the child [X] born [in] 2005 ("[X]") are discharged.
The mother and father are to have equal shared parental responsibility for [X].
[X] is to live with the mother.
Subject to order 9, [X] is to live with the Father as follows:
(a)On weekends provided for at order 29 below from Thursday if Friday is a public holiday or pupil free day from the conclusion of [X]’s school until the commencement of school on the following Monday or Tuesday if the Monday is a public holiday or pupil free day.
(b)In, and from, the school holidays at the commencement of the term 1 gazetted school holidays in 2013 and thereafter as follows:
(i)In school holidays:
(ii)At the end of terms 1, 2 and 3 on the last days of school and for seven nights and [X] will be returned to the mother at 9.00a.m.on the 8th day.
(iii)At the end of term 4 gazetted Christmas school holidays commencing on Boxing Day 26 December at 9 a.m. for 21 nights with [X] returned to the mother at 9 a.m. on 16 January, commencing in 2013 and then in each year.
(c)If [X] is not otherwise spending time with the Father, on [X]’s birthday from 3.00pm until 7.00pm, only if the birthday falls on a school day;
(d)If [X] is not otherwise spending time with the Father on the Father’s birthday, [date omitted], from 3.00pm until 7.00pm, only if the birthday falls on a school day;
(e)If [X] is not otherwise spending time with the Father on the weekend of Father's Day, then for the Father's Day weekend collection at school Friday until the commencement of school on Monday;
(f)If [X] is not otherwise spending time with the Father for a full weekend from Friday after school until Monday morning on the occasions of the end of Ramadan and the end of the Haj pilgrimage weekend provided that the dates of these weekends are notified to the mother at least six (6) months prior to their occurrence.
(g)From Friday after school until Monday before school in the event of the father’s wedding, engagement or the wedding of the father’s sister, [name omitted].
(h)On the occasions of the funerals of members of the paternal family with such time to commence at 4.30pm on the eve of the funeral and conclude on the day after the funeral with provision being made for [X] to attend school if the funerals occur during school time.
(i)It is agreed between the parties that if the father has any further children [X] will spend time with the father on those children’s birthdays as similarly specified for [Y]’s birthday in Order 5b.
(j)As otherwise agreed between the parties, in writing, from time to time.
The Father’s time with [X] is suspended:
(a)If Mother's Day falls on a weekend when [X] is otherwise with the Father, then [X]’s time with the father for that weekend will be suspended and the father’s time with [X] shall commence on the following weekend.
(b)On [date omitted] in each year, the birthday of the child, [Y], from 9 a.m. on that day until 5 p.m. that day.
(c)On the occasion of the funerals of members of the maternal family with such time to commence at 4.30pm on the eve of the funeral and conclude on the day after the funeral with provision being made for [X] to attend school if the funerals occur during school time.
Orders 4 and 5 and Orders 25-33 are to be implemented as follows:
(a)For orders 29, by the father collecting [X] from school at the commencement of [X]'s time with the father and the father delivering [X] to school at the conclusion of [X]'s time with the father.
(b)Using the services of the Rainbow's Children's Contact Service at [address omitted] NSW ("Rainbows"); save that
(c)If Rainbows is not available, by the parents and [X] meeting at the Police Station at [omitted] NSW;
(d)To engage the services of Rainbows, the parties must:
(i)Within 7 days, contact Rainbows and arrange an appointment for assessment for suitability for supervision;
(ii)Comply with all appointments made by Rainbows for the parties' and [X]'s attendances on Rainbows (in relation to, both, general appointments and [X] spending time with the Father);
(iii)Comply with all rules, requests and directions of Rainbows; and
(iv)Pay, in equal shares, the costs of Rainbows as, and when, those costs fall due.
(e)As otherwise agreed between the parties, in writing, from time to time.
From the date of these orders until 16th August 2012, the father must, at his cost, undertake supervised drugs screen urinalysis (testing for all illegal drugs) as follows:
(a)On no more than one occasion each calendar month, the Independent Children’s Lawyer, (ICL), may give notice to the father, by a SMS text message and email, that he is required to undertake supervised urine analysis;
(b)Within 24 hours of the date of such notice, the father must undertake supervised urine analysis;
(c)Within 7 days of the father undertaking supervised urine analysis, the father must provide a copy of the results of the supervised urine analysis to the ICL who will forward such result to the mother.
It is noted that the Court Expert Report of Dr W released 3 May 2011 (the "Court Expert Report”) and the Family Report of Ms T released 21 April 2011 (the "Family Report") both recommend that the Father engage with a psychiatrist and take antipsychotic medication to keep his mental health stable, if prescribed by such psychiatrist.
The Father must, at his cost:
(a)Within 7 days, obtain a referral from his general medical practitioner for the Father to attend upon a psychiatrist (collectively "the psychiatrist");
(b)Within a further 7 days, contact the psychiatrist and make the first available appointment with that psychiatrist;
(c)Within a further 48 hours, notify the ICL of the details of the psychiatrist and the date of his first appointment with the psychiatrist;
(d)Provide the psychiatrist with copies of these Orders the Court Expert Report and the Family Report;
(e)Until directed otherwise by the psychiatrist, use his best endeavours to arrange appointments with the psychiatrist at least once each 2 consecutive calendar months, or more frequently should the psychiatrist direct, and that he attends on all appointments unless he is able to demonstrate a reasonable excuse for any non-attendance;
(f)Comply with the psychiatrist’s directions;
(g)On his first attendance on the psychiatrist, provide the psychiatrist with an Irrevocable Authority (and the ICL with a copy of the Irrevocable Authority) for the psychiatrist to immediately notify the ICL if the father:
(i)Without an excuse reasonable to the psychiatrist, fails to attend an appointment with the psychiatrist;
(ii)Fails to comply with the psychiatrist’s directions;
(iii)Suffers deterioration in his mental health; or
(iv)In the opinion of the psychiatrist, has used illegal drugs since the date of these orders;
(h)Within two weeks of his first appointment and thereafter every two months, obtain a letter from the psychiatrist in relation to the father detailing the psychiatrist’s assessment, his diagnosis, and the treatment, if any, of the father, and provide a copy of the reports to the ICL, with such reports to include whether or not:
(i)the psychiatrist has read a copy of the Court Expert Report and the Family Report;
(ii)The Father has attended on the psychiatrist in compliance with the orders;
(iii)The Father has complied with the psychiatrist’s directions;
(iv)There are concerns about the father’s mental health;
(v)In the opinion of the psychiatrist, the father has used illegal drugs since the date of these orders; and
(vi)The psychiatrist is satisfied that the father is not a risk to the [X] if the orders for [X] to spend time with the father are to continue.
Orders 4, 5 and Orders 25-33 for [X] to spend time with the father are suspended, and [X] is to spend time with the father as determined by the mother, if:
(a)The father fails to provide the ICL with a copy of an urinalysis report pursuant to order 7; or
(b)The father provides the ICL an urinalysis report which shows a positive result for illegal drugs.
Orders 4, 5 and Orders 25-33 for [X] to spend time with the father are suspended and [X] is to spend time with him as determined by the ICL if;
(a)The father fails to provide the ICL with a letter from the psychiatrist confirming the father’s attendance on the psychiatrist pursuant to order 9; or
(b)The psychiatrist notifies the mother that:
(i)Without an excuse reasonable, the father has failed to attend an appointment; or
(ii)The father has failed to comply with his directions; or
(iii)There are concerns about the father’s mental health; or
(iv)The psychiatrist is not satisfied that the father is not a risk to [X] if the orders for [X] to spend time with the father are to continue;
(v)In the opinion of the psychiatrist, the father has used illegal drugs since the date of these orders; or
(c)The father fails to provide the mother with the reports pursuant to the orders 9h; or
(d)One of the reports state that:
(i)The psychiatrist has not read a copy of the Court Expert Report and the Family Report; or
(ii)The father has not attended on the psychiatrist in compliance with the orders; or
(iii)The father has not complied with the psychiatrist’s directions; or
(iv)There are concerns about the father’s mental health;
(v)In the opinion of the psychiatrist, the father has used illegal drugs since the date of these orders; or
(vi)The psychiatrist is not satisfied that the father is not a risk to the [X] if the orders for [X] to spend time with the father are to continue; or.
(e)The father is admitted to a hospital as a result of a drug overdose or mental illness.
If, pursuant to orders 9-10 and or 11, orders 4, 5 and 25-33 for [X] to spend time with the father are suspended, either parent has leave to commence fresh proceedings seeking a variation of these orders.
Neither party shall become intoxicated within the meaning of Section 5(1)(a)(b) of the Liquor Act 2007 (NSW), whilst the said child is in that party’s care, and neither party shall knowingly allow the said child to be brought into contact with any person who is intoxicated whilst the said child is in that party’s care.
The parents must not use illegal drugs and must not knowingly allow [X] to remain in the presence of persons who have used illegal drugs.
The parents must not denigrate the other party or members of the other party's family or friends to, or within the hearing of, [X] and must not allow others persons to do so.
The parents must not physically discipline [X] and must not allow other persons to do so.
The father must, at his cost, attend and complete a parenting skills course (provided by one of Relationships Australia, Unifam, Centacare) and must:
(a)Within 7 days contact a course provider and enrol in the first available course;
(b)Attend each session of the course;
(c)At the conclusion of the course, obtain a letter from the course provider certifying sessions attended and completion of the course; and
(d)Promptly provide the Mother with a copy of the letter.
The mother must, at her cost, attend and complete a parenting after separation course (provided by one of Relationships Australia, Unifam, Centacare) and must:
(a)within 7 days contact a course provider and enrol in the first available course;
(b)attend each session of the course;
(c)at the conclusion of the course, obtain a letter from the course provider certifying sessions attended and completion of the course; and
(d)promptly provide the Father with a copy of the letter.
The parents must ensure that the other parent is informed as soon as reasonably practicable, and no later than 24 hours, of any medical matter involving [X] when [X] is in their care.
If [X] is participating in any extra-curricular activity as agreed by both parties at the time of enrolment into such activity then both parents will ensure [X]’s attendance at his chosen activities during the time [X] lives with each of them.
In the event of the death of [X], once [X]’s body is released by the authorities, the mother will be entitled to conduct such Christian funeral rites as she wishes and thereafter [X]’s body is to be delivered to the father for Islamic burial rites.
These orders are sufficient authority for each parent to obtain (at their cost) information in relation to [X] from any medical professional treating [X].
These orders are sufficient authority for each parent to obtain (at their cost) information (including notices, newsletter, reports, photographs and the like) in relation to [X] from [X]'s school.
The parents must keep the other parent provided with up-to-date details of their address and contact telephone numbers and the parties will communicate with each other by text message with the father’s phone number being [omitted] and the mother’s phone number being [omitted].
THE COURT NOTES THAT BY CONSENT:
A.It is agreed between the parents that in the event of the death of a parent the living parent will ensure that [X] continues a relationship with the deceased’s parent’s family.
BY ORDER OF THE COURT MADE ON 17 FEBRUARY 2012 THAT:
The child [X] born [in] 2005 spend time with the father from 10.00am to 5.00pm supervised by the paternal grandfather each Saturday for a period of three weeks commencing on 18 February 2012.
The said child spend time with the father from 9.00am Saturday 10 March 2012 until 5.30pm Sunday 11 March 2012 supervised by the paternal grandfather.
The paternal grandfather continue to supervise the father’s time with the child until the father’s Psychiatrist provides a letter to the Independent Children’s Lawyer in accordance with the provisions of these orders.
The child [X] spend time with the father from Friday 16 March 2012 collection at school, return to school on the following Monday 19 March 2012 and then on such weekends as are set out in order 29 below.
The child shall live with and spend time with the mother and the father on a ten week repeating cycle commencing on Friday 23 March 2012 as follows:
(i)week one with the mother
(ii)week two with the father from collection at school Friday return to school Monday
(iii)week three with the father from collection at school Friday return to school Monday
(iv)week four with the mother
(v)week five with the father from collection at school Friday return to school Monday
(vi)week six with the mother
(vii)week seven with the father from collection at school Friday return to school Monday
(viii)week eight with the father from collection at school Friday return to school Monday
(ix)week nine with the mother
(x)week ten with the father from collection at school Friday return to school Monday
The child spend time with the father in the April gazetted school holidays commencing on Easter Monday at 4.00pm on 9 April 2012 until 4.00pm Friday 13 April 2012.
The child spend time with the father from 4.00pm 30 June 2012 until 4.00pm Thursday 12 July 2012.
The child spend time with the father from Saturday 22 September 2012 until 4.00pm Thursday 27 September 2012.
The child spend time with the father for a period of 14 days commencing on 26 December 2012.
The parties time pursuant to order 29 above with respect to weekends shall be suspended during the gazetted school holiday periods commencing on the first weekend following conclusion of school and finishing on the last weekend before the commencement of school and that the ten week cycle as set out in order 29 above shall commence on the first weekend following the commencement of school.
The appointment of the Independent Children’s Lawyer continue for the purposes of compliance with orders 7-10 of these orders until 2013.
Neither party will provide to [X]’s school, or any teacher or employee at [X]’s school a copy of these orders with the exception of the orders which repeat Orders 22 and 23 of these orders and that are attached and marked ‘A’.
Pursuant to section 65DA(2) of the Family Law Act1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “B” attached hereto and these particulars are included in these Orders.
The Independent Children’s Lawyer’s application for costs against the respondent father is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Saville & Meyer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 323 of 2008
| MS SAVILLE |
Applicant
And
| MR MEYER |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
This is a matter concerning a child of the relationship [X] born [in] 2005. [X] is currently six years of age.
The applicant mother relies upon documents filed in these proceedings. The documents are a case outline filed by the applicant mother, an amended initiating application filed 28 October 2011, and an affidavit sworn by the applicant mother on 12 January 2012. I have read and considered the mother’s documents.
The respondent father relies upon documents filed in these proceedings. The documents are an amended response to an initiating application filed 14 September 2011. The respondent father relies on an affidavit sworn by him on 4 August 2011, 14 September 2011 and 6 December 2011. I have read and considered the father’s documents.
The Independent Children’s Lawyer has filed an outline of case document and proposed terms of settlement prepared by the ICL that were handed up at the commencement of the trial. I have read and considered those documents.
I have also read and considered the report of Dr W dated 28 March 2011 and report of Ms T dated 14 August 2011.
The history of this matter is as set out below.
The father was born [in] 1975. He is now aged 36 years. The mother was born [in] 1977 and she is currently 34 years.
On 15 August 1995 the father was convicted of a mid range PCA offence. In August of 1998 the father was admitted into the [omitted] Hospital in respect of psychosis and a drug overdose.
In July 1999 the father self presented at the [omitted] Hospital with psychotic symptoms. In February 2000 the father was admitted to the [omitted] Hospital with respect to drug induced psychosis. In 2000 the father entered into a residential rehabilitation program with respect to his drug use. In January 2001 the father was admitted to the [omitted] Hospital re detoxification for ecstasy. [In] 2001 the mother had a child, [Y], who is now aged 11 years, to a previous relationship. [Y] lives with, and has continued to live with, the mother in her household.
On 13 August 2001 the father was convicted of an offence of affray. In November 2001 the father was admitted to the [omitted] Hospital re drug induced psychosis and polysubstance abuse. Between December 2001 and 2004 the father was admitted to the [omitted] Hospital on a number of occasions and entered into a drug rehabilitation program on at least two occasions. In April 2004 the parties commenced living together in [omitted].
In September 2004 and February 2005 the father presented at the [omitted] Hospital in respect of psychosis. [In] 2005 the parties married and commenced living in [omitted].
[In] 2005 the parties’ son, [X], was born. The parties separated in August 2006 and at that time the mother, with [Y], moved with [X] to Newcastle.
On 15 December 2006 the father commenced proceedings for parenting orders in the local court at [omitted]. The matter was transferred to the Federal Magistrates Court in Sydney.
On 20 December 2006 an interim Apprehended Violence Order was made in favour of the mother against the father. On 19 February 2007 the father was convicted of a breach Apprehended Violence Order offence. On 19 February 2007 final orders were made for an Apprehended Violence Order in favour of the mother against the father for a period of 12 months. On 23 March 2007 at the Federal Magistrates Court in Sydney, final orders were made by consent essentially that [X] live with the mother and spend specific time with the father with change overs to be at the [omitted] police station. On 25 March 2007 the parties divorced.
On 9 May 2007 the Apprehended Violence Order was varied. In September 2007 the father presented at the [omitted] Hospital with drug induced psychosis. Again, in September 2007 the father presented at the [omitted] Hospital and then entered into a residential drug rehabilitation program. The father, when interviewed by Dr W, informed Dr W that he lapsed into drug abuse somewhere between 2008 to 2009. In October 2008 the father was admitted to the [omitted] Hospital with drug induced psychosis.
In 2009 the father entered into [omitted] for drug rehabilitation. In 2010 the father engaged with Dr B, a psychologist, ending in August 2010. In March 2010 the father presented at [omitted] Hospital depressed and requesting help.
In August 2010 the father filed an application for contravention alleging that the mother had not allowed [X] to spend time with the father. On 13 October 2010 an Apprehended Violence Order was made in favour of the mother against the father for a period of two years.
The father subsequently appealed the Apprehended Violence Order. On 25 March 2010 the mother filed an initiating application in the Federal Magistrates Court at this registry seeking orders that all previous orders be discharged, that [X] live with the mother, that the mother have sole parental responsibility in respect of decisions concerning [X]’s long term care, welfare and development, that the father spend time with [X] every second Saturday from 12 noon until 6 pm supervised by the Rainbow Children’s Contact Service and such time to commence after the father has received psychiatric assessment via a mental health unit, nominating the [omitted] Hospital at [omitted], and that such assessment to be forwarded to the court.
In October/November 2010 the father attended and completed a parenting after separation course with Relationships Australia. The father attended and completed five of the six sessions of the Hey Dad course with the Newcastle Family Support Services. On 3 November 2010 the parties attended upon family consultant, [name omitted]. On 3 November 2010 orders were made that the parties enrol in and complete the Unifam Keeping in Contact program which is a contact support program designed to assist parents in high conflict.
The father filed and served a response and affidavit and the substantive application was adjourned to 20 December 2010 for what is best described as called a Rice & Asplund (1979) 6 FamLR 570 threshold argument.
On 20 December 2010 the proceedings were heard before the court on the Rice & Asplund (1979) 6 FamLR 570 argument. The court made orders allowing the matter to proceed on a further basis.
On 23 November 2010 the father filed a response to an initiating application seeking orders essentially that the mother and father have equal shared parental responsibility, that [X] live with the mother, that [X] spend time with the father. On 19 January 2011 the father filed an application in case seeking orders essentially that the court allows [X] to travel to Sydney with the father for the paternal uncle’s wedding. The father sought an order for short service. Short service was refused by the registrar. The application was listed for determination on 10 February 2011. The father then filed an application in a case for review of a refusal. That was in turn refused by my brother, Coakes FM.
On 3 February 2011 the father’s appeal against the Apprehended Violence Order was heard and upheld with the Apprehended Violence Order being revoked. In February 2011 the parties commenced Unifam Keeping in Contact program. On 10 February 2011 orders were made by consent for the appointment of Dr W as a court expert to prepare a psychiatric assessment of the father, for the father to undertaken random supervised urinalysis drug testing at the request of the Independent Children’s Lawyer, and for [X] to spend defined supervised time with the father to attend upon the paternal uncle’s wedding.
Proceedings were adjourned until 12 May 2011. On 28 February 2011 the Independent Children’s Lawyer requested the father to undertake random supervised urinalysis drug testing. On 17 March 2011 the father undertook the random supervised urinalysis drug testing. The results were negative for illicit drugs. On 24 March 2011 the ICL made a further request for supervised urinalysis drug testing. On 28 March 2011 the father attended on Dr W for psychiatric assessment. Urinalysis test results were not provided with respect to the request of 24 March.
On 28 April 2011 the Independent Children’s Lawyer requested supervised urinalysis drug testing. On 3 May 2011 the father undertook random supervised drug testing. The results were negative for drugs. On 3 May 2011 Dr W’s report was released. The proceedings were before the court again on 12 May 2011 for the hearing of the substantive application. Consent orders were made on an interim basis, essentially that the parties ensure that the other party is informed as soon as reasonably practicable of any medical emergency involving [X] when [X] was in their care, that the orders are sufficient authority for each party to obtain information in relation to [X]’s doctors and school, that a family report be prepared, that all other outstanding applications be adjourned to 16 September 2011.
Between 23 May 2011 and 9 August 2011 the Independent Children’s Lawyer requested a number of supervised urinalysis drug tests to be carried out by the father. On each occasion the father undertook the supervised urinalysis drug testing and on each occasion the drug testing results was negative for illegal drugs.
On 9 August the parties attended upon Ms T for the preparation of a family report. On 21 August the report was released. On 14 September 2011 Unifam wrote to the court and advised that the parties had completed the Keeping in Contact program.
Again, on 11 August, 8 November and 6 December 2011, the father was requested to undertake random supervised urinalysis drug testing. On each occasion the tests results were returned negative for drugs.
The parties have largely agreed on various matters relating to living arrangements, care, issues relating to the father engaging with a psychiatrist via referral from his GP within terms of settlement that were handed up to me yesterday.
The areas of agreement are that all other orders with respect to the child, [X], be discharged, that the parties have equal shared parental responsibility, that [X] live with the mother. There is no agreement as to the time the father is to spend with [X] or when such time is to commence and, if to commence, on a staggered basis or simply to commence. There is agreement that any time the father spends with the child on a weekend time be from Thursday, if Friday is a public holiday, or to Tuesday, if Monday is a public holiday.
Ultimately there is agreement about what will take place with respect to the school holidays commencing in the year 2013 whereby the child will spend time with the father for seven days during each of the end of term one, two and three gazetted school holidays and for a period of 21 days during the 2013/2014 summer school holiday period and thereafter each year for the same times. There is agreement as to the father and mother spending time with [X] during the mother’s day weekend and father’s day weekend.
There is agreement with respect to the child spending time with the father for the two Muslim Eids. There is agreement between the parties as to what might take place should [X] die and the parties need to make funeral arrangements. There are proposed orders that are agreed between the parties with respect to [X] being collected and returned from school.
There was no agreement at the start of submissions in the matter as to whether or not there should be handovers that take place at the Rainbow Children’s Contact Service at [address omitted] although, as the submissions were made and the father had the opportunity to hear submissions made by the Independent Children’s Lawyer, it became apparent that in fact the father would agree to that arrangement and the father now agrees to a position whereby handovers that do not take place at the school are to take place at the Rainbow Children’s Contact Service at [suburb omitted] and, if unavailable, then at the [omitted] police station.
The father has agreed to undertake random supervised urinalysis drug screens until 16 August 2012. Such requests will not be more than one per calendar month as requested by the Independent Children’s Lawyer.
It is noted that the court report of Dr W, the family report of Dr T both recommended that the father undertake and engage with a psychiatrist and the father agrees to this proposal whereby within seven days he will obtain a referral from his general medical practitioner to attend upon a psychiatrist.
Within a further seven days the father will make an appointment with a psychiatrist. Within 48 hours of making the appointment, he will notify the independent children’s lawyer. The father will be required to provide the psychiatrist with copies of the reports of Dr W and report of Dr T. He will thereafter use his best endeavours to arrange appointments with a psychiatrist at least once each two consecutive calendar months or more frequently, should the psychiatrist direct, and that he attend all appointments unless he is able to demonstrate a reasonable excuse for non-attendance, comply with the psychiatrist’s directions.
On the father’s first attendance at the psychiatrist, he will provide the psychiatrist with an irrevocable authority and the Independent Children’s Lawyer with an irrevocable authority that will allow the Independent Children’s Lawyer to communicate with the psychiatrist. Within two weeks of his first appointment and then thereafter every two months the father will obtain a letter from the psychiatrist in relation to the father detailing the psychiatrist’s assessment, his diagnosis and the treatment, if any, of the father and provide a copy of the reports to the ICL.
The report, which will be in the form of a letter, will set out that the psychiatrist has read a copy of the court expert’s report and family report, the father has attended upon the psychiatrist in compliance with the orders, and the father has complied with the psychiatrist and directions and whether or not there are concerns about the father’s mental health and, in the opinion of the psychiatrist whether the father has used illegal drugs since the date of the orders, and whether the psychiatrist is satisfied the father is not a risk to [X] if the orders for [X] to spend time with the father are to continue.
If the father fails to provide a supervised urinalysis drug test screens to the Independent Children’s Lawyer, then the orders are suspended. They are suspended if he fails to comply with the orders with respect to attending upon the psychiatrist and are suspended in certain other circumstances, including if the father is admitted to a hospital as a result of a drug overdose or mental illness or any of the letters from the psychiatrist state that he has not read a copy of the expert’s report and the family report, he has not complied with the orders in that he has not attended upon the psychiatrist, he has not complied with the psychiatrist’s directions, he has taken illegal drugs and or the psychiatrist is not satisfied the father is not a risk to [X].
If the orders are suspended thus disallowing the father to spend time with [X], then either party has leave to commence fresh proceedings seeking a variation of the orders. This proposed order has been put in place, in my view, to overcome any Rice & Asplund (1979) 6 FamLR 576 argument. The parties have agreed to an order with respect to the limit the drinking of alcohol by the parties that reads:
“That neither party shall become intoxicated within the meaning of section 5(1)(a) and (b) of the Liquor Act 2007 New South Wales whilst the said child is in that party’s care and neither party shall knowingly allow the said child to be brought into contact with any person who is intoxicated while the said child is in that party’s care.”
The parties agree to a mutual injunction whereby neither party will use illegal drugs or knowingly allow [X] to remain in the presence of any person who has used illegal drugs. The parties both agree to an order whereby they will not denigrate either party or members of the other party’s family within the hearing or presence of [X] and they must not allow any other person to do so. The parents are not to physically discipline [X] and they are not to allow any other person to do so.
There are orders that require the father, at his cost, to attend and complete a parenting skills course provided by either Relationships Australia, Unifam or Centrecare. The mother, at her cost, must complete a parenting after separation course provided by Relationships Australia, Unifam or Centrecare within particular time limits. The parties are to ensure that they notify each other of – as reasonably practicable, or no later than 24 hours, of any medical emergency relating to [X].
If [X] is participating in any extra curricular activities as agreed by both parties, both parents will ensure [X]’s attendance at his chosen activity during the time [X] lives with each of them. And there is further orders as to what may happen in the case of [X] passing away with respect to his burial rites both by way of the Christian faith and Muslim faith. The orders provide sufficient authority to allow each parent to obtain information in relation to [X] from any medical treating professional.
The orders provide sufficient authority to allow the parties to obtain copies of newsletters, reports, photographs and the like in relation to and from [X]’s school. The parties are to keep each other informed and provided with up-to-date details of their address, contact numbers and they will communicate with each other by text message, or by email, with the father’s phone number and the mother’s phone number also given within the orders. The Independent Children’s Lawyer has reserved her right and flagged the issue that she will seek costs at the conclusion of the giving of my judgment.
That will be dealt with later on. The parties’ proposals differ in respect to the following issues. Whether there should be a staggered build up and a reintroduction of the time [X] spends with his father, the frequency of time [X] spends with his father, the length of supervised time whereby the paternal grandfather supervises the father whilst [X] spends time with the father, the build up of holiday time to a point where the father spends half of all gazetted school holidays with [X].
The parties’ proposals are set out in minutes of order that have been tendered by the parties. Exhibit B is a series of proposed orders by the Independent Children’s Lawyer. The Independent Children’s Lawyer proposes that the supervised time by the paternal grandfather take place until the father has caused a psychiatrist to send the initial letter to the Independent Children’s Lawyer in accordance with the orders. The order is numbered although it may be immaterial as the numbering in the Independent Children’s Lawyer’s proposed orders are probably going to fall outside of any numerical sequence when all the orders are finalised.
The Independent Children’s Lawyer proposes that the child spend time with the father on six occasions each alternate weekend commencing on 24 February from the conclusion of school on Friday until 4 pm on the next following Sunday. Thereafter for a further six occasions commencing the next alternate weekend thereafter and for the following five alternate weekends from the conclusion of school until 4.30 pm on the following Sunday. Thereafter commencing on the next alternate weekend and each alternate weekend thereafter from the conclusion of school on Friday, or Thursday if the school has a public holiday or pupil free day, until the commencement of school on the following Monday or Tuesday, if the Monday is a public holiday or pupil free day.
The Independent Children’s Lawyer proposes the child spend time with the father commencing in the first school holiday period that falls following the conclusion of the child spending time with the father during the two six alternate weekend periods and referred to, with the child to spend time with the father at the end of terms one, two and three for the conclusion of school on the last day for seven nights until 9 am on the eighth day. Providing the father has spent at least one school holiday period referred to in the Independent Children’s Lawyer’s proposed order 4(d)(i) above, for a period of 21 nights commencing at 9 am on Boxing Day until 9 am 22 days later.
The Independent Children’s Lawyer proposes that if [X]’s birthday falls on a weekend when the father is not otherwise spending time with him, the child spend time with the father from 3 pm to 7 pm in each even numbered year. I do not know that there is any disagreement between the parties as to the time the father spends with [X] on his birthday, although it is an order that is sought to be agitated by the Independent Children’s Lawyer. Exhibit C, are a copy of the mother’s proposed orders. Exhibit C encompasses not only the mother’s proposal, but it also encompasses those matters that are agreed between the parties.
I will read from her proposal with respect to the matters that are not agreed.
“Subject to order 9:
(a) [X] is to live with the father for six occasions each alternate weekend commencing 24 February 2012 from the conclusion of [X]’s school until 4.30 pm on the next Saturday.
(b) For six occasions each alternate week and commencing the second Friday after (a) above from the conclusion of [X]’s school until 4.30 pm on the next Sunday.
(c) The father’s time in orders (a) and (b) shall be supervised by the paternal grandfather. Thereafter each alternate weekend from school Friday after (b) above which may be from Thursday, if Friday is a public holiday or pupil free day, from the conclusion of [X]’s school until the commencement of school the following Monday or Tuesday, if the Monday is a public holiday or pupil free day, in and from the school holidays at the end of school term three in 2012, in school holidays at the end of terms one, two and three, on the last day of school and for seven days/nights and [X] will be returned to the mother on the eighth day. At the end of term four, Christmas holidays in 2012 commencing on Boxing Day, 26 December, 9 am for 14 nights with [X] returned to the mother at 9 am on 9 January in each year. At the end of term four Christmas holidays in 2013 and thereafter commencing on Boxing Day, 26 December, at 9 am for 21 nights with [X] returned to the mother at 9 am on 16 January in each year.”
The father’s proposal for the orders he seeks is contained within a document exhibited D. under the heading, “[X]’s Weekend Times with the Father”, the father suggests time is to start from the first Friday of every month and then until Monday change over at school. The father proposes [X]’s weekend time is to commence this coming weekend. The father has agreed that his father, the paternal grandfather, would supervise his time with [X] until such time as the letter is provided to the Independent Children’s Lawyer by his treating psychiatrist.
The father sought essentially three weekends a month, although he then orally changed his application to two weekends in one month, three weekends in the following month, thereafter on a two monthly changing regime of two weekends one month, three weekends the following month, two weekends the following month, three weekends the following month and thereafter. It appears that the father wishes to spend time during the gazetted school holidays, from his submissions, of four days in the first gazetted school holiday period in 2012, four days in the second gazetted school holiday period 2012 and then seven days in the third gazetted school holiday period in 2012 and will consent to a position of 14 days commencing on 26 December 2012, thereafter changing to a position of half of all gazetted school holidays.
By agreement between the parties the outstanding issues were dealt with by the parties by way of submission rather than the giving of evidence. As previously stated, the father changed his position during his submissions. The parties, during the course of the proceedings yesterday, made submissions and I deal with those and discuss those submissions now.
Mr Davies, on behalf of the mother, in his submissions, suggested that the matters are bundled up together and that the matters to be considered were the best interests of the child as set out at section 60CC.
Mr Davies asked that I look at and consider section 60CC(3)(d) looking to the original orders made on 23 March 2007 which were couched in terms of each alternate weekend, that [X] would have been used to that arrangement and that arrangement should remain in place. Mr Davies, in his submission, suggested that the regime of each alternate weekend is the same as the other child being the same as the child of the mother, [Y], and [Y] is an important person in the child’s life and therefore the orders relating to the time [X] spends with his father should be in effect dovetailed and made the same as the time [Y] spends with his father.
It is Mr Davies’ submission that to increase time to three weekends a month could have an unknown effect. It is Mr Davies’ submission that the family report writer, in her recommendations at paragraph 94, suggests that alternate weekends should be made by way of final orders. When reading the report I think that in fact it is not paragraph 94, but in fact recommendations, paragraphs 90 to 93, which I will read as follows:
“90. It is recommended that the parties have shared parental responsibility for decisions regarding [X].
91. It is recommended the arrangements reached by the parties on the day of interviews be reflected in final orders.
92. It is recommended that [X] commence a mid week overnight each week after four occasions of spending Friday from school to Monday to school with the father.
93. It is further recommended an order be made for the father to engage with an appropriate service to access age appropriate parenting skills and that no person physically discipline [X].”
Paragraph 16 of the family report looks at the father’s approach seeking three out of four weekends. In Mr Davies’ submission, the father would get most of the weekends and half of the school holidays and the mother would be left in a position where she deals with [X] undertaking what can be at least described by Mr Davies as the difficult occasions, such as school homework. It is submitted that [X] has now commenced school and there should be no reason to allow one of the parents more non-school time and that the court should divide quality time between the parties.
Mr Davies submits that paragraph 17 of the family report looks at a staggered increase in time. Paragraph 17 to which Mr Davies refers is in fact a number of dot points in an unpaginated report the setting out of, which I find to be unhelpful as it is difficult to find paragraphs within the report, but nevertheless I have read it and I can find my way through it, but it relates to agreements reached between the parties that are provided by way of dot point. I have read and considered those dot points. Mr Davies suggested it is the report writer’s position and the suggestion is made that arrangements be put in place to let [X] get used to and be reintroduced to his father.
I note paragraph 89 of the family report states the family consultant’s view of [X] spending substantial time and with the father is that this should occur as long as the father provides 12 months of negative drug screens, engages with a psychiatrist and commences anti-psychotic medication as suggested by Dr W. At paragraph 81 the family report writer states:
“[X]’s views in regard to spending overnight time with the father are developmentally appropriate as he has had little retrievable memory without sight triggers of his overnight time spent in the past. He is aware that the mother sees the father as somewhat dangerous necessitating a police presence with the mother when the mother comes in contact with the father. [X] has been told that the father was mean to the mother, someone he loves, and he is aware that [Y], who he looks up to, does not like the father. Even though [X] appears to have his own positive experience of the father, he will remain anxious about him as a result of the change over situation. Any overnight time needs to occur sensitively in regards to these issues and [X]’s young age.”
Mr Davies submits that it would be appropriate that while the father is confirming his status as being drug free, there needs to be a longer lead in period. In respect of supervision, Mr Davies submits the family report suggests no overnight time until 12 months of drug screens and engagement with a psychiatrist. As a method of allowing overnight time, it would be appropriate that it take place supervised by the paternal grandfather and without supervision, it would be not appropriate for there to be overnight time.
It is Mr Davies’ submissions that the paternal grandfather acted protectively in 2010 and points to the mother’s affidavit whereby she deposes that the father had been consuming drugs and was asked to leave by the paternal grandfather. It is Mr Davies’ submission that given that the paternal grandfather is willing to supervise the father, that he do so for a period of 24 weeks and during that time [X] will get used to the father. It is Mr Davies’ submission that the question of supervision is essential to the father spending overnight time with [X].
The father, in his submissions, asks that I look at and consider section 60CC(3)(d). It is the father’s submission that the separation was forced upon him and that he wants to move on from the past. The father submits that he is [X]’s father and that [X] has not spent time with him for 500 days straight and that three weekends a month is only a 10 per cent difference. The father made submissions as to why he did not seek mid week time in accordance with the recommendations made by the Family Consultant Ms T and stated, in his submissions, that he believed mid week would be disruptive as there are two children in the mother’s household and [X] is going to school and he did not want to disrupt [X]’s schooling or routine.
It was the father’s position that a mid week overnight time would not make any difference to his son’s relationship with him and that [X] has missed out on time with his father. The father, during the course of his submissions, changed his position to that of rather than three weekends a month, two weekends one month, three weekends the following month on an alternating regime of two weeks a month, three weeks a month, two weekends a month, three weekends a month and thereafter.
The father looked at section 65DAA. There was some discussions as to the contents of section 65DAA during the course of the submissions. The father was stopped so that section 65DAA, in particular subparagraph (3), could be read to him so that there was a clear understanding of the meaning of significant and substantial time. The father states that he does not want 50/50 shared care time. He respects the mother. He accepts that the mother will miss [X] and [X] will miss the mother and believes that his proposal is one in the best interests of [X].
The father gave submissions about the issue of staggering a reintroduction of time. He suggested that it should start this weekend. The father gave an example of when a father travels overseas to work. The father’s example was of a father in the army and that when he returns to his family after long service, there is no staggering of time. The father looks to and relies on paragraphs 76 to 79 of the report of Ms T, and I will read those:
‘In observation, [X] looked at photographs
the father had brought depicting [X] asleep in bed and visiting the father’s and paternal families houses. [X] became very excited, stating he remembered people and places and could remind the father of factual details about the places and people. When [X] first saw the father prior to the formal interview, [X] was exiting his interview and the father was sitting in the waiting room. [X] immediately smiled and approached the father for affection. He lay for some minutes along the father’s chest with his arms around the father’s neck. He appeared relaxed and comfortable and content to stay there for some time. On another occasion when [X] came across the father in the waiting room, he again approached the father spontaneously and curled up in the father’s lap and seemed content to stay there for some time. In the formal observation session, [X] interacted warmly and comfortably with the father and chatted freely. He accepted the food and drink the father had brought and was seen to enjoy being reminded of the time he spent with the father when he was young and [X] remembered he could name the paternal grandparents and other family members.’
With respect to the issue of supervision, there was some discussions about the meaning of supervision during the submissions. The father confirmed during those submissions that he understood the meaning of supervision as required by this court, but stated it was not necessary for supervision to take place. The father’s indication he would be prepared to accept supervision in place by the paternal grandfather until such time as the letter was provided by the psychiatrist to the Independent Children’s Lawyer.
The Independent Children’s Lawyer seeks the same time regime as that set out by the mother and the independent children’s lawyer relied on the submissions made by Mr Davies on behalf of the applicant mother. The Independent Children’s Lawyer sought different orders with respect to supervision and the Independent Children’s Lawyer’s proposal is the same as the respondent father’s in that the father’s time with [X] be supervised until such time as the father’s psychiatrist provides a letter, as required by the orders, to the Independent Children’s Lawyer.
The Independent Children’s Lawyer suggested that this is a case for overnight mid week time, but accepted that the father did not seek such orders. The Independent Children’s Lawyer submitted that percentages of times and days on a percentage basis is not appropriate and that
Ms T suggests there should be weekend time and mid week time. The Independent Children’s Lawyer refers to paragraph 81, which I have read previously in the delivery of this judgment, talking about the sensitive reintroduction of time between [X] and the father.
The Independent Children’s Lawyer asked that I consider the dot points after paragraph 17 within Ms T’s unpaginated report, and I have read and considered those dot points. It is submitted that the supervision should take place for six occasions, alternate weekend times of one night then six alternate occasions of two nights, being a total of 24 nights, although ultimately the Independent Children’s Lawyer accepted the father’s position whereby supervision would take place only until such time as the report was provided.
Turning to the issue of school holidays, Mr Davies submitted that it should be staggered. There should be staggering of only the October school holiday periods and that there essentially be no school holiday periods for the April and July school holiday periods. Mr Davies referred to section 87 of the family report. Mr Davies pointed to the need for there to be increasing familiarisation between [X] and the father and that there would be a big leap from three nights to seven nights if school holiday time were to take place immediately.
There were concessions made, and it is agreed between the parties, that for the Christmas summer school holiday period in 2012 the mother agrees to a position whereby the father spends 14 nights commencing on 26 December. The father made submissions regarding school holiday time. Ultimately he agreed or suggested a position that he would accept whereby there would be four nights for the first set of holidays, four nights for the second set of holidays, seven nights for the third and then 14 nights for the summer school holidays in December and January of 2012/2013.
The father suggested that he had family and submitted he had family in Sydney, that [X] has a little niece aged three years of age, he has cousins and relatives in Sydney and that [X] needs some time to be able to travel to Sydney in order that [X] spend time with his extended family, and that his culture is in Sydney and that he be entitled to spend time with his culture in Sydney. It is submitted by the father that [X] has a grandfather and great grandparents in Sydney and, on that basis, he seeks the commencement of school holiday time to take place immediately.
Ultimately the father made concessions about Rainbows and it is now agreed any handovers to take place will be either at the school, that Rainbows is first choice and if Rainbows is not available, the [omitted] police station. Again, I have read and considered the family report. I note in particular the contents at paragraphs 76 and 81. I have read those out. I will not read those out again. I note the recommendations at paragraphs 90 to 93.
I note particularly 91 refers to the agreement reached by the parties. I do not think there is any suggestion in the report and I do not accept that there is, that the agreement reached between the parties is one on which the report writer has placed considerable weight or consideration. It was simply a matter in my view, where the parties attended upon the family consultant, the parties reached agreement and, on that basis, it is my view that the recommendation at paragraph 91 falls from the agreement as opposed to the agreement being particularly in line with the views of the Family Consultant Ms T.
There were submissions made by the Independent Children’s Lawyer to that effect and I reject the submission that the agreement reached by the parties is indicative and in fact clearly represents the views of the report writer.
The principles relating to parental responsibility, arrangements as to who a child lives with and spends including parents, other people interested in the child’s welfare, are set out at section 64B of the Family Law Act. They arise in proceedings conducted under Part VII of the Family Law Act.
Unless the court rebuts the statutory presumption in favour of equal shared parental responsibility, section 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. Parental responsibility is defined at section 61B as all of the duties, powers, responsibilities and authorities which, by law, parents have in relation to the child. The presumption in favour of equal shared parental responsibility relates to parental decision making and does not prescribe where or with whom a child should live.
Section 61DA(2) provides that the presumption does not apply where there exists reasonable grounds to believe that a parent or a person who lives with a parent of a child has engaged in family violence or child abuse. The presumption may also be rebutted where a court is satisfied it would not be in the child’s best interests in accordance with section 61DA subparagraph (4). In circumstances where the court determines the presumption does not apply or is rebutted, the court must decide the appropriate parental responsibility arrangements.
This is a matter in which the parties have agreed and there should be equal shared parental responsibility. Section 60B sets out the objectives of Part VII of the Act when deciding whether to make a particular parenting order, including an order concerning parental responsibility, section 60CA and section 65AA provide that the child’s best interests remain the paramount consideration. Section 60B sets out the objects of Part VII of the Act within which the relevant section 60CC factors are to be examined, weighed and measured.
Section 60B is set out and I read the following:
6OB(1)The objects of this Part are to ensure that the best interests of the child are met by:
(a) ensuring the child is to have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect and family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that the parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
60B(2) The principles underlying these objects are that (except where it is or would otherwise be contrary to the child’s best interests):
(a) that the child have a right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
[X] is not an Aboriginal child or of Aboriginal descent. I do not propose to look at or deal with subparagraph 60B(3) when determining what parenting arrangements are in the best interests of a child is required to consider those matters set out at section 60CC. S.60CC contains two primary considerations. S.60CC(2)(a) provides the court must consider the benefit of a child having a meaningful relationship with both of the child’s parents.
The second primary consideration is that at s.60CC(2)(b) and requires the court to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. As far as they are relevant to this case the court must consider 13 additional considerations set out at section 60CC(3)(a) to (m). Paragraph (m) allows the court to take into account any other fact or circumstance the court thinks is relevant.
The legislative framework set out at s.60CC(2) and (3) allows the court to consider (2) and (3) an infinite variety of the children’s circumstances. S.60CC(4) requires also the court to also consider the extent to which each parent has fulfilled or failed to fulfil his or her parental responsibilities and has facilitated the other parent in fulfilling his or her parental responsibilities. Pursuant to s.60CG when determining appropriate orders, the court must to the extent possible and consistent with a child’s best interests, ensure the orders are consistent with any family violence order and did not expose a person to unacceptable risk of family violence and I note in these proceedings there is no current apprehended violence order.
If the court is satisfied the parents are to have equal shared parental responsibility, and it is suggested in this matter that both parents will by way of consent, the court must pursuant to s.65DAA(5) consider the practicability, of the child spending equal, or, substantial and significant time with his or her parents and whether in doing so, it would be in the best interests of the child. The determination of equal time in my view needs no explanation. If equal time is not ordered, significant and substantial time must be considered.
The concept of significant and substantial time is defined at section 65DAA subparagraph (3) and (4). Subparagraph (3) of section 65DAA that provides:
A child will be taken to spend significant and substantial time with a parent only if:
(a) the time the child spends with the parent includes both days that fall on weekends and holidays; and days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent that allows the parent to be involved in the child’s daily routine; and occasions and events that are of particular significance to the child; and the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Where neither concept delivers an outcome that promotes a child’s best interests, living and spending time arrangements are to be determined in accordance with the child’s best interests see the case of Goode & Goode (2006) FLC 93-286. In consequence of section 60CA the court shall determine the weight to be given to the various matters, be they primary or additional considerations or considerations arising from a particular issues in a cases, but not specifically referred to in the Act.
Ultimately, the weight attached to each factor is a matter of discretion.
RECORDED: NOT TRANSCRIBED
I propose to now deal with section 60CC subparagraph (3).
First, I’m required to consider:
Any views expressed by the child and any factors such as the child’s maturity, a level of understanding that the Court thinks relevant, and the weight that should be given to the child’s views.
The child, [X], is six years of age. I don’t attach any weight to any views expressed by [X]. I note that, whilst the child was happy to spend time with the father when he saw the father as is set out in the family consultant’s report, I don’t take that as any views being expressed.
The nature of the relationship with the child, with each of the child’s parents and any other person including any grandparent or relative of the child.
There are three distinct relationships in this matter. There is a relationship between the child and the mother, a relationship between the child and the father, and a relationship between the child, [X], and his brother. The family consultant’s report looks at the relationship between the child and the mother and states:
“[X] was observed to have a loving and dependent relationship with the mother and a familiar and comfortable relationship with [Y] although they squabbled at times.”
I accept that the mother and [Y] have a loving and strong relationship with [X]. While the father, hasn’t spent significant time with [X] for some period, when considering paragraphs 76 to 79 of the report, it would appear that he has a warm and, at least, comfortable and loving relationship with the father.
The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
It would appear in this matter that the parties have reached agreement on significant matters. The parties are in disagreement as to the amount of time the child spends with each parent. There is a significant history in the matters of the parties having what can best be described as issues relating to family violence. In considering the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship I could only look to the future and hope that the orders that have been put in place, including orders agreed upon, such as the parties not denigrating one another, will have some effect. The fact that the parties have both agreed to attend further counselling following the making of the orders will encourage the parties, and give them the tools necessary, to engage in and facilitate a close and continuing relationship between the child and the other parent.
Section 60CC(3)(d), which is given particular attention by counsel for the mother, states that:
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Essentially, the dispute between the parties is whether or not there should be time spent each alternate weekend or, on the father’s view of the matter in submissions, three weekends in one month and two weekends in the other. The father does not seek mid week time. I note that [Y] is a child of the household, given that the father is not seeking mid week time, and in circumstances where really the dispute is whether it should be two weekends each month or, in fact, two in one or three in the other, I don’t see that there is a significant issue caused by either a change in circumstances or any separation and I do not give this factor particular weight.
The practical difficulty and expense of the child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relationships and contact with both parents on a regular basis.
I don’t consider that there is anything within the evidence that would suggest that either parent’s proposal would create a practical difficult or expense to the child spending time with or communicating with either parent.
The capacity of each of the children’s parents and any other person, including a grandparent or relative of the child, to protect the needs of the child including emotional and intellectual needs.
I note that the parties have agreed in the proposed orders to a number of what are best described as protective orders and ensure the father complies with directions of a psychiatrist that the father continue to undergo random drug screening analysis.
I consider that once the orders are put in place, if there is any lack of capacity, it is dealt with well within the orders. While I consider this section, I don’t consider it relevant when determining whether it should be ultimately each two weekends a month, three weekends in one month and two weekends in the other month, but I do consider that it’s necessary to consider it when having regards to the staggering of time and the supervision of time. And when considering this it is my view and findings that there needs to be some period, although shorter than suggested by the mother, in which there is some staggering of time. It is my view that there needs to be some supervision of the time, as suggested by the independent children’s lawyer and the father and I will deal with that later on in the orders.
The ability of the parties to provide for the needs of the child including emotional and intellectual needs of the child.
The father is in a position where he is not going to be spending mid week time with the child. Although there is some concessions the father is an intelligent person and that, indeed, the child may benefit from spending some time mid week, it is not something the father seeks to do. I consider and make a finding that the mother is easily able to meet the emotional and intellectual needs of the child, particularly mid week when the child would be returning home from school and the mother doing homework with the child.
The maturity, sex, lifestyle and background including lifestyle, cultural characteristics of the child and either of the child’s parents and any other characteristic of the child that the Court considers are relevant.
This is a situation where one party is of Christian faith and the other of Muslim faith. The parties have made some significant concessions within the proposed orders with respect to Christian and Muslim burial rights. The parties have made some concessions with respect to the Christian Christmas holiday time and the Christian Easter holiday period of time that the child spends time with the mother. There are concessions that the child spend time with the father and agreement that the child spend time with the father for the two Muslin Eids. I am satisfied that the orders that the parties proposed and have put in place cater for and take into account the characteristics of the child and the characteristics, lifestyle and background of the children’s parents.
Whether the child is an Aboriginal or Torres Strait Islander child.
The child is not an Aboriginal or Torres Strait Islander child.
The attitude of the child and the responsibilities of parenthood demonstrated by each of the children’s parents.
This is a matter which has had considerable history. There has been a considerable history of drug abuse by the father. The father has been admitted to various institutions with respect to psychosis. The father has undergone a period of some 12 months in which he’s undertaken various drug tests, as requested by the independent children’s lawyer, on a supervised basis providing urine analysis on each occasion, with the exception of one, he’s provided those urine analyses and on each occasion there has been no indication that either the test is dilute or that the test is indicative of the father having taken any illegal drugs.
The parties appear to have reached some significant agreements. The parties have been able to put aside what has been a long history of disagreement and family violence. The parties appear to be putting in place orders that are for the best interests of their children and I’m satisfied that the parties are considering the responsibilities of parenthood and they’re demonstrating, at least through the agreements that they’ve reached, but also certainly through the father’s abstinence from drugs for some period, that the parties have each demonstrated and will continue to demonstrate responsibilities of parenthood.
Any family violence involving the children and members of the child’s family
I must consider this factor as set out at section 60CC(3)(j). There is a history of family violence in the matter. There has been a history of domestic violence orders. There has been one occasion on which a domestic violence order was sought. It was appealed and it has been repealed. It would appear that, while the parties cannot get along, there are orders the parties can agree to put in place. In particular I note the agreement of the parties to attend upon the Relationships Australia Rainbow contract centre for the purposes of handovers. I note also that the parties ultimately have reached some agreement whereby the child will spend time with the father on weekends, collection at school and returned to school. The parties have agreed on communication by way of email and on that basis, while there has been family violence in the past, I’m convinced that the measures that are agreed to be put in place are sufficient and necessary to alleviate any reoccurrence of family violence.
I must consider at section 60CC(3):
k)any family violence order any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
There is no current apprehended violence order in place and I don’t need to concern myself or consider other ramifications of the orders I make today to ensure they’re not inconsistent with such an order.
Whether or not it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
Certainly the parties have had a long history in this Court. In fact, one of the orders provides that the parties can bring the matter back to court in circumstances where the father’s time is suspended. Whilst the order proposed of itself allows the parties to institute further proceedings, I am satisfied that when considering the best interests of the child, when considering the history of family violence, when considering the father’s drug abuse the making of such an order whereby the parties are entitled to bring the application back so that the parties can make a new application with respect of the child is in the best interests of the child.
Any other fact or circumstance the Court thinks relevant.
I don’t propose to re-deal with the entirety of the matter. I’ve already stated within my reasons so far the history of the matter and detailed issues that I’ve been particularly concerned about.
I must consider section 60CC(4) that states:
... the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child.
I note that the family report suggests that the father spend mid week time with the child. The father has failed to accept that proposal. The father has offered an explanation that he doesn’t seek to disturb the child mid week but he wishes to spend time with him each alternate weekend. I can make no findings about that view. It’s the father’s view. It’s a matter for the father whether he wishes to spend mid week time with the child despite the recommendations contained in the family report and I don’t intend to criticise the father for that view. It is one that is honest.
RECORDED : NOT TRANSCRIBED
I turn to the primary considerations being section 60CC(2)(a).
The benefit of the child having a meaningful relationship with both of the parents is a primary consideration.
It is my view that the everyday benefit of this child having a meaningful relationship with both parents, is apparent in the family report, particularly at paragraphs 76 to 81, detailed the child having a significant relationship that is loving, warm and the child is comfortable with both parties. It is my view that the best interests of the child are demonstrated by this child having a meaningful relationship with both parties.
I am required to consider section 60CC(2)(b).
The need to protect the child from physical and psychological harm, from being subject to or exposed to abuse, neglect or family violence.
For reasons stated previously, and having gone through and read the proposed orders that are agreed upon by the parties, there are what can best described as a number of protective orders. Those protective orders range from the father undertaking drug screen analysis, the parties have all agreed that there should be some period of supervision; that is disputed but there will be some supervision. There is a position where the father must engage, through his general practitioner, a psychiatrist. There are provisions for the suspension of orders in circumstances where the father fails to abide by the orders including attending upon a psychiatrist, the father providing a letter setting out the psychiatrist’s findings to the independent children’s lawyer, and the father providing drug screens.
I am of the view that the orders in place are such that the child is protected from, and should not be subject to, physical, psychological harm, abuse, neglect or family violence. The parties are essentially apart on the number of weekends the child will spend with both parents. I am of the view that in circumstances where the child lives in the mother’s household, where the child spends time with his brother, [Y], each day and the father will not spend time with the child mid week, that it is appropriate to make an order that there be more time than just simply each alternate weekend.
I consider the issues relating to supervision. I am of the view that if the father attends upon a psychiatrist and the psychiatrist prepares a detailed report as required by the orders, and if the psychiatrist’s report is forwarded to the ICL and the ICL does not suspend time, as the ICL is entitled to do so, that supervision up until the provision of that letter or report, framed in the terms of a letter within the proposed orders, is sufficient to protect the child. I don’t propose that in those circumstances that supervision need take longer or go further than the period in which the father provides the letter to the independent children’s lawyer.
With respect to the staggering of school holidays it is proposed that there be a long staggering of school holidays. It is my view that the request by the father for four nights for the first two sets of mid year school holidays and then a set of seven days in the following final October school holidays is not unreasonable in the circumstances, noting the comments within the family report about the father’s relationship with the child and, in circumstances where the father will have spent time with the child, I don’t propose that the father should not spend time with the child during school holidays until the third set of school holidays.
ORDERS DELIVERED
RECORDED : NOT TRANSCRIBED
I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Myers FM
Date: 27 March 2012
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