SLM and DB (No.2)
[2005] FMCAfam 71
•10 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SLM & DB (No.2) | [2005] FMCAfam 71 |
| FAMILY LAW – Residence – undefended application – assessment of risks – child removed from mother’s care by child welfare department – father resumes child’s care – orders in mothers favour discharged. |
| Family Law Act 1975 Child Protection Act 1999 |
| Applicant: | S L M |
| Respondent: | D B |
| File Number: | PAM 3387 of 2002 |
| Judgment of: | Ryan FM |
| Hearing date: | 24 February 2005 |
| Delivered at: | Parramatta |
| Delivered on: | 10 March 2005 |
REPRESENTATION
| Solicitor Advocate for the Applicant: | Mr M. Tyce |
| Solicitors for the Applicant: | Adams & Partners |
| Respondent: | No appearance |
| Solicitor Advocate for the Child’s Representatives: | Ms S. Staka |
| Solicitors for the Child’s Representatives: | Champion Legal |
ORDERS
All existing orders are discharged.
The child born in shall reside with the father.
The father is solely responsible for the day to day and long term decisions with respect to care, welfare and development of the said child.
That the mother is restrained from approaching the child.
I stay the operation of these orders for six weeks from today.
The applicant’s solicitor shall serve the respondent by ordinary pre-paid post with a sealed copy of these orders within seven days.
The respondent has leave to apply to vary or discharge these orders without showing a change in circumstance upon giving seven days notice. This liberty expires six weeks from today.
Pursuant to section 65DA(2) of the Family Law Act 1975 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 A and these particulars are included in these orders.
All outstanding applications are otherwise dismissed.
The child’s representative’s application for costs is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 3387 of 2002
| S L M |
Applicant
And
| D B |
Respondent
REASONS FOR JUDGMENT
Introduction
On 15 June 2004 S L M (“the father”) filed an application for parenting orders relating to the parties’ son, “the child”, born in 1997. Simply put, he seeks to discharge earlier parenting orders made by consent and that he has an order for sole parental responsibility, residence and an order that D B (“the mother”) have no contact to the child.
The catalyst for his application is action taken by the Department of Communities (Queensland) under the Child Protection Act 1999. In short, the department initiated care proceedings on 19 March 2004 in Queensland. At that time the child and his half brother had been removed from their mother’s care and placed into temporary foster care.
On 8 March 2004 a Child Protection Notification was recorded by the Maryborough area office with the following concerns:
·The mother’s drug use and that she was suicidal and previously self mutilated.
·The mother was verbally and physically abusive towards her children.
·The mother had been observed dragging her children down the streets swearing.
·Her partner had intervened to stop her harming herself with a knife.
·The mother and her partner, D, are very violent.
·The mother had recently been in Melbourne working to raise money for drugs.
On 17 March 2003 the child was interviewed and in summary reported:
·His mother had thrown him against a wall.
·The child demonstrated being hit around his head and neck by the mother’s partner, D.
·The child is allowed to kick, punch and head butt his younger brother B.
·The child showed departmental officers bruises that he said his mother had inflicted.
·He has seen his mother try to harm herself.
·The child has had bourbon, but is not allowed beer or wine.
·The child described getting up in the morning and cleaning up needles which had been left on the table so that his younger brother B would not get them.
·The child spoke of finding powder and putting a little bit of it in the needles.
·He told the departmental officer that his mother had a bottle with a tube coming out of it which she used to smoke.
·The child has tried cigarettes.
The departmental officer spoke with the principal of Victorian Primary School. The principal reported that the child was enrolled at the school for most of 2003. Whilst there he was disruptive and lacked concentration. The district officer also spoke with the principal of the child’s school. The child enrolled at that school in October 2003 and was at the school to the middle of November 2003, returning again in the first week of February 2004. The report reveals the principal describing, “The child was the most difficult student enrolled at the school. This was due to his behaviour being out of control. He was physically assaulting and verbally abusing teachers and students and threatening to stab people…The school had problems with D B initially. She would rant and rave, however, D B stated that this was because of problems at home”.
On 29 April 2004 the departmental officer spoke with a worker at Regent House in Redfern where the mother stated that she had been attending a methadone program. The clinic had no record of the mother attending their service. After the child and his half brother were taken into care in Queensland, the mother left Queensland and returned to Victoria. She has not seen the child since she returned to Victoria.
At the court’s behest, the Queensland district officer arranged with the New South Wales Department of Community Services to complete an assessment of the father’s capacity and suitability to resume the child’s care. I say resume, because until 2003, the child had lived with his father for a number of years. The father had the child’s care because of the mother’s longstanding drug abuse. She has used drugs since she was 14 years old. With such a long standing drug history, it is not surprising that she has had numerous overdoses and emergency admissions to hospital. She has been an in-patient in mental health units and completed a variety of detoxification programs. After two years of little or no contact, the mother filed an application in this court for residence and contact. Contact resumed, centred on school holidays.
During this time, the mother appeared to address her drug addiction and as the child was missing his mother, on 14 May 2003 the parties entered consent orders whereby the child was ordered to live with the mother and have holiday contact with the father. The child had been living with his mother for some months prior to these orders being entered.
The hearing
At no stage during these proceedings did the mother personally attend court. She instructed Lucas & Marshman Lawyers to act on her behalf. When this matter was listed for final hearing the mother’s solicitors were on the record and I am satisfied that they will have brought the trial directions to the mother’s notice. The mother’s solicitors filed a Notice of Ceasing to Act on 9 December 2004. For abundant caution the father’s solicitors wrote to the mother on 17 December 2004 at her address advising her that the matter was listed for hearing and that the court had power to make orders in accordance with the father’s application whether or not she attended. The child’s representative also made exhaustive attempts to try and include the mother in the proceedings. Letters sent to her by the child’s representative were ignored and the child’s representative’s request for information from the mother was also ignored. None of the correspondence was returned unopened or marked “not at this address.” The address referred to is the same address the mother’s solicitors included as her last known address in their Notice of Ceasing to Act. The mother has made no attempt to exercise contact to the child. I contemplated adjourning the proceedings so that the mother could have another opportunity to participate. However, I decided against doing so primarily for two reasons. Firstly, I am not satisfied that adjourning the proceedings would place the court in a better position on the next occasion viz a viz the mother’s participation. Secondly, the child and his father need an end to these proceedings and the uncertainty inherent in an outstanding parenting litigation.
Relevant law
Residence and contact orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to section 65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.
Section 60B is important as it provides the context within which the relevant section 68F(2) factors are to be examined and ultimately weighed. The importance of section 60B factors varies from case to case. Where there are no countervailing factors, the section 60B principles may be decisive.
Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the residence and contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in section 68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed.
Determining the child’s best interests
The child’s representative strongly supports the father’s application. The evidence sourced from the Department of Communities and Department of Community Services (NSW) makes it clear that the child wishes to live with his father. It also corroborates the father’s evidence that the child has settled back into his home and he is doing well. The child attends the local public school and recently finished counselling at Rosie’s Place. Counselling ended because the child has settled so well into his father’s home. It is plain that they enjoy a good relationship and the father provides a degree of stability that has been sadly missing from the child’s life.
The father resides with this partner J C in the outer western suburbs of Sydney. Their home is a modern three bedroom home with all the amenities needed to provide adequately for the child and the other children. J C has a child T aged 7 by an earlier relationship. She and the father have twins, Z and E who are aged 1. The child has his own bedroom and T her own room. Presently, the twins sleep in their parents’ bedroom.
The father works part time as a bobcat driver and operator. J C works part time as a driver. Between them the father and J C organise their hours of employment around the children’s care. The children are fully supervised, either at school, by their father or J C. Between they ensure to the best of their ability that the child’s needs are met.
Before the mother brings an application for contact to the child she needs to consider carefully her capacity to meet the child’s needs, even during contact. If the mother is still using drugs or has continued to ignore the advice given by various agencies that she complete a parenting program and/or anger management program she must expect that she will have difficulty persuading any court that her application should succeed. Ideally a court should make parenting orders that minimise the prospects of further litigation. This is because litigation is costly in emotional and financial terms. Because of the mother’s circumstances there is a likelihood that she may bring a further parenting application. In cases such as this, however, where the court is balancing risks to a child it is often necessary to err on the side of caution even if doing so results in further litigation.
I am satisfied that there is strong evidence that presently the mother is unable to care for the child even during contact and that the only appropriate order concerning contact is an order that there be no contact. If the mother wishes to persuade a court that she should have contact she will need to organise herself to place proper evidence before a court to that effect.
It is plain that the mother plays no meaningful role in the child’s life and that she does not presently have the capacity to responsibly exercise her parental responsibility. As a practical matter the father needs authority to make day-to-day decisions whilst the child resides with him and not be hampered in making necessary decisions by the mother’s unavailability or inability to focus on the child’s needs.
I have no doubt based on the material presented to the court that the child’s long term interests are best served residing with his father and having presently no contact with his mother.
The mother will be given one final opportunity to participate in these proceedings before the orders become fully operative. If she does seek to revisit these orders within the next six weeks, she must understand that there is a real risk of costs incurred thus far may be ordered against her.
For these reasons I make the orders identified at the start of the judgment.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate: S Mashman
Date: 10 March 2005
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