T and H (No.2) - [2003] FMCAfam 352

FEDERAL MAGISTRATES COURT OF AUSTRALIA

T & H (No. 2)

[2003] FMCAfam 352

FAMILY LAW – CHILDREN – Best interest – varying contact orders – allegations of alcohol and drug use – child aged 3 and a half years.

Family Law Act 1975, ss.65E, 60B

Applicant:

DMT

Respondent:

LTH

File No:

PAM 923 of 2001

Delivered on:

11 August 2003

Delivered at:

Parramatta

Hearing date:

11 August 2003

Judgment of:

Scarlett FM

REPRESENTATION

Solicitor for the Applicant:

Mr Hagen

Solicitors for the Applicant:

Bateman Battersby

The Respondent appeared on her own behalf

ORDERS

UNTIL FURTHER ORDER:

Order 2 of the Orders made on 17 March 2003 is discharged.
The Applicant father is to have contact with the child, JT, born 18 February 2000 as follows:
(a)from 9.00am to 5.00pm each alternate Sunday commencing
23 August 2003.
(b)from 9.00am to 12.00 noon on Father’s Day Sunday 7 September 2003.
The Applicant father is to ensure that no person smokes cannabis, or otherwise administers cannabis to themselves, in the presence of the said child, at any time during any contact period.
All contact, pursuant to Order 2, is to take place at the residence of the father's friend, LMS at 14 C Crescent, B, New South Wales, or such other place as the parties shall agree.
I require a transcript of my reasons for this interim decision.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 923 of 2001

DMT

Applicant

And

LTH

Respondent

REASONS FOR JUDGMENT

Application

The application before the Court today is an application by the father to vary the contact, which he currently exercises on an interim basis with the child of the relationship, JT born 18 February 2000. J is 3 years of age and resides with her mother.
There had been orders made in 2001, but this matter came back to Court as a result of an incident that is said to have happened on 19 January of this year. The parties give different accounts of that incident.
There were proceedings commenced by the police in the Local Court of New South Wales, in which the father was charged with assault, and there was an Apprehended Violence Order sought. There was an interim order in existence and I indicated that I had some concerns about the issues that were raised whilst the proceedings in the Local Court were pending.
The assault proceedings have now been dismissed. The Apprehended Violence application was put over to another date. It has also been dismissed.
The mother has filed an affidavit by herself and an affidavit by her mother in which they give a variety of reasons as to why the prosecutions were unsuccessful. The fact is that they were dismissed by a Court and there is no order in existence. Nevertheless, on a final hearing, the question of allegations of violence within the relationship is a matter that I will no doubt hear evidence about.
The current arrangement for contact is set out in an order that was made on an interim basis on 17 March 2003. That order provides for the father to have contact from 9.00am to 12.00 noon. Initially, the contact was to take place at the home of the child and the child's mother, the Respondent, and the maternal grandmother was to be present. The contact has now gone to the father taking the child away from the home, although it has remained from 9 am to 12 noon. There has been the addition of an order restraining the father from administering any prohibited substance to himself.
Any use by the father of a prohibited drug, be it cannabis or cocaine, the mother alleges, is also an issue that will be argued at the final hearing.
The father has formed a new relationship with one LMS, who lives in B. He maintains premises of his own, but the evidence before me is that he visits and spends a considerable amount of time at the home of Ms S.
Ms S has filed affidavits in these proceedings in which she attests to the strength of the relationship between her and the father. She has children from a prior relationship, and she currently resides in a rented home with her children. Ms S has expressed her willingness for contact between Mr Thomson and J to take place at her home.
The mother opposes any extension of the current contact, from 9 till 12, on alternate Sundays. She is mindful of the fact that there is a final hearing to take place in November of this year, and a Family Report has been ordered. The interviews for the Family Report have not started at this stage, and I imagine that those interviews will start in about a month or so.
The mother has raised in her affidavit material some long-term concerns about the father's drug use and expresses her suspicion about whether or not he is refraining from drugs. There is also some allegation made that Ms S is a user of cannabis and indeed there has been an admission by Mr Hagen, who appears for the father, that she is a social user of cannabis. The drug use is a matter of concern to the mother.
The mother also raises the question of the child's behaviour. The child expresses some reluctance to go with the father, and the mother refers to some differences between the parties as recently as yesterday.
On the subject of Father's Day, the mother does not oppose contact taking place on Father's Day, which the father seeks, although she is opposed to its extending for longer than the current period of contact.
The parties are still a fair way apart. The father seeks that the current contact should be extended to weekend contact, which would include an extension to cover a Monday until 6.00pm, if the Monday was a public holiday. The father says that whilst there is work available for him with his employer on a Saturday, he would not take that work on a Saturday, if that was to be a contact weekend. The mother, however, points to her experience in the past where it was her belief that the father was required to work on a Saturday if that work was there. I am more of the view that these matters are an issue for a final hearing.
Contact of course, is not set in concrete. Contact changes as the child's age and state of maturity change, and as the parties' circumstances change. It is a matter of concern that there is a degree of animosity between the parties, and this does not seem to have been alleviated over recent times.
It may be that the child at the age of 3 and a half years has gained a fair idea that her parents have a hostility and suspicion towards each other. It may affect her own perceptions of the situation. Not being a psychologist, I cannot commit myself on that. This is the sort of thing that the writer of a Family Report may wish to consider.
When the Family Report is prepared, the writer of the report will obviously wish to speak to the significant adults in this child's life, which would include the parents, and would include other people who have some involvement. These would include the maternal grandmother, and, because of her place in the scheme of things, Ms S.
The writer of the report will want to observe J in the presence of her mother and in the presence of her father. It is important that sufficient contact takes place to allow the writer of the report to make an appropriate assessment.
The overall principle, however, in these proceedings, is in the best interests of the child. I am mindful of the principles set out in section 60B of the Family Law Act, about a child's right to be cared for by both parents and by a child's right to have contact with both parents and other significant adults.
An increase in contact, to my mind, must be graduated. It must take place at a pace, which is slow enough for a child to become used to and familiar with. Dramatic changes in a child's living arrangements tend to be unsettling and destabilising. Children need to learn a routine because children benefit by following routines. It gives them stability within their own life, if they know what is going to happen and when the things can be expected to happen.
I had occasion to query Mr Hagen, who appears for the father, about what he described as a slight increase in contact. The increase in contact proposed is a significant increase. The current contact is from 9.00am till 12 noon. It is a large step to increase that contact, not only to include overnight contact but to take it to virtually two full days, even extending to three days if there is a public holiday Monday. I am of the view that that is too much, too soon.
It does not, at the same time, seem to me, in this child's interest to keep contact to the relatively short period of time of three hours. I accept the fact that there have been some difficulties and contact has not gone smoothly. I am of a view that at least, on an interim basis, that an effort should be made to provide an increased period of contact, to allow this child to get more used to spending time with her father.
There must be certain safeguards. The mother needs to know where the child is whilst the child is on contact with the father. The mother's concerns about the use of cannabis or any other prohibited drug around the child are matters that cannot be swept away.
I have had opportunity to say before that whilst there is a difference perhaps between over-indulgence and social use of a particular substance, and Mr Hagen referred to the old conundrum of cannabis or alcohol, the difference is that cannabis is prohibited in the State of New South Wales. Alcohol is not, although there are a number of legislative restrictions upon its use.
I am of the view that, where the use of cannabis is an issue (and Mr Hagen has disclosed, with Ms S’s consent, that she is a recreational cannabis user) the Court is compelled, for the best interest of the child, to make it clear that the child should not be exposed to any such use. Therefore, I propose to make an order restraining the father or requiring the father positively to ensure that no person smokes or otherwise administers cannabis to themselves at any time in the presence of this child during the contact period.
As I said, I am also of the opinion that the mother needs to know where her child is going to be on contact. I am not, at this stage, of a view that overnight contact is warranted. I said it was too big a jump. I think and I believe that, but I do consider that there should be an extension of contact on a Sunday to provide for a lengthier period of time with the child.
Accordingly, I make the Orders set out at the beginning of this judgment.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: C. Soliman

Date: 21 August 2003