Tatim & Belden
[2009] FamCA 622
•20 July 2009
FAMILY COURT OF AUSTRALIA
| TATIM & BELDEN | [2009] FamCA 622 |
| FAMILY LAW – CHILDREN – with whom a child lives – risk assessment – where mother lives in Queensland and the father lives in New South Wales – where father fails to appear at final hearing – hearing proceeds undefended – the children to live with the mother and spend time with the father during school holidays FAMILY LAW – CHILDREN – Parental Responsibility - mother and father to have equal shared parental responsibility for the children |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61B, 61C(1), 61DA(2), 61DB, 64A, 65AA, 65DAA, Pt VII |
| Goode and Goode (2006) FLC 93-286 |
| APPLICANT: | Mr Tatim |
| RESPONDENT: | Ms Belden |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Wooi |
| FILE NUMBER: | NCC | 29 | of | 2008 |
| DATE DELIVERED: | 20 July 2009 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | The Hon. Justice Ryan |
| HEARING DATE: | 13 March 2009 |
REPRESENTATION
| APPLICANT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | Ms Carty, Mullane & Lindsay Solicitors |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms Wooi |
Orders
That the children S born … February 1997 and H born … June 2000 live with the mother.
That the mother and the father have equal shared parental responsibility for making decisions about the long term issues affecting the children.
That the children spend time with the father at all times as may be agreed between the parties and, failing agreement, as follows:
(a)For 10 days of each Queensland term school holiday period commencing on the first Saturday of the school holiday period and provided that:
(i) the children are to be returned to their mother at least two clear days prior to the commencement of the next school term;
(ii) the children shall stay overnight at the home of either the paternal grandmother or the paternal aunt;
(iii) the father shall be restrained from consuming alcohol or any illicit substance during any period that the children are in his care, and for the period of 6 hours prior to the children coming into his care.
(b)During the Queensland Christmas school holiday period as follows:
(i) commencing with the second half in 2009 and each alternate year thereafter;
(ii)for the first half in 2010 and each alternate year thereafter;
AND PROVIDED ALWAYS THAT
(iii)the children are returned to their mother at least two (2) clear days prior to the commencement of the school year; and
(iv) the father be restrained at all times from consuming alcohol or any illicit substance during any period that the children are in his care and for a period of 6 hours prior to the children coming into his care.
That the children have liberal communication by telephone with each of their parents at all reasonable times.
That on any occasion that the father is visiting Queensland, he may spend time with the children, including over long weekends, provided as follows:
(a)That he gives the mother at least 48 hours notice of his intention to spend time with the children;
(b)Such time is to be spent on a day time basis only, unless otherwise agreed between the parties; and
(c)The father is restrained from consuming alcohol or any illicit substance during the period in which the children are in his care and for the period 6 hours prior to the children coming into his care.
That all travel arrangements and changeover arrangements are to be by agreement between the parties and failing agreement the parties are to share the cost of such arrangements.
That the parties shall keep other informed at all times of their current residential address and telephone contact numbers.
That the father shall keep the mother informed of the current residential address and telephone contact details for the paternal grandmother and the paternal aunt.
That the parents must inform each other, as soon as reasonably practicable, of any illness or injury suffered by either of the children requiring medical treatment and/or hospitalisation.
That the parents are to give all necessary authorities and consents to the children’s education providers and medical practitioners so that both parties shall be entitled to receive all relevant information concerning the children.
That the mother be restrained from consuming codeine or any illicit substance whilst ever the children are in her care.
That each party is restrained from denigrating the other parent or allowing the children to remain present or within the hearing of anyone else denigrating the other parent.
Pursuant to s 121 I give the parties and the Independent Children’s Lawyer leave to provide a copy of Ms E’s expert report to any counsellor which they or the children may in the future attend.
That pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Tatim & Belden is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 29/2008
| MR TATIM |
Applicant
And
| MS BELDEN |
Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings in relation to S born in February 1997 and H born in June 2000 (“the children”).
The applicant father is Mr Tatim (“the father”). Ms Belden is the respondent mother (“the mother”).
After the parties separated in September 2007 the mother relocated with the children from the northern coast of New South Wales to Queensland without first informing the father. The father started these proceedings seeking orders for a shared care arrangement if the children lived in New South Wales, or that the children live with him if the mother remained in Queensland. The mother opposed those orders, seeking orders that the children live with her in Queensland and spend time with the father during the school holidays.
On 13 February 2009 the father filed a Notice of Discontinuance.
The final hearing took place on 13 March 2009. The father did not attend and the hearing proceeded on an undefended basis. Orders were made in accordance with the minute of order proposed in the mother’s Amended Response. In summary the orders provide for the children to live with the mother in Queensland and spend time with the father for 10 days of each Queensland term school holiday period and for half of Christmas school holidays in New South Wales provided that the children stay overnight at the home of either the paternal grandmother or the paternal aunt while spending time with the father. The orders also provide for the mother and father to have equal shared parental responsibility for making decisions about the long term issues affecting the children. The father made no challenge to the mother’s proposals for orders in these terms.
These are my reasons for making the above orders.
Background Facts
The father was born in September 1961.
The mother was born in November 1971.
The parties commenced their relationship in 1993. They were living in Sydney.
In February 1997 the child S was born.
In June 2000 the child H was born.
In 2001 the parties and the children moved to the north coast of New South Wales. Sometime around 2001 the mother began using Codeine to excess and became addicted to it.
In 2002 the mother left the father and took the children with her. The parties reconciled about a week later, and the mother returned to the father with the children. The mother left the father on about three occasions before the final separation.
In 2005 the father started work in the agricultural industry.
The parties finally separated on or about 26 September 2007 when the mother left the father and took their two children to south east Queensland. She acted without the father’s consent.
Upon realising that the mother had no intention of returning to New South Wales with the children and resuming the relationship, on 9 November 2007 the father filed an Application for Final Orders in the Local Court seeking, in summary, the following orders:
1. That the parties have equal shared parental responsibility for the children.
2. If the mother is living in the north coast of New South Wales, that the children live with the parties on a shared care basis.
3. If the mother lives in Queensland, that the children live with the father and spend time with the mother as agreed between the parties but failing agreement as follows:
3.1 for each of the NSW gazetted school term holidays commencing the first weekend day after the end of the school term
3.2 for half of the NSW gazetted Christmas school holidays
3.3 for one weekend in each school term from 5pm Friday to 5pm Sunday, such time to be spent in the north coast area of New South Wales.
On 9 November 2007 the father also filed an Application in a Case seeking, in summary, the following interim orders:
1. The same parenting orders as those sought in the Application for Final Orders
2. That leave be granted to solicitor for the father to effect short service upon the respondent mother.
3. That the mother or her nominee deliver the children to the father at his home address by 12.00 noon on the second day after the date of these orders, otherwise a recovery order is to be issued for the recovery of the children and their delivery to the father.
On 14 December 2007 the mother filed a Response to an Application for Final Orders seeking, in summary, the following orders:
1. That the children live with the mother.
2. That the children spend time with the father for half of each Queensland school holiday period provided that the children stay overnight at the home of the paternal grandmother.
3. That the father be restrained from consuming alcohol and marijuana for a period of six hours prior to the children coming into his care and during any period that the children are in his care.
4. That the children communicate with the father by telephone each Sunday afternoon and at any reasonable time the father wishes.
5. That on any occasion the father is visiting Queensland he spend time with the children provided he gives the mother appropriate notice, such time to be spent on a daytime basis only.
6. That the father attend appropriate rehabilitation facilities for his alcohol addiction.
7. That an Independent Children’s Lawyer be appointed to represent the interests of the children in these proceedings.
8. That the parties have equal shared parental responsibility for the children.
The mother also filed a Response to an Application in a Case seeking the same orders as in the Response to an Application for Final Orders.
On 4 February 2008 interim orders were made by consent providing, in summary, that:
1. The children live with the mother.
2. The children spend time with the father for 10 days of each Queensland school holiday period commencing on the first Saturday of the school holiday period and concluding on the second Tuesday provided that the children stay overnight during such periods at the home of either the paternal grandmother or paternal aunt and the father is restrained from remaining in the home in which the children are to stay overnight between 10.00 pm and 7.00 am.
3. The father is restrained from consuming alcohol or illicit substances while the children are in his care.
4. The mother is restrained from consuming codeine or illicit substances while the children are in her care.
5. Each party to submit to random supervised urinalysis testing for illicit drugs and alcohol within 24 hours of the request from the other party’s solicitor, such requests not to exceed one per month.
An order was also made that day for the appointment of an Independent Children’s Lawyer.
On 10 March 2008 Registrar Kearney ordered that the parties attend upon a Family Consultant for the purpose of an intake assessment interview and a child and family conference. A Children and Parent’s Issues Assessment was also ordered.
On 8 April 2008 Family Consultant Ms T prepared a Children and Parent’s Issues Assessment.
On 21 April 2008 the matter came before Johnston JR and it was ordered by consent that the orders made on 4 February 2008 continue pending further order.
On 21 August 2008 the matter came before a Registrar and orders for the appointment of Ms E, Clinical Psychologist as a Single Expert.
Substance Abuse
Substance abuse is a serious issue for both parties in this matter. The father says in his affidavit filed 9 November 2007 that the mother had a bad speed habit and that she got into a lot of debt while they were living in Sydney. The father admits to using speed at that time as well, but says he was not addicted like the mother. He says they had to refinance their home in Sydney and eventually sell it in order to pay off the mother’s drug debts.
After leaving Sydney in 2001, the father says he stopped using speed but says that he and the mother smoked marijuana.
The father says the mother has an addiction to codeine pain killers and has “flat-lined” and been hospitalised three times. The mother admits that in around 2001/2002 she commenced to take codeine tablets to excess. Her excessive use of codeine led to her developing stomach ulcers which perforated and she had to be admitted to hospital on three occasions. After the third hospital admission, the mother says she realised the seriousness of her addiction and commenced a detoxification program in June 2007.
The mother alleges that the father uses marijuana on a daily basis. On some occasions she says she observed him smoke as many as 18 bongs per day and he would routinely smoke 10 per day.
The mother also alleges that the father frequently drinks to excess and that he becomes violent when intoxicated.
The father denies that he has a problem with alcohol.
Family Violence
The father says there has been no family violence in the relationship. He denies being abusive towards the mother or the children. There are no Apprehended Violence Orders in place.
The mother says there was violence in the relationship which started in about 1998 when the father’s own father died. She says that both children witnessed the father being abusive towards her. The abuse was mostly verbal and psychological. She says that since about 2001 the father had been drinking heavily on at least five days per week. He would subject the mother to verbal abuse and insults, threats and controlling behaviour while drunk.
In 2005 the father’s behaviour became worse and he would physically assault the mother. She says there were domestic violence incidents in front of the children where the father would kick furniture. She said the father also denigrated her in front of the children.
It is clear from Ms T’s and Ms E’s reports, which are discussed below, that the children were exposed to their parents’ arguments, which typically occurred when the father was intoxicated.
Sexual assault allegations
Sometime in 2000 while the parties were still living in Sydney the father was charged with indecent dealing with a minor in relation to a neighbour’s child. Although he was charged, he was never convicted. The alleged victim was a seven year old girl who was friends with S. The sexual assault is alleged to have occurred when that child was sleeping over at the parties’ home. As a result of the sexual abuse allegations and financial difficulties, the father became depressed and was admitted to the psychiatric unit of D Hospital for about one and a half to two months.
At around the same time or just prior to the sexual assault allegations being made against the father in relation to the neighbours’ child, the mother says H presented with bleeding from his anus. The mother took him to the family doctor who apparently asked whether there was any possibility of H being interfered with by the father. The mother says she was in complete denial at the time and refused to consider that possibility. However since that time she has had “niggling concerns” about the father, especially at night after his drinking binges.
Children and Parents Issues Assessment
Family Consultant Ms T prepared a Children and Parent’s Issues Assessment which is dated 8 April 2008. In relation to S, Ms T reports:
[S] presented as a mature, confident, articulate eleven year old who was assessed as being quite parentified…
The impact of the parents’ addictions has been that [S] has taken over the psychological parenting role to a degree in that she worries about the mother, the father and [H] and tries to support them all.
[S’s] expressed view is that arrangements remain the same at present and the father and mother be given more time to prove they can abstain from their respective addictive substances.
In relation to H, Ms T reports that he “presented as a confident articulate seven year old with a slight speech impediment. He reports to have been confused and angry when the mother relocated them to Queensland as he was unable to say goodbye to his friends and teacher”. H also revealed to Ms T that his parents fought a lot and that he wants his father to “stop drinking forever”.
Ms T concludes:
It would appear that for both children the father’s alcohol abuse has been problematic and has obstructed a close relationship between them. It would appear that for [S] the mother’s abuse of prescription medication has been problematic as has the knowledge that both her parents used the illicit drug, marijuana.
It would appear that post separation and probably due to the relocation, that the father has decreased his use of alcohol, at least when the children are present. The children have noticed a change in his emotional availability to them. It would appear that the separation has decreased the tension and concern for [S] but has caused some confusion and upset as well as a decrease in tension for [H].
It is clear that both parents remain vulnerable to relapsing to their addictive behaviours, the father more so in regard to alcohol as he still minimises or denies that he has had a problem and has not sought the support of a therapist or Drug and Alcohol Service other than Alcoholics Anonymous meetings which he has not attended for some months. The mother’s vulnerabilities to prescription medication is less than the father’s as she has been involved in and treated by a Drug Rehabilitation Service for some time and is being regularly tested for codeine use.
The applicant father’s proposal that the children return to the [New South Wales northern coast] area and or live with him is not consistent with the children’s needs at this time.
The impact on the children of this proposal is that they are at high risk of being exposed to further alcohol abuse and may return to a lesser quality relationship with the father. Both children have settled well into their new schools and the mother appears to be drug free.
Ms T’s observations largely accord with my own and I give her evidence significant weight.
Expert’s Report
Ms E, Clinical Psychologist, was appointed as the Single Expert. Pursuant to the consent orders made on 21 August 2008. Ms E was asked to report on the following:
1. The relationship of each of the children with their respective parents.
2. The lack of communication between the parents due to ongoing hostility.
3. The father’s abuse of alcohol and impact on his parenting capacity.
4. The mother’s recent past abuse of prescription medication and impact on her parenting capacity.
5. The sexual safety of the children in the father’s care in regard to the father’s past charge of sexual assault of a child.
6. The mother and father’s past use of marijuana and impact on their parenting capacity.
7. The impact o[n] the children of their sudden relocation from the north coast of New South Wales to Queensland with their mother and the impact upon their relationship with the father and the paternal extended family and their peers.
8. Any other issues considered relevant.
Ms E’s report was released to the parties, their lawyers and the Independent Children’s Lawyer on 13 November 2008.
Ms E discussed with the father the sexual assault allegations. He denied sexually assaulting the neighbour’s child.
In relation to his drinking, the father admitted to Ms E that he has drunk too much at times but has denied having a problem with alcohol. He said he had gone to counselling and Alcoholics Anonymous in October/November 2007 following his separation from the mother but has not attended counselling for some time.
In relation to drug use the father said he used speed intravenously in Sydney for 12 months, the last time he used being 2000. He said he smoked marijuana for many years, using six cones daily for a few years.
The mother said to Ms E that she never had problems with alcohol. She said that she used to smoke marijuana but not as much as the father, and has not used it since September 2007. She said both her and the father used speed when they were living in Sydney and the last time she used it was in 1997. The mother openly discussed with Ms E her addiction to codeine, the numerous hospital admissions and her weight issues during the time of her addiction, including when her weight dropped down to 32 kilograms and she was admitted to hospital for malnutrition.
Ms E concludes in her report that:
This is a very sad case in which these children spent many years in an environment in which both parents were abusing substances, and both were quite emotionally/physically unavailable to them…
This is a difficult case, because of the recency of both parents’ severe substance abuse. The mother has admitted her addiction; is on a treatment programme for this; and has expressed remorse about the effects o[f] her past behaviour on the children. However she is still in the earliest stages of recovery, and has had several relapses. It appears however that she has generally been abstinent, and seems determined to turn her life around.
The father on the other hand denies he has a problem with alcohol, and dropped out of treatment for this very early on. It is most unfortunate that he has now partnered a woman who had major substance use problems as well as significant mental health and criminal issues. As such, it could not be recommended that the children reside primarily with him.
Given the children’s attachments to both parents, it would be ideal if they could both reside in the same location ([north coast of New South Wales]). However the mother is adamant that she wishes to remain in Queensland where she says she and the children are well settled.
If the mother continues to reside in Queensland, then holiday contact with the father is the only realistic option. Given the concerns about the father, it would be best if the current Orders remain that the father sees the children during daytime only, while the children sleep at their grandmother’s or Aunt’s home in [the north coast of New South Wales]. As well orders should include a clause that he abstains from alcohol consumption prior to and during the visits.
Ms E’s observations largely accord with my own and I give her evidence significant weight.
The mother’s and children’s circumstances
When the mother first left the father, she and the children were residing in a four bedroom home in south east Queensland which they shared with the mother’s brother and his 15 year old daughter. After the mother stole from her brother he asked her to leave.
The mother is currently renting a unit and her lease is current until August 2009. This is a three bedroom unit and the children each have their own room. There is a pool within the complex and a large sports oval opposite. The home has all the usual amenities and the children are well settled. They have made friends and have settled into school. Both children attend C State School which is a public school covering grades prep to Year 12. S is currently in Year 7 and H in Year 3. H had some behavioural issues but his behaviour has settled down in the last few months.
The maternal grandmother lives in Brisbane. The mother says her relationship with her mother has greatly improved since she separated from the father. The two are now close and see each other on a regular basis.
The mother is currently not in paid employment. She is in receipt of a Centrelink benefit and is seeking casual employment. She receives child support from the father. It is the mother’s intention to obtain work as a driver. She has recently completed the training and has obtained a “HR” licence.
The mother has an outstanding matter at the Local Court relating to a theft charge of some personal possessions belonging to her brother. The mother has pleaded guilty and has commenced repaying her brother. The matter is apparently adjourned for sentencing. A custodial sentence is highly unlikely.
The mother says she does not consume alcohol frequently and is a very light drinker. She does not use any illegal substances. She is in good health apart from mild asthma for which she uses Ventolin.
The children have been spending time with the father in New South Wales in accordance with the current interim orders. The mother reports that the children enjoy their visits with the father. The mother says she would prefer that the children continue to spend overnight periods at the home of either the paternal grandmother or the paternal aunt when in their father’s care due to her continuing concerns about the level and effect of the father’s alcohol intake. She also remains concerned about the possibility of the father acting in a sexually inappropriate way with the children when intoxicated, given the 2000 allegations in relation to indecent dealing with a minor.
Attached to the mother’s affidavit filed 13 March 2009 is a letter from Dr C, Senior Medical Officer at the Community Health Centre where the mother attends upon the Alcohol, Tobacco and Other Drug Service (ATODS). The mother has been on the Opiate Treatment Program receiving suboxone since June 2007. Ms C notes that the mother has
always engaged well with the service, attended her appointments regularly and on time and denied any use of any other drug other than the suboxone. This correlates well with the clinical picture. She has never appeared intoxicated, there have never been any signs of drug use and she has always behaved appropriately. She is always quiet and courteous.
In summary, Ms C notes that “there is no clinical or toxicological evidence that [the mother] is still using codeine or any other drug of addiction. She has been entirely stable since her transfer to this unit for care”.
The mother says that she and the father are currently communicating with each other respectfully and cooperatively in relation to the children. They usually communicate by text messages.
The father’s circumstances
The father is employed in the agricultural industry. He has been with this employer since 2005. His usual work hours are 7am to 4pm Monday to Friday, adding up to 40 hours a week. He is sharing a four bedroom rented home with his partner Ms R and her 15 year old daughter. Ms R also has an older son but he does not live with her and the father.
The father pays $560 child support per month.
The father has two children from a previous marriage, born in April 1988 and September 1990. These children live with their mother in Sydney.
General Law in parenting cases
Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.
Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimum outcome. Where there are no countervailing factors the s 60B principles may be decisive. Section 60B is set out below.
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children 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 children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never 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).
3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.
Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its subsections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) 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. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately the weight attached to each factor is a matter for the Court’s discretion.
The sequence of determining parenting orders is important. If the Court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA). In the context of s 65DAA 'consider' means a consideration tending to a result, or to consider positively the making of an order. Goode and Goode (2006) FLC 93-286. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:
(1)The time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(2)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(3)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.
The child’s best interests remain the overriding consideration.
Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above. Similarly, where the Court has decided against maintaining equal shared parental responsibility s 65DAA considerations do not apply.
By virtue of s 60CA the Court will determine the weight to be given to the various factors, be they primary or additional considerations or considerations identified as issues arising in the particular case but not specifically referred to in the Act.
Applying the law to the facts
As Ms E pointed out in her report, this is a difficult case because of the recency of both parents’ severe substance abuse. It is clear from the reports of Ms E and Ms T that the parties’ substance abuse has had an adverse impact on the children. S is quite parentified and worries about her parents and H. She is well aware of her father’s past alcohol abuse and the mother’s addiction to prescription medication. Ms E noted that S looked and acted older than her chronological age and it was “as though I was interviewing another adult”. Both children remember their parents arguing, with H reporting to Ms T that he felt scared his parents “would be broken up next morning” when he heard them fighting.
S was present on one of the occasions when the mother had a bleeding ulcer and had to be hospitalised. The mother and S were at home when the mother vomited up blood. S had to call an aunt who called an ambulance. This must have been a terrifying experience for a young child.
H reported to Ms E that the father ‘used to get drunk all the time’ and that he would get angry when drunk. The parenting these children received prior to their parents’ separation was less than adequate.
The mother’s sudden relocation to Queensland with the children without informing the father or telling the children that the move was permanent also warrants criticism. H was confused and angry when the mother relocated them to Queensland as he was unable to say goodbye to his friends and teacher. S was also sad that she did not have the opportunity to say goodbye to her family and friends.
Despite everything they have been through, it is pleasing that both children are doing well at school and they seem to be well settled in Queensland. Both children reported that they are happy in Queensland and both have made new friends.
To their credit, it seems both parties have turned over a new leaf. The mother has been receiving treatment for her codeine addiction since June 2007. The father seems to have reduced his alcohol use, at least when the children are in his care, and the children report noticing an increase in his emotional availability to them. They now enjoy spending time with the father during the school holidays and their relationship with the father has improved.
In relation to parental responsibility for the long term care, welfare and development of the children, I am satisfied that the parties should have joint parental responsibility. Although the parties have had difficulties communicating in the past and neither was able to appropriately parent the children, it appears that the situation has improved. The mother reports that she and the father are now communicating with each other respectfully and cooperatively in relation to the children. I am hopeful that the parties will be able to put their issues aside and make decisions together about long term issues affecting the children that are in the children’s best interests.
Since I have decided that the parties should have equal shared parental responsibility for the children, the legislation requires me to consider orders for equal time, or if they are not appropriate, orders for substantial and significant time. The mother intends to remain living in Queensland. The father will remain living in New South Wales. Considering the distance between the parties, orders for equal time or substantial and significant time are not practicable. I agree with Ms E’s conclusion that holiday contact is the only realistic option in this case. I am satisfied that the children will have the benefit of a meaningful relationship with the father if they spend time with him for 10 days of each school term holiday period and for half of Christmas school holidays, provided that the father abstains from alcohol and focuses on the children when they are with him.
The mother does not think the children are safe to stay overnight alone with the father given his high alcohol consumption and drug use. She is happy for the children to stay with the paternal grandmother or the paternal aunt so that the father can see the children during the day when he is not drinking. Given the father past history of alcohol abuse and drug use, and the fact that the father is more likely to be violent when drinking, this is an appropriate protective measure. Therefore I make orders for the children to stay overnight at the home of the paternal grandmother or the paternal aunt during the periods when the children are to spend time with the father.
In relation to any risk of sexual abuse the father poses to the children, such risk is minimal. Although the father was charged with indecent dealing with a minor in 2000 he was not convicted. The mother had a suspicion that the father may have interfered with H when H was a baby, but such an allegation is not supported by any independent evidence. In addition, neither child has disclosed to anyone that the father has sexually abused them or acted in a sexually inappropriate manner towards them. The children had ample opportunity to make disclosures to Ms T and Ms E during interviews, but neither child did so. By making orders that provide that the children do not spend any overnight time with the father, the risks of sexual abuse are further reduced.
80.Aboriginal and Torres Strait Islander issues are not relevant.
Conclusion
The mother says she is committed to not using codeine or any illegal drugs again. She has been receiving treatment for her codeine addiction since June 2007 and is making good progress. She says she is determined to turn her life around. The father also seems to be making some progress with decreasing his alcohol use, at least while the children are in his care, although it would be useful, and it is recommended, for him to attend upon a counsellor to deal with his alcohol problem.
I am satisfied that the mother is committed to being drug free and that for so long as she is successful the children will be adequately cared for.
Of course if either parent reverts to substance abuse the children are vulnerable to abuse and/or neglect. In such circumstances these orders would need to be considered afresh. Included in the orders is a suite of injunctions designed to minimise the risks to the children.
For these reasons I am satisfied the orders identified at the start of this judgment are in the children’s best interests.
I certify that the preceding eighty four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan
Associate:
Date: 20 July 2009
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Injunction
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Remedies
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Procedural Fairness
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