Vargas and Anor and Mann and Anor
[2009] FMCAfam 1383
•6 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VARGAS & ANOR & MANN & ANOR | [2009] FMCAfam 1383 |
| FAMILY LAW – Parenting – interim hearing – application for child to spend time with non-related carers – parental capacity of the biological parents – attachment of the child to the carers and the biological parents. |
| Family Law Act1975, Part VII, ss.60B (1)(b), 60CA, 60CC(1), 60CC, 60CC (2)(b), 60CC (3) (b), (f), (g), (i) & (j), 61DA, 65DAA, 65DAA(1) & (2) |
| Goode v Goode (2007) 36 Fam LR 422 Keach & Keach (2007) FLC ¶93-353 Mazorski v Albright (2008) 37 Fam LR 518 SPS v PLS (2008) 217 FLR 164; (2008) FLC ¶93-363 |
| First Applicant: | MS VARGAS |
| Second Applicant: | MR DACEY |
| First Respondent: | MS MANN |
| Second Respondent: | MR BLACKWELL |
| File Number: | CAC 1485 of 2009 |
| Judgment of: | Neville FM |
| Hearing date: | 23 October 2009 |
| Date of Last Submission: | 23 October 2009 |
| Delivered at: | Canberra |
| Delivered on: | 6 November 2009 |
REPRESENTATION
| Advocate for the First and Second Applicant: | Ms Pope |
| Solicitors for the Applicant: | Pappas.j, attorney. |
| Advocate for the First Respondent: | Mr Bak |
| Solicitors for the First Respondent: | Farrar, Gesini & Dunn Family Lawyers |
| Advocate for the Second Respondent: | Mr Moore |
| Solicitors for the First Respondent: | KJB Law |
ORDERS
That pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the child [X] born [in] 2008.
That the Legal Aid Office, ACT, is requested to make arrangements as soon as practicable for appropriate representation for the child.
That forthwith upon the appointment of the Independent Children’s Lawyer, that lawyer file with this Court a Notice of Address for service.
That each party is to make available to the Independent Children’s Lawyer within 7 days of notification, copies of all applications and affidavits filed in these proceedings together with all existing orders and copies of relevant reports.
That Ms Mann and Mr Blackwell are to undertake no more than twice fortnightly random urinalysis testing for illicit substances. Upon receipt of a request from the Independent Children’s Lawyer, the party is to undertake urinalysis testing within 48 hours, and the results of such testing are to be made available to the other parties within 7 days of receipt. The Independent Children’s Lawyer is to consider the requirements of any rehabilitation program undertaken by
Mr Blackwell when making a request that he undertake urinalysis testing.
That Ms Vargas is to undertake three random urinalysis tests at the request of the Independent Children’s Lawyer. Upon receipt of a request from the Independent Children’s Lawyer, Ms Vargas is to undertake urinalysis testing within 48 hours, and the results of such testing are to be made available to the other parties within 7 days of receipt.
That unless otherwise agreed in writing between the parties, [X] is to spend time with the applicants as follows:
(a)for a period of two months, for three nights per week;
(b)thereafter, for two nights per week.
That at all other times [X] is to reside with Ms Mann.
That Mr Blackwell may spend time with [X] during periods that he is residing with his mother.
That all parties are restrained from using illicit substances 24 hours prior to or during periods when they are spending time with [X].
That pursuant to s.62G of the Family Law Act 1975 the parties together with the child attend a family conference with a Family Consultant of the Federal Magistrates Court and Family Court of Australia to endeavour to resolve the issues in this case. This will involve the parties together with the child attending at the Federal Magistrates Court at Canberra on 29 March 2010 at 10:00am. This conference will be reportable and if the matter does not resolve the Family Consultant is requested to prepare a family conference report.
That the Family Consultant is requested to review the care arrangements for [X], with a view to considering whether [X]’s living arrangements and the time that [X] spends with the applicants and
Mr Blackwell.
That the matter be adjourned to 19 April 2010 at 10:30am.
IT IS NOTED that publication of this judgment under the pseudonym Vargas & Anor & Mann & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1485 of 2009
| MS VARGAS |
First Applicant
| MR DACEY |
Second Applicant
And
| MS MANN |
First Respondent
| MR BLACKWELL |
Second Respondent
REASONS FOR JUDGMENT
A. Introduction & Background
In order to expedite the delivery of reasons, in certain, limited circumstances (particularly in matters arising out of interim applications, and or where an ex tempore judgment is being delivered), rather than detain practitioners, and parties in particular, any longer than necessary, I have sometimes adopted the practice of referring to, and formally incorporating into the reasons, the relevant parts of cases and reports central to the decision. In the event that written reasons are required, the matters to which specific reference was made during the delivery of the judgment are set out in full. This is such a case. Accordingly, the following reasons, which were delivered ex tempore on 6th November, have been revised from the Transcript in the light of the above practice.
These proceedings concern parenting orders in relation to almost
18 month old [X]. He is the second son of Ms Mann and Mr Blackwell. Their first son, [Y], is five years old. [Y] is not, however, the focus of these proceedings for reason I will explain shortly.
As Ms Lang makes plain, but with some discretion for which she is renowned (among other things), in her Report dated 16th October 2009 (par.2) (“the Family Report”), she confirmed that Ms Vargas has had a long association with Ms Mann.[1] Their families have been friends for many years. Ms Lang also records that the applicants have been “substantially involved” in the lives of Mann children, firstly those born to Ms Mann’s sisters, and then with Ms Mann’s first son, [Y].
[1] In addition to Ms Lang’s Report, to which I refer in detail later, the Court also had the benefit of a short “Record of Intervention” from the ACT Department of Disability, Housing and Community Services (Office for Children, Youth and Family Support) dated 15th October 2009. It was released to the parties on 19th October 2009.
The applicants have no children of their own together. Mr Dacey has a thirteen year old son, [Z], who spends time with him each alternate week-end and half of each school holidays. For the sake of completeness, I note that Mr Blackwell also has a son from a previous relationship but spends no time with him.
The respondents live with Ms Mann’s parents. They have separated on several occasions. Both respondents are separately represented. This might suggest that there are some parental, and likely other, difficulties between them. I consider them later in these reasons, particularly in the light of the Family Report.
Mr Blackwell readily admits that he is recovering from heroin addiction. That recovery would appear to be in its early stages, although there is nothing formally before the Court that gives any detail either as to the rehabilitation program or what stage
Mr Blackwell has reached in it. Indeed, Mr Moore, who appeared for Mr Blackwell, candidly asked the Court to have some sympathy for his client and, to speak colloquially, to `cut him a little slack’ in this period of recovery. I am not sure that such a submission necessarily captures either the spirit or the letter of the “legislative pathway.” But I will come back to Mr Blackwell in any event.
Mr Blackwell said to Ms Lang that he never took drugs near the house. Rather concerningly, he stated to Ms Lang that, in his view, his drug use did not impact on the children. Yet, at the same time, he said to her that when under the influence of drugs, he normally just went to bed.[2]
[2] Family Report, par.3
Such statements show little appreciation of parental responsibility, and not a few other things besides.
Ms Mann confirmed to Ms Lang that she did not take heroin, but used marijuana regularly. Ms Vargas advised Ms Lang that she too had used marijuana but had not done so for some six months.[3]
[3] Family Report, par.4.
Before becoming too immersed in the detail of the disparate relational dynamics in these proceedings, and before considering what jurisprudential principles should apply, it is important to set out what the respective proposals before the Court are.
B. Parties’ Proposals (& Some Other Things)
Unsurprisingly, there is some agreement, and some disagreement, in relation to the respective accounts of [X]’s care arrangements.
The Applicants’ Proposal & Evidence: The proceedings began in mid-September with Ms Vargas and Mr Dacey seeking relief from the Court for a recovery order in relation to [X], and that [X] [continue] to live with them.
At the hearing on 23rd October 2009, her proposal changed. Her legal representative, Ms Pope, submitted that, in time, [X] should be `reunited with his parents’, but in the interim, there should be an arrangement whereby he spend three nights with the applicants, and four nights with Ms Mann.
In her affidavit, affirmed and filed on 10th September 2009, Ms Vargas contended (at par.6) that [X] had lived with her and Mr Dacey since he was 2 weeks old. She averred that initially Ms Mann text messaged her and asked if she would like to have [X] “for the night.” She went on to contend that she actually had [X] for 8 continuous weeks thereafter.
Ms Vargas stated (par.9) that after [X] went back to his Mother for one night, again Ms Mann offered [X] to her. She said that she then had [X] for another 6 continuous weeks.
During a short holiday (of 4 days), Ms Vargas alleged that Ms Mann repeatedly contacted her asking her to pick up [X] after the holiday. This occurred. Ms Vargas said that she looked after [X] thereafter until he turned 1. During this time, she alleged that Ms Mann had little contact with [X].
Ms Vargas went on the say that her partner, Mr Dacey, initiated a discussion with Ms Mann about commencing a transition of [X] back to his Mother. It was said to have been proposed that the arrangement be 3 days with [X]'s Mother out of 7. It was suggested that Ms Mann agreed to this proposal.
Ms Vargas said that this 3-4 arrangement persisted for 3 weeks. Then, she says, Ms Mann called her to ask if she could again look after [X].
Ms Vargas stated that from the end of July until August 21st, [X] was with his Mother 4 days out of 7. Since that date, [X] has lived with
Ms Vargas and Mr Dacey.
Ms Vargas then contended (par.15) that on 24th and 31st August 2009 (the gaps in the dates were not explained) she received a text message from Ms Mann asking if she would like to keep [X], and also asking if she could `pick up [Y] from school on Wednesday and keep him until Sunday lunch.’ Clearly there seems to be some detail missing in this account, although nothing much seems to turn on it.
On 6th September 2009 Ms Vargas said that she text messaged
Ms Mann in the course of which she indicated that both boys would be better off with her until various matters were sorted out. The message also suggested that child protection authorities had been involved and that she was acting on the Department’s advice. Again, there is some lack of clarity, and of detail, here.
On 7th September 2009, Ms Vargas deposed to a telephone conversation with Ms Mann in which she alleged that [X]'s was very agitated and making threats about Ms Vargas being charged with kidnapping.
On 10th September 2009, the police arrived at Ms Vargas’ home and collected [X].
The remainder of Ms Vargas’ original affidavit (of 10th September 2009) deposed to Ms Mann’s marijuana use, Mr Blackwell’s heroin use, and a conversation with one of Ms Mann’s sisters about [X]’s lack of care in his Mother’s house.[4]
[4] I will not traverse the matters contained in the supporting affidavit of Mrs V, the Applicant’s Mother, filed 17th September 2009.
Mr Dacey’s short affidavit (also filed on 10th September 2009) narrated that some of Ms Mann’s sisters had gone to Ms Mann’s house to ask Mr Blackwell to leave that house.
The First Respondent’s Proposal & Evidence:In her Response, filed on 24th September 2009, Ms Mann sought orders for [X] to live with his parents and to spend time with Ms Vargas and Mr Dacey “as agreed between the parties.”
Curiously, in her affidavit filed on the same date, Ms Mann sought orders whereby Ms Vargas’ application be dismissed. Clearly the inconsistency in relief sought - as set out in her Response and the rather different order claimed in her affidavit - was not noticed by those acting on her behalf and who are responsible for the drafting of the documentation filed with the Court. I will come back to the contents of her affidavit shortly.
In his Response, filed on 20th October 2009, Mr Blackwell sought orders that [X] live with his parents and spend time with Ms Vargas and Mr Dacey for the next 6 months on a decreasing basis until it gets to a stage of one day per week. Thus, his orders sought are different to both versions of the orders sought by Ms Mann.
At the interim hearing, as I have already noted, the solicitor for the Applicants submitted that it would be in [X]’s best interests for the situation to return to the 3-4 arrangement (i.e 3 days with Ms Mann and 4 with Ms Vargas) as it was immediately before [X]’s retrieval and return to his Mother.
As recorded by Ms Lang in her Report (par.8), there is yet further variation as to the parties’ respective positions, thus: Ms Mann and
Mr Blackwell propose that [X] live with them and that the applicants have no involvement with him; according to Ms Lang, the Applicants propose that [X] spend time with them from Friday to Monday of each week.
In the light of the above the Court has a plethora of proposals to consider, and not only as between the opposing parties but also different – not alternative - positions from the same parties. On last count, Ms Mann has three different proposals before the Court, only one of which is the same as the orders sought by her current partner, Mr Blackwell.
Before proceeding with the formal resolution of the denouement before the Court, on an interim basis, having already summarised the position from the position of Ms Vargas and Mr Dacey, I will summarise the case from the perspectives of Ms Mann and Mr Blackwell.
I note again that each of the Respondents is separately represented. It also seemed to be not disputed that the Respondents have had not infrequent periods of separation.[5] Unless otherwise required, I do not propose to canvass what is contained in various other affidavits filed in support of various parties. It is important to note, however, that both respondents currently live with Ms Mann’s Mother, who has provided an affidavit to which I will refer in due course.
[5] This was noted by Ms Lang in the Family Report, par.3.
C. Respondents’ Cases
For her part, Ms Mann unsurprisingly tells a story that is somewhat different to that of Ms Vargas. However, what is the same is the basic fact that she has allowed [X] to spend significant time with Ms Vargas and, in effect, for Ms Vargas to be his carer at least for regular, significant periods of his life. It is also agreed that there have been times in [X]’s life when Mr Blackwell has been absent from his life and that of Ms Mann.
I am unable, at this stage, to make any assessment of those areas of the evidence in which there is significant dispute.[6]
[6] Cf. the comments of the Full Court in Goode v Goode (2007) 36 Fam LR 422 at [74] & [82].
I pause here to make the following observation in relation to some material set out in Ms Mann’s affidavit.
It is decidedly unhelpful to have recounted in an affidavit what I am alleged to have said on an earlier occasion in Court (see par.33 of
Ms Mann’s affidavit). Nor is it helpful to have in an affidavit statements allegedly from Departmental Officers to whom are attributed expressions of legal or related advice as to what this Court should or should not do in relation to the applications before it. (see par.39 of Ms Mann’s affidavit)
Those preparing such affidavits, and those who appear as advocates in Court and who obviously rely upon affidavits, in my view, should ensure that such material is not put before the Court. If a case needs or seeks to be bolstered by the insertion of such material – i.e an observation from the Bench and comments attributed to un-named departmental officials – perhaps it is an indication of gaps and flaws in other evidence. Moreover, in addition to any offence to the Court (small though it might be), and leaving aside matters of privilege and much else, what weight could a Court place on such statements in any event?
Ms Mann’s affidavit confirms that (a) she takes drugs, (b) she lives with her parents, (c) the on-off relationship with Mr Blackwell and (d) he takes drugs. In relation to these latter aspects her affidavit is, perhaps surprisingly, perhaps not, rather short on detail. That is unfortunate and unhelpful.
Ms Mann also suggested that Ms Vargas has some mental instability and in effect is seeking to act as [X]’s surrogate Mother. Ms Mann deposed that she “gave” [X] to Ms Vargas, from time to time because she thought it might alleviate her upset at alleged unsuccessful IVF attempts. Ms Mann contended (par.13) that having [X], might “cheer up” Ms Vargas.
Some might regard passing over one’s child (of whatever age) to another couple – especially when they are not related - a rather novel and perhaps troubling form of therapy. As a matter of principle, I might be taken to share such a view.
Mrs M, [X]’s Grandmother, who works full-time as a [health-care professional] on night shifts, offers some variation of events. Stated summarily, she said that [X]'s has essentially lived with her (and her husband) since his birth, and that Mr Blackwell has been around, from time to time. Although it is down-played somewhat in her affidavit, with the accent being placed on “our family” spending most of their time in the large kitchen, lounge room or on the back pergola (but presumably not in winter or the rather chilly spring weather in recent times in Canberra), with three bedrooms and one bathroom being shared between four adults and two young children, the living arrangements must be rather tight at her house.
In language identical to that in her daughter’s affidavit, Mrs M deposed to some concerns also about Ms Vargas’ mental state. In the absence of any independent evidence, and given that it was an interim hearing, assertion and counter-assertion do not provide the Court with much assistance.
I should note that according to records of the Department provided to the Court and released to the parties on 19th October 2009 (previously noted), although there have been a number of notifications, at this stage there were no risks assessed by the Department.
Ms Lang’s Report:[7] Ms Lang identifies the following as key issues in this matter: (a) Mr Blackwell’s drug use; (b) [X]’s attachment relationships with the significant adults in his life; (c) [X] and [Y]’s sibling relationship; and (d) the respective adults’ capacities to meet [X]’s needs. Respectfully I agree with Ms Lang’s identification of the issues.
[7] This Report may be taken to have been received into evidence on the principles that were espoused by Warnick J in SPS v PLS (2008) 217 FLR 164; (2008) FLC ¶93-363 at [7] – [19].
Of special concern is the lack of appropriate consideration in any affidavit of the violence between Ms Mann and Mr Blackwell to which Ms Lang refers at par.3 of her Report. That violence relates to
Mr Blackwell’s drug taking.
In my view, the issues of violence and Mr Blackwell’s drug-taking should have been addressed in a much more thorough-going manner than they were. Apart from Mr Moore’s submission (previously referred to) about `cutting his client a bit of slack’ on the basis that
Mr Blackwell was undertaking a rehabilitation program, these significant issues that clearly impact on the Court’s protective responsibility to [X] (and no less so in relation to [Y]) should have been confronted and dealt with. They were not.
I note and incorporate the following from Ms Lang’s Report: pars.10, 11 & 12. Her observations are important.
10. When [X] was observed with his parents and [Y], he and his brother engaged in separate activities. Mr Blackwell set up a train track. He interrupted [Y]’s activity to direct the child’s attention to the track. Mr Blackwell was observed to have a low tolerance for frustration. [Y] was observed to be eager to please his father. Mostly, [Y] played with his selected toys, while
Mr Blackwell focused on the train track. In a good-natured and gentle manner, Ms Mann attempted to engage [X]. [X]’s reaction was somewhat disorganised. Ms Mann was observed to lack some confidence as a parent. She was, at times, seen to curtail to Mr Blackwell’s views and directions. The parents engaged with the children separately rather than co-operate as a couple and engage the children as a family group. Ms Mann was seen to interact with both children. Mr Blackwell made little attempt to engage the children. He impresses as self-focused. I sensed some tension between the parents. Communication among the members of the family remained restricted. Although [X] appeared content, he remained somewhat distracted throughout the session.
11. When it was time for [X] to be observed with Mr Dacey and Ms Vargas, he was seen to be somewhat confused by the change. [Y] was given the option of taking part in the observation with
Mr Dacey and Ms Vargas. Before [Y] could comment,
Mr Blackwell sternly informed the child that he could not remain and brushed past Mr Dacey and Ms Vargas in a hostile manner. As [Y] left the playroom, he turned to his brother and said “come on” meaning that [X] was to leave with him and his parents.
Ms Mann appeared uncertain how to react to the situation.
Mr Dacey and Ms Vargas displayed discomfort, but remained neutral.
12. [X]’s confusion by the somewhat tense changeover was replaced by a lively engagement with Mr Dacey and Ms Vargas. Ms Vargas sat [X] on her lap. [X] readily engaged with her and with Mr Dacey. The adults provided encouragement and guidance for [X] as he focused on some play activities. The child’s play was organised and constructive. There was ongoing communication among the three. Mr Dacey and Ms Vargas both pitched their speech at [X]’s developmental level. They impressed as confident carers and complimented each other’s caring roles. Their manner with [X] was warm and containing. He appeared secure in their presence.
No less important are Ms Lang’s comments in the following paragraphs, which are also incorporated: pars.14, 15, & 16.
14. Mr Blackwell displayed little insight about [X]’s needs. He presented as intense, edgy and self-focused, characteristics that are typically associated with drug addiction. When [X]’s future care arrangements were discussed, he displayed a lack of understanding and interest concerning the impact on [X] if the child were to be deprived of spending time with Mr Dacey and
Ms Vargas given his obvious attachment to those two adults. At first, Mr Blackwell aggressively stated “no contact” and then added “no overnight – only once during this weekend”. In a conciliatory manner, Ms Mann reiterated that there be no overnight time for [X] with Mr Dacey and Ms Vargas based on legal advice. She proposed “perhaps a couple of hours on both Saturday and Sunday”. Mr Blackwell reacted to her proposal in anger and asserted “if they can’t talk to me they’re not getting [X]”. Mr Blackwell terminated the session.
15. It would appear that Ms Mann’s ability to focus on the needs of [X] is inhibited by the task of having to balance her loyalty to Mr Blackwell with making decisions for [X] that would best meet his needs. She impresses as a well-intentioned and affectionate parent, whose parenting role is made difficult by her current circumstances. It is concerning that her predicament has been such that she parted from [X] for repeated and relatively lengthy periods of time when he was at a critical stage in his development with respect to attachment formation. It is unusual for a primary carer to part with an infant for the benefit of a friend’s happiness.
16. Mr Dacey and Ms Vargas impress as reasonable, caring and responsible adults. There is no hint of any form of mental illness on the part of Ms Vargas. The adults display a good understanding of [X]’s needs and it is apparent that they have made a positive impact on his overall development. Both stress the importance of [X] having the opportunity of being in the primary care of his mother and to be raised with his older brother. They are supportive in their view of Ms Mann as a parent. Mr Dacey and Ms Vargas, however, express concern about Mr Blackwell and the risk he poses not only to [X], but also to [Y]. The intention behind their proposal to spend time with [X] on a weekly basis is to remain a presence in his life should he require a safety net if his mother finds herself in the position of being unable to provide adequate protection and care for him.
Ms Lang concluded her Report in the following terms: pars.17 & 18.
17. Ms Mann has a particularly difficult task ahead of her in resuming the full-time care of [X] while raising [Y] and at the same time supporting Mr Blackwell as he combats a heroin addiction. It is to Mr Blackwell’s credit that he is seeking professional assistance. His ability to abstain from the habitual use of heroin remains uncertain. While Mr Blackwell remains addicted to the substance, he will continue to experience the cycle of mood swings related to craving, being under the influence of the drug and withdrawal. He will not have the capacity to focus on [X]’s needs and might well place the child, in fact both children, at risk.
18. Until the circumstances improve for Mr Blackwell and
Ms Mann, [X] will benefit from maintaining a relationship with Mr Dacey and Ms Vargas should he, at times, require a place of safety. Understandably, if Ms Mann is to become the central attachment figure for [X], it is important that he has substantial time in her care and has a routine that is consistent. In order for Mr Dacey and Ms Vargas to remain a predictable presence in [X]’s life, consideration might be given to him spending a full day with the couple once or twice a week. It might be best for [X], in the interim, to sleep at his mother’s house to assist with the process of consolidating a primary attachment to her and with strengthening his sibling bond with [Y]. [Y] might, at times, be included in the arrangement of spending time with Mr Dacey and Ms Vargas. In addition to the offered support of Mr Dacey and Ms Vargas, it is fortunate that Ms Mann has the support of her parents, with whom she and Mr Blackwell live.
In the absence of any evidence to challenge her observations, comments and recommendations, I accept her evidence.
D. Statutory Pathway & Other Jurisprudential Considerations
Each of the matters raised and noted by Ms Lang are directly relevant to those parts of Part VII of the Family Law Act 1975 (“the Act”) that are directly in play in these proceedings. They are neatly summarised by Brown J in her famous “twin pillars” section of Mazorski v Albright, which I incorporate formally into these reasons.[8] The relevant parts of her Honour’s judgment are at [3] – [6], which are set out below:[9]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[8] (2008) 37 Fam LR 518.
[9] In my ex tempore judgment I also made specific reference to the incorporation of the signal parts of the Full Court judgments in Goode and Keach relevant to these proceedings. Those parts are: Goode v Goode (2007) 36 Fam LR 422, especially at [10], [47], [48], [56], [81] & [82], and Keach & Keach (2007) FLC ¶93-353 at [24] ff.
In this case, because of [X]’s age, there are no children’s views to consider. Of most importance, in my view, are the protective responsibilities of the Court, first and foremost to [X] (and no less so to [Y], although he is not formally the subject of these proceedings).[10] I am equally concerned for [X]’s parents and the various but significant pressures with which they have to contend. I have already identified them sufficiently, as did Ms Lang in more detail.
[10] See in particular s.60B(1)(b) and s.60CC(2)(b) of the Act.
Now seems to be a time of significant transition in the lives of many involved in these proceedings. [X]’s parents have much to grapple with in their own lives – e.g. as a couple, as parents, with their respective drug issues, the violence from Mr Blackwell, and in dealing with Ms Vargas and Mr Dacey, who have, on all accounts, played a regular and quite significant part in [X]’s life, and seemingly also to some degree in [Y]’s life.
In my view, the following sub-paragraphs of s.60CC(3) are primarily involved in this matter: (b), (f), (g), (i), and (j). In my view, these sub-paragraphs are engaged on the evidence before the Court and my earlier consideration of it.
Because no party seeks orders in relation to parental responsibility (and I was not addressed by any of the legal representatives in relation to it), and because the dispute is not between the parents per se but rather between [X]’s parents (on the one hand) and the Applicant non-parents (on the other), I make no orders in relation to parental responsibility. It flows from such a position that the so-called usual considerations of s.65DAA have no application.
As in all children’s matters, the issue is what orders are in [X]’s best interests.[11]
[11] S.60CA.
The first order I consider to be in his best interests is that, notwithstanding his age, there be appointed an Independent Children’s Lawyer. Given the number of parties and their competing proposals an Independent Children’s Lawyer will assist in the future deliberations on matters arising out of these proceedings.
For the purposes of these interim orders I do not need to make any particular determination about most of the issues in dispute. It is, however, indisputable that Ms Vargas and Mr Dacey have had significant involvement in [X]’s young life.
I am concerned about Mr Blackwell’s heroin use, his lack of insight about its impact on the care of his children, as well as his apparent lack of appreciation of that use on his relationship with Ms Mann. These matters, as I have noted, are considered by Ms Lang in her Report.
I am concerned also about [X]'s’s use of marijuana and her appreciation (or lack of it) about its impact on her parenting, as well as its impact on her relationship with Mr Blackwell.[12]
[12] For ease of reference I recall the following from Ms Lang’s Report (par.17): “Ms Mann has a particularly difficult task ahead of her in resuming the full-time care of [X] while raising [Y] and at the same time supporting Mr [Blackwell] as he combats a heroin addiction.”
In the light of the admitted drug use of both parents, the Court’s protective responsibilities must assume greater prominence at this time.
In my view, Mr Blackwell, in a limited respect, is heading in the right direction in relation to the orders sought. By this I mean that there has to be a transition of responsibility to Ms Mann, but over some time. The transition must, however, in my view, acknowledge the important role that Ms Vargas and Mr Dacey have played in [X]’s life to date.
I also readily accept Ms Lang’s appropriate recommendations in relation to drug and alcohol assessment in relation to Mr Blackwell. As a precaution, such things should also apply to Ms Mann for a little time to come.
For more abundant caution, Ms Vargas should also undertake three random drug tests, those tests to be initiated by the Independent Children’s Lawyer. The random tests shall also apply to Ms Mann and Mr Blackwell (subject only to the requirements of his rehabilitation program).
In my view the transition to which I have referred should be staged and monitored. For example, in the absence of written agreement between the parties, the initial time between [X] and the applicants should be three nights per week for two months, then two nights per week for the next two months.
The transition should then proceed whereby, subject to the view of
Ms Lang or such other family consultant, [X] move to one night per week for a short time until he progresses to each alternate weekend.
Each transitional step is subject to appropriate drug and alcohol assessment.
In my view, the orders proposed are in [X]’s best interests.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: J.Curtis
Date: 22 December 2009
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