W & K
[2006] FMCAfam 248
•29 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| W & K | [2006] FMCAfam 248 |
| FAMILY LAW – Children’s issues – residence and contact – shared care – parenting capacity – child’s wishes – different parenting styles. |
| Family Law Act 1975, ss.60B, 65E, 68F(2) |
| Applicant: | W |
| Respondent: | K |
| File Number: | MLM670 of 2006 |
| Judgment of: | Riethmuller FM |
| Hearing dates: | 17 & 18 May 2006 |
| Date of Last Submission: | 18 May 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 29 June 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms Stewart |
| Solicitors for the Applicant: | Heinz & Partners |
| Counsel for the Respondent: | Ms Bender |
| Solicitors for the Respondent: | Victoria Legal Aid |
| Counsel for the Child’s Representative: | Mr Curtain |
| Solicitors for the Child’s Representative: | Sarah Lia Solicitor |
ORDERS
The mother and father have joint responsibility for the long term care, welfare and development of the child J born 28 November 19… (‘the child’).
The child J reside with the mother.
The father have contact with J as agreed, and failing agreement as follows:
(a)Every second weekend from after school Thursday to commencement of school Monday commencing 1 July 2006;
(b)From after school on each Tuesday that J has football training preceding the contact weekend until the end of football training;
(c)For half of school holidays failing agreement, the first half in even years and second half in odd years;
(d)If Father’s Day does not fall on a contact weekend then from 10.00am to 5.00pm on Father’s day;
(e)If Mother’s Day falls on a contact weekend then contact cease at 10.00am on Mother’s Day;
(f)From 5.00pm Christmas Eve until 2.00pm Christmas Day 2006 and each alternate year; and
(g)From 2.00pm Christmas Day until 2.00pm Boxing Day and each alternate year.
Within 14 days the parents enrol the child in an Australian rules football team.
The orders and such of the reasons for judgment as the counsellor believes are appropriate be first explained to J by his counsellor.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BALLARAT |
MLM670 of 2006
| W |
Applicant
And
| K |
Respondent
REASONS FOR JUDGMENT
This case concerns the care arrangements for a child J who is nine years of age.
At present J is in the shared care of his mother and father, spending one week in each household out of each fortnight. J's mother lives
20 kilometres out of Horsham on a rural block. J's father lives in a rented home in the town. Each of J's parents have re-partnered. J has a brother who is now 19 years of age and lives with his grandparents.
From the mother's perspective the major issues in the case involve the alienation of the mother from the child by the father, a lack of boundaries being imposed by the father, the appropriate socialisation of J as he grows older, the inappropriate involvement of J in the proceedings, and the ability of the father to foster appropriate relationships on his own part and on J's part with the adults that are now significant in J’s life.
From the father's perspective the significant factors in the case are his son’s distress about going to his mother's house, the extensive involvement he has had in J's life from J's birth, and the importance of his ongoing involvement in J's life.
All parties agreed that arrangements in place until October 2005, which involved regular changes of care arrangements for J, were causing him distress and not in his best interests. The father now argues that shared care on a week about basis (as provided for in the interim orders) should continue. The mother seeks orders for the father to have contact from Friday after school until Tuesday morning each fortnight, with J to reside with her. The child representative placed submissions before the court largely in accord with the recommendations of the family report writer Dr Kennedy, to the effect that the child should live with the mother but have substantial block contact with the father.
The evidence of the mother
The mother presented as a neat, quietly spoken woman who generally answered questions directly. She is currently employed as a records officer. She has been effective in attending to J's day-to-day needs.
She has facilitated counselling for J with Mary O'Brien at Horsham, J having attended four sessions to date. She believes J is going well with counselling at present as a result of comments from Ms O'Brien. She explained that she had never been aware of J expressing thoughts of suicide until the first court hearing when she read the allegations in the affidavit of the husband. As a result of this she has participated in arrangements for J's counselling. She agreed that J had said that he misses his dad and would like to live with him, but explained that J has not given any other reasons as to why he wants to live in the husband's house.
During cross-examination she said that J enjoys activities with her current partner, Mr C, such as playing video games and riding on the dune buggy. She agreed that J and his father are very close, enjoying many activities together. She explained that she has concerns that adult issues are being placed on J by his father and that J feels he has to look after his father, J having said words to the effect that his father is happy when he is around. She agreed that on occasions J had been made to go with her on a handover at the end of contact and that the contact arrangements in the form of contact from Thursday to Sunday would probably have continued but for the incident that occurred in October (this contact also involved midweek contact after school). The wife was also cross examined about whether J enjoyed being on the rural property rather than in town, and said that J had not complained about this to her.
When cross-examined by the child representative she explained that the father had attended at the wrong date for the appointment with the counsellor and that the counsellor had advised that she had tried to contact the husband but was unable to get him on the phone. She saw this as an example of the husband's inability to meet some of J's day-to-day needs. She said that she believed the counselling was beneficial because J could well need someone to talk to since the court proceedings had been on foot. She said that she was not concerned about J being suicidal as she had been told by the counsellor that he was not suicidal and simply needed somewhere safe to talk. She agreed with Counsel for the child representative that counselling should continue as long as J needs it. The counselling is provided by community based services and there are no monetary expenses that must be met. The mother said that J seems more relaxed after his counselling sessions.
The wife agreed that J has always been quite happy and settled at school (except for the time soon after separation). All of the parties appear to accept that J's schoolwork is proceeding well and that he is performing well at school. No specific evidence with respect to J’s schooling, such as from J's school teachers or school reports, has been placed before the Court.
The wife explained that she agreed to the interim orders and for week about contact as she was concerned that she may not see J until the matter came before the Federal Magistrates Court in March of this year, as a result of advice that she received from her then solicitor. She has since changed solicitors before this hearing.
She believes that she could communicate with the husband about J's needs but said that she believed they did not have a similar parenting style. The wife says that she imposes a lot of boundaries, such as a fixed bedtime and has a more traditional parenting style. She is concerned that J does whatever he wishes when in the husband's household, and that this is not appropriate given his age. It appears that she views the father's household and parenting style as somewhat laissez-faire. The mother is also opposed to J being in a household where the father is utilising marijuana in circumstances where the father has expressed a view in the past that marijuana is ‘okay’. She related that in October 2005 the husband had said to her that he was a ‘dope smoker’, and that he would ‘always be one’.
However, the wife agreed that she had not seen the husband under the influence of drugs or alcohol for a couple of years, and that whilst he had an explosive temper she had not known him to lose his temper with J. The material shows incidences of serious domestic violence when the parties were together, and an incident that occurred in October 2005.
The wife said that J had told her that he likes her current partner, Mr C, but that he does not like Mr C telling him what to do. She says that Mr C does not primarily discipline J, but from time to time Mr C backs her up when J is not behaving. She said that J gets angry about this, stating that Mr C is not his father. She said that she speaks to J about this and after an incident of this type J is then good for a while. She believes this is being caused by things that the husband may be saying to J. She said that the husband has said a number of things to J about Mr C (as related by J), such as: the husband hates Mr C, Mr C is a c--t, Mr C has bashed every girl he has been with, Mr C has hit people over the head with a chair and stabbed them in a pub.
The mother agreed that she has yelled at J at times when he was not behaving, but denied that she had been "ballistic", saying that she was surprised that J even knew the word (as recounted in the report of the family report writer). She explained that for punishment she sends J to his room but does not engage in corporal punishment.
The wife agreed that the husband had a great deal of difficulties during the period when he finally disclosed details of sexual abuse that had been perpetrated against him when he was a school student. She also agreed that the husband had sought counselling and had improved from this low point in his life. She said that J had told her that the husband had shown him the court papers and that she does not quiz J about what happens in his father's household. She said that J's behaviour towards Mr C changed from the time when J first recounted that the husband did not like Mr C. She said that she knew nothing of J falling off the back of a motorbike as alleged by the father. Mr C was not cross examined about this event. Whilst agreeing that J is a 'switched on kid' and possibly quite good at playing his parents off against each other, she remained concerned that J speaks about things more like an older child.
In re-examination the mother explained that when J first comes back to her household after being with the father that he is very distant from Mr C, but over two to three days warms to Mr C again. She said that J does not like to have any physical contact with Mr C although he does have normal affectionate physical contact with her.
I found the mother to be an impressive witness and accept her evidence.
The evidence of Mr C
Mr C is the current partner of the wife. He was referred to throughout the proceedings, by the witnesses, as C….. He said that he had never met Mr K, and was unaware of what Mr K's problems were with him.
He said that J had said that the husband described him as a c--t, his worst enemy, and said that he did not like him.
Mr C said that until the incident in October 2005 he had occasionally seen Mr K as he would sometimes collect J for contact. He said that he believed that his relationship with J was good although he had trouble on Monday and Tuesday's after J came home from his father's house, with things usually settling down again by Wednesday. He said that the activities he engages in with J included fishing, taking J to the zoo and allowing J time to play with his own daughter (when with them).
He explained that J objects to being disciplined by him and says to him words to the effect that ‘he is not his father’ and ‘cannot tell him what to do’. This arises when he asks him to do things like ‘pickup your clothes’ or ‘take your plates to the kitchen’. He said that before the court proceedings his relationship with J had been excellent.
Mr C, like the father’s partner, appeared a positive and supportive adult in J’s life. He is aware of appropriate boundaries given that he is not J’s father. I generally accept his evidence.
The evidence of the father
At present the father works as a sales assistant in a Safeway supermarket. He did not work from when J was born until he was four years of age. He explained that contact, until recent times, was every second weekend and overnights on Tuesday. More recently he has had week about arrangement. He said that he plays football, golf, tennis and goes fishing with J. He said that J was kept occupied all of the time.
The husband said that he uses marijuana now only once or twice per week, and usually before bed to help him sleep. At the time of giving evidence he said he was willing to have drug screens and does not have a problem with ceasing his marijuana use. Notably, however, he had not chosen to cease use of marijuana prior to the trial at the time that the child representative requested that he participate in drug screens.
His version of an altercation between the parties in October differs from that of the wife, mainly in portraying her as a more active and aggressive participant. However, he says that during the argument with the wife Mr C walked towards them and he told Mr C to ‘fuck off’. He recounts that Mr C went back to the car and stayed out of the argument. He admitted in cross-examination that Mr C’s decision not to intervene in that argument was appropriate and somewhat grudgingly described him as ‘half decent’ in this respect.
He admitted that in recent times police have raided his house. He has been convicted of driving without a licence and giving a false name to police (although he denies that he actually committed the offence of providing a false name). He has also been convicted of firearms offences (although he said that the items were in B's old bedroom). In cross-examination he agreed that on one occasion he had been evicted (around five years ago now) and that on one occasion his utilities had been cut off as the bills were not paid.
He agreed that he had mentioned to J that he does not get on with Mr C, and that he may have called Mr C a ‘c--t’ within Js hearing. The father stated that the allegations that Mr C had hit someone with a chair and stabbed someone, and bashed his ex-wife, were all rumours that he had heard. He did accept, however, that Mr C does ‘work hard’ and ‘can run a business’, offering these observations as the most positive things he could think of with respect to Mr C. He says that he has told J that Mr C is the father figure in the house and that he has to get on with him, but believes that J is quite headstrong.
The father declined to give specific reasons about why he did not like Mr C other than saying it was something from when they played football around 15 to 20 years ago. He later said that he did not like Mr C because of the way he treats J. I do not find the husband’s explanations of his feelings for Mr C credible.
When giving evidence the father agreed that he would not want J to smoke marijuana. The father agreed that an incident occurred where J had been grabbed by the arm by a man in the street. He said that this occurred as J had been throwing stones at a disabled boy. It appears that J was away from the house and not under the husband's direct supervision at the time. He also agreed that he had asked J not to tell the wife about the incident, explaining that he wanted to find out exactly what had happened before he told the wife about it. Similarly, he asked J not to tell the wife about the trip that he was hoping to plan to the snow as he was concerned that if the wife became aware of the trip, she would undertake such a trip with J first. He said he feels like the wife bleeds J for information.
The father agreed that he was aware of an obscene ditty that had been sent to J’s phoned by SMS from another child who lived next door. He said the child has now moved. He was not aware of this at that time.
The father obtained his driver's licence again in August of last year. He said that he is committed to undertaking the parenting course ordered on the last occasion and is booked in to do three hours on 24 May 2006. He said that he would be prepared to do a longer course if requested. He said that he had been living with his current partner for 10 months and that he had never heard of the idea of him kicking her out nor heard of her moving to Geelong as J had related to the mother.
The father agreed that the mother was a good mother and that J was doing well at school. He agreed that he can freely contact J on his mobile phone. He said that he and his current partner Ms M work at the same workplace and can arrange their shifts so that when J is in his care there will always be one of them present. He denied the allegation that he had told J what to say to Dr Kennedy, but agreed that he had told J that when he was older, he could live with him.
Having seen the father give evidence in the witness box I have no doubt that he dearly loves J and wishes to maintain his close bond with J. I have real doubts as to the father's capacity to distinguish between the roles of ‘mate' and ‘parent’. I also have real doubts as to the father's capacity to maintain a stable household in the more mundane sense of ensuring that J’s day-to-day needs are met. Having regard to the father's long-term use of marijuana and the fact that he has not chosen to cease that prior to the trial, I do not have any confidence that the father would be able to cease his use of marijuana in the future. It is of concern that the father has such a dislike for Mr C yet is unable to articulate clearly the reasons for it.
The evidence of M
Ms M is the current partner of the husband. She is 24 years of age, has no children, and has not been married. She is clearly very supportive of the husband. She said she had never heard the husband use denigrating terms with respect to Mr C, but stated that she had heard J call Mr C a c--t.
Whilst she smokes cigarettes she expressed staunch opposition to the use of marijuana, saying that she did not want it in her life. She explained that she is saving for a house, and denied either intending to move to Geelong or having any idea about being kicked out of the house by the husband.
She described herself as a very active person in joining activities such as golf and fishing. She said that J enjoyed the horses at her parent’s house. She described appropriate discipline methods, such as not allowing J to play with his friends when J had not behaved appropriately. She made clear that she was aware of appropriate boundaries for her in her relationship with J.
I generally accept the evidence of Ms M, although I am inclined to the view that she minimised the father's behaviour with respect to his comments about Mr C.
The evidence of Dr Kennedy
Dr Kennedy is a clinical and forensic psychologist. He interviewed the family members on 5 May 2006 and produced a report on 9 May 2006. As set out in his report:
J stated that his mother is strict regarding his friends. When asked what the problem was with living on the farm, J stated: “there is not much space outside… there is no big backyard… its paddocks… I don’t go outside… there are bees from the trees… one bee stung me… sometimes there is a bird that swoops me… I feel trapped and I can’t get out”.
When asked further about what he does on the farm, J indicated that he rides his bike around the farm and also drives a dune buggy. J stated that there was also the issue that Mr C did not like him and he stated: “Mr C thinks I am a slave for him”. When asked in what way Mr C and him like a slave, J replied: “he asks me to do things….he’s mean”. J indicated that he gets along well with his mother.
J indicated however that at times, his mother goes “ballistic” and has very angry moods. He stated that sometimes he tells his mother things which his father does not want him to tell her, but he could not remember what things. J appeared to be quite confused when discussing issues between his mother and his father.
J spoke about his father very positively. He said that his father was fun and he was involved in a variety of different sports. In contrast, J indicated that his mother never does any fun things and neither did Mr C. J spoke positively about his father’s girlfriend, Ms M.
When asked about what he wanted, J stated that he wanted to live with his father and see his mother every second weekend, on the weekend that JE is there. When asked further about the possibilities of influence or coaching, J denied coaching and stated initially that he does not know what his father thinks about where he is to live. Soon after these comments, he then stated: “my dad really wants me to live with him… he never told me that. – I know he does”. With respect to his mother, J stated that he knows that she wants him there, but he told his mother that he wants to live with his father and she feels sad about this.
When asked directly whether either parent had said to him what would be good for him, J stated: “dad told me to say that I want to live with him… he is actually telling the truth because I do want to”. J than added, apparently as an after thought and rather unconvincingly, that his mother told him to say that he wanted to live with her.
Discussion of the meaning of truth at this point led J to indicate that he had enough of talking, raising concerns about his statement.
The evaluation showed J to be quite torn between his two parents. There was no overt difficulty in J relationship with his mother and claims from J that there is a poor relationship between himself and Ms. W’s partner lacked specifics or substance. Also, negative comments J made regarding living with his mother’s care, considering her care of him over his childhood, were incongruent.
Moreover, the central impression from the evaluation was that there has been subtle and possibly overt influence of J, which would explain his statements about wanting to live with one parent or the other. In this sense, based on this evaluation, there is some likelihood of a parental alienation process, that is (alienation of J from his mother) occurring, as it is clear that Mr. K strongly wishes to have J in his care.
The concerns in this are that the relationship between Mr. K and J, in general, has a tendency towards mateship, rather than being parental, and there appears to be insufficient boundaries placed on J. There have also been at least one incident within the father’s neighbourhood, which is reported to be a Housing Commission area that is likely to be a reflection of this boundary issue.
Mr. K has significant difficulties in his own background, including a history of childhood sexual abuse in his teens and subsequent significant problems with drug use, even up to a period of five years ago. It is uncertain whether or not drugs remain a picture in Mr. K’s presentation however, it has been claimed by Ms. W that this is the case. His history and symptoms are reflective of personality disruption.
He held concerns that the conduct of the husband may undermine not only the mother's household but J's general happiness, providing J with an inappropriate role model and a less than stable environment for J's care. He thought that J would benefit from having a primary home base with his mother and significant time with his father. He believed that a change to the current care arrangements would not require a period of suspension of contact between J and the father and that such a process should only be put in place is a matter of last resort.
Dr Kennedy explained in cross-examination that the references to alienation in his report were a reference to subtle and not so subtle interactions between the father and J attempting to reduce the strength of the bond between J and the mother. He explained that in this case he found J's history and nonverbal behaviour incongruent, explaining that the child's nonverbal behaviour to the mother during the interview was unusually negative given the relationship that they have had and the verbal statements made by the child about his mother. He had the impression that J had been coached. He was also concerned that J's presentation differed depending upon the topic that he was talking to J about. Significantly J did not want to talk about honesty. Early in the interview process, J had said that he did not want talk about his parents. Dr Kennedy said that a nine-year old would usually be able to speak freely about these topics.
Dr Kennedy accepted that there were other possible explanations for J’s behaviour as described in the literature, but that he did not believe that alternative explanations explained the presentation of the parties as he saw them. He gave further examples of J's comments that the mother's home is boring to him and that he felt trapped, as being incongruous with his statements that he could ride his bike around the property, that he enjoyed riding on the dune buggy and that he enjoyed time with his stepsister there. Dr Kennedy believed that one of the negatives of the mother's house for J was that he was away from friends that he had in town, but also believed that a lack of boundaries in the father's household may seem to be more fun for a nine-year old child. Dr Kennedy had the impression that J would spend long periods of time with his mates without apparent supervision riding their pushbikes around town, when J was within his father's care. Dr Kennedy was concerned that J would be at risk in his teenage years if he did not receive more appropriate supervision and limits on his behaviour now.
Dr Kennedy said that the responses from the parent in the position of the mother in this type of case varied from being withdrawn to angry or anxious, making comments such as ‘here we go again’. He found that the mother presented as somewhat helpless about the current situation. He thought that shared-care was more appropriate for children over
10 and that younger children do better with a stable base. However, Dr Kennedy was careful not to exclude the possibility that week about arrangement might be suitable once J was a teenager. He was of the view that participation in a football team would be very positive for J.
Dr Kennedy found the description of J’s suicidal ideas somewhat confusing and was unable to clarify the circumstances. He found the description of J being found in bed with a stay-sharp knife, without any preceding history, such as depressive tendencies, or even behaviour noticed by his parents as unusual. He noted that threats of suicide are often raised as part of an attempt to show the child dislikes the other parent.
I accept Dr Kennedy’s evidence as to his observations and opinions.
Other issues
Unfortunately some issues were without evidence or exploration. There was no real explanation about why B (J’s brother) now lives with his grandparents nor how that transpired. Whilst the mother has had a charge of stealing from her employer, this was not explored.
The father placed no evidence before the court as to the outcome of his counselling or treatment following his disclosure of being abused as a child. It was only in response to comments from the bench that the father’s current partner was called as a witness.
There is no evidence from J’s counsellor.
The evidence about J and football was interesting in that it was easy to receive the impression that he was in a team (his father having played in his late teens and early twenties and continued as an avid supporter of the game), yet J has not joined a team. It is symptomatic of the inability of the parties to make arrangements and deal with underlying issues that may benefit J when they are not pressing or urgent. It also casts some doubt on the father’s organisational skills given that he is the parent for whom football is the most important.
Relevant law
Parenting orders are governed by Part VII of the Family Law Act1975. Section 60B sets out the objects of Part VII and the principles which underlie those objects. The four principles are:
(1)Children have a 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.
(2)Children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development.
(3)Parents share duties and responsibilities covering the care, welfare and development of their children.
(4)Parents should agree about the future parenting of their children.
Section 65E of the Family Law Act provides that the best interests of the child is the paramount consideration. Section 68F(2) sets out the relevant considerations when determining the best interests of the child. I now turn to consider each of the matters set out in that section.
Relevant considerations
The child’s wishes
There is no doubt that J wishes to live with or spend substantial time with his father. In this case it is very difficult to assess the appropriate weight to be placed upon Js expressed wishes. I have reached this conclusion for two reasons: first, it appears that J’s father's house would be more ‘fun’ for a nine-year-old as there are far fewer boundaries, and consequentially the mother's household would appear more restrictive. Secondly, the father's comments with respect to Mr C, and his attitude to Mr C, coupled with his relationship with J make it likely that J would express views consistent with his father's. I therefore take J’s expressed views into account but do not place significant weight on them.
The nature of the child’s relationships
The second factor is the nature of the relationship of the child with the parents and other persons. I have no doubt that both parents love J deeply and wish to provide for him in their own ways. It appears to me that the mother is more likely to provide a structure and boundaries for J's upbringing and that there is some risk in his father's household of him becoming enmeshed with the father's views and ideas. I do not accept that Mr C is mean towards J or treats him badly. It appears to me that Mr C and Ms M have good relationships with J and have been careful to ensure appropriate boundaries are maintained to reflect their roles as step-parents.
Capacity of the parents to meet the child’s needs.
When considering the capacity of each parent to provide for J’s emotional and intellectual needs the evidence of Dr Kennedy is significant. I have formed the impression that life for J at his father's household is more akin to a ‘boys own adventure’, with the excitement and freedom that the concept entails. Whilst this provides appropriate and joyful experiences for J from time to time, it must be tempered by appropriate parental guidance and control at other times.
I accept that the father's relationship with J leans more towards one of mates rather than a parent-child relationship and that the father is less likely to impose appropriate boundaries for J's upbringing.
I find that the mother is able to provide appropriate parenting to meet J’s need for a parent-child relationship and the stability and boundaries necessary from week to week, particularly during school terms and to provide appropriate models of behaviour as J enters his teenage years.
The likely effect of any changes in the child’s circumstances
The next factor is the effect of any change in circumstances, including the likely effect, on the child. The orders that I propose in this case will reduce the amount of time that J has in his father's household. It will also impose upon him more time in a household where there is a clear routine and stricter boundaries. In the short-term this may be difficult for J. In the long-term this is likely to best serve Js interests.
Practical difficulties and expense associated with contact
There are no practical difficulties or expenses of contact in this case that need be considered.
The child’s maturity, sex, background and other characteristics
J is only nine. He is a young boy from an average Australian background. There does not appear to be any specific matter concerning his background that affects the decision that must be made in this case.
The need to protect the child from physical or psychological harm caused by abuse, ill treatment, violence or other behaviour
If J's relationship with his mother's partner, and ultimately his mother, are allowed to be undermined his long-term psychological health is likely to be affected. On a day-to-day basis it is of concern that the father continues to utilise illicit drugs, and live a lifestyle which has resulted in a police raid of the house, and prosecutions for unlicensed driving, etc. The incidents of J being away from the father's house and not under direct supervision show a need for greater supervision for J on a day-to-day basis.
The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents
While the mother has shown appropriate attitudes to the child and the responsibilities of parenthood, the father's attitudes are not the most desirable. The father's lack of insight into the effect upon J of his dislike for Mr C, in circumstances where the father was not able to articulate any clear reason for his dislike of Mr C, shows a lack of responsibility in his role as a father. Similarly the continued use of marijuana shows a lack of responsibility for the needs of the child to live in a secure and settled household with adults who are not participating in activities that are illegal. The combination of this, the police raid, the past incidents of an eviction and utilities being cut off paint a picture of a lack of capacity to provide a household sufficiently settled and secure to meet a child’s needs.
Any family violence involving the child or any member of the child’s family and family violence orders
I note that there has been family violence in the past directed towards the mother, and witnessed by the child however, it is not suggested that the father has ever been violent towards the child. There appears to be no fear on the part of the mother that the father would behave violently towards J. However, this, coupled with an undermining of the child’s relationship with the mother’s partner creates poor role modelling for a young child.
Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the child
This does not appear to be a significant factor in this case.
Any other fact or circumstance that the court considers relevant
There does not appear to be any other matters of significance that are not touched upon above.
Conclusion
In the circumstances of this case I find that it would be in J's best interests to live in the mother's household, during school weeks to ensure that he is in a safe and stable environment with appropriate boundaries. It is also important that he have sufficient time in his mother's household to ensure that he does not become undermined in his views of the mother or her current partner. There is nothing to suggest that the wife or Mr C would in any way undermine J's views of his father or his father's partner.
It is also important that J have good quality contact with his father as he clearly has a close and loving bond with the husband. In these circumstances, I propose ordering that J have contact with his father from after school on Thursday until the commencement of school on Monday each fortnight, and from after school on the Tuesday preceding the contact weekend until the end of football training, when he is attending football training.
Whilst J is not currently in a football team both parents have indicated a preparedness for him to participate in the sport, and it appears clear that this would be in his best interests. The contact arrangements I propose will enable the father to participate in J's football training in the week leading up to the football matches that fall on contact weekends (training occurring on Tuesday and Thursday evenings).
School holidays and special days should be shared to allow J to spend these times with both of his parents, and I make orders to this effect.
In the circumstances it is nonetheless appropriate that the parents have joint responsibility for J’s long term care, welfare and development.
It is agreed that it is appropriate that J be informed of these orders and the reasons for them by his present counsellor, in terms that he will understand. I will therefore make orders to that effect.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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