Ward and Ward
[2010] FMCAfam 1028
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WARD & WARD | [2010] FMCAfam 1028 |
| FAMILY LAW – Parenting Orders – consideration of equal shared care. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| T & N (shared residence)(2004) 31 Fam LR 281 Mazorski v Albright (2008) 37 Fam LR 518 at 526 [26] Rice and Asplund (1979) 6 Fam LR 570 L & T (1999) 25 Fam LR 591 |
| Applicant: | MR WARD |
| Respondent: | MS WARD |
| File Number: | NCC 2586 of 2008 |
| Judgment of: | Lapthorn FM |
| Hearing dates: | 8, 9, 10 February, 28, 29 April & 6, 7 May 2010 |
| Date of Last Submission: | 7 May 2010 |
| Delivered at: | Newcastle |
| Delivered on: | 24 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bates |
| Solicitors for the Applicant: | Boyd Olsen Lawyers |
| Counsel for the Respondent: | Mr Hartley |
| Solicitors for the Respondent: | The Family Law Firm |
| Counsel for the Independent Children’s Lawyer: | Mr Gorton |
| Independent Children’s Lawyer: | Legal Aid Commission NSW |
ORDERS
That all previous parenting orders be discharged.
That the parties have equal shared parental responsibility for the child [X] born [in] 2005.
That the child live with the father.
That the child spend time with the mother:
School Terms
(a)each alternate weekend from 3.00pm Friday to 9.00am Monday during school term time, commencing 15 October 2010;
(b)provided the mother lives within a 30 minute drive from the child’s pre-school, in 2010 from 3.00pm Thursday to 9.00am Friday in the week in which weekend time provided for in order (4)(a) concludes; and
(c)provided the mother lives within a 30 minute drive from the child’s school, in 2011 and thereafter from 3.00pm Wednesday to 9.00 am Thursday in the week in which the weekend time provided for in order (4)(a) concludes.
School holiday periods
(d)for one half of each school holiday period, at times as agreed between the parties, and failing agreement:
End of Term 1, Term 2 and Term 3 school holidays
(i)from 3.00pm on the Friday being the last day of school term, or the first Friday after the last day of school term, until 3.00pm on the following Friday in even-numbered years; and
(ii)from 3.00pm on the Friday at the end of the first week of the school holidays until 9.00am on the Monday being the first day of school at the end of school holidays, or the last Monday of the school holidays in odd-numbered years.
End of Term 4 school holidays
(iii)from 3.00pm on the Friday being the last day of school term, or the first Friday after the last day of school term, until 3.00pm on the Friday closest to the mid-point day of the school holiday period in even-numbered years; and
(iv)from 300pm on the Friday closest to the mid-point day of the school holiday period until 9.00am on the Monday being the first day of school at the end of the school holidays, or the last Monday of the school holiday period in odd-numbered years.
That the mother’s time with the child pursuant to orders (4)(a), (4)(b) and (4)(c) above be suspended during school holiday periods.
That the mother’s time with the child be suspended on the weekend which includes Father’s Day each year, with the mother to have compensatory time with the child on the weekend following.
That notwithstanding any other orders herein, the child spend time with the mother on the weekend including Mother’s Day each year, with the child to live with the father on the weekend following.
That for the purpose of implementation of these orders, changeovers occur at the child’s pre-school or school, or if occurring outside school term time at the service station car park at [F], unless otherwise agreed between the parties.
That the party with whom the child is not living or spending time have telephone communication with the child at all reasonable times, no more than once per day unless otherwise agreed, and for such purpose that party instigate the telephone call to the other party’s mobile or landline telephone number and the other party shall do all things necessary to facilitate the call and to permit the child to communicate with the party without interruption or interference.
That each party do all acts and things necessary to ensure that the child is enrolled to attend and attends preschool at [P] Kindergarten, [address omitted] for 3 days per week during school term in 2010.
That each party do all acts and things necessary to ensure that the child is enrolled to attend and attends school at [W] School from 2011.
That neither party denigrate the other party or permit any other person to denigrate the other party in the hearing of or presence of the child.
That each party be restrained from drinking alcohol over the prescribed limit in NSW for driving 24 hours prior to and during the time the child lives with or spends time with the party.
That each party be restrained from using illegal drugs 24 hours prior to and during the time the child lives with or spends time with the party.
IT IS NOTED that publication of this judgment under the pseudonym Ward & Ward is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2586 of 2008
| MR WARD |
Applicant
And
| MS WARD |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents of [X] who was born [in] 2005 cannot agree as to his future parenting arrangements.
The child’s father Mr Ward would like [X] to live primarily with him and spend alternate weekends and half school holidays with his mother. The mother, Ms Ward, on the other hand seeks a shared care arrangement for the child.
Background
The father is 36 years of age and lives in [W] with his partner Ms S. He is a [omitted] by trade and is employed as a [omitted] which is about a 25 minute drive from his home. Although he has worked shift work in the past his current position allows him flexibility with his working hours.
The father is studying for an advanced diploma in [omitted] which he hopes to complete at the end of this year.
The mother is 34 years of age and lives at her mother’s home in [Q]. This home is on the market and the mother proposes to move to new accommodation upon its sale. She hopes to be living closer to where the father lives but at the date of hearing the mother did not have any definite plans. The mother is a qualified [occupation omitted] but was not working at the time of the hearing although she was hopeful of obtaining employment soon thereafter. The mother is in a relationship with Mr S who lives in [A]. They do not live together.
The parties commenced living together in January 2001 and married [in] 2003. The separated in early 2008 and were divorced in April 2009.
[X] is their only child and, since the parties separated, has at various times lived with the parties in forms of shared care although there have been periods when the child has lived in the primary care of either party.
Issues
In determining the appropriate parenting orders for the child I have been asked to consider the mother’s history of use of amphetamines, cannabis and other illicit substances. The father also has a history of drug use.
Both parties conceded during the course of the hearing that there have been occasions when they have acted inappropriately in relation to the care of the child and in particular his transition between the two homes. I have been asked to consider these incidents in the context of assessing the way in which the parents have exercised their responsibilities towards and attitudes to parenting. The ongoing conflict between the parents and the potential for family violence are significant issues.
Proposals of the parties
Both parties sought an order for equal shared parental responsibility for the child. This was supported by the Independent Child’s Lawyer (ICL).
The father proposed that orders be made that provided for the child to live primarily with him. He proposed that the child spend time with the mother during school terms each alternate weekend from Friday afternoon until Monday morning and from the following Thursday afternoon until the next morning during 2010 but commencing 2011 the ‘off week’ be from Wednesday afternoon until Thursday morning. He also proposed the child spend half of the school holidays with the mother.
In relation to changeover the father sought that this occur at the child’s pre-school or school and if outside of school term time at the service station car park at [F] unless otherwise agreed between the parties. His proposed orders provided for both parties to have liberal telephone communication with the child. He sought an order that both parties enrol in and complete the Keeping Contact Program at Unifam and orders that the child attend pre-school at [P] Kindergarten in [W] three days a week during 2010. He sought an order that the child be enrolled in and attend [W] School from 2011 and that the mother be restrained from taking the child to [address omitted] without the written consent of the father. This is the address of the mother’s partner.
He sought an order that neither party denigrate the other and each party be restrained from drinking alcohol over the prescribed limit for driving in New South Wales in the period 12 hours prior to and during the periods the child lives or spends time with that party. He sought an order restraining the mother from using illicit drugs which included but was not limited to amphetamines and marijuana for a period of
12 hours prior of the child spending time with her and during any such time. He also sought an order requiring the parties to notify each other as to changes of address and phone numbers.
The mother’s proposal sought an order requiring her to enrol in an approved drug rehabilitation programme within 3 months and to complete that program within 12 months. Pending that enrolment she wanted the child to live with her from Sunday afternoons to Tuesday afternoons each week with him living with his father on the other days.
The mother’s orders also sought that upon her commencing the rehabilitation program the child live with the father and spend time and communicate with the mother on such terms and conditions that the program would allow.
The mother then sought an order that upon her completion of the program the child live with each parent in a week about arrangement during school terms and for half of the school holidays with some special arrangements for special days.
The ICL also sought orders for the parents to have equal shared parental responsibility for the child.
The ICL proposed that the child live with the father and that the mother enrol and complete a residential drug rehabilitation programme within 12 months of the orders. It was submitted orders should be made enabling the child to spend time with the mother as agreed between the parties in writing but failing agreement from Monday afternoons to Thursday afternoons in one week and from Wednesday afternoons to Thursday afternoons in the other week until the commencement of the 2011 school year.
The proposed orders provided that from the commencement of 2011 school year if the mother has not complied with the orders requiring her attendance and completion of the drug rehabilitation programme and until such time as the mother has complied with those orders the child spend time with her from after school Friday until the commencement of school on the following Monday.
In the event the mother had complied with the requirement to attend the rehabilitation programme the ICL proposed that if she lived within 30 minutes by road from the child’s school the child should spend time with her from after school Thursday to before school Monday each alternate week and overnight on the Wednesday in the off week. Time with each parent for half school holidays and special occasions was also proposed.
In the event the mother was living more than 30 minutes by road from the child’s school the ICL proposed the child spend time with the mother from after school Friday to before school Monday each alternate week and for half of the school holidays.
The ICL also proposed that provided the mother lived within
30 minutes of the child’s school and had complied with the requirement to attend a rehabilitation programme then from the commencement of the 2012 school year the child should live with each party in a week about arrangement and for half of the school holidays.
The ICL’s minute of proposed orders also sought specific arrangements for the parents to have telephone communication with the child; restraints on denigration of each other and the consumption of alcohol; ensuring the child is transported in an approved child restraint and that the driver is validly licensed.
The ICL also sought an order for the father to attend upon a psychologist to address his cannabis use.
The evidence
The father’s Initiating Application was filed on 10 October 2008 however during the course of the hearing he tendered a minute of order sought[1] which was amended prior to the final addresses.[2]
[1] Exhibit F1
[2] F7
In support of his application the father relied on the following:
a)His affidavits filed:
i)18 December 2009; and
ii)23 April 2010.
b)The affidavit of his partner Ms S filed 18 December 2009; and
c)The affidavit of his mother Ms W filed 14 January 2010.
The mother filed an Amended Response filed on 7 August 2009 but at the hearing relied on a minute of order sought[3] which was amended prior to final submissions.[4]
[3] M1
[4] M6
The mother relied on the following:
a)Her affidavits filed:
i)17 October 2008;
ii)7 August 2009; and
iii)25 January 2010.
b)The affidavit of Mr S filed 25 January 2010;
c)The affidavit of Ms J filed 3 February 2010; and
d)The affidavits of her mother Ms B filed:
i)3 August 2009; and
ii)4 February 2010.
A Family Report was prepared in this matter by Regulation 7 Family Consultant Ms P and was released by the court on 21 December 2009.
A number of documents were tendered.[5]
[5] F1 Minute of orders proposed by applicant father
I have had regard to all of these documents as well as the evidence given by the parties and their witnesses.
The evidence shows that both parties have experienced illicit drug use. The father gave evidence of using marijuana with the mother early in their relationship but that he gave it up when the child was 18 months of age. I accept his evidence in this regard.
The evidence of the mother’s use is most concerning. The mother’s affidavits are silent as to her history of drug use but it became clear in cross-examination that she had for many years both prior to and during her relationship with the father used various drugs but particularly cannabis and amphetamines.
Her dependency was significant after the child was born in that she used amphetamines to control her weight gain and told her treating professionals at the [H] Area Health Service in 2007 that she was using amphetamines on 22 out of 28 days up to 4 shots a day intravenously along with 20 to 30 cones of marijuana a day. She agreed that this drug use was causing significant financial concerns at the time as the cost of a shot of amphetamines was $80 although she said she did not always pay for it receiving some from friends. She managed to conceal this use of amphetamines from the father despite the significant habit.
When challenged about using ice and heroin she denied ever using such drugs even though she was recorded as telling the hospital staff at [omitted] Hospital that she had used them. I found the delivery of her evidence in this regard disappointing and she appeared to minimise her drug history. She changed her evidence about the use of heroin after a number of questions on this issue. Overall I was left with the impression that although at times she gave honest answers as to her drug use, at other times she wanted to down play her dependency such that I formed the view her evidence was not reliable. I was satisfied however that the mother has had a significant history of drug use spanning almost 20 years and at times she has been dependent on amphetamines and cannabis.
This dependency led the mother to seek treatment on a number of occasions but she has not always followed through with referrals to professionals. Despite being advised by her treating professionals that she would be assisted by a live in rehabilitation programme she has not taken up such an option in the past and does not feel the need to do so now but would do so if ordered by the court.
The mother also sought assistance for an eating disorder and mood disorder although her evidence in this regard was also disappointing in that she initially denied seeking assistance for an eating disorder only to change her evidence later in cross-examination. I accept the mother’s evidence however that for the most of 2007 and 2008 she did not seek out assistance for either her drug dependency or psychological issues. In early 2009 she was referred to a psychologist to address issues of anxiety, stress and depression. Although the mother attended a number of sessions with the psychologist she did not follow through with all of her appointments and despite orders being made by consent on 14 August 2009 for the mother to continue to see the psychologist she did not comply with that order. The mother also failed to fully comply with an order to attend the [C] Community Drug and Alcohol Counselling Service.
When asked if this drug habit compromised her ability to care for the child she initially denied that it would have, leading me to conclude that she lacked insight into her parenting and the needs of the child. After further questioning she was prepared to concede that she disengaged from her relationship with her husband and child and as a consequence she was not emotionally available for the child with the potential for negative consequences for his attachment.
The mother maintains that despite her significant history of drug dependency she has remained abstinent of all drugs since April 2008. The father is unable to trust her assertions of that abstinence. His reluctance to do so is understandable given the mother was able to deceive him as to her drug use for a number of years when they were living together. I do not accept her evidence that she has not used cannabis since that time as she produced a positive drug screen some 7 months after April 2008. When this was put to her she said she was shocked to see that reading. The father also contended that he saw a small amount of cannabis in her bag on 3 August 2008.
The mother has completed a number of urinalysis tests during these proceedings but failed to do so in January 2010. This led the father to conclude that she had something to hide. He formed the view that the mother spent the Australia Day holiday weekend at Mr S’ home. The father believes, rightly or wrongly, that Mr S is a supplier of drugs including amphetamines.
The mother and Mr S are in a relationship although their evidence differed as to when that relationship commenced. According to the mother she met Mr S a number of years ago when she [occupation omitted]. His then wife suffered a terminal illness and the mother along with a number of other women volunteered to assist him care for her until her death in late 2007. The mother did not tell the father that she was caring for this woman. When it was put to her that she did not do so because Mr S was her supplier of amphetamines she denied this. When Mr S gave evidence he admitted to having a criminal conviction for the supply of a prohibited drug in 1991 but said that he obtained the drug for his wife’s use to assist her with her illness. When cross-examined about text messages purportedly sent between Mr S and the mother prior to the time they say their relationship commenced they both denied any knowledge of them and that the contents related to drug use. Mr S’ evidence was delivered at times in a vague way and at times he changed his evidence. I formed the view he was being less than honest.
The father clearly does not trust the mother to remain free from the use of illicit substances. He gave evidence of finding a used syringe in one of the child’s socks on the bathroom floor about a month prior to separation. The mother conceded she made up a story about a friend finding it in the park. After they had separated in about April 2008 the father found a plastic bag of used syringes in the mother’s car. He found another bag with syringes in it the following month when they were attempting a reconciliation.
Because the mother had been able to conceal her addiction and use for so long whilst living with the father it will take some significant effort on the part of the mother to convince him that she remains drug free. It became clear whilst the father was giving evidence that while he accepts that the mother has provided urinalysis testing results showing no presence of any illegal substances he remains suspicious as to their accuracy and her honesty. Whilst I do not make any finding in regard to the urinalysis results I understand why the father would be reluctant to accept the mother’s word given her deception of him during and after their relationship.
On 3 August 2008 an interim apprehended violence order was made for the mother’s protection against the father and he was charged with common assault and driving with intent to menace. The father pleaded not guilty to the assault charges and they were dismissed. A final AVO was made 20 February 2010. The making of this AVO arose out of an incident that occurred at changeover on 3 August 2008.
The father describes this incident as happening at [F] Service Station [address omitted]. He said he carried the child to the mother’s car to put him in his car seat when the mother told him not to. This raised suspicion on the part of the father that the mother did not want him to see what was in her car. After handing the child to the mother he grabbed her handbag from the front of the passenger seat. He said the mother then punched him with a closed fist twice once on the side of his head and once on his mouth and then kicked him on the side of his ribs. He described a tussle over the handbag and said that the mother fell backwards whilst still holding the child.
He said he then got into his car and drove to the other end of the car park in the service station where he looked through the handbag. He found a plastic bag with a small amount of marijuana in it. He then drove to the [omitted] Garden which is about a kilometre up the road. His reason for driving there was because he hoped the mother would also drive there so they could talk.
He said he then saw the mother driving past in her car with the child on her lap and he formed the view that she was travelling at about 100 kilometres an hour and erratically. He said that she was not staying in the lane. He decided to drive his car after her and was motioning with his hand for her to slow down when he was driving behind her but he said she increased her speed and he estimated that she would have been travelling at about 150 to 160 kilometres an hour. He then slowed his car down and let her go.
He said he saw her car on the side of the road at [omitted] and he pulled in behind her but she then did a u-turn at the same time overtaking him and slamming her car into his. Both cars were damaged. He said the mother did not stop and he observed her to put both hands up in the air and drove away without her hands being on the steering wheel. He said he saw the child was still on her lap.
The father followed her in his car and overtook her in the overtaking lane. He turned off the [omitted] which he described as being one lane each way. He slowed down and was travelling slowly on the side of the road when the mother’s car rear ended his car and pushed him forward. The mother then tried to go around his car travelling at some speed and he observed that she appeared to lose control of the vehicle which ended up on the grass on the other side of the road skidding sideways. He said he could see the child still on the mother’s lap crying. The father called the police from his mobile phone. The mother then drove away with the child still on her lap. The father drove to the [C] Police Station and was arrested and detained. The father became aware that the mother did not have a driver’s licence at the time because of speeding offences.
The father said that he regretted the incident had occurred and he should not have let it get that far.
The mother’s version is similar to the father’s although she said that the father shouted out to people in the car park “She has drugs”. She said that during the tussle over the handbag she was pushed and fell over. The child was still in her arms and was distressed. She tried to console him but when she tried to put him in the car he was rigid and vomited. She said she thought she would drive him a short distance on her lap until she got to a safe spot. She admitted she did not use good judgment in doing so.
This incident is indicative of two highly stressed and emotive people who were struggling with the circumstances of the break down of their marriage. I accept they both regret their actions on that day and despite their ongoing conflict and trust issues are unlikely to allow such a situation to again get out of hand.
Although the parties gave evidence as to a number of other events and issues between them in an attempt to keep this judgment brief I do not propose to canvas that evidence in any detail. A significant issue for this family has been the trouble they have had communicating and avoiding inappropriate exchanges at handovers. The evidence was not in dispute in this regard and both parties recognised the need for them to change this conduct although the mother was more confident of them achieving this in the future.
Legal principles
Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining the outcome of parenting matters the Court must consider the best interests of the child as the paramount consideration.[6] That is the overriding principle.
[6] s.60CA
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[7]
[7] s.60B lists the objects and principles for Pt VII.
In determining what is in a child’s best interests I must consider the matters set out in s.60CC.
When making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[8] This presumption may not apply or may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the children’s best interests for it to apply.[9]
[8] s.61DA
[9] s.61DA(2) & (4)
In the event that the Court orders the parties to have equal shared parental responsibility for the child the Court must apply the provisions of s.65DAA which provide for a consideration of the children spending equal time with the parents. If the court finds that is not in the child’s best interests or reasonably practicable then the court must consider the child spending substantial and significant time with the parents.
In deciding what order allocating parental responsibility is to be made I will consider the factors set out in s.60CC.
Presumption of equal shared parental responsibility
This is a case where there is evidence of family violence such that I would ordinarily be inclined not to apply the presumption. However both parties and the ICL sought an order for the parties to have equal shared parental responsibility. Even in cases where the presumption has been rebutted a consideration of the various factors in s.60CC may lead a court to make an order for equal shared parental responsibility. If it were not for the united approach of the parties and ICL to this issue I would be concerned as to the viability of such an order. The parties have significant difficulty in communicating largely out of a lack of trust. To jointly make decisions effecting the long term care welfare and development of a child requires good communication and trust. I take however the fact that both parties seek this order as an indication they have the confidence to be able to effectively communicate in the future about the important decisions that need to be made for the child. This approach has the support of the ICL. I am therefore persuaded despite my initial concerns, which were shared by the family report writer, that it is appropriate and in the best interests of the child to make such an order.
Consideration of equal time or substantial and significant time
This child remains very young and although he has been in a form of shared care for some time I am not satisfied that the parties are currently able to work successfully together to ensure that a shared care arrangement will work over time. It is generally recognised that for a shared care arrangement to work it is ideal if:
·The parties have the capacity to communicate on matters relevant to the child’s welfare;
·They live in close proximity to each other;
·They have a history of sharing the care of the child without undermining the child’s adjustment;
·They approach the child’s day to day care in similar ways including they way they discipline the child, attend to homework, care for the child’s health and diet and sleeping pattern;
·The parties are able to discuss disagreements as to the child’s care and reach appropriate compromises;
·The parties respect each other as parents; and
·They share similar ambitions for the child in such matters as religious observance, cultural identity and childhood activities.[10]
[10] See T & N (shared residence) (2004) 31 Fam LR 281 per FR; s.65DAA(5) Family Law Act
A child’s age and level of development is also an important consideration. Placing a child in a shared care arrangement at an early age may impact adversely on the security of the child’s attachments.
In this case the parties have maintained a shared care arrangement for some time but it has been problematic given the history of parental conflict. The potential for the child’s development to be compromised in that environment is high. A continuation of shared care is not supported by the family reporter who commented that given his age and the ongoing parental conflict such an arrangement was not in the child’s best interests. I accept the opinion of the family report writer.
For these and the reasons which I will explore further when I consider the factors under s.60CC(2) I have concluded that it is not currently in this child’s best interests to live with the parties in an equal time arrangement.
The unknown future living arrangements for the mother also raises the question as to whether it will be reasonably practicable for such an arrangement to work.
I will consider the appropriateness of a substantial and significant time order when I consider the s.60CC(2) factors.
Determining the best interests of the child – The s.60CC considerations
The court is required to determine a child’s best interests by considering a number of factors set out in s.60CC. In order to limit duplication I propose to group together a number of these factors.
The child’s relationships:[11]
[11] s.60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents;
All parties agree that the child has a positive and close relationship with each of his parents. The mother would appear to have been the child’s primary carer for most of his life as the father worked outside of the home when the child was young. The evidence suggests however, and the mother conceded, that she may not have been emotionally available for the child when she was heavily using amphetamines.
The mother is concerned to ensure that her time with the child is not reduced as is proposed by the father. A “meaningful relationship” is not necessarily one that is achieved or maintained by ensuring a child spends a certain amount of time with a parent. It is more likely to be maintained by the quality of that time. With respect I adopt the view of her Honour Justice Brown in Mazorski v Albright[12] where her Honour said:
[26] ………I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible in their best interests, substantial and significant.
[12] (2008) 37 Fam LR 518 at 526 [26]
I am satisfied that given the child already has a positive relationship with each of the parents that relationship is likely to be maintained under any of the proposals submitted by the parties and ICL.
I am also satisfied that the child has a positive relationship with the father’s partner and the extended family members of the parties.
The evidence of denigration and parental conflict may suggest that there would be a reluctance to promote an ongoing relationship with the other parent. However I am satisfied having observed the parties that they both want the child to have a relationship with the other parent. This is despite the father being protective of the child and wanting to be satisfied that he will not be exposed to a mother affected by drugs or the drug culture. The mother is also fearful of losing her son and has reacted to the father’s lack of trust in her as an attack on her parenting.
Despite their differences and despite periods of time when the child did not see a parent, overall I am satisfied both parents have a desire for the child to have a good relationship with the other parent and are willing to promote that relationship.
Risk of harm:[13]
[13] s.60CC(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
This child has unfortunately experienced family violence and inappropriate behaviour by his parents which if repeated has the potential to cause him physical and psychological harm. The incident on 3 August 2008 placed the child at serious risk of harm both in the physical altercation between the parents when the child was being held by the mother and in the mother’s negligence by driving the child when he was not properly restrained aggravated by the father pursuing the mother. Fortunately both parents appear to be genuinely remorseful for their involvement in the events of that day.
The mutual denigration continued however and must stop if this child is to be allowed to maintain his positive relationship with both parents.
The mother’s history of illicit substance use raises a number of risk issues for the child. These include the potential for physical harm if the mother is using and not available to properly care for the child as well as emotional harm by the mother being self focused rather than child focused.
The mother maintained she has been drug free since April 2008 but I have already found that this is unlikely to be the case. What was most concerning is the mother’s lack of insight into the effects her drug use has had on her ability to be emotionally available for her son and her reluctance to follow through with professional assistance to address her psychological and substance abuse issues. The mother has all of her adult life struggled with life issues. Although she sought to present herself as a person who has addressed them and was confident of maintaining wellness I was not persuaded that she has committed herself fully to addressing these issues.
Her history of not following through with professional referrals is of concern. She told the court that she would attend a live in rehabilitation programme if ordered to do so but I would not have confidence she would maintain any attendance. For such programmes to be truly successful a person needs to want to be there and to be fully committed to achieving a positive outcome. I would have been more impressed if the mother had taken herself off to such a programme in the past rather than wait for any order of the court. It is for this reason that I do not propose to make orders requiring her to attend such a programme as I believe the mother is more likely to succeed when and if she is self motivated to do so.
The child’s views:[14]
[14] s.60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The child is 4 years of age and is too young for any views to be determinative of where he should live.
Practical difficulties:[15]
[15] s.60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The parties live reasonably close to each other for the child to transfer between both homes without significant practical difficulties. Even when the mother moves there does not appear to be any intention to move to an area where difficulties would arise.
Parental capacity and responsibility:[16]
[16] s.60CC(3)(f) The capacity of:
The family report writer observed both parties to interact appropriately with the child in the interview and observation sessions. Historically however both parents have acted inappropriately and unwisely in front of the child. They have failed to restrain themselves from denigrating the other and other people important to them in the child’s presence and have allowed situations to get out of hand such as the incident on
3 August 2008.
The mother’s drug use would have also seriously compromised her ability to parent the child. The family reporter concluded:
[61]………It is my view that it is the mother’s current insecurity and ongoing psychological struggle that she has regarding her life issues, which currently prevents her recognising what is in the best interests of [X]. It is clearly my view that the mother must be reengaged in a therapeutic relationship immediately in order that she comes to fully comprehend the implications of her decision making.
The report writer formed the view that the father was more child focused than the mother. He concluded:
[30]There is little doubt that the father presents as being serious about his parenting responsibilities, and demonstrated an insight into critical child development issues, whilst recognising that the dynamics between the parents needs to drastically change, so as to enhance [X]’s psychosocial development. Mr Ward presented as a parent with insight, despite the unacceptable incident which occurred with the mother and involving [X] in 2008.
After observing the parties in the witness box and considering all of the evidence I have come to the same conclusions as the report writer.
Background issues:[17]
[17] s.60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The child is a very young boy with a close relationship with both parents. No submissions were made in relation to this issue and I am satisfied that no matters were raised in the evidence to warrant discussion of this consideration.
Limiting further proceedings:[18]
[18] s.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The ICL’s proposed orders sought an eventual shared care arrangement if the mother completed a rehabilitation programme and other provisions applied. It was argued that this would limit further proceedings. Whilst well intentioned I am not persuaded to adopt that course.
I have already indicated that I will not be making any order for the mother to undertake a live in rehabilitation programme as I am of the view that she is more likely to be successful in achieving a positive outcome if she is self motivated. Her history of not following through with professional referrals does not augur well for her to maintain a commitment to a rehabilitation programme. The mother herself accepted that persons in her position often relapse despite the best of intentions. Her future is unknown which leads me to conclude it is better to focus on the current position of the parties and child.
Hopefully the mother will become motivated to address her life issues with professional assistance. Should her circumstances change it may be possible for her and the father to reach agreement as to a change of parenting arrangements in the future. If they are unable to do so and the mother’s circumstances change sufficiently to overcome any threshold as discussed in Rice and Asplund[19] it may be necessary for fresh proceedings.
[19] (1979) 6 Fam LR 570
Discussion
The orders proposed by the ICL included provisions for the mother to attend a residential drug rehabilitation programme and for the father to attend a psychologist for counselling as to his cannabis use. In L & T[20] the Full Court held that although the court had power to order a party to attend upon a psychiatrist and undergo treatment as a condition of a residence or contact order (as they were then known) it did not have power to make such an order if it was unconditional. The drafting of the ICL’s proposed orders would appear to fall foul of that authority.
[20] (1999) 25 Fam LR 591
For the reasons I have already discussed I do not propose to order the mother to attend a live in rehabilitation programme. I am also not persuaded that it is necessary for the father to attend upon a psychologist. I accept his evidence that he has not used cannabis since the child was 18 months of age.
When I consider all of the factors discussed above I am persuaded that it is in the best interests of this child for him to live primarily with the father. The father’s proposal for the child to spend time with the mother would see the child’s time reduced to 4 nights a fortnight. Although this would be a significant reduction in the time he spends with his mother from the current arrangement I am satisfied at this stage in his life his best interests would be served by making orders accordingly. The child will continue to maintain his relationship with his mother despite the reduction in time. He would also be able to enjoy holiday time with her. The proposal falls within the definition of substantial and significant time.
Should the mother’s circumstances change in the future the parties should look to increase the child’s time with his mother provided the parties live in close proximity to each other. The uncertainty as to the mother’s future makes it problematic to provide for any increase in time at this stage. Any increase would always be subject to the child’s best interests at the time.
The father’s proposal did not include a provision if the mother lived more than a 30 minute drive from the child’s school. I accept the ICL’s submission that the mid week time would not be in the child’s best interests if he had to travel for more than 30 minutes after and before school. I propose to take that into account when I make my orders.
The father sought an order restraining the mother taking the child to the home of Mr S. Although I was less than impressed with the evidence given by Mr S there is insufficient evidence to warrant such a restraint and I decline to make such an order.
The father sought an order that the parties attend the Keeping in Contact programme run by Unifam and the mother sought an order for the parties to attend an approved course in communication. During the hearing I observed both parties to recognise the need to improve their communication. I do not propose to make any of the orders conditional upon them attending such a programme or course as it may impact on when the mother is able to attend a rehabilitation programme. Whilst I have not made any orders for her to attend such a programme I hope she will do so with the aim of addressing the many life issues she has faced for many years.
The ICL sought an order restraining the parties from allowing the child to be transported in a vehicle other than in an approved child seat and with a person who does not have a valid driver’s license. The purported need for these orders arose out of the incident in August 2008. I accept both parties were remorseful for their involvement in that incident and I am satisfied that although the mother was not licensed at that time and drove the child on her lap she is unlikely to do so again.
For these reasons I make the orders set out at the commencement of this judgment.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Lapthorn FM
Date: 24 September 2010
M1 Minute of orders proposed by respondent mother
C1 List of documents
M2 NSW Police – cops entry
M3 Letter dated 09/04/2010 from HNE Health
M4 NSW Police – criminal history
F2 NSW Police – cops records (marked ‘A’ & ‘B’)
F3 [N] Psychologist (letters dated 16/06/2009 by Ms D)
F4 [H] [C] Drug & Alcohol counselling records
F5 [H] Health – records (marked ‘C’ & ‘D’)
F6 [omitted] Hospital – medial records
M5 NSW Police – cops records (marked ‘M’)
F7 Minute of orders proposed by applicant father
M6 Minute of orders proposed by respondent mother (handwritten)
ICL1 Minute of orders proposed by Independent Children’s Lawyers.60CC(3)(b) The nature of the relationship of the child with:
each of the child’s parents; and
other persons (including any grandparent or other relative of the child);
s.60CC(3)(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
s.60CC(3)(d) The likely effect of any changes in the child’s circumstance, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
s.60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) The order is a final order;
(ii) The making of the order was contested by a person
any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
s.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
s.60CC(4) The extent to which each of the parents has fulfilled or failed to fulfil, his or her responsibilities as a parents.60CC(3)(h) if the child is an Aboriginal child or Torres Strait Islander child
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