Weaver and Widdicombe -

[2007] FamCA 146

FAMILY COURT OF AUSTRALIA

WEAVER & WIDDICOMBE [2007] FamCA 146

FAMILY LAW - CHILDREN - Interim orders for care and welfare of baby

APPLICANT: MS WEAVER

RESPONDENT: MR WIDDICOMBE

FILE NUMBER: HBC 184 of 2007

DATE DELIVERED: 12 February 2007

PLACE DELIVERED: Launceston

JUDGMENT OF: Benjamin J

HEARING DATE: 12 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hunt

SOLICITOR FOR THE APPLICANT: Legal Aid Commission

COUNSEL FOR THE RESPONDENT: Ms C Gibson

SOLICITOR FOR THE RESPONDENT: Zeeman Kable & Page

Orders

UNTIL FURTHER ORDER

1. THAT the father return the child J born in January 2007 (“[J]”) to the mother by 4.00pm today.

2. THAT the child live with mother at all times other than those times provided in these orders or agreed between the parties in writing.

3. THAT the child live with the father each second day from 9.00am until 5.00pm between today’s date and 13 February 2007 the first day to commence Thursday 15 February 2007.

4. THAT both parties are restrained from being effected by or consuming alcohol whilst the child is in their care or control.

5. THAT both parties be restrained from abusing, belittling or demeaning the other party or members of the other parties family whilst the child is in their care or hearing.

6. THAT pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

7. THAT these proceedings be adjourned to the Judicial Duty List at 10.00am on 13 March 2007 at Hobart.

8. THAT the parties be given leave to restrore these proceedings before me on the giving of forty eight hours notice.

9. THAT the interests, in these proceedings, of the child J born in January 2007 be independently represented by a lawyer and it is requested that Legal Aid Commission Tasmania arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Hobart.

10. THAT forthwith upon appointment by the said Tasmanian Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

11. THAT within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

12. THAT leave be given to the parties and the Independent Children’s Lawyer to issue subpoenae to:

    (a)Department of Health & Human Services;

    (b)Launceston General Hospital;

    (c)Tasmania Police;

    (d)Schools in which the child’s siblings attend;

    (e)any other Government or medical body or person whose reports or material may assist in respect of the issues in dispute between the parties.

13. THAT BY CONSENT AND UNTIL FURTHER ORDER both parties be restrained from removing the child from the state of Tasmania.

14. THAT the Australian Federal Police place the name of the child born in January 2007 on the Airport Watch List at all points of arrival or departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further order.

    IT IS DIRECTED

15. THAT both parties attend Relationships Australia Parents in Contact program and make contact with that organisation within seven days and commence such program as soon as possible.

16. THAT a transcript of the evidence of Mr Williamson be ordered and placed on the Court file.

17. THAT a copy of the reasons for these orders be ordered and placed on the Court file.

    IT IS CERTIFIED

18. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

FAMILY COURT OF AUSTRALIA AT LAUNCESTON

FILE NUMBER: HBC 184  of 2007

MS WEAVER

Applicant

And

MR WIDDICOMBE

Respondent

REASONS FOR JUDGMENT  

1. These are proceedings between the mother and the father, and (dare I say it) sadly in relation to a child, J, who was born on 10 January 2007.  The child is aged about four or five weeks.

2. The competing proposals in this matter are:  the mother says that she is the principal carer of the child and he should live with her most of the time and spend some time with his father.

3. The father says that the child should live with him most of the time and spend four days per fortnight with the mother, but he says he is open to an equal parenting arrangement.

4. These proceedings were commenced on 9 February 2007 after what is agreed that the arrangements came to an end on 6 February 2007. 

5. At that time the mother filed an application seeking urgent orders returnable for today.  The father appeared at court today represented by a legal practitioner, but in circumstances where an affidavit had not been prepared.  The father gave oral evidence in respect of the issues and I will be ordering that a transcript of that evidence be taken out and placed on the court file.

6. Clearly the material before the court is such that this court cannot make a long‑term order but can make a holding order or a band-aid order until the question of interim parenting can be determined.

7. I intend to adjourn these proceedings to Hobart on 13 March 2007 and order an independent children's lawyer be appointed.  However, I need to make orders as to what should happen in terms of the care of the child between now and then.

8. The mother on my calculation is aged 30.  The father is aged 21, but 22 next months.  The mother has four children of previous relationships: K aged 12; A aged 10; N aged seven and M aged five.

9. It appears that at least three of these children live with the mother.  There is an issue as to whether A lives with the mother or lives with his maternal grandmother, the father alleging that he suffers from attention deficit disorder and that he is not able to be controlled by the mother.

10. The parties commenced a relationship in January 2006.  It is not an issue that the parties did not live together until shortly after the child was born.  The father’s evidence was that cohabitation started at that time.  On the mother's evidence she says they did not live together at all.  On the mother's evidence she says, "[The father] and I have never lived together in a de facto relationship and [the child] is the only child we have together."

11. The father's evidence is that there was an altercation at hospital after the child was born.  He remained at hospital the night after he was born and has lived at the mother's house since that time. 

12. On the mother's evidence she has been the primary carer of the child since birth and the father has had some, but not significant, involvement in the child’s care.  On the father's evidence the parents have shared the parenting duties such as feeding the child, bathing the child, with the father being primarily responsible the child at night.

13. What is not in issue is that on 6 February 2007, the child was removed from the mother's home without her consent and in the circumstances of a dispute between the parties.  I will not go into the reasons for that dispute because each party paints a different picture such as one would almost consider that the parties were talking about two different events.  What is clear, however, is that the child’s siblings were involved in that dispute on that day.

14. In terms of the father, the mother alleges that he has an alcohol problem and that the child’s paternal grandmother has an alcohol problem.  She says in paragraph 24 of her affidavit, "Both [the father] and his mother are alcoholics and [the father] has become violent in the past when he drinks."

15. The father denies that his mother is an alcoholic and says she has a responsible job such as would prevent her from being employed in that work if she was an alcoholic and says that he has not ever seen his mother intoxicated and she drinks on an irregular basis.

16. As to himself, he says he does not drink heavily and has one or two light drinks after his involvement in lawn bowls.  He concedes that on the day in question he had had one or two drinks after playing lawn bowls with one of the mother's elder children.

17. The mother asserts that the father is violent and the father concedes that last year he punched a hole in the wall of the mother's home and concedes that he was convicted as a consequence of that behaviour.

18. The father says that the mother was violent and says that she has been convicted in the last 12 months of assaulting and it was an allegation of a serious assault of which the mother was convicted.

19. The father says that the mother's home is in a terrible condition and that a skip has been put there and it will take two or three skips to clean up the home and that the Department of Child and Family Services is worried about the circumstances in which the mother and the children.

20. The father says the house is dirty, there is garbage everywhere and it has two smashed windows; there are papers and mouldy food around the home; that the Department of Child and Family Services are regular visitors to the home the father deposes that he had promised to help clean up the mess.

21. In his evidence the father also says that he has had some experience in caring for children in that he has a child of a previous relationship whom he cared for between the ages of three months and 12 months.  That child is now two years' old and he sees the child about once per month.

22. The father has concerns that the child is at risk from his siblings because of their behaviour, particularly A, in that he said he hoped the child would die and does not like him.  The father says this arises because A does not like the father.

23. It is of some significance that the father did not make this complaint to the Department of Child and Family Services until after the events on 6 February 2007.

24. In essence the mother's complaints about the father are that he has not had the care of the child, does not know how to care for the child, has a problem with alcohol and has removed the child from her care in dramatic circumstances.  She says that the father is a violent and intimidatory person. 

25. The father says of the mother that she lives in appalling circumstances, does not care for the children properly, the elder children are a risk to the child and in essence the mother lives in a chaotic lifestyle which puts the child at risk.

26. The problem I face, of course, is that I do not know who is telling the truth; whether the truth is one side or the other, or somewhere in between.  My obligation is to put in place an arrangement for the child, at least for the time being, so that his best interests are cared for.

27. I am obliged to consider the importance of the child having a meaningful relationship with both of his parents.  I am obliged to protect the child from abuse or family violence, and on both cases the child is at risk of abuse from one parent on the word of another parent and vice versa.

28. The child is too young to express a view himself.  There are allegations by both parents that the other are incapable of caring for the child in a proper way,  although both say that the other ought to have some unsupervised time with the child.  Those submissions themselves indicate that there at some level they believe the child would be reasonably safe in the care of the other provided they could keep an eye on him.

29. The movement of the child from the home of his mother and siblings at this particularly vulnerable time of the child's development is of quite concern.  There are issues as to capacity of both parents to care for the child.  There are issues as to family violence and as I said, it presents a difficult matter.

30. I do not have enough material before me to make an order under section 61DA but I am obliged to do is consider whether there ought to be an order for equal shared parental responsibility.  In this case there is, it seems to me on the version of both parties, reasonable grounds to believe that on the evidence of each parent against the other that the child is at risk of family abuse.

31. Accordingly, at this stage, I do not propose to make an order for equal shared parental responsibility and I do not intend to make any distinction at this stage before the terms "live with" or "spend time with", because I think those terms in many ways are hierarchical terms which do not assist the parties.

I certify that the preceding 31 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate:     

Date:              21 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as WEAVER & WIDDICOMBE