Acosta & Stuart
[2023] FedCFamC1F 857
•13 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Acosta & Stuart [2023] FedCFamC1F 857
File number(s): ADC 3724 of 2021 Judgment of: BERMAN J Date of judgment: 13 October 2023 Catchwords: FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – With whom a child lives with – Where previous orders were made for the child to live with the father – Where the paternal grandmother returned the child to the care of the mother – Where the mother now seeks primary care of the child – Consideration of the father’s drug use and his living arrangements – Consideration of the likelihood of the mother’s drug use – Where a s 91B order was previously made – Where the Department for Child Protection declined to intervene – Consideration of the ability of either parties to properly provide for the needs of the child – Where the stability of the child remaining in the mother’s care is given weight – Orders for the child to remain living with the mother. Legislation: Family Law Act 1975 (Cth) s 60B, 60CC. Cases cited: Deiter & Deiter [2011] FamCAFC 82
Marvel v Marvel (2010) 240 FLR 367
Division: Division 1 First Instance Number of paragraphs: 86 Date of hearing: 26 September 2023 Place: Adelaide Counsel for the Applicant: Ms Fleming Solicitor for the Applicant: Angela Ferdinandy Counsel for the Respondent: Mr McQuade Solicitor for the Respondent: Stevens Law Counsel for the Independent Children's Lawyer: Ms Horvat Solicitor for the Independent Children's Lawyer: Legal Services of South Australia ORDERS
ADC 3724 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ACOSTA
Applicant
AND: MR STUART
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
13 OCTOBER 2023
THE COURT ORDERS THAT:
1.X born 2017 (“the child”) do live with Ms Acosta (“the mother”).
2.The child spend time with Mr Stuart (“the father”) as follows:
(a)Each alternate weekend from the conclusion of school until 4.00 pm Sunday;
(b)For the first half of each short school holiday period; and
(c)On a week about basis over the Christmas school holiday period.
3.All handovers that do not take place at the child’s school, take place at the Town C.
4.The mother be restrained and an injunction is granted restraining her from bringing the child into contact with Mr D or bringing Mr D to handover.
5.The parties be restrained and injunctions are granted restraining them from consuming illicit substances whilst the child is in their care or for 48 hours prior to the child coming into their care or allowing the child to be in the presence of any other person who has or is consuming illicit substances.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Ms Acosta (“the mother”) and Mr Stuart (“the father”) are the parents of X born in 2017 (“the child”).
By Initiating Application sealed 9 August 2021, the mother seeks the following final orders:
(1)That the mother have sole parental responsibility for the child.
(2)That the child live with the mother.
(3)That the child spend time with the father on terms and conditions as agreed between the parties or by Order of the Court.
The father opposes the orders sought and by his Response to Initiating Application sealed 26 November 2021, he seeks the following final orders:
(1)That the father have sole parental responsibility for the child.
(2)That the child live with the father.
(3)That the mother spend time with the child each alternate weekend from 3.30 pm Friday until 5.30 pm Sunday and on such other occasions as agreed between the parties in writing.
(4)That the parties be restrained and an injunction be granted restraining each party from consuming alcohol and any illicit substance for a period of 48 hours prior to or during any time the child is in their care.
(5)That the mother's partner be restrained from disciplining the child or being alone with the child.
The parties engaged in what might be considered a tumultuous relationship between 2015 and 2021. It is likely that the relationship was marred by entrenched and ongoing family violence, significant drug abuse and use and the abuse, or at the very least, overuse of alcohol.
The mother also presents with a diagnosis of Post Traumatic Stress Disorder (“PTSD”), depression and anxiety. There may also be a diagnosis of Borderline Personality Disorder.
For his part, the father may also have significant psychological overlay and there is a genuine concern that each of the parties may not necessarily be able to control and/or compartmentalise poor lifestyle choices necessary for each of them to meet the basic needs of the child.
Following the commencement of the proceedings, the mother sought and was granted a location order pursuant to ss 67N and 67P of the Family Law Act 1975 (as amended) (“the Act”) to assist in the recovery and delivery up of the child.
On 12 October 2021, a Senior Judicial Registrar made orders allocating the matter to the Evatt List. Further orders were made that during the period of a short adjournment, the child live with the father and spend time with the mother each alternate weekend from Friday at 3.30 pm until Sunday at 5.00 pm and at such other times as may be agreed.
The order required each of the parties to undergo a hair follicle drug analysis process. From the information received from the parties, and in documents obtained pursuant to s 69ZW of the Act, it was readily apparent that the use and abuse of illicit substances was an issue relevant to the ability of each of the parties to care for the child and ensure that their circumstances and environment would not place the child at risk.
The initial order of the Senior Judicial Registrar was further reflected in orders made on 8 February 2022 which continued the arrangements for the child to live with the father and spend time with the mother.
A further feature of the orders was that the parties were obliged to undertake a drug and alcohol assessment and to submit to a request for a random supervised drug screen.
By order made on 14 April 2022, the child was to continue to live with the father and spend time with the mother in accordance with the orders of 23 October 2021, save that handovers were to occur at 5.00 pm on Friday.
A further order provided for the child to spend seven consecutive nights with the mother during each school holiday period and that the father permit the child to telephone the mother at any time the child may wish to do so.
Handover was to take place at Town C unless agreed otherwise.
On 30 June 2022, the Senior Judicial Registrar made an order pursuant to s 91B of the Act requesting that the Department of Child Protection (“DCP”) intervene in the proceedings
On 1 November 2022, DCP sought and was granted leave to be excused from the proceedings consequent upon their tentative involvement pursuant to a s 91B order.
Following further detailed submissions on 24 November 2022, orders were made until further order in the following terms:
(1)The mother’s time pursuant to paragraph 1 and 2 of the orders dated 14 April 2022 be suspended.
(2)The child live with the father.
(3)The child spend time with the mother:
(a)Each alternate Saturday from 10.00 am until 4.00 pm commencing 26 November 2022 (week 1); and
(b)Each alternate Saturday from 10.00 am until 4.00 pm commencing 3 December 2022 (week 2);
provided that time spending in week 2 occur in the Suburb F/Adelaide metropolitan area and be subject to the mother confirming her intention to attend the period of time spending by text message to the father sent by 5.00 pm the Monday immediately prior to the time spending.
(4)That all handovers in week 1 do take place at Town C between the maternal aunt and father, unless otherwise agreed in writing, and in week 2 at the Suburb F Police Station between the mother and father.
The father also alleged that the mother’s partner, Mr D, presented as a risk to the child in circumstances where there had been an allegation that he had physically disciplined the child.
A further allegation was made that the child’s maternal uncle, Mr E, also presented as a risk to the child. The father’s allegations resulted in the mother being restrained by injunction from bringing the child into contact with Mr D and the children of the maternal uncle.
In broad terms, the parties agreed to a continuation of the interim arrangements on 28 April 2023 in contemplation of a Compliance and Readiness Hearing and the allocation of a trial date. The matter was listed before a Judge in Division 2 of the Federal Circuit and Family Court of Australia (“FCFCOA”). Taking into account the numerous risk factors as outlined by the Independent Children’s Lawyer (“ICL”), the proceedings were transferred to Division 1.
In 2023, the father was arrested. At the time, the child was in the temporary care of Ms G (“the paternal grandmother”).
It appears from the affidavit of the paternal grandmother sealed 28 August 2023 that her concerns in relation to the ability of the father to properly care for the child were heightened consequent upon a breakdown of his relationship with his girlfriend, a concern that the father may have resumed rampant illicit drug use, and observations that the father had resorted to physical discipline and punishment of the child. She determined that she would not return the child to the father but rather made contact with the mother and arranged for the child to transition to the mother’s care.
The mother’s Application in a Proceeding sealed 29 August 2023, seeks that the operative orders of 28 April 2023 (being that the child live with the father and spend time with the mother) be suspended, that the child live with her and spend supervised time with the father at a Contact Centre and that the father undertake a hair follicle drug test within 21 days.
The orders sought by the mother are opposed and by the father’s Response to an Application in a Proceeding sealed 13 September 2023, the father seeks the return of the child to his care pursuant to orders made 28 April 2023.
THE MOTHER’S APPLICATION IN A PROCEEDING
The mother seeks that the child live with her and until further order spend supervised time with the father. The catalyst for the application arose in circumstances where the paternal family, but in particular the paternal grandmother, retained the child whilst the father was arrested for a breach of bail and delivered the child to the care of the mother.
Whilst the mother sets out the basis of her increasing concern as to the father’s behaviour, in particular, his vague allegations that the mother had sexually abused the child and a suspicion that the father continued to use illicit drugs, the evidence that underpins the orders sought by the mother arises from the affidavits of the paternal grandmother sealed 28 August 2023 and Ms H sealed 14 September 2023.
The paternal grandmother asserts that over a period of about six months, she observed a downturn in the father’s presentation consistent with her previous observations of the father when engaging in illicit drug use.
The paternal grandmother also refers to her observations of the father openly smoking marijuana and asserting that it is prescription medical cannabis.
A more targeted observation of the paternal grandmother is that the father requires the child to undertake household duties well beyond that which should be expected of a child who is six years of age.
The catalyst for the paternal grandmother retaining the care of the child before delivering him to the mother is contained in her affidavit as follows:-
17.Approximately three months ago, I received a video call from the father. He was hysterical, laying on the floor crying. [The child] was standing near him wrapped in a towel cowering, soaking wet and screaming. The father was screaming words to the effect “I can’t stand this fucking pooing anymore”.
Upon the child coming into the care of the paternal grandmother, she noted various remarks from the child that the father had smacked him and would continue to yell at him about him not being able to control his bowel movements.
On 5 August 2023, the paternal grandmother received a phone call from the father wherein she alleges that he said the following to her:
26.“[The child] is my son and not yours, I can do anything to him, I can belt him or kill him, because I am the boss, he’s my son”.
The content of the telephone call has been referred to the police.
Both the mother and the father have been acquainted with Ms H for a number of years.
In early or mid-2023, the father was reacquainted with Ms H and asked whether both he and the child could rent a spare room in Ms H’s premises.
The father and the child moved in with Ms H in mid-2023.
Ms H became concerned at the father’s lack of attention for the child. On occasion, the father would leave the child in the home with Ms H without telling her.
In July 2023 the father left the child unattended in the home. When Ms H realised that the child was in his room, she checked on him and observed that he had faeces in his shorts which had dripped on to the bedroom carpet, rug and laundry tiles. There were other items of clothing full of faeces.
On the father’s return, he advised Ms H that the child was not going to be given food as punishment.
Ms H’s concern as to the ability of the father to properly care for and attend to the child’s needs was heightened over the next few days resulting in Ms H seeking the police attend for a welfare check and lodging a report with Child Abuse Report Line (“C.A.R.L”).
Ms H alleges she observed bruising on the child and on occasion, the father did not get out of bed in sufficient time to take the child to school. Ms H contends that she evicted the father from her home in mid-2023.
She described the rooms occupied by the father and the child as being in complete disarray with dirty laundry, food scraps, empty drug bags, drug resin on the carpet, faeces and the child’s soiled underwear being present.
Ms H was available for cross-examination given the potential significance of the matters raised in her affidavit, however the opportunity was not taken up.
The father denies the allegations of the paternal grandmother and Ms H. He concedes that he had a good relationship with his mother up until her decision to deliver up the child to the mother.
The father confirmed that following the conclusion of a six-month tenancy at Suburb J, he commenced living in the home of Ms H until he was evicted in mid-2023.
His current living circumstances was revealed at the hearing to be with Mr K and Ms L in Suburb N.
Ms H refers to a discussion with the father that Mr K and Ms L had consumed hallucinogenic and other drugs.
The father denies that he is using illicit substances and presents a recent hair follicle test which indicates a positive reading for illicit drugs. The father admits the positive results but explains that he has been diagnosed with ADHD and his treating psychiatrist has prescribed a drug which is a slow-release dexamphetamine. He is also prescribed medical cannabis.
The father acknowledges that he requires the child to undertake chores around the house but denies that they are either not age appropriate or excessive. In particular, he denies smacking or physically punishing the child or that he punishes the child if he soils himself.
The mother’s circumstances
The mother currently resides with her three other children on the maternal grandmother’s property. She acknowledges that Mr D should not come into contact with the child and her evidence is that she is no longer in a relationship with Mr D and he neither lives on the property or visits.
I accept that the circumstances of the mother are complex given that she and Mr D have a child together. At this stage, the evidence supports a continuation of the injunction ensuring that Mr D does not come into contact with the child.
The mother acknowledges that she has used illicit substances on a recreational basis.
Noting the mother’s focus on the father obtaining a hair follicle test, it is surprising that the mother was not proactive in presenting evidence to the Court to establish that she is not using illicit substances. In evidence, the mother conceded that the reason she did not take a drug test was because she knew that it would test positive for an illicit drug.
The mother accepts that she lives in cramped circumstances but there is at least the advantage to the mother of family support.
Following the child coming into the mother’s care, he commenced attending O School where he currently remains. It is the mother’s intention that she will remain in the Town P area whether or not she continues to remain on her parents’ property. The mother proposes that the child will continue to attend his current school.
INTERIM PARENTING PROCEEDINGS
In Marvel v Marvel (2010) 240 FLR 367 the Full Court considered the manner in which interim parenting proceedings should be considered where there is contested evidence as follows:-
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing: (s 61DB).
…
122.In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Where the contested facts relate to an assessment of risk, a greater level of caution should be exercised, however, in Deiter & Deiter [2011] FamCAFC 82 the Full Court said:-
61.… In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
THE LAW
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Pt VII of the Act namely:
(1)The objects of this Part are to ensure that the best interests of children are being met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring the children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interest):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The father relies upon the Child Impact Report dated 18 January 2022 in support of his contention that as at the time of the report, he had been the child’s primary care giver and that the observations of the Court Child Expert was of a close emotional attachment.
The Court Child Expert considered that at the time of interview, the father had a good understanding of the child’s needs and the relationship between them was indicative of a secure attachment.
The observations of the father on the child were in stark contrast to the child’s behaviour with the mother. There appeared to be elements of insecurity and it was considered that the mother appeared to be more attentive to the child’s need to engage with her.
The overarching consideration for the Court Child Expert was the distressing history of drug use and abuse by each of the parties and the extent to which there could be confidence that the parties are able to abstain from drug use.
At the time, the Court Child Expert seemed to have more confidence in the father’s assertion that he was abstaining from drug use whereas the mother’s circumstances were less certain.
The more recent Family Assessment Report dated 21 March 2023, prepared by Ms M, in her capacity as a Regulation 7 Family Consultant, was similar to the observations made by the Court Child Expert.
Her recommendation was that the child live with the father and spend time each alternate weekend with the mother.
There was a uniform approach to the need for Mr D to be removed from any opportunity to interact with the child.
PARENTING CONSIDERATIONS
The Court had the advantage of hearing evidence from each of the parties as to their current living circumstances.
Neither party presented as an impressive or reliable witness.
The history of the litigation also includes an order pursuant to s 91B of the Act however, DCP chose not to intervene. Documents presented pursuant to s 69ZW orders were helpful in highlighting the manifest dysfunction of the manner in which the parties present.
The father tested positive for illicit drug use. His evidence is that the positive results can be explained and are consistent with prescription medication to treat his ADHD and other psychophysical conditions.
The assertion by the father that he is drug free must be tempered by the observations of his mother and those of Ms H.
The father was reluctant to disclose his current living circumstances where he was required to do so at the hearing.
Ms H refers to a conversation with the father where he asserts that the occupants of his current premises use hallucinogenic, and other drugs.
The father’s proposal for the child is that if the Court places the child in his primary care, then he would be enrolled in R School with a possible move back to Q School or perhaps a different option.
There is a heightened concern that the father’s ability to remain in his current accommodation may be problematic despite its potential unsuitability.
For her part, the mother has admitted that she has recently used an illicit substance. For reasons that are not entirely clear, the mother considers that her use is recreational only and therefore does not present a risk to the child.
The presentation of the mother is naïve. If she is a user of an illicit substance then it is likely she associates with people who are able to supply the drug and all of the odious elements that are associated with illicit substance use.
The mother’s evidence did not impress as to the extent to which Mr D is now no longer a part of her life. As discussed, there is no support for Mr D to come into contact with the child. The single advantage to the child whilst he remains in the mother’s care is continuity of accommodation and a continuation of the child’s enrolment at O School.
CONCLUSION
The Court was assisted by the involvement of an Independent Children’s Lawyer (“ICL”). Counsel for the ICL made careful and detailed submissions as to concerns held in respect of the ability of each of the parties to care for the child. More specifically, the ICL brought to account the recommendations favourable to the father from the Child Impact Statement and the Family Assessment Report however, considered that the uncertainty of the father’s current circumstances, his accommodation and those with whom he may well be associated was such that any orders made should promote stability for the child. Whilst potentially falling a long way short of what might be considered appropriate or good enough parenting, in the interim, Counsel for the ICL submitted that the child’s best interests would be served by remaining at his current school rather than a further change as proposed by the father.
I bring to account the reasoned submissions made on behalf of the ICL.
Whilst I have significant concern as to the ability of either of the parties to provide for the proper needs of the child, taking into account the primary and additional considerations pursuant to s 60CC of the Act the stability for the child of remaining in the mother’s care must be given weight.
I do not ignore the likelihood that the mother may well not be drug free however, it is now for her to establish that she has gained sufficient insight to cease her drug use whether recreational or otherwise in priority to caring for the child.
It is a matter for the mother to place evidence before the Court that drug use is no longer a feature of her life.
Each of the parties will need to be proactive in presenting evidence to the Court that supports the orders that they seek namely, they are able to properly care for the needs of the child and that their lifestyle choices do not place him at risk.
I propose that the child remain in the primary care of the mother but that he spends each alternate weekend and half school holidays with the father provided that when in his care, the child is not brought into contact with other persons who are using illicit substances.
I make orders as appear at the commencement of these reasons.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 13 October 2023
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