Acosta & Stuart

Case [2023] FedCFamC1F 857

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…

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AGLC
Acosta & Stuart [2023] FedCFamC1F 857
Case
[2023] FedCFamC1F 857
Decision Date

CaseChat Overview and Summary

In the case between Ms Acosta and Mr Stuart, the primary concern was the placement of their child, born in 2017, amidst allegations of drug use by both parents and concerns regarding their living arrangements. The Federal Circuit and Family Court of Australia (Division 1) was tasked with determining the appropriate care arrangement for the child, considering the father's drug use, the mother's potential drug use, and the stability of the child's current environment. The court's decision was influenced by the involvement of an Independent Children's Lawyer, who highlighted the significant concerns about the ability of both parents to provide adequate care for the child, despite some recommendations in favor of the father from the Child Impact Statement and Family Assessment Report.

The court acknowledged the instability in both parents' circumstances but emphasized the importance of stability for the child. While the mother's recent drug use was a concern, the court found that the stability of the child remaining in her care outweighed other considerations. The court also noted the father's reluctance to disclose his current living situation and the potential risk associated with his current accommodation. Given these factors, the court ruled that the child's best interests would be served by remaining in the mother's care while ensuring that the father's visitations were supervised to prevent any drug-related exposure. The court also mandated that both parents refrain from consuming illicit substances while the child is in their care.

The court's decision emphasized the need for both parents to demonstrate their ability to care for the child without exposing him to drug use or unstable environments. The court ordered that the child live primarily with the mother, with specific visitation arrangements for the father, and imposed restrictions on both parents regarding drug use. The orders also included measures to ensure that the child is not exposed to any person using illicit substances. This decision underscores the importance of stability and safety in child custody matters, particularly where drug use and unstable living conditions are present.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.