ADEMA & HAMBLETON - [2018] FCCA 3152

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADEMA & HAMBLETON

[2018] FCCA 3152

Catchwords:

FAMILY LAW – Child aged 21 months old – interim hearing – assessment of risk – mother’s previous history of drug abuse – proportionate response to degree of risk involved – unacceptable risk test – meaningful level of relationship with each parent – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.60B; 60CA; 60CC; 61DA(3)

Cases cited:

Deiter & Deiter [2011] FamCAFC 82
SS v AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654
M & M (1988) FLC 91-979
B & B (1988) FLC 91- 957
Slater & Light [2013] FamCAFC 4
N & S and the Separate Representative (1996) FLC 92-655
W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892

Applicant:

MR ADEMA

Respondent:

MS HAMBLETON

File Number:

ADC 4220 of 2018

Judgment of:

Judge Brown

Hearing date:

31 October 2018

Date of Last Submission:

31 October 2018

Delivered at:

Adelaide

Delivered on:

2 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr Bowler

Solicitors for the Applicant:

Scales & Partners

Counsel for the Respondent:

Mr Hemsley

Solicitors for the Respondent:

Legal Services Commission of South Australia

ORDERS

UNTIL FURTHER OR OTHER ORDER:

The child [X] born 2017 (hereinafter referred to as “the child”) live with the father.
The child spend time with the mother as follows:
(a)each Wednesday from 7:30am to 5:30pm commencing 7 November 2018; and
(b)each Saturday from 9:00am to 5:00pm commencing 10 November 2018.
The time set out in order (2) hereof be subject to the following condition:
(a)It take place at the home of the maternal grandmother Ms J and subject to her supervision.
An injunction issue and the mother is restrained from ingesting any illicit drug during any period of time the child is in her care or beforehand.
The child be exchanged between the parties to give effect to order (2) hereof at the home of the maternal grandmother.
The parties be restrained and injunctions are hereby granted restraining each of them from abusing or denigrating the other in the presence or hearing of the child or permitting any other person so to do.
The parties be restrained and injunctions are hereby granted restraining each of them from having the child medically or psychologically/ psychiatrically examined unless they both consent to such examination or the examination is directed by an officer of the Department for Child Protection (SA).
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 15 February 2019.
The family assessment to deal with the following matters:
(a)to include interviews with the parties, the child and relevant family members;
(b)observed interaction between the child and the parties;
(c)any views expressed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 3152
Decision Date: 2 November 2018

CaseChat Overview and Summary

In the matter of ADEMA & HAMBLETON, Judge Brown of the Federal Circuit Court of Australia considered an interim hearing concerning the care arrangements for a child aged 21 months. The dispute involved the mother's previous history of drug abuse and the assessment of risk to the child.

The court was required to determine the appropriate interim living arrangements for the child, balancing the mother's desire for a meaningful relationship with the child against the need to protect the child from unacceptable risk. Key legal issues included the application of the "unacceptable risk test" and the overarching principle of the child's best interests in the context of parental drug abuse.

Judge Brown reasoned that while the mother's drug abuse history presented a significant risk, a proportionate response was necessary. The court applied the principles of the *Family Law Act 1975*, particularly sections concerning the best interests of the child and the assessment of risk. The court ordered that the child live with the father and spend supervised time with the mother at the maternal grandmother's home. An injunction was also issued restraining the mother from ingesting illicit drugs and both parents from denigrating each other in the child's presence. Further orders mandated drug testing for the mother, supervised exchanges, and the preparation of a family report to inform future proceedings. The matter was adjourned for further directions and listed for trial.

Orders

Orders of the court

UNTIL FURTHER OR OTHER ORDER:

The child [X] born 2017 (hereinafter referred to as “the child”) live with the father.

The child spend time with the mother as follows:

(a) each Wednesday from 7:30am to 5:30pm commencing 7 November 2018; and

(b) each Saturday from 9:00am to 5:00pm commencing 10 November 2018.

The time set out in order (2) hereof be subject to the following condition:

(a) It take place at the home of the maternal grandmother Ms J and subject to her supervision.

An injunction issue and the mother is restrained from ingesting any illicit drug during any period of time the child is in her care or beforehand.

The child be exchanged between the parties to give effect to order (2) hereof at the home of the maternal grandmother.

The parties be restrained and injunctions are hereby granted restraining each of them from abusing or denigrating the other in the presence or hearing of the child or permitting any other person so to do.

The parties be restrained and injunctions are hereby granted restraining each of them from having the child medically or psychologically/ psychiatrically examined unless they both consent to such examination or the examination is directed by an officer of the Department for Child Protection (SA).

Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 15 February 2019.

The family assessment to deal with the following matters:

(a) to include interviews with the parties, the child and relevant family members;

(b) observed interaction between the child and the parties;

(c) any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

(d) the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;

(e) any other matters that the family assessor considers important to the welfare or best interests of the said child.

10.

The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.

11.

Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

12.

Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

(a) a Children’s Court;

(b) a child protection authority;

(d) a convener of any legal dispute resolution conference

NOTING:

A. At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B. Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court

13.

Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

14.

During the period of the adjournment (prior to 28 February 2019) the mother participate in three (3) random urine drug screen tests within twenty-four (24) hours of being requested by the father’s solicitor to submit to a urine test for the presence of illegal drugs and/or substances and for the purposes of such testing the provision of the urine sample is to be personally supervised and observed by a qualified medical practitioner or their authorised delegate in accordance with the chain of custody protocol specified in AS/NZ 4308:2008 with a copy of the results of such tests to be provided to the father’s solicitor as soon as they become available.

15.

The matter be listed for trial on 14, 15 & 16 August 2019 at 10:00am.

16.

The matter be adjourned to 28 February 2019 at 9:30am for further directions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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