ADEMA & HAMBLETON (No.2)

[2020] FCCA 2279

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADEMA & HAMBLETON (No.2) [2020] FCCA 2279

Catchwords:
FAMILY LAW – Parenting arrangements for child aged 3 years – issues of family violence – mother suffering from mental health issues – assessment of risk – best interests – matters to be considered.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CC

Cases cited:

Adema & Hambleton [2018] FCCA 3152

Applicant: MS HAMBLETON

Respondent: MR ADEMA

File Number: ADC 4220 of 2018

Judgment of: Judge Brown

Hearing date: 23 June 2020

Date of Last Submission: 23 June 2020

Delivered at: Adelaide

Delivered on: 23 June 2020

REPRESENTATION

Counsel for the Applicant: Ms Shorter

Solicitors for the Applicant: Duncan Basheer Hannon

Counsel for the Respondent: Mr Bowler

Solicitors for the Respondent: Scales & Partners

ORDERS

1. Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child X born in 2017 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

2. Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

3. The parties’ legal representatives and the independent children’s lawyer be at liberty to inspect and copy all documents produced to date pursuant to section 69ZW subpoena by the South Australian Police and materials received from the B Hospital (SAVE & EXCEPT for those marked confidential).

4. In the event any party (or the Independent Children’s Lawyer) in these proceedings seeks to rely upon any material produced pursuant to subpoena then such documents shall be put before the Court by way of affidavit to be filed and served as follows:

   (a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

   (b)annexing such material as is considered relevant, with

   (c)the affidavit to be paginated, indexed and exhibits tagged.

5. Further consideration of the matter is adjourned to 21 July 2020 at 2:15pm.

IT IS NOTED that publication of this judgment under the pseudonym Adema & Hambleton (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4220 of 2018

MS HAMBLETON

Applicant

And

MR ADEMA

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally, immediately following the interim hearing.  Given the moment of the decision for each of the parties concerned and the fact that an Independent Children’s Lawyer is to be appointed, it is appropriate that the reasons be transcribed.  This is the relevant transcript.  Grammatical errors have been corrected and efforts made to make the oral reasons amenable to being read.

2. This afternoon, I have to deal with proceedings in which Ms Hambleton is the applicant, and Mr Adema is the respondent.  The proceedings relate to interim parenting arrangements for a child, X, who was born in 2017. 

3. Ms Hambleton is X's mother and Mr Adema is X's father.  I will refer to them as the father and mother respectively, for convenience, in these reasons for judgment.

4. This is not the first time I have been involved with the parties.  In November of 2018, I provided some reasons for judgment in respect of a dispute, which had arisen between them, at this earlier stage, in respect of arrangements for X's care.

5. At that stage, X, who was born in 2017, was clearly a very young and vulnerable child.  The issue at that time was that it was the father's position that Ms Hambleton was in the grip of a serious addiction to methamphetamines, which had led to episodes of psychosis and hospitalisation on her part. 

6. It was further his position that the mother had not been frank about her situation in terms of drug use and her health and so posed a significant level of risk to X, which was exacerbated by his infancy. 

7. For her part, as I recall, the mother asserts that the father had acted unilaterally and had deprived X of the comfort of the care of his primary carer by not allowing the child to interact appropriately with her.

8. In these difficult and challenging circumstances, I had to make some assessment of the risks arising for X, from being on the one hand exposed to some form of either emotional or physical neglect and, on the other of being deprived of the benefit of a meaningful level of relationship with a parent. 

9. In the judgment[1] I set out the matters which I am required to take into account, pursuant to the provisions of the Family Law Act 1975.  I do not think that the law has changed in any significant way since 2018 and the publication of the judgment. 

   [1]  Adema & Hambleton [2018] FCCA 3152

10. At that stage, Ms Hambleton asserted that she was then drug free.  She was living with her mother, Ms C, who was a person who did not approve of drug taking and so would be protective of X.  She described herself as a person who loved X fervently and would be protective for him. 

11. In those circumstances, because she asserted she had hitherto been X's main provider of care, she put her case on the basis that it would be deleterious for X to be deprived of having some level of relationship with his mother.  In any event, I made some orders.  I was persuaded that there should be a family report to investigate the parties’ claims and competing assertions thoroughly. 

12. Pending this report, because of my assessment of the risk arising, I ordered that X live with his dad and spend time with his mother regularly, with the time to take place at the home of the maternal grandmother and subject to her supervision. 

13. After that, it is the case that the parties recommenced their relationship, after having finalised the earlier proceedings with a consent order, but subject to some control that the mother be subject to regular drug screen testing from time to time.  The reconciliation and/or rapprochement between the parties did not prove to be lasting.

14. It is the father’s position that the mother has suffered a serious relapse of her substance dependence and her mental health has significantly deteriorated.  Ms Hambleton has not interacted with X for a significant period of time now – I think since November of last year. 

15. She commenced these proceedings, on her own initiative on 10 February of this year.  She sought a recovery order in respect of X, and she has now retained a very experienced solicitor, Ms Shorter to act on her behalf.

16. When the case came into court for the first time – I think it was on 24 March – in all the circumstances, I thought that an order should be made formalising what was then happening, namely that X live with his father. 

17. It is common ground between the parties that there has been two positive drug screen tests of the mother, although she alleges, I think, that she has been diagnosed with ADHD and prescribed some form of amphetamine‑based medication, which explains why the test was positive for amphetamine.

18. What cannot be denied is that she was admitted to hospital in respect of a drug‑induced psychosis, and that this admission occurred without her consent.  It is also the case that she has been charged with some significant criminal charges – arson, in fact – which relate to her allegedly breaking into the father's home and attempting to set it on fire, and she is now, it would seem to be the case, on home detention bail, again with a condition that she live with her mother.

19. As a condition of home detention bail, of course, such individuals are subject to random drug screen testing by Correctional Services.  They will not provide the results of that unless they are subpoenaed, and I do not have any up‑to‑date evidence in respect of that. 

20. It is the father's position that there was a further upsetting incident around Easter time, during which the mother was arrested and refused bail over the Easter period.

21. It is also the father's position from documents which his solicitor, Mr Turner, has subpoenaed or obtained from the police, that on 11 April 2020, police were called by Ms C to where the mother was living, and the mother said that – this is Ms C – she did not want her daughter charged, but she had made her feel unsafe; that the mother was detained and was, as I say, detained for a period of time until she was re‑bailed.

22. So I have a history that cannot be controverted, of drug‑induced psychosis involving methamphetamine use; I have got reasonably serious criminal charges; and the mother concedes that she is under the care of a psychiatrist.  I do have some material from the OARS program, which is a community transition program, and I have the case manager who indicates that they are intensively involved in supporting Ms Hambleton.  I hope that is the case.

23. As I indicated at the earliest stage, my task essentially is to assess risk.  That is the most difficult thing people in my position have to do – assess risk.  Obviously no one can foretell the future.  What I essentially have to do is look at what has happened in the past, and see if there is a likelihood of something similar happening in the future, and then what will be the severity of that incident happening for the child concerned.

24. In basic legal terms, I have to assess whether the risk is so extreme that it is not acceptable for a person in my position to take.  The law is clear.  I cannot defer that task until all the evidence is to hand and, basically, what I have to look at is the likely impact on X that something unpredictable and unforeseen will happen, and put in place a response that is proportionate to that risk.

25. As with all orders to do with children, I have to be satisfied that the order I make is in X's best interests and, in that context, I cannot overlook the benefits he is likely to derive from having a loving and meaningful relationship with his mother. 

26. Clearly he must know his mother very well. I also need to protect him from the physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and I have to give greater weight, pursuant to section 60CC(2A) to protective concerns.

27. I have no doubt that Ms C is a decent person, and she loves her daughter.  She is in an invidious position.  No doubt she wants to do the best she can for her daughter.  But at this juncture, I am of the view that there are too many pieces in this particular jigsaw which are missing. 

28. What is the mother's psychiatric condition?  What is the level of her psychosis?  I think it is Ms Shorter's submission that I can infer that Ms Hambleton is drug free because if she was not, the home detention bail would have been forfeit and Ms Hambleton remanded.  That is not an un-compelling argument but it is conjectural in nature. 

29. However, there was a significant incident not so long ago, and it would appear that there are significant issues of family violence in this case.  Family violence is coercive and controlling behaviour that frightens somebody. 

30. It is hard to think of – well, of course, one can always think of worse examples – but breaking into someone's house and attempting to set fire to it is, I think, a frightening incident.  How X was exposed to that I am not sure.  Police were called to the grandmother's home, because there was some form of altercation. 

31. A child is exposed to family violence if he or she sees the sequelae of a violent incident, which includes seeing police arrive. That is clear from section 4AB of the Act.

32. At this stage, given the very significant concerns, I think it would be imprudent of me not to act cautiously, so I am not prepared to make an order for supervised time at this juncture, not until there is more evidence to hand, particularly in the form of some psychiatric assessment, and perhaps more details from Correctional Services. 

33. Given the issues of child protection raised in the case and the significant levels of mistrust between the parties, in my view, it is appropriate that X be independently represented in the proceedings. 

34. I will also make an order pursuant to section 69ZW of the Act directed towards SAPOL and DCP requiring them to provide the court with details of any notifications received by them in respect of X.

35. There is another complicated issue in that the mother asserts that the child is at risk of being sexually abused by his father.  It is the father's position that that is another example of the mother's bizarre and psychotic behaviour.  That, of itself, is another reason for the child to be independently represented. 

36. X is a young child.  There are issues about him maintaining some sort of relationship in the short to medium term via some electronic means.  I have given that some consideration, but I think when more evidence is to hand, that will be the time to consider such intervention. 

37. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate: 

Date: 18 August 2020