AMATO & WOLCOTT

[2019] FCCA 2511

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMATO & WOLCOTT [2019] FCCA 2511

Catchwords:
FAMILY LAW – Parenting – best interests of the child – where father withheld the child – whether mother’s alleged drug use and mental health issues pose an unacceptable risk to the child – where the allegations made by the father found to be unsubstantiated – where no unacceptable risk is determined – where mother is the primary carer of child – child to be returned to mother.

Legislation:

Family Law Act 1975 (Cth) s.60CC

Applicant: MS AMATO

Respondent: MR WOLCOTT

File Number: ADC 3273 of 2019

Judgment of: Judge Young

Hearing date: 22 August 2019

Date of Last Submission: 22 August 2019

Delivered at: Adelaide

Delivered on: 22 August 2019

REPRESENTATION

Counsel for the Applicant: Ms Temnoff

Solicitors for the Applicant: The Law Offices of Elizabeth Temnoff

Counsel for the Respondent: Mr Robinson

Solicitors for the Respondent: Lindblom Lawyers

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the father return the child X born … 2017 to the mother at 6.00pm today at the Suburb A Police Station.

2. That the child X born … 2017 live with the mother.

3. That the child spend time with the father at times as agreed between the parties.

4. That if the father again removes or takes possession of the child a recovery order will issue.

5. That pursuant to Section 11F of the Family Law Act 1975 the parties attend a non-privileged Child Dispute Conference on 2 October 2019 at 10.00am with the parties to telephone the Registry on 1300 352 000 to confirm their attendance NOTING THAT Section 11G of the Family Law Act 1975 provides that if a person ordered to attend an appointment with a Family Consultant under Section 11F fails to comply with that order or any instruction given by the Family Consultant, the Family Consultant must report the failure to the Court and the Court may then make any further orders it considers appropriate.

6. That each party attend a “Kids Are First” program and provide a copy of the certificate of completion to the other party.

7. That until further order each party is entitled to request the other party to participate in one (1) random urine drug screen test per calendar month on the following conditions:

   (a)The party do 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;

   (b)That the party’s solicitor do forward a written request to the other party or their legal representatives;

   (c)That the party submits to the said tests within 24 hours of receipt of the said written request;

   (d)That the said tests to be undertaken at Australian Clinical Labs; and

   (e)That the party forward a copy of the results of such tests to the other party or their legal representatives.

8. The matter is adjourned for mention to 25 October 2019 at 9.30am.

IT IS NOTED that publication of this judgment under the pseudonym Amato & Wolcott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3273 of 2019

MS AMATO

Applicant

And

MR WOLCOTT

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application concerning X, who is two and a half years old. His parents separated, it would appear, in September 2018, around about the time of an episode of family violence.

3. Each party makes different allegations about the nature of that violence but I do note that the father appears to have consented to an intervention order in the Suburb A Magistrates Court on 21 September 2018. He says he was poorly advised about that but, be that as it may, I am satisfied that there has been an episode of family violence and that the consent to the order with or without the admissions resulted in a properly obtained family violence order.

4. The mother says that in October of 2018 the father broke into her house and was arrested by the police and was subsequently incarcerated. The father puts a much more innocent spin on that and says that he was attending the house to deliver food and the period of incarceration he suffered at the beginning of this year, about two months, was related to an offence of drive disqualified. I cannot make any findings about that but it just indicates how heavily contested the evidence is at this interim stage.

5. The father also says that the last time he used methamphetamine was in April 2019. He makes allegations against the mother in relation to her drug use but I will turn to that in a moment. He admits the use of methamphetamine. In fact, I am satisfied that his methamphetamine use is so recent that I can properly describe him as a current methamphetamine user as he gives no evidence about having undertaken any therapy or other intervention directed towards him ceasing methamphetamine use.

6. The mother’s initiating application where she sought a recovery order said in substance, after a period of about six months when the father did not see the child, that she agreed to the child spending time regularly with the father again and the child began to spend regular time on alternate weekends with the father from about March 2019. I note a period of about a month before the father’s last admitted use of methamphetamine.

7. The mother said that in July of 2019 she became ill with a lung infection and was admitted to B Hospital.  As she was in the hospital, or at least at a stage of being discharged home and recuperating from that lung infection, she asked the father, who was looking after X at the time, to look after him for a longer period. Apparently he agreed. She says that the father refused to return the child when she asked for him to be returned.

8. The father gives a slightly different version of that and says the mother was admitted to B Hospital for a lung infection and because she experienced a psychotic episode. The mother admits that she suffers from mental health issues and is under the care of a GP and has been for approximately 10 years because of her mental health issues which, according to a mental health care plan which is annexed to a referral from her treating GP, Dr C, which is exhibit A2, is a borderline personality disorder.

9. The mother was called to give evidence in this interim hearing about the admission to B Hospital. She denied categorically that a psychotic episode was involved. She said she was admitted because of a lung infection but denied that she had had a psychotic episode and, indeed, denied that she had ever had a psychotic episode. Mr Robinson, for the father, was given the opportunity to cross-examine the mother but chose not to cross-examine her about that. I accept from her that she was not admitted to B Hospital because of a psychotic episode.

10. That raises some questions about the credibility of the father’s claim. Whether it is a deliberately untruthful claim of a psychotic episode or just a false claim made for some other reason, I do not know and I do not make a finding.

11. Exhibit “A2” is of some significance, along with exhibit “A1” which is a report from Dr C. Taken together, both documents suggest that the mother’s mental health problems are stable. She is compliant with her regime of medication. While she is to undergo some treatment, which is referred to as “DBT” (which I understand is dialectical behaviour therapy) there is no indication that her mental health condition is in any way unstable. Quite the opposite.

12. That is of real significance because counsel for the father suggested, or submitted, that the unacceptable risk that I had to assess in this case was the danger to the child flowing from the mother’s mental health and that the mother’s mental health posed a danger to the child. I am not satisfied that is the case.

13. The counsel for the father also referred to the mother’s drug use and in particular an allegation from the father made at paragraph 138 of his affidavit that, as of mid-2019, he was informed by the mother’s family and friends that the mother’s “drug taking was out of control”.

14. That is of significance because an affidavit was relied on by the father sworn by Ms D, who says that she is the mother’s sister. The relevant parts of Ms D’s affidavit bear reading. Paragraph 6:

    The mother has a serious drug issue and regularly consumes cannabis in the home where she lives with X. On several occasions in 2018, I saw the mother consume cannabis at her home around X.

    Ms D says nothing about whether the father was present or when those occasions were. I infer from her silence about that issue, which I consider significant, that the evidence would not have assisted the father’s case. Paragraph 7:

    In around mid-2018, the mother told me she had consumed the illicit drug ice whilst X was in her care.

    Again, mid-2018, not mid-2019.

15. In evidence, the mother told me today that she had had a relapse of ice use at the beginning of this year and before that she had had a relapse of ice use some time last year. I do not consider that paragraph inconsistent with what she told me.

16. Obviously, it is a concern that these two people who have responsibility for, in the case of the father, one child, X, in the case of the mother, two children, consumed methamphetamine at all, which is a destructive drug as everyone knows. It creates dependency and eventually undermines a person’s ability to function properly, including at work or as a parent. 

17. At Paragraph 8 Ms D says:

    On several occasions around June 2018, I saw the mother regularly smoking tobacco in the home, including directly around X.

18. The one affidavit from the mother’s family says nothing about drug taking in 2019.  I am not satisfied that the mother’s drug taking is presently a danger to the child, certainly not at the level that ordering the return of a child would constitute an unacceptable risk of harm to the child. I am not satisfied that is the case.

19. The other piece of independent evidence that I ought to refer to is exhibit “A4,” which is a response to the notice of risk from the Department of Child Protection dated 16 August 2019. The Department of Child Protection refers to a variety of notifications concerning the alleged drug use of the mother and her mental health that was assessed by the Department that the letter says did not reach the threshold to investigate.

20. I am not satisfied there is any unacceptable risk of harm to this child should I order the return of the child to the mother, who, it is clear, has been the primary caregiver for the child at least since the parties separated in 2018.

21. Having regard to the matters in the legislative pathway, I consider that the child ought to be returned to his primary carer, the mother, without delay. I am not satisfied, having regard to the matter in section 60CC(2)(b) that there is any immediate risk of harm to the child should I do so.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of Judge Young.

Date: 6 September 2019