Andeacchio and Eldridge

[2014] FamCA 1093

FAMILY COURT OF AUSTRALIA

ANDEACCHIO & ELDRIDGE [2014] FamCA 1093

FAMILY LAW – CHILDREN – Interim Orders – with whom a child spends time with – where father seeks an extension of time spent with the child – consideration of best interests of the child – father’s time to be conditional upon the successful completion of random drug testing.

FAMILY LAW – CHILDREN – Interim Orders – Injunction – where both are restrained from removing the child from the State – orders made for the child’s name to be placed on the Airport Watch List.

Family Law Act 1975 (Cth)

APPLICANT: Mr Andeacchio

RESPONDENT: Ms Eldridge

FILE NUMBER: ADC 4193 of 2013

DATE DELIVERED: 27 November 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 27 November 214

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Ms R. Read

SOLICITOR FOR THE RESPONDENT: SPK Legal

Orders

BY CONSENT IT IS ORDERED THAT

1. UNTIL FURTHER ORDER each party MR ANDEACCHIO born … 1975 and MS ELDRIDGE born on … 1982 their servants and / or agents be and are HEREBY restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the child B born … 2011 from the Commonwealth of Australia for a period of two [2] years AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child B on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for the said period, or until the Court orders its removal.

2. UNTIL FURTHER ORDER each party MR ANDEACCHIO and MS ELDRIDGE, their servants and / or agents are restrained and an injunction is granted restraining them from removing or attempting to remove or causing or permitting the removal of the child B born on … 2011 from the State of South Australia.

IT IS FURTHER ORDERED PENDING FINAL DETERMINATION THAT

1. The child B (“the child”) born on … 2011 live with the mother.

2. The time the father spends with the child in Week 1 is increased to now be from 5.00 pm Wednesday until 5.30 pm Friday with such handovers, delivery and return to be inside the C Town Police Station.

3. The order in relation to Week 2 is continued with the child to be delivered to the D Town Community Child Care Centre and the father to return the child inside the C Town Police Station SAVE AND EXCEPT for handover on Friday 16 January 2015 to be at 4.00 pm inside the C Town Police Station.

4. The father undertake one [1] random urine analysis drug testing pursuant to the chain of custody protocol specified in AS/NZ 4308:2008 such test to be undertaken within twenty-four [24] hours of an email request by the mother’s solicitors to the father’s email address UPON NOTING such test to be requested and undertaken before 3 February 2015 with such cost to be initially paid by the father UPON FURTHER NOTING if the test return is negative the mother to reimburse the father for one half of such cost.

5. If such drug test proves positive all time the father is to spend with the child is suspended.

6. The times in Week 1 are suspended for 23 to 26 December 2014 and in substitution the father spend time with the child from 4.00 pm on Tuesday 23 December 2014 until 12 Noon on Thursday 25 December 2014 with handovers to take place inside the C Town Police Station.

7. It is directed at the next handover of the child the mother is to provide to the father a communication book in which the parties are required to communicate essential information concerning the child’s wellbeing and care arrangements.

8. Both parties are restrained and an injunction is granted restraining each of them from consuming illicit drugs within twenty-four [24] hours of the child being in their care or whilst in their care or from discussing the Court proceedings with the child or in the presence of the child or permitting any other person so to do.

9. The parties attend a Family Dispute Resolution conference with a view to resolving all matters concerning the child such conference to take place at the Legal Services Commission at a time and date to be arranged by the mother’s solicitors as soon as practicable.

10. The father’s Amended Application in a Case filed on 25 November 2014 and the mother’s Response filed on 26 November 2014 are dismissed and removed from the active pending list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Andeacchio & Eldridge has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4193 of 2013

Mr Andeacchio

Applicant

And

Ms Eldridge

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In relation to these interim matters, I have already expressed concern about the parties’ inability to cooperate to the extent necessary for the child’s best interests.  It falls to the Court to make decisions which would otherwise be the responsibility of the parents, particularly in relation to a child of the child’s young age.  the child was born in 2011 and is therefore approaching four years age.

2. The litigation in the Federal Circuit Court or Federal Magistrates Court (as it then was) commenced some time ago and has been transferred to this Court. 

3. The Court file indicates that there have been some consent orders, including an order made by the Registrar on 2 September 2014 which provided, by consent that the father spend time with the child during the period of adjournment (which was until 10 February 2015) in week 1 from 5.00 pm Thursday until 5.00 pm Friday and week 2 from 9.00 am Friday until 5.00 pm Sunday and then for three random urinalysis drug testings to take place and:

   Upon provision of a negative result for the second drug test, the father’s time be increased to week 1, 5.00 pm Wednesday until 5.30 pm Friday.

4. There were other specific orders made in relation to the handover place and times.  That order also provided for psychological counselling sessions with Mr E at F Psychology.  It says that:

   Both parties attend three psychological counselling sessions.

5. It is not clear from the order itself whether that was intended to be three sessions with both parties together or three individual sessions each.  I consider it is probably more likely to have been the latter.  However, apparently, Mr E was not then available and the sessions have not yet taken place, although there may be a possibility of the same occurring in the New Year.

6. The parties were also to attend upon a Kids are First parenting program.  The mother says she has attended.  The father says he is proposing to do so. 

7. The father then brought an Application in a Case and an Amended Application in a Case.  The mother has filed a response.  Those matters deal with interim orders, which would continue to apply pending the trial of the matter. 

8. The matter is back before the Registrar on 10 February 2015 at 2.30 pm, when it is hoped that directions can be made to have it listed for final determination if the parties are unable to agree what is in the best interests of their child. 

9. The Court has earlier today made the Airport Watch List orders and orders for the parties to attend a Legal Services Commission conference, so those orders do not need to be made again. 

10. The main matter that needs to be determined is whether there is an immediate increase in time such that the current arrangements are extended so that in week 1, instead of the time being limited to the 5.00 pm Thursday until 5.30 pm Friday, it be extended to 5.00 pm Wednesday until 5.30 pm Friday. 

11. The issue that the mother raises in opposition to that is the concern she has about the father’s history of drug abuse, which he does not deny, and a concern about the welfare of the child in the father’s care as a result of that drug abuse and as a result of what she alleges to be the behaviour of the father which is contributing to the ongoing conflict between the parents.  These matters are not matters which can be dealt with and determined on the conflicting evidence before the Court today.  The Court is required to take into account as the paramount consideration the best interests of the child.

12. The orders provided for the random drug testing to occur.  There have been two tests, one of which proved positive in relation to benzodiazepine.  The father says that that related to, prescribed medicine.  This is supported by the GP’s letter.  The third test has not taken place.  The hair follicle tests were not those referred to in the Court order.

13. The best interests of the child require the Court to take into account the primary considerations, both the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from harm. 

14. Issues in relation to drug abuse clearly require the Court to be careful in relation to protecting the child of the child’s young age from harm which would result in being in the care of someone who is abusing illicit drugs.  However I also take into account the father’s current employment, the fact that he continues to maintain that employment and has provided the hair follicle and urine tests.

15. Another factor to be taken into account is the benefit in reducing the ongoing litigation between these parties.  I, therefore, propose to order that save and except as for Christmas Day and the Christmas period over 23, 24 and 25 December 2014 and the period around 16 and 17 January 2014, the week 1 orders to be continued from 5.00 pm Wednesday to 5.30 pm Friday, and the week 2 continue to be 9.00 am Friday to 5.00 pm Sunday, with handovers to take place at the C Town Police Station. 

16. That handover place is chosen rather than that suggested by the father at the G Town Street Police Station.  The C Town Police Station reduces the travel time for the parties and the child and on the basis that the C Town Police Station is a place where the parties are aware that their behaviour in the presence of the child will be monitored.  Hopefully, that will not be necessary if the parties can improve their behaviour not only at the police station but generally when communicating with each other, restricted to matters concerning the child.

17. I am aware that there is already in place an intervention order which makes specific orders about the father’s behaviour towards the mother and is subject, of course, to orders of this Court which might vary those orders.

18. I take into account the mother’s concerns.

19. The orders in relation to the further time that the father is seeking in his Amended Application in a Case relate to the child spending up to a week at various times in the care of the father and extended times.  I consider that, taking into account the history of this matter, the difficulties the parties have had in communicating and sharing care for the child and the child’s young age, it is not appropriate at this stage to be able to determine that it is in best interests of the child that there be extensive time with the father.  Those matters will need to await further conference of the parties hopefully when they will be able to agree an introductory time of such extended periods or otherwise for the Court to consider at trial .

20. The Christmas Day and birthday times between the parties have also not been able to be agreed.  There are different proposals.  The mother was proposing in her Application in a Case different times to what is now realised to be the Christmas Day time.  This year Christmas Day falls on the Thursday.  That would normally have meant that the child would be spending what was otherwise described as week 1 from 5.00 pm on that Wednesday to 5.30 pm on Friday.

21. The order will allow the father to have a considerable part of the morning on Christmas Day before he has to commence travelling and at the same time gives the mother a considerable part of the afternoon after she has collected the child. 

22. All handovers will take place inside the C Town Police Station. 

23. B’s birthday occurs on a Saturday.  The parties indicated that it would be appropriate if, instead of the collection taking place at 9.00 am on that Friday, that the collection be delayed until 4.00 pm on the Friday before (rather than the 9.00 am time) to allow the mother to spend some time and the afternoon before the child’s birthday with the child. 

24. The orders that were made by Judge Kelly deal with the question of ongoing telephone calls, that being the order of 12 August 2014.  It is only a recent order providing for the father to have telephone calls each Monday, Wednesday and Thursday between 6.30 pm and 7.00 pm with telephone calls to proceed for no more than 15 minutes in length. 

25. That order was made by Judge Kelly on 12 August 2014 as a result of the contravention orders made by the Judge.  I do not consider that it would be appropriate at this stage to vary the telephone communication orders that are in place.

26. The father seeks an injunction restraining the mother from recording telephone contact time with the father and the child the child.  I have made it clear that the provisions of the State legislation this may involve the commission of an offence.  I understand that there is some suggestion by the mother that she recorded the telephone conversations at the request of the police, although I cannot understand why, if the conversations were only with the father and the child, how that would deal with the intervention orders which relate to communication between the mother and the father.

27. At this stage I am not satisfied that it is appropriate to make an injunction, taking into account the obligations that the mother already has to obey the laws of this State.  These matters may be clarified when the prosecution is being dealt with in relation to the father’s alleged breach of intervention orders are concluded. 

28. The parties both agree that they should exchange a communication book.  I will therefore direct the mother to provide to the father at the next handover of the child, a communication book in which the parties are required to communicate essential information concerning the child’s wellbeing and care arrangements.

29. The father also seeks an order in relation to telephone contact being restricted to matters limited to medical emergencies and late handovers.  I am not proposing to make any orders.  It is clear from the intervention orders already existing that the father is not allowed to communicate, save and except for that which is necessary in relation to the Family Court orders. 

30. In relation to the Kids are First parenting program, those orders have already been made.  The handover centres I have already dealt with.  The listing of the matter is already provided for by the listing before the Registrar.

31. I turn to the orders which the mother is seeking.  There is still in place an order that the child live with the mother.  I will make a specific order that pending conclusion of the matter that the child the child live with the mother.  I have already indicated and made the orders for the father to spend time with the child, so that deals with paragraph 2. 

32. Paragraph 3 relates to the random drug screen testings as set out in paragraph 6 which was a blood drug screen testing.  This was not proceeded with by the mother’s counsel.  I have already made orders in relation to the random urine testing. 

33. I have dealt with the handovers to be inside of the C Town Police Station and I have dealt with the telephone communication.

34. I have dealt with the Christmas Day orders and the communication orders. 

35. Paragraph 9 was not being proceeded with and paragraph 10 only (b) and (c) were being continued.  Those orders sought were that the father be restrained and an injunction be granted restraining him from consuming illicit substances 24 hours prior to the child being in his care and whilst the child is in his care, of discussing the Court proceedings with and in the presence of the child. 

36. Counsel indicated that the mother would agree to this being a mutual order applying to both of them.  There could be no sensible opposition to any such order as it is totally inappropriate and not in the best interests of the child that either party consume illicit substances at all, let alone 24 hours prior to the child being in their care or whilst in their care.  Similarly, particularly taking into account this child’s young age it is not appropriate that the parties discuss the Court proceedings with or in the presence of the child or permit any other person so to do.

37. I therefore order that both parties are restrained and an injunction is granted restraining each of them from consuming any illicit substance 24 hours prior to the child being in their care or whilst the child is in their care and from discussing the Court proceedings with or in the presence of the child or permitting any other person so to do. 

38. The matter is currently listed before the Registrar.  The Registrar will then be in a position to allocate a trial of all outstanding matters if the parties have been unable to agree to the orders which would otherwise be in the best interests of the child.

39. The mother is to deliver the child at the D Town Childcare Centre at 9.00 am on Friday and the father to deliver the child at the end of the period inside the C Town Police Station.  Otherwise the handovers are inside the C Town Police Station. 

40. For the handovers which would otherwise occur on 9.00 am on the Friday 16 January 2015 at the childcare centre, that be at 4.00 pm at the C Town Police Station.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 27 November 2014.

Associate: 

Date:  9 December 2014