Anestis and Klemm (No.2)

[2018] FCCA 2622

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANESTIS & KLEMM (No.2) [2018] FCCA 2622

Catchwords:
FAMILY LAW – Parenting – interim hearing – objection to subpoena material – relevance – allegations of drug use – no evidence of an unacceptable risk to the child.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Anestis & Klemm [2018] FCCA 1669

Applicant: MS ANESTIS

Respondent: MR KLEMM

File Number: ADC 4247 of 2017

Judgment of: Judge Young

Hearing date: 23 August 2018

Date of Last Submission: 23 August 2018

Delivered at: Adelaide

Delivered on: 23 August 2018

REPRESENTATION

Counsel for the Applicant: Mr Charman

Solicitors for the Applicant: Ian Charman and Associates

Counsel for the Respondent: Ms Lewis of Counsel

Solicitors for the Respondent:

Independent Children’s Lawyer:

Precision Legal

Mr Lewis of Counsel

ORDERS

1. That leave be granted for the legal representatives to have copies of all Court documents, including section 69ZW and subpoena material filed in the matter of ADC 1116 of 2008 – Anestis and (W).

2. That the mother do undergo supervised random urine analysis drug testing on no more than one occasion each month forthwith upon the request of the Independent Children’s Lawyer and do provide the results of same as soon as they become available and that such testing be collected in accordance with the chain of custody protocol specified in AS/NZ 4308:2008.

3. That the mother be restrained and an injunction is granted restraining the mother from consuming illicit substances including cannabis or being under the influence of illicit substances while the child is in her care.

4. That the objection to subpoena filed on 19 August 2018 in respect to the subpoena material produced by South Australia Police about the mother’s father, Mr Anestis, be dismissed.

5. Leave is granted to the parties to inspect only and the parties’ legal representatives (and to include the Independent Children’s Lawyer (if appointed), any family consultant and family report writer) to inspect and copy the material produced by South Australia Police pursuant to the subpoena filed on 10 May 2018 (SAVE AND EXCEPT for those marked confidential).  Information cannot be disclosed to persons not a party to these proceedings, save and except for expert witnesses NOTING leave is granted on the condition that all copies are destroyed at the conclusion of the matter and that the legal representatives keep the copies in their possession until that time.

6. 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 on or before 20 November 2015 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.

7. That the matter be adjourned to 28 November 2018 at 9.30am for further consideration.

IT IS NOTED that publication of this judgment under the pseudonym Anestis & Klemm (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 4247 of 2017

MS ANESTIS

Applicant

And

MR KLEMM

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. Mr Anestis, who is the father of the respondent mother in these two cases has objected to a subpoena, or at least objected to the inspection and copying of a subpoena to the police about him.  He says that it is fishing or it is oppressive and it is not relevant.  The relevance is said to be that on the mother’s affidavit material, and indeed I think there are allegations from the father to a similar effect, the mother and the child spend time at the home of the maternal grandparents and in fact I was told from the bar table that she is in fact living with the maternal grandparents at the moment.

3. Mr Anestis says that, in substance, some time ago, a couple of years ago, he apparently was found guilty or convicted of, it is unclear, some cannabis offences and he says that is not relevant.  I am inclined to agree but if that is all there is, it would not be relevant, but there is an allegation that has real substance to it, that the mother is dependant upon methamphetamine.  An allegation is also made that Mr Anestis, that is, the maternal grandfather, is also a user of methamphetamine. 

4. Illicit drugs, and in particular, methamphetamine use, are central in this case, it would appear, and it occurs to me that it is highly relevant to know whether or not the maternal grandfather with whom the mother is presently living, is himself involved in more serious drugs than the relatively minor cannabis that he has referred to.  I think to that extent the subpoena is relevant.  I do not consider it is oppressive.  In all the circumstances, I do not consider it fishing.  I think there is some basis for the inquiry.

5. There will be leave to copy and inspect.

6. In the matter of Anestis & Klemm¸ the father’s application in respect of [X] who is four years old, is that [X] should live with him.  The application, as far as I can see, rests on three bases.  First was the mother’s positive reading for methamphetamine that took place in March 2017.  As I have mentioned, there was an additional affidavit filed on behalf of Mr Klemm suggesting that the mother’s reading was consistent with chronic methamphetamine use. 

7. I have already dealt with an application made following that by Mr Klemm and I was satisfied, at least on a prima facie basis, that there was strong evidence that the mother had been a chronic user of methamphetamine as at March 2017. I said there I was satisfied there was strong prima facie evidence that the mother is a frequent and regular user of methamphetamine.  She had denied methamphetamine use to me and I note in the family report prepared on 31 July 2018 by Dr K that the mother admitted to her that she had used methamphetamine on one occasion earlier this year. 

8. The other factor that the application rests on is a reference largely to the same incident that is relied on by Mr W in the related matter of W & Anestis to suspend time, that is, the allegation that Mr W was involved in a serious motor car accident in Town A, serious in the sense that he is 11 years old and according to Mr W, was encouraged to drive alone around Town A where he went off the road and had an accident.

9. The mother has put on an affidavit in the matter of W & Anestis where she says that the allegations of a serious accident are greatly overblown and what was happening was that the child had been permitted, under her supervision and of someone called Mr T, to drive a car on the farm property and at the end of that he had driven for a short time in a laneway or laneways and very minor damage had been caused when he scraped the car on a fence. 

10. Her version is that it is entirely innocuous, and as I say, I cannot, at this interim stage, make any assessment about the truth or otherwise of the claims of the parties about that accident. I will, to the extent necessary, make an order pursuant to section 69ZW to the South Australian Police to produce material about that.  I have already made an order in the related matter of W & Anestis, so I am not sure that a separate order is required, but in any event, I will order that material to be released to the parties in Anestis & Klemm. 

11. The third matter that the father relies on is the family report I have mentioned dated 31 July 2018 where the family consultant expresses the view that as long as the mother’s illicit drug use continues there is a potential risk of harm to [X]. She recommends that the father have primary care of the child and that the mother spend time with the child under supervision.  She said that should Ms Anestis return a negative hair follicle drug test then consideration should be made for removing her supervision requirements and increasing her time with [X].  Should she continue to return positive drug tests then her time with [X] may need to be re-evaluated.

12. What I was presented with today when the matter came on was a further hair follicle test on the mother carried out by the same organisation that carried out the last one which showed a negative reading for methamphetamine and a positive reading for cannabis but a much lower level than the previous reading.  The sample of hair taken was 3.9 centimetres which would suggest, as I understand the chemistry of these things – or biology, perhaps – that that would suggest the mother had not consumed methamphetamine over about the past four months, assuming that hair grows at a centimetre a month. 

13. So she has produced a negative test.  The picture appears to be that, after a period of abstinence, the mother had relapsed into methamphetamine use.  There is evidence that she had used methamphetamine at times in the past.  It may be because of the potentially serious consequences that she was facing as a result of the positive test in March 2018 that she has been shocked into abstinence. 

14. It is on those bases that I have been asked to conclude that there is an unacceptable risk to [X] should she remain living with her mother and to make an order on an interim basis that she live with her father.  It is said in the family report that there is an indication of a strong relationship between the child and her father. There is no reason to believe, according to the family consultant, that should the child live with the father that she would not be well cared for.

15. The family consultant did, as I say, express real reservations about the mother, particularly in relation to her illicit drug use, but also on the basis of some reports from [X] that she, [X], does not like it when Ms Anestis “cries and gets angry at 12 o'clock.”  She also, according to [X], “yells at her mate, and this mate was a boy.”

16. So there are some somewhat negative aspects of the child’s relationship with the mother which are quite separate to the concerns about methamphetamine or illicit drug use generally. I acknowledge, however where a child has been resident with her mother as primary carer for four years, I am reluctant to make the order sought which appears to me to be a radical order, sought on interim basis, where such an order would only be made where evidence truly gives rise to a concern that there was an unacceptable risk to the child. In this case where there is a negative hair follicle test suggesting abstinence from methamphetamine for the past four months, though not cannabis, I am not satisfied there is an unacceptable risk.   

17. The circumstances of the car accident are hotly contested and the family consultant’s recommendations are really posited on concerns about the mother’s continuing methamphetamine use. 

18. I am not satisfied that there is a basis for me being satisfied that there is an unacceptable risk which would necessitate a change of the child’s present living arrangements. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 14 September 2018