ANESTIS & KLEMM

[2018] FCCA 1669

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANESTIS & KLEMM [2018] FCCA 1669

Catchwords:
FAMILY LAW – Parenting – interim hearing – where the mother is the primary carer – where there is prima facie evidence of frequent drug use by the mother – where the child has not spent substantial time with the father – where the father did not detail the arrangements he would make to care for the child if the child were to live with him – child to live with the mother – child to spend time with the father.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA, 62G, 65DAA

Applicant: MS ANESTIS

Respondent: MR KLEMM

File Number: ADC 4247 of 2017

Judgment of: Judge Young

Hearing date: 15 May 2018

Date of Last Submission: 15 May 2018

Delivered at: Adelaide

Delivered on: 15 May 2018

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: Ms Lewis

Counsel for the Independent Children’s Lawyer: Ms Smith

THE COURT ORDERS

1. The child shall live with the mother and father as follows:

   (a)with the father:

   (i)from the conclusion of kindergarten Wednesday 16 May 2018 until 4:30pm Thursday.

   (ii)on a two-week alternating basis as follows:

   A.In week one from 4:30pm Friday until the commencement of kindergarten Tuesday (or 4:30pm if a non-kindergarten day) commencing 25 May 2018.

   B.In week two from the conclusion of kindergarten (or 4:30pm if a non-kindergarten day) Monday until the commencement of kindergarten Tuesday (or 4:30pm if a non-kindergarten day) commencing 4 June 2018.

   (b)With the mother at all other times.

2. That any changeover that cannot be effected by the delivery and collection of the child at kindergarten take place at the bottom of the stairs at Shopping Centre.

3. The mother is restrained and an injunction is granted restraining her from:

   (a)using or consuming any illicit substances when the child is in her care or for 24 hours prior to same.

   (b)exposing the child to other people using or consuming any illicit substances.

4. The father is restrained and an injunction is granted restraining him from consuming alcohol to excess when the child is in his care or for 24 hours prior to same.

5. The mother and father are restrained and an injunction is granted restraining them from abusing, assaulting or denigrating the other party in the presence or hearing of the child.

AND IT IS ORDERED UNTIL FURTHER ORDER:

1. That within twenty-four [24] hours both parties forthwith upon the request of the Independent Children’s Lawyer do undergo drug testing pursuant to the hair follicle analysis.

2. That the parties be restrained and an injunction is granted restraining the father / mother from cutting, straightening or dying his/her hair prior to the hair follicle test.

3. That the parties forward a copy of the results of such tests to the Independent Children’s Lawyer as soon as they become available.

4. That the money held in the Trust account with Precision Legal be placed into an interest bearing account in the joint names of MS ANESTIS and MR KLEMM NOTING that no money is to be drawn from this account without leave of the Court other than the amount of $1,280.00 which is to be used by the parties for the purpose of payment for the parties’ hair follicle testing only.

5. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the child of the relationship [X] born 2014 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services 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 31 July 2018.

6. That the family report to deal with the following matters:

   (a)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;

   (b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.

7. That 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 Case Coordinator Child Dispute Services.

8. That the parties are to telephone the Case Coordinator Child Dispute Services on fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

9. That 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.

10. That 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 to whom these proceedings relate:

    (a)Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

NOTING:

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

B.Section 121 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.

C.In the event a party to these proceedings objects to the release of the Family Report pursuant to Order13 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

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

2. That upon filing a notice to inspect, the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

3. That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any material produced pursuant to subpoena and any s.69ZW material, then such documents shall be put before the Court by way of affidavit to be filed and served on or before 3 July 2018 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.

4. That the matter is adjourned to 23 August 2018 at 9.30am for further consideration.

5. That if the Legal Services Commission of SA approves, the parties are to arrange to attend a family dispute resolution conference on a date and time to be advised to the parties by the Legal Services Commission of SA.

IT IS NOTED that publication of this judgment under the pseudonym Anestis & Klemm 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. This is a parenting matter concerning [X] who has just turned four.  She is presently living with her mother, subject to orders that the child spends time with the father after kindergarten on Wednesday till 7 pm and then in alternate weeks from 9 am Saturday to 5 pm Sunday.  In other words, one night at present. That only began on 21 April after a relatively long period where the child was not spending time with the father.

3. As of 18 May, the interim consent orders made on 26 February provide that the child will spend Wednesday night from after kindergarten till Thursday morning with the father and from Friday evening until Sunday evening in alternate weeks, so the arrangement will move from one night to three nights a fortnight.  As I have said, this child has just turned four and has, I am satisfied, been in her mother’s primary care all her life. 

4. Ordinarily, in those circumstances, it would not be contemplated that at an interim hearing the child’s living arrangements would be dramatically challenged.  The father seeks an order that the child live with him and spend supervised time with the mother.  The basis for that is an allegation that the mother is a methamphetamine user.  The mother denies that but I am satisfied there is strong prima facie evidence that she is a methamphetamine user. 

5. I cannot make any final finding about that and it would be inappropriate on an interim hearing but I am satisfied there is strong prima facie evidence that that is the case based on a hair follicle test that was undertaken on 5 March where the mother returned positive results for methamphetamine and cannabis.  The mother asserts that the positive reading for methamphetamine is a result of environmental exposure.  She says that she had, until February of this year, spent considerable time with some methamphetamine users who are friends or were friends.  She was a little vague about who they were and the circumstances.  That was in submissions from the bar table.  She has not dealt with the issue in any detail in her affidavit material.

6. There is an affidavit from a Dr W who is a pharmacist and adjunct professor of pharmacy at the university.  He says that the readings are not suggestive of environmental exposure and he considers that the level of the readings indicates likely frequent and regular use of methamphetamine by the mother.  It is having regard to that evidence that I conclude that there is, as I have mentioned, strong prima facie evidence that the mother is a frequent and regular user of methamphetamine.

7. Whether she continues to be so, I do not know.  But that evidence does not sit well with her denials of any methamphetamine use over the past 10 years.   There is also evidence from a Mr M who is the father of another child of the mother’s who says that on an occasion on 8 December last year he was staying over at the mother’s house with their son and he was disturbed in the early hours of the morning by the mother preparing to use methamphetamine or inhale methamphetamine.  So the evidence is not simply based on a lab test. 

8. The father also alleges that the mother associates with her own family, in particular her father, and that they are drug users as well.  There is an allegation, a very vague one I might say, that the maternal grandfather was convicted of drug driving at some stage, so there is nothing in the affidavit material to say when the conviction was, what drug was involved or anything else.  Really, that evidence goes no further than assertion and it is very vague in any event.  It is also said against the mother that the kindergarten records produced for [X] from February, March and April, early April this year show infrequent attendance by [X] at kindergarten. There do appear to be quite significant gaps in her kindergarten attendance.

9. The mother who is self-represented did not deal with that issue in any great detail in her self-drafted affidavit, an affidavit that is largely unresponsive to the real issues in the case.  The father also alleges that from time to time when [X] has come to him that her clothes were dirty or her shoes were dirty and so on.  Beyond that, there is no real evidence that the child is at particular risk of harm from the mother.  The case seemed to be framed on the basis that by simply establishing that the mother was a methamphetamine user it would follow that there ought to be an order that the child’s residence be transferred to the father. 

10. That is certainly not the case under the Family Law Act although proved chronic methamphetamine use is certainly a factor that would indicate very real concerns about a parent’s parenting capacity. But whether or not there is an unacceptable risk which, I am satisfied, is the appropriate test to apply here in the child remaining living with the mother when there is strong evidence, prima facie evidence, that the mother is a chronic methamphetamine user, the question is, in my view, somewhat more complex than that in the circumstances of this case. As I have said, there is prima facie evidence that the mother is a chronic methamphetamine user or has been, at the very least, bearing in mind that the hair follicle test was conducted on 5 March.

11. The evidence that the child has not been well cared for is equivocal at best and I am satisfied there is no evidence of an imminent danger to the child’s welfare although there is certainly matters indicating concern and among those matters, I should add, is the mother’s general failure to engage in these proceedings at various stages. For example, she did not attend at the child dispute resolution conference or the 11F conference that was ordered for 6 April 2018. 

12. The mother said from the bar table that she was not aware of that but given that she sent an email to the father’s solicitors which attached an email from her own solicitors, thereby waiving privilege, it is clear that the solicitor advised the mother well beforehand about that appointment.  I have real difficulty accepting the mother’s assertions that she was unaware of that appointment.  It was an important appointment and she did not appear. 

13. There have been other occasions when she did not appear in Court, though more recently she has indicated she would engage, particularly after I indicated to her that if she did not come to Court on Court appointed dates, I would make an order that she appear in person and I would have her arrested and brought here by the police if she did not appear.  So the evidence about the mother is mixed.  There are indications of some difficulty functioning which may well be due to methamphetamine use. 

14. There are other indications that she is functioning.  The child does attend kindergarten regularly, although not on every day.  The mother says, again from the bar table, that she continues to live in her ordinary house and is not living with her parents.  Again, something that is not dealt with in her affidavit.  It could be that what the mother says is lies from beginning to end.  I don’t know.  I am not going to make credibility findings on an interim hearing.  I have to look to the uncontested evidence or plausible evidence or the most likely state of affairs.

15. The issue that concerns me is that the child has spent relatively little time with her father and I am being asked to make an order at an interim hearing to change the child’s living arrangements immediately, suspending time with the mother, in effect, or have her time supervised as was the father’s application, though he offered no proposal for supervision.  The father’s affidavit, or affidavits – there were multiple affidavits that his counsel sought to rely on, apparently ignoring the practice direction about the use of a single affidavit on an interim hearing, did not squarely address the detailed arrangements that the father proposed to make should the child come and live with him.  I found that to be a remarkable omission.  I suggested to the father’s counsel that she call him after the luncheon adjournment and he could give oral evidence about the arrangements he proposed.  He is in full time employment.  He ordinarily works from 7:30am to 3:36pm five days a week.  He said, in substance, that as [X] attends kindergarten from 8:30am to 2:30pm on Monday and Tuesday and 8:30am to 11:30am on Wednesday, he would work on those days.

16. He would go to work an hour late.  He would knock off an hour early and indeed, four hours early, as far as I could see, on Wednesday, so reducing his hours of work very considerably and he will cease work on Thursday and Friday.  Again, there is nothing in his affidavit material where he says that that is the arrangement he will enter into or that that is the arrangement that his employer has approved.  In relation to a question from the mother about how he proposed to deal with the school holidays, in substance he said that he would rely on his mother and sister to look after [X] during the school holidays.

17. I am not satisfied that the father’s proposal has been carefully thought out, which gives me cause for concern as well.  The two most important factors that I see are, on the one hand, strong prima facie evidence that the mother is a chronic methamphetamine user, though apparently functioning to some degree reasonably well – I understand she continues to study, for example.  On the other hand, a proposal that this child, who is barely four and who has being cared for all her life by her mother, go and live with her father without any clear arrangement about how she will stay in contact with her mother.

18. I am not satisfied that the father has given close consideration to the arrangements that he will make should [X] live with him full time.  Balancing all those factors, I think it is appropriate that the child’s time with the father be extended and I think if the child spends more frequent time with him and for longer periods, that is some mitigation of risk of the child continuing to live with her mother. 

19. The order that I propose to make will see the time the child spends with the father extended to five nights a fortnight.  The arrangement that I am thinking of at the moment initially was on a Wednesday night and then from Wednesday to Sunday, but I am aware that given the father’s work schedule that might not be appropriate and the more appropriate arrangement might be at the beginning of the week. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 26 June 2018