Atkinson and Guy and Anor

[2015] FCCA 2741

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATKINSON & GUY & ANOR [2015] FCCA 2741

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – best interests of the children – parental responsibility – family violence issues – where second respondent cannot be located – allegations of use of illicit drugs – requirement for urine drug screen – appointment of independent children’s lawyer.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 62G, 65DAA, 68L

Applicant: MS ATKINSON

First Respondent: MS GUY

Second Respondent: MR WALL

File Number: CRC 146 of 2015

Judgment of: Judge Scarlett

Hearing dates: 23 & 24 September 2015

Date of Last Submission: 24 September 2015

Delivered at: Coffs Harbour

Delivered on: 25 September 2015

REPRESENTATION

Solicitor for the Applicant: Mrs Tanner

Solicitors for the Applicant: Coffs Coast Family Law

Solicitor for the First Respondent: Ms Filewood

Solicitors for the First Respondent: Filewood Carty Lawyers

Second Respondent: No appearance

ORDERS

UNTIL FURTHER ORDER

1. Orders 1.c and 1.d made on 7 July 2015 are vacated.

2. The First Respondent Mother is to spend time with the children X born (omitted) 2009, Y born (omitted) 2012 and Z born (omitted) 2014 from 10:00 am to 4:00 pm each Sunday commencing on Sunday 4 October 2015.

3. The immediately preceding Order is conditional on the following:

   (a)The Mother is not to administer to herself any illicit drug at any time when any of the children are in her care in accordance with these Orders or for twelve (12) hours beforehand;

   (b)The Mother must contact the Department of Family and Community Services within seven (7) days of the date of these Orders to make arrangements to commence urine testing at (omitted) on three (3) occasions each week as directed by the Department of Family and Community Services;

   (c)Within a further period of three (3) days the Mother must commence to undertake chain of custody urine drug screens which must be performed in accordance with the current Australian/New Zealand Standard (AS/NZ 4308/2008 procedures for specimen collection and the detection and quantitation of drugs of abuse in urine) on three (3) occasions a week at (omitted) as directed by the Department of Family and Community Services and the mother must continue to undertake the chain of custody urine drug screens for such period of time as the Department of Community Services directs; and

   (d)The Mother is not to allow the Second Respondent MR WALL to come into contact or spend time with all or any of the said children X, Y and Z.

4. The interests of the children X born (omitted) 2009, Y born (omitted) 2012 and Z born (omitted) 2014 are to be independently represented by a lawyer under the provisions of Section 68L of the Family Law Act 1975 and for this purpose Legal Aid NSW is requested to arrange such representation.

5. Within fourteen (14) days of the date of these Orders the parties must forward to Legal Aid NSW at (omitted) for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits, Notices of Risk and all other relevant documents.

6. The Independent Children’s Lawyer when appointed is granted leave to issue up to ten (10) subpoenas without charge.

7. The Application is adjourned to Thursday 26 November 2015 for further mention at 9:30 am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT COFFS HARBOUR

CRC 146 of 2015

MS ATKINSON

Applicant

And

MS GUY

First Respondent

MR WALL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application concerning the three children of the First and Second Respondents. They are currently in the care of the Applicant, who is the aunt of the Second Respondent, the children’s father, and the mother wishes to spend time with the children without the need for supervision.

2. The Second Respondent cannot be found.

3. The three children are:

   a)X, who was born on (omitted) 2009;

   b)Y, who was born on (omitted) 2012; and

   c)Z, who was born on (omitted) 2014.

4. The Mother seeks to vary the Interim Orders made by consent on 7^th July this year, so that she may spend time with the children without the necessity for her time with them to be supervised by the Applicant Great Aunt.

Background

1. The Applicant commenced proceedings by filing an Application, an affidavit and a Notice of Risk on 1^st June 2015. The Application was returnable on 7^th July.

2. In her Application the Applicant sought both interim and final orders providing that:

   a)She should have sole parental responsibility for the three children;

   b)The children should live with her; and

   c)The Respondents should spend supervised time with the children at Interrelate (omitted).

3. The Applicant’s reasons for seeking these orders were that:

   a)There is a serious risk of neglect of the children;

   b)The child Z was injured by the Second Respondent, his father, in the course of his assault on the First Respondent mother; and

   c)Both of the Respondents are users of the drug known as “ice” and their parenting skills are seriously hampered by their drug use.

4. The Second Respondent has not been found and has taken no part in these proceedings.

5. The mother attended court on 7^th July 2015 and was represented by Ms Saliba, a lawyer from Legal Aid NSW, on a duty basis.

6. With the aid of their lawyers, the Applicant and the First Respondent negotiated some interim consent orders, providing that:

   a)The children would live with the Applicant;

   b)The Applicant and the Mother would have equal shared parental; responsibility for the children;

   c)The children would spend time with the Mother supervised by the Applicant each week as agreed and failing agreement for two hours per fortnight at the Interrelate Contact Centre.

7. The Mother has since obtained her own legal representation and filed a Response, an affidavit and a Notice of Risk on 16^th September 2015.

8. The Mother seeks final orders that the children should live with her, but in the interim seeks orders that:

   a)the children should spend time and communicate with her:

   i)by telephone at all reasonable times;

   ii)each week during the school term from 3:30pm on Friday to 5:00pm on Sunday;

   iii)for half of the school holidays; and

   iv)that her time with the children should be unsupervised, but if supervision is deemed necessary by the Court, that supervision be undertaken by her father.

9. It is noteworthy that there has been involvement by the Department of Family and Community Services.     

Applications for Parenting Orders

1. The Family Law Act 1975 (Cth) requires a court, when deciding whether to make parenting orders relating to children, to have regard to the matters contained in Part VII of the Act. These include sections 60B, 60CA, 60CC, 61DA and 65DAA.

2. All of these maters have been considered, where relevant.

Conclusions

1. The best interests of the children are to be regarded as the paramount consideration. Section 60CC provides a guide to the Court as to how to determine what matters are in the best interests of the children.

2. There is a balance to be achieved between the requirements of subsection 60CC(2), being, on the one hand, the benefit to the children of having a meaningful relationship with both of their parents and, on the other, the need to protect the children from harm by being subjected or exposed to abuse, neglect or family violence.

3. The Father has not participated in these proceedings and is not spending any time with the children at present. At least, the children are not exposed to family violence at his hands.

4. The Mother wishes to spend more time with the children and, indeed, be a mother to them. She finds the limited time with them under supervision of the Applicant irksome. It is not suggested that she poses a risk of harm to the children from any violence, but there is a concern about her use of illicit drugs, which she contends is now in the past.

5. Mrs Tanner, for the Applicant, has submitted that the Department of Family and Community Services has requested that she undertake regular urine drug screens to show that she is no longer using illicit drugs but she has not done so. This may be due to the fact that the Mother has, until recently, had a rather peripatetic lifestyle. In her affidavit of 16^th September she gave an address in (omitted), in the same street as the Court, but she has already moved from that address back to live with her father in (omitted). This would seem to offer her more stability.

6. The documents subpoenaed from the Department of Community Services show that her caseworker sent her a text message on 11^th June saying:

   Ms Guy, to clear up any confusion. I can arrange for you to be urine tested (omitted), (omitted), (omitted) or anywhere else that suits you. And you DO NOT pay for it, Community Services does. You just have to let me know when you are ready to begin, and where you would like to do it. You also have to be committed attending 3 times a week for up to 12 weeks. It’s you choice, you decide. Ms C – Community Services.

7. This is an offer which the Mother should take up with enthusiasm, as it will greatly assist her to be able to play a much more extensive and positive role in her children’s lives. Through her solicitor, Ms Filewood, the Mother told the Court that she had made arrangements for a urine drug screen to be carried out that day, which information was proffered as an indication of her intention to show that she is free of illicit drugs.

8. Ms Filewood later confirmed her instructions that her client had in fact attended to provide the necessary sample, although the result would not be available for some days.

9. In my view, the Mother should be given the opportunity to show her commitment to her children. Supervised contact is only a temporary measure and cannot continue indefinitely. It places a strain on both the Applicant and the Mother, and, with the best will in the world, a contact centre is an artificial environment for children to build up a relationship with a parent.

10. The Mother should continue to reside in (omitted). The need to protect the children means that the Mother must be off drugs and must not allow the Father to have any contact with the children. The Mother will be able to spend time with the children from 10:00am to 4:00pm each Sunday without the need for supervision, but the order will be conditional on her contacting the Department of Family and Community Services and commencing the urine drug screens which must take place three times a week, as directed by the Department.

11. It would be advantageous if the Mother’s solicitor were to provide a copy of this decision and the Orders to the Mother’s caseworker at the Department.

12. A Family Report was ordered on 23^rd September. I propose to order that the interests of the children should be represented by an Independent Children’s Lawyer under the provisions of s.68L of the Act.

13. The proceedings will be adjourned to 26^th November 2015 for further mention and it may be appropriate for these parenting Orders to be reviewed once they have been in operation for a while.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  8 October 2015