Barker and Benchley

[2014] FCCA 699

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARKER & BENCHLEY [2014] FCCA 699

Catchwords:
FAMILY LAW – Practice and procedure – venue of hearing – interim parenting.

Rice & Asplund (1979) FLC 90 - 725

Applicant: MS BARKER

Respondent: MR BENCHLEY

File Number: PAC 5110 of 2013

Judgment of: Judge Dunkley

Hearing date: 20 March 2014

Date of Last Submission: 20 March 2014

Delivered at: Parramatta

Delivered on: 20 March 2014

REPRESENTATION

Solicitor Advocate for the Applicant: Mr Neong

Solicitors for the Applicant:          Aboriginal Legal Service

Solicitor Advocate for the Respondent: Ms Coady

Solicitors for the Respondent:          Rachel Storey & Associates

Solicitor Advocate for the Independent Children's Lawyer: Mr Naidovski

Solicitors for the Independent Children's Lawyer: Legal Aid New South Wales

ORDERS

1. The child, X born (omitted) 2012, shall live with the father.

2. The mother shall spend time with the child:

   (a)From 10.00am on the first Wednesday of each month until 5.00pm on the second Sunday of each month.

   (b)At such other times as the parties may agree.

3. Unless otherwise agreed between the parties, changeover is to take place on the main concourse of (omitted) Railway Station adjacent to the train indicator boards in the middle of the concourse.

4. By not later than 5.00pm on 25 March 2014, the father shall make contact with Mission Australia (omitted) to obtain a referral to the Brighter Futures Program and is to do all acts things, sign all documents and give all consents necessary to enable such referral.

5. The child living with the father pursuant to Order 1 is conditional upon:

   (a)The father submitting to random Carbohydrate Deficient Transferrin (CDT) testing upon request of the Independent Children’s Lawyer, but no more than once every month, and for this purpose:

   (i)The father shall submit to such testing within 48 hours of the Independent Children’s Lawyer making the request;

   (ii)The father shall authorise his doctor to forward copies of the results to the Independent Children’s Lawyer and, in the absence of his doctor agreeing to do so, that the father forward copies of the results to the Independent Children’s Lawyer immediately upon receipt.

6. The time the child spends with the mother pursuant to Order 2 is conditional upon:

   (a)Continuing domestic violence counselling through Life Care for as long as is deemed necessary by Life Care;

   (b)The mother submitting to random urine analysis upon written request of the Independent Children’s Lawyer to the mother’s solicitor:

   (i)Within 48 hours of such a request submit herself to urine analysis under the supervision of a registered and authorised pathology service;

   (ii)Such urine analysis to be conducted in accordance with the Australian/New Zealand Standard AS/NZS 4308:2008: Procedure for the collection, detection and qualification of drugs of abuse (including alcohol) in urine; and

   (iii)Thereafter provide a copy of the results to the Independent Children’s Lawyer and within 48 hours of the receipt of the report.

7. Each party shall cause their solicitors to forward to the Independent Children’s Lawyer within 48 hours of any test result becoming available, a copy of such test result.

8. Without admission, the parents shall not consume any illicit drugs 24 hours prior to or during the time the child will be in their respective care.

9. The parents are hereby restrained from consuming more than three standard drinks of alcohol during the time the child is in their respective care.

10. Each parent be restrained and injuncted from denigrating the other parent or any member of the child’s extended family in the presence or hearing of the child and that they not allow any other person to do so.

11. Each parent will notify the other parent of any medical emergency or hospitalisation in relation to the child as soon as practicable.

12. Each parent be at liberty to receive information about the child from his treating medical practitioners.

13. Both parents be and hereby are restrained from physically disciplining the child.

14. Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

THE COURT FURTHER ORDERS THAT:

1. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator 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.

2. The Family Report to deal with the following matters:

   (a)The nature of the relationships of the child with each of the child’s parents and with significant other persons.

   (b)The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.

   (c)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)either of the parents: or

   (ii)any other child, or significant person, with whom the child has been living.

   (d)The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

   (e)The capacity of each parent, or another person, to provide for the needs of the child, including emotional and intellectual needs.

   (f)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other children and of either of the child’s parents and any other characteristics of the child that the reporter thinks are relevant.

   (g)Each parent’s attitude to the child and to the responsibilities of parenthood.

   (h)Such other issues as the Family Consultant considers relevant.

3. The Family Consultant is requested to complete the report not less than 4 weeks before the directions hearing date, being 17 June 2014.

4. The parties shall attend all appointments with the Family Consultant and shall ensure the subject child attend all appointments with the Family Consultant, as requested by the Family Consultant.

5. The Family Consultant may inspect the Court file and any documents produced on subpoena to which no objection has been lodged.

6. The case is transferred from the Federal Circuit Court at Parramatta to the Federal Circuit Court of Australia at Broken Hill.

7. This case is listed for further directions at 9.30am on 17 June 2014 in the Federal Circuit Court at Broken Hill.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5110 of 2013

MS BARKER

Applicant

And

MR BENCHLEY

Respondent

REASONS FOR JUDGMENT

1. These are interim parenting proceedings between Mr Benchley whom I will herein after refer to as the father and Ms Barker whom I will herein after refer to as the mother. 

2. The mother has two children, X born (omitted) 2012 and Y born (omitted) 2010. 

3. The father is the biological father of X. 

4. The father’s cousin is the biological father of Y. 

5. Y lives with the mother. 

6. X as a result of parenting orders made in the Local Court at Broken Hill on 12 July 2013, lives with the father.

7. On 25 November 2013, the mother filed an Initiating Application in the Federal Circuit Court at Parramatta.  With respect to that application, she was granted short service and the case was listed for a directions hearing on 4 December 2013.  In support of that application she swore an Affidavit on 22 November 2013.  On 13 March 2014 she swore a further Affidavit. 

8. On 6 March 2014, Mr Benchley swore an Affidavit.  A response was prepared by his solicitors which seems not yet to have been filed but which has been handed to me today and which I mark as Exhibit ‘B’.

9. Before me today is also marked as Exhibit ‘A’ a memorandum from a child dispute conference that took place on 19 March 2014. 

10. On the first return date on 4 December 2013 the parties consented to some orders.  Those orders were that X live with the father and spend time with the mother from 7.30 on 16 December to 7.30 on 23 December.  From 7.30 on 13 January to 7.30 on 20 January.  From 7.30 on 10 February to 7.30 on 17 February and from 7.30 on 10 March to 7.30 on 17 March and for a period at Christmas.  From 2.30 on 25 December to 2.30 on the 26 December.

11. Pending further orders there were orders without admissions restraining the parties from smoking indoors or in a car when with the child, drinking to excess more than one alcoholic beverage per hour.  Changeovers were to occur at the (omitted) Police Station and neither party was to be accompanied by any other person or family member.  And when the child was spending time with the mother she was to keep the child in her care at all times.  The case was then adjourned to today for interim hearing.

12. During the course of the interim hearing today it has become apparent that the Federal Circuit Court sitting at Broken Hill could hear this case more quickly than can the Federal Circuit Court sitting at Parramatta. If appropriate orders were made the Federal Circuit Court at Broken Hill could obtain a family report, release the family report and have this case listed for directions to obtain trial dates on 17 June.  That is probably a year earlier than the Federal Circuit Court at Parramatta could hear the case.

13. (omitted) is the place in which the father and the child live and is the place at which the most recent parenting orders were made.  The mother lives in a refuge in (omitted) with the other child, Y.  No party nor the Independent Children’s Lawyer opposes the transfer of these proceedings to the Federal Circuit Court sitting at Broken Hill, the ordering of a family report and the listing for directions on 17 June in Broken Hill. Those orders are made.

14. What this Court then has to determine is the interim parenting orders that are applicable with respect to the subject child, X.

15. Normally, given that orders were made in the Local Court as recently as July 2013, it would need to be proven that a significant change in circumstance had occurred before this Court would reconsider those orders.

16. However, the orders in July were made without the involvement of the mother and there is dispute as to whether or not she was aware of the proceedings. 

17. In those circumstances the Rules would permit a rehearing.

18. In any event, since the making of those orders there have been changes in the circumstances of the parties which would enliven the principle in Rice & Asplund (1979) FLC 90-725 and would warrant a rehearing. These circumstances include the mother determining that she would be permanently living in Sydney and the father coming under adverse notice of the police on 23 October 2013 affected by alcohol whilst he should have been caring for X.

19. No party says nor submits that this Court should not revisit the orders that have been made.  A brief background is as follows:

(omitted) 1983	The father was born
(omitted) 1991	The mother was born
(omitted) 2010	Y, a child of the relationship between the mother and the father’s cousin, was born
(omitted) 2012	X born
28 May 2013	The mother and the father separate and the children Y and X remain in the care of the mother post separation
30 May 2013	The father commences proceedings pursuant to the Family Law Act in the Broken Hill Local Court. (omitted) being the place at which the parents were living at the time of their separation.
31 May 2013	Local Court at Broken Hill issues a recovery order with respect to the child, X
3 June 2013	The police recover the child, X
14 June 2013	Interim parenting orders were made in the Local Court at Broken Hill for the child X to live with the father.
12 July 2013	Final parenting orders were made in the Local Court at Broken Hill.  The father to have sole parental responsibility and for the child to live with him.

1. The mother did not appear at the proceedings in the Local Court at Broken Hill, was not represented and did not file any material. This is part of the reason sensibly, that no party has objected to these proceedings.

2. In October 2013, the mother and the child Y, relocated from (omitted) to (omitted) in (omitted) Sydney. She began living in women’s refuge in supported accommodation.  She says that as a result of that she has begun engaging with a number of services with respect to drug use and domestic violence. 

3. Each of the parties is Aboriginal and identifies with (omitted) being their country. Each of the children is Aboriginal and would be accepted by the Aboriginal community at (omitted).  The mother has family living in (omitted).  The father has family living in both (omitted) and Sydney.

4. The father has a criminal history of violence serving periods of imprisonment.  The father denies the allegations of family violence as and against the mother and the child.  The violence in his criminal history involved other persons. 

5. The mother makes allegations of family violence being perpetrated upon her and the children by the father.  The mother makes admissions in respect of use of drugs, principally marijuana.  The father has a history of alcohol consumption to an amount that would be considered by any health professional as excessive and above that which would be in his best interest from health perspectives and has come to the attention of the police on a number of occasions whilst affect by alcohol.

6. The mother sought on an interim basis, a live with order for X. 

7. The Independent Children’s Lawyer on balance seeks an order that X live with the mother and spend time with the father for a week a month. 

8. The mother says that she supports the orders proposed by the Independent Children’s Lawyer. 

9. The father sought an order that X live with him. He proposes that X spend time with the mother if it is safe to do so. In the alternative, proposing time for X with the mother in Sydney, similar to the periods consented to in December.   

10. Each party is in difficult financial circumstances with limited available finances. Neither is in paid employment.

11. Each party would be dependent upon train transportation for any time that X is to spend with the party with whom he is not living. 

12. I am told and accept that the time for train travel from (omitted) to Sydney is some 19 hours. 

13. I accept that neither of the parties would be able to afford air travel for themselves or the child. 

14. The issues that I must then determine at this point in time are what parenting orders are in the best interest of the child, X and reasonably practicable.

15. Coming to that determination I have to, in the words of the Independent Children’s Lawyer, make an assessment as to risk in respect of X with respect of each household and each set of proposals and am likely the Independent Children’s Lawyer submits to make a determination on the least worse alternative.  That would seem to be because the mother is still dealing with the issues relating to drugs and the father is still dealing with issues with respect to alcohol and violence towards others.

16. The Independent Children’s Lawyer in any event says that whatever happens and whatever decision is made about whom this child is to live with, there should be oversight of the child by a number of government or semi-government organisations including but not limited to, if he lives with the mother, the refuge workers where she lives, the (omitted) Medical Centre, as I understand it, in that area and the programme Brighter Futures. If the child is to live with the father with Brighter Futures or through Mission Australia (omitted) in (omitted).

17. The Independent Children’s Lawyer proposes random urinalysis and CDT testing.  It would appear that such testing can be obtained on a rebate through Medicare and therefore although onerous, will not create for the parties financial difficulties to the extent that it would make such testing impracticable. 

18. It is clear that since July 2013 with the issuing and implementation of the recovery order that the child has been cared for by and lived with the father and until the orders were made on 4 December, had spent little time with the mother for about five months.

19. That since the orders were made on 4 December 2013, the child has continued living with the father and has spent seven day periods in each of December, January, February and March with the mother.  The child is 20 months old. 

20. It would be a change in circumstances for the child to now commence living with the mother in Sydney.  The impact that change might have on the child’s relationship with the father absent expert evidence is not able to be determined.

21. The child has never experienced living in Sydney.  There is likely to be a significant readjustment for the child if he were to live in Sydney.  That impact is not possible to determine at this point in time.  If the child was to live in Sydney with the mother, he would be reunited with a sibling with whom he has spent little time in the last eight months other than when he has been spending time with the mother pursuant to the orders of 4 December. 

22. Given the conflicted nature of the evidence, it is not possible to make firm conclusions as to the capacity of either party as a parent being any greater than the other party as a parent.

23. Given the conflicted evidence, it is not possible to make a determination that the child is at greater or lesser risk in one house as opposed to the other household. With certainty, risk can be minimised by the orders submitted for by the Independent Children’s Lawyer and not strenuously opposed by any party. This is because the parties drug and alcohol use will be monitored and each will receive from Brighter Futures help with parenting capacity issues.  

24. If the child remains living with the father in (omitted) subject to the orders that the Independent Children’s Lawyer seeks, then the child would have regularly monthly time with the mother and his sibling and it would be a continuation of the circumstances that he has now experienced since December. It would continue a live with order that has existed since June 2013.

25. The time since June 2013 is a significant period of time in this child’s life given his young age.  If the child were now to live with the mother, that would be a significant change in circumstances that has not existed since June 2013. He would spend more time with his mother and his sibling and less time with his father. How that would impact on these relationships is not clear. 

26. The Independent Children’s Lawyer in summing up says that this case should be determined really on the basis of a reunion between the siblings more than anything.

27. It is not possible for me to determine at this point in time how important that reunion of siblings would be for this child. 

28. Given that these proceedings can in short order, have expert evidence available which will go a long way in helping to decide issues as to the nature of relationships between the child and his parents and his sibling, provide some insight into the respective capacities of each of the parents and some insight into what it would mean for this child if he were to be separated from the people with whom he would likely identify as an Aboriginal child.

29. It is likely that a final hearing in Broken Hill will become available in August at which all the issues can be tested with respect to family violence, alcohol abuse, misuse of drugs and future proposals.

1. Given the short turnaround time made possible by the change of venue. Given the lack of the expert evidence currently, less change rather than more change is likely to be on balance in this child’s best interest. He will be able to experience each month periods of time with his sibling and his mother of approximately 10 days each month. Given his young age such periods might have been considered excessive. However, there is no evidence that those periods which have been in place since December have negatively impacted upon the child. This may be because it has not, it may also be because the disruption to the child is already great.

2. However, on balance it would seem that the child has coped with that period of time which probably indicates that the child already has significant relationships with each of his mother, father and sibling.

3. At final hearing this is most likely to be a case in which risk is the determining factor. That risk will be able to be better assessed in a contested final hearing that at this point in time.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Date:  8 April 2014