Cavendish and Mallery and Anor

[2014] FCCA 3030

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAVENDISH & MALLERY & ANOR [2014] FCCA 3030

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – application to vary orders – parental responsibility – equal shared parental responsibility – sole parental responsibility – best interests of the child – whether child should live with mother until further order – requirement for father to undergo urine drug screen – supervision of father’s time with child – child’s schooling – whether child should remain at the same primary school.

Legislation:

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

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Mallery & Cavendish [2012] FMCAfam 1434

Applicant: MS CAVENDISH

First Respondent: MR MALLERY

Second Respondent: MS HOCKING

File Number: NCC 2275 of 2009

Judgment of: Judge Scarlett

Hearing date: 26 November 2014

Date of Last Submission: 26 November 2014

Delivered at: Sydney

Delivered on: 28 November 2014

REPRESENTATION

Solicitor for the Applicant: Ms Hynes

Solicitors for the Applicant: Taylor & Scott Lawyers

Counsel for the First Respondent: Mr Othen

Solicitors for the First Respondent: Paltos Milevski Lawyers

Solicitor for the Second Respondent: Mr Barry

Solicitors for the Second Respondent: Gordon & Barry Lawyers

Independent Children's Lawyer: Mr Kennard

Solicitors for the Independent Children's Lawyer: Legal Aid NSW (Gosford)

ORDERS

UNTIL FURTHER ORDER

1. All earlier parenting Orders are suspended.

2. The Applicant Mother has responsibility for decisions as to the day to day care welfare and development of the child X born (omitted) 2007 during periods when he is in her care and the Second Respondent Paternal Grandmother has responsibility for decisions as to the day to day care welfare and development of the child X during periods when he is spending time with her.

3. Except as otherwise provided for in these orders or by agreement between the parties the child X is to live with the Mother.

4. The child X is to spend time with the Paternal Grandmother each alternate week from immediately after school or 3:00 pm on Friday until the commencement of school or 9:00 am on Monday or until the commencement of school on Tuesday if the Monday is a public holiday with the first of such alternate weekends to commence on Friday 28 November 2014.

5. The child X is to spend time with the Paternal Grandmother from 2:00 pm on Christmas Day 25 December to 9:00 am on 29 December 2014.

6. For the purposes of facilitating Order (4) and for the purposes of changeovers in accordance with Order (5) that do not occur through school, the Paternal Grandmother is to collect X from the Mother’s residence at the commencement of the time and the Mother is to collect X from the Paternal Grandmother’s residence at the conclusion of the time.

7. The Paternal Grandmother is at liberty to attend all events in which X is involved including but not limited to:

   (a)Sporting functions, activities and competitions;

   (b)Extra-curricular activities that allow for parental attendance; and

   (c)Any other function involving X’s schooling.

8. The Paternal Grandmother must notify the Mother as soon as practicable of any serious accident or injury concerning X whilst the child is in the Paternal Grandmother’s care.

9. The Respondent Father is restrained from spending any unsupervised time with the child X.

10. The Paternal Grandmother must ensure that at no time whilst X is in her care that he will come into or remain in the presence of the Father without her supervision.

11. The Father is restrained by injunction from using or administering to himself any form of illicit substance or synthetic drug.

12. The Father is restrained by injunction from using any prescription medication not prescribed for him and if prescribed for him other than in accordance with the directions of the prescribing medical practitioner.

13. It is a condition of the Father spending time with the child X that he is to undergo a chain of custody urine drug screen which must be performed in accordance with Australian/New Zealand Standard AS/NZS 4308:2008 procedures for specimen collection and the detection and quantitation of drugs of abuse in urine on at least one occasion each week within twenty-four (24) hours of being requested to do so by the Independent Children’s Lawyer and must provide the written results of such procedure to the Independent Children’s Lawyer and the solicitors for the Mother and the Paternal Grandmother within forty-eight (48) hours of having received the written results.  

14. The Mother is restrained by injunction from signing any documents or taking any steps to enrol the child X in any primary school except (omitted) Public School.

15. Leave is granted to serve a copy of these orders on the Principal of (omitted) Public School.

16. The Application is adjourned to Tuesday 17 March 2015 for further mention at 10:00 am.

17. The Independent Children’s Lawyer is granted liberty to apply to re-list the Application on three (3) days’ notice.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

NCC 2275 of 2009

MS CAVENDISH

Applicant

And

MR MALLERY

First Respondent

MS HOCKING

Second Respondent

REASONS FOR JUDGMENT

Applicant

1. This is an Application in a Case by the mother of the parties’ son, X, who was born on (omitted) 2007. The mother is seeking the discharge of the interim parenting orders made on 18 December 2013, which provided that the child should live with his father and spend time with her.

2. The mother now seeks orders providing that X should live with her and spend time with his paternal grandmother. Whilst the earlier orders provided that the matter was to be mentioned on a date in December 2014, the precipitating event that brought about this Application is the fact that the father has now been imprisoned and is not due for release until February 2015.

3. The paternal grandmother has now brought an Application in a Case seeking to be joined as a party to the proceedings and also seeking parenting orders in her favour.   

Background

1. There is a lengthy history of litigation between the mother and the father in this matter, going back to 2009, when the child was only two years old.

2. The father was born on (omitted) 1970. He is 44 years of age.

3. The mother was born on (omitted) 1971. She is almost 43 years old.

4. The parties commenced a de facto relationship in 2006.

5. There is one child of the parties’ relationship, X, who was born on (omitted) 2007. X is now 7 years and 10 months old.

6. The parties separated in about May 2009.[1]

   [1] Mallery & Cavendish [2012] FMCAfam 1434 at [9]

7. There were proceedings between the parties in the Family Court of Australia at Newcastle which were resolved by way of Consent Orders made on 13 April 2010. Those Orders provided that:

   a)the child would live with his father;

   b)the parties would have equal shared parental responsibility for the child with the father to have specific responsibility for his education and health;

   c)the mother would spend time with the child:

   i)from Thursday morning until Saturday afternoon each week;

   ii)on Mother’s Day;

   iii)at Christmas in an alternating arrangement; and

   iv)by telephone each Tuesday or as agreed.

8. There were also Orders providing that:

   7.  The mother shall comply with all reasonable directions of her treating medical practitioners and take her medications as prescribed on a regular basis.

   8.  The mother’s time with the child pursuant to these orders shall be suspended in the event that the person supervising the changeover is of the opinion the mother is affected by an illicit substance or is displaying symptoms of mental illness and such “time with” shall resume upon the mother providing to the father evidence of her subsequent attendance upon her treating medical practitioner.

9. There were proceedings commenced by the father in 2012 seeking urgent orders that the mother should return the child to him and, if she failed to do so, then he sought a recovery order. The parties attended a Child Dispute Conference in September 2012 but did not reach any agreement about the child. Each party accused the other of family violence and substance misuse.

10. After an interim hearing, Orders were made on 19 December 2012 (Mallery & Cavendish[2]). Those Orders provided that (in summary):

    a)The child was to live with the mother from 3:00 pm on Tuesday to 9:00 am on Thursday each week, and from 3:00 pm on Friday until 6:00 pm on Sunday each alternate week;

    b)The child was to live with the father at all other times on condition that the father continued to reside at his mother’s home in (omitted);

    c)The parties were to re-enrol the child at UTS childcare in (omitted);

    d)An Independent Lawyer was appointed to represent the child’s interests;

    e)The parties were restrained by injunction from administering to themselves any prohibited drug or substance at any time; and

    f)The parties were to commence or continue random urinalysis testing to determine the presence of illicit drugs as directed by the  NSW Department of Family and Community Services.

    [2] [2012] FMCAfam 1434

11. A Court Expert Report was prepared by Dr C and released to the parties on 20 May 2013. Dr C made these recommendations:

    a)The child’s relationship with his parents would be best managed if both parents were to share parental responsibility for him;

    b)For the next 18 months, the child’s needs would be best met if he were contained within a supportive extended family structure, which could best be achieved by his primary residence being with his father and grandmother and his continuation  at school in (omitted);

    c)Over that 18 month period both parents would need to demonstrate continued sobriety and desistance from drug use;

    d)The mother would need to undergo random CDT tests over a 12 month period;

    e)The mother should seek some personal therapy, as Dr C was of the view that a significant personality dysfunction existed;

    f)The father should be required to continue living with his mother;

    g)There should be substantial contact between the child and his mother, involving alternate weekend contact with shared school holidays;

    h)After a period of 18 months has passed, by the end of the 2014 school year, there should be a review of the situation.

12. Dr C set out what he envisaged could take place as a result of the review of the situation in December 2014:

    If all is going well for Ms Cavendish, then consideration to transitioning X to live with Ms Cavendish should occur, preferably by Christmas 2014. By then Ms Cavendish should have been able to demonstrate a suitably long period of stability. If that has not been demonstrated then the status quo should remain. Consideration of schooling will obviously occur, however I think that a shared care arrangement can occur such that X spends every alternate weekend at his father’s (with Ms Hocking) and two school nights per week. I see therefore no need to change his school.

13. On 24 June 2013 the Application was set down for final hearing for three days from 11 to 13 December 2013. However, the parties attended a Legal Aid Litigation Intervention Conference on 21 November 2013 and negotiated an interim settlement of the matter. They entered into Consent Orders, which included vacating the dates of the final hearing.

14. The Consent Orders, made on 18 December 2013, are set out in full:

    PENDING FURTHER ORDER, IT IS ORDERED BY CONSENT:

    1.  That the Orders of 19 December 2012 be discharged with effect from 20 December 2013.

    2.  That Orders 5 and 6 hereof shall take effect from 20 December 2013.

    3.  That the final hearing of 11,12 and 13 December 2013 be vacated.

    4.  That the matter be adjourned for Mention to a date in December 2014.

    5.  That the child X born (omitted) 2007 (“X”) shall live with the applicant father Mr Mallery (“the Father”) and it is a condition of this Order that the Father must continue to reside at (omitted).

    6.  That X shall spend time with the respondent mother, Ms Cavendish, (“the Mother”) as agreed between the Parties in writing, but failing agreement as follows:

    6.1    During School Holidays

    6.1.1 From 2pm on 25 December 2013 until 6pm on 5 January 2014;

    6.1.2 From 6pm on 17 January 2014 until 6pm on 27 January 2014;

    6.1.3 From 6 pm on 19 April 2014 until 6pm on 27 April 2014;

    6.1.4 From the conclusion of school on 27 June 2014 until 6pm on 9 July 2014;

    6.1.5 From 6pm on 28 September 2014 until 6pm on 5 October 2014;

    6.1.6 From the conclusion of school on 19 December 2014 until 2pm on 25 December 2014; and

    6.1.7 From 6pm on 5 January 2015 until 6pm on 15 January 2015.

    6.2    During school term time, in a two-week cycle, with “Week One” commencing the first week of each school term:

    6.2.1 Week 1:     From the conclusion of school on Friday until 9am the following Sunday; and

    6.2.2 Week 2:     From the conclusion of school on Friday until the commencement of school the following Tuesday; and

    6.2.3 Notwithstanding Orders 6.2.1. and 6.2.2, the Mother shall facilitate X’s attendance with the Father at Tai Kwon Do on Saturdays between 10am and 11:30am (or such later time as the class may finish from time to time).

    6.3    That should the Parties seek to vary the arrangements with respect to the time X spends with each of them during the school holidays an agreement must be confirmed in writing at least two weeks prior to those particular holidays commencing.

    7.  That notwithstanding any other order to the contrary herein, X shall spend time with the Mother during Mother’s Day weekend from the conclusion of school the preceding Friday until the commencement of school the following Monday.

    8.  That notwithstanding any other order to the contrary herein, X shall spend time with the father during Father’s Day weekend from the conclusion of school the preceding Friday until the commencement of school the following Monday.

    9.  That notwithstanding any other order to the contrary herein, X shall spend time with the Father from 10am Saturday, 16 August 2014 until 9am on Sunday, 17 August 2014.

    10.    That the Parties shall consult each other in writing to make arrangements with respect to conducting changeover each week where necessary, but failing agreement, other than in circumstances where X is collected or delivered to school, he shall be collected by the Mother from the Father’s residence referred to in Order 5 herein at the commencement of her time, and by the Father or his nominee from the Mother’s home at the end of the Mother’s time, with X.

    11.    That the Parties shall communicate with each other in respect of X by email, save and except in urgent circumstances or where an emergency arises that necessitates the Parties communicate with each other by some other means.

    12.    That where these orders provide that an agreement may be made between the Parties in writing, that agreement shall not be taken to have been reached unless the party to whom the proposal is made responds with the word “agreed”.

    13.    That the Mother and the Father are restrained by injunction from using any form of illicit substances or synthetic drugs.

    14.    That the Mother and the Father are restrained by injunction from using any prescription medication not prescribed for him or her, and if prescribed for him or her, other than in accordance with the directions of the prescribing doctor.

    15.    That the Mother is restrained by injunction from consuming alcohol 24 hours prior to spending time with X and during any time that X is in her care.

    16.    That the Father is restrained by injunction from consuming alcohol beyond the legal limit for driving a motor vehicle on a public road 24 hours prior to and during any time that X is in his care.

    17.    That the Parties are restrained by injunction from denigrating the other party or members of the other party’s family in X’s presence or hearing.

    18.    That the Parties use their best endeavours to ensure no other person denigrates the other party or members of the other party’s family in X’s presence or hearing, and where such behaviour may start to occur, that party shall immediately withdraw X from that setting.

    19.    That within seven days from the date of these Orders the Mother shall attend upon a medical practitioner to obtain a referral to undertake a blood test as follows:

    19.1  A CDT test to be analysed using the HPLC analysis method;

    19.2  A liver function test specifically measuring GGT, MCV, AST and ALT levels;

    19.3  The referral provided by the medical practitioner for such blood test is to request a copy of the results be sent to the Independent Children’s Lawyer forthwith;

    19.4  The Mother attends upon an appropriate laboratory to undertake such blood testing; and

    19.5  The Mother shall be responsible for payment of all fees associated with the conduct of the test.

    20.    That within seven days from the date of these Orders the Father is to submit to hair-strand testing in accordance with the following procedure:

    20.1  The Father shall arrange for a hair testing kit from ESR Limited (“ESR”) to his general practitioner, or in the event his general practitioner is not able to facilitate such test, to another general practitioner, AND the Father shall forthwith advise the Mother and the Independent Children’s Lawyer in writing upon his compliance with this order.

    20.2  Further to order 20.1 herein, the Father shall attend upon such general practitioner and submit to the collection of a 3cm hair sample within seven days of the general practitioner receiving the testing kit, and the Father shall request the general practitioner to return the sample to ESR for testing of all drug types, AND the Father shall forthwith advise the Mother and the Independent Children’s Lawyer in writing upon his compliance with this order.

    20.3  The Father irrevocably authorise ESR to send its report to his solicitor and a copy of that same to the Mother and the Independent Children’s Lawyer within seven days upon completion of such report(s); and

    20.4  The Father shall be responsible for payment of all fees associated with the conduct of the test.

    21.    That should a negative biometric test result be produced by either party, each has leave to relist the matter on seven days’ notice.

    22.    That the parties shall seek an updated report from Dr C or such other practitioner(s) recommended by Dr C allowing for sufficient time for such updated report to be made available for the parties and the Independent Children’s Lawyer by November 2014.

    AND IT IS NOTED:

    A. The Parties attended a Legal Aid Litigation Intervention Conference on 21 November 2013.

    B. That the parties intend, where appropriate, to participate in a further Litigation Intervention Conference following the release of an updated report by Dr C or such other practitioner(s) recommended by him.

15. On 22 September 2014 the mother filed her Application in a Case seeking discharge of the earlier Orders, supported by an affidavit, affirmed the same day. The Application was returnable on 1 October 2014.

16. On the return date, the parties were directed to attend a Child Dispute Conference with a Family Consultant and the mother’s Application was listed for interim hearing on 17 November.

17. The Child Dispute Conference took place on 13 November. The mother attended the Conference but the father did not, as he was incarcerated. The paternal grandmother also attended, but was not interviewed. In the Child Dispute Conference Memorandum to Court, the Family Consultant noted that she interviewed the mother but not the father.

18. The Family Consultant also spoke to the Independent Children’s Lawyer and the paternal grandmother, but did not interview her. The Family Consultant stated:

    The paternal grandmother, Ms Hocking, attended Court on the afternoon of the CDC. She advised the Family Consultant that, in light of recent events, she was applying to be party to the proceedings. The Family Consultant did not interview the grandmother due to the CDC having been ordered prior to Ms Hocking’s application to join proceeding, there being no documents on file indicating she was a party to the proceedings and Ms Cavendish’s objecting to the grandmother participating in the CDC and her stating she had not received a copy of the grandmother’s application.[3]

    [3] Child Dispute Conference Memorandum to Court 13.11. 2014

1. On 13 November 2014 the paternal grandmother filed an Application in a Case seeking to be joined as a party to the proceedings. She also sought various parenting orders. The Application was returnable on 17 November 2014.

2. On 17 November the grandmother was joined as a Respondent to the proceedings and the mother’s Application in a Case was adjourned to 26 November 2014 for interim hearing.

Orders Sought by the Parties

1. The mother relied on her Application in a Case filed on 22 September 2014 and her affidavit of the same date.

2. The father was unable to attend Court due to his incarceration but relied on his affidavit sworn 25 November 2014.

3. The paternal grandmother relied on her Application in a Case filed on 13 November 2014 and her affidavit affirmed the same day.

4. In her Application in a Case, the mother sought orders that:

   a)The orders of 18 December 2013 should be discharged;

   b)Until further order, she should have sole parental responsibility for the child X;

   c)The mother should have sole responsibility for the day to day care of the child during such time as he lives with her;

   d)The father should have sole responsibility for the day to day care of the child during such time as he spends with him;

   e)Except as otherwise provided, the child should live with the mother;

   f)Until the father produces to the mother and the ICL weekly urinalysis test results free from any trace of illicit drugs for four consecutive weeks, he is restrained from spending any time with the child;

   g)Subject to the father’s compliance with the above order, he is to spend time with the child:

   i)Each alternate week from after school on Friday until 5:00 pm on the following Sunday;

   ii)For half of the school holidays at the conclusion of terms 1, 2 and 3;

   iii)For various times in January 2015; and

   iv)On special occasions such as Father’s Day and the child’s birthday;  

   h)The child should communicate with the father by telephone each Wednesday;

   i)The parties are to be restrained from:

   i)consuming alcohol within 24 hours prior to or during any period when the child is in their care;

   ii)using any illicit drug or substance, any synthetic drug or substance or any prescription medication not prescribed for them or, if prescribed, other than in accordance with the directions of the prescribing doctor, within 24 hours prior to or during any period when the child is in their care; or

   iii)denigrating the other parent or any member of the other parent’s family in the presence or hearing of the child and are to use their best endeavours to ensure that no other party denigrates the other parent or any member of the other parent’s family in the child’s presence or hearing.

5. The mother also seeks other ancillary orders.

6. The father did not file any Application or Response, but stated in his affidavit:

   I support any application my mother makes in respect of X, pending the matter coming back before the Court on my release from prison, as I have no doubt she has X’s best interests at heart.[4]

   [4] Affidavit of Mr Mallery 25.11.2014 at paragraph [3]

7. The father also deposed:

   I am prepared to consent to an order to undergo random drug testing on my release from prison.[5]

   [5] Ibid at [4]

8. In addition, the father deposed:

   I am also prepared, if the Court finds it necessary, to consent on a without admissions basis to X’s time with me following my release being supervised by my mother pending my successful compliance with any orders relating to random drug testing.[6]

   [6] Ibid at [6]

9. Apart from seeking to be joined as a party to the proceedings, the paternal grandmother seeks the following orders in her Application in a Case:

   2.  Pending further Order, the Grandmother and Ms Cavendish (“the Mother”) shall have parental responsibility for any decisions in relation to the day-to-day care, welfare and development of X (born (omitted) 2007) (“the Child”) at such times as he is in their respective care.

   3.  Pending further Order, paragraph 5 of the Order made 18 December 2013 regarding the Child living with Mr Mallery (“the Father”) be and hereby is discharged.

   4.  Pending further Order, the Child live with the Grandmother.

   5.  Pending further Order, the Mother be and hereby is restrained by injunction from removing the Child from the Grandmother except for the purpose of the child spending time with the Mother in accordance with sub-paragraphs 6.1and 6.2 of the Order made 18 December 2013.

   6.  Pending further Order, sub-paragraphs 6.1 and 6.3 of the Order made 18 December 2013 be and hereby are discharged save that the child will spend time with the Mother from:

   6.1    the conclusion of school on 19 December 2014 to 2pm on 25 December 2014;

   6.2    6pm on 5 January 2015 until 6.00pm on 17 January 2015; and

   6.3    Otherwise during school holidays as agreed in writing between the Mother and Grandmother.

   7.  Pending further Order, sub-paragraphs[7] 6.2.3 of the Order made 18 December 2013 be and hereby is discharged with the Mother to facilitate the child’s attendance at Tai Kwon Do on Saturdays.

   [7] sic

   8.  Pending further Order, paragraph 10 of the Order made 18 December 2013 be and hereby is discharged with changeovers of the child that do not occur through school to occur with the Mother collecting the Child from (omitted) at the commencement of time and the Grandmother to collect the Child at the Mother’s home at the conclusion of such time.

   9.  That the time for compliance by the Mother with paragraph 19 of the Order made 18 December 2013 be and hereby is extended to 20 February 2015.

   10.    That the time for compliance by the Father with paragraph 20 of the Order made 18 December 2013 be and hereby is extended to 20 February 2015.

   11.    That the Parties and the Independent Children’s Lawyer shall seek an updated report from Dr C or such other practitioner(s) recommended by Dr C allowing for such updated report to be made available to them by the end of March 2015.

   12.    The Mother return the Child to the Grandmother.

   13.    Pending further Order, the Mother be and hereby is restrained by injunction from referring to the Child by anything other than X including but not limited to referring to the Child as “(omitted)”.

   14.    Pending further Order, the Mother be and hereby is restrained by injunction from removing the child from (omitted) Public School.

   15.    Pending further Order, only the Grandmother or her nominee be permitted to collect the Child from (omitted) Public School.

   16.    Pending further Order, the Parties shall do all acts and things and take all steps necessary to cause the Child to undergo therapy with (omitted) Sydney Child Protection.

   17.    Pending further Order, the Parties shall do all acts and take all steps necessary to enrol in and complete the Brighter Futures early intervention program.

   18.    The Application in a Case filed 22 September 2014 be and hereby is dismissed.

   19.    That the matter be adjourned for mention to a date in April 2015.

   20.    The Grandmother is hereby authorised to provide a copy of this Order to the Principal of (omitted) Public School.

Evidence

1. The mother relied on her affidavit of 22 September 2014, in which she deposed that both she and the father previously used illicit substances, her drug of dependence being mainly cannabis.[8] She went on to depose:

   [8] Affidavit of Ms Cavendish 22.9.2014 at [9]

   10.    As at the date of this my Affidavit, I have been clean for almost two and a half years.

   11.    I believe Mr Mallery is still using Heroin. I shall address this issue in detail later in this Affidavit.[9]

   [9] Ibid at [10]-[11]

2. In her affidavit, the mother referred to the Consent Orders entered into by the parties on 18 December 2013 and stated:

   I entered into the Consent Orders knowing it was only for an interim period in line with the recommendations of Dr C. It has always been, and continues to be, that I seek to have wish (sic) for X return to live with me. I also agreed to the terms on an interim level as I was concerned about the constant changeover between Mr Mallery and myself, that it was disruptive to X’s school week.[10]

   [10] Affidavit of Ms Cavendish 22.9.2014 at [55]

3. The mother went on to depose in the following paragraphs the steps that she has taken since those Consent Orders were entered into, comprising:

   a)undergoing all required drug and alcohol testing;

   b)undergoing nine separate random tests, all of which have returned negative results for drugs of alcohol;[11]

   c)completing the “Tuning into Kids” parenting course in June 2014;

   d)completing a six month program known as the Phoenix program which involved DBT therapy, CBT therapy and Schema therapy, the course running from 5 February to 25 June 2014;

   e)commencing the second part of the Phoenix program, which takes approximately 12 months to complete;

   f)remaining in contact with the Department of Family and Community Services about the care and welfare of the child whilst in the father’s care; and

   g)being in regular contact with the child’s school to monitor his progress and general wellbeing (the affidavit mistakenly refers to “Mr Mallery” rather than “X” on two occasions in paragraph [66] but it is clear that this is merely a clerical error).[12]

   [11] Annexed to her affidavit and marked “C” are copies of each of the nine test results

   [12] Affidavit of Ms Cavendish 22.9.2014 at [56]-[66]

4. The mother also annexed to her affidavit a copy of a Child Protection Case Plan dated 7 July 2014 from the Department of Family and Community Services relating to the child. The Case Plan refers to a number of safety issues and risks associated with the child and notes that:

   X’s paternal grandmother Ms M has agreed to take on the role of primary carer and has given her assurances that X will be supervised at all times by herself or another responsible adult at those times X is being cared for in her household.

5. In his affidavit of 25 November 2014 the father deposes at paragraph [2]:

   I am presently incarcerated at the minimum security unit of (omitted) Correctional Complex and am due to be released on or about 12 February 2015. I was incarcerated following non-completion of a community service order which was imposed on me in relation to a number of driving offences for which I was sentenced in January 2014.[13]

   [13] Affidavit of Mr Mallery 25.11.2014 at [2]

6. The father went on to depose at paragraph [4]:

   I acknowledge that I have failed to undertake random urinalysis testing as requested by the Department of Family and Community Services (“DOCS”). Regrettably, I did not undertake the requested testing because I resented the involvement of DOCS in our lives when X was settled, well cared for and progressing well at school. I also did not like our assigned Case Worker and avoided communicating with her for this reason. I understand now that I should have undertaken the testing and my lack of cooperation has likely lead (sic) people to believe I have relapsed. I have not relapsed. I am prepared to consent to an order to undergo random drug testing on my release from prison.[14]

   [14] Ibid at [4]

7. In her affidavit of 13 November 2014 the paternal grandmother deposed that on 29 January 2014 the father was convicted of various offences relating to his driving while suspended and given a suspended sentence with 200 hours of community service. She understands from the lawyers acting for the father on his criminal matters that he only completed approximately 50 hours of the community services he was ordered to perform. She also understands that he will be released from prison by 12 February 2015.

8. The grandmother deposed that the mother removed the child from (omitted) Public School on 11 November 2014 without notice or discussion with her and the child was still with the mother at the date of the affidavit (13 November).

9. The grandmother also set out what she had done to assist the father with the care of the child in the period from 19 December 2013 to October 2014, including attending meeting with officers of the Department of Family and Community Services on 5 May and 24 June 2014. It was at this latter meeting that she agreed to become the child’s primary carer. She also deposed that she and the mother met with Relationships Australia on 17 July 2014 in an effort to make some arrangements. Whilst this meeting was “tense” and not productive, the mother and grandmother had coffee afterward and had a constructive discussion about issues concerning the child.

10. The grandmother denied in her affidavit allegations in the mother’s affidavit that the child had been exposed to drug use and paraphernalia in her home or that the child had been given inadequate supervision.

11. At paragraph [93] of her affidavit the grandmother set out an account of the events of 10 October to 11 November 2014. In summary, she stated that:

    a)the father did not contact her from after they took the child to school on 10 October until 13 October, on which date she made inquiries from a mutual friend;

    b)the friend advised her on 16 October that she believed that the father had been arrested;

    c)she telephoned a solicitor who advised that the father was being held at (omitted) Correctional Centre;

    d)the father telephoned her on 16 October from (omitted);

    e)the grandmother made an appointment to visit the father on 20 October and found out about his breach of a good behaviour bond and the incomplete community service order;

    f)the grandmother saw the mother on 26 October but “was unable to make an arrangement to talk in private” ;

    g)she messaged the mother on 1 November 2014.

12. The grandmother expressed concern about the child telling her on 30 October that his mother wants to change his name to (omitted).[15]

    [15] Affidavit of Ms Hocking 13.11.14 at [97]

13. The grandmother also deposed that the child had not attended Tae Kwon Do on four occasions in a row.[16]

    [16] Ibid at [104]

14. The grandmother stated that at 2:55 pm on 11 November 2014 she attended (omitted) Public School to collect the child but found that the mother had already collected him.[17]

    [17] Ibid at [114]

Submissions

1. Ms Hynes, the mother’s solicitor, submitted that her client was concerned about the lack of care of the child whilst living with his father and said that parental responsibility would be an issue. The mother is seeking sole parental responsibility.

2. The mother seeks that there should be no time between the father and the child on his release until March. She opposes the proposed order restraining the mother from removing the child from (omitted) Public School and said that there was no evidence that the mother had any intention of enrolling the child at (omitted) Public School. Ms Hynes pointed out that the mother currently lives an hour away from the child’s school, going on peak hour traffic.

3. Mr Othen of Counsel, who appeared for the father, submitted that there was no admission that the father had failed to comply with the order for drug testing. Whilst the mother had complained that the paternal grandmother had failed to tell her that the father was incarcerated, the mother immediately removed the child from the grandmother’s care. He submitted that the mother did propose to change the child’s school but there was no application to the Court for an order for this to be done.

4. Mr Barry, solicitor, who appeared for the paternal grandmother, submitted that his client had no objection to an order that the father should undergo drug testing.

5. It was submitted that the child should remain at the (omitted) Public School. Dr C, in his report, had recommended that the child should remain there. It was also a fact that the school had been involved in the Child Protection Care Plan prepared by the Department of Family and Community Services.

6. The father is due to be released from prison on 12 February 2015. The grandmother will supervise the child’s time with the father.

7. The Independent Children’s Lawyer, Mr Kennard, told the Court that the previous consent orders required the father to undertake hair follicle testing and the Court should make an order that he has hair follicle testing once he is released.

8. Mr Kennard also submitted that there was no evidence to support a reallocation of parental responsibility at this stage. There is no need for the mother to have sole parental responsibility for the child.

9. The child should have a supervised relationship with his father. Now that the paternal grandmother is a party to the proceedings this will legitimate her role as supervisor.

Agreed or uncontested relevant facts

1. The child had been living with the father at the home of the paternal grandmother from December 2013 and had been attending (omitted) Public School. The father was arrested on or shortly after 10 October 2014 and shortly after imprisoned. He is due for release on 12 February 2015.

2. The child has been living with the mother since 11 November 2014 after she unilaterally removed him from school.

The relevant law in regard to parenting applications

1. When the Court is considering making parenting orders, whether final orders or orders until further order (i.e. interim orders), it must have regard to the provisions of Part VII of the Family Law Act 1975 (Cth). In particular, it must consider the following sections:

   a)Section 60B, which contains the objects of Part VII and the principled underlying those objects;

   b)Section 60CA, which requires the Court to regard the best interests of the child as the paramount consideration;

   c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;

   d)Section 61DA, which deals with the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child; and

   e)Section 65DAA, which requires the Court to consider equal time or substantial and significant time with each parent where an order has been made that the parents should have equal shared parental responsibility for the child.

2. All of those matters have been considered, so far as they are relevant. I will discuss the matters in sections 60CC, 61DA and 65FDAA in more detail.

Relevant matters in section 60CC of the Family Law Act

1. The Full Court of the Family Court, in Goode & Goode[18], has held that a Court at first instance must consider the matters in s.60CC that are relevant and, if possible, make findings about them, noting that:

   … in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.[19]

   [18] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

   [19] [2006] FamCA 1346 at [82]; (2006) 36 Fam LR 422 at 445 [82]; FLC 93-286 at 80,903 [82]

2. The two primary considerations in subsection 60CC(2) are, on the one hand, the benefit to the child of having a meaningful relationship with both of his parents and, on the other, the need to protect the child from physical or psychological harm from abuse, neglect or family violence. The Court is required by s.60CC(2A) to give greater weight to the latter consideration.

3. There is no issue that the child will benefit from having a meaningful relationship with both of his parents. However, the mother raises some issues of neglect, which are denied by the grandmother. However, it is of concern that there should be a Child Protection Plan by the Department of Family and Community Services at all, even though the grandmother has agreed to be the child’s primary carer.

4. There are no issues of family violence and no family violence order in force. The views of the child have not been ascertained, noting that he is only seven years of age. However, his interests are represented by the Independent Children’s Lawyer, who has made submissions to the Court.

5. The child appears to have a positive and loving relationship with both his parents and with his grandparents.

1. The child’s circumstances have changed, as his mother made the unilateral decision to remove him into her care once she had ascertained that the child’s father had been imprisoned. There is no evidence that he has been adversely affected by this change, but it is important that he maintains his relationship with his paternal grandmother, in whose house he has been living. Obviously, he is unable to see his father at present, because his father is currently in prison and is likely to remain there until 12 February 2015. I am not persuaded that it would be to the child’s benefit for him to be taken to the (omitted) Correctional Centre to see his father, noting the fact that his father is likely to be released from prison within a few months.

2. It is noteworthy that Dr C suggested in his Report that, depending on the mother’s progress, steps should be taken to bring about the child living with his mother by Christmas 2014. The mother has deposed to various courses she has attended and sets out that she is now “clean” of drugs. This evidence is, of course, untested, as is her statement in her affidavit that she believes that the father is still using heroin.

3. The father’s own evidence in his affidavit is that he was not compliant with random urinalysis as requested by the Department of Family and Community Services because he resented the involvement of the Department in the lives of the family members and he did not like his Case Worker. Those do not appear to be particularly convincing reasons for his failure to comply.

4. The father did not comply with the requirements of the community service order imposed on him by a Court in January 2014, either, and, as a result, is now in prison. These failures to comply by the father do not reflect well on his capacity or willingness to comply with any orders imposed by this Court in the future.

5. It is for these reasons that I consider that, until further order, the child should remain living with his mother. I am also of the view, supported by the opinion of Dr C in his report, that the child should continue to attend (omitted) Public School, which will provide him with a familiar routine and environment for the time being.

6. Once the father is released from prison, his time with the child should be supervised by his mother, the child’s paternal grandmother.

Sole parental responsibility or equal shared parental responsibility

1. The mother seeks an order for sole parental responsibility for the child, which is opposed by the grandmother and not supported by the Independent Children’s Lawyer. I am not satisfied that it is in this child’s best interests for his mother to have sole parental responsibility for him at this stage. Both the mother and the paternal grandmother have an important role to play in this child’s life, even though the facts suggest that the father has not demonstrated the amount of responsibility required of him as a parent over the past year.

2. I propose to order that the mother should have parental responsibility for the child when he is in her care and the paternal grandmother should have parental responsibility for the child when he is spending time with her.

Section 65DAA of the Family Law Act

1. It is not reasonably practicable for this child to spend equal time with each of his parents, for the very reason that his father is currently in prison. For the same reason, it is not reasonably practicable for him to spend substantial and significant time with his father. As a result of that finding, it is not necessary to consider whether equal time or substantial and significant time would be in the child’s best interests.

Orders that are in the child’s best interests

1. It is for these reasons that I consider that it would be in this boy’s interests for the time being to make orders until further order that:

   a)The child should live with his mother and spend time with his paternal grandmother;

   b)The mother and the paternal grandmother should have responsibility for decisions about the child’s day to day care, welfare and development whilst he is in their respective care;

   c)He should spend some time with his grandmother over Christmas;

   d)The father should be restrained from spending any unsupervised time with the child upon his release and the paternal grandmother should ensure that the child does not come into or remain in the presence of the child without her supervision;

   e)The father should be restrained from misuse of drugs and should undergo a chain of custody urine drug screen upon request by the Independent Children’s Lawyer; and

   f)The child should remain at (omitted) Public School.

2. I am not persuaded that the father should be required to undergo hair follicle drug testing at this stage.

3. I do not consider that there is sufficient evidence to warrant an injunction restraining the mother from calling the child by any other name.  

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  8 January 2015