Chapman and Grayson

[2014] FCCA 2400

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAPMAN & GRAYSON [2014] FCCA 2400

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – best interests of the child – drug issues – where left a residential drug rehabilitation centre – one child aged 5 years and 4 months – appointment of Independent Children’s Lawyer.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 68L

Cases cited:
Re K (1994) 17 Fam LR 537; FLC 92-461

Applicant: MS CHAPMAN

Respondent: MR GRAYSON

File Number: NCC 2066 of 2013

Judgment of: Judge Scarlett

Hearing date: 16 October 2014

Date of Last Submission: 16 October 2014

Delivered at: Newcastle

Delivered on: 16 October 2014

REPRESENTATION

Applicant: In person

Solicitor for the Respondent: Ms Dobson

Solicitors for the Respondent: Sharon Moore Solicitor

ORDERS

1. In accordance with the provisions of section 68L of the Family Law Act 1975, the interests of the child, [X], born [in] 2009 are to be independently represented by a lawyer, and Legal Aid New South Wales is requested to arrange this representation.

2. Within 14 days from the date of these orders the parties must forward to Legal Aid New South Wales in Bolton Street, Newcastle for the use of the Independent Children’s Lawyer when appointed copies of all applications, responses, affidavits and other relevant documents.

3. The Independent Children’s Lawyer is granted leave to issue up to 10 subpoenas without charge.

4. The child, [X], is to spend time with the mother for a period of two hours per fortnight at such times as may be arranged at the Children’s Contact Centre operated by Relationships Australia at [address omitted].

5. For the purposes of Order 4 above, the parties must do all things and sign all such documents as may be necessary to:

   (a)arrange an appointment for assessment for suitability for the supervision of the child, [X], with the mother;

   (b)attend the assessment;

   (c)comply with any appointments made by the contact centre for supervised time;

   (d)comply with all rules of the contact centre; and

   (e)comply with all reasonable requests and directions made by the staff at the contact centre.

6. The mother is to be responsible for any fees charged by the contact centre.

7. The mother is restrained by injunction from administering to herself any prohibited drug when spending time with the child or for 12 hours beforehand.

8. The mother is at liberty to telephone the child each Monday, Wednesday and Saturday and on Christmas Day at 6 pm when the child is not spending time with her, and the father is to make the child available for such telephone calls and is not to interfere in the child’s conversation with the mother.

9. The mother and father must provide to each other their current address and telephone numbers and advise each other of any change within 24 hours.

10. The application is adjourned to 10 February 2015 for mention only at 9.30 am.

11. The Independent Children’s Lawyer is granted liberty to apply to relist the matter on three days notice. 

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT NEWCASTLE

NCC 2066 of 2013

MS CHAPMAN

Applicant

And

MR GRAYSON

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court relate to the parties’ daughter, a little girl named [X] who was born on [omitted] 2009.  She is five years and four months old.  She has been living largely with the father since the parties separated.  There have been various interim orders which were made since these proceedings were commenced late last year.  There were interim orders made by consent on 15 October 2013, providing that [X] would live with the father, and spend time with her mother by arrangement on Wednesdays, Fridays and Sundays and other times. 

2. There were further orders made by consent on 11 December 2013, and again, 14 May.  What happened on 14 May was that the Court had become aware that the mother was to attend the [omitted] rehabilitation centre at [omitted] in Sydney which is a drug rehabilitation centre, and Orders were made providing that the child would spend time with her mother at various times while she was a participant in that program.  It transpired, however, that the mother discharged herself from the rehabilitation centre, and on 22 August this year, Judge Coakes made orders suspending the parenting orders made on 14 May, and requiring the mother to file and serve any affidavit upon which she intends to rely, both as to leaving the rehabilitation centre and her proposal as to spending supervised time with [X] by 24 September.

3. The mother’s circumstances changed in that her previous legal representation came to an end.  The solicitor filed a notice of intention to withdraw as a lawyer on 25 August, and a notice of withdrawal on 2 September 2014.  The mother has not been fortunate enough to have legal representation since that time.  The father is represented.  The mother has filed an affidavit which she affirmed on 9 October 2014.  In that affidavit she set out the reasons why she discharged herself from the rehabilitation centre, and also set out details of the history since then relating to her attempts to see the child and telephone her.

4. The circumstances are that the mother discharged herself on 21 May.  The reason that she gave was that previously her access was every second weekend for three days, but once she went to rehab her visitation was for two hours a fortnight, and she found that limitation on her time with the child was affecting rehabilitation.  She also said:

   I also was put in an uncomfortable position with one of the girls I was living with, and I was left feeling out of place, isolated and unwelcome, and given consequences for something I did not do.  I told WHOS that I did not want to stay any longer and I wanted to speak to my mother.  They finally let me call her four hours after I requested to speak to her, and my mother agreed I could live with her and continue my drug-free life at her home.

5. The mother telephoned the father that day and told him of her decision to leave the rehabilitation centre.  Over the subsequent paragraphs of her affidavit, the mother described efforts to spend time with the child, which were thwarted, and her efforts to telephone the child which were not always successful.  The father proposes the mother having time with the child otherwise than under supervision. 

6. I would indicate at this stage that reasons given by the mother discharging herself from rehabilitation in such a short time after she entered as being unsatisfactory and raised serious concerns.  As I have told the parties this morning, it is regrettable that this little girl has not, on the information given to me, seen her mother since the orders were made on 22 August or earlier, and in my view, there should be a resumption of time, but it most definitely must be under supervision, and there must be a resumption of telephone communication.  This little girl is five years of age.  She needs to speak to her mother and have some contact with her mother on a regular basis.

7. The mother has put forward a proposal that her mother be the supervisor, which has been opposed by the solicitor for the father.  I do note that the consent orders made on 14 May did provide that the maternal grandmother would be responsible for collecting and delivering the child.  But I would be reluctant at this stage to make any orders that a family member should be a supervisor.  There is a contact centre, a children’s contact centre run by Relationships Australia at [omitted], and my view is that arrangements should be made for the child to see her mother on a regular basis in the safe surroundings of the contact centre.  It is important while these proceedings are going on that the child should continue to see her other on a regular basis.  I will also be making orders in respect of telephone calls.

8. The concern arises about the drug use of the mother, which had led her to enter a drug rehabilitation program.  The concern has not been alleviated by the mother’s precipitate early withdrawal from that program.  It is for these reasons that I consider that the interests of this child should be represented on an independent basis by an independent children’s lawyer.  The circumstances appear to me to be well and truly in line with the reasons set out 20 years ago now by the Full Court of the Family Court in the decision of Re K[1], and even though the terminology under the law has changed, the principles, with respect, remain as valid as ever.  The fact that the mother is no longer represented by a lawyer is to my mind another factor that would assist the parties in reaching a resolution for this child, which would be in her best interests.

   [1] (1994) 17 Fam LR 537; FLC 92-461

9. I have taken into consideration the best interests of the child as set out in section 60CA of the Family Law Act. Section 60CC sets out the way in which a court determines what is in a child’s best interests. Primary considerations are in subsection (2) of section 60CC, and they are the most relevant and immediate matters for the court to consider on an interim basis. The Court must consider the benefit to the child of maintaining a relationship with each of her parents, but the court must also consider the need to protect the child from physical or psychological harm due to being subjected to or exposed to abuse, neglect or family violence.

10. The abuse of illicit drugs raises particular concern about the child’s safety which needs to be safeguarded.  It is not the case, however, and it has not been the case previously in this matter that there should be no contact between mother and child.  That would not benefit the child in having a relationship with her mother, which is the other matter that needs to be taken into account.  It has been put to me that a family report should be ordered at this stage.  In my view, such an order should await the appointment of an Independent Children’s Lawyer.  The Independent Children’s Lawyer may consider that the best interests of the child would warrant a different form of report or an additional report from a court expert possibly in the area of drug and alcohol abuse.  That is a matter that I think that an Independent Children’s Lawyer should consider and should consider at an early stage.

11. I will make orders for the appointment of an Independent Children’s Lawyer, for the mother to have supervised time with the children, for there to be a regular program of telephone communication.  The matter will go over to the New Year, but I will grant the Independent Children’s Lawyer liberty to relist the matter on three days notice depending on the circumstances that may arise. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  21 October 2014