Chase and Moseley

[2014] FCCA 2073

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHASE & MOSELEY [2014] FCCA 2073

Catchwords:
FAMILY LAW – Children – parenting – parenting orders – interim orders – best interests of the child – meaningful relationship with both parents – need to protect child from harm – allegations of drug abuse – whether child’s time with either parent should be supervised – whether unacceptable risk to child – whether mother should only spend time with child at a contact centre – appointment of court expert to provide a report.

PRACTICE AND PROCEDURE – Application under Family Law Act 1975 (Cth) s.121 to provide copies of affidavits to police – application refused.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 68B, 68C, 121

Federal Circuit Court Rules 2001, r.15.09

Applicant: MR CHASE

Respondent: MS MOSELEY

File Number: SYC 2122 of 2014

Judgment of: Judge Scarlett

Hearing date: 2 September 2014

Date of Last Submission: 2 September 2014

Delivered at: Sydney

Delivered on: 3 September 2014

REPRESENTATION

Solicitor for the Applicant: Mr Sampson

Solicitors for the Applicant: McDonnell Schroder

Solicitor for the Respondent: Mr Jurd

Solicitors for the Respondent: Peter Jurd Lawyer

Independent Children's Lawyer: Ms Coady

Solicitors for the Independent Children's Lawyer: Louise Coady Family Lawyers

ORDERS

UNTIL FURTHER ORDER

1. All earlier parenting Orders are discharged.

2. The Applicant father and the Respondent mother are to have equal shared parental responsibility for the child [X] born [omitted] 2009;

3. The child [X] is to live with the father.

4. The mother is to spend time with the child from immediately after pre-school each Wednesday until the commencement of pre-school on Friday morning.

5. The mother is to provide to the father her current mobile telephone number within two (2) days of the date of these Orders.

6. The father and the mother must each undertake hair follicle broad spectrum drug testing using Forensic Science SA, Forensic Science Centre, 21 Divell Place, Adelaide, South Australia, 5000 with collection and dispatching of the sample to be carried out forthwith by a general medical practitioner in accordance with the chain of custody requirements specified by Forensic Science SA and the father and the mother must each furnish the results of such testing forthwith upon receipt him and her respectively to the Independent Children’s Lawyer and the other party’s solicitor.

7. The father and the mother must each submit to urinalysis under supervision and chain of custody upon request by the Independent Children’s Lawyer with such testing to occur within twenty-four (24) hours of the request having been made and the urinalysis is to be conducted in accordance with the Australian/New Zealand Standard 4308:2008: Procedure for the collection, detection and quantitation of drugs of abuse in urine.

8. The Independent Children’s Lawyer is to communicate requests for urinalysis to each party by telephoning or sending a telephone text message to each party on their respective mobile telephone or the telephone number of the party’s solicitor and a request is to include any voicemail message left on a party’s telephone number and such requests are to occur no more frequently than once every twenty-one (21) days.

9. The father and the mother must forward the urinalysis drug test results to the Independent Children’s Lawyer and the solicitor for the other party within forty-eight (48) hours of receipt of the results.

10. Each party must pay their own costs associated with hair follicle and urinalysis drug testing.

11. The father and the mother are restrained by injunction from administering to themselves any illicit drug or consuming any alcoholic drink at any time when the child [X] is in their care in accordance with these Orders or for a period of twelve (12) hours beforehand.

12. Each party must ensure that the child [X] continues to attend pre-school at [L] School on every day when the child is enrolled to attend and is well enough to do so.

13. The mother is restrained from allowing the child [X] from coming into contact with MR W.

14. Each party is restrained by injunction from criticising or denigrating or using any abusive or insulting language towards the other party or any members of the other party’s immediate family in the presence or hearing of the child or permitting any third person to do so.

15. As provided by section 11F of the Family Law Act 1975 the parties and the child [X] are to attend a child inclusive child dispute conference with a Family Consultant at a time, date and place specified by the Director of Child Dispute Services at the Sydney Registry of the Court and in accordance with section 11C of the Family Law Act the conference is to be reportable.

16. In accordance with the provisions of Rule 15.09 MR A psychologist is appointed as court expert to inquire into and report on matters relating to the best interests of the child [X] born [omitted] 2009 including the nature of the relationship of the child with each of the child’s parents and other persons including the child’s siblings and grandparents.

17. The parties are to share equally in the cost of preparation of the court expert report subject to availability of funding from Legal Aid New South Wales.

18. The Independent Children’s Lawyer is granted leave to issue a further ten (10) subpoenas without charge or further leave of the Court.

19. The Independent Children’s Lawyer is granted liberty to apply on five (5) days’ notice.  

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2122 of 2014

MR CHASE

Applicant

And

MS MOSELEY

Respondent

REASONS FOR JUDGMENT

Application

1. There are competing applications for interim orders before the Court. The moving party is the Applicant father. The matter was brought back before the Court on the application of the father as a result of an unfortunate incident, said to have happened recently, which involves a degree of acrimony between the parents of this little girl, [X], who was born on [omitted] 2009. The situation is that there is a high degree of conflict between the parents. Each parent makes allegations against the other as to their behaviour, as to their drug use, and, in certain circumstances, as to abuse of alcohol and general submissions as to the lack of fitness of the other party to be a parent of the child.

Background

1. The little girl herself is currently living with the father, and there were interim orders made to that effect a short while ago, on 11 April this year. It is conceded between the parties that the mother has not seen this child for approximately two months. She, the child, does attend preschool, which is conducted in the grounds of the [L] School, where one of her two half-siblings attends, a girl aged ten years (born on [omitted] 2003). She is in a position where, when she goes to preschool, she can see one of her half-sisters but not the other, nor does she see her mother.  

Submissions

1. The father has taken a firm line, and the thrust of his submissions to the Court is that the mother’s time with the child should be supervised. He seeks orders requiring that the parties do all things necessary to enrol at the [B] Children’s Contact Service so that the mother may spend time with the child at the Contact Centre.

2. The difficulty with this proposal, and this was a matter adverted to by Ms Coady, the Independent Children’s Lawyer, is that on the information available to the Court at the moment, both from the father’s solicitor and the Independent Children’s Lawyer herself, it could well be a further period of three months before such arrangements could be put into place, which would have the consequence that the mother and the child by that time would not have spent any time together for a period of five months.

3. The Independent Children’s Lawyer has some concerns about that and, in my view, justifiably so. The father seeks orders relating to drug testing. He is of the view that the mother’s involvement with illicit drugs constitutes a serious hindrance to her ability as a parent, and he seeks orders that the mother should undertake both hair follicle broad-spectrum drug testing and supervised chain of custody urinalysis testing. Mr Jurd, who appeared for the mother, submitted that his client would agree to such testing provided that the father also agreed to such testing. This is not a matter with which the father has concern, and it was indicated through Mr Sampson, who appeared for him, that the father would agree to mutual drug testing orders.

4. However, that is where the mutuality ends. The father seeks a section 68B[1] injunction for the personal protection of the child, restraining the mother from approaching, communicating with, or remaining in the presence of the child unless the child is at the [B] Children’s Contact Service. In consequence of that he seeks an order under section 68C of the Family Law Act 1975 (Cth) permitting a police officer to arrest the mother if the officer believes on reasonable grounds that the mother has not complied with the injunctive order.

   [1] i.e. section 68B of the Family Law Act 1975 (Cth)

5. Interestingly, he also seeks an order under s.121 of the Family Law Act 1975 granting him leave to provide copies of certain affidavits to the New South Wales Police Integrity Unit and the Commissioner of the New South Wales Police. The father is of the view that he is, or has been, unfairly targeted by the police and that in some way that is at the instigation of the mother.

6. The Independent Children’s Lawyer, it is fair to say, has not supported the father’s proposal. Ms Coady raised concerns that if there were such allegations of matters such as violent and abusive behaviour or illicit drug use, why one parent’s time with the child should be supervised and not the other.  Ms Coady is also of a view that there is an issue between the parties as to who has been the child’s primary caregiver, at least until the events of the last few months.

7. In that regard, she has submitted, I think with some justification, that notwithstanding the relatively young age of the child, not yet of school age, the parties should attend a Child Inclusive Child Dispute Conference with a Family Consultant so that the Court could obtain an early indication of the strength of the attachment between the child and each parent.  It is also significant that the child has relationships with grandparents, particularly grandmothers, and one of the concerns is that the father, on a Saturday, is involved in playing [sport omitted]. That is not a point of criticism in itself, far from it, but it would certainly mean that he was not available for a significant part of the day to spend time with the child.

8. The Independent Children’s Lawyer has raised with the Court the need for a Court Expert report under rule 15.09, and has suggested a psychologist, Mr A, who could provide a report. His fees, she has indicated, are significantly less expensive than those of other practitioners who regularly provide services to the Court. Ms Coady informed the Court, and I have no reason to doubt her word that she had, in her capacity as an experienced independent children’s lawyer in the past, made use of the services of Mr A, and, as a psychologist, has found him to be of significant value and integrity.

9. There is a question as to the availability of funding. The Independent Children’s Lawyer is funded by the Legal Aid Commission of New South Wales, as is one of the parties.

10. I indicated to the parties’ lawyers yesterday that I was reluctant to make an order, or a set of orders, on the spot, as I considered the issues to be complex and troubling. It is all too easy for a court, faced with the requirement for speedy resolution of matters, be they interim or final, to act in haste. Whilst speed is valuable, it is more important for a court to make a considered and appropriate judgment, especially when one is dealing with best interests of a child.

Applications for Parenting Orders

1. It remains the fact that under section 60CA of the Family Law Act 1975, a court, when contemplating making parenting orders, must regard the best interests of the child as the paramount consideration. The Court must consider the objects and principles of the Family Law Act 1975 as set out in s.60B of the Act.

2. In addition to considering the best interests of the child, and as a way of ascertaining what the best interests of the child are, the Court must have regard to the provisions of s.60CC of the Act, particularly the primary considerations set out in subsection (2) and the additional considerations set out in subsection (3). The primary considerations include a balancing between the need to ensure that the child is able to have a meaningful relationship with each parent on the one hand, and the need to protect the child from physical or psychological harm from being exposed to abuse, neglect, or family violence. This balancing act is often difficult for a court, and in this particular case I believe it needs to be done with some care.

3. The Court must also consider the additional considerations set out in subsection 60CC(3), insofar as they are relevant. I have done so.

4. These are interim proceedings. The Court is required to consider the question of parental responsibility under s.61DA of the Family Law Act 1975. I have done that. The Court is required, if it makes an order that there should be equal shared parental responsibility, to consider whether it is in the best interests of the child and reasonably practicable, under s.65DAA, to order that the child should spend equal time with each parent, or, if that is not in the child’s best interests or reasonably practicable, to consider substantial and significant time.

5. There is, of course, in s.61DA, subsection (3) that deals specifically with proceedings where the court is making an interim order. I have had regard to that, and I have had regard to the presumption contained in subsection (1), although I would have to say that the allegations of violence or otherwise bad behaviour, and I stress that they are allegations, have caused me some concern in this regard. The Court needs to have more information in order to arrive at final orders which will meet this child’s best interests.

Conclusions

1. I am not persuaded that the draconian orders sought by the father, limiting the mother’s contact with the child to supervised contact at a contact centre, which would necessarily be delayed for a further period of three months, are in this little girl’s best interests. She is not yet five years old. She is not yet of school age, and there would be serious concerns about her bonding and attachment even at this age. There are also issues about her relationships with her half-siblings, although it is a fact that one child does attend the same school at the location of the preschool where the child goes on Wednesdays, Thursdays and Fridays.

2. I am of the view that, at this stage, the Court should institute an interim regime where this child spends some time with her mother, but still lives primarily with her father. Changeovers should not be face to face due to the acrimony between the parents, but should be done through the preschool, which would lessen the likelihood of there being unfortunate confrontations between the parents, which would be distressing to the child, and, I might add, lead to the possibility of distress to other children attending the preschool.

3. I am of a view that each parent should undergo the appropriate testing for detecting the presence of illicit drugs in their bloodstream or urine, and this Court takes seriously the need to protect the child from parents who are unable to parent their child effectively due to being affected by illicit drugs. In my view, the proper person to dictate when either parent attends those testing opportunities should be the Independent Children’s Lawyer.

4. I am also of a view that this child should attend, and continue to attend, preschool. She is there for three days per week for socialisation. It will give her an opportunity to spend time with other children including her half-sister.

5. I propose to order that the parties are to attend a Child Inclusive Child Dispute Conference, as proposed by the Independent Children’s Lawyer.

6. I also intend to appoint Mr A, the psychologist, as Court Expert under rule 15.09, subject to the concerns that have been raised about funding, but I will give the Independent Children’s Lawyer liberty to apply on five says’ notice if that, or anything else, is going to be an issue.

7. I have considered, but I have decided not to accede to, the father’s application for a section 68B injunction and the corresponding order under section 68C.

8. I have also considered, but I have decided not to accede to, the application under s.121 of the Act to provide copies of affidavit material to the New South Wales Police Integrity Unit and the Commissioner of the New South Wales Police. I would say that if an issue arises whereby the Commissioner of Police, or, or possibly more particularly, the Police Integrity Unit consider that this material would be of assistance to them in their inquiries, then a request should come from the Police or the Integrity Unit. The Court will certainly cooperate with official bodies that are responsible for maintaining the administration of justice or ensuring the integrity of the police, whether State or Federal.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  8 September 2014