Drew and Lowe

[2010] FamCA 302

FAMILY COURT OF AUSTRALIA

DREW & LOWE [2010] FamCA 302

FAMILY LAW – CHILDREN – Interim parenting orders – Where the mother has had no contact with child in over a year –Whether the mother’s failure to see her daughter has been a result of impracticality or a lack of willingness to do so – Where there is a large distance to travel and the mother has no form of transport – Where the mother is also concerned by fears of the father – Orders made to facilitate monthly visits, of eight hour duration

Family Law Act 1975 (Cth) ss 60CC, 69ZQ

APPLICANT: Mr Drew

RESPONDENT: Ms Lowe

INDEPENDENT CHILDREN’S LAWYER: Ms Lilley

FILE NUMBER: BRC 402 of 2009

DATE DELIVERED: 23 March 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 23 March 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms South of Madsen Law

SOLICITOR FOR THE RESPONDENT: Ms Kelly (by telephone) of Macdonald Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Lilley of Legal Aid Queensland

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The child, B, born … August 2007, live with the Father.

2. The child spend time and communicate with the Mother as agreed between the parties, however failing agreement as follows:

   a.on one (1) occasion each month supervised by the M Community Legal Service at M in the State of Queensland, for such period up to eight (8) hours as that Service might accommodate (either on-site or off-site) provided that the Mother provides the Father’s solicitor and the Contact Centre with at least fourteen (14) days notice of the date and times upon which she seeks to exercise her time; and

   b.that the parents share equally the costs associated with the time the child spends with the Mother in accordance with clause (a) above.

3. Within seven (7) days of the date of these Orders the Mother and Father shall register with the M Community Legal Service and do all such things as may be required by that Service to facilitate the supervised visits between the child and the Mother.

4. Neither parent shall use illicit drugs while the child is in their care.

5. Both parties shall present to a medical laboratory within twenty-four (24) hours of such a request by the Independent Children’s Lawyer to enable a sample of urine to be taken for urine testing procedures for the purpose of detecting the use of narcotics, barbiturates, benzodiazepines, amphetamines, cannabinoids and cocaine metabolites.

6. The results of the urine testing procedures be sent to the Independent Children’s Lawyer within forty-eight (48) hours of receipt of same.

IT IS ORDERED THAT:

1. Leave is grant to the Independent Children’s Lawyer to issue such subpoena as she considers appropriate prior to trial.

2. Unless otherwise ordered, leave be granted to all parties to inspect and the Independent Children’s Lawyer alone to copy documents produced pursuant to subpoena, save in respect of any document of which a claim for privilege attaches and/or in respect of which confidentiality is claimed, in which case an application is to be brought before the Honourable Justice Murphy to inspect such documents.

3. The matter be listed for directions before a Registrar on a date to be fixed but not earlier than six (6) months from today’s date, with a view to directions being made for the matter to proceed to trial, and that unless otherwise ordered by the Registrar, such hearing shall occur by telephone.

4. In the event that any of the parties contend whether by reason of the failure of time between the child and the Mother occurring in accordance with the Orders or otherwise that a directions hearing ought occur prior to that time, then the matter be listed before the Honourable Justice Murphy for further directions.

5. If Orders sought by the Mother differ from those contained in the response to the initiating application filed 12 June 2009, an amended response is to be filed within twenty-one (21) days of today’s date.

6. If Orders sought by the Father differ from those contained in the initiating application filed 16 January 2009, an amended initiating application is to be filed within twenty-one (21) days of today’s date.

IT IS FURTHER ORDERED THAT:

1. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 402 of 2009

MR DREW

Applicant

And

MS LOWE

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. I am conscious of the duties imposed upon the court, specifically in s 69ZQ of the Act, and, specifically, the principles which the court must apply in dealing with parenting issues in this court. 

2. Expressed in broad terms, they include an obligation to expedite proceedings in the interests of children and to conduct them with as little technicality and legal form as the circumstances legitimately allow. 

3. It is true, as Ms South says, that this matter has been in “the system” for some time, and indeed the matter should be determined as soon as possible.  Nevertheless, a family report from Mr P has only recently been obtained.  A report from Mr C, psychologist, has also only recently been obtained.

4. The mother seeks to make out a case that her failure to avail herself of time with the child is as a result of an incapacity to do so, (in the broad sense of that word), as distinct from an unwillingness to do so.  The father seeks to make out a case that the mother has not seen the child because of, primarily, an unwillingness to do so, or an inability to organise herself in a way so as to allow that to occur. 

5. That is, of course, not an issue that can be determined now, it being likely to be a factual issue at the trial directly related to at least one of the specific s 60CC considerations. 

6. A number of difficulties are, in any event, said to attend the mother spending time with the child, which include a significant geographic separation between where the mother lives currently and where the child is living.  Furthermore, the child is living in a relatively small western Queensland town where facilities and resources are limited. 

7. Further, the mother says that she is fearful of the father by reason of the violence perpetrated by him toward her.  It is plain on the evidence before me that she has an appropriate foundation for fear.  It is sufficient to say, for the purposes of these proceedings, that it is an uncontroversial fact that the father has been jailed for breach of a protection order. 

8. The independent children’s lawyer provides reasonably-based satisfaction that the time between the child and the mother will, within reasonable bounds, be safe from interference by the father, in any way, shape or form. It is in those circumstances that an issue is live as between the parties as to whether the inability to facilitate time is more attributable to a lack of willingness, or a lack of capacity, as opposed to the sort of practical considerations that might affect  any parent. 

9. The orders that have been put in place today, on an interim basis, attempt to maximise the time available to the mother to spend with the child, whilst at the same time taking account of practical considerations which, plainly make it difficult for the mother to exercise time. As but two examples of the latter, neither she nor her current partner drive, or apparently have access to someone who does drive.  In any event, the drive is apparently greater than three and a half hours. 

10. The only reasonable means, she says, of availing herself of time is a bus trip which would also necessitate overnight time in M, and therefore, the fortnightly time proposed at the contact centre in M by the independent children’s lawyer is, she says, simply not practical. 

11. The orders which I will make attempt to take that into account by providing for time to occur monthly, and for that time to occur for a period up to eight hours.  Ms Lilley, who appears for the independent children’s lawyer today, informs the court that inquiries made of the M Community Legal Service, who would carry out such supervision, indicate that there may be availability for that quantity of time, including time spent off site. 

12. It seems to me appropriate that the mother be given the opportunity to avail herself of such arrangements as she is able to make, so as to facilitate time between she and the child in the period leading to trial. 

13. Whilst it is true that the matter has been in the court system for some time, it is also true that, unfortunately, the mother has not had any form of contact with the child since about December 2008, when the child was about 16 months old.  She is now over two and a half. 

14. The nature of the relationship between the mother and the child, and the mother’s capacity to parent, are, on any view of the material currently before the court, likely to be significant s 60CC considerations,  relevant to the ultimate determination of the issues by the court. 

15. It seems to me that the court would be assisted in having information about each of those two matters in finally determining the child’s best interests, and the best opportunity for that to occur is to ascertain, from what data is available, information about those topics, which can only reasonably occur if there is time spent between the child and her mother. 

16. Accordingly, on balance, I propose to forestall the trial of this action for a period of approximately six months, so as to avail the mother of the opportunity to spend time with the child, in accordance with the interim orders earlier foreshadowed. 

17. I will, then, make orders for time and other orders in accordance with the minutes handed up by the ICL, as amended by me in the manner earlier indicated. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  21 April 2010