Earling and Bartlett - [2011] FMCAfam 748

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EARLING & BARTLETT

[2011] FMCAfam 748

FAMILY LAW – Interim parenting orders.

Family Law Act1975 (Cth), ss.60B, 60CC, 61DA, 65DAA, 62G(2), 65CA, 65DA(2), 65DAC
Federal Magistrates Court Rules 2001, r.21.15

Goode & Goode (2006) FamCA 1346

Applicant:

MS EARLING

Respondent:

MR BARTLETT

File Number:

DGC 479 of 2011

Judgment of:

Phipps FM

Hearing date:

14 April 2011

Date of Last Submission:

14 April 2011

Delivered at:

Dandenong

Delivered on:

14 April 2011

REPRESENTATION

Solicitor for the Applicant:

Ms Hughes

Solicitors for the Applicant:

Warren Graham & Murphy

The Respondent:

Appearing on their own behalf via telephone link

Counsel for the Independent Children’s Lawyer:

Ms Elleray

Solicitors for the Independent Children’s Lawyer:

Robert Halliday & Associates

ORDERS

The children X born (omitted) 2006, Y born (omitted) 2008 and Z born (omitted) 2010 live with the applicant mother.
The respondent and the applicant do all acts and things necessary for the return of the children X born (omitted) 2006 and Y born (omitted) 2008 to the mother from Tasmania where they currently reside, including but not limited to the following :
(a)The respondent to make the children available from the appropriate departure lounge at (omitted) Airport on 18 April 2011 or/on such other date and at a time nominated by the mother to the respondent by SMS text message;
(b)That the applicant purchase flights for herself and the said children for the purposes of paragraph 2(a) above and the applicant travel with the children on the return flight.
The Respondent spend time with and communicate with the children as follows:
(a)For seven consecutive days between 20 June and 27 June 2011 or such other times as agreed in writing;
(b)For a minimum of two days as agreed between the parties on the days preceding and/or subsequent to the interviews or the family report said time to occur in Melbourne;
(c)By telephone Mondays, Wednesday and Saturdays between 4.30pm-5.30pm with the Respondent to place the call to the mother’s mobile (omitted) and the mother to facilitate the children speaking with the respondent.
For the purpose of 3(a) herein the Respondent shall no less than fourteen days prior to travelling provide to the mother confirmation of the purchase of airline tickets for himself and the children to travel from Melbourne Airport to Tasmania and the mother arrange appropriate flights or ship travel back from Tasmania for herself and the children at the conclusion of time.
The applicant mother do all things necessary to forthwith provide to the Independent Children’s Lawyer written proof of the following;
(a)Leave arrangements and any conditions thereto relating to her accommodation and information regarding her housing officer(s);
(b)The identity of the mothers support workers and any other allied health professionals engaged by her for herself and the children;
(c)Details of paediatrician appointments for both children including reports as to each child’s physical and mental health.
The father provide to the mother and the Independent Children’s Lawyer forthwith all details of the names of the children’s treating medical professionals in Tasmania and prescriptions for any medications (if any) that have been prescribed for the children.
The mother be and is hereby restrained by injunction from gambling including but not limited to poker machines and bingo.
The respondent be and is hereby restrained by injunction from using illicit substances including marijuana for a period of 48 hours prior to and during any time spent with the children or either of them.
The father undergo supervised urine drug screens within 24 hours of notification of a request for same from the Independent Children’s Lawyer and provide the results of said screening to the mother’s solicitor and the Independent Children’s Lawyer.
That paragraph 2 of the orders dated the 4 April 2011 be varied to add the name Z born (omitted) 2010 and that there be the usual order requesting Victoria Legal Aid fund the appointment of an Independent Children’s Lawyer for that child.
Each of the respondent and the applicant do all acts and things to undertake paternity testing (DNA) for the child Z born (omitted) 2010 with a facility nominated by the Independent Children’s Lawyer in each respective state with each of the respondent and the applicant being responsible for their own costs and if applicable, the respondent and applicant approach Legal Aid with a request to assist in funding.
Leave be granted to the Independent Children’s Lawyer to issue in excess of five subpoenas for the purposes of the ongoing proceedings.
Pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for each party to employ an advocate.
The parties amend such application and response to include Mr S the father of X born (omitted) 2006 and cause said Mr S to be served with all documents filed to date and the Independent Children’s Lawyer ensure that Mr S is served with a copy of all orders filed to date.
Pursuant to S.62G(2) of the Family Law Act1975 (Cth) the parties and children X born (omitted) 2006, Y born (omitted) 2008 and Z born (omitted) 2010 attend upon a Family Consultant nominated by the Director of Child Dispute Services in the Dandenong Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties. ‌
The parties to comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the Family Consultant. Such report to be released prior to the next hearing.
The Family Report to deal with the following matters:
(a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;
(b)the matters set out in SS.60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth); and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.
The Family Consultant has leave to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to at least one party or the Independent Children’s Lawyer (if applicable) in this matter.
The parties, their servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other party; and
(b)discussing these proceedings,
to, with or in the presence or hearing of the said children (or any of them), and from permitting any other person to do so.

The matter be adjourned for Mention to consider the Family Report on 9 August 2011 at 10.00am in the Federal Magistrates Court of Australia at Dandenong.

AND THE COURT NOTES:

Pursuant to S.65DA(2) of the Family Law Act1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DANDENONG

DGC 479 of 2011

MS EARLING

Applicant

And

MR BARTLETT

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

The applicant mother, in this case Ms Earling, applies for an order that two children, X born (omitted) 2006 and Y born (omitted) 2008, be returned to her. She applies for a recovery order.
The brief history of the relationship is that the parties lived together in Tasmania from March 2007 until October 2008 or 2009. The respondent father, Mr Bartlett, is the biological father of Y. He is not the biological father of X. The mother, in her affidavit, says she does not know who X’s father is and so Mr Bartlett has been X’s stepfather and the only father he knew given that he was born in (omitted) 2006 and his mother started living with the father in March 2007 when he was just a few months old.
The mother has three other children. They are B, born (omitted) 2003, A born (omitted) 2004 and Z born (omitted) 2010. Only Z lives with the mother. B lives with the mother’s father that is B’s paternal grandfather, and A lives with her father. The mother, following separation, went to South Australia and then in March 2010 she moved to Queensland and she says that was because her mother was suffering from cancer. In January this year, she moved back to (omitted) Victoria and now lives with her stepfather.
She says that she moved back to Victoria after the floods in Queensland because she could find nowhere to live. After she returned, she contacted the father and arranged for the two children, X and Y, to go and live with him. Both parties agree that that was on a temporary basis and the father collected them at the Melbourne airport on 21 January 2011. In February, in a telephone call, the father told the mother that he was intending to keep the two boys and hence the mother commenced these proceedings on 19 February 2011.
The mother’s material is the application in her affidavit filed on 19 February 2011 and a further affidavit filed on 12 April 2011. The father’s material is his response and affidavit filed on 11 March 2011 and an affidavit by his mother, Mrs Bartlett, on 25 March 2011. The first court date was 4 April 2011 and on that date I made no orders other than an order for the appointment of an Independent Children’s Lawyer and an adjournment until today. The father is unrepresented and I have already dealt with an application for an adjournment in which I have given the history of the reasons why he is currently unrepresented and why he has not yet received a grant of legal aid.
The father gives his reason for changing his mind about the children being returned as the condition the children were in when they came to him and information that he has received, he says, from a Ms J in Queensland, about the mother’s situation in Queensland. He says he has been told that the mother was given notice to leave her premises in Queensland probably because of non payment of rent and he alleges, in his submissions, that the floods in Queensland are a convenient excuse for the mother saying she had to come to Victoria.
He says in his material that when the parties were together, the mother stayed out late at night and that she gambled on poker machines and gambled to excess so that the parties could become short of money. He says, which the mother acknowledges, that child protection authorities in South Australia and Queensland have been involved with her. Ms Hughes, on her behalf, makes the point that the children have not been removed from her care.
The mother acknowledges that she would play poker machines on pay night. She says she was a night owl and would sometimes stay up until 2.00am or 3.00am in the morning. The father alleges that the properties they lived in were dirty and untidy. He describes them as trashed. The mother acknowledges that having a number of children meant that the house was not always tidy but she denies that it was dirty and that she left nappies and rubbish around. The father says she used her younger sister as a babysitter which the mother acknowledges.
The mother, in her affidavit, says that when they were together the respondent used marijuana on a frequent basis and she says she saw him use speed once. The father, in his affidavit, acknowledges that he has used marijuana and is still using marijuana and he is trying to cease. There is no material before me which suggests that the mother is a user of marijuana or any other form of drug.
The father’s current situation is he is living with his fiancée and her two children, who are two and four, and they are living in a two-bedroom apartment in Tasmania. It has an outside area. They have a number of pets so there are four young boys together in a two-bedroom apartment. He has enrolled X in a kindergarten. When X came to him, he was told by the mother that he was suffering from Attention Deficit Hyperactive Disorder, had been prescribed medication and he was given the prescription for the medication. He had some difficulty filling it in Tasmania but he did and he says that he has since taken X to a paediatrician and there has been a referral to a psychologist. The paediatrician does not consider X is suffering from Attention Deficit Hyperactive Disorder. The father says he has ceased giving him the medication and he says X’s behaviour has improved.
Both the father and his mother, in their affidavits, say that the children’s behaviour was bad when they first came. They were ill-disciplined but with some persistence that has ceased. They both had head lice, the father says, and the head lice had to be treated. He said when he picked them up they only had the clothes they were standing up in and a suitcase with perhaps a doona in it.
He says when they first came to Tasmania they were surprised when he put them in pyjamas. They told him they slept in their clothes. When he went to brush their teeth, they resisted because it wasn’t something they had experienced before. He says they were ill-behaved in the sense that they jumped on furniture and jumped off bunks. His mother corroborates those matters in her affidavit. So in summary, what the father says is that he decided not to return the children because of his concerns about the mother’s care for the children and the mother’s living arrangements.
One of the things that concerned me on 4 April 2011 was that the mother said at that stage she was living with her stepfather and her three younger sisters and she was living with her younger child. She had one bedroom for herself and the child. She has now filed a further affidavit in which she shows that she has a three bedroom house provided by the Department of Human Services and it is put on her behalf by Ms Hughes, that in the Department of Services house she will be monitored. She has had a referral to a welfare organisation and has a case worker and she intends to obtain an order to exclude her from gaming and gambling premises, although she denies a necessity for that being done.
I must apply the provisions of the Family Law Act1975 (Cth) and the pathway that I must follow through the legislation is described by the Full Court of the Family Court of Australia in Goode & Goode (2006) FamCA 1346. The competing proposals of the parties are the mother’s proposal for the children live with her in Victoria. The father’s proposal is for the children to live with him in Tasmania. Neither puts any specific proposal for time with the other parent.
The issues in dispute in the hearing are largely identified already and that is the mother’s ability to properly care for the children given what is alleged about the past history. The agreed or uncontested facts are the history I have described. A significant one is the children went to live with their father by agreement. It is also a matter of agreement that he did not see the children for 18 months from separation in October/November 2009 until January 2011. The father says that he made attempts to obtain legal aid so that he could do something about seeing the children but he was unable to get legal aid.
The Full Court’s pathway through the legislation then refers to the best interest considerations in s.60CC. Before I turn to those in this case, I can deal relatively briefly with the presumption of equal shared parental responsibility in s.61DA. Neither party makes submissions and in practical terms, no real consequences could follow from it but I am obliged to consider whether it should be applied. Section 61DA contains a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility.
It can be rebutted and the presumption applies in interim proceedings unless the court thinks it is inappropriate to apply it. I consider it is inappropriate to apply it in this application for these reasons. The mother alleges a history of family violence by the father against her. The father denies the history of family violence. The presumption is rebutted if there are reasonable grounds to believe there is family violence. There are the allegation and denial. I cannot make any decision about whether that is true or not. It is not possible to determine whether or not there are reasonable grounds to believe there has been family violence.
The presumption can also be rebutted if the evidence satisfies the court that it is not in the best interests of the children to apply that presumption. At this interim hearing there is not sufficient evidence before the court to determine one way or the other whether it is in the best interests of the children to apply the presumption. The effect of applying the presumption is that there is an order for equal shared parental responsibility. That means that under s.65DAC the parties have to consult and reach agreement on long-term matters.
The relevant ones here, at the moment, being education, the health of the children, significant health matters and significant relocation issues. They cannot agree on location. It is apparent from the material that there is a dispute between them on health issues, that is, whether X is suffering from Attention Deficit Hyperactive Disorder. It may well be that it is not in the children’s best interests for there to be equal shared parental responsibility in this case. I cannot determine that so I do not apply the presumption in the interim hearing.
I therefore have to turn to s.60CA which says the best interests of the children are paramount. I must bear in mind the objects of Part 7 of the Family Law Act 1975 (Cth) contained in s.60B and I then have to consider the best interests considerations in s.60CC. The primary consideration is the benefit of the children having a meaningful relationship with both of the children’s parents. The difficulty with that is the distance the parties are apart. Neither has much in the way of financial resources so at the moment while the children are having a meaningful relationship with their father, they are not having a meaningful relationship with their mother. They are having no relationship at all with her. It is more the other considerations which are relevant here.
The second of the primary considerations is the need to protect the children from physical and psychological harm. The father raises this consideration as one issue in the matters which I have referred to. I can deal with the evidence in relation to that issue with the additional consideration of the capacity of each of the child’s parents to provide for the needs of the children. The father’s case is that he is providing adequately for the care of the children. He sets out in detail what he is doing with them. He says what he has observed and what he has been told shows that the mother does not have the capacity to care for each of the children.
There are some independent indicators of the mother’s difficulties in caring for the children. There are changes in residence. She moved from Tasmania to South Australia. She then moved from South Australia to Queensland. She moved from Queensland to Victoria in circumstances where she did not have a residence so she had to move in with her stepfather. She moved to Victoria in circumstances where, it seems clear enough, she felt she could not care for the two children because she arranged with the father for him to care for the children. The mother’s explanation of how the two older children came to live with other people, suggests that she was having difficulty coping with those children.

Ms Hughes for the mother submits on her behalf that she now has a residence in (omitted) and she will be closely monitored, not only through the process of these proceedings but by presence of welfare agencies, including Department of Human Services, who are providing the accommodation. So that is the evidence about the capacity of each of the child’s’ parents to care for the children.
In this interim hearing, it appears to me that the father is showing a capacity to care for the children but the shortcomings in that are the crowded nature of where he is living, the use of marijuana is a matter of concern and although he says he made attempts to obtain legal assistance to see the children he did not do so following separation. The matters he now raises as a concern of the mother are matters which, on his material, he knew about when they were living together. That is the gambling and the poor housekeeping and poor care for the children.
On balance, for the purpose of the interim hearing, I consider that both parents are showing a capacity to provide for the day to day care, including the intellectual needs of the children. I am prepared to accept that for the moment because the mother will be monitored. The father, because that is what he is doing at the moment.
If I move to the other additional considerations I have no material about any views expressed by the children except what is contained in the affidavits which I do not consider I can act upon.
The second is the nature of the relationship with the children with each of the child’s parents. The mother is undoubtedly their primary carer. The children lived with her until 21 January 2011 and from October/November 2009 until January solely with the mother. They have now established a relationship with their father who has been caring for them but with the help of his fiancee who he acknowledges, is 22. The children have a younger sibling who they have lived with all of that child’s life and they are now separated from that younger sibling. It would seem they have had little, if any, contact with their older sibling but the major consideration under nature of the relationship of the children is that the mother has been their primary carer.
Next is the willingness and ability of each of the child’s parents to facilitate a relationship with the other parent. It is clear the mother has made little attempt to do that until she contacted the father in January, out of necessity. Next, is the likely effect of any change in the children’s circumstances. If they move from their current situation back to their mother they will be going back to their primary carer although living in geographically different circumstances to where they had been with their mother. Next is the practical difficulty and expense of spending time. That exists because of where the parties live. There is the family violence issue I have referred to but I cannot make any decision about it.
I set out the competing proposals at the commencement. The Independent Children’s Lawyer supports the mother’s proposal but describes it as a finally balanced case. From the submissions made by Ms E, I gleaned that what the Independent Children’s Lawyer sees as important is for the children to be living with their mother in monitored circumstances so an assessment can be made of her ability to care for the children. The basis for that submission is clear, from what I have already said, that is the mother’s history, insofar as it is not disputed.
I am persuaded, on balance that it is in the best interests of the children to return to their mother’s care on an interim basis. The significant consideration is that she has been their primary carer so their primary attachment has been to their mother. It may ultimately appear, when reports have been obtained and more evidence is before the court, that what the father says about the mother’s lack of ability to care for the children is correct, but that decision to remove the children from their primary carer needs to be made after a full investigation and not made on this interim hearing unless it is clearly the case that that should be so.
As I have said, for the purpose of this interim hearing, I find, that at least in the interim, the mother will be able to provide adequate care because she will be monitored and assisted by professional agencies. So the order I propose to make is for the return of the children to the mother. The mother, through Mr Hughes, has said that she can collect the children from Tasmania. There will need to be some orders about reports and similar things. I think the best thing I can do at the moment is, given that Mr Bartlett is appearing by telephone, is to leave the court and leave the telephone line open to allow Ms E, in particular, to have some discussions between Mr Bartlett and Ms Hughes about particular details of what might occur. It is possible there may need to be orders made for the children to spend time with their father. Costs will be a problem but the obvious way is for them to travel back and forth to Tasmania.
RECORDED : NOT TRANSCRIBED
I will make interim orders which will incorporate the orders I foreshadowed when I gave my reasons this morning and the other matters which are put forward by Ms E for the Independent Children’s Lawyer to deal with the father’s time with the children, the joining of X’s biological father, which is a necessary provision, for obtaining various reports, a restraint on the mother from gambling, restraint on the father from using illicit substances for a period of 48 hours prior to any time spent with the children, supervised drug urine tests and a DNA test for Z.
RECORDED : NOT TRANSCRIBED
I make all those orders and adjourn it for mention on 9 August 2011 to consider the family report.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Phipps FM

Date: 2 May 2011