Eastbrook & Pelmar

[2021] FCCA 1702

FEDERAL CIRCUIT COURT OF AUSTRALIA

Eastbrook & Pelmar [2021] FCCA 1702

File number:	ADC 1749 of 2020
Judgment of:	JUDGE YOUNG
Date of judgment:	21 May 2021
Catchwords:	FAMILY LAW – parenting – concerning a child who is two years old – whether the parents should have equal shared care arrangements for the child – where the child lives with the father and spends time with the mother – where there is evidence that the father overdosed on illicit substances while supervising the child’s time with the mother – where there is evidence both parents are using illicit substances – Court not satisfied it is appropriate to make an order for equal shared care arrangements – Order for the Minister to intervene in the proceedings pursuant to s 91B of the Family Law Act 1975 (Cth).
Legislation:	Family Law Act 1975 (Cth) s 91B
Number of paragraphs:	8
Date of hearing:	21 May 2021
Place:	Adelaide
Solicitor for the Applicant:	Ms Purdie of Purdie Legal
Counsel for the Respondent:	Mr Robinson
Solicitor for the Respondent:	Pascale Legal Barristers & Solicitors
Solicitor for the Independent Children's Lawyer:	Ms Derewlany of Legal Services Commission of South Australia

ORDERS

ADC 1749 of 2020

BETWEEN:

MR EASTBROOK

Applicant

AND:

MS PELMAR

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	21 MAY 2021

UPON NOTING:

A.That an updated Family Report has been ordered to be released by 31 August 2021;

B.That trial dates have been allocated on the 22, 23 & 24 November 2021.

THE COURT ORDERS:

1.That pursuant to Section 91B of the Family Law Act 1975 the Minister for the Department for Child Protection be invited to intervene in these proceedings and provide a report to the Court as soon as practicable.

2.That the Independent Children’s lawyer have leave to provide relevant documents from the Court file to the Department of Child Protection for the purposes of such a report.

3.That the applications in a case filed by the father on 11 March 2021 and the mother on 7 May 2021 be dismissed.

4.That the interim hearing on 26 May 2021 at 2.15pm be vacated.

5.That the matter be adjourned to 17 September 2021 at 9.30am for further directions.

6.That the Independent Children’s Lawyer have liberty to apply for further orders.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is a parenting matter concerning a child, X, who is two years old.  She turned two in 2020.  She is therefore an extremely vulnerable child. 

2. In May 2020, orders were made that the child should live with the father on the condition that he lived in the home with the paternal grandfather. 

3. The evidence at that stage was that the father was a former heroin user and he had taken some very significant steps on the path of rehabilitation and/or cure.  There was material before me that he was on a methadone program and he was abstinent from heroin. He appeared to be doing quite well. At that same stage, there was clear evidence the mother’s heroin use continued. It was alleged that she had, on at least one occasion, and perhaps on multiple occasions, overdosed on heroin.  This was said to have occurred in late 2019 to early 2020.

4. Those orders made in May 2020 have remained in place. However, it is clear from recent events that those orders are no longer appropriate and no longer fit the reality of the situation. What precipitated the matter being brought back on was an Application in a Case filed by the mother where she asserted (correctly, as it appears) that the father had overdosed on heroin in the toilets at or near B Play Centre. This is said to have occurred while the child was spending time with the mother, supervised by the father. The mother said, in those circumstances, that the child should live with her.  As it was clear, she asserted that the father had fallen off his path of rehabilitation and was using heroin again. 

5. The father’s affidavit, filed shortly after that, essentially agrees with what the mother has asserted – namely, that he did take heroin while the child was in his care. He said that what had happened during the child’s supervised time with the mother was that the mother had left to obtain heroin. One might suspect that the mother leaving was entirely with his approval. He says she then came back a short time later having injected herself and leaving some heroin, presumably in the syringe, for him to use. He injected the remainder of the heroin and collapsed and became unconscious.  The mother’s affidavit does not say anything about that.

6. I do know from reading the materials that both parents at different times appear to have returned a mixture of positive and negative urine tests.  They are, however, urine tests meaning their measure is only of a relatively short period of time.  It appears that in April 2021, the mother returned a positive urine test for amphetamines, methamphetamine, benzodiazepine and opiates. As I read the annexure to the father’s most recent affidavit, he also returned a positive urine test, around April 2021, for opiates, cannabis, and benzodiazepine, which may have been a prescription. It is not clear.

7. The circumstances of this case are that there is abundant evidence that neither parent is compliant with a methadone program, neither parent is abstinent from heroin (assuming the opiates readings for the urine tests relate to heroin), neither parent is abstinent from illicit drugs, and both parents appear to be sharing illicit drugs. 

8. It is not to be contemplated that this Court could make an order of the kind advanced today by both parties – that is for shared care of this child who is two years old. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       26 July 2021