Eastick & Burrows

Case [2021] FamCA 458

FAMILY COURT OF AUSTRALIA

Eastick & Burrows [2021] FamCA 458

File number(s): MLC 11087 of 2014
Judgment of: BENNETT J
Date of judgment: 12 July 2021
Catchwords:

FAMILY LAW – INTERIM PARENTING – where children aged eleven and ten years had resided in primary care of the mother from separation until she was found to be addicted to illicit drugs and to abuse alcohol – where primary residence for children was changed to father and the mother had time with children supervised by the maternal grandmother – where private family report and psychiatric assessment were ordered in anticipation of final hearing.

FAMILY LAW – INTERIM PARENTING – where court listed matter for urgent hearing of its own volition following publication of private family report in which report writer opined that the children needed to be protected from the mother – where the private family report writer and psychiatrist who assessed both parents each recommended a moratorium of six months on direct contact between children and mother – where mother’s time and communication with children was suspended subject to mother having an opportunity to cross examine single experts on interim suspension of time.

FAMILY LAW – INTERIM PARENTING – where time and communication between mother and children suspended on an interim basis – where sole parental responsibility granted to father on an interim basis.

FAMILY LAW – INJUNCTIONS – where mother required to undergo tests for detection of use by her of illicit drugs and alcohol abuse notwithstanding that mother is not having any direct contact with the children nor exercising parental responsibility – where injunction for the welfare of child pursuant to s68B considered.

FAMILY LAW – PRACTICE AND PROCEDURE – where court omitted to consider application of father for injunction requiring mother to divulge information about her drug tests and treatment – where parties can have that aspect of matter relisted for determination.
Legislation:

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)
Number of paragraphs: 146
Date of hearing: 29 April and 28 May 2021
Place: Melbourne
Counsel for the Applicant: Mr Dickson QC
Solicitor for the Applicant: Kenna Teasdale Lawyers
Counsel for the Respondent: Mr Gates
Solicitor for the Respondent: Ryan Carlisle Thomas
Counsel for the Independent Children's Lawyer: Mr Marchetti
Solicitor for the Independent Children's Lawyer: Altavilla Family Law

ORDERS

MLC 11087 of 2014
BETWEEN:

MR EASTICK

Applicant
AND:

MS BURROWS

Respondent
AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

31 MAY 2021

ORDER 1- FRIDAY 28 MAY 2021

IT IS ORDERED THAT:

1.The wife forthwith attend upon a pathologist for testing for the detection of use by her of illicit substances, any medications and/or alcohol. Such test to be a supervised urine test taken in circumstances where an unbroken chain of custody in the specimens taken can be proven.

2.The wife do and does hereby authorise the provision of results of that supervised urine test to be provided directly to her solicitor Ryan Carlisle Thomas, … reference Ms B, and to…

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AGLC
Eastick & Burrows [2021] FamCA 458
Case
[2021] FamCA 458
Decision Date

CaseChat Overview and Summary

This case concerned an application for interim parenting orders between Mr Eastick (the applicant father) and Ms Burrows (the respondent mother) regarding their two children, aged eleven and ten. The dispute arose after the children had resided with the mother from the time of separation until she was found to be addicted to illicit drugs and alcohol abuse. Consequently, the children's primary residence was changed to the father, with the mother having supervised contact facilitated by the maternal grandmother. The court listed the matter for an urgent hearing following the publication of a private family report which expressed concerns for the children's protection from the mother.

The court was required to determine several legal issues, including whether to grant the father sole interim parental responsibility for the children, whether to suspend the mother's direct time and communication with the children on an interim basis, and whether to issue an injunction requiring the mother to undergo drug and alcohol testing. The court also considered whether to grant the father's application for an injunction compelling the mother to disclose information about her drug tests and treatment.

In reaching its decision, the court was significantly assisted by the evidence of a private family report writer and a psychiatrist, whose opinions were not meaningfully challenged. The private family report writer opined that the children needed protection from the mother, and both experts recommended a six-month moratorium on direct contact between the mother and children. The court found that it was not in the children's best interests to maintain equal shared parental responsibility at that time, thereby rebutting the presumption in favour of equality. The court also considered the mother's history of substance abuse and her struggles to connect her drug use with its impact on the children, despite her claims of being "clean" and engaged in treatment.

Consequently, the court made orders granting the father sole interim parental responsibility and ordering that the children live with him. The mother's face-to-face and electronic time with the children was suspended, with communication permitted only through cards, gifts, and letters via the children's therapist. The mother was also ordered to undergo supervised urine testing for illicit substances, medications, and alcohol. The court noted that the father's application for an injunction regarding the disclosure of drug test results and treatment information was omitted from consideration and could be relisted. The matter was listed for mention to check readiness for trial, with a tentative final hearing date reserved.

Orders

Orders of the court

MLC 11087 of 2014

BETWEEN:

MR EASTICK

Applicant

AND:

MS BURROWS

Respondent

AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

31 MAY 2021

ORDER 1- FRIDAY 28 MAY 2021

IT IS ORDERED THAT:

1. The wife forthwith attend upon a pathologist for testing for the detection of use by her of illicit substances, any medications and/or alcohol. Such test to be a supervised urine test taken in circumstances where an unbroken chain of custody in the specimens taken can be proven.

2. The wife do and does hereby authorise the provision of results of that supervised urine test to be provided directly to her solicitor Ryan Carlisle Thomas, … reference Ms B, and to the Independent Children’s Lawyer, Ms Altavilla …, contemporaneously.

3. For the purpose of compliance by the wife with paragraph 1 of this Order, she attend at C Medical, D Street, Suburb F, …, before 5pm this day (Perth time) with a copy of this Order.

4. The Independent Children’s Lawyer be responsible for provision of a copy of this Order on the proper officer of C Medical by electronic means.

ORDER 2- MONDAY 31 MAY 2021

IT IS ORDERED:

1. Until further order, the Father have sole parental responsibility for the children, X born … 2010 and Y born … 2011 (“the children”) and that before making any long-term decisions in relation to the children’s care, welfare and development (except in the case of an emergency):

(a) he advise the Mother via OurFamilyWizard of his proposal as early as practicable;

(b) the Mother within 48 hours of receiving the Father’s proposal has the opportunity to make comment via OurFamilyWizard; and

(c) after receiving the Mother’s comments, the Father make a decision and advise the Mother via OurFamilyWizard of that decision.

2. Until further order, the children live with the father.

3. That within seven days of the Orders, the Mother provide the children’s passports to the Father’s lawyers and the passports be held by the solicitors for the father pending further order of the court.

4. Until further order, the mother’s face to face and electronic time with the children be suspended and the mother be at liberty to communicate with the children by cards, gifts and letters via the children’s therapist Ms G (or her successor upon her departure from the practice) with such frequency as recommended by her/him (should the therapist choose to make any recommendations as to the frequency and content of such communications).

5. The Applicant and Respondent be equally liable to meet Ms K’s costs of her attendance today to give evidence.

6. The Independent Children’s Lawyer forward to Ms G (and/or her successor) copies of the reports of Dr H and Ms K, the transcript of his/her evidence and this Order.

7. All extant interim applications be otherwise dismissed.

8. That pursuant to Sections 65DA(2) and 62B the particulars and 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

9. That this matter be listed for mention on 23 September 2021 at 9.00 am for the purpose of checking on the readiness of the matter for trial NOTING THAT a tentative final hearing date has been reserved for 21 March 2022.

10. That my reasons for decision this day be published subsequently.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Dr H’s assessment of the parents is insightful. His opinions were not challenged in any meaningful sense. I accept and am significantly assisted by Dr H’s evidence.EVIDENCE OF PRIVATE FAMILY REPORT WRITER MS K A family report was prepared by Ms K, private family report writer. Ms K’s qualifications were provided and are not in issue. She is a psychologist and previously a Senior Family Consultant in this Registry of the family courts. There have been previous reports to which I was not taken including by Ms AG (March 2015) and Ms AH (June 2017) although there is a discussion of the context of historical reports in the report of Dr H. The report by Ms K is dated 24 April 2021.[13] Ms K conducted interviews on Friday, 9 April 2021 which was two days after the boys had seen the mother in preparation for the report interviews at which time X had become upset and had run away from the mother. [13] Affidavit of Ms K affirmed 24 April 2021 Ms K had access to the assessment of Dr H dated 15 February 2021. Ms K found the father’s presentation and that of his wife to be unremarkable and the father’s account to be consistent with this affidavit material. Ms K observed the mother to be punctual and polite and fashionably dressed. Her other observations were:13. The respondent mother […] mild motor agitation was noted in the form of a shoulder twitch. Her mood was labile and her affect anxious. Her speech was pressured; her account was verbose and had a superficial quality to it. Ms Burrows’ attitude varied according to the issue discussed. She struggled to make connections between her drug use, behaviour and any impact on the children. Her narrative placed responsibility for the children’s reported distress with their father.14. Ms Burrows said she had been “clean for 90 days” following a period of ‘at home’ detoxification assisted by ongoing engagement in treatment with a range of health practitioners. Ms Burrows has twice-weekly meetings with her Psychologist that allow for greater insights into her addiction, triggers and recovery. She has access to online support as well as an NA sponsor. Ms Burrows commenced weekly supervised screens last year and understands that further hair follicle testing will occur every three months. Ms Burrows reported feelings of wellness at the time of assessment saying she had a new circle of friends and a clarity of thought not previously experienced.15. Ms Burrows opted for home-based support following her decision to discontinue treatment at QQ Hospital in circumstances where she felt unsafe on the ward. Prior to the admission at QQ Hospital, Ms Burrows attended inpatient programs through “FF Health Centre” and later “GG Centre.” Her stays were interrupted by health concerns and staff at GG Centre concluded Ms Burrows’ needs would be better met in a hospital-based setting. Subpoenaed notes from FF Health Centre were generally in accordance with Ms Burrows’ account around her admission however one case note of her contribution to a group session stood out. It read that at the age of four years Ms Burrows assaulted her father. The note subsequently says, “He lived.”16. Ms Burrows reported having been in “active addiction for about 12 to 18 months and that during that time her “sobriety had gone out the window.” Ms defined herself as a “high functioning” addict whose substance misuse increased with her level of parental responsibility. She defined herself as “high functioning” on grounds that she managed to conduct a profitable business and could solely parent the children. She described there were occasions where her substance use enabled every day parenting tasks saying, “it would be a pick me up….to get my heart started so I could clean the house do the meal prep and kick a ball with my son.” Ms Burrows felt unsupported by Mr Eastick and his continued “harassment” of her often triggered substance misuse. When asked about the impact of her use on the boys' Ms Burrows claims they were “never exposed” and had “no idea.” She stressed to the writer, “I never took drugs in front of children, it was only on weekends when I didn’t have the kids, there was zero exposure.” Ms Burrows commented that her mother was a great support to both her and the boys and her presence often acted to compensate for any deficits in Ms Burrows’ functioning.17. Ms Burrows explained that claims of her being a neglectful parent who prioritised her lifestyle needs and substance use over the children were spurious. She noted that the reports emanated from conflicted sources such as former partners whom IVO’s have been taken out against. She said that Mr EE’s reports to Mr Eastick were not done so with concern for the children rather a need to punish Ms Burrows for her support of Police intervention that him charged with a range of criminal offences, one being a break-in at her home. Ms Burrows denied the boys were exposed to family violence or to inappropriate adult behaviour at the maternal home. She acknowledged that some violence perpetrated against her occurred at her home but that the boys were with their father at those times. She said reports of Mr M sleeping in the boys’ beds were untrue and while on occasion he would stay at the home, he did so in a separate room. He, like many of these men, was classified as a “former business partner” by Ms Burrows. She said, “These are reports from ex’s, they’re against me, Mr Eastick's against me, it's a setup, I've talked to DHS about this, they said I wasn't a risk…I know Mr Eastick has told X to say differently.”18. Ms Burrows emphasised that the resumption of her role as primary caregiver to X and Y was realistic and achievable, and the process was unlikely to be supported by Mr Eastick, whom she believes will undermine her efforts. She reported that in previous years he had used litigation to control and coerce her, has used authorities to harass and scrutinise her parenting and more recently, arranged surveillance of her at her property. Ms Burrows’ discovery of the private investigator’s report left her feeling unsafe and fearful of what Mr Eastick may do next. […]21. …The overwhelming sense from Ms Burrows’ narrative was one of feeling victimised and disadvantaged by the unfolding of recent events.

Decision

Reasons for decision

Taking all of the above considerations into account, I am satisfied that that is appropriate to alter parental responsibility on an interim basis in favour of a sole parental responsibility order in favour of the father. I do so because I am satisfied that it is not in the children’s best interests to retain equal shared parental responsibility at this time. The presumption in favour of equality is rebutted. This is not a final order and, as the legislation outlined above makes clear, the mother’s opposition to a final order being made in these terms will not be prejudiced by this interim determination. For the avoidance of doubt, sole parental responsibility on an interim basis will continue until a further specific order provides otherwise and will continue notwithstanding that the moratorium on the mother’s time and communication with the children will lapse. CONCLUSION For the above reasons I make orders in the terms of the orders set out at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

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