FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Eerkens & Randrup [2021] FedCFamC2F 243
File number: HBC 928 of 2017 Judgment of: JUDGE O'SHANNESSY Date of judgment: 25 October 2021 Catchwords: FAMILY LAW – undefended hearing – mother suffering substance abuse – other children removed from mother’s care – children with father for many years. Legislation: Family Law Act 1975 (Cth), ss 4, 60CA, 60CC, 61DA, 65DAA and 65DAC Cases cited: An & Zhu (2006) FLC 93-257
Hiron & Tourle [2021] FCCA 1270
Division: Division 2 Family Law Number of paragraphs: 40 Date of hearing: 21 January 2021 Place: Hobart The Applicant: Appeared in person The Respondent: No appearance Counsel for the Independent Children's Lawyer: Ms M Ryan ORDERS
HBC 928 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR EERKENS
Applicant
AND: MS RANDRUP
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
21 JANUARY 2021
THE COURT ORDERS THAT:
1. This matter proceed by way undefended hearing.
2.Final orders be made in terms of the Minute of Orders sought by the Independent Children's Lawyer marked as Exhibit ICL 1 and attached hereto.
3. I reserve written reasons in this matter.
THE COURT NOTES THAT
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 Attachment A and these particulars are included in these orders
1.That all previous parenting orders are hereby discharged.
Parental Responsibility
2.That the father, Mr Eeerkens, have sole parental responsibility for the children X born in 2009 "X" and Y born in 2010 "Y".
Live With Orders
3.That X and Y spend time and communicate with the mother, Ms Randrup, at such times and in such manner as agreed with the father.
4.AND THE COURT NOTES the provision of Order 3 above may include the father imposing the provision of a clear drug screen(s) before any spend time will occur.
Injunctions and Responsibilities
5.That the parties will use civil and respectful language when communicating with each other or other members of each other's households and neither party will :
(a)Criticise, abuse, denigrate, insult or belittle or otherwise speak negatively, rudely or critically about the other parent to the children, in the presence of the children or within the children's hearing and nor will they permit any other person to do so.
(b)Discuss these proceedings or any future dispute between them in the presence or hearing of the children or permitting any other person doing so;
6.That the father and mother be and are hereby restrained from consuming alcohol while X or Y are in their respective care, to the extent they are so affected by alcohol as to have impaired ability to supervise or protect the children and nor will they allow the children to remain in the presence any third party who is intoxicated.
7.That the father and…
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CaseChat Overview and Summary
The primary legal issue before the court was whether Mr Eeerkens should be granted sole parental responsibility for the children. Given the mother's history of substance abuse and the children's long-term residence with the father, the court had to balance the children's best interests against the mother's rights. The court also had to consider the appropriate conditions for the mother's contact with the children, taking into account her past behavior.
Judge O'Shannessy determined that sole parental responsibility should be awarded to Mr Eeerkens, reflecting the children's established living arrangement and the mother's ongoing issues. The court recognised the importance of stability for the children and found that sole responsibility would best serve their needs. The court also set specific conditions for the mother's contact with the children, including the requirement for drug screens before any visitation. These measures aimed to ensure the children's safety and well-being while allowing for some continued relationship with their mother.
The final orders discharged all previous parenting orders and granted Mr Eeerkens sole parental responsibility for X and Y. The children were to spend time and communicate with their mother under agreed terms, including drug screening before any visitation. Both parents were required to use civil and respectful language and avoid exposing the children to alcohol, illicit substances, or family violence. The court also set out responsibilities for informing each other of changes in contact details, notifying each other of medical emergencies, and ensuring the children's safety in travel and schooling. The Independent Children's Lawyer's involvement was to cease, and all other applications were dismissed.
Orders
Orders of the court
HBC 928 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR EERKENS
Applicant
AND:
MS RANDRUP
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
21 JANUARY 2021
THE COURT ORDERS THAT:
1. This matter proceed by way undefended hearing.
2. Final orders be made in terms of the Minute of Orders sought by the Independent Children's Lawyer marked as Exhibit ICL 1 and attached hereto.
3. I reserve written reasons in this matter.
THE COURT NOTES THAT
A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 Attachment A and these particulars are included in these orders
1. That all previous parenting orders are hereby discharged.
Parental Responsibility
2. That the father, Mr Eeerkens, have sole parental responsibility for the children X born in 2009 "X" and Y born in 2010 "Y".
Live With Orders
3. That X and Y spend time and communicate with the mother, Ms Randrup, at such times and in such manner as agreed with the father.
4. AND THE COURT NOTES the provision of Order 3 above may include the father imposing the provision of a clear drug screen(s) before any spend time will occur.
Injunctions and Responsibilities
5. That the parties will use civil and respectful language when communicating with each other or other members of each other's households and neither party will :
(a) Criticise, abuse, denigrate, insult or belittle or otherwise speak negatively, rudely or critically about the other parent to the children, in the presence of the children or within the children's hearing and nor will they permit any other person to do so.
(b) Discuss these proceedings or any future dispute between them in the presence or hearing of the children or permitting any other person doing so;
6. That the father and mother be and are hereby restrained from consuming alcohol while X or Y are in their respective care, to the extent they are so affected by alcohol as to have impaired ability to supervise or protect the children and nor will they allow the children to remain in the presence any third party who is intoxicated.
7. That the father and mother be and are hereby restrained from consuming any illicit substances or prescription medication for which they do not personally hold a prescription, while the children are in their care and for the period of 24 hours prior to the children coming into their care; nor will they allow the children to remain in the presence of any third party consuming such substances.
8. That neither party will expose the children to any form of family violence and in the event of being victim to family violence they will ensure the children are removed promptly from that situation.
9. That both parties are at liberty to request copies of the children's school reports, newsletters and school photographs and should they do so they will be solely responsible for the school's costs of complying with any such request.
10. That the parties will ensure the children only travel in vehicles which have a current registration, and that the vehicle(s) are driven by drivers with a currently and active drivers' licence.
11. That within (7) seven days of any change the parties' residential address and mobile telephone number and email contact details, they will inform each other of such change by text message.
12. That within a reasonable time of a subject event, notify the other parent should either child suffer any medical emergency, serious illness, or other significant issue affecting their health or welfare, whilst in their care.
13. That within 7 days of the date of these Orders the Independent Children's Lawyer will provide the children's school and Tasmania Police with a copy of these Orders.
14. That seven (7) days from the date of these Orders the appointment of the Independent Children's Lawyer is hereby discharged.
15. That all extant applications are hereby dismissed.
THE COURT NOTES THAT:
A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 Attachment A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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