Fella and Fella and Sternfeldt

[2012] FamCA 943

FAMILY COURT OF AUSTRALIA

FELLA & FELLA AND STERNFELDT [2012] FamCA 943

FAMILY LAW – INTERIM PARENTING – Where child should live on an interim basis – What time the child should spend with each party on interim basis – Positive drug test results produced by the father – What time the father should spend with the child and whether his time should be supervised, and if so, supervised by whom -– Interim consent Orders made with the agreement of all parties

APPLICANT: Ms A Fella

FIRST RESPONDENT: Ms E Fella

SECOND RESPONDENT: Mr Sternfeldt

FILE NUMBER: PAC 2504 of 2012

DATE DELIVERED: 18 October 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 18 October 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Moncada, Rafton Family Lawyers

SOLICITOR FOR THE FIRST 

RESPONDENT:

(Ms Ramjas on a duty basis)
Self-represented Litigant

SOLICITOR FOR THE SECOND

RESPONDENT:

Mr McDonald, G & D Lawyers

Orders

1. That the father shall be entitled to remove the child, B, from the child minding centre at this Registry today at 1 pm but he is to return the child to that centre at 2.15 pm this day.

2. That I discharge all previous parenting orders relating to the child B born … July 2010.

3. That, pending further order, the subject child shall live with the maternal grandmother Ms A Fello.

4. That, pending further order, the child shall spend time with the father between 4 pm and 6 pm each Tuesday and between 10 am -12 noon each Saturday.  That time shall be supervised by the paternal grandmother. 

5. I note that I have heard evidence from the paternal grandmother this day and she has assured me that she will be present at all times and will remove the child in the event of any difficulty or danger.  I accept that assurance.

6. That the document headed Minute of Order and initialled by me shall become Court’s Exhibit 1 in today’s proceedings and shall be placed with the papers.

7. That by consent orders are made in accordance with paragraphs 3, 4 and 5 of that document as set out herein:

   3. The applicant facilitate the child to telephone the father at the home of the father on Tuesdays and Thursdays at a time between 6.30 pm and 7.00 pm.

   4.The mother is to spend time with the child at such times to be agreed between the applicant and the mother and such time is to be supervised at all times by the applicant.

   5.That the applicant be restrained from allowing the mother to live at her home or to spend time overnight there.

8. That the legal representatives and the parties attend this day upon counselling section of this Registry to obtain the earliest appointment with a Family Consultant so the matter can be progressed by that Consultant conducting a conference with the parties and other significant adults and preparing a Child and Parent Assessment Report.

9. That liberty is granted to any party, that is the parents or the maternal grandmother, to relist the matter upon giving seventy-two (72) hours notice in the event of any difficulty.

10. I note that at this stage I decline to appoint an Independent Children’s Lawyer.

11. That the maternal grandmother shall be entitled to remove the child from the child minding centre this day.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER:  PAC 2504 of 2012

Ms A Fella

Applicant

And

Ms E Fella

First Respondent

And

Mr Sternfeldt

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter comes before me today having been stood over from a duty list on Monday 15 October 2012.  The issues for determination are the future living arrangements for the child, B, on an interim basis and the time he should spend with each of the parties to the proceedings. 

2. The parties actually concerned in the dispute before me are the maternal grandmother, who is the Applicant, the mother and the father.  The father and grandmother were here on Monday last; the mother did not attend on that occasion and I note, from an inspection of the file, she has not attended on earlier occasions.  The application that brought the matter before me on Monday last was an Application in a Case filed by the Applicant grandmother seeking orders that the child live with her.

3. The matter had previously been before the Court, and on that occasion, Orders were made by consent for the child to live with the father, for the Applicant grandmother to spend time with the child and for the father to obtain urinalysis testing and results.

Discussion

1. When the matter was before me on Monday last, it became apparent that the father had not attended and obtained those results and accordingly, I made an order for the child to live with the Applicant until 4.00 pm today.  The father today has, to his credit, produced a report.  The report itself, however, does not assist the father.  That report indicates the presence of illicit substances in his urine upon testing.  I set out hereunder a portion of the test results as set out in the pathology certificate of C Pathology:-

   CONFIRMATORY TESTING BY MASS SPECTROMETRY

   Analyte  Result

   Amphetamine Type Subs  

   Amphetamine  POSITIVE

   Methamphetamine  POSITIVE

   MDMA  POSITIVE

   MDA  POSITIVE

   Cannabis Metabolite

   11-nor-carboxyl-THC  POSITIVE               140     ug/L

   11-nor-carboxyl THC/creatinine ratio  573     ng/mg

2. The mother, father and Applicant grandmother have had further discussions today.  A document has been produced to me which, by agreement and consent, indicates the child is to live with the maternal grandmother.  Notwithstanding that the mother has not signed this document; I understand she consents to such an order.  There is then provision made for the child to spend time with the paternal grandmother.

3. I understand that the paternal grandmother, if I am to grant her the right to supervise her son spending time with the child, does not press time in her own right.  I understand that the agreement is that the mother is to spend time with the child as agreed between her and her mother, the Applicant grandmother.  She is not to live at her parent’s home, and she is not to spend overnight time there.

4. The issue for determination, thus, is the amount of time that the father should spend with the child and in what circumstances.

5. It is put to me by the maternal grandmother that the paternal grandmother is not a suitable supervisor because of things that have happened in her household in the past as between the mother and father of the child.  Further, it is put that her position is somewhat undermined by the fact that the father clearly has consumed drugs without her knowledge in recent times so as to produce the positive urine tests that have been put before the Court today. 

6. However, I have to say that I have been impressed by the paternal grandmother when she gave evidence before me.  I was satisfied that she was endeavouring to be frank with me, and that there is a realisation that her position, if she is to undertake supervision, is significantly changed from that which occurred in the past.

7. I am satisfied that it is appropriate that the child spend time with the father and I am of the view that it should be on two occasions a week.  All of the material of which I am aware, indicates for a child of this age, the remedy for success is frequent and shorter periods of time with each of the parents.  Accordingly, I have determined that the periods should be from 4.00 pm to 6.00 pm each Tuesday, and from 10.00 am to 12.00 noon each Saturday. 

8. I propose to order that such time be spent under the supervision of the paternal grandmother, who shall be in attendance at all times including for the collection and return of the child.  I note that it may be the case that the paternal grandmother will deliver the child and collect the child in the absence of the father.

9. I seems to me the matter must progress as quickly as possible in the normal fashion.  To that end, I propose to order that the parties this day attend upon the counselling section of this Registry to obtain an appointment with a counsellor so that there can be consultation, and particularly so that the counsellor can prepare a Child and Parents Issues Assessment report for the Court’s assistance.

10. I therefore make the orders set out at the commencement of these reasons for Judgment.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 18 October 2012.

Legal Associate:      

Date:    14 November 2012