Ferney & Keeling
[2021] FCCA 1938
•23 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Ferney & Keeling [2021] FCCA 1938
File number(s): PAC 492 of 2021 Judgment of: JUDGE OBRADOVIC Date of judgment: 23 August 2021 Catchwords: FAMILY LAW – interim parenting – short form reasons – young child – best interest of child – assessment of risk – child to live with the father – child to spend time the mother supervised – department requested to intervene Legislation: Family Law Act 1975 (Cth), s 69ZL Cases cited: Goode v Goode [2006] FamCA 1346
Keats & Keats [2016] FamCAFC 156
Number of paragraphs: 31 Date of hearing: 16 August 2021 Place: Parramatta Appearing for the Applicant: Ms Blumberg Solicitors for the Applicant: King & York Lawyers Appearing for the Respondent: Ms Wilkins Solicitors for the Respondent: Phillip A Wilkins & Associates Appearing for the Independent Children’s Lawyer: Mr Harb Solicitors for the Independent Children’s Lawyer: Harb Lawyers ORDERS
PAC 492 of 2021 BETWEEN: MS FERNEY
Applicant
AND: MR KEELING
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
23 AUGUST 2021
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
1.Orders 1 to 5 of the orders made by consent on 18 February 2021 be suspended.
2.The child X, born in 2018 shall live with the father.
3.The child shall spend time and communicate with the mother as follows:
a. Via Facetime each Monday, Wednesday, Friday and Saturday between 11am and 12noon;
b. For not less than two hours per fortnight, supervised by B Contact Service at Suburb C; and
c. In the event the mother is able to afford a private supervision service, then for a period of four hours per week each Saturday from 12noon until 4pm.
4.To facilitate orders 3(b), the parties shall within two (2) business days from the date of these orders do all acts and things and sign all documents necessary to contact B Contact Centre for the purposes of intake assessment.
5.To facilitate order 3(c) within two days of the mother nominating a private supervision service in writing, the parties shall within two (2) business days do all acts and things and sign all documents necessary to contact the nominated service for the purposes of intake assessment.
6.The mother shall meet any such costs of the supervision in order 3.
7.The mother, her servants and agents are prohibited from again removing or taking possession of the child.
THE COURT FURTHER ORDERS THAT:
8.Pursuant to s.91B of the Family Law Act1975, the Department of Communities and Justice NSW is requested to intervene in these proceedings and with respect to same:
(a)Leave is granted to Departmental Officers to inspect the Court file and any subpoenaed material produced to the Court and for which leave to inspect has been grant to the parties, their legal representatives and/or the Independent Children’s Lawyer;
(b)The Department is requested to advise, in writing and within 14 days, whether they intend to intervene in these proceedings and in the event the Department indicates a desire to intervene orders shall, upon such intention being advised to the Court, be made in chambers:
(i)Formally granting such leave and joining the Department as a party;
(ii)Granting photocopy access to the Department to copy such material as the Department desires and at the Court’s expense from the Court file and any subpoenaed material;
(iii)Relisting the proceedings on short notice to allow further case management directions to be made.
(c)IT IS NOTED that the child, X born in 2018 is to live with father.
9.The parties are granted liberty to have the matter restored to the list on 24 hours’ notice.
10.The matter is listed for directions at 2.15pm on 29 November 2021.
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 Ferney & Keeling is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are short form reasons pursuant to s.69ZL of the Family Law Act 1975 (Cth) (“the Act”).
Notwithstanding that the proceedings are in their early stages, the matter has already been before the Court on five occasions, and there have been two occasions when interim parenting orders were made.
The substantive proceedings were commenced by the mother on 3 February 2021 (sealed on 4 February 2021) with an urgent application for a recovery order in respect of 3 year old X, who was born in 2018.
The first listing of the substantive proceedings occurred on 5 February 2021. On that date, the father was unrepresented but nonetheless he appeared and made submissions to the Court. From the commencement of the proceedings, the father has raised issues of risk for X while in the mother’s care arising out of her illicit substance use. At that point, X had not spent any time with the mother for over 3 weeks. The father told the Court that:
(a)In the early hours of the morning on 18 January 2021, the mother sent him a series of messages on his mobile phone which included a photograph of a blue plate with a white powdery substance on it, which the father believed was cocaine, followed by text messages with the words:
“Cant hear a thing…
Just quietly im fuckd… Completely numb all over, abit hard to get the words out… lol”
(Errors in original)
At that time, X was in the mother’s care and the father did not report the matter to the police, despite his fears for X’s safety.
(b)On 27 January 2021, the mother notified the father that there was an altercation with her next door neighbour, where the neighbour had broken a window on the mother’s home resulting in the neighbour cutting his arm and the mother cutting her arm. X was present when this occurred and he had injuries to his feet from the broken window. The father attended the mother’s home to fix the window, and X remained in the mother’s care.
(c)On 29 January 2021, X came into the father’s care pursuant to the parties’ agreement, but the father did not thereafter return him to the mother because he said he had concerns for X’s safety.
(d)The father did not report his concerns to the police immediately as he was very busy as a result of a workplace injury he had suffered and was dealing with matters relating to that injury.
It was then that the mother brought the recovery application, which came before the Court on 5 February 2021. On being asked, through her solicitor, about the allegations the father raised of illicit substance abuse and in particular the photograph of the plate with the powdery substance and the text messages associated with it, the mother through her solicitor, told the Court that she has not used any illicit substances and did not make any admission about the photograph depicting what appear to be lines of cocaine.
After hearing from both parties, the Court ordered that X be returned to the mother, that he spend time with the father and giving the father an opportunity of putting on some material and bringing the matter back in a fortnight.
On 18 February 2021, the Court made orders by consent for X to spend time with each of his parents in a staggered equal time arrangement. Orders were also made for the parties to undergo drug testing, both urinalysis and hair follicle testing. The parties attended a child dispute conference on 21 May 2021, and the matter was before the Court for further directions on 11 June 2021. Orders were then made adjourning the proceedings noting that the parties were to attend mediation.
On 21 July 2021, the father filed an Application in a Case, which was listed for first return on 16 August 2021. By that stage, X had not spent time with the father since 3 July 2021.
On 27 July 2021, the mother provided hair follicle drug test results showing positive readings for Methamphetamines and Amphetamines.
Relevant Legal Principles
The principles in respect of interim hearings are well known, including that the legislative pathway must at all times be followed (Goode v Goode [2006] FamCA 1346). Interim hearings are curtailed by the absence of cross-examination and testing of evidence in general, and the Court is often in a position where it is unable to make findings of fact.
Even in such constrained circumstances, the Court is still required to determine the applications before it.
In terms of a risk assessment, the Court is to determine that issue by weighing the probabilities of competing claims and the likely impact on the child in the event that a controversial assertion is acted upon or rejected (Keats & Keats [2016] FamCAFC 156).
Evidence of the parties
There are a few agreed or uncontested facts between the parents. They are as follows:
(a)The mother was born in 1982 and is currently 39 years of age.
(b)The father was born in 1985 and is currently 36 years of age.
(c)In or around 2004, the father was sentenced to twelve years imprisonment, with a non-parole period of eight years for assault occasioning grievous bodily harm.
(d)The parents were never in a relationship. The parents met through mutual friends and the father says he would often attend the mother’s home to use illicit substances.
(e)In or around 2017, the mother says she offered the father residence in her carport as he was homeless at the time. The mother says that the father was a heavy user of illicit substances.
(f)The parties have one child X, who was born in 2018.
(g)The father has two children from a previous relationship, D born in 2016 and E born in 2018. He does not spend any time with those children. The father also has a baby, who was born in 2021, with his current partner.
(h)The mother has two other children, F, who is 9 years old and G, who is 7 years old.
(i)In or around mid-2018, the father was sentenced to twelve months imprisonment for assault occasioning actual bodily harm.
(j)From March 2019 until September 2020, the father resided in Queensland.
(k)At present, the father rents a motel room when spending time with X. The father’s evidence is that this was due to the various lockdowns which were in place, the fact that he had a new born baby at home and that he did not want to risk the children’s health.
(l)In early July 2021, the mother unilaterally suspended the father’s time with X.
(m)On 27 July 2021, the parents attended a Legal Aid mediation, however no agreement was reached.
The mother’s sworn evidence to date, about her illicit substance use, is conflicting and confusing:
(a)The mother’s affidavit filed on 3 February 2021, deposes to the fact that she does “not take any illicit substances”.
(b)When the matter was first before the Court in February 2021, in the face of the father’s assertion that he had received text messages from the mother disclosing that she was drug affected while the child was in her care and that she had sent the father a photo message showing cocaine on a plate, the mother through her solicitor advised that it was her evidence that she does not take illicit substances, and that she did send the text messages “but it’s not a plate of cocaine… it’s a plate with some white material on it.”.
(c)In the mother’s affidavit filed 17 February 2021, the mother made an admission that she had “a line of cocaine” in circumstances where she was “child free for the first time in 2.5 years”. This was in response to the photograph of the blue plate, which the father had referred to when the matter was before the Court on 5 February 2021. The mother also asserted that on the way to pick up her daughter from sports, the father started smoking the drug “Ice” in the car, and that she “would have inhaled”. The mother’s other daughter and the subject child were at the mother’s home at the time. The mother further admitted to smoking from an “ICE pipe” on Christmas morning in December 2020, but that it was the father who brought the drugs to her home.
(d)The mother’s affidavit filed 13 August 2021 reads:
58. While I have used illicit substances in the past, I have not used in over a month, with the last time I used being 26 June 2021.
59. I have never used drugs in front of my children and I am now committed to ensuring I no longer use at all.
60. My drug use has never affected my children or my parenting capacity.
61. My lawyer has provided me with advice that I should undertake drug counselling and engage with a psychologist which I am in the process of organising and intend to update the court on my progress.
The mother in her latest affidavit fails to explain her earlier sworn evidence and the apparent contradictions in her evidence to date, or what her level of illicit substance use has been since at least these proceedings have been on foot. The fact that the mother admits to using illicit substances in the face of an order that she undergo drug testing, and in the face of assertions by the father that her drug use puts X at risk, is a significant concern to the Court in terms of the mother’s capacity to put the child’s needs above her own and in terms of her insight into her drug use, to say the least. The fact that she is only now in the process of apparently organising drug counselling and only it seems after advice from her lawyer, and her apparent lack of full and frank disclosure about her illicit substance use does little to provide the Court with any comfort that X will be safe while in her care.
While it appears that the Department of Communities and Justice has had some involvement with the mother recently, the circumstances surrounding the Department’s involvement were not explained in the mother’s most recent affidavit.
The mother says in her evidence that during the recent Departmental involvement, X was interviewed and that he apparently made some concerning disclosures to the case worker relating to the way he is treated while staying with the father. No records from the Department were tendered in support of such assertion, perhaps because no such records have been produced to date.
The father on the other hand, has a long and very concerning history relating to offences of violence, including periods of incarceration. The parties were never in a relationship (although this does not seem to have stopped them from conceiving a child) and X’s paternity has been an issue in the past. The mother says that the father has a history of illicit substance use and that he had used illicit substances after the parties met. The mother says that the father has been intimidating towards her. The father does not shy away from his illicit substance use in the past, but says that he has not been using any illicit substances since August 2018. The father has provided drug test results, including hair follicle testing, which show that no illicit substances were detected in the samples provided. The father has a history of mental health issues.
There have certainly been difficulties with X spending time with the father since early July, not the least of which seem to have arisen as a result of general difficulties associated with the Sydney lockdown and confusion as to how to comply with health orders. The father lives in Town H and the mother in Sydney, and the father’s current partner has recently given birth to the father’s youngest child.
The parties had been exchanging text messages about where X would be spending time with the father, about the father on occasion running late and asking for alternate arrangements to be made for what seem to be appropriate reasons. In any event, some of those text messages are very difficult to understand and it is accepted that they would have given rise to confusion.
X was due to recommence spending time with the father on Tuesday, 17 August 2021 in accordance with the existing interim orders.
The father presses for orders that X live with him on an interim basis and spend supervised time with the mother. The mother proposes that the interim orders as presently in force continue and that she attend drug counselling. The Child Inclusive Conference Memorandum to the Court dated 25 May 2021, raises concerns that “[t]he various changes to care arrangements and multiple carers may adversely impact X’s development and formation of secure relationships with his caregivers.”
Until orders made early this year, X had been living with the mother, his two half-sisters and spending very limited time with the father, not the least apparently due to the father’s incarceration followed by a period of the father living interstate.
The Independent Children’s Lawyer supports the father’s application. He submits to the Court that he had spoken to the Departmental case worker named in the correspondence attached to the mother’s affidavit, and that the Department had received further risk of harm reports, this time from the mother’s daughter who has apparently reported that the mother is asleep most of the time and that she is expected to look after her little brother and younger sister. The Court is well aware that these matters were said from the Bar table and that they are not evidence. However, they were said to support and explain the Independent Children’s Lawyers’ position.
While the Court accepts that X is a young child, that stability is very important and that there should not be frequent changes to his care arrangements, the situation is such that he is be at an unacceptable risk of harm in the mother’s care due to her illicit substance use, that being both a short and long term risk. Such risk may be ameliorated by the mother attending upon counselling and receiving help as may be appropriate, but it does not appear from her evidence that she has made full disclosure of her use or that she understands the effect on vulnerable children of parental drug use.
The fact that the mother states in her affidavit that her drug use has never impacted upon her parenting is itself significantly concerning – she was smoking an ICE pipe while on her way to pick up her daughter from sports – not only does such drug taking impact upon her ability to parent, it likely put her daughter and the public in danger. The father (who on the mother’s version of events was also partaking in drugs on that occasion), has admitted to a history of illicit substance abuse and violent behaviour. He appears to have accepted responsibility and has taken steps to address those issues. In any event, it is the mother who very recently tested positive to drug use.
It is appropriate, given particularly, what was said by the Independent Children’s Lawyer from the Bar table, that the Department be invited to intervene. It is not only X who is at risk due to the mother’s substance use, but also the mother’s other two children,
There is no simple answer for X, and it really is a matter of weighing up in which household he will likely be at least risk. It is a tragedy for him that his mother has tested positive for such serious drugs and it is a tragedy for him that he will be separated from his mother, who is his primary carer, and his siblings because of the mother’s illicit substance use and her lack of acknowledgement as to the seriousness of such drug use. For X, it seems that the best option available is that he live with the father until at least such time as it is safe for him to live with the mother.
Supervised time will have a significant further impact on X’s attachments and his feeling of security. In the current situation with the ongoing lockdown of Greater Sydney, and the strict restrictions in place, there may be some practical difficulties in a supervision centre facilitating time and there may be an extended waiting period. However, the Court cannot in good conscience leave a young vulnerable child unsupervised in the mother’s care at present. Given that she has tested positive for methamphetamines and amphetamines as late as 25 June 2021, and while these proceedings have been on foot, as noted earlier, the Court has very little comfort that the mother has the insight as to the effects of her illicit substance use not only on herself, but more importantly on her children.
There are already a number of restraints in place in respect of the parties’ behaviour, and a number of obligations they each have pursuant to the orders which will remain in place. The order for random drug testing will remain, and the mother is welcome to undergo further testing to prove her abstinence from illicit substances. Given the mother’s indication that she will be undergoing drug counselling, an order in this regard is not necessary.
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.
Associate:
Dated: 23 August 2021
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Procedural Fairness
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Consent
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Remedies
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