Ferney & Keeling

Case [2021] FCCA 1938

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,…

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Ferney & Keeling [2021] FCCA 1938
Case
[2021] FCCA 1938
Decision Date

CaseChat Overview and Summary

In the matter of *Ferney & Keeling*, heard in the Federal Circuit and Family Court of Australia, Judge Obradovic made interim orders concerning the parenting of a young child, X, born in 2018. The applicant, Ms Ferney (the mother), and the respondent, Mr Keeling (the father), were in dispute regarding the child's living arrangements and time spent with each parent.

The court was required to determine the best interests of the child, X, in circumstances where there were significant concerns raised about the mother's past illicit substance use and the father's criminal history. The court also had to assess the risk associated with each parent's circumstances and make orders for the child's interim care and protection, including whether to involve the Department of Communities and Justice NSW.

In reaching its decision, the court applied the principles of assessing risk by weighing the probabilities of competing claims and the likely impact on the child, as outlined in *Keats & Keats* [2016] FamCAFC 156. The court noted the mother's conflicting evidence regarding her illicit substance use, including admissions of recent use and inconsistent explanations for photographic evidence. The father's criminal history, including convictions for assault occasioning grievous bodily harm and actual bodily harm, was also a factor. The court found that the mother had unilaterally suspended the father's time with X and that mediation had failed.

Pending further orders, the court ordered that the child X shall live with the father. The child's time and communication with the mother were significantly restricted, to be conducted via Facetime and supervised contact. The mother was prohibited from removing the child. Furthermore, pursuant to s.91B of the *Family Law Act 1975*, the Department of Communities and Justice NSW was requested to intervene in the proceedings and advise within 14 days whether they intended to formally intervene.

Orders

Orders of the court

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 Act 1975, 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)

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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