Flindall and Alanson and Anor

[2016] FCCA 3003

FEDERAL CIRCUIT COURT OF AUSTRALIA

FLINDALL & ALANSON & ANOR [2016] FCCA 3003

Catchwords:
FAMILY LAW – Parenting – drug use – interim orders.

Applicant: MR FLINDALL

First Respondent: MS ALANSON

Second Respondent: MS CHAPMAN

File Number: DNC 45 of 2016

Judgment of: Judge Young

Hearing dates: 17 & 21 October 2016

Date of Last Submission: 21 October 2016

Delivered at: Darwin

Delivered on: 21 November 2016

REPRESENTATION

Counsel for the Applicant: Ms Romeo

Solicitors for the Applicant: Darwin Family Law

The First Respondent appearing in person

The Second Respondent appearing in person
Counsel for the Independent Children's Lawyer:	Ms Terrill
Solicitors for the Independent Children's Lawyer:	Terrill & Associates

ORDERS

1. That the mother and the father shall have equal shared parental responsibility for X born (omitted) 2014.

2. That the child shall live with the father.

3. That the father not relocate the residence of the child from the residence he is staying at with Mr R, the paternal grandfather, and Ms K, the paternal grandfather’s wife.

4. That the child spend time with the mother as agreed between the mother and the father and failing agreement as follows:

   (a)Each Sunday from 12.00 pm to 5.00 pm;

   (b)Each Tuesday from 3.45 pm to 6.15 pm; and

   (c)Each Thursday from 3.45 pm to 6.15 pm;

   Provided the father is available to conduct the handovers in person.

5. That the father is permitted to refuse to provide the child to the mother if she appears to be under the influence of or affected by drugs.

   Notation: If the father believes the mother is under the influence of drugs, the father will require the mother to give a court admissible urine test which he will pay for, and he may directly supervise the mother spending time with child until such time as a clean urine test is provided.

6. That the child spend time with the maternal grandmother as follows:

   (a)From Monday 21 November 2016 until Tuesday 22 November at 3.30 pm;

   (b)From Thursday 24 November 2016 at 8.00 am (for day care drop off) until Saturday 26 November 2016 at 12.00 pm;

   (c)From Monday 28 November 2016 at 8.00 am (for day care drop off) until Tuesday 29 November 2016 at 3.30 pm;

   (d)From Thursday 1 December 2016 until Saturday 3 December 2016 at 12.00 pm;

   (e)From Monday 5 December 2016 and each Monday thereafter from 3.30 pm until 9.00 am the following morning with the child to be picked up and dropped off to the child’s day centre in (omitted).

7. That no party is to change the child’s day care centre.

8. That the maternal grandmother may request the father to undergo random urinalysis testing on one occasion per month pending the trial, with the cost of the testing to be borne by the father.

Injunctions

1. That, without admissions as to the need, each party be restrained by injunction and an injunction issue restraining each party from:

   (a)Denigrating the other parent or members of the other parents’ family to the child or in the child’s hearing or presence, or allowing anybody else to do so;

   (b)Consuming any illicit drugs within 48 hours before seeing the child, or while the child is in their respective care;

   (c)Allowing the child to remain in the presence of any other person who is consuming, or under the influence of, illicit drugs;

   (d)Being under the influence of excessive alcohol or illicit drug/s while the child is in their respective care;

   (e)Allowing the child to remain in the presence of any other person who is under the influence of excessive alcohol or illicit drug/s;

   (f)Allowing the child to remain in the presence of Mr K, the maternal uncle; and

   (g)Exposing the child to abuse (including verbal abuse) or family violence, and that each party will take all measures necessary to remove the child from an incident of family violence should such circumstances arise.

2. That the matter be set down for final hearing commencing at 10.00am on 22 February 2017 in the Federal Circuit Court of Australia at Darwin NOTING 2 days allowed.

3. That on or before 28 days prior to trial the applicant pay the setting down fee and the respondents pay half each of such further daily hearing fee as required pursuant to the Family Law (Fees) Regulation 2012 or seek a waiver of the fee.

4. That each party file and serve on each other party one affidavit of evidence in chief and one affidavit of each witness complying with rule 15.28 of the Federal Circuit Court Rules 2001 intended to be relied upon at trial no later than 4.00pm on 25 January 2017.

5. That each party exchange and email to my Associate no later than 4.00pm on 20 February 2017, a case outline setting out:

   (a)a list of the material relied upon;

   (b)a brief chronology listing significant events;

   (c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child/ren (section 60CC factors);

   (d)a list of other contentions relevant to the decision;

   (e)whether the presumption of equal shared parental responsibility applies (section 61DA), and if not the contentions relied upon;

   (f)a list of the considerations relevant to considerations of equal and substantial parenting time (section 65DAA);

   (g)a list of other relevant considerations (including the relevant section number) (for example, sections 60CG, 61F, 65DAB and/or 65DAC); and

   (h)the actual orders sought.

6. That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court.

7. That in the event that either party wishes to cross-examine the family report writer at the final hearing, that party shall provide written notice to the family report writer of such intention no later than 14 days before the commencement of the hearing.

8. That in the event that no such notice is given to the family report writer or the family report writer is unavailable, the family report will be admitted into evidence without cross examination.

NOTATION: These orders have been amended pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 to reflect the addition of orders (1) to (21).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 45 of 2016

MR FLINDALL

Applicant

And

MS ALANSON

First Respondent

MS CHAPMAN

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a parenting matter concerning a child X who is now a little more than 2 ½ years old. The matter came on before me on 10 February 2016 when the mother and the maternal grandmother sought a recovery order against the father.

2. The father resisted the orders and alleged that the mother was a drug user and was unfit to care for the child. The allegations against the mother of drug use were subsequently shown to be substantially correct. It is reasonably clear that the mother has a serious drug problem and has at different times used amphetamines, methamphetamine and morphine.

3. Orders were made by consent on 10 February 2016 that the child live with the father until further order and spend time with the mother and maternal grandmother. There were orders for drug testing for both the mother and the father. The father said that he had recently had a hair follicle test and would later provide the results to the court. These results were subsequently provided and showed negative results for all relevant drugs. The father had admitted some cannabis use but the hair follicle testing was also negative for cannabis. His solicitor queried the negative result and the explanation was that the father had either ingested too little to reach the cut-off point or the cannabis had been ingested within the past seven days. The father has admitted to some methamphetamine use but said he stopped methamphetamine use when the child was born.

4. The father was not entirely frank in his affidavit material at the time. He subsequently admitted that he had sold ecstasy tablets on behalf of the mother a few weeks before he deposed his affidavit.

5. On 18 March 2016 further orders were made by consent that the child spend time with the mother and maternal grandmother, including overnight time, on alternate weekends on condition that the mother live with the maternal grandmother. There were orders that the mother be restrained from allowing the child to be in the presence of her brother, Mr K, who was said to be a drug user and violent.

6. On 12 April 2016 the mother and the maternal grandmother filed an Application in a Case seeking the return of the child to the care of the mother. The mother provided a hair follicle test dated 24 March 2016 which showed a negative test for relevant drugs in the previous three months. The mother asserted that this showed she had not been using drugs at the time the father withheld the child. She swore that she was not using drugs.

7. She also alleged that the child was regressing in the care of the father and annexed a GP’s notes showing that the doctor had expressed concerns about marks on the child's arm which appeared to be a bruise left by finger pressure. The doctor expressed concern that the child may have been subjected to abuse and reported the matter to the child welfare authorities. (This allegation was later investigated by the child welfare authorities and not substantiated).

8. The father filed an affidavit in reply to which generally reasserted his claims that the mother was a drug user and, as previously mentioned, admitted dealing in ecstasy pills himself in January 2016.

9. On 29 April 2016 I made an interim order that the child return to live with the mother on condition that she continue with the drug rehabilitation course she was then attending and that she submitted to regular drug testing. The maternal grandmother was ordered to report to the court any illicit drug use by the mother and the mother was ordered to reside with the maternal grandmother at her home. There was some variation in this order because the maternal grandmother was preparing to travel to Adelaide to accompany her husband who was undergoing cancer treatment. A friend of the mother’s, Ms K, undertook to reside in the maternal grandmother's home while this took place and supervise any time the child spend spent with the mother.

10. On 28 July 2016 a family report was released. The mother admitted to the report writer that she had been using drugs at the time the father retained the child in January 2016. This admission contradicted her earlier sworn evidence that she had not been using drugs at that time. It also appeared that the grandmother had allowed a third party to supervise the mother's time with the child in breach of the earlier orders. The mother also admitted that she and the supervisor in the maternal grandmother's absence, Ms K, may have been under the influence of marijuana at the time the mother was caring for the child.

11. Despite the mother's admission that she had been using drugs at the time the father retained the child the grandmother denied that drug use. The mother also alleged to the report writer that the grandmother had urged her to fabricate evidence to support her allegation that the father had spent little time with the child before the time he retained her. The mother admitted to the report writer that the father had spent significant time caring for the child. The report writer recommended that the parties have equal shared parental responsibility for the child and that the child live with the mother. She did not make any recommendations for conditions. The report writer did not consider how the mother’s continuing drug use might affect her recommendations.

12. On 1 September 2016 the father filed an Application in a Case that the child live with him. He deposed that the mother and the maternal grandmother had had a falling out over the mother's drug use and that the mother had been "kicked out" of the mother's home after a physical fight. The father also alleged a breach of earlier orders that the child not to be not be permitted to be in the presence of Mr K.

13. On 23 September 2016 the maternal grandmother filed an affidavit which admitted that the mother had left her home on 21 August 2016 after an incident where the mother appeared drug affected. It is of significance that the maternal grandmother, in apparent breach of her undertaking to report any drug use of the mother to the court, did not file any material about this until she responded to the father's Application in a Case. The maternal grandmother also sought DNA testing as she questioned the father's parentage of the child. She alleged that the mother had taken the child to visit Mr K and she, the maternal grandmother, knew nothing about that. Various other affidavits were filed, including an affidavit from the paternal grandfather who deposed that he and his wife had moved to Darwin to support the father.

14. As the condition of the order made on 29 April 2016 that the child live with the mother in the maternal grandmother's home is no longer practicable it is necessary to reconsider the orders. All the evidence indicates that the mother is not drug-free. She does not appear to be able to make mature decisions at this point in her life. There appears to be some evidence that she has not complied with court orders in relation to permitting the child to be in the presence of her brother and not being permitted to be under the influence of illicit substances while the child was in her care. The maternal grandmother's position is somewhat unclear. She and the mother have had a falling out and have a clear divergence of views and interests. The maternal grandmother’s frank hostility to the father makes me doubt whether she is able to adequately encourage a meaningful relationship between the child and the father.

15. The father appears to be drug-free. The family report writer assessed him as a functional parent and able to adequately care for the child. The father appears to have improved his relationship with the mother and says that he believes he and the mother can co-parent effectively. He says the maternal grandmother is domineering and is standing in the way of him and the mother developing an effective co-parenting relationship. There is some material in the family report to support that view. The mother also claims that she is able to communicate effectively with the father and believes that she and the father can work things out. I am far from satisfied that the mother is drug-free now or will be drug-free at any time in the near future. However, I am satisfied that the father and the mother should be given the chance to co-parent.

16. I propose to make orders until further order that the parents have equal shared parental responsibility and that the child live with the father.

17. The father is presently living with his uncle and his uncle’s wife. I propose to make it a condition of the orders that the father continue with that arrangement.

18. I propose to order that the child spend time with the mother as may be agreed with the father but in the absence of agreement from 12:00pm Sunday to 5:00pm Sunday, from 3:30pm Tuesday to 6.00pm Tuesday and from 3:30pm Thursday to 6:00pm Thursday. I have considered whether there ought to be an order for supervision of the child’s time with the mother but it appears that the maternal grandmother and the father have been permitting the child to spend time with the mother if she appears unaffected by drugs. My present inclination is that the father should be permitted to refuse to deliver the child if the mother appears affected by drugs but otherwise not require supervision.

19. I have considered whether it is appropriate to make provision for the child to spend time with the maternal grandmother. I consider that it may have some protective utility but I would like to hear some further submissions from the parties about whether to make such an order and, if so, the duration of any time.

20. Orders will be made that the parents are not to be under the influence of illicit drugs during any time the child spends with the parent.

21. I will also hear submissions as to the precise form of these orders.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 21 November 2016