GARROD & HARBIG

[2019] FCCA 3796

FEDERAL CIRCUIT COURT OF AUSTRALIA

GARROD & HARBIG [2019] FCCA 3796

Catchwords:
FAMILY LAW – Parenting – Dispute about parenting arrangements for a child aged 6 – child living with the respondent – where the applicant was seeking an order that the child live with her – where the applicant recently provided synthetic urine when ordered to do a urine drug test, has not kept her solicitor instructed and was not at court for a mention of the matter – matter finalised on an undefended basis.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60H, 61DA, 68B

Applicant: MS GARROD

Respondent: MS HARBIG

File Number: NCC 451 of 2019

Judgment of: Judge Terry

Hearing date: 16 December 2019

Date of Last Submission: 16 December 2019

Delivered at: Newcastle

Delivered on: 16 December 2019

REPRESENTATION

Applicant: No appearance

Solicitors for the Respondent: Koulouris & Associates Pty Ltd

Solicitor for the Independent Children’s Lawyer: Legal Aid Newcastle Family Law

THE COURT ORDERS ON A FINAL BASIS THAT:

1. The child X born in 2013 (“the child”) shall live with the respondent MS HARBIG.

2. The respondent shall have sole parental responsibility for the child.

3. The applicant MS GARROD shall spend no time with and have no communication with the child.

4. Pursuant to s.68B of the Family Law Act 1975 (Cth) the applicant be restrained by injunction from removing or causing the child to be removed from any person or educational institution with whom the respondent has entrusted the care of the child.

5. Pursuant to s.11(1) of the Australian Passports Act 2005 (Cth) the respondent be authorised to apply for and retain a passport for the child without the applicant’s written consent or approval.

6. Pursuant to s.65Y of the Family Law Act 1975 (Cth) the respondent is at liberty to travel overseas with the child at any time without the applicant’s consent.

THE COURT NOTES THAT:

A.These orders have been made in the applicant mother’s absence.

B.If the applicant wishes to seek an order to spend time with the child she may do so but she will need to file an affidavit addressing the issues of her drug use, housing, mental health and aggression/family violence so that the court can properly assess whether it is in X’s best interests for the court to make an order for the child to spend time with the applicant.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 451 of 2019

MS GARROD

Applicant

And

MS HARBIG

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. I have an application before me for parenting orders in relation to a child X who was born in 2013 and who is now six years old. 

3. The child’s parents are the applicant Ms Garrod who is X’s biological mother and the respondent Ms Harbig who is the other parent named on the child’s birth certificate.

4. X was not conceived by artificial conception so this is not a matter to which s.60H of the Family Law Act 1975 applies.  He was conceived as a result of a single incident of sexual intercourse between the applicant and a man called Mr A. However the child was conceived during the de facto relationship between the applicant and the respondent and the sexual intercourse was undertaken for the purpose of conceiving a child to be brought up by the applicant and the respondent.

5. Mr A has never shown any interest in being involved in the child’s life. He was served with the application for parenting orders but he chose not to participate and was removed as a party earlier in the proceedings.

6. The de facto relationship between the applicant and the respondent ended in 2017. The applicant had been X’s primary carer up to that point and after the parties separated X remained with her and spent alternate weekends with the respondent. However the respondent had concerns about X’s care due to matters such as the applicant’s drug use and in December 2018 she retained the child in her care and X has lived with her ever since.

7. The applicant wasted no time in commencing proceedings. She filed an application on 18 February 2019 seeking a recovery order. That order was not made and in May 2019 interim orders were made for the child to live with the respondent and spend time with the applicant supervised by B Support Services. 

8. The time at B Support Services did not get off the ground because of X’s reluctance to separate from the respondent and the order for supervised time was suspended after the parties attended a child inclusive child dispute conference on 1 August 2019.

9. At that conference X displayed extreme difficulty separating from the respondent and issues of concern about the applicant emerged clearly.

10. The applicant has spent no time with X for most of this year and she has recently ceased to be engaged in the proceedings. Her solicitor appeared earlier today and sought leave to withdraw. I had the applicant called outside but she was not there and I am of the view that it is appropriate to finalise the matter on an undefended basis. 

11. An alternative would be to adjourn the matter and require the Independent Children’s Lawyer to arrange for the order made today to be served on the respondent personally. On the adjourned date I could make a decision about the appropriate way forward depending on whether the applicant turned up.  

12. In some cases I might do that but I am not prepared to do it in this case.

13. Part of the reason for that is because issues have been raised throughout this year about the applicant’s drug use including an allegation that she was using ice. 

14. The applicant was ordered to do a hair test and the result provided in June 2019 was negative for ice which was a plus but was positive for cannabis.

15. On 31 October 2019 the applicant was ordered to undergo supervised chain of custody urinalysis to test for illicit drugs. She went to two laboratories on 15 November 2019 and provide a sample for testing but the results provided by C Pathology dated 18 November 2019 and by D Pathology dated 18 November 2019 both indicate that the sample she provided was not urine but was something described as a substituted synthetic sample.  

16. In circumstances where significant concerns have been raised about the applicant during these proceedings including but not limited to concerns about her drug use, where she has not kept her solicitor instructed and is not here today and where she provided a substituted synthetic sample when ordered to do a drug test I do not consider it appropriate to keep the matter on foot. 

17. If at some point in the future the applicant feels that she can put forward a good case to be able spend time with X then she can file another application but I cannot keep matters on foot in this Court when people are not keeping solicitors instructed and are not cooperating with testing processes.

18. The evidence suggests that X is safely placed with the respondent at the moment.

19. The respondent has her own drug use history which gives me cause for concern. She and the applicant used ice together. She admitted that to the family consultant but she appears to be in stable circumstance at present. X is enrolled at E School and there is an Independent Children’s Lawyer in the matter and there is nothing to suggest that at X is not being appropriately cared for.

20. The child inclusive child dispute memorandum which was prepared in this matter in August 2019 and which I will mark exhibit E indicated that X had a very strong bond with the respondent. He refused to part from her for the purpose of being interviewed.

21. If anything of concern about the respondent arises in the future, and it could because it is always concerning if people have been using the highly addictive drug ice, then a notification may be made to the Department of Communities & Justice and steps may be taken to investigate the situation but at the moment the respondent is caring appropriately for X and the applicant is not taking part in the proceedings and there is no point keeping the matter on foot in this Court.

22. There is very good reason to be concerned about the applicant’s capacity to care for the child.

23. There is her historic drug. She recently submitted a substituted synthetic sample for testing which means that I cannot exclude the possibility that she has resumed using ice.

24. There are concerns about her mental health. The family consultant who prepared the child inclusive child dispute memorandum said as follows:

    ·    The applicant mother described and demonstrated anxiety. She said she has been diagnosed with depression and PTSD following traumatic sexual assault (and the subsequent criminal proceedings) in 2011. The applicant mother presented with distress when discussing this experience. She described ongoing guilt and shame, and she denied attending upon any counselling service for intervention following this. The applicant mother reportedly takes antidepressant medication as prescribed.

    ·The applicant mother denied the respondent mother’s characterisation of her as angry. She attributed most of her behaviours to her impulsivity, and often recognised the negative impact of her actions and regretted them. The applicant mother struggled to demonstrate responsibility for her behaviours, often attributing the consequences to other people or circumstances. The applicant mother presented as receptive to feedback that psychological intervention might be beneficial moving forward. The family consultant has concerns regarding the applicant mother’s impulsivity, regulation of emotions and her insight into her behaviours and motivations. She expressed a view that if she saw X today in or around the Court that she would be “unable to ignore him”. The mother was reminded of the ADVO prohibiting her from approaching X, as well as the likely impacts upon him.

25. In the second bullet point above there is mention of the applicant sometimes behaving impulsively and not recognising at the time the negative impact of her actions and a classic example of her behaving in that way occurred early this year when she found out that X had been enrolled at E School.

26. The applicant went to the school. She caused an enormous scene. The school was put into lockdown. There was a physical altercation between the applicant and the vice principal. There was also an incident between the respondent and the applicant when the respondent attended the school.

27. As a result of that incident the applicant was charged with assaulting the vice principal and an ADVO was taken out to protect the respondent and X from the applicant.

28. I am told that the applicant was found not guilty of the assault but nevertheless she caused an enormous scene which resulted in the school going into lockdown and which must have been very unpleasant for X and the other students at the school.

29. The family consultant also expressed concern in the memorandum about the applicant’s lack of stable accommodation, what could be described as her criminal associates and her criminal activity such as petty thieving and shoplifting which may be on-going and may be connected to her drug use.

30. The respondent asked the court make an order that the child live with her and that she have sole parental responsibility for him and that is entirely appropriate given the information available to me at present. 

31. The respondent did not seek an order that the applicant spend no time with the child. She sought only an order pursuant to s.68B order restraining the applicant from removing him from his school or from the care of people with whom the respondent had placed him. However I am not satisfied that this is sufficient.

32. A concern has been raised that the applicant is unable to focus on X’s personal interests and that if X was to spend unsupervised time with her she might attempt to retain him no matter what his distress. The allegations about the applicant are untested but they are not currently put in issue by the applicant and they lead me to be satisfied that X would be an unacceptable risk of harm if he spent unsupervised time with her.

33. Supervised time is also not currently an option. X has experienced the applicant’s behaviour. He did not want to separate from the respondent at the child inclusive conference and refused to be observed with the applicant. Earlier in the proceedings there was an attempt to organise some supervised time but it did not succeed because of the child’s distress and there is nothing to suggest that issue has resolved.

34. Prior to the applicant ceasing to instruct her solicitor there was a proposal on foot for her to be psychiatrically assessed. That is something that would have to be done before the Court could confidently move forward in terms of making an order about X spending time with her but because the applicant has bowed out of the proceedings such an assessment cannot be obtained a present. 

35. I just want to add, because I did not go into this in any detail earlier, that another issue in this case is that the respondent alleges that the applicant perpetrated some quite serious family violence during their relationship including spitting, throwing objects, hitting, biting and threatening her with a kitchen knife.

36. This is not currently refuted and the presumption in s.61DA of the Family Law Act 1975 does not apply and the Court would have some concern in those circumstances about the child going into a household containing the applicant mother and another domestic partner.

37. The respondent did not seek a no time order, only a s.68B order, but in light of all of the above I consider it preferable to make an order for no time.

38. I will otherwise make orders in terms of the minute of order provided.  

39. The respondent seeks a passport order allowing international travel for the purpose of holidays.

40. I prefer to make such an order at this stage of the proceedings because if I do not then if someone wants to go on a cruise or a trip overseas at some later stage and cannot secure the agreement of the other party they need to come back to Court and that is a nuisance not only for the parent involved but also for the Court which has to find time to hear it. So I am happy to make that order. There is nothing to suggest the respondent intends to relocate overseas.

41. The applicant might come back at some stage. These are parenting proceedings and people can come back if circumstances change but for now things are finalised for X. The respondent should be aware that if things go badly for her in terms of reverting to ice use she might find the Department knocking on her door but I hope for X’s sake that does not happen.

I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:  9 January 2020