Hackford and Alameda

[2020] FCCA 1741

FEDERAL CIRCUIT COURT OF AUSTRALIA

HACKFORD & ALAMEDA [2020] FCCA 1741

Catchwords:
FAMILY LAW – Parenting – where a protracted and unpleasant dispute between parents – where numerous notifications made to Territory Families – where the mother has a history of drug use – where the mother has failed to undertake a hair follicle test as per previous orders – where the father has withheld the child – where no evidence to support the claim that the child is at unacceptable risk of harm in the mother’s care – the child should be returned to the mother’s care.

Legislation:

Family Law Act 1975 (Cth), s.69ZW

Applicant: MS HACKFORD

Respondent: MR ALAMEDA

File Number: ASC 17 of 2019

Judgment of: Judge Young

Hearing date: 15 June 2020

Date of Last Submission: 15 June 2020

Delivered at: Darwin

Delivered on: 15 June 2020

REPRESENTATION

Counsel for the Applicant: Ms R Read

Solicitors for the Applicant: North Australian Aboriginal Justice Agency (Central Australia)

Counsel for the Respondent: Ms T Czislowski

Solicitors for the Respondent: Ward Keller Lawyers

Independent Children’s Lawyer: Ms N Collier

ORDERS

1. That the child X born in 2018 be returned to the mother’s care at the usual changeover venue at the A Sports Club in accordance with the existing orders forthwith.

2. That the mother file and serve an affidavit in relation setting her mother’s relevant criminal history including any criminal history relating to use of illicit drugs within 14 days and her current living arrangements with her mother.

3. That pursuant to section 69ZW of the Family Law Act 1975 Territory Families provide the Court with the following documents or information: from 1 June 2020 to completion of the current investigative report.

   (a)copies of any notifications regarding abuse allegations arising or relating to the child X born in 2018;

   (b)any assessments or investigations into such abuse allegations;

   (c)the outcome or findings of any such assessments and investigations; and

   (d)copies of any reports received by Territory Families in the course of investigating any such notifications.

4. That neither party nor the Independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon Territory Families without the Courts leave.

5. That the father’s application in a case filed on 5 June 2020 and the response filed by the mother on 13 June 2020 be dismissed.

6. That the matter remain listed on 28 July 2020 at 10.30am for further directions NOTING that this date may be changed to a telephone mention on 27 July 2020 at 9.30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ASC 17 of 2019

MS HACKFORD

Applicant

And

MR ALAMEDA

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They 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. This is an application concerning a child, X, who is two years and three months old.  This is a protracted and unpleasant dispute between parents, one replete with many notifications to Territory Families and one might suspect that Territory Families have been conscripted by one or both of these parties into an attempt to further their agenda.  I am told that there have been 20 notifications to Territory Families concerning this child, four of which have been sustained with findings of, at least in one of those cases, that both these parents failed to protect the child adequately by exposing the child to verbal arguments.  Not very encouraging, I might say, for such a young child.

3. The other issue is the background of the mother’s drug use.  There have been orders that she undertake a hair follicle test directed to seeing if there is evidence of methamphetamine use.  That was requested some time ago but it is an agreed position, as I understand it, that the mother was unable to comply with that request because there was not a testing kit immediately available.  Her failure to undergo the test in conformity with the orders, which required a 48 hour response, is not said to be unreasonable, the point being that, whilst there is non-compliance with a very important test, at this stage there is no evidence that the non-compliance is unreasonable.  In fact, on the contrary, it appears to be reasonable thus far, which would mean that the order has not been contravened.

4. The other issue about the mother’s background is that she has been requested to and has submitted to three tests by urinalysis. The first, on Monday, 30 March 2020; that was the date of the request.  The test was completed on 2 April 2020.  That was one day late, but it was negative for all drugs except cannabis, which had a “requires further testing” comment from the testers, which I take to be a notation that evidence of cannabis was found. 

5. There was a further request on 28 April 2020. That was responded to on 30 April 2020, within time and, again, negative for all drugs, though there was a notation it requires further testing for cannabis, which I take to be evidence of cannabis was found in the sample.  Another request was made on 1 June 2020 and the test was completed on 2 June 2020, which was within time and, again, evidence of cannabis use was found. 

6. The background to this particular application is, according to the father, that on Monday, 1 June 2020, the very day that his solicitors had requested a urine test, he said he received a call from Territory Families at 1 pm on the Monday advising him that a notification had been made against the mother that she had been consuming methamphetamine on the evening of Friday 29 May 2020 at her home and, according to the father, Territory Families said the child, who was in his care pursuant to orders of the court until 5.30 pm that day, the child should be brought into Territory Families to ensure that the child was well.  The father said he did that.

7. The father evidently then decided to withhold the child on the basis that he had heard of a notification and he says that some details of the notification were provided by a Territory Families worker.  Who the notifier might be, which will presumably become apparent when the 69ZW order that I will make is responded to, was not identified as in accord with the usual practice. 

8. As the people at the mother’s home appear to have been, on one hand, her friends and, on the other hand, in the evening people the mother clearly suspects of having made the notification who are, it appears, related to the father.  I would be surprised if the father did not have some idea of who the notifier was.

9. His affidavit, however, is silent about that and if he was aware of who the notifier was, the failure to disclose that in his affidavit is a matter of some concern.  I am not able to make a finding about that because, of course, it is an interim hearing and there has been no cross-examination.  Nevertheless, the father’s decision to withhold the child, made on Monday, 1 June, ostensibly was entirely in response to information he had heard from Territory Families.  He does not identify any other information that would justify his course of action.  He says in his affidavit that on the next day, Tuesday 2 June 2020, he was advised by Territory Families that he should withhold the child.  That of course is a curious piece of advice because, if true, it was redundant because he had already made a decision to withhold the child the previous day.

10. It is also of some significance, though what significance is a little bit hard to assess, in that on the Monday, 1 June, when the father heard this allegation, his lawyers requested the mother to undergo a urinalysis test.  This was undergone the next day on 2 June and, of course, on that date there was no evidence of the use of methamphetamine, some four days after the alleged methamphetamine use. 

11. I think it is notorious that methamphetamine is metabolised out of the body within some days, how many days I do not know.  I have not had the benefit of expert opinion about that, notwithstanding various assertions from the bar table I was assisted or not assisted by but, nevertheless, within a relatively short period after the alleged methamphetamine use there was no evidence of methamphetamine in the mother’s urine.  It could be that four days later was time enough for methamphetamine to be metabolised, so that is a potential explanation, but I raise that because there is, for what it is worth, independent evidence that suggests there was no methamphetamine or residue in the mother’s urine some four days after the alleged methamphetamine use. 

12. The mother has put on an affidavit.  She says she denies any methamphetamine use on 29 May.  She says that she spent the evening or most of the evening of 29 May with friends from the hospital, one of whom, as I understand it, was a nurse and another a medical practitioner.  She, by implication, asked me to accept that such people would be unlikely to be using methamphetamine but I do not make any finding about that because that appears to be a rather speculative matter.

13. She was not with her friends from the hospital all night on 29 May.  There were other people present and, at some point, she was present with her mother who I learned today from an affidavit has a conviction for trafficking cannabis, or so it would appear, though the affidavit material, quite improperly in my view, did not provide any detail about the criminal convictions of the mother’s mother.  That, of course, is relevant because it appears from the affidavit material that the child is living in the house with the maternal grandmother and if the maternal grandmother has significant criminal convictions, and I consider a conviction for trafficking in illicit drugs to be a significant conviction, that ought to have been fully disclosed in an affidavit.

14. It was asserted that the friends, and it was not challenged, but probably it is not something that would be in the knowledge of the father, but it was asserted that the friends from the hospital promptly attended on Territory Families on 3 and 4 June to inform Territory Families, presumably, that they had not seen the mother using methamphetamine.  However, what they have said is neither here nor there.  I am met with nothing more than a series of assertions about what they said because there has been no affidavit material from them, another notable absence that really ought to be addressed. 

15. I am not going to make an order about that because I do not think that is  within my power but I have noticed that absence.  If this issue is to be continued the absence of affidavit material like that could well lead to an inference that the evidence would not assist, but, given the matter has been brought on urgently, I do not draw any inferences from that at this stage.

16. Territory Families have, it appears to be an agreed position, been investigating the matter since about 1 June, presumably when they received a notification.  The independent children’s lawyer and others have apparently attempted to get some further information from Territory Families, but they have not been provided with anything of substance as far as I can see.  Ms Collier says, as I understand it, after speaking to a lawyer from Territory Families that the investigation will not be complete for a week.  In fact, the information from Territory Families is notable by its scarcity, frankly.  All in all, as Ms Collier and the independent children’s lawyer points out, all this boils down to is evidence of an allegation or a notification. 

17. There is no other evidence to support the claim that the child is at unacceptable risk of harm in the mother’s care and, indeed, given the overall context of the matter, I am not persuaded that there is any evidence of an unacceptable risk of harm to this child.  Of course, if Territory Families conduct their investigation and are of the view that the child is at risk then either Territory Families can take measures or there can be a further application supported by some useful evidence.  At this stage I am not persuaded that there is any useful evidence before me, only an allegation of a notification and, as Ms Collier points out, correctly in my view, that ought of itself not give rise to a view that there is an unacceptable risk of harm. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 29 June 2020