Haleemy and Quarry

[2010] FamCA 1163

FAMILY COURT OF AUSTRALIA

HALEEMY & QUARRY [2010] FamCA 1163

FAMILY LAW – CHILDREN – interim orders – where the mother seeks orders that the child live with her – where there are concerns concerning the capacity of the mother to care for the child – best interests – suspension of previous orders providing that the child live with or spend time with the mother – orders that the mother spend supervised time with the child

Family Law Act 1975 (Cth) ss 60CC & 65DAA

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Haleemy

RESPONDENT: Ms Quarry

INDEPENDENT CHILDREN’S LAWYER: Hume Taylor & Co

FILE NUMBER: ADC 2017 of 2009

DATE DELIVERED: 9 December 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 9 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MRS LINDSAY

SOLICITOR FOR THE APPLICANT: VOUMARD LAWYERS

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: IN PERSON

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR B BOWLER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: HUME TAYLOR & CO

Orders

1. This matter is adjourned to a further First Day Hearing before the Honourable Justice Dawe on 30 March 2011 at 10.00 am.

2. During the period of the adjournment:

   (a)paragraph 1 of the order of 8 December 2009 is continued;

   (b)the father have sole parental responsibility for the child G and that the child live with him;

   (c)the parties forthwith each take steps to enrol at the D Contact Service for arrangements to be put in place for the mother to spend supervised time with the child and supervised at the D Contact Service and that supervised time, if possible, take place once every two [2] weeks.

3. The mother have such other supervised time with the child G as agreed between the parties to be supervised by an independent supervisor agreed to by the parties (including the Independent Children’s Lawyer).

4. By 4.00 pm on 1 March 2011 the mother and father are directed to file and serve any amended application for final orders.

5. By 4.00 pm on 1 March 2001 the mother and father to file and serve an affidavit setting out the current proposals for the care of the child G and their present living arrangements and future proposals for the care of the child together with an affidavit setting out their compliance with the orders of 8 December 2009.

6. The mother has liberty to apply to vary the orders on short notice PROVIDED THAT the father’s solicitors and the Independent Children’s Lawyer are given not less than seven [7] days notice of the mother’s application.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2017 of 2009

MR HALEEMY

Applicant

And

MS QUARRY

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I have considered the limited material before me, which is basically the Family Consultant’s report of 5 November 2010 which sets out the information given to the Family Consultant by the father and the interviews and observations that the Family Consultant conducted together with telephone interviews.  In that report, it appears that the mother has not spent time with or had the parties’ child in her care since 17 September this year.  These proceedings concern the welfare of the child, G, who was born in January 2009 and is therefore not quite two years of age.

2. Proceedings have been on foot in the Federal Magistrates Court since shortly after her birth.  Orders were made in December 2009 putting in place an arrangement which provided by consent that until further order, significant injunction orders were made in relation to both parties’ consumption of alcohol and illicit drugs and specific arrangements for the care of the child.  There were also specific orders made about both parties attending upon certain programmes and maintaining contact with certain welfare assistants.  The matter was then adjourned for a further family assessment to be prepared in or around November 2010 and the matter set for First Day Hearing directions this morning before me.

3. As appears from the Family Consultant’s report, the mother did not attend for the interviews and has not had any care of the child since 17 September 2010. 

4. Her solicitors filed a Notice of Ceasing to Act recently. 

5. The mother appears before the Court today and asks that the child reside with her and that the father spend some time with her on holidays.  She indicates that she left the child in the care of the father and went to New South Wales to attend to family business and was delayed in her return. 

6. I am asked by the father’s counsel and the Independent Children’s Lawyer to suspend the orders which provide for the child to live with or spend time with the mother due to the concerns which arise from the mother’s behaviour in not participating in the care of the child since 17 September 2010.  That failure needs to be seen in the background of the serious allegations concerning the capacity of the mother to provide care for the child in the context of the earlier proceedings.

7. I take into the account the provisions of section 65DAA and the provisions of the Family Law Act 1975 (Cth) which require that I make an order that is in the best interests of the child G (notwithstanding that these are interim proceedings). Following the authority of Goode & Goode (2006) FLC 93-286, I am satisfied that because of the concern about the mother’s capacity to provide for the child G without appropriate assistance and the need for the concerns to be addressed by both parties in the appropriate affidavit material, and notwithstanding the provisions of section 60CC which emphasise the need for the child to have a meaningful relationship with both parents, the Court is satisfied it is in the best interests of the child to suspend the orders which provide for the child to live with the mother or spend time with the mother. It would however be in the child’s best interests for the mother to spend time with the child, provided it is appropriately supervised by a qualified independent person or other persons capable of supervising the child’s time with the mother to ensure the child’s protection.

8. Taking into account the provisions of section 65DAA, the question of reasonable practicability comes into play, because the father resides in the Spencer Gulf area, and the mother apparently currently resides in the Adelaide area.

9. I propose to adjourn this matter to another First Day Hearing before me in the next available date, which is 30 March 2011 at 10 am. 

10. During the period of the adjournment, I continue the orders in paragraph 1 of the order of 8 December 2009, which is the order restraining each of the parties from consuming illicit drugs or alcohol during times that the child is in their care and from changing their principal place of residence without prior written notice to the Independent Children’s Lawyer and the other party.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 9 December 2010.

Associate: 

Date:  22 December 2010