Hollis and Ballard

[2019] FCCA 569

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOLLIS & BALLARD [2019] FCCA 569

Catchwords:
FAMILY LAW – Undefended.

Applicant: MR HOLLIS

Respondent: MS BALLARD

File Number: MLC 9990 of 2017

Judgment of: Judge Harland

Hearing date: 18 February 2019

Date of Last Submission: 18 February 2019

Delivered at: Melbourne

Delivered on: 18 February 2019

REPRESENTATION

Solicitors for the Applicant: Ms Malik of Fitzroy Legal Service

No appearance by the Respondent:

ORDERS

1. The father have sole parental responsibility for [X], born … 2016 (“the child”).

2. The child live with the father.

3. The child spend time with the mother at times agreed between the parties in writing.

4. The child’s time with the mother pursuant to paragraph 3 herein will be supervised at all times by either the Maternal Grandfather MR A or the Maternal Aunt Ms B.

5. The child’s time with the mother is conditional on the following:

   (a)The mother undertake supervised drug screen tests within 48 hours of receiving a written request from the father which are not to exceed two per calendar month;

   (b)The results of the screens are provided to the father within 7 of undertaking the test; and

   (c)The screens are not positive for any illicit substances.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9990 of 2017

MR HOLLIS

Applicant

And

MS BALLARD

Respondent

REASONS FOR JUDGMENT

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 a parenting matter concerning [X], who was born on … 2016, who will be three years old in a few months time.  The case outline prepared by the father’s Counsel helpfully sets out the chronology of this matter, and I will not repeat it here.

3. What is apparent from the history of this matter and the documents provided by the Department of Health and Human Services (“the Department”), both with respect to the response to the notice of risk and the response to a s.69ZW Order, is that both parents have a history of drug abuse.  The difference between the parents is their ability to address those issues.

4. [X] came into the father’s care in 2017.  It is clear from the Department’s summary of its involvement, which has been extensive, from 2009 to 2011 and then again in 2016 and 2017, that there were concerns with respect to the mother’s illicit substance use and erratic and unpredictable behaviour, and that the father was also using substances as at early 2017, and there were concerns about his mental health.

5. The Department interviewed the parents and requested them to undergo drug testing. The father’s first drug screen on 16 February 2017 was positive for amphetamine and methamphetamine, and the father has completed 14 drug and alcohol screens since then up to 16 October 2017, which were clear for illicit substances.

6. The mother completed two drug and alcohol screens for the Department on 15 and 18 February 2017, both of which were positive for amphetamine and methamphetamine, and has failed to comply with requests for drug screens since.

7. The Department records the father’s engagement with an eight-week in-home intensive parenting education and support service, other programs and engaging with his psychologist.  The Department no longer holds any concerns with respect to the father’s care of [X] and has not since 2017.  Certainly, as at 16 October 2017, the Department indicated that they were going to close their file.

8. In contrast, with respect to the mother, the Department indicated that the mother has had limited engagement with them and that there was ongoing concerns about her criminality and substance abuse, and that because of these concerns, arrangements had been made for the mother to have supervised time, supervised by the maternal grandfather.

9. The Department provided a further report on 3 September 2018, and on 23 July 2018 the Department conducted a home visit with the father.  The father acknowledged that there had been historical family violence between him and the mother when they were in a relationship.  The father also said that his mental health was not good when he was in a relationship but has since addressed that with his psychologist and provided a report from his psychologist to the Department.

10. The Department records that they attempted to contact and arrange a meeting with the mother on multiple occasions but that she would not respond. The Department also records that on 30 August 2018 they conducted an unannounced home visit with the mother.  The mother told the Department that she had provided a supervised drug screen for the Family Law Court the previous day and admitted to using illicit substances on a recreational basis but says her addiction ceased when she was imprisoned for four months, from … 2017 to … 2018. The mother told the department that she was engaged with support services.

11. With respect to the father, the Department found that the father has been proactive in seeking supports and taking protective actions for [X]. The Department’s concerns with respect to the mother involved the stability of her mental health, her pattern and history of violence and substance abuse.  The Department was unable to assist the mother for her current abuse as she failed to complete an assessment for them.  The Department concluded that it was going to cease its involvement with the family as it did not have any information that indicated that [X] was at any risk of harm in the father’s care.

12. The mother’s participation in these proceedings has been sporadic.  She filed a response and affidavit on 26 June 2018 and filed an amended response on 30 July 2018. That response included seeking final orders for [X] to live with his parents on a week-about basis.

13. Interim orders were made by consent on 2 July 2018 providing for the mother to spend supervised time with [X] twice a week, with her time to be supervised either by the maternal grandfather or the maternal aunt.  The Orders required the mother to undergo random drug screens. The Orders empowered the father to stop the mother’s time if she did not provide the screens as requested, or if the screens tested positive for illicit substances.

14. The mother did not attend Court on the next occasion, on 13 November 2018. Her Counsel indicated that his instructors were unable to obtain instructions from her.  The father had ceased the mother’s time in August 2018 because she had not complied with the drug screens. I note that the mother was represented by counsel when those consent orders were made on 2 July 2018 and had solicitors on the record. On 13 November 2018, I listed the matter for an undefended hearing today.

15. The maternal grandmother has attended Court today.  The mother is apparently, again, in detention.  The father has filed a further affidavit, and the father indicated, when I queried about [X]’s involvement with the maternal family, that he makes arrangements for the maternal grandfather, maternal grandmother and the maternal aunt to spend time with [X] regularly, which means that [X] is able to maintain connections with the maternal side of the family, as well as the paternal side of the family.

16. What is also clear is that [X] is a vulnerable young boy, not just by reason of his tender age but also the serious medical issues that he has, which the father has outlined in his affidavit.  [X] has been hospitalised and has been having seizures and is seeing another specialist in a few weeks’ time. [X] has had medical problems since birth.  The father also outlines the services that he has engaged with and the supports that he has in place.  The father is currently working as a health care worker for Employer and is undergoing study.

17. The father seeks final orders which essentially provide for the same arrangements that the interim orders made, which includes the father having sole parental responsibility for [X], for [X] to live with the father and spend time with the mother at times as agreed in writing. That the time be supervised by the maternal grandfather or maternal aunt and the time be conditional upon the mother undergoing drug screen tests within 48 hours of request and that the results provided are negative for any illicit substances.

18. Having considered the evidence before the Court, I am satisfied that it is in [X]’s best interest to make final orders today in the terms as set out in the father’s minute of order.  It is quite clear that there are ongoing, major issues concerning parental responsibility that need to be made for [X]’s wellbeing, particularly with respect to his health.  There is no evidence to suggest that the parents are able to communicate with each other about those issues. Given the mother’s failure to properly engage in the proceedings and also her ongoing issues with illicit substances and other behaviour, it would not be in [X]’s best interest for the parties to share parental responsibility in making those major decisions concerning his welfare.

19. I am satisfied that it is in [X]’s best interest to live with his father, and I am satisfied that the father has addressed the issues of concern with respect to his parenting capacity, and he has shown a protective concern for [X] and appropriate attitudes towards the responsibility of parenthood, and this includes ensuring that [X] maintains connections with the maternal extended family.

20. The Orders provide for the mother to spend time with [X], provided that it is safe for [X], and, unfortunately, the mother has not been able to address the concerning issues which place [X] at risk if he was to have unsupervised time with his mother, and indeed to have time with his mother if she continues to be affected by illicit substances.  If the mother addresses those concerning issues, which she has been unable to do to date, then the parties may agree on different arrangements.  Or, if they are unable to agree, the mother can make a further application to the Court, provided that she addresses those concerns.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 7 March 2019