Johns and Eaton

[2011] FamCA 405

FAMILY COURT OF AUSTRALIA

JOHNS & EATON [2011] FamCA 405

FAMILY LAW -CHILDREN – interim orders – application by the father seeking orders to spend time with the child – where the mother alleges that the father has inappropriately touched the child – where the father has acknowledged his use of marijuana – where the father has not spent time with the child for an extended period of time – best interests – father’s application dismissed and orders for further material to be filed.

Family Law Act 1975 (Cth) ss 60CA & 60CC

APPLICANT: Mr Johns

RESPONDENT: Ms Eaton

INDEPENDENT CHILDREN’S LAWYER: Ann Bills & Assoc

FILE NUMBER: ADC 233 of 2011

DATE DELIVERED: 30 May 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE JUDGMENT OF: Burr J

HEARING DATE: 30 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Harley
SOLICITOR FOR THE APPLICANT:	Dixon Gallasch Pty Ltd

COUNSEL FOR THE RESPONDENT:	Mrs Read
SOLICITOR FOR THE RESPONDENT:	B C O'Leary & Associates
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mrs West
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ann Bills & Associates

Orders

UPON NOTING:-

(a)the preparedness of the paternal grandfather to act as a supervisor of any time the father spends with the child B;

(b)the Court’s concern that the paternal grandfather appropriately identify for the Court that he does not have any issues with substance abuse, particularly alcohol;

(c)that the Court would be assisted by the results of substance abuse testing in order to clarify whether or not the paternal grandfather has any issues in that regard which would inhibit his role to act as a supervisor of the father’s time to be spent with the child B;

IT IS ORDERED THAT:-

1. Further consideration of the proceedings be adjourned to 10.30 am on Monday 17 October 2011 before the Honourable Justice Burr.

2. A Family Report be prepared by Mr M on such matters as are relevant to these proceedings in respect of the care, welfare and development of the child B Eaton (“B”) born … October 2005 and to include:-

   (a)    interviews with each of the parties;

   (b)    observed interaction between each of the parties and the child B;

   (c)    observed interaction between any other relevant adult and the child B;

   (d)    an unannounced home visit in respect of each of the parties;

   (e)    a period of observed interaction between the father and B at the father’s home;

   (f)    a period of observed interaction between the mother and B at the mother’s home

   and that such report be released to the parties and to the Independent Children’s Lawyer on or before 4.00 pm on Tuesday 4 October 2011, with the Independent Children’s Lawyer to file a copy of Mr M’s report prior to the adjourned date for hearing.

3. The father forthwith enroll in and complete a parenting course identified to him by the Independent Children’s Lawyer.

4. The father be restrained and an injunction is hereby granted restraining him from using marijuana in any of its forms.

5. The father undertake supervised drug testing pursuant to the Chain of Custody protocol just prior to the adjourned date and within twenty-four [24] hours of a request for same having been made by the Independent Children’s Lawyer, with the father to file and serve an Affidavit annexing the results of such drug testing immediately upon receipt of same by him.

6. The mother forthwith perform all such actions, sign all such documents, pay all such fees and attend all such interviews as are necessary to enroll at Contact Centre 1 to enable the possibility of the father spending time with B at and under the supervision of Contact Centre 1.

7. Within four [4] weeks of the date hereof the mother do undertake a psychiatric evaluation with Dr J (as previously ordered by the Court on 9 May 2011), with the mother to file and serve an Affidavit annexing a copy of such psychiatric evaluation immediately upon receipt of same by her.

8. If there is no objection and subject to any privilege claimed, leave is granted to the Independent Children’s Lawyer to:-

   (a)    inspect and copy the documents produced pursuant to the subpoena directed to the Department of Education and Children’s Services;

   (b)    provide copies of same to the legal representatives for each of the parties UPON CONDITION that there be no disclosure in any of the copy documents provided or otherwise as to the name and address of B’s school.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 233  of 2011

Mr Johns

Applicant

And

Ms Eaton

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Before me today for resolution on an interim basis is a dispute between the parents of a young girl B Eaton (“B”) born in October 2005 and who is hence 5 ½ years of age.  The matter came to the attention of the Magellan Project as a consequence of allegations made by the mother that the father had inappropriately touched B.

2. I earlier ordered a number of reports to assist the Court in making an interim determination as to what might represent B’s best interests, but particularly within the context of the father’s application that he spend time with her.  I now have before me a psychiatric report on the father prepared by Dr J and dated 23 May 2011.

3. The paternal grandfather has also filed an Affidavit indicating his willingness to act as a supervisor of the father’s time to be spent with B.  He also kindly gave evidence today about his willingness to do so and answered a number of questions.  I am satisfied that he has an understanding of the role that he would need to undertake as a supervisor.

4. The mother raised concerns that the paternal grandfather was an alcoholic, a fact that the paternal grandfather acknowledged.   His instructions to the father’s solicitor Mr Harley proved to be inaccurate in one essential ingredient and that is that the paternal grandfather has not, as Mr Harley understood it, been abstaining from alcohol for the past 20 years.  The paternal grandfather acknowledged in his brief evidence that it was only in April last year that he took his last drink and the purpose was to be able to secure the return of his driver’s licence.  It is important that that issue be clarified if the paternal grandfather is to act as the supervisor of the father’s time with B.

5. Mr Harley made the submission that, as it was some 11 months since the father has seen B, it would be important for him to have some supervised time with the child prior to the preparation of a Family Report, which everybody agrees is an appropriate next step.  Even before I heard the evidence of the paternal grandfather, I was of the view that that was very much “the cart before the horse” in that in my view, it would be more appropriate that the Family Report writer give the Court a clear indication that some time to be spent by the father, be it supervised or unsupervised, was appropriate before making any such orders.  I deem it inappropriate to take any risks with such a very young child without having all necessary information before the Court. 

6. There is also the issue raised in the report of Dr J of the father’s marijuana use, use which the father acknowledged.  I am told from the bar table today that the father stopped using marijuana after he was advised by Dr J of the impediment it would place in his path to seeing his daughter.  It is appropriate, in my view, as recommended by the Independent Children’s Lawyer, that there be a period of proven abstinence from marijuana prior to the father spending any time with his daughter.  I also agree that he would need to undertake a parenting course, an action recommended by Dr J and supported by the Independent Children’s Lawyer.

7. The Act obliges me to make any decision, even on an interim basis, in accord with what represents B’s best interests.  That is clearly set out in Section 60CA of the Act.  In making that determination, Section 60CA requires me to explore the provisions of Section 60CC which is divided into two primary considerations and a number of additional considerations.  The two primary considerations stand somewhat in opposition to one another in that I am obliged to make a decision that would support meaningful relationships between the father and B but in circumstances where the child is to be protected from harm.   In my view, the latter of the two is the most important at this stage whilst a determination is made about B’s safety in the care of the father, given his marijuana use, given the allegations made by the mother against the father and given that it is now almost a year since the father has had an opportunity to spend any time with B.

8. It is not necessary, in my view, to make individual findings pursuant to the additional considerations set out in Section 60CC.   I have had regard to all of them and in my view, the decision I make reflects the most imperative of those considerations.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr delivered on 30 May 2011.

Associate: 

Date: