KELLER & CAVETT
[2013] FCCA 1757
•10 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KELLER & CAVETT | [2013] FCCA 1757 |
| Catchwords: FAMILY LAW – Children – Parenting Orders – Interim Orders – child aged 2 years – application by mother to vary previous Interim Consent Orders – drug issues – parental responsibility – equal shared parental responsibility – best interests of the child – where child aged 2 years living with father and parental grandparents. |
| Legislation: Federal Circuit Court Rules 2001, r.15.09 |
| Cases cited: Cowling & Cowling [1998] FamCA 19; (1998) 22 Fam LR 776; FLC 92-801 |
| Applicant: | MS KELLER |
| Respondent: | MR CAVETT |
| File Number: | NCC 544 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 9 September 2013 |
| Date of Last Submission: | 9 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 10 September 2013 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Cumming as Agent |
| Solicitors for the Applicant: | Coast Law |
| Solicitor for the Respondent: | Mr Davidson |
| Solicitors for the Respondent: | Paladin Law Pty Limited |
| Independent Children’s Lawyer: | Ms Hall |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
UNTIL FURTHER ORDER:
All earlier parenting Orders are discharged.
The Applicant and the Respondent are to have equal shared parental responsibility for the child X born (omitted) 2011.
The child, X is to reside with the Father on condition that he remains living at (omitted), with his parents.
The Mother is to spend time with X at her residence at (omitted) as follows:
(a)From 3:30pm on Friday until 10:30am on Sunday each week;
(b)From 10:00am to 3:00pm on the Mother’s birthday 25 November in each year;
(c)From 10:00am to 3:00pm on the child’s birthday (omitted) in each year; and
(d)From 3:30pm on Christmas Eve until 3:30pm on Christmas day.
The time that the Mother spends with X in accordance with Order (4) above is to be implemented by the Father delivering X to the Mother at McDonalds at (omitted) and by the Mother returning X to the Father at McDonalds at (omitted).
The Mother is to telephone the Father on his mobile or landline telephone between 7:00pm and 7:30pm each evening the Mother is spending time with X to ensure that she is present with the Mother.
The Mother is to ensure that X is not brought into contact with or is in the presence of Mr L during the time that she is spending with X in accordance with these orders.
Both parties are to have telephone contact with X in the mornings between 8:00am and 9:00am and in the evenings between 5:00pm and 6:00pm on each day that X is not residing or spending time with them.
The parties are restrained from using any illicit drugs and/or substances.
The parties must undergo urinalysis as requested by the Independent Children’s Lawyer in writing not more than twice a month within 24 hours of such request being made.
The parties must provide to the Independent Children’s Lawyer the urinalysis result within 24 hours of the receipt of such result.
Within 14 days of the date of this order the Mother is to provide to the Independent Children’s Lawyer and to the Father’s solicitor evidence of compliance with Order (4) made on 8 May 2013 requiring the parties to enrol in and complete a Parenting After Separation course.
Within 14 days of the date of this order both parties are to enrol in a Triple P Parenting course, and attend upon and complete that course and thereafter provide to the Independent Children’s Lawyer evidence of having completed that course.
Each parent is to ensure that the other parent is kept informed of:
(a)any medical problems or illnesses suffered by the child;
(b)any medication that has been prescribed for the child;
(c)any social, day care or religious functions which the child is to attend;
(d)the residential address and particulars of other people who may reside at that address with the child; and
(e)any other matter relevant to the child’s welfare.
For the purposes of Order (14) above the parties shall:
(a)in the case of an emergency communicate with each other by mobile telephone; and
(b)in all other cases use a communication book to convey information about the child, such book to pass between the parties along with the child’s possessions at changeovers.
Each party shall within 72 hours of the Independent Children’s Lawyer issuing written notice to their solicitors, submit a blood sample to (omitted) for Carbohydrate Deficient Transferrin (CDT) testing using the HPLC method.
For the purposes of Order 16 above:
(a)each party shall bear the cost of his or her own tests;
(b)each party shall provide to the Independent Children’s Lawyer and to the other party’s solicitor a copy of the test results forthwith upon receipt; and
(c)test results shall be made at a frequency of no more than twice per month.
The parties are to attend upon a family consultant for the purposes of preparation of a report under section 62G of the Family Law Act 1975 in respect of the child X born on (omitted) 2011 directed to all matters arising under section 60CC of the Family Law Act 1975 and any other matter relevant to the welfare of the child and the assessment by the Family Consultant is to include the child’s paternal grandparents and any other person proposed by either party to be involved in the long-term care of the child.
In the event that the parties are able to fund a report by a single expert they are to submit Minutes of Order to the Court for an order to be made in chambers appointing Mr K or other similarly qualified expert in relation to drug and alcohol risk issues.
IT IS NOTED that publication of this judgment under the pseudonym Keller & Cavett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
NCC 544 of 2013
| MS KELLER |
Applicant
And
| MR CAVETT |
Respondent
REASONS FOR JUDGMENT
This is an application by the Mother of the child called X, who is just two years of age, to vary Interim parenting orders that have been made by consent. The substance of her application is that she seeks that the child X should live with her.
There are two sets of parenting orders in force at the moment. There were orders made by consent on 5th April 2013. These were modified by orders made on 8th May 2013. The child is currently living for most of the time with her father, the Respondent, who lives in (omitted) with his parents.
There are orders providing that the Mother spends time with the child at her residence, which is a fair way away from (omitted) in (omitted), (omitted).
The Mother’s application to vary the interim orders is opposed by the Father. It is not supported by the Independent Children’s Lawyer.
The principal reasons why the Mother’s application is opposed are, first of all, the rather unsatisfactory compliance by the Mother with a drug-testing regime compared to the satisfactory compliance by the Father and the concern about such a major change of residence being imposed on a child at this young age with its consequent destabilising influence.
As Mr Davidson for the Father has submitted, for all but one month of her two years of life, X has actually lived in the (omitted) residence, which is occupied by the Father and his two parents. That is also an issue that has exercised the mind of the Independent Children’s Lawyer and caused her some concern.
This is an Interim application. The Independent Children’s Lawyer is of a view that the matter needs to proceed to a final hearing as soon as it can, along with more drug tests, a Family Report and, if the parties are in the position to fund such a report, a Court Expert Report under r.15.09 relating to drug and alcohol issues.
The preferred reporter would be Mr K, who is well known in this jurisdiction for his work in drug and alcohol assessment and recently received the medal of the Order of Australia in recognition of his contribution to the field. However, the preparation of such a report would cost money which does not readily seem to be available. The Independent Children’s Lawyer has provided a set of consent orders relating to procedural issues but also relating to a further drug test for Carbohydrate Deficient Transferrin (CDT) testing using the HPLC method.
I am informed from the parties’ submissions that that is to be in addition to the current urinalysis. I am mindful of the evidence submitted by the Independent Children’s Lawyer about the results of the urinalysis tests provided by the parties. The Mother has been tardy in respect of most of these tests by a considerable number of days, whereas the Father’s compliance with the regime seems to be perfectly satisfactory. Drug and alcohol issues have been a feature of the parties’ relationship since well before X was born and remain a considerable concern.
The Law to be considered when making a parenting Order
The Court, in dealing with any parenting matter, must have regard to the requirement of section 60CA of the Family Law Act that, in deciding whether to make a parenting order, a Court must regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections 2 and 3 of section 60CC of the Family Law Act. The primary considerations are in subsection 2 and are:
(a) the benefit for the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 2A now requires the Court to place a greater weight on the consideration in paragraph (b), the need to protect the child from physical or psychological harm.
There are a number of additional considerations, not all of which are relevant in this case, but they have been considered. Whilst the Court is required to consider any views expressed by the child, it is quite clear that this child’s state of age and state of maturity is such that no weight can be given to those views. She has only just had her second birthday some eight days ago.
She does have a relationship with each parent. She is also residing with her paternal grandparents and, indeed, the current orders require the Father to continue living with his parents, the paternal grandparents, as a condition of the parenting order.
It is envisaged that the paternal grandparents will be interviewed by a Family Consultant preparing a Family Report. The child’s parents do not appear to have a good relationship at present. There is recent affidavit evidence from the Father referring to acrimonious telephone communication when he rang to speak to the child and was a few minutes late. The Mother took a very dim view of that.
To my mind, one of the considerations that weighs heavily is that in subsection 60CC(3)(d):
the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of her parents; or (ii) any other child or other person (including any grandparent or other relative of the child) with whom she has been living.
Ms Hall, the Independent Children’s Lawyer, put to the Court that this child has had a somewhat unsettled history of residence and it would be necessary for her wellbeing to keep change to a minimum. That is why the proposal to vary this child’s primary residence from the Father’s home to the Mother’s home, which is a considerable way away, and which would involve the Mother taking on the primary caregiver role, has been opposed by both the Independent Children’s Lawyer and the Father.
It is, of course, relevant that when the parties were interviewed by a Family Consultant for the purpose of a child dispute conference, that the Family Consultant, in her memorandum to the Court, indicated that there was some doubt as to who the primary caregiver had actually been. At the moment, as a result of the earlier consent orders, the child is living primarily with her father and his parents and it appears that the paternal grandparents are playing a significant role. Mr Davidson for the Father submitted that the Mother had not provided any up-to-date evidence of accommodation arrangements.
The situation is, as Mr Cumming conceded, that the Mother’s initial affidavit dating from the commencement of the proceedings was her most recent affidavit, but it is a fact that she has provided further affidavit material, including an affidavit from her father, a copy of which appeared not to have reached Mr Davidson for some reason, although I think it is fair to say that not a great deal was going to turn on Mr Keller’s evidence. I am concerned that the drug history of the parents is a factor that impacts on this child’s wellbeing.
It is disturbing that the Mother, for whatever reason, and it may well be a reason of logistics or finance, as Mr Cumming submitted yesterday, but in any event the Mother has been significantly tardy in complying with requirements for urinalysis. The Father, possibly with better support from his parents, appears to have been more consistent in this regard. The Court would take a very dim view of a parent continuing to be involved in illicit drugs if that parent was going to be the primary caregiver of a child of such tender years.
I am concerned about the effect of removing the child from the environment where she appears to be settled. I am not for a moment advocating a return to the well-known decision of Cowling & Cowling[1] but I am of the view that under paragraph (d) of subsection 60CC(3) the effect of what would be a major change in the circumstances on an interim basis would not be in her best interests.
[1] [1998] FamCA 19; (1998) 22 Fam LR 776; FLC 92-801
For the time being at least, certainly until evidence can be tested at a final hearing I am of the view that X should remain living with her father and paternal grandparents in the current arrangements. I have looked at the two sets of interim parenting orders and the proposed consent orders – some of which are procedural – from the Independent Children’s Lawyer.
To my mind there is a risk of confusion if the parents have to rely on three sets of Court orders. What I have done is prepared one set of interim orders which I believe incorporate all the current matters of the orders of 5th April and 8th May and include the matters in the proposed consent orders from the Independent Children’s Lawyer.
Whilst I have formed the view that X should remain living with her father and grandparents and spending time with the Mother, I have given thought to the question of parental responsibility. The Court is required to do so under section 61DA of the Act and subsection (3), which relates to interim proceedings makes it clear that in the ordinary course of events parties should have equal shared parental responsibility of the child unless the Court considers that that is inappropriate. I do not consider it inappropriate at this stage.
I propose to make an order for equal shared parental responsibility. I am mindful of the fact that at a final hearing section 61DB of the Act requires the Court to consider parental responsibility afresh and to disregard the allocation of parental responsibility when making interim orders. Section 65DAA requires the Court, when orders are made for equal shared parental responsibility, to consider whether it is in a child’s best interests and reasonably practicable for the child’s parents to have equal time with the child, I do not consider that it is in her best interests or reasonably practicable for that to occur.
I have also considered substantial and significant time with the Mother and I am also of the view that it is not at this stage in the child’s best interests even if it were reasonably practicable. However, I have given consideration to the fact that for a child of two years of age she needs to spend frequent time with a parent in order to develop an attachment. The current orders do provide for weekly time with the child. It does occur to me that there are some special occasions which should also be considered, most notably the Mother’s birthday, which comes up in November. No doubt she would want to spend some time with her daughter on her birthday and, of course, the child’s birthday, which has only recently passed.
At the same time Christmas is approaching and I am of the belief that the Mother would wish to spend some time over the Christmas period with her daughter and whilst two years of age is probably a little bit young for the child to have formed a strong view about the significance of Christmas it is an occasion that would have some significance for the Mother. I have made orders providing for the Mother to spend time with the child on those times.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 30 October 2013
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Family Law
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