Krill and Crawley (No 3)

[2009] FamCA 1370

FAMILY COURT OF AUSTRALIA

KRILL & CRAWLEY (NO. 3) [2009] FamCA 1370

FAMILY LAW – CHILDREN – child lives with maternal grandmother – substance abuse by mother – injunction – time child spends with mother – discharge of appointment ICL – all applications dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Krill

RESPONDENT: Ms Crawley

INDEPENDENT CHILDREN’S LAWYER: Robert W. Winter

FILE NUMBER: ADF 1537 of 2006

DATE DELIVERED: 27 October 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 27 October 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Stewart

SOLICITOR FOR THE RESPONDENT: North East Lawyers

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mrs Tinning

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Legal Services Commission

Orders

1. That the commencement time for the child … born … April 2002 to spend time with the mother on each alternate weekend commencing on either Saturday 20 March 2010 or Saturday 27 March 2010 be 11:00am.

2. That the commencement time for the said child to spend time with the mother from Friday 16 April 2010 to Sunday 18 April 2010 be 11:00am on the Friday.

3. That the mother be restrained and an injunction is hereby granted restraining her from using or consuming illicit substances 48 hours prior to or during any period of time spent with the said child.

4. That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

5. That the order appointing the Independent Children’s Lawyer be discharged.

6. That all applications and responses be dismissed and removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1537 of 2006

MS KRILL

Applicant

And

MS CRAWLEY

Respondent

EX TEMPORE REASONS

1. The conclusion hearing in this matter was listed before me this week. However I am pleased to record that the parties with the able assistance of the legal representatives and, in particular, counsel for the Independent Children's Lawyer, have resolved all but two issues in dispute. 

2. I have been provided with minutes of order dealing with the agreed issues and I will come back to that. 

3. With the two issues that were not able to be resolved, it was agreed that I would hear oral evidence in relation to those matters and, then hear submissions from the parties and the Independent Children's Lawyer. That has now occurred. 

4. The two issues were firstly whether the time for commencement of the time that the child is to spend with his mother on the Saturdays would be 10:00am as the mother wanted or 11:00am as the grandmother wanted.  Secondly, the grandmother was seeking an order that the mother contribute $50 to her travel costs for each occasion of time spent between the child and the mother.  Part way through the taking of oral evidence, though, the grandmother, Ms Krill, withdrew her application for the payment of $50. 

5. Dealing then with the one remaining issue, the primary basis, it seemed to me, for the mother wanting a commencement at 10:00am was so that she could spend as much time as possible with the child the subject of these proceedings.

6. The way the parties have set up the proposed orders is that initially there will be time spent during the day, namely on alternate Saturdays, with handovers taking place at the B Children's Contact Service, and that is to commence in early January 2010.  That arrangement will continue until March 2010, when overnight time is to commence. 

7. Fortunately, in relation to the period of time between January and March, by the conclusion of the short hearing that I have conducted, there was, in fact, no dispute as to when time should commence on those Saturdays, and it is to be 11:00am.  That of course is what the grandmother sought.  The mother initially sought 10:00am but her counsel indicated to me that it would be appropriate to fix that time at 11:00am, given that otherwise it would turn out to be an extremely long day for the child and for the grandmother but, more specifically, from his point of view, that with the grandmother having to drive from V on the Yorke Peninsula to B, east of Adelaide, in the morning and drive back from B to V at the end of the day, there were safety issues involved, and in the interests of ensuring the safety of the child and that the child was able still to enjoy his time with his mother, that concession was made.  Thus in summary, for the period of time from January 2010 to March 2010 when the child is to spend each alternate Saturday with the mother, the commencement time is to be 11:00am. 

8. However, there was still no agreement about the start time thereafter, namely once overnight time commences in March 2010.  The agreement in relation to that is that each alternate weekend the child will spend time with the mother commencing at either 10:00am or 11:00am, depending upon what I decide, and continuing through to 4:00pm on the Sunday.  The travel arrangements will still be the same but the mother will need to get to B, east of Adelaide.  She lives in M, in eastern South Australia.  The grandmother will need to bring the child to B first thing on Saturday morning and then collect the child from B on the Sunday afternoon. 

9. Now, it is readily apparent why the same concession has not been made by the mother in relation to the commencement time on these occasions because, of course, with that time span there is no specific safety issue as there is when time is to be only spent on the one day. 

10. I heard evidence as to the arrangements that each party intends to put in place on the Saturday morning.  For the mother's part, she will rely on either using public transport, namely the bus service, or on receiving assistance from other persons who have motor vehicles and who can drive her to B.  Her particular difficulty is if she had to take the bus, the bus leaves at 8:00am and arriving at B at 8.36am or 8.40am.  She has another child, a young child, whom she takes with her on these occasions, and her concern is that she will then need to, in effect, wait around for over two hours before she can collect the subject child if it is to be 11:00am.  That is not a difficulty though, if she is able to be driven to B but, of course, even in that event there is still the issue for the mother of wanting to spend as much time as possible with the subject child, and in that respect an hour makes a difference. 

11. For the grandmother's part, she tells me, and I accept, that there is a minimum travel time of three hours to get from V to B, that the child is not an early riser and she would find it difficult to get him up and ready to go as she would have to by, at the latest, 7:00am, if she was obliged to have the child at B by 10:00am.  She says that would impact negatively on the child and for that reason she opposes it.  She says it is a far more convenient and effective timeframe if she is able to, for example, leave V with the child at around 8:00am and that will enable her to get the child to B at 11:00am. 

12. This is a difficult issue.  I must say though that I am not convinced that the time should be 10:00am for one of the reasons proffered by the mother, namely if she catches the bus, she will have to wait around until 11:00am.  I do not accept her evidence as to her need to use the bus.  In my view she is either able to rely on other persons taking her or her financial circumstances are such that she can either repair her car or purchase another one and drive herself.  There is a rider to that and that is there may be some concern about whether she is able to maintain her driver's licence, given certain driving charges that she is facing, but that is her problem, as far as I am concerned.  I am well aware of the history of this matter, and thus for my part I do not accept that as a reason for having the commencement time at 10:00am, as opposed to 11:00am.

13. However, that still leaves the other reason proffered by the mother, which is wanting to spend as much time as possible with the child and, in the circumstances of this case, it must be said that that would be in the child’s best interests.  Nevertheless, as with most issues in matters like this, it is a case of balancing advantages and disadvantages, and considering the respective positions and determining in that context and in that background what is in the best interests of this child.  I would be concerned if the child was required on each alternate Saturday to break his routine, to rise early, to then be ready to leave at 7:00am, bearing in mind that what is being talked about is not the one day occasion but the weekend occasion of time spent and, in my view, an 11:00am start on the Saturday with a conclusion at 4:00pm meets the child's needs in spending time with his mother.  It would have been nice if it could have been 10:00am but to repeat it is a question of looking at all the circumstances and determining what is in the best interests of this child given that he is living with and will continue to live with his grandmother, who has the primary responsibility for his care.  In the circumstances, I consider that the commencement time should be 11:00am rather than 10:00am.

14. I have now made orders in this matter but they are not yet entered on the court's record.  In these circumstances the grandmother has raised whether there should be a continuation of the injunctions that have been in place for some time restraining the mother from consuming illegal drugs whilst the child is in her care and for 48 hours before that.  That was an order that was specifically made on 12 May 2008 and has continued until further order ever since. However, even before that there were orders made of a similar nature, and it is no secret that the mother's alleged drug-taking has been an issue in this case since its commencement.  In any event, the grandmother seeks that that order be continued on a permanent basis.  Ms Hurley, counsel for the Independent Children's Lawyer, supports that.  Mr Stewart, though, is without instructions because, unfortunately, his client has left the court room and he does not know where she is at this precise time. 

15. Given the history of this matter and the fact that this order has continued up until the present time, and as all counsel candidly say to me, it was simply not a matter raised during the discussions leading to the consent order, I am prepared to make a further order as sought.  Obviously it cannot be by consent because Mr Stewart is without instructions but, in my view, it is a necessary order in the interests of the child. 

I certify that the preceding 15 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 27 October 2009.

Associate