Kron and Albinson

[2014] FCCA 686

FEDERAL CIRCUIT COURT OF AUSTRALIA

KRON & ALBINSON [2014] FCCA 686

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – where mother did not attend court for the hearing.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 62G, 67Q, 68L

Applicant: MS KRON

Respondent: MR ALBINSON

File Number: SYC 4725 of 2011

Judgment of: Judge Scarlett

Hearing date: 24 March 2014

Date of Last Submission: 24 March 2014

Delivered at: Sydney

Delivered on: 24 March 2014

REPRESENTATION

The Applicant: No appearance

The Respondent: Appeared in person

Solicitors for the Respondent: G & S Law Group Pty Ltd

Independent Children's Lawyer: Ms Ung

Solicitors for the Independent Children's Lawyer: Legal Aid NSW Nowra

ORDERS

UNTIL FURTHER ORDER

1. All earlier parenting Orders are discharged.

2. The children [X] born [in] 2007 and [Y] born [in] 2009 are to live with the father, who is to have sole parental responsibility for the children.

3. The children [X] and [Y] are to spend time with the mother as follows:

   (a)During the school term, from 5:00 pm on Saturday until the commencement of school on the Monday in each week, with the exception of Fathers’ Day, when the children will remain in the care of the father;

   (b)On the weekend in September in which Fathers’ falls, the children will spend time with the mother from immediately after school on Friday until 5:00 pm on Saturday;

   (c)During the school holidays, from 5:00 pm on Saturday until 5:00 pm Tuesday in each week;

   (d)From 5:00 pm on Christmas Eve until 5:00 pm on Christmas Day in 2014 and all years ending in an even number; and

   (e)From 5:00 pm on Christmas Day until 5:00 pm on Boxing Day in 2015 and all years ending in an odd number.

4. For the purpose of facilitating changeovers of the children between the parents, each party must do all things necessary to facilitate the following:

   (a)The mother or a responsible adult on her behalf is to collect the children from school for all changeovers that take place immediately after school;

   (b)The mother or a responsible adult acting on her behalf is to deliver the children to school for all changeovers that take place at the commencement of a school day; and

   (c)All other changeovers are to take place in the foyer of the [omitted] Police Station in [address omitted].

5. Each party is to attend upon their general practitioner to obtain a referral to a pathology laboratory for the purpose of undertaking supervised urinalysis to be conducted in accordance with Australian/New Zealand Standard 4308:2001 “Procedures for the specimen collection and the detection and quantitation of drugs of abuse in urine” to test for the presence of illegal drugs and/or substances, amphetamines, cannabis or cocaine.

6. Each party must undergo such supervised urinalysis on occasions as requested by the Independent Children’s Lawyer, such requests to be:

   (a)made in writing; and

   (b)with a frequency no greater than one test in every two week period.

7. Any test so requested by the Independent Children’s Lawyer:

   (a)must be completed within 24 hours of receipt of the request;

   (b)must be verified by a Certificate; and

   (c)be carried out at the cost of the relevant party.

8. A copy of the Certificate issued as a result of the urinalysis must be provided to the Independent Children’s Lawyer within 48 hours of receipt of the certificate.

9. Each party is restrained by injunction from using or administering to themselves any prohibited drug at any time when the children are in their care under these Orders or for twelve (12) hours beforehand.

10. The father and the mother are to maintain the enrolment of the children [X] and [Y] at the [C] Public School and not withdraw either of the children from that school without leave of the Court.

11. The father and mother must ensure that each child attends school regularly.

12. The father and the mother are to ensure that the children [X] and [Y] receive regular meals and are washed and bathed regularly on all occasions when the children are in their care under these Orders.

13. The parties are to attend upon a Family Consultant at a time and on a date when directed by the Director of Child Dispute Services for the preparation of an updated Family Report under the provisions of s.62G of the Family Law Act 1975.

14. The Application is set down for hearing at 10:00 am on Tuesday 30 September to go to Wednesday 1 October 2014.

15. The Applicant must pay the setting down fee by 19 September 2014.

16. The parties must file all affidavit material upon which they seek to rely no later than 19 September 2014.

17. The parties must attend Court on 30 September and 1 October 2014 or Orders may be made in their absence.

18. The Independent Children’s Lawyer is granted liberty to apply on seven (7) days’ notice.

19. The Independent Children’s Lawyer is granted leave to issue a further ten (10) subpoenas without charge.      

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4725 of 2011

MS KRON

Applicant

And

MR ALBINSON

Respondent

REASONS FOR JUDGMENT

Application

1. This is a parenting Application that has a chequered history, complicated by the fact that at various times one or both of the parties have failed to attend Court when required.

2. It is high time that final parenting orders were made in respect of the parties’ two children, [X], who was born [in] 2007 and [Y], who was born [in] 2009.

Background

1. On 7^th July 2011 the Mother applied to the Local Court of New South Wales at [omitted] for an order placing the names of the two children on the Airport Watch List (now known as the Family Law Watch List), claiming that she feared that the Father would remove the children to Lebanon, where he had extended family. Lebanon is not a party to the Hague Convention on the Civil Aspects of International Child Abduction.

2. On 2^nd August 2011 the [omitted] Local Court made interim Orders restraining the parties from removing or attempting to remove the children from Australia and placing their names on the Watch List. The Court also transferred the Application to the Sydney Registry of this Court.

3. On 18^th October 2011 the Mother brought an Amended Application to this Court, seeking the issue of a Recovery Order under the provisions of s.67Q of the Family Law Act 1975 (Cth) for the return of the older boy, [X]. She also sought interim and final Orders that she should have sole parental responsibility for both children and that they should live with her.

4. In her affidavit of 17^th October 2011 the Mother deposed that the relationship between the Father and herself ended in late May 2009, about two weeks after the birth of the parties’ second child, [Y]. The Mother also deposed that the Father commenced a relationship with her sister. She and the Father agreed that the children would spend equal time with each parent on a week-about basis. However, when she found out that the child [Y] was in the care of her sister, she took him back into her care.

5. The Mother deposed that the Father refused to return the older child [X] to her and that she had not seen him since December 2010.

6. On 25^th October 2011 Federal Magistrate Baumann[1] made orders by consent providing that:

   a)[Y] would live with the Mother;

   b)[X] would live with the Father; and

   c)Each child would spend time with the other parent.

   [1] As his Honour then was

7. On 9^th December 2011 the Father filed a Response seeking both interim and final parenting orders and a Notice of Child Abuse or Family Violence. In his Response the Father sought orders providing that both children would live with him and that he should have sole parental responsibility for them. He further sought orders that the Mother’s time with the children should be supervised and she should submit to urinalysis testing to determine the presence of drugs of abuse.

8. On 22^nd December 2011 Federal Magistrate Altobelli[2] ordered that the children’s interests were to be separately represented by a lawyer under s.68L of the Family Law Act and that the children should live with the Father until further order. The Mother’s time with the children was to be supervised by an agreed person and both parties were to undergo random urinalysis, with the arrangements for this process being made by the Independent Children’s Lawyer when appointed.

   [2] As his Honour then was

9. On 25^th January 2012 the Mother filed an Application in a Case, seeking orders that the two children should live with her and she should have sole parental responsibility for them.

10. On 17^th February 2012 Federal Magistrate Foster[3] ordered that a Family Report should be prepared under the provisions of s.62G of the Act. The Mother was granted leave to withdraw her Application in a Case.

    [3] As his Honour then was

11. The Family Report was released to the parties on 8^th August 2012. In that Report the Family Consultant recommended that:

    a)The parties should have joint parental responsibility for the children;

    b)The children should continue to live with the Father;

    c)The children’s time with the Mother should gradually increase over several months;

    d)[X] should be enrolled in a school to which there is relatively easy access by public transport; and

    e)[X] should undergo a comprehensive speech and language assessment by a speech pathologist.

12. On 16^th August 2012 Foster FM ordered an updated Family Report. The updated Report was released to the parties on 20^th November 2012.

13. In that Report, the Family Consultant maintained her recommendations that the parties should have joint parental responsibility for the two children and that they should continue to live with the Father. She recommended that the children’s time with their mother should be increased gradually so that by March 2013 they would be spending two consecutive nights each week with her.

14. On 26^th November 2012 Foster FM made further interim orders by consent providing that:

    a)The children would continue to live with the Father;

    b)The children would spend time with the Mother each Saturday and Sunday for a period of four hours each day; and

    c)The parties were to attend a Family Dispute Resolution Conference organised by Legal Aid New South Wales.

15. On 5^th February 2013 the Mother’s solicitors filed a Notice of Withdrawal. That same day, the matter came back to Court and Foster FM noted that the Legal aid Mediation had not taken place.

16. On 25^th March 2013 Foster FM made interim orders by consent substantially increasing the mother’s time with the children over the ensuing months and noting that the parties intended to engage in a further Family Dispute Resolution Conference in September 2013 and that the Independent Children’s Lawyer proposed to apply for a further grant of legal aid for that purpose.

17. On 27^th November 2013 the matter was mentioned before Altobelli FM in Wollongong. There was no appearance by the Mother. The Father’s solicitor and the Independent Children’s Lawyer both attended by telephone. His Honour transferred the matter to the Sydney Registry of the Court for mention by me on 16^th December.

18. The Father’s solicitor filed a Notice of Withdrawal on 12^th December 2013.

19. Neither the Mother nor the Father attended Court on 16^th December. The only appearance was by a solicitor appearing for the Independent Children’s Lawyer. The matter was adjourned to the following afternoon, on which occasions both parents attended in person. I made orders by consent providing that the children would spend time with their mother from 10:00am on 26^th December to 5:00pm on 27^th December.

20. The parties were directed to file and serve short updating affidavits prior to the next mention on 8^th January 2014.

21. Neither party filed an affidavit. The Father and the Independent Children’s Lawyer attended court on 8^th January but the Mother did not. A copy of an Interim Apprehended Domestic Violence Order was tendered, showing the Mother as the protected person and the Father as defendant. The orders made were the standard orders and a further order that:

    The defendant must not approach or contact the protected person by any means except through the defendant’s legal representative.

22. An order was made that the Applicant Mother must attend Court on the next occasion and the matter was adjourned to 17^th January 2014.

23. Neither party attended Court on the next occasion. The Independent Children’s Lawyer attended Court and was granted leave to inspect any material produced on subpoena. The Application was dismissed under the provisions of Rule 13.03C due to the Mother’s continuing failure to attend.

24. The Application in the Father’s Response was listed for an undefended hearing on 24^th February 2014.      

The Hearing on 24 February 2014

1. The Mother did not attend Court. The Independent Children’s Lawyer applied for a recovery order to issue.

2. The Application came back to Court on 18^th March for further mention. On that date the Mother attended Court, unrepresented. The Father attended Court, represented by a solicitor, Mr Georges. The Independent Children’s Lawyer, Ms Ung, attended Court.

The Hearing on 24 March 2014

1. The application was listed for an interim hearing today.  Regrettably, the Mother has not attended Court.  She was called at 10.55am and 12.05pm.  No message has been received from the Mother or any person on her behalf, indicating that she has in some way been delayed, hindered or prevented from attending court due to illness, injury or other emergency. 

2. The Father attended Court, no longer represented by his solicitor and he informed the Court that he had dispensed with the solicitor’s services.  The Independent Children's Lawyer has of course attended Court.

3. I have had the opportunity to peruse various documents submitted in evidence, by the Independent Children's Lawyer, including a calendar setting out the times when the Mother was spending time with the child, subpoenaed material from the Department of Family and Community Services, notes from [omitted] Health Service from [omitted] Hospital, material from [H] Public School, material from an agency called At Full Potential and material from the New South Wales Police.

4. The Independent Children's Lawyer has submitted a minute of proposed parenting orders relating to the time that the children should spend with the Mother, between now and when the matter is listed for final hearing or when final orders are made.  I’m strongly of the view that the date should be set for a final hearing and that the Family Report should again be updated.

5. The Father told the Court that he did not agree with the proposed time suggested by the Independent Children's Lawyer for the Mother to spend time with the children. He was critical of the Mother in his submission, saying that she had lost the children in the shopping mall or in a park, on three occasions. He complained that she had forgotten to bath the children or feed them, unless the older child [X] reminded her.

6. The Father is of the view that the Mother is currently using illicit drugs. It is noteworthy on that point that the Independent Children’s Lawyer told the Court that neither party had been assiduous in complying with the orders for urine analysis and submitting the appropriate certificates, although the Father said that he had attended on some occasions.

7. The children are now currently attending school at [C] Public School.  The younger child is in kindergarten; the older child is in year one. The Father indicated that he had put the children into [C] Public School, because it was near to his residence, being only three streets away.

8. The reason why the Independent Children's Lawyer suggested that the Mother should spend time with the children during the school term, from 5:00pm on Saturday to the commencement of school on Monday of each week, was because she had been told by the Mother that the Mother often obtains casual work on Saturdays and that it would be better therefore the children to be with the mother on Sundays, when the Mother was able to care for them.

9. The Independent Children's Lawyer’s lawyer, in her submission, directed the Court’s attention to a number of disturbing matters contained in the subpoenaed material.  There are allegations that the Father’s home is unhygienic.  There are allegations that the Father committed a sexual assault on the Mother on 15^th December 2013, although no charges appear to have been made as a result of that. 

10. There has been a report made to the Department of Family and Community Services that the children were running wild.  There were concerns expressed that the Father had not been living at home with the children, but had been essentially homeless. There was a report that the Father and his current partner had been using marijuana whilst the children were in the Father’s care. It is of relevance that the Mother has another child. This child is at least a half-sister to the subject children. 

11. The Independent Children Lawyer raised the issue that the child’s father may be the Father in these proceedings but there is no evidence on this point and no admission by the Father.  The Independent Children’s Lawyer expressed the justifiable concern that the children had been missing school.  There were not only absences but there were reports the children would arrive late at school or be picked up from school early, before school had completed. 

12. It is also claimed that the Mother’s home is unhygienic and that the Mother has been entertaining inappropriate male visitors, whatever they may be, when the children have been in her care. 

13. The counselling notes of the child [X] are of concern, especially as there appear to be attachment issues.  [X] has said that he wants to live with his mother and not see his father again.  The younger child, [Y], wants to live with the Father and not see his mother again. 

14. The Father had little to offer except in submission, except to oppose the orders proposed for the children to spend time with the Mother essentially on Sundays for the reasons given and to deny the alleged assault of the Mother. 

15. It is significant and one of the matters that the Court must take into account when assessing the best interests of the children that there are family violence issues. This is a matter referred to in section 60CC of the Act and of course, 60CA of the Act requires that the Court must regard the best interests of the children as the paramount consideration. There have indeed been matters of concern relating to family violence.

16. On 11^th February this year a final apprehended domestic violence order was made, which remains in force for a period of 12 months. The Father was also placed on a bond under section 9 of the Act, again to be enforced for a period of 12 months in respect of a breach of an earlier apprehended domestic violence order. 

17. There are, in other words, a variety of reasons why the Court would be concerned about the welfare of the children.  Matters of family violence, allegations of drug abuse by the parents and allegations of non-attendance or irregular attendance at school figure prominently.  It is also concerning that there are reports that the children are not being fed or bathed when in their mother’s care. 

18. It is for these reasons that I propose to issue one set of interim parenting orders which are to replace all of the existing orders and which are intended to take the parties through until the final hearing, which will take place on 30^th September and 1^st October. 

19. In my view, it is better for the parties to have one document setting out the orders that they are to abide by to avoid any confusion. 

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 7 April 2014