Marcroft & Bardine

[2020] FCCA 2843

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARCROFT & BARDINE & ANOR [2020] FCCA 2843

Catchwords:
FAMILY LAW – Parenting – concerning five children aged between three and 11 years old – where the children live with the paternal grandmother and spend time with the mother – where the mother has a history of illicit drug use – whether the children are at risk with the mother and her partner – consent orders concerning children’s time with the parties.  

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS MARCROFT

First Respondent: MR BARDINE

Second Respondent: MS GARDNER

File Number: DNC 426 of 2018

Judgment of: Judge Young

Hearing date: 30 September 2020

Date of Last Submission: 30 September 2020

Delivered at: Darwin

Delivered on: 30 September 2020

REPRESENTATION

Counsel for the Applicant: Ms Mazga

Solicitors for the Applicant: Central Australian Women’s Legal Service Inc

First Respondent: No appearance

Counsel for the Second  Respondent: Ms Czislowski

Solicitors for the Second  Respondent: Ward Keller Lawyers

Counsel for the Independent Children’s Lawyer: Ms Romeo

Solicitor for the Independent Children’s Lawyer: Margaret Romeo Barrister & Solicitor

UPON NOTING:

That these orders are made by consent of the paternal grandmother, the mother and the Independent Children’s Lawyer and not by the father.

THE COURT ORDER

1. That the paternal grandmother, mother and father have equal shared parental responsibility for the children, W ("W") born in 2008, X ("X") born in 2011, Y ("Y") born in 2013, Z ("Z") born in 2015 and V ("V") born in 2017 (“the Children”).

2. That the children W ("W") born in 2008, X ("X") born in 2011, Y ("Y") born in 2013, Z ("Z") born in 2015 and V ("V") born in 2017 live with the paternal grandmother.

3. That, should a non-urgent long term decision be required the paternal grandmother will use her best endeavours to contact the mother and father in writing about any decision to be made for the children and should the mother or father fail to respond within 7 days, then the paternal grandmother will be permitted to make the long term decision without the mother’s and/or father's agreement.

4. That should an urgent long term decision be required, the grandmother is to contact the mother and father by telephone and should the mother or father fail to respond, then the paternal grandmother will be permitted to make the long term decision without the mother’s and/or father's agreement.

5. That the grandmother and mother ensure they keep each other informed of their most up-to-date residential address and a mobile phone number and notify the other within 48 hours of any changes to those details.

6. That the children spend time with the mother each alternate weekend  from Saturday at 10am to Sunday at 4pm (or such times that B Families can facilitate).

7. That in addition to the time under Order 6, and subject to B Families availability, the children spend time with the mother, from 10am to 4pm as follows:

   (a)During school holidays, the children spend time with the mother for one additional day each week, and where possible, that day is to coincide with the following:

   (i)X's birthday.

   (ii)Y's birthday.

   (b)On Christmas Eve or Boxing Day.

   (c)On Mother's Day, if the mother is not spending time with the children.

   (d)On W's birthday.

   (e)On Z’s birthday.

   (f)On V's birthday.

8. That the children spend time with the father, as agreed between the father and paternal grandmother, with such time to be supervised by the paternal grandmother or her partner.

9. That the changeover occur at B Families at such times and conditions as the Director of B Families or his/her nominee can accommodate.

10. The children have telephone communication with the mother as follows:

    (a)Each Tuesday at 6pm for up to 30 minutes.

    (b)If the mother is not spending time with the children, on each child's birthday at 6pm for up to 30 minutes.

    (c)On the mother's birthday at 6pm for up to 30 minutes

    (d)On Christmas morning at 9am for up to 30 minutes.

    (e)If the Mother is not spending time with the children, on Mother's Day at 9am for up to 30 minutes.

    (f)The mother shall place the call to the paternal grandmother's mobile.

11. The mother is to submit to urinalysis analysis tests for the detection of drugs randomly as requested by the paternal grandmother or her solicitor no more than four times per calendar year from the date of these orders, such test to be carried out within 24 hours of receipt of the request on a supervised basis and to be collected in accordance with the chain of custody protocol specified in AS/NZ 4308:2008 and the mother provide evidence to the other party of undergoing the test within 48 hours, and the results of same be provided to the other party within 48 hours of receiving same.

12. That if the mother produces a positive result pursuant to Order 11 or if she fails to comply with Order 11, then time spent with the children will revert back to supervised time on such times and conditions as the Director of B Families or his/her nominee can accommodate on no more than one occasion per week, and such time will remain supervised until the mother provides a negative test result at which time Order 6 & 7 recommences.

13. The mother is restrained by injunction and an injunction issue restraining the mother from:

    (a)Allowing the children to have any contact with Mr C and/or Ms D.

    (b)Spending time with the children at the residence of Ms E.

    (c)Consuming alcohol or marijuana 24 hours prior to spending time with the children, or whilst the children are in her care.

14. The parties are restrained by injunction and an injunction issue restraining each of the parties from:

    (a)Consuming illicit substances or alcohol to excess.

    (b)Talking about adult issues with the children.

    (c)Denigrating the other party or the other party's family in the presence or hearing of the children and from allowing the children to remain in the hearing or presence of any other person who may be denigrating the other party or that party's family.

    (d)Engaging in or exposing the children to abuse (including verbal abuse) or family violence, and that parties will take all measures necessary to remove the children from an incident of family violence should such circumstances arise.

    (e)Allowing the children to remain in the presence of any person who is intoxicated or under the influence of illicit substances.

15. That the mother continues to undertake domestic violence counselling until such time as her counsellor deems is not necessary.

16. That the parties shall communicate only in relation to parenting issues and always communicate respectfully.

17. That except as otherwise agreed or for the purposes of Order10 herein, the parties shall communicate in text message only, noting that the parties agree that the mother can contact the paternal grandmother by phone if she needs to return the children early.

18. That the parties are to advise one another in the event of any serious illness and/or accident or other like emergency any child may suffer whilst in their care and the parties are permitted to discuss the child’s diagnosis and prognosis with the treating medical personal.

19. The each party is hereby authorised to obtain from the children's school/s, childcare centres, kindergartens day and the like all notices, letters, school reports and invitations.

20. That when the children are spending time with the mother, the mother is to be primarily responsible for their care, and in substantial attendance.

21. That the parental paternal grandmother is permitted to travel interstate or intrastate with the children on not more than three occasions per year, provided:

    (a)She gives the mother not less than 14 days' notice.

    (b)If the travel interferes with the children's time with the mother, there will be make up time as agreed between the parties.

22. That the parties shall attend further Family Dispute Resolution in or after May 2021 for the purposes of discussing the children's time with the mother.

23. That if the parties are unable to reach an agreement at Family Dispute Resolution pursuant to Order 22 herein, either party be permitted to bring an Application to vary these Orders, notwithstanding the rule in Rice v Asplund.

24. That the Independent Children’s Lawyer be discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 426 of 2018

MS MARCROFT

Applicant

And

MR BARDINE

First Respondent

And

MS GARDNER

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

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 the children: W, who is 11 almost 12, X, who is 9 years old, Y, who is 7 years old, Z, who is almost 5;  and V, who is almost 3.  The parties are Ms Marcroft, the mother, Ms Gardner, the paternal grandmother and Mr Bardine who has not participated in proceedings for some considerable time.  The issue has been between Ms Marcroft and Ms Gardner, the latter of whom the children are living with at the moment and have lived with for some considerable time.

3. The issue, really, has been about the mother’s circumstances and whether the children should live with her or, if not, spend substantial and significant time with her.  An issue has arisen because she has a history of illicit drug use, particularly cannabis, it would appear, abuse of alcohol and a relationship since mid-2018 with a Mr C.  The material produced on subpoena from the Northern Territory Police, shows repeated call outs from about June 2018 regarding the mother and Mr C.  Call outs involving intoxication, allegations of family violence and so on.  On my count, six incidents between June 2018 and, at least, February 2019, when an affidavit was filed. 

4. I have not seen the more up to date material but I am told that the mother is about to bear another child at the end of this year, the father of whom is Mr C.  It is apparent that some kind of relationship continues between the mother and Mr C.  On the material before me, there are abundant reasons to be concerned about the welfare of these children were they to live with the mother or, indeed, spend substantial and significant time with the mother if Mr C was present.  It appears to me that there is no real guarantee that that would not be the case. 

5. So the parties, with the exception of the father who has not participated in the proceeding, have brought in proposed orders to which each of them agrees, which essentially provide for the paternal grandmother, the mother and the father to have equal shared parental responsibility.  For the children to live with the paternal grandmother and spend time with the mother, though it does not appear at this stage that there is provision for overnight time.  There is also a requirement that the mother submit to four random drug tests, though it does not say whether they are for urinalysis or otherwise.

6. Having regard to the material in submissions I have received from the parties, I am satisfied that the proposed orders are in the best interest of the children.  I might add that, while these orders are to be final orders, there is a proposal for the parties to attend family dispute resolution in the middle of next year to discuss further arrangements and I would imagine that would depend very much on the matters that I have been discussing.  I propose to make those orders.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Young.

Associate: 

Date: 19 October 2020