McCREADIE & Oram & Anor (No.3)
[2018] FCCA 2318
•31 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| McCREADIE & ORAM & ANOR (No.3) | [2018] FCCA 2318 |
| Catchwords: FAMILY LAW – Interim parenting. |
| Legislation: Family Law Act 1975 (Cth) |
| Applicant: | MS MCCREADIE |
| First Respondent: | MS ORAM |
| Second Respondent: | MR LAMBERT |
| File Number: | NCC 2354 of 2016 |
| Judgment of: | Judge Terry |
| Hearing date: | 31 January 2018 |
| Date of Last Submission: | 31 January 2018 |
| Delivered at: | Newcastle |
| Delivered on: | 31 January 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Kaberry Family Law |
| Counsel for the First Respondent: | Mr Rugendyke |
| Solicitors for the First Respondent: | Birtles Legal |
| Counsel for the Second Respondent: | Mr Bithrey |
| Solicitors for the Second Respondent: | Moin & Associates |
| Solicitors for the Independent Children’s Lawyer: | Emalene Gemmell Solicitor |
THE COURT ORDERS ON AN INTERIM BASIS THAT:
All orders concerning the children [X] born 2011 and [Y] born 2012 (“the children”) spending time with the mother and the maternal grandmother are suspended.
The children shall be returned to the father by means of him collecting them from the home of the maternal grandmother at 8.30pm on 31 January 2018.
The mother and the maternal grandmother may spend time with the children in Town A on any weekend where they are willing and able to take part in time in Town A supervised by Town A Children’s Contact Centre NOTING THAT the court understands that Town A Children’s Contact Centre offer a private supervision service which may be available if the mother and the maternal grandmother are able to pay for the service.
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The directions hearing listed on 1 March 2018 is vacated.
This matter is adjourned to 10.00am on 26 March 2018 (3 days) for final hearing.
Both parties are to file any amended application or response and one trial affidavit of themselves and one trial affidavit of any witnesses they intend to call at the hearing by 4.00pm on 23 February 2018 NOTING THAT the parties and their witnesses may only rely on one affidavit each and the Court will strike out any paragraph in those trial affidavits which seeks to incorporate into that affidavit by reference to paragraph numbers, annexing a copy of previous affidavits or any other means any material contained in earlier affidavits of that deponent.
Unless eligible for an exemption, the applicant is to pay to the Family Law Courts at Newcastle the setting down for hearing fee of $605.00 by 23 February 2018.
The applicant is also required to pay not less than four (4) working days prior to the hearing date the daily hearing fee of $605.00 for each additional hearing day after the first day of hearing.
Each party and the Independent Children’s Lawyer shall file and serve an outline of case document by 4.00pm on 23 March 2018 setting out:
(a)a precise minute of order sought;
(b)a list of documents to be read in their case;
(c)a chronology;
(d)a list of issues for determination; and
(e)a brief summary of argument.
The Independent Children's Lawyer shall promptly notify the family consultant of the hearing dates and that they will be required to give evidence on the second or third day of hearing and the Independent Children’s Lawyer is required to liaise with the Family Report writer closer the hearing date to confirm the likely time they are required to give evidence and to liaise with them during the hearing about the likelihood of them being required to give evidence.
Each party is restrained and an injunction is granted restraining them from sending their trial affidavits to the family consultant.
The Independent Children’s Lawyer is granted photocopy access to all material produced on subpoena in the proceedings for the purpose of preparing a tender bundle and shall by no later than 14 days prior to the commencement of the hearing liaise with the parties legal representatives as to the content of the bundle with a view to the tender bundle being tendered on the first day of the hearing for use during the hearing.
IT IS NOTED that publication of this judgment under the pseudonym McCreadie & Oram & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2354 of 2016
| MS MCCREADIE |
Applicant
And
| MS ORAM |
First Respondent
And
| MR LAMBERT |
Second Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally and 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.
I made a decision in this matter in December 2017 after a contested interim hearing at which all of the parties were represented. Four counsel were involved. I heard submissions about whether I should make an interim order for the children, these two little girls, to live with their father pending a trial of the matter which I indicated I would expedite.
I had no hesitation in December 2017 in making an interim order for the children to change residence. I do not know what will happen on a final basis of course because things can change. It may be that some of the concerns that were raised in the family report will be found upon thorough examination to either not be as concerning as they then appeared or that the risk in relation to them may have abated because people have done things to deal with their issues, but the risks the girls faced based on what was in the family report were quite extreme.
The mother has a long history of illicit drug use and has been to prison in relation to a drug offence. She was living with a Mr A who has a serious drug use history. Both the mother and Mr A on different occasions in the not too distant past – and when I say that sometime within the last twelve months to two years – have tested positive for drug driving with methamphetamine in their system. Mr A also has a very serious mental health issue it would appear.
There were concerns that somebody who was known to the maternal grandmother, concerns that need to be investigated certainly, posed a risk of sexual harm to the children.
I was also very concerned about all of the evidence about the children’s presentation at school. I was concerned about the maternal grandmother’s attitude in the matter because despite the plethora of red flags in relation to her daughter, she could not perceive that there was any risk of harm in relation to her daughter. She was focused on shortcomings of the father and the risk of harm issues in relation to the father were not of the same magnitude.
I made a decision in December about what should happen for the children, a decision I did not make lightly because it meant the children moving from Town B to Town A. I was well aware that this would mean a change of school for the children but in my view based on the evidence then before me it was essential because of risk of harm issues to make an order that the children change residence in the interim.
Of course as I said everything will be explored at a hearing. Things can look different at hearing either because, as I have already indicated – I am now repeating myself – the harm that was perceived proves not to have been of the same magnitude or people have made changes, but there was a very good sound reason for what I did in December.
The mother has within the last few days retained the children in Town B. She says that she did so because she received either a Facebook message or emails from the father indicating that he consented to the children going into her care and attending school in Town B.
The father alleges those messages were fabricated and he has wasted absolutely no time in bringing an application seeking to have the children returned to his care.
I cannot make any findings about where the truth lies about the messages. I cannot rule out the possibility, and it will be explored at trial, that the father said something which he immediately regretted and he is now making up a story.
It could also be that either the mother or someone associated with her has fabricated the messages; however what I have is the situation where I made an order for good reason. The children changed residence to live with the father. The father is adamant that he did not send the messages and although I cannot find one way or the other whether he did or not, within an extremely short space of time he has brought this application to the Court.
I cannot be satisfied sitting here today that the risk of harm issues that I identified in December have abated or abated sufficiently to mean that I should simply flip the arrangements back.
The mother has done a hair follicle test which is positive only for amphetamines and she says that is due to her taking dexamphetamine. Up to the date of the father bringing an interim application seeking a change of residence, the mother had refused or declined or pleaded poverty and not done any hair follicle testing. I now have a hair follicle test which I will have to factor into an assessment of whether there is an ongoing risk to the children from the mother’s drug use, but that, as I indicated to the mother’s counsel earlier, is a trial issue that I am going to have to deal with. It is not a reason to reconsider the orders that I made last December.
The mother has also apparently moved out of the home she was sharing with Mr A and moved in with the maternal grandmother. I am not necessarily convinced that this ameliorates the risk of harm in relation to the mother because at trial we are going to have to have a good hard look at the issue of whether the maternal grandmother has a realistic understanding of the mother’s issues, if she has issues, and of her capacity to protect the children, if they need protection. So again, those are all going to be trial issues. They are not reasons to reconsider the order I made in December.
I made an order in December which resulted in these girls having to change residence, to move to a different home and a different town. I am not going to make an order today which is going to flip that back and have the children being chopped and changed from town to town and person to person. All this can be looked at trial which hopefully will occur within the next three to four months.
The orders I am going to make today are for the mother to promptly return the children to the father and I am going to stand the matter down in a moment so the parties can talk about how that is going to occur.
I also have to consider though the issue of the mother’s time with the children. The father’s counsel urged me to make an order that until the trial the mother’s time with the children be supervised. The maternal grandmother of course does not need supervision as such but the important issue is what is to happen with the mother and also whether the children should go over to Town B again pending the trial.
This matter desperately needs a trial. The Court is always in a very difficult position at an interim hearing. I have had the experience over the years of matters taking on a totally different appearance at a hearing but given that I made orders in December, that I identified certain risks and that I have identified a concern about whether the maternal grandmother is seeing the mother and her situation as clearly as she should, I am very concerned about what has happened to these girls in the last few days and the emotional upheaval that they have been put through for whatever reason. I want to stabilise, as best I can, things for them between now and the trial.
It will be a change for them if I order that they not go back to Town B until the trial. I freely concede that. They will not be able to go to the home of the maternal grandmother that they are familiar with but it is the strongest protection against any other unexpected difficulty occurring for the children between now and the trial when I will be able to conduct a full inquiry into the matter.
For the sake of protecting the children from psychological harm it is the preferred course. The mother and the maternal grandmother will need to contact Town A Children’s Contact Centre and make inquiries about the private supervision service they offer because it may be that with that time will not even have to take place within the confines of the contact centre, but they can make some inquiries about it.
I certify that the preceding twenty one [21] paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 21 August 2018
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