Michie and Arden

[2008] FMCAfam 836

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MICHIE & ARDEN [2008] FMCAfam 836

FAMILY LAW – Children – parenting orders – undefended hearing – evidence mother abusing illicit drugs.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Applicant: MR MICHIE

Respondent: MS ARDEN

File Number: PAC 6004 of 2007

Judgment of: Halligan FM

Hearing date: 24 June 2008

Date of Last Submission: 24 June 2008

Delivered at: Parramatta

Delivered on: 24 June 2008

REPRESENTATION

Solicitors for the Applicant: Philip Gengos and Co

Solicitors for the Respondent: No Appearance

Independent Children’s Lawyer Legal Aid Commission Parramatta

ORDERS

1. Orders are made in accordance with the independent children's lawyer's proposed minute of order, marked "exhibit B". 

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAC 6004 of 2007

MR MICHIE

Applicant

And

MS ARDEN

Respondent

REASONS FOR JUDGMENT

1. This is the hearing of parenting proceedings in relation to the three children of the parties – [B], who is aged five, [C], who is aged three, and [D], who is aged two. The children have been with the father since the parties separated in June 2007. 

2. The matter is proceeding at this point in the mother's absence. Proceedings originally started in the Local Court and were then transferred to this Court. The mother previously did participate in the proceedings and I note that a response was filed on her behalf. As she is not present before the Court and there is nobody present on her behalf, I am not entitled to have regard to the content of that material or any other material that she has filed, or somebody has filed on her behalf, in the proceedings. I simply note it, by way of indicating that the mother is aware of the proceedings and has at some point participated actively in them. I note also that on 13 February this year there were interim orders made by consent. On that occasion the mother was legally represented.

3. In those circumstances, and bearing in mind that on 13 February the matter was adjourned to today for a final hearing, I am satisfied both that the mother is fully aware of the proceedings and, further, is aware of the listing of the matter today for final hearing. Her failure to attend Court today, I must therefore infer, is a matter of choice by her, that choice being to withdraw from the proceedings.

4. On that date in February, and under those orders, I also ordered the preparation of a family report and I note that the mother has failed to attend the appointments in connection with that report. The report, such as it is, covering only the father and children, is in evidence before me. The evidence indicates that the mother has a significant drug-abuse problem. She appears to be living a peripatetic life.  Attempts by family and others to support her so that she may overcome the problem have been ineffectual. I do not propose to go through all the evidence in detail, suffice to say that I am satisfied on the evidence that the mother not only is not seeking any particular orders in relation to her involvement with the children but, clearly, at the moment is unable to provide any significant care for the children.

5. In determining the orders that should be made, I am mindful of the various provisions of Pt VII of the Family LawAct that govern the decision‑making in cases such as these, including: section 60CA, the children's best interests are the paramount consideration; section 60CC, the considerations that the Court must have regard to in determining where the children's best interests lie; section 60B, the objects and principles under Pt VII which are to be borne in mind by the Court in assessing the various considerations under section 60CC; section 61DA, in relation to the presumption concerning equal shared parental responsibility; and section 65DAA, in relation to, if the Court makes an order for equal shared parental responsibility, the Court being required to first consider an equal‑time order, and, if not intending to make such an order, then to consider a substantial and significant time order.

6. In relation to section 61DA, I am satisfied that the mother's failure to avail herself of opportunities to be involved in the children's lives, including under the orders that were made in February of this year, and the evidence in relation to the mother's drug-taking, indicates that it is not in the children's best interests for the presumption under section 61DA to apply. The independent children's lawyer proposes that the father has sole parental responsibility for the children and the father, unsurprisingly, supports that. I am satisfied that that is an order that will best be made in the interests of these children.

7. At the moment, the mother's whereabouts cannot be determined and therefore it is impossible for the father to be able to consult with the mother in relation to major decisions about the children. That is another matter going to establishing that equal shared parental responsibility is not in the children's best interests.

8. Turning then to the orders in relation to the time the children might spend with each parent, the father has been the carer of these children since the parties separated 12 months ago. I am satisfied that he is able to appropriately meet the needs of the children. I am satisfied that the mother is not. I am therefore satisfied that the order that the children live with the father proposed by the independent children's lawyer, and supported - again, unsurprisingly - by the father, is one which is in the children's best interests.

9. From there, the independent children's lawyer proposes that the children spend time with the mother at any time and under such conditions as nominated by the father but that, prior to that particular provision being in operation, the mother is to submit herself to urinalysis on two occasions in the week prior to spending time with the children, at a specified pathologist's, and the testing is to be conducted in accordance with the Australian/New Zealand Standard 4308.

   
   

   It requires the mother to return two clear, or negative, results for that order to operate.

10. This is an entirely appropriate provision, bearing in mind the evidence concerning the mother's drug‑taking. I note that the mother did provide a urinalysis test for drugs. It is before the Court, in the father's affidavit. It relates to testing of a specimen received on 19 February 2008. Thus, it can be seen that it occurred six days after the consent interim orders were made on 13 February 2008. Those orders, amongst other things, required the mother to provide a clear urinalysis test to the independent children's lawyer and the father and, upon doing that, she was to spend time with the children, amongst other things, each Saturday, from 10.00 till 4.00. That was to be extended to overnight upon the mother obtaining suitable accommodation, to the satisfaction of the independent children's lawyer.

11. Regrettably, the test that was provided in February is positive, in a way that indicates cocaine use. It is therefore the case, even in the week after the orders were made and with the understanding that it was a condition of the mother seeing the children that she abstain from the use of illegal drugs, that, nonetheless, she was unable to do so. I take note of material published by the Australian Institute of Criminology as part of its Drug Use Monitoring in Australia program (DUMA) in relation to scientific data concerning the period of time over which the metabolites of cocaine that are detected in this test remain detectable. For the particular metabolites that are recorded, being, as it is referred to, BE and EME, I note that - in that material on the Institute of Criminology's website - it indicates that these are detectable for a period of approximately 24 to 36 hours after use of the drug.

    
    

    This would suggest the mother used cocaine within, at most, two days before undergoing this test. Tragically, it would seem that, even at the cost of not being able to see her children, she was unable to abstain from drug abuse.

12. These tests, therefore, proposed by the independent children's lawyer and supported by the father would seem to be entirely appropriate. There must be serious concern about risk to the children, particularly under the second of the primary considerations under section 60CC, at the very least, the need to protect the children from neglect, unless the mother is able to demonstrate that she is not drug-affected when seeking to have time with the children.

13. Clearly, having regard to the first of the primary considerations, the benefit to the children of having a meaningful relationship with each parent, it is desirable, if it can happen in a way where the children's welfare can be reasonably assured, that these children ought to be spending time with the mother. But it does require the mother to provide an opportunity where that time can be beneficial to the children and not run the risk of exposing them to harm. On the evidence I am satisfied that, regrettably, in this particular case there is severe doubt about that particular opportunity being provided if the children, unconditionally, are able to spend time with the mother. I am therefore satisfied that the orders proposed by the independent children's lawyer and supported by the father about spending time with the mother are in the children's best interests.

14. Otherwise, I am asked to make an order restraining each party from being critical or derogatory in relation to the other party in the presence or hearing of the children and to seek to ensure third parties act appropriately as well, and I am satisfied that it is an appropriate order in the children's best interests.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Halligan FM

Associate:  Deanne bush

Date:  6 August 2008