Milford and Milford

[2009] FMCAfam 1391

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MILFORD & MILFORD [2009] FMCAfam 1391

FAMILY LAW – Children – parenting orders – where respondent mother did not attend Court – drug issues – best interests of the child the paramount consideration – presumption of equal shared parental responsibility rebutted by evidence that it would not be in the best interests of the child.

Family Law Act 1975, ss.60CA, 60CC, 61DA, 67Q

Applicant: MR MILFORD

Respondent: MS MILFORD

File Number: SYC 7029 of 2009

Judgment of: Scarlett FM

Hearing date: 21 December 2009

Date of Last Submission: 21 December 2009

Delivered at: Sydney

Delivered on: 21 December 2009

REPRESENTATION

Counsel for the Applicant: Ms Youssef

Solicitors for the Applicant: Marsdens Law Group

Respondent: No appearance by the Respondent

ORDERS

1. That all previous orders be discharged.

2. That the father have sole parental responsibility for the child [X] born [in] 2009.

3. That the child live with the father.

4. That the child spend time with the mother as agreed between the parties with such time to be supervised by either the father or the paternal grandmother.

5. That the mother undergo fortnightly supervised urinalysis testing and provide copies of all results to the father.

6. The mother is to have liberty to apply for variation of these Orders within 21 days.

7. That pursuant to 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 Attachment A and these particulars are included in these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 7029 of 2009

MR MILFORD

Applicant

And

MS MILFORD

Respondent

REASONS FOR JUDGMENT

Application

1. The applicant is the father of a little boy (X) who was born [in] 2009. On 19^th November 2009 the father filed an application seeking orders for the return of the child, who he claimed had been taken by the respondent mother and had not been returned. The father has expressed concerns for the child’s welfare due to the mother’s heavy and persistent use of marijuana.

2. On 20^th November 2009 Riethmuller FM issued a recovery order for the return of the child. His Honour noted that on that day the respondent mother was contacted by telephone in open Court and directed to attend Court by 2:30 pm that day, with the child. She did not attend. The application was adjourned until today for further mention before me.

3. An affidavit of service filed on 3^rd December 2009 shows that the documents were served on the respondent on “30/12/2009”, which is obviously a typographical error. I am satisfied that the respondent was served on 30^th November 2009.

4. The applicant father attended Court today. The respondent mother did not. The matter was called at 10:53 am and there was no appearance by the respondent. She has not filed a response or any affidavit.

5. I heard evidence from the applicant father. He confirmed that the child has been returned to his care and the mother last spent time with him on Wednesday or Thursday the previous week. He expressed concern about the mother’s continuing drug use.

The Relevant Law  

1. In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (s.60CA). Section 60CC informs the Court as to how to determine what is in a child’s best interests. Section 61DA requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. That presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child (s.61DA(4)).

Conclusions

1. The fact that the mother has not attended Court or sought to file any documents setting out her view of the matters to be decided does nothing to assist her case. The father has given evidence both in Court and on affidavit of the mother’s heavy drug use, which has caused him to have grave concerns for the child’s welfare. There is no evidence that he administers to himself any illicit drug.

2. These matters lead the Court to the view that it is in the child’s best interests for him to live with the father. The uncontradicted evidence of the mother’s drug use and the evidence of the mother’s living arrangements with her mother, who is also a drug user, is in my view evidence that satisfies the Court that it would not be in the best interests for the child for the child’s parents to have equal shared parental responsibility for him.

3. This child is to live with the applicant father who is to have sole parental responsibility.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A.Coutman

Date:  21 December 2009