Pelicano and Sheeran

[2013] FCCA 1625

FEDERAL CIRCUIT COURT OF AUSTRALIA

PELICANO & SHEERAN [2013] FCCA 1625

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – best interests of the children – primary considerations – drug issues.

Legislation:  

Family Law Act 1975 (Cth), ss.60CA, 60CC

Applicant: MR PELICANO

Respondent: MS SHEERAN

File Number: CRC 147 of 2013

Judgment of: Judge Scarlett

Hearing date: 17 September 2013

Date of Last Submission: 17 September 2013

Delivered at: Coffs Harbour

Delivered on: 17 September 2013

REPRESENTATION

Solicitor for the Applicant: Ms Thode

Solicitors for the Applicant: Michelle Harding Lawyer

Solicitor for the Respondent: Ms Corcoran

Solicitors for the Respondent: Legal Aid NSW

Solicitor for the Independent Children’s Lawyer: Ms Steiner

Solicitors for the Independent Children’s Lawyer: Burridge Harris & Flynn Solicitor

ORDERS

BY CONSENT UNTIL FURTHER ORDER

1. Order 3 of the Orders made by the Court on 1 July 2013 be varied to: “The Father spend supervised time with the Children at (omitted) Contact Centre at times and dates as provided by that Centre and fortnightly if possible.

THE COURT ORDERS

1. The Application by the Father for an order that he should have regular telephone communication with children X born (omitted) 2004 and Y born (omitted) 2005 is dismissed.

2. The matter is adjourned to Wednesday 27 November 2013 at 9:30am for mention in the Federal Circuit of Australia at Coffs Harbour.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT COFFS HARBOUR

CRC 147 of 2013

MR PELICANO

Applicant

And

MS SHEERAN

Respondent

REASONS FOR JUDGMENT

1. This application is an Application by the Father for parenting orders in respect to the parties’ children, X and Y.  There were orders made on 15^th July 2013 by Judge Kemp directing the Father to undertake a further drug-screen test for the presence of cannabis metabolites, noting that the Father had already conducted one urinalysis test.

2. Previously, there had been orders made by his Honour on 1^st July, which were interim orders made by consent, appointing an Independent Children’s Lawyer to represent the interests of the children, providing that the children live with their mother, and providing that the Father commence supervised time with the children at the Interrelate Contact Centre.

3. The Orders made by his Honour also noted that the parents agreed to follow the directions of the contact centre, the Father was to provide at least one drug screen to the Mother’s solicitor before 15^th July 2013, and the agreement between the parents that the children should attend the Interrelate Centre for counselling. His Honour then adjourned the matter.

4. What has happened since then is that on one occasion, in August of this year, the Father has spent time with the children at the contact centre.  The parties have agreed that Order 3 of the orders made by consent on 1^st July 2013 should be varied to provide that the Father spend supervised time with the children at Interrelate Contact Centre, (omitted), at times and dates as provided by that centre and fortnightly, if possible.

5. That is an order that I have made by consent.  I note that the Father has only spent time with the children on one occasion since the earlier orders were made and previously I am told that he had not spent time with the children by arrangement, although there had been allegations by the Mother of the Father’s behaviour and the Father had spoken to the children on the telephone.

6. The application today, which is for an order that is in dispute, is for the Father to have regular telephone contact with the children.  It is opposed by the Mother and it is not supported by the Independent Children’s Lawyer. 

7. The Father seeks the order to allow the children time to rebuild their relationship with him.  The Mother, however, opposes this order on the basis of matters that she has deposed to in her affidavit sworn on 9^th July 2013 and matters referred to in a notice of child abuse family violence or risk of family violence filed at the Registry on 27^th August 2013.

8. In particular, the Mother deposes at paragraphs [46] through to [61]  her description of what had happened when the Father spoke to the boys on the telephone on a number of occasions:  the 6^th, 11^th, 20^th of March, the 25^th of March, 27^th of March, the 1^st, the 3^rd and the 15^th of April 2013.  The Mother reports the boys, who are aged eight and nine, of describing the Father being difficult to understand on two occasions:  the 6^th of March and the 25^th of March 2013.

9. On the first occasion asking if the Father was drunk, on the second occasion, 25^th of March, X saying, “Dad didn’t speak properly.  He was slurring with his words.  He kind of was talking funny.”  The children also complained that when the Father telephoned them on several occasions, he sounded angry.  Those occasions were the 11^th of March, the 25^th of March, the 27^th of March, the 1^st of April, the 3^rd of April 2013, and more generally in a conversation with the Mother after the call and again in respect of a call on the 15^th of April 2013l.

10. It is the Mother’s case that the Father’s telephone calls to the boys are causing them some difficulty, which may well be psychological harm or some stress because she noted that after these calls or when these calls were taking place the children displayed symptoms of bed wetting.  She deposed at paragraph 50 of her affidavit that X wet the bed on the night of the 23^rd of March and again on the 26^th of March.

11. She deposed at paragraph 54 of her affidavit that Y wet the bed on the 31^st of March.  At paragraph 58 of her affidavit, the Mother deposed that the children looked frightened when X was saying something to (omitted), as a result of – or what she says was as a result of a telephone call the day before.  The Mother deposed at paragraph [56] of the affidavit that both boys wet their beds and Y had a nightmare.

12. There is no affidavit evidence from the Father in reply to such allegations.  It is noteworthy however that the Father has undergone a drug-screening test, as required by this Court and a urine drug analysis was tendered today.  The Court had required the Father to provide such test and on 15^th July, at Order 2, Judge Kemp directed the Father to do a further drug-screen test in accordance with the Australian Standards, limited – if the test can be so limited – to a test for the presence of cannabis metabolites.

13. Accordingly, it is a matter of concern that the drug-screen test, which dates from a sample collected on the 12^th of this month and analysed the following day – whilst it gives a negative reading in respect of opiates, amphetamine-type substances, cocaine metabolites, benzodiazepines and methadone metabolite has the entry beside cannabis metabolites, the statement, “Further testing required.”  There is an asterisk. 

14. There is a note further down the test saying that the screening results are unconfirmed and cannot be used for medico-legal purposes to comply to (omitted):  this sample requires confirmatory testing.  Specimens are held for three months from reporting should confirmatory testing be required.  Confirmatory testing will incur an additional fee.

15. It is not the fact that this test states that the Father did have the presence of cannabis metabolites in his urine sample, but it does not clear him either.  The fact that the test comes back with a requirement of further testing required is a matter of concern, especially as the Mother’s affidavit evidence refers to the boys’ on several occasions referring to the Father’s slurred speech or sounds of anger on the telephone.

16. These are parenting proceedings. When a Court is deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration and that is clearly set out in section 60CA of the Family Law Act 1975 (Cth). Section 60CC sets out how a Court determines what is in a child’s best interests. Subsection (1) says that in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) and (3). The primary considerations are set out in subsection (2). They are:

    (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    (b) the need to protect the child from physical or psychological harm, from being subject to or exposed to abuse, neglect or family violence.

17. Subsection (2)(a) requires the Court to give weight to those considerations when it says:

    In applying considerations set out in subsection (2), the Court is to give greater weight to the considerations set out in paragraph 2(b), (which is the need to protect the child from physical or psychological harm).

18. With those primary considerations what the Court must do is balance them and, of course, the solicitor for the Father is pressing the Court to make such an order in order to deal with the consideration in paragraph (a), which is to consider the benefit to the child of having a meaningful relationship with both parents.  Against that the solicitor for the Mother and the Independent Children’s Lawyer are looking to the Court to provide an answer in respect of paragraph (b), the need to protect the children.

19. I am concerned about the evidence of the telephone calls.  I am concerned of the constant reports of the father sounding either slurred in his speech or angry or both and of the reported bed wetting by both boys, which does provide some prima facie evidence of stress on the part of the children.  The at best indeterminate urine drug analysis insofar as cannabis is concerned adds to the concern that I have.

20. Accordingly, the application by the Father for an order that he have regular telephone communication with the children, X, born (omitted) 2004, and Y, born (omitted) 2005, is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  15 October 2013