Perriam and Willmott

[2014] FCCA 1234

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERRIAM & WILLMOTT [2014] FCCA 1234

Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders – best interests of the child – allegations of drug abuse – independent representation of the child – appointment of Independent Children’s Lawyer.

Legislation:
Family Law Act 1975 (Cth), ss.11C, 11F, 60CA, 61DA, 65DAA, 68L

Cases cited:
Re K (1994) 17 Fam LR 537; FLC 92-461

Applicant: MR PERRIAM

Respondent: MS WILLMOTT

File Number: WOC 220 of 2014

Judgment of: Judge Scarlett

Hearing date: 23 April 2014

Date of Last Submission: 23 April 2014

Delivered at: Wollongong

Delivered on: 24 April 2014

REPRESENTATION

Counsel for the Applicant: Ms Humphreys/Mr Burke

Solicitors for the Applicant: Rossi Simicic Lawyers

Counsel for the Respondent: Ms Cooke-Dolan

Solicitors for the Respondent: Heard McEwan Legal

ORDERS

1. All previous parenting Orders are suspended.

2. The Applicant and the Respondent are to have equal shared parental responsibility for the child X born (omitted) 2013.

3. The child X is to live with the Respondent Mother.

4. The child is to spend time with the Father as follows:

   (a)each alternate weekend from 3:00pm on Friday until 5:00pm on Sunday, commencing on Friday 25 April 2014;

   (b)from 9:00am to 3:00pm each Tuesday and Thursday;  and

   (c)from 9:00am to 3:00pm on the following days of special significance: 

   (i)Father’s Day; and

   (ii)the Father’s birthday.

5. Changeover between the parties is to take place at the front gate of the (omitted) Public School or such other location as the parties agree.

6. The Father or one or both of his nominees, the paternal grandfather MR V or MS D are permitted to attend to facilitate changeover with the mother.

7. Both parents are restrained by injunction from consuming or otherwise administering to themselves any illicit drug, including cannabis, at any time that the child X is in their care under these orders, or for 12 hours beforehand.

8. Both parents are restrained by injunction from criticising or denigrating the other parent in the presence or hearing of the child or permitting any other person to do so. 

9. In accordance with the provisions of section 11F of the Family LawAct 1975, the Father and the Mother are directed to attend a child dispute conference with a family consultant at the Wollongong registry of the court on 14 May 2014 at 2:00pm, and as provided by section 11C of the Family Law Act, the conference is to be reportable.

10. In accordance with the provisions of section 68L of the Family LawAct 1975 the interests of the child X born (omitted) 2013 are to be independently represented by a lawyer, and for this purpose, Legal Aid New South Wales at Wollongong is requested to arrange such representation.

11. Within 14 days of the date of this order, the parties are to forward to the Wollongong Legal Aid office for the use of the independent children's lawyer when appointed, copies of all applications, responses, affidavits and other relevant documents.

12. The independent children's lawyer is granted leave to issue up to 10 subpoenas without charge or further leave of the court.

13. Both parents must undertake, by provision of urine screen in accordance with Australia and New Zealand standard 4308 of 2008 or any subsequent approved standard, urinalysis for drug screening to detect the presence of illicit drugs on at least one occasion each month within 24 hours of being requested to do so by the independent children's lawyer, and provide a copy of the certificate of the results of the urine drug analysis to the independent children's lawyer and the lawyer for the other parent within 48 hours of receiving that certificate.

14. The Application is adjourned to 24 June for mention at 2:00pm.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT WOLLONGONG

WOC 220 of 2014

MR PERRIAM

Applicant

And

MS WILLMOTT

Respondent

REASONS FOR JUDGMENT

1. The application before the Court is an application brought by the Father of a little boy called X, who was born on (omitted) last year.  X is only 14 months old.  It is the Father’s application that the child should be removed from the care of the Mother and should live with him and that he should have sole parental responsibility for this child.

2. His view is that this child should spend time with the Mother for a period of four hours on Saturday and Wednesday and on other occasions as agreed by the parties.  The little boy X has been in the primary care of the Mother, but the Father’s case is based on the view that the care of the Mother of this little boy is lacking for a number of very serious reasons.  One is the Mother’s reliance on illicit drugs.

3. To that end the Father seeks an order that the Mother should obtain a drug and alcohol assessment from the Drug and Alcohol Community adult team at (omitted) Hospital before this matter proceeds and that she should undertake counselling therapy.  The Father is also of the view that the Mother needs to enrol in an anger management course and is strongly of the view that the Mother’s behaviour is not only erratic but violent.

4. There is certainly evidence that she has violent companions.  The Father also has concerns about the Mother’s mental health and seeks an order that she obtain a referral to a psychiatrist or a psychologist and follow the recommendations of that person.  He also seeks orders, because of the Mother’s drug habit, that she should provide supervised urinalysis to detect the presence of illicit drugs in her system.

5. The Father is certainly of the view that the Mother is erratic and has led an erratic lifestyle which has involved her changing her residence on various occasions. The Mother has another child, a child by another relationship.  That child temporarily is staying with the Father of that child.  The Applicant Father in this case suffers from a form of epilepsy and the Mother has raised concerns about the Father’s capacity to care for the child in case he has an epileptic seizure, but he also suffered a traumatic spinal cord injury.  That resulted from his being stabbed.

6. He was stabbed, in fact, by a male associate of the Mother in an altercation.  That injury has had a very serious effect on his life.  It has certainly prevented his working in his previous occupation.  There is evidence that the Father has previously been involved with illicit drugs.  In fact, it is the Mother’s evidence that she first met the Father when he began buying marijuana from her at the end of 2011.

7. She concedes that she has had a problem with the use of marijuana and has a conviction on a charge of, she says, selling marijuana and entered a program called the Merit Program, which is the Magistrate’s Early Referral into Treatment Program.  Those then are the circumstances.  This matter came before the Court on the Father’s application on 1^st April.  The parties agreed to some interim orders relating to the child continuing to live with the Mother and spending periods of time with the Father.

8. It is clear from those Orders to which the parties consented that the orders were only intended to last until an interim hearing could take place and Judge Altobelli listed the matter for an interim hearing yesterday at half past nine.  So the parenting orders that were entered into were quite clearly parenting orders that were meant to cover the situation until the issues could be ventilated at an interim hearing.

9. The orders provided that this child would spent periods of time not only during the day but also overnight with the Father.  Order 3 that was made on 1^st April provided that X would spend time with the Father (a) each Wednesday from 9:00am to 2:30pm commencing the following day, and (b) each alternate weekend from 2:30pm on the Friday until 5:00pm on the Sunday commencing on 4^th April and other times as agreed by the parties.

10. The parties agreed that the changeover location should be the (omitted) Public School.  I queried the parties’ legal advisers about that at the hearing yesterday but I was informed that it was a matter of convenience in that the Mother’s elder child attends the (omitted) Public School and so a changeover then would be of some assistance where the Mother would be there anyway, and in fact, seeing her other child.

11. What the issue is at this stage is the Father’s application that on an interim basis X, a child of 14 months of age, should be removed from the mother’s care and placed in the Father’s care so as to live full time with him with the assistance of his parents until the matter can come to a final hearing. 

12. It is a very serious step on an interim hearing to remove a child from the care of the person who has been the primary care giver. There may be circumstances where the best interests of the child require it.  The Father submits that this is such a circumstance, pointing to the Mother’s erratic, violent, drug-affected behaviour, as witnessed by matters that I have referred to in the earlier summary.  The Father’s counsel tendered yesterday a report dated 2^nd  April from Dr M, a specialist neurologist, relating to the Father’s epilepsy and his ability to function with his epilepsy and with his spinal injury.

13. The report is very helpful.  It sets out the treatment the Father has received. It notes that the Father has been compliant with his medication.  It contains the rather sad prognosis that with regards to the Father’s spinal injury, this is unlikely to improve further, but Dr M does say:

    As far as prognosis goes Mr Perriam’s future likelihood of good seizure control is good as long as he remains compliant on medication and avoids the cannabis.

14. Dr M goes on to say that the likelihood of the Father having a seizure whilst compliant on medication is extremely low and he says:

    I do not believe that Mr Perriam’s epilepsy affects his capacity to care for a one year old child.  His seizure risk is extremely low and I believe he resides with his parents on a full-time basis.

15. In my view, noting that this is an interim hearing, a truncated procedure where evidence is not tested, the evidence of Dr M at its face must be taken at its face value and makes it clear that the court need have no concern about the Father’s ability to care for the child whilst the child is in his care, provided, as Dr M said, he is compliant with his medication and avoids the use of cannabis.

16. It would seem to be very good advice. The Court when dealing with any parenting application, be it an interim hearing or a final hearing, must regard the best interests of the child as the paramount consideration. This is a requirement of section 60CA of the Family Law Act 1975.  Section 60CC sets out in paragraphs (2) and (3) what the primary considerations and the additional considerations are that enable the Court to ascertain what are in the best interests of the child.

17. Looking at the considerations in subsection 60CC(2), the court must consider the benefit to the child of having a meaningful relationship with each of the child’s parents.  Paragraph (b) refers to the need to protect the child from physical or psychological harm due to being subjected to or exposed to abuse, neglect or family violence.

18. Of those two considerations, the need to protect the child must be given greater weight.  There are a number of additional considerations, some of which are relevant.  This little boy is far too young for the court to be ascertaining his views or giving them any weight. There are, however, serious allegations of violence.  There is evidence of the fact that this child has a half sister, even though that half sister is not currently living with the Mother, but I have been informed that this is a temporary measure and that the Mother plans to resume the care of the child once these proceedings have resolved or have settled down.

19. I have considered those matters. I have considered the requirements of section 61DA of the Family Law Act 1975, including the presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child, although that presumption does not apply in cases of abuse or family violence, and may be rebutted by evidence that satisfies the court that it would not be in the child’s best interests for the parents to have equal shared parental responsibility. 

20. In interim hearings such as this, the court would usually apply the presumption of equal shared parental responsibility unless the court considers that it is not appropriate to do so. If the Court does make an order for equal shared parental responsibility, the Court must consider under section 65DAA of the Act whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parents and, if not, whether it is both in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.

21. I have considered all of those matters.  There are a number of matters of serious concern:  the violence issues, the drug issues and the mental health issues. Some of these are allegations.  Some of these are established facts.  It is not in issue that the Father was stabbed by an associate of the mother in the Mother’s presence.  It is not in issue that each party has involved themselves with the use of illicit drugs.  These are matters that cause the Court considerable concern.  It is alleged – and there are some admissions by the Mother – that there are certain mental health issues.

22. There has been a history of the Mother’s unstable accommodation situation, although she is currently residing with her mother.  Nevertheless, counsel for the Father submitted that the Mother’s home environment is not necessarily the most conducive for her stability or the best interests of the child.  Is it then in the best interests of this child, aged 14 months, to remove him from the care of the Mother, who has been his primary care giver, and place him on an interim basis in the care of the Father?  There is certainly evidence that the Father has, with the assistance, no doubt, of his parents, been able to care for this little boy not only during the day but also overnight.

23. I think it is well known that children need to spend time with both parents regularly and frequently in order to develop attachments, certainly when they are under the age of four years.  X is only 14 months old.  It would not be conducive to his welfare to go for a lengthy period of time without spending time with either party.  For a child of this age, a week would be a lengthy period of time.

24. This matter came on as a matter of some urgency, and there were interim consent orders entered into to deal with this situation between 1 April and now.  They involved the child staying with the Mother but spending specified and fairly frequent time with the Father.  They appear to have been successful.  Neither party has complained that those arrangements fell down.  It may well be that the imminence of an interim hearing had a beneficial effect on the behaviour of the parents.  Nevertheless, the parents must be given the credit for arriving at consent orders and more or less keeping to them, which must be conducive to the child’s best interests. 

25. I am, however, of the view that the Court would be assisted, and certainly the parties would be assisted, by their attending a child dispute conference with a family consultant. That has not happened yet, but it certainly should happen, and I propose to make orders that it will happen. But there are other matters. I have no doubt that if the parties were to attend a child dispute conference with a family consultant, and the issues of drug abuse, violence, anger management, mental health were raised, that the family consultant in the memorandum to the court would recommend that this little boy’s interests be independently represented by a lawyer under the provisions of section 68L of the Family Law Act 1975. 

26. Certainly, these are some of the matters that the Full Court of the Family Court referred to in the well known decision of Re K[1] which dates from 1994, setting out guidelines for trial courts such as this one to decide whether a child’s interests should, to use the old terminology, be separately represented by a lawyer.  In my view, the guidelines in Re K, notwithstanding the change of terminology due to amendments to the Family Law Act 1975, are as valid and as useful to a trial court today as they were 20 years ago. 

    [1] (1994) 17 Fam LR 537; FLC 92-461

27. This is to my mind clearly a case where this child’s interests should be independently represented by a lawyer, and I have no doubt that an Independent Children's Lawyer would be able to offer valuable assistance to the Court and play a positive role in dealing with the parents and their legal advisors in arriving at a solution that is in this child’s best interests.  I propose to make such an order.  It is certainly clear, as I said, that X should be spending regular and frequent time with each parent.

28. I am not at this stage satisfied, in the absence of assistance from a family consultant or an Independent Children's Lawyer, that the Court should take the drastic step of removing the child from the care of the mother and placing the child in the care of the Father on an interim basis until a final hearing.  That is not to say that justification for that course may not arise.  It is not the usual course to change the residence of a child on an interim hearing, but indeed it has been done and I have certainly done it.

29. But in my view, the evidence needs to be strong that the best interests of the child require it.  I am not satisfied that I should take that step at this stage.  I will make orders that the child continue to reside with the mother.  The child will spend regular and frequent time with the Father.  There will be orders relating to restraint on the parties from consuming or administering to themselves illicit drugs.  There will be an order for an Independent Children's Lawyer. The parties will attend a child dispute conference, and the date is available on 14^th May. 

30. And all of these steps will assist the court in deciding what is in the child’s best interests.  I make the following orders until further order. 

31. I require a transcript of my reasons for this decision.  I will advise the parties that a sealed copy of the orders will be made available by my associate in the next few minutes, and the transcript of the reasons will be forwarded to me for editing and will be, of course, released to the parties’ solicitors as soon as possible.  Otherwise, the matter is before Judge Altobelli at 2 o’clock on 24^th June 2014.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  16 June 2014