Rios and Varella

[2019] FCCA 509

FEDERAL CIRCUIT COURT OF AUSTRALIA

RIOS & VARELLA [2019] FCCA 509

Catchwords:
FAMILY LAW – Parenting – urgent application – where there is family violence – where there are allegations of drug use – where there are allegations of neglect and abuse – order for hair follicle testing – no order to relocate the residence of the child.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR RIOS

Respondent: MS VARELLA

File Number: DNC 54 of 2019

Judgment of: Judge Young

Hearing date: 11 February 2019

Date of Last Submission: 11 February 2019

Delivered at: Darwin

Delivered on: 11 February 2019

REPRESENTATION

Counsel for the Applicant: Ms Dargan

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the Respondent: Ms Varella in person

ORDERS

1. That within seven (7) days the mother forthwith do undergo drug testing pursuant to the hair follicle analysis.

2. That the mother is required to maintain her head hair at a length of not less than three (3) centimetres; neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair;

3. That the mother forward a copy of the results of such tests to solicitor for the other party as soon as they become available.

4. That pursuant to s.11F of the Family Law Act 1975, the parties and the child [X] born … 2010 do attend a reportable child inclusive conference with a Family Consultant provided by the Child Dispute Services of the Federal Circuit Court of Australia, Brisbane on 13 February 2019 at 9.00am, with the parties to telephone the Case Coordinator Children Dispute Services on 1300 352 000 to confirm their attendance NOTING that the father has leave to attend by telephone.

5. That following thereof the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.

6. That pursuant to s.69ZW of the Family Law Act1975, the Director-General, Department of Child Safety, Youth and Women provide to the Court the following information, corroborated by source documents where possible no later than 4.00pm on 1 March 2019:

   (a)any notifications to the Department of Child Safety, Youth and Women of suspected abuse of a child [X] born … 2010 to whom the proceedings relate or of suspected family violence affecting the child;

   (b)any assessments by the Department of investigations into a notification of that kind or the findings or outcomes of those investigations;

   (c)any reports commissioned by the Department in the course of investigating a notification.

7. That the matter be transferred to the Federal Circuit Court of Australia, Brisbane and listed before Judge Jarrett on 6 March 2019 at 9.30am NOTING that the solicitor for the father has leave to attend by telephone on that occasion.

AND IT IS ORDERED IN CHAMBERS:

1. That the mother file and serve a Response setting out the orders she is seeking forthwith.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 54 of 2019

MR RIOS

Applicant

And

MS VARELLA

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They 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.

2. This is an urgent application concerning a child, [X], who is eight years old. [X] lives with her mother in Brisbane and she came to Darwin for the Christmas holidays, or during the Christmas holidays, to spend time with her father.  She evidently told the father, according to his affidavit, that there was a family violence in the relationship between the mother and her partner, Ms A, and also at the same time there were concerns about [X]’s presentation with head lice and so on, but I am satisfied that that’s the least of the issues in this case.

3. Then the mother’s partner – and it is clear enough that she was a former partner by this stage – made contact with the father or his partner and she, Ms A, the former partner, told the father that the mother and she, Ms A, had been using methamphetamine since 2016 and that there was family violence between them, that is, the mother and her partner, resulting in the domestic violence order being taken out in Queensland.

4. There was also an allegation made by Ms A that the mother’s present partner, Ms B, is a methamphetamine dealer, and by implication at least supplies the mother with methamphetamine and both the mother and Ms B use methamphetamine.  The father filed an application on 31 January, seeking an urgent listing, at which time [X] was in his care in Darwin and she was enrolled in school here and going to school.

5. The mother, once she learned that the father wasn’t going to return [X], evidently flew to Darwin, took the child out of school and returned to Brisbane.  Thus, in a way, depriving the urgent application of some of its significance and making it very difficult, in the circumstances, for this registry in Darwin to adequately handle the matter because the allegations of neglect and abuse, which are essentially the allegations being put, can really only be investigated by a relevant child welfare authority, and only the authority in the jurisdiction where the child lives can do that.  Unless I make an order for the immediate return of the child to the father here in Darwin, Territory Families will not be able to do it, it will have to be done by Queensland Families.

6. It is clear from the affidavit material that the father has reported the matter to Queensland Families and Queensland Families, I am told from the bar table, have taken the attitude that their response will depend on the outcome of today’s matter.  In substance, I am assuming what that means is that if the child comes back to Darwin then it will be up to Territory Families to investigate and if the child remains in Queensland they will only take the matter on and investigate if that is the case.

7. The father seeks an interim order that the child live with him in view of the allegations and it is said that there is an unacceptable risk to the child.  The mother put on an affidavit filed on Friday where she takes issue with a number of the allegations made against her and, in particular attacks, in substance, the credibility of the informant, Ms A.

8. Curiously, the mother in her affidavit made no response to the allegation of methamphetamine use, and of course in this Court, where there is a duty of frank disclosure, that is potentially a serious matter.  I asked the mother in submissions what she had to say about the allegation of methamphetamine use. She said that she last used methamphetamine 18 months ago, along with Ms B, her partner with whom she lives. She said they are not a methamphetamine users anymore but they both used, as I understood it, 18 months ago.

9. What she told me wasn’t true because I asked Ms Varella to give evidence under oath and I explained to her the consequences of giving false evidence under oath.  In those circumstances she changed her story and she told me that she and Ms B last used methamphetamine in November 2018.  In other words, she had attempted to mislead the court.

10. She said in relation to the allegations of family violence that had been reported by [X] to the father, that is, the violence between Ms A and the mother, that that was, in fact, true and that Ms A, in her view, suffered from methamphetamine-induced psychosis and had been very violent in the household. That had led to the mother obtaining the domestic violence order against Ms A.

11. The mother said that she notified the father of the DVO but she also told me that she never notified the father that the child had been exposed to family violence which was related to abuse of methamphetamine.  Regrettably, I can have very, very little confidence in what the mother has told me and I think that one of the important things that needs to be done is an order for the mother to undergo hair follicle testing for illicit drugs and I propose to make such an order and that will have to be done within seven days.

12. In relation to the father’s application that there be an order that the child live with him pending further order, I am reluctant to make that order.  It would appear that the exposure of the child to family violence has probably ceased with the departure of Ms A from the mother’s household. Whether or not the mother continues to use methamphetamine I do not know.  She has given me sworn evidence that the last time she used methamphetamine was in November 2018, and I propose to test that assertion by making an order for a hair follicle test. 

13. The child has spent relatively little time with the father, as I read the affidavit material. The parties separated before the child was born or when the child was very young and the child has spent essentially holiday time with the father in Darwin.  The mother says that the child is eight and the child has spent a total of 22 weeks with him. 

14. Had the child remained in Darwin I probably would have made an order that the child remain living here for the time being while the investigations were carried out.  But in the circumstances, given that it appears that Ms A has left the household and the risk of the child’s exposure to family violence is limited, and that the mother has given sworn evidence that she and her partner have not used methamphetamine since November, I am not satisfied that there is a basis for making an order today removing the child from the mother’s care and having her brought to Darwin.

15. I think what is required is a hair follicle test and a 69ZW order directed to Queensland Families.  I am also going to make an order for a child inclusive 11F in Brisbane, if I can.  As I said, there will be an order that you, Ms Varella, are to undergo a hair follicle test at your own expense.  That will be three centimetres of hair, and you are not to cut, dye or straighten your hair before you have the test done.  You will need to make inquiries about an appropriate laboratory in Brisbane and have it done within seven days. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:  4 March 2019