Ross and Ross

[2019] FCCA 3802

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROSS & ROSS [2019] FCCA 3802

Catchwords:
FAMILY LAW – Parenting – where parenting orders were made by consent in 2018 – where father’s last drug conviction was 2016 – where mother discovered that father recorded a new conviction for driving under the influence of drugs – where father did not disclose his conviction to the mother – where there is an unacceptable risk of harm to child – previous orders suspended.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS ROSS

Respondent: MR ROSS

File Number: ADC 2772 of 2017

Judgment of: Judge Young

Hearing date: 20 December 2019

Date of Last Submission: 20 December 2019

Delivered at: Darwin

Delivered on: 20 December 2019

REPRESENTATION

Counsel for the Applicant: Mr Kheder

Solicitors for the Applicant: Port Adelaide Lawyers

Counsel for the Respondent: In person

Solicitors for the Respondent: In person

ORDERS

1. That order 3 of the orders made on 23 May 2018 be suspended.

2. That the child [X] born … 2013 live with the mother.

3. That the parties do all acts and things to enrol in the Town A Children’s Contact Centre.

4. That the child spend supervised time with the father at the Children’s Contact Centre at times that the Director of the Town A Children’s Contact Centre or his/her nominee can accommodate the parties.

5. That within 48 hours of this order, the father do undergo a Hair Follicle Drug Analysis at his own expense and file and serve an affidavit annexing the results of such testing forthwith upon receipt of same.

6. That until such time as the hair follicle test has been completed, the father is restrained as follows:

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

   (b)From using any chemicals or treatments on her hair other than commercially available shampoo and/or conditioner.

7. That the father file and serve a Response, affidavit in support and notice of risk within 28 days.

8. That the matter remain listed on 2 March 2020 at 10.00am for further directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 2772 of 2017

MS ROSS

Applicant

And

MR ROSS

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 by the mother of a child, [X], who is just six years old.

3. Orders were made by consent in May 2018 that the child live with the parents - well, really, live with the mother and spend substantial and significant time with the father. The father at the time those orders were made had a history of methamphetamine use and in particular he had been convicted of driving with methamphetamine in his blood in August 2016, though the conviction for that was actually entered in 2018.

4. The mother has recently discovered that the father has been charged with driving with methamphetamine in his system again and those charges have not been disposed of. According to Mr Ross, the episode of driving with methamphetamine in his blood occurred in January 2019. There is no indication that the mother was told about that at the time.

5. The mother says that she learned of that relatively recently. Just when is a little bit unclear. If that is true, the father of course has not told the mother about a matter of very, very significant importance to the welfare of this six year old child and while I do not make the inference, the suspicion is open that the father has attempted to hide that matter. He was also charged with driving without a licence after a period of disqualification. Of course the period of disqualification is related to the earlier conviction for driving with methamphetamine in his blood.

6. The consent orders in May would have only been made had the Court been satisfied that Mr Ross was not continuing to use methamphetamine. I am satisfied that the assumption which underlay the orders of May 2018 may not be correct and indeed I have a suspicion that Mr Ross is methamphetamine dependent, though I do not have clear evidence about that before me. It is clear enough that he has been a user of methamphetamine over many years.

7. In all the circumstances, I am satisfied that there is an unacceptable risk of harm to this child should the existing orders continue in place.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  8 January 2020