S and H - [2004] FMCAfam 271

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & H

[2004] FMCAfam 271

FAMILY LAW – Interim residence.

Family Law Act 1975

Cowling & Cowling (1998) FLC 92

Applicant Mother:

ACS

Respondent Father:

NBH

File No:

DGM 794 of 2001

Delivered on:

1 June 2004

Delivered at:

Dandenong

Hearing Date:

1 June 2004

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant Mother:

Ms. Reale

Solicitors for the Applicant Mother:

Reale Lawyers

Counsel for the Respondent Father:

Mr. Wraith

Solicitors for the Respondent Father:

Fraser Nevett & Frawley

Counsel for the Child Representative:

Mr. Holmes

Solicitors for the Child Representative:

Goddard Elliot

ORDERS

So much of the Rules of the Court be dispensed with to permit the Application filed 26 May 2004 being heard this day.

UNTIL FURTHER ORDER:

Order 2(a) of the Orders made by this Court on 5 December 2001 be suspended so that the Respondent Father have contact with child of the relationship ZJH born 30 October 1993 from Friday at 6.00 pm until 6.00 pm Sunday for the first 2 weekends in every 3 week cycle commencing 11 June 2004.
The Respondent Father make the child available for collection from the Paternal Grandparents this weekend at 7.00 p.m.
The Applicant Mother undergo supervised tests for the presence of illicit drugs requested randomly by the Child Representative and provide the results forthwith to the Child Representative.
The Applicant Mother abstain from the use of all illicit drugs whilst the child is residing with her.
The Applicant Mother do all things to ensure that her partner MF is not present whilst the child is residing with her.
The parties do all things to attend upon a child psychologist to be appointed by the Child Representative for the purposes of the preparation of a report as to the child’s best interests and specifically as to his wishes. The costs of such report to be shared equally between the parties.
The Child Representative, Goddard Elliot be reappointed in these proceedings.

IT IS FURTHER ORDERED THAT:

The Application be otherwise adjourned to this Court in the duty list on 17 August 2004 at 10.00 am.
Pursuant to Rule 21.15 of the Federal Magistrates Court Rules the Court certifies that it was reasonable for the parties to employ an advocate to appear in the proceedings.
Liberty to apply is granted to the parties in relation to any matters arsing out of these orders.

AND THE COURT NOTES:
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create. The particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A which form part of these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DANDENONG

DGM 794 of 2001

ACS

Applicant Mother

and

NBH

Respondent Father

REASONS FOR JUDGMENT
(Revised from transcript)

This is an Application by ACS (the Applicant Mother) filed 26 May 2004 seeking effectively a recovery order in relation to the child ZJH, born 30 October 1993 (the child). The further matter before the Court is an Application filed in the B Magistrates Court on 27 May 2004 by the father NBH (the Respondent Father) seeking orders which effectively require the Court to alter Family Court orders which had been made on 5 December 2001 in relation to residence and contact of the child.
The competing Applications before this Court have both been supported by affidavit material filed for and on behalf of the parties.

It is common ground that as a result of the orders made by the Family Court on 5 December 2001, the child was to reside with the Applicant Mother and there was to be contact. It is perhaps significant to note that order 12 of those orders made included the following:
“12.That should the father have future concerns on reasonable grounds, that Z is not residing in a drug free or safe environment or should the mother decide to move to live in a State other than Victoria, the father has specific liberty to apply for Z to reside with him.”
It is clear on the affidavit material filed by the Respondent Father that he has expressed concerns about the living arrangements for the child with the Applicant Mother. He refers to a number of issues which include drug use, conduct of inappropriate kind alleged between the Applicant Mother and her current partner including alleged drug taking, drug dealing and including allegations of physical violence between the partners and verbal arguments.
When the matter was first before the Court today in the busy duty list,

at the request of the parties I made an order that a Child Representative be reappointed. I am told from the bar table that the Child Representative has had an opportunity of having a discussion with the child now 10 and a half years old. It seems that the child, at least as a preliminary view, has expressed a preference to remain where he has been for the last 10 or so days with the Respondent Father.
It is the Respondent Father's case that I should make interim orders effectively suspending for the time being those orders made in the Family Court on 5 December 2001 and that residence should be ordered on an interim basis with the Respondent Father. That order is resisted and counsel for the Applicant Mother has submitted that this is a recovery Application. The Applicant Mother has the benefit of the orders made in the Family Court on 5 December 2001 and that to alter, albeit on an interim basis, the residency of a child involving, as it appears to involve a change of school, is a significant step which should only be taken upon proper grounds.
The Child Representative through counsel has confirmed to some extent, what has occurred this morning in relation to an expression of the child's wishes, but has otherwise referred to the difficulties for the child having regard to the interests of the child in being required to alter the current residence arrangement, which has been in place since the orders were made in the Family Court and which would necessarily involve a change of schooling between now, and the next interim hearing which is scheduled for August 2004.
Submissions were otherwise made as to the desirability, however, for there to be conditions imposed upon the Applicant Mother, that she subject herself to random drug testing as requested from time to time by the Child Representative, that she undertake and ensure that her current partner does not reside with her, and by inference, it would seem to me, undertake to desist on using illicit drugs whilst the child is in her care. It is further suggested by the Child Representative's counsel that on an interim basis, the contact which is currently on alternate weekends be extended to two weekends in every three until the matter returns to Court in August 2004.
There is no doubt that in applying the principles which I am bound to apply on an interim residence issue, and considering what orders I should make on what is after all an initiating Application for recovery, I must take into account the interests of the child as being paramount, and otherwise apply the principles which are referred to in the often cited decision of Cowling & Cowling (1998) FLC 92. I refer to paragraph 25 as follows which relates to a number of matters to which I should give due consideration.
“25.Finally, in determining whether, at the date of hearing, a child is living in a settled environment, consideration should be given, inter alia, to the following:-
·   the wishes, age and level of maturity of the child.
·   the current and proposed arrangements for the day to day care of the child.
·   the period during which the child has lived in the environment.
·   whether the child has any siblings and where they reside.
·   the nature of the relationship between the child, each parent, any other significant adult and his or her siblings.
·   the educational needs of the child.”
I note further though in Cowling’s case that where the Court is considering the issue of the child's current living arrangements and where issues are raised, as in the present case, as to matters of concern in relation to the Applicant Mother's arrangements, I must take into account whether or not on all the material before me, albeit at an interim hearing based only on untested affidavit evidence, there is convincing proof that the child's welfare would really be endangered by remaining in a particular environment.
Whilst I have some concerns and reservations about the current living arrangements of the Applicant Mother, as alleged in the Respondent Father's material which includes not only the father, but other deponents, I am not satisfied on the material before me that there is what might be described as convincing proof that the child would be endangered by living in the Applicant Mother's environment as currently described, subject to and conditional upon those orders suggested by counsel for the Child Representative. I am otherwise satisfied that although the child may have expressed a view, that is, a view expressed by a 10 and a half year old child, it is only one matter to be taken into account amongst all the other matters to be considered, including the fact that orders were made, and have been in full force and effect since December 2001.
I further take into account that if I were to alter on an interim basis the arrangements for residence of the child, that would have a consequential disruptive impact upon the child's education arrangements, requiring him to leave his current school where he has been a member for some time.
It is noteworthy that in the orders made by the Court on 5 December 2001, a specific order was made restraining the Applicant Mother from in fact transferring or removing the child from that school, or otherwise enrolling him in a different school. I can only conclude that at that date, it was thought to be a desirable outcome in the interests of the child, and the interests of stability in the education of the child.

The same factor applies to the current circumstances.
In my view, having regard to those matters, it is appropriate that the child should be returned to the Applicant Mother and I will formally make appropriate orders which I will invite the parties to draft which will include the return of the child to the Applicant Mother, as soon as practicable with minimum disruption to the child. I will further make orders as suggested by counsel for the Child Representative on an interim basis extending contact in the manner described. I will require the Applicant Mother to consent to, or if not consented to, orders will be made directing that she be subject to random drug testing as requested by the Child Representative, and further, that she desist from the consumption of illicit drugs whilst the child is in her care and that she ensures that her current partner does not reside at the premises until further order.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 1 June 2004