Sheffield and Tomlin (No.3)

[2018] FCCA 614

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHEFFIELD & TOMLIN (No.3) [2018] FCCA 614

Catchwords:
FAMILY LAW – Parenting – interim hearing with respect to the mother’s time – whether or not that time should continue to be supervised – non-attendance by the mother – orders made in accordance with interim proposal of the Independent Children’s Lawyer and the father.

Legislation:

Family Law Act 1975

Cases cited:

Sheffield & Tomlin [2017] FCCA 182

Applicant: MR SHEFFIELD

Respondent: MS TOMLIN

File Number: MLC 2400 of 2015

Judgment of: Judge Harland

Hearing date: 2 March 2018

Date of Last Submission: 2 March 2018

Delivered at: Melbourne

Delivered on: 2 March 2018

REPRESENTATION

Counsel for the Applicant: Ms Szabo

Solicitors for the Applicant: Peter Szabo Family Law

The Respondent: No appearance

Counsel for the independent children's lawyer: Ms Kourtis

Solicitors for the independent children's lawyer: Mckean Park Lawyers

ORDERS

THE COURT ORDERS THAT:

1. The proceeding remains listed for final hearing commencing on 16 July 2018 at 10.00am (with an estimated hearing duration of four days).

UNTIL FUTHER ORDER, AND SUBJECT TO THE UNDERTAKINGS MADE BY THE MATERNAL GRANDPARENTS ON 23 FEBRUARY 2018:

1. The mother spend time with the children [X] born (omitted) 2004, [Y] born (omitted) 2007 and [Z] born (omitted) 2012 as follows:

   (a)Until 1 April 2018, each alternate Sunday from 1:00pm until 7:00pm;

   (b)From 14 April 2018, each alternate weekend from 1:00pm Saturday until 7:00pm Sunday;

   (c)From the date of these Orders, each Wednesday from 5:00pm until 7:00pm excluding 4 April 2018.

2. For the purposes of contact pursuant to these Orders:

   (a)All time is supervised by either or both of the maternal grandparents;

   (b)The mother ensure the children attend their extra-curricular activities that fall during her contact periods;

   (c)Changeovers take place at McDonald's (omitted);

   (d)The child [X] attend in accordance with his wishes.

3. In the event that either the mother of the maternal grandparents breach these Orders or the terms of the Undertakings made by the maternal grandparents on 23 February 2018, all time pursuant to these Orders is suspended.

IT IS NOTED that publication of this judgment under the pseudonym Sheffield & Tomlin (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2400 of 2015

MR SHEFFIELD

Applicant

And

MS TOMLIN

Respondent

REASONS FOR JUDGMENT

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. The father commenced these proceedings on 25 March 2015, filing an initiating application seeking parenting orders.  The mother filed a response seeking parenting and property orders.  Proceedings began in the Family Court before being transferred to this Court.  There have been several assessments with two child and parent assessments in the Family Court, a section 11F memorandum in this Court and a Family Report.  The nature of the case changed dramatically as outlined in my reasons for decision after an interim hearing on 31 January 2017.[1] I will not repeat what I said in those reasons here.

   [1] Sheffield & Tomlin [2017] FCCA 182.

3. It is unfortunate that the children have spent little time with the mother since January 2017, but that is not through a lack of trying to make arrangements for that to occur in a manner that is safe.  The issues that were identified as being most concerning at the interim hearing were with respect to subpoenaed material indicating that the children had been exposed to significant family violence in the mother’s home due to the presence of the mother’s partner, Mr M.  At the interim hearing there were some real doubts from the evidence as to whether or not the mother was still in a relationship with Mr M, who has an extensive criminal record with respect to drug use and also family violence.

4. In addition to those issues of family violence is the issue of risk as a result of the mother’s drug use.  The father had complied with the Independent Children’s Lawyer (“ICL”) request for drug tests and those results were negative.  The mother, however, has not complied with those requests.  She has provided an incomplete test on 16 December 2016, which did not have any of the usual indicators and did not indicate whether it was supervised.  Supervised time at the contact centre has not taken place.  It seems, from the evidence that the mother did not engage with the centre.  When the matter was before the Court in October 2017, I listed the matter for an interim hearing on 22 February 2018 to specifically deal with the mother’s application that she have unsupervised time.

5. The mother failed to comply with the directions to file and serve her affidavit in support of that application by 15 January 2018 and instead, attended Court on 22 February 2018 with a short affidavit that she had handed up that appeared to refer to there being documents she wanted to rely on which were not annexed to her affidavit and in addition, an emailed affidavit from her mother, which was not filed, which was indicating that the mother has been seeing the children when the children have been spending time with her parents for some months. 

6. I gave the mother another opportunity to address this matter by listing the matter today.  I ordered that she file and serve any further affidavit she wished to rely on in support of her interim application by Monday 26 February 2018, which she failed to do.

7. The father filed a further affidavit in compliance with the direction, which raises some concerning issues with respect to the mother and her parents, particularly there being some inconsistencies as to whether or not the maternal grandparents told the father and his wife that the mother had been spending time with the children. 

8. The Court remains concerned that the children are at an unacceptable risk if they spend unsupervised time with their mother.  Today the mother has not attended Court.  She emailed Chambers to say she had car trouble.  She then later advised the ICL that she had had a panic attack and was leaving the hospital and was planning to arrive in 45-50 minutes. The matter was listed at 10.00am. It is almost 12.00pm. The mother still has not attended. 

9. The ICL and the father have agreed on a set of interim orders which provide for the children to see the mother supervised by her parents initially for day time periods and then for overnight periods, pending the final hearing.

10. I am satisfied that this is in the children’s best interests. One could understand why the father would still be concerned about the maternal grandparents.  They have filed undertakings that are annexed to the ICL’s affidavit.  They need to be aware that if they breach these orders by failing to comply with those undertakings, then the mother’s time will have to be suspended.  It does not help the mother or the children for the maternal grandparents not to understand the important role, regardless of whether they think it is necessary for the mother’s time to be supervised or not. 

11. The mother’s presentation continues to be concerning.  Whilst I accept that it is distressing for her dealing with these proceedings, and she does not have the benefit of a lawyer, it is not the first time that she has not attended Court on time. It is not the first time she has not complied with orders.  It was clear, when the matter was last in Court, that she blames other people for the position that she is in.  I have ordered a further family report and also listed the matter for a trial, as this matter must come to an end for the children’s sake, regardless of whether or not the mother is able to address the issues of concern.

12. The mother should understand that the ideal position would be for her to be able to have a relationship with the children on an ongoing basis, including unsupervised time, but that can only be done if it is safe for the children and by safe, I mean not just physically safe, but emotionally as well, and the mother is going to have to provide evidence to the Court that addresses the concerns that are not limited to the issues of family violence, but also concern drug use as well, which to date she has failed to address.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 20 March 2018