SOLOS & MICHAUD

[2018] FCCA 3050

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOLOS & MICHAUD [2018] FCCA 3050

Catchwords:
FAMILY LAW – Parenting – mother primary carer – parents had reached parenting agreement –child withheld in breach of parenting agreement – untested evidence of drug use – interest of the child concerned – recovery order made.

PRACTICE AND PROCEDURE – Venue transfer – mother and child habitually reside in Brisbane – proceeding transferred to Brisbane registry.

Legislation:

Family Law Act 1975, s.11F.

Applicant: MR SOLOS

Respondent: MS MICHAUD

File Number: MLC 10839 of 2018

Judgment of: His Honour Judge Wilson

Hearing date: 1 October 2018

Date of Last Submission: 1 October 2018

Delivered at: Melbourne

Delivered on: 1 October 2018

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant: Go to Court Lawyers

Counsel for the Respondent: Mr J Bunnings

Solicitors for the Respondent: Best Wilson Buckley Family Law

ORDERS

1. The father shall deliver the child [X] born 2017 (“[X]”) to the mother at 4:30pm on 1 October 2018 at the (airline omitted) check in counter at Melbourne Airport in Tullamarine.

2. [X] live with the mother.

3. If the respondent father fails to comply with order 1 hereof, a recovery order do issue authorising and directing the marshal, all officers of the Australian Federal Police and all officers of the police forces of all the states and territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force –

   (a)to find and recover [X] and to deliver [X] to the respondent mother born 1998 at Location A or at such other place as the mother and the person effecting such recovery agree to be appropriate; and

   (b)to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that [X] may be found.

4. The applicant father Mr Solos born 1992 is hereby restrained from removing [X] from the mother’s care until further order.

5. The matter is otherwise transferred to the Federal Circuit Court of Australia at Brisbane and adjourned for directions on a date to be advised.

6. Pursuant to s 11F of the Family Law Act the mother, the father and [X] shall attend an appointment on a date and at times to be advised by the regional co-ordinator of child dispute services in the Brisbane registry of this court.

7. The mother is restrained from ingesting, consuming or using, or otherwise being under the influence of, any legal or illegal drug or substance save and except for –

   (a)any legal medication prescribed for the mother by a registered medical practitioner, and taken or used by the mother strictly in accordance with the prescription; and

   (b)any over-the-counter legal medication or pharmaceutical substance ordinarily sold in supermarkets, and taken or used by the mother strictly in accordance with the directions appearing on the packaging of that medication or pharmaceutical substance.

8. UNTIL FURTHER ORDER the mother undertake supervised urine drug screen testing on a fortnightly basis at a pathology centre and forward the results of the urine drug testing on each occasion as soon as possible to the father’s solicitors.

9. The respondent’s costs of this day are reserved.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10839 of 2018

MR SOLOS

Applicant

And

MS MICHAUD

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. In this application the mother has sought orders in the nature of a recovery order for the return of the child of the relationship who was not returned to the care of the mother following the provision of the child to the father most recently.  The basis upon which the father resists returning the child is apprehension of risk to the child by reason of what he says is the mother’s self-confessed and proven drug-taking activity.

2. I am not satisfied that there is merit in the father’s application.  To the contrary. I am satisfied that it would orchestrate greater trauma to the child for the child to continue to live with the father having regard to the fact that the child was in the care of the mother until this application.

3. Let me explain my reasoning. 

4. Some time ago the parents entered into a parenting agreement without the need of court involvement pursuant to which they agreed on a regime for each parent to have time with their child.  One parent lives in Queensland.  The other lives in Victoria.  Pursuant to that arrangement the mother made the child available to the father in the state of Victoria.  The time for the return of the child under the parenting arrangement required the child to be returned to the mother by a particular time.  The father did not agree to that.  Then followed an exchange between the parents culminating in an agreement by the father to return the child.

5. For reasons not adequately explained the father the very next day brought this proceeding in this court in which he sought a rearrangement of the time regime.

6. The evidence in respect of the so-called drug taking is unproven.  It involves a great many allegations and counter-allegations, none of which are tested.  Today, Mr Bunning of counsel handed to me a document from the Drug Detection Agency that indicated that the mother had returned a clean report in respect of drug-taking activities as recently as 24 September 2018.  On behalf of the father, Mr Roberts said that the mother was a frequent and habitual user of a variety of drugs.  That did not appear to be borne out by the evidence, albeit that the evidence is untested on the point.

7. Ultimately, in a consideration of the application that is before me today the primary consideration is the best interests of the child.  Both parties contended that the balance tipped in his or her favour.  It seemed to me that the father, without the approval of the mother and without court sanction, failed to comply with his parenting arrangements as recorded in the parenting agreement.  He instead has purported to rely on an historic examination of the mother’s drug-taking history, which, as I have indicated is based on the recent drug detection agency report and is not borne out.

8. I am not in a position to assess the ability of either parent to adequately care for the child by reason of drug-taking activities or other factors.  That can only be done with the benefit of a full investigation into the matter.  But at this interim level it seemed to me that the most compelling factor that bore upon this case was obviously the best interest of the child underpinned by the time with whom the child has spent the most time thus far in the child’s short life.

9. The mother has been the primary carer.  I am satisfied that it would orchestrate much greater hardship to the child not to return to the mother than the reverse and, in those circumstances, it seemed to me that it is best to act in the child’s best interests at all times by making an order for the recovery of the child to the care of the mother.

10. The price, of course, for that order is an absolute prohibition forthwith on any drug taking by the mother of any drugs of any description and I will forthwith prohibit her from so doing and I will require her to submit herself for fortnightly screening and verification.  I will make a recommendation to the judge to whom this case is ultimately transferred to entertain an application if any one of the reports as to fortnightly screening is in the positive. In other words, the slightest indication of drug taking (or a resumption of drug taking if any pre-existed) will be visited sanguinely upon the mother. 

11. I will direct that this proceeding is transferred to the Brisbane registry and that a non-urgent child inclusive conference pursuant to s 11F of the Family Law Act is convened in Brisbane.  Otherwise I make orders in accordance with the minute that is proposed by Mr Bunning.

12. These orders are over the opposition of Mr Roberts.  I understand that.  The recovery order is the most important.  The recovery order has to be made by me and I will sign that forthwith. 

13. I reserve the respondent’s costs of this day.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Date:     26 October 2018