Thomas and Grant

[2007] FamCA 1552

FAMILY COURT OF AUSTRALIA

THOMAS & GRANT [2007] FamCA 1552

FAMILY LAW – CHILDREN – With whom a child lives with – Spending time with – Supervision by contact centre – Drug use

Family Law Act 1975 (Cth)

APPLICANT: Mr Thomas

RESPONDENT: Ms Grant  

FILE NUMBER: BRF 9049 of 1999

DATE DELIVERED: 3 December 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 3 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G J Fleetwood

SOLICITOR FOR THE APPLICANT: Schultz Toomey O'Brien of Mooloolaba

SOLICITOR FOR THE RESPONDENT: The Respondent Mother appeared on her own behalf

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr J Linklater-Steele

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: Legal Aid Queensland, Brisbane

Orders

1. That the children M born … March 1998 and J born … March 2000 live with the father.

2. That the father have sole parental responsibility for the long term major issues in relation to the children.

3. That the children spend time with the mother as follows:-

   (a)Supervised at the … Contact Centre known as … for up to two hours each alternate weekend on a Sunday at times convenient to the centre and that:-

   (i)The mother and father share the costs of the supervision equally;

   (ii)That the Mother and Father to comply with all rules of the centre;

   (iii)That the Mother and the Father comply with all reasonable request or directions of the staff of the centre.

   (iv)That the Mother given the Father 48 hours notice if she is unable to spend time with the children.

   (b)By way of written communication with the children not more than once per week and such communication to be through the children’s counsellor.

4. The mother if she wishes be permitted during the time she spends with the children at the contact centre to bring her two younger children and subject to the approval of the centre Mr S attend with the mother on one occasion per month.

5. That the mother not attend the children’s school or medical practitioners but that she be at liberty to obtain information from them by way of letter only and this Order is sufficient authority for the children’s school or medical practitioner to provide information to the mother at her request.

6. That neither the mother nor father use or be affected by illicit drugs whilst the children are in their care or for the 24 hours prior to the children being in their care.

7. That neither the mother nor father discuss with or in the presence or hearing of the children any matter which is the subject of, or relates to proceedings between the parties allegations raised in the proceedings and will remove the children from the presence of persons who are doing so.

8. The Father ensure that the children continue to attend at counselling with Ms W and/or a suitability qualified counsellor as and when directed or requested to attend by that counsellor.

9. The Mother and Father abide by the recommendations of the children's counsellor as to the frequency of the children's attendance, any other person’s attendance as directed or requested by the counsellor, or any recommendations as to the children spending time with the Mother.

10.The parties be at liberty be at liberty to seek from the children’s counsellor a report limited to:-

a.The dates and times of the children’s attendance.

b.The dates and times of the parents’ or any other person’s attendance.

c.Whether the recommendations of the counsellor have been complied with.

d.Whether any referral to other agencies or professionals have been made by the counsellor and the basis for the referral.

e.Recommendations by the counsellor for the future progress of re-establishing the children’s relationship with the mother.

f.The costs of the report be at the expense of the person seeking such report.

g.Such counselling is confidential unless otherwise provided.

11.The mother do for the next six months supply to the Court once per month a drug test such test to be supplied to the Court within 48 hours of the taking of such sample.

12.The Independent  Children’s Lawyer be discharged.

13.That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 9049 of 1999

MR THOMAS  

Applicant

And

MS GRANT   

Respondent

REASONS FOR JUDGMENT

1. This is a most unfortunate case.  This is a case which happens, once again, unfortunately too frequently, where one of the parties is unassisted by legal advisors for want of the tyranny of money and as a result thereof their case is presented in a very poor light.  It is, perhaps, not their fault, it is just they do not have anybody to stand up and be counted for them.

2. In this case, the applicant, Mr Thomas is seeking an order to finally lay to rest a dispute that has taken place between himself and his former partner, Ms Grant, in relation to two children of their relationship:  M, born in March 1998; and J, born in March 2000. 

3. The dispute between the parties commenced in or about the year 1999, and notwithstanding the fact that they have lived together subsequent to that time - if my memory serves me correctly, it was not until late 2004/2005 that the children came into the possession of the father and they have remained in the possession of the father and the mother has had various forms of spending time with the children.

4. This matter came on before me initially on 17 August of this year as a LAT matter in which I made certain orders in relation to directions.  In particular, I was emphatic that there should be material put before me by, particularly, the mother.  I refer to Orders 6, 7 and 8 of that Order.  The father just complied, or may have missed it by one day, with the orders.  The mother did not, had not, and still has not.  She came to Court today with a reason for her failure to comply with the order in that she was recently delivered of a female child, namely - - -

   RECORDED:   NOT TRANSCRIBED

5. - - - G (?), in October, which I believe was delivered by caesarean section.  The mother remained in hospital for a period of approximately one week.

6. She says this is the reason that she has been unable to comply with my order of August.  That may be the case, but an earlier order was made by Smith JR in or about the month of February of this year where inter alia, but in particular, she refers to the requirement of the parties to submit themselves to random drug screens - see Order 20.

7. The father has complied, the mother has not complied directly in accordance with that order.  She has been called upon at least six times - - -

   RECORDED:   NOT TRANSCRIBED

8. - - - and was the recipient of a letter, see exhibit 1, in which it was set out firmly and concisely and quite properly by the Independent Children's Lawyer that she should - and I am interpreting this letter - comply with that order or it could go ill with her.  She has not done so.  She explains that she is of the belief because she is on probation, or something of that nature with the police department - - -

   RECORDED:   NOT TRANSCRIBED

9. - - - Community Corrections, and that she had undergone drug tests there that that was sufficient compliance with this order of the former Judicial Registrar.  That is not the case.  Anyway, as has fallen from the Independent Children's Lawyer's counsel, Linklater-Steele, such drug tests would have to be looked at with a great deal of scrutiny in that there has been a proviso to those tests that notwithstanding the tests were clear - and I have been informed this from the Bar table, I understand that appears in the subpoenaed material before us -  notwithstanding they were clear they were adulterated.  As a result of that I would have thought that I would have to scrutinise it most carefully as to whether, in fact, either (a) it was a proper drug test; (b) if it was proper as the adulteration shows some attempt to mask the contents; or (c) it is a waste of time even using it.  I do not have to go that far.

10. The Independent Children's Lawyer has put before me his submissions in relation to this matter going any further.  He indicated that there is further evidence that may be put before the Court and Fleetwood of Counsel for the father indicates there were three.  There was one that R, a 17 year old son of the mother from another relationship, has recently been charged with a drug offence in the … Magistrates Court; that a Mr S, who is her present partner, has also been charged with breach of a Drug Diversion Order and I am informed from the Bar table by Linklater-Steele that this is made by a Community Corrections Department in order to assist a person in overcoming drug addiction, or something of that nature.  I cannot find, of course, anything on it because it has not been put before me.

11. Mr S does, in a document which is unsworn and which would have been sworn in accordance with it by the witness being sworn and adopting the affidavit, say that he has in the past experimented with drugs.  I am mindful that it is a LAT matter and the Evidence Act and any form of common law evidence no longer applies.  I am waiting for the constitutional attack on that.  That is a matter, of course, which has to be considered if this matter goes on, if the mother wishes to have some contact with the kiddies, that is R’s drug addiction or otherwise has to be looked into.  Mr S' reason for being in a Drug Diversion Course must be looked into. 

12. Then there is the third matter, which the mother has in effect conceded, that she was observed to have two black eyes.  She concedes today that she has black eyes and I have not sought from her how this came about and do not intend to do so.  It is a matter which Fleetwood of Counsel submits should be considered if the matter is adjourned, as the mother seeks, in order for her to perhaps put further material before us to support her claim that the children live with her.

13. I take into consideration and adopt both the reports of Ms L and, particularly, Ms B.  There is a Ms W, who has counselled the children.  It appears though Ms W is not acceptable to the mother any further.  She believes that Ms W has made a statement and has moved into another camp.  That is a matter which should have been tested by evidence of some sort as it does comply with the LAT procedure, but it has not in any way been put before me in a verifiable manner other than for the proposed affidavit of the mother which she presented to the Court this morning, both, that is her affidavit and Mr S' affidavit, as I have said, being unsworn.

14. What would happen if, in fact, we adjourn the matter?  As has fallen from Linklater-Steele, nothing.  Nothing would get better in his submission.  He, perhaps, is a person who looks upon the glass as being half empty rather than half full and I, with great respect to him on the material before me, consider that there is nothing further the mother could put before us other than to comply with orders of this Court, other than to explain why R has been convicted of a drug offence, other than to explain why Mr S has had - - -

    RECORDED:   NOT TRANSCRIBED

15. He was convicted of an offence under the drug divergence.

    RECORDED:   NOT TRANSCRIBED

16. I am informed that, perhaps, all is not what we expect it to be, which would, of course, be explained upon this matter being adjourned and further evidence put before me.  I do not believe that taking into consideration all the mess that has gone on in this case, the (indistinct) hatred of the parties to each other; the behaviour which is almost beyond belief - and I do not say only one side, both of these parties, as soon as they each other, blood jumps into their eyes.  I refer to the Mothers’ Day fracas of 2006.  I refer to the general attitude of the parties when driving past or walking past, giving each other the finger and things of that nature.  I do not know about each other, but there is evidence that inappropriate gestures are exhibited to each of the parties, this taking place in front of the children.

17. I am mindful of what Ms B she says at paragraph 71 of her report:

    "It is in the best interests of the children I strongly urge [the father] and [the mother] to improve the level of communications between them in regard to the care of the children."

18. I do not believe that is going to happen and I do not think that this matter being adjourned to a later stage and being investigated in full will in any way assist the Court other than for the mother to show that she can comply with orders, other than for the mother to show, and people whom she wishes to attend upon spending time with the children, are drug free, and then I think that the onus is upon her to show that.  Consequently I will make final orders in accordance with the minute put before me by the applicant in particular in relation to - I make it quite clear, of course, if the case goes to another place - and I have considered the question of joint parenting; I have considered the question of joint spending time with; I have considered all those matters set out in s 60CC and I think it is patently clear my having incorporated in these my Reasons for Judgment both Ms L's and Ms B's report, that they clearly show that each of those matters have been considered by myself. 

19. This is not a case for shared parental responsibility and/or spending time with, notwithstanding the political masters' view of it and I immediately dispose of that presumption.  I have taken into consideration, as I say, those other matters where relevant and those contained in the report in the pious hope that I request that the parties endeavour for the sake of their children, who appear to be lovely children, at least do something for them and stop being cranky at each other and getting everybody else involved. 

20. There is a further request on the part of the mother that she be allowed, during the supervised spending time with - that she is with the children that she have available to bring, if she so desires, Mr S, her present partner; R, her son; another son - - -

    RECORDED:   NOT TRANSCRIBED

21. - - - N; and of course the two young children that she is at present parenting, they being a daughter who is 14 months or thereabouts of age; and the little one to whom I have already referred who is now about six weeks.  That is not opposed by either the independent children's lawyer or the applicant father.  Insofar as Mr S and the others are concerned, I am persuaded solely as a result of Ms B's report that I would allow Mr S to attend upon the contact centre, subject of course to their approval, on one occasion per month, that would one out of two. Insofar as the others are concerned, I am mindful as to what has fallen about R with drugs.  Also I am mindful as to what took place in the Mothers Day fracas in 2006, Mr S was involved too. 

22. As I said, I am impressed with the relationship with the children to Mr S, and let us hope that the children's statement, or words to this effect

    "I never knew he could be so nice"

    is continued. And if it is I am sure that there will be a better relationship between the mother, Mr S, and eventually between the mother, the children and the father as well.

    ORDER DELIVERED

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate 

Date:  3 December 2007