Walpole and JETTER

[2013] FCCA 1821

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALPOLE & JETTER [2013] FCCA 1821

Catchwords:
FAMILY LAW – Interim parenting – mother’s failure to undertake urinalysis testing – inference that testing results would have been problematic – unacceptable risk of abuse to [X] whilst in mother’s care.

Applicant: MS WALPOLE

Respondent: MR JETTER

File Number: WOC 1029 of 2011

Judgment of: Judge Altobelli

Hearing date: 29 October 2013

Date of Last Submission: 29 October 2013

Delivered at: Wollongong

Delivered on: 29 October 2013

REPRESENTATION

The Applicant in person

Solicitors for the Respondent: Johnson Horsley Solicitors

Solicitors for the Independent Children’s Lawyer: Legal Aid Commission NSW

ORDERS

1. That all previous parenting orders be discharged. 

2. That the parties have equal shared parental responsibility for the child of the relationship, namely [X] born [in] 2005.

3. That the child live with the father.

4. That the child spend time with the mother in a two weekly cycle as follows, provided such time is supervised by an agreed adult person who provides undertakings in the form required by the Independent Children’s Lawyer:

   (a)Week one – from after school Friday until before school Monday;

   (b)Week two – from after school Thursday until before school Friday.

5. That the mother be restrained by injunction from bringing the child in to contact with her partner, Mr J born [in] 1973, and that she do all acts and things to  ensure that no other person allows the child to have any contact with him.

6. That both parents be restrained by injunction from being under the influence of alcohol or the adverse influence of prescription drugs or the influence of illicit substances within the presence of the child or twelve hours before any contact periods with the child.

7. That both parties shall at their own costs submit to random chain of custody drug urinalysis testing in accordance with AS/NZS4308:2008 within 24 hours of request by the Independent Children’s Lawyer, with such requests to be made no more than once a month.  The parties are to provide copies of the results of the tests to the other party and the Independent Children’s Lawyer within 48 hours of receipt of same.

8. That both parties are restrained from abusing, insulting, belittling, revoking or criticizing the other party or their partner or members of the other parties’ family within the presence or hearing of the child, and the parties shall use their best endeavours to ensure that no other person does so.

9. That the parties are further restrained from discussing these proceedings in any way in the sight or hearing of the child or permitting any other person to do so.

10. That the mother is hereby restrained by injunction from using any form of physical discipline when disciplining the child. 

11. That the mother is to do all things necessary to cause the child to be delivered to her father no later than 6pm tonight (29 October 2013).

12. That leave be granted to the Independent Children’s Lawyer to relist the matter on 24 hours’ notice should it be necessary to have a recovery order made.

13. That the 11 and 12 December 2013 hearing dates be vacated.

14. That the proceedings be adjourned to 11 December 2013 at 10am for possible interim hearing.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Altobelli delivered this day will for all publication and reporting purposes be referred to as Walpole & Jetter.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT WOLLONGONG

WOC 1029 of 2011

MS WALPOLE

Applicant

And

MR JETTER

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The application before me relates to the child [X] born [in] 2005.  [X] has just recently turned 8.  The matter comes before the Court largely as a result of the Independent Children’s Lawyer expressing concerns when the matter came in for mention before me on 14 October 2013.  On that day I made orders that facilitated an interim application being dealt with today.  Before me is the father’s application in a case filed 17 October 2013, as supported by his affidavit of the same date.

2. The father’s application, for all practical purposes, seeks to reverse the existing arrangement so that [X] is living with him, and spending supervised time with his mother.  Whilst there is some difference in terms of the details of the proposal, it is a proposal that is, in essence, supported by the Independent Children’s Lawyer who, like the father, shares concerns about the unacceptable risk of abuse to [X] whilst in her mother’s care.

3. The mother represented herself today.  She also provided to the Court a lengthy type-written statement which the Court has had the opportunity to read, but I acknowledge neither Ms Ung as the Independent Children’s Lawyer, nor Mr Horsley for the father have had the opportunity to read.  As it turns out, I am satisfied that there is no prejudice to them.  The document is an unsworn document in any event.  The mother’s proposal is that, for all practical purposes, the situation remain unchanged, and indeed, my sense is that she would like to finalise this matter on an amicable basis with the father, on the basis that he has, what sounds like, some quite generous time with [X], but that [X] otherwise remain living with her.

4. This is important in the sense that implicit in the mother’s proposal is an absence of any real concern about [X]’s safety whilst in the father’s care.  To have those concerns would not stand in the context of the generous time that she is proposing. 

5. Unlike many interim applications that I have to deal with in this Court, there is actually abundant evidence to which the Court has had reference.  For example, there are the previous affidavits that both parents have filed in this matter to date.  In addition, there is a family report that has been prepared by Family Consultant Ms O dated 27 May 2013, and then there is a quantity of documents that have been produced on subpoena, and tendered by the Independent Children’s Lawyer that includes letters to the mother’s solicitors requesting urinalysis, documents produced by the Area Health Service, documents produced by [X]’s Schools and documents produced by the Department of Community Services.

6. For all practical purposes, the exercise that I am undertaking is a risk assessment exercise.  The thrust of the father’s case and the Independent Children’s Lawyers case is that there are such concerns about [X]’s welfare in the care of her mother that it is necessary to make an urgent order that reverses the existing arrangements so that she is principally cared for by her father. 

7. Let me discuss some of the more important pieces of evidence in this case.  I start with the Family Report prepared by Ms O.  It follows a format that is familiar for Family Reports, but there are a number of paragraphs that are significant in the present context.  For example, at paragraph 34 of the report:

   [X] identifies that she has felt uncomfortable at times in her mother’s home when her mother has been drinking or had friends over.  She spoke of a change in her mother’s behaviour when she had been drinking, and described feeling very uncomfortable when her mother was romantically involved with Mr J.

   As it turns out, I accept that Mr J is no longer on the scene, but the significance of this passage is that [X] corroborates some of the other concerns that are expressed about the mother’s consumption of alcohol. 

8. Another significant paragraph is paragraph 46 that in many ways encapsulates the concern that the Court has today.  At paragraph 46, the Family Consultant explains that the mother has so far provided limited reassurance to the Court about her parenting.  Her non-compliance with urinalysis or the parenting program is concerning and could demonstrate a disregard for the Court’s authority.  There was reference to failure to comply with previous orders, about alcohol use and Ms O makes the relevant observation that one would have thought that in the present circumstances, that the mother would be well motivated to reassure the Court about her circumstances.

9. This is a report that was released to the parties back in May, and one would have thought that the mother would have well and clearly understood the issues that were being raised against her.  Before leaving the report, another significant paragraph is paragraph 52:

   In terms of the hierarchy of [X]’s needs, her safety and wellbeing needs to be prioritised.  Based on the information available for this report it is difficult to make a clear and firm recommendation and there are concerns identified in each parent’s household.  Unless Ms Walpole is able to provide reassurance about the concerns regarding risk in her care, however, there may be less identified risk in the father’s care.

10. In other words, the Family Consultant clearly contemplated the situation where, notwithstanding some of the very significant concerns raised about the father, that in fact there might be least risk for [X] in his care.  Notwithstanding the family report and the subsequent orders for the preparation of a drug and alcohol assessment by an eminent expert, Mr K, it turns out that despite the efforts of Mr K and the Independent Children’s Lawyer, the mother did not attend or participate in that process.

11. In addition, there is the evidence of three separate requests for urinalysis that have not been complied with.  The mother did mention today in her oral submissions that she attended to do one urinalysis at a medical centre, but did not have the reports to produce to the Court.  In addition to the failure to participate with the expert, the failure to provide random urinalysis, and the largely corroborative statements of [X] herself about the mother’s drinking, there is one further piece of evidence that the mother herself concedes, and that is she was involved in a road accident just over 12 months ago, which resulted in her suspension from driving from September last year to September this year as a result of her having provided a breath analysis at the scene, which indicated a high range prescribed concentration of alcohol.

12. When those matters are taken into account, and when one has regard to the divergent sources from which they come - that is, the motor vehicle accident, what [X] said, the mother’s actions or inactions in not doing certain things which are really quite obvious when it comes to acting in her own interests, a strong inference is drawn that the mother does have a drug and/or alcohol problem.  The non-compliance with orders in relation to urinalysis was an issue that was clearly apparent and which the mother fails to provide any adequate explanation.  But it goes further than that.  Not just is there no adequate explanation, but there is a minimisation of the risk issues that are involved in this case.

13. There are a number of other complicating factors.  There are certainly concerns about the father’s parenting, but he does seem to be well-supported in terms of his family.  Even the Family Consultant regards him as having at least an adequate ability to care for [X].  There are concerns about extended and unexplained absences from school, certainly in 2012, but also in 2013.  But this can be a matter involving both parents and not just one.  The Department of Community Services’ records indicate at least past concerns about the mother’s drug and alcohol consumption as well as neglect of the child.  The mother is also, it would appear, a victim of family violence which adds to her vulnerability.

14. This is a complex case.  It had been set down for hearing in December this year, but what is apparent now is that the hearing will need to be vacated, given the absence of any satisfactory expert evidence about the main issue here, and that is about the mother’s drug and alcohol consumption.  The case advanced on behalf of the father and the Independent Children’s Lawyer is that there is the need to protect [X] from harm or the risk of harm.  The matters to which I have made reference establish, on an interim basis, that risk exists in the mother’s household.

15. The orders that I am asked to make, however, will bring about a very drastic change in [X]’s life.  If I make these orders, she will go from being predominantly cared for by her mother to being predominantly cared for by her father, and on the basis of limited and supervised contact.  Before making such a change, the Court would have to be convinced that the level of risk is so great that the risk to her, and protecting her from that risk, exceeds the detriment to [X] of the change that is proposed.  In these circumstances, I am convinced that risk exists, and that impact on [X] is mitigated by the father’s willingness to continue to send her to her existing school. 

16. I want to record why I do not accept the mother’s explanations.  It is not just one opportunity that the mother has missed, but several, and she has missed them consistently – three missed requests for urinalysis, several attempts to meet the expert, Mr K.  The mother says to me: “I am financially secure”.  The mother says to me that she has a sister who would, for example, be prepared to lend her money.  In these circumstances, it cannot be a financial obstacle that prevented the mother from complying with the orders.  I do not accept as plausible the mother’s explanation that because she had to use public transport for 12 months that that was the reason why she could not comply with the requests and the orders that were made.

17. In the circumstances, all that can be said from the mother’s submissions is that it continues the theme of minimising the significance of the issues before the Court.  In the circumstances, and not without hesitation, the Court intends to make orders in terms generally of that proposed by the father.  However, Order 5 will be an order that [X] spend time with her mother in a two-weekly cycle, provided it is supervised by an agreed adult person who provides an undertaking in a form required by the Independent Children’s Lawyer.  There is the possibility of the mother’s sister, and framing the orders as I have will give the Independent Children’s Lawyer the opportunity to see if she can, in effect, come on board.

18. The orders about drugs and alcohol will be mutual orders.  I intend to make the rest of the orders, but I will make a further order granting leave to the Independent Children’s Lawyer to relist this matter on 24 hours’ notice, should it become necessary to have a Recovery Order made.  I am going to vacate the hearing on 11 and 12 December 2013  and replace it instead with a mention or possible interim hearing at 10am on 11 December 2013.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:  6 November 2013