Wilkins and Springfield

[2014] FCCA 1126

FEDERAL CIRCUIT COURT OF AUSTRALIA

WILKINS & SPRINGFIELD [2014] FCCA 1126

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – best interests of the child – appointment of independent children’s lawyer.

Legislation:
Family Law Act 1975 (Cth), ss.11C, 11F, 60CA, 61DA, 65DAA, 68L

Cases cited:
Re K (1994) 17 Fam LR 537; FLC 92-461

Applicant: MS WILKINS

Respondent: MR SPRINGFIELD

File Number: WOC 748 of 2011

Judgment of: Judge Scarlett

Hearing date: 23 April 2014

Date of Last Submission: 23 April 2014

Delivered at: Wollongong

Delivered on: 24 April 2014

REPRESENTATION

Counsel for the Applicant: Ms Cooke-Dolan

Solicitors for the Applicant: Heard McEwan Legal

Counsel for the Respondent: Mr Quirk

Solicitors for the Respondent: Quirk Lawyers

ORDERS

UNTIL FURTHER ORDER:

1. The Respondent Father must return the child, X born (omitted) 2010 to the care of the Applicant Mother by 6 pm on Friday 25 April 2014.

2. The Applicant and the Respondent are to have equal shared parental responsibility for the child X.

3. The Father is restrained by injunction from again removing the child X from the care of the Mother.

4. Order 3 made by consent on 21 May 2012 is suspended.

5. The child X is to spend time with the Father:

   (a)From 9 am to 5 pm each Saturday.

   (b)From 9 am to 5 pm on Father’s Day; and

   (c)On such other occasions as the parties shall agree.

6. Both parents are restrained by injunction from consuming or otherwise administering to themselves any illicit drug, including cannabis, at any time that the child X is in their care under these orders or for 12 hours beforehand.

7. Both parents are restrained by injunction from criticising or denigrating the other parent in the presence or hearing of the child or permitting any other person to do so.

8. In accordance with the provisions of section 11F of the Family LawAct 1975 the Mother and Father are directed to attend a child dispute conference with a Family Consultant at the Wollongong Registry of the Court on 15 May 2014 and, as provided by section 11C of the Family Law Act, the conference is to be reportable.

9. In accordance with the provisions of section 68L of the Family LawAct the interests of the child, X, born (omitted) 2012, are to be independently represented by a lawyer and for this purpose Legal Aid New South Wales is requested to arrange such representation.

10. Within 14 days of the date of this order, the parties are to forward to Legal Aid New South Wales at Wollongong, for the use of the Independent Children's Lawyer when appointed, copies of all applications, responses, affidavits and all other relevant documents.

11. The Independent Children's Lawyer is granted leave to issue up to 10 subpoenas without charge or further leave of the court.

12. Both parents must undertake, by provision of urine screen, in accordance with Australian New Zealand Standard 4308 2008 or any subsequent approved standard urine analysis for drug screening to detect the presence of illicit drugs on at least one occasion each month within 24 hours of being requested to do so by the Independent Children's Lawyer and provide a copy of the certificate of the results of the urine drug analysis to the Independent Children's Lawyer and the lawyer for the other parent within 48 hours of receiving that certificate.

13. The Application is adjourned for mention only on 24 June 2014 at 2 pm in the afternoon.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT WOLLONGONG

WOC 748 of 2011

MS WILKINS

Applicant

And

MR SPRINGFIELD

Respondent

REASONS FOR JUDGMENT

1. The Application before the Court is an application by the mother of a little girl called X who was born on the (omitted) 2010.  She seeks that X be returned to her care by the father.  The father, by his Response, opposes those orders and raises a number of reasons as to why he is of the belief that X should continue to live with him.  Essentially he is critical of the mother because of what he claims are her use of illicit drugs and certainly because of her violence towards him.

2. There was indeed an incident between the parties which involved the mother not only assaulting the father but wounding him to the extent that she was charged with reckless wounding with a backup charge of assault occasioning actual bodily harm.  The mother has pleaded guilty to the charge and has now been sentenced.  On 6 March 2014 in the Wollongong Local Court an Apprehended Violence Order was made against the mother in force for a period of 12 months containing the standard orders that the mother must not assault, molest, harass, threaten or otherwise interfere with the father or engage in any other conduct that intimidates him,  must not stalk him and in addition, that she must not approach or contact him by him any means except through her legal representative or as agreed in writing or as permitted by an order or directions under the Family Law Act. 

3. The circumstances are that the mother seeks the return of the child because on 17 March the father took his own steps to take the child into his care by taking her from preschool and at the time of the hearing yesterday, the mother had not seen the child since then.

4. I might comment that the father was not legally represented at that stage.  There was an incident on 17 March where the mother attended the preschool when the father was taking the child away and tried to extract the child from the arms of the father.  As a result the mother has been charged with a breach of the apprehended violence order.  That charge has not been dealt with.  The fact is that there are in force some orders made by consent from this Court relating to the parenting of X.

5. Those Orders were made by consent on 21 May 2012 by Federal Magistrate Foster as his Honour then was.  Those Orders provided that the child would live with the mother and that the father would spend time with the child at times to be agreed between the parties for a total minimum period of 24 hours per week subject to the father’s work commitments and the mother’s other commitments.  There are also orders stating that the parties agreed to attend counselling if they deemed it appropriate in relation to parenting of the child. There was also an order about changing the child’s surname.  Again, there was an order about the parties participating in a parenting course. 

6. The mother has another child from a previous relationship and says that that child is missing X, as indeed she is, although that child is currently staying with the child’s father whilst the mother concentrates on this particular issue.  It should be made clear that in making parenting orders the Court must regard the best interests of the child as the paramount consideration.

7. Section 60CA of the Family Law Act makes that quite clear.  Section 60CC in paragraphs 2 and 3 sets out how it is that the court ascertains what the best interests of the child are. The primary considerations are in subsection (2) and they relate to, first of all, the benefit to the child of having a meaningful relationship with both parents and second, and this is the more important of the two, protecting the child from physical or psychological harm, from being subjected to or exposed abuse, neglect or family violence. 

8. There are a number of considerations in subsection (3). They include ascertaining the wishes of the child and giving those wishes such weight as are appropriate.  They include issues relating to violence, and the existence of any family violence order and there are a variety of other issues, all of which I have considered. 

9. The court must also consider the question of parental responsibility. There is a presumption under section 61DA of the Family Law Act that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child but that presumption does not apply in case of abuse or family violence and may be rebutted by evidence that satisfies the court that it would not be in the child’s best interests for the parents to have equal shared parental responsibility. In an interim hearing such as this, it would normally be the case that the parents would have equal shared parental responsibility unless the court considered that that was inappropriate. 

10. If there is an order for equal shared parental responsibility, the court then has the obligation to consider whether it is in both the child’s best interests and reasonably practicable for the child to spend an equal amount of time with each parent and, if that is not the case, the court must then consider whether it is in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each parent.

11. All of these matters have been considered.  I note that there is a proven and conceded incident of violence occasioned by the mother on the father.  That is reprehensible.  It has led to the issue of a family violence order by the Local Court and a criminal charge which has now been finalised.  It is not in a child’s best interest for her parents to engage in violence between them, especially in the child’s presence.

12. There are issues about the issue of illicit drugs.  There is an allegation against the mother and the father concedes in his affidavit that he had used illicit drugs but doesn’t do so now and indeed in his affidavit offered to submit to the appropriate drug test to indicate that he is in fact free from illicit drugs.  There is another issue which causes the court considerable concern, which is an issue raised by the mother.  How, one might ask, did these circumstances arise?  The violence, confrontation between the parties.  The father taking it upon himself to remove the child from preschool and the mother’s care.

13. The mother has had concerns for some time that when the child has been in the father’s care that he has behaved in an inappropriate way sexually and referred amongst other things to the father sleeping in the same bed as the child when the father was naked.  The father concedes that he slept naked on one occasion in December during the hot weather but denies anything further.  There are other issues that have caused the mother concern about the child’s welfare in the hands of the father.

14. These are serious matters and need to be properly investigated.  For the mother to react in a violent way, causing injury to the father is of course entirely the wrong way to go about things.  It is hardly surprising that she was charged by the police and it is hardly surprising that the Local Court has issued an Apprehended Violence Order and has imposed a sentence.  This is a serious consideration but there is a court order that provided that the child was to live with the mother and spend time with the father.

15. What the father did was take the law into his own hands.  He took it upon himself to remove the child from preschool without the knowledge or consent of the mother and took it upon himself to take the child into his care, contrary to the court order.  The mother found out about it because the preschool rang her.  She went down there, which is why there was an altercation leading to her being charged with a breach of the Apprehended Violence Order. 

16. The father’s reasons for taking the child into his care, in this unilateral way, were based on his concerns about the mother’s violence and alleged drug abuse.

17. He deposes in his affidavit that he obtained advice from a person who works for the Department of Family and Community Services and also from a police officer.

18. Unfortunately, the one person he should have asked about his plan was his solicitor but he did not do that.  He did not seek legal advice.  Indeed, Mr Quirk would have had no opportunity to give the father any advice about that plan because he was not instructed to act for him.

19. What the father should have done was consult his solicitor, explain his concerns, provide him with copies of the appropriate orders and instruct him to bring an application to vary or discharge the orders made by this court.  No doubt he would have received proper and appropriate advice.  Regrettably he did not do so.

20. There are a number of seriously concerning factors in this case.  Allegations of past and present drug abuse, proven allegations of violence, impulsive behaviour, allegations, unproven, and of inappropriate behaviour.

21. These are all matters of concern and, indeed, that collection of matters would meet a number of the considerations set out in the well-known decision of Re K,[1] a 1994 decision of the Full Court of the Family Court of Australia where the Court set out a number of guidelines for the appointment of what was then called a separate representative of the child.

    [1] (1994) 17 Fam LR 537; FLC 92-461

22. Section 68L of the Family Law Act provides for a child’s interests to be independently represented.  It seems to me that this is clearly a case where it would be in this child’s best interest for an Independent Children's Lawyer to be appointed.

23. The parties have not yet had the opportunity to attend a child dispute conference with a Family Consultant of this Registry.  Their solicitors have agreed that this is an appropriate and necessary course.  I propose to make such an order but to get back to the situation that should have applied, the Court cannot overlook the father’s impulsive, unilateral actions in removing the child from the care of the mother contrary to a court order.  That cannot be allowed to continue and the child must be returned to the care of the mother by tomorrow evening.

24. I am conscious of the fact that this little girl is four years old, and only four years and two months in fact.  It is a matter of concern that she has not spent any time with her mother who was her primary care giver for approximately five weeks.  This is not in the child’s best interests and certainly, when the Court considers the benefit to the child of a meaningful relationship with the mother, such an action by the father is totally contrary to that consideration.

25. It does not mean, however, that the father should not spend time with X.  Certainly he should, after all she has been living in his full-time care, due to his unilateral action, for the past five weeks.  It would be disruptive and confusing to this little girl if all of a sudden she did not see her father again until these matters were resolved.  There must be a regular program where this child spends time with her father. 

26. In the light of the allegations to which I have referred, which do cause me some concern, I am not persuaded that, at this stage, there should be overnight contact but I am of the view that this child should be  sending one day, each week, in the care of her father and also on occasions such as Father’s Day.

27. I will be making orders, as I said, for the appointment of an Independent Children's Lawyer and for the parties to attend child dispute conference.  I will be bringing the matter back before the Court for mention once those things are done and once those things have taken place, the parties, with the assistance of their lawyers and with the assistance of the Independent Children's Lawyer, will then be able to work out the best way of bringing this matter to a conclusion that is in this little girl’s best interests because, as I began, I finish by saying the best interests of the child are the paramount consideration.

28. I will adjourn this matter for mention to a date after the child dispute conference on 14 May 2014. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  24 April 2014