Wilkinson and Hedley

[2014] FCCA 1235

FEDERAL CIRCUIT COURT OF AUSTRALIA

WILKINSON & HEDLEY [2014] FCCA 1235

Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders – best interests of the children – parental responsibility – equal shared parental responsibility – allegations of drug misuse – allegations of family violence – appointment of Independent Children’s Lawyer.

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

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

Applicant: MR WILKINSON

Respondent: MS HEDLEY

File Number: WOC 262 of 2014

Judgment of: Judge Scarlett

Hearing date: 22 April 2014

Date of Last Submission: 22 April 2014

Delivered at: Wollongong

Delivered on: 23 April 2014

REPRESENTATION

Solicitor for the Applicant: Ms Cooke-Dolan

Solicitors for the Applicant: Heard McEwan Legal

Solicitor for the Respondent: Ms Daly, Mr Noeng

Solicitors for the Respondent: Aboriginal Legal Service

ORDERS

UNTIL FURTHER ORDER

1. All earlier parenting Orders are suspended.

2. The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the children, W born (omitted) 2000, X born (omitted) 2001, Y born (omitted) 2005 and Z also born (omitted) 2005.

3. The children, W, Y and Z are to live with the Mother.

4. The child, X, is to live with the Father.

5. The children W, Y and Z are to spend time with the Father for the first half of the mid-year Queensland school holiday periods:

   (a)commencing on 28 June and concluding on 5 July 2014; and

   (b)commencing on 20 September and concluding on 28 September 2014.

6. The child X is to spend time with the Mother for the second half of the New South Wales school holiday periods:

   (a)commencing on 6 July and concluding on 13 July 201;

   (b)commencing on 29 September and concluding on 6 October 2014.

7. The children, W, Y and Z are to communicate with the Father by telephone for a period of up to 20 minutes between the hours of 6:30pm and 7:00pm Australian Eastern Standard Time each Monday, Wednesday, Thursday and Sunday during the school term, and for this purpose the Mother must do all things necessary to facilitate the telephone calls between the children and the Father.

8. The child X is to communicate with the Mother by telephone for a period of up to 20 minutes between the hours of 7:00pm and 7:30pm Australian Eastern Standard Time each Monday, Wednesday, Thursday and Sunday during the school term, and for this purpose the Father must do all things necessary to facilitate the telephone calls between the child and the Mother.

9. The Mother must do all things necessary to ensure each of the children W, Y and Z communicates with the Father by telephone for a period of up to 20 minutes between the hours of 6:30pm and 7:00pm Australian Eastern Standard Time on the following days of special significance:

   (a)each of the children’s birthdays;

   (b)the Father’s birthday; and

   (c)Father’s Day.

10. The Father must do all things necessary to ensure the child X communicates with the Mother by telephone for a period of up to 20 minutes between the hours of 6:30pm and 7:00pm Australian Eastern Standard Time on the following days of special significance:

    (a)the child’s birthday;

    (b)the Mother’s birthday; and

    (c)Mother’s Day.

11. Both parents are restrained by injunction from consuming or otherwise administering to themselves any illicit drug at any time that all or any of the children are in their care under these orders or for 12 hours beforehand.

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

13. Both parents are restrained by injunction from using any physical discipline or punishment on all or any of the children or permitting any other person to do so.

14. Both parents must ensure that all of the children attend school regularly.

15. Both parents must authorise the principal of the schools attended by the children or any of them to provide to the other parent copies of all school reports, newsletters, bulletins, information about school photographs and other documents usually provided to parents of children attending those schools.

16. In accordance with the provisions of section 68L of the Family Law Act, the interests of the children, W born (omitted) 2000, X born (omitted) 2001, Y born (omitted) 2005 and Z also born (omitted) 2005 are to be independently represented by a lawyer and for this purpose Legal Aid New South Wales is requested to arrange such representation.

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

18. The Independent Children’s Lawyer is granted leave to issue up to 10 subpoenas without charge or further leave of the Court.

19. Both parents must each undertake by provision of urine screen in accordance with Australian and New Zealand standard 4308 2008 or any subsequent approved standard urinalysis 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.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT WOLLONGONG

WOC 262 of 2014

MR WILKINSON

Applicant

And

MS HEDLEY

Respondent

REASONS FOR JUDGMENT

Application

1. The application before the Court is an application for interim parenting orders brought by the Father in respect of the parties’ four children. 

2. Their daughter, W, was born on (omitted) 2000.  Their son, X, was born on (omitted) 2001.  There are twins – a girl and a boy – Y and Z, who were born on (omitted) 2005.

3. The application by the Father is for the children to live with him and spend time with the Mother. 

4. The precise nature of the orders is predicated upon whether the Mother chooses to return to live in the (omitted) area or no.  And it was that action by the Mother in relocating with the children away from the (omitted) area to Queensland in August 2013 that led to the Father’s application being made. 

5. The facts certainly are that there was a unilateral relocation by the Mother with the children in August 2013.  It was not, however, a clean break in that there were movements back and forth and negotiations between the parties.  The parties had separated earlier that year.

6. The children, in effect, returned for the long school holidays and spent a significant amount of time with the father. However, the Mother had taken steps to enrol the children in school in Queensland at (omitted), although, over the January school holidays the child X indicated quite strongly that he did not wish to return to live on the Queensland with his mother and he wished to remain in this area living with his father.  And, in effect, he has been living here since then.  So the matter has come before the Court with three children with the Mother and one child with the Father.

7. Each parent seeks an order, not surprisingly, that all four children should be together, but that all four children should live on an interim basis with that particular parent. The Father’s application was commenced on 21^st March this year.  It was returnable before the Court on 1^st April. 

8. His Honour Judge Altobelli ordered the parties to attend a child dispute conference with a family consultant and they were able to do that at 2:00pm that very day. 

9. The parties also entered into interim consent orders setting out in some detail arrangements for the children to spend time over the holidays with each parent, with changeovers being specified at Hungry Jacks in (omitted).

10. His Honour also ordered, noting the allegations of drug use or misuse by the parties, that the Father and the Mother were each to undertake by provision of urine screen in accordance with the Australian New Zealand standard, urinalysis for drugs screening within the next 24 hours, and provide copies of the results of the rests to the other party within 48 hours of their receipt.  That order by his Honour, being very much a standard form order, seems to me to have been readily understandable and indeed the parties complied with that order by undertaking the required urinalysis.

11. The Father’s drug test result, which was admitted into evidence as exhibit 1, reported negative for opiates, amphetamine-type substances, cannabinoids, cocaine and benzodiazepines.  So too did that of the Mother, which was admitted into evidence marked as exhibit 2.  Nevertheless, drug use or abuse, either currently or in the past, has been very much an issue in this case, and it was a matter that was referred to in the rather detailed child dispute conference memorandum to Court prepared by the family consultant. 

12. The other issues that immediately sprang to mind, apart from polysubstance abuse issues, were allegations of excessive drinking by the Father, allegations of violence, family violence, by each party against the other, allegations of physical and emotionally abusive behaviour by each party against the other, and allegations by the Mother that the Father’s current partner has been abusive to the children.

13. The family consultant recommended the appointment of an Independent Children’s Lawyer and erroneously noted that one had already been appointed.

14. I had the opportunity to hear submissions from Ms Cooke-Dolan for the Father and from Ms Daly for the Mother. 

15. I am of course required to consider a number of matters under the Family Law Act 1975 (Cth). In parenting proceedings, the Court must take heed of the requirement of section 60CA of the Family Law Act that the best interests of the children are the paramount consideration.

16. Section 60CC sets out how the Court determines what are in children’s best interests. The primary considerations are set out in subsection (2) and there are additional considerations in subsection (3).

17. The primary considerations in subsection (2) are of considerable significance in this case, namely, the benefit to the children of having a meaningful relationship with each of their parents and the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  Those are certainly issues in this case. 

18. There are other matters of course relating to the wishes of the children where appropriate and the weight that should be given to them. Family violence again appears in subsection (3) of section 60CC, including whether or not there are family violence orders in force. One issue that has been raised in this matter is the mother’s Aboriginality and the wish that she has and that she has for the children to enjoy their Aboriginal culture.

19. There is not, on my understanding, a family violence order in force.  There was an application for an order made in a Magistrates Court in Queensland but I am told that it was dismissed. 

20. The Court must consider the presumption under section 61DA of the Family Law Act that it is in children’s best interests for their parents to have equal shared parental responsibility for the children; however, that presumption does not apply in cases of abuse or family violence and it may be rebutted by evidence that satisfies the Court that it would not be in the children’s best interests for the parents to have equal shared parental responsibility. 

21. In interim proceedings, subsection (3) provides that the Court would order equal shared parental responsibility unless the Court considered that it was inappropriate to do so. If the Court does make an order for equal shared parental responsibility, the Court must consider the matters under section 65DAA of the Act as to whether it is both in the children’s best interest and reasonably practicable for the children to spend equal time with each parent and, if not, whether it is in their best interest and reasonably practicable for the children to spend substantial and significant time with each parent. I have considered all of these matters.

22. As I indicated to the parties’ solicitors yesterday, there were a number of disturbing features: the allegations of family violence, the allegations of past and ongoing drug use, and the allegations of controlling behaviour. I am of the view that it would be appropriate for the children’s best interests to be independently represented under the provisions of section 68L of the Family Law Act, and I am mindful of the decision of the Full Court of the Family Court in the leading case of Re K.[1] 

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

23. That decision was handed down in 1994, and whilst some of the terminology has been replaced by amendments to the Act, the principals, in my respectful opinion, are as valid now as they were when the decision was handed down 20 years ago.

24. I get back to the fact that there was a unilateral relocation.  If this matter had come before the Court shortly after the Mother had chosen to relocate the children’s residence to Queensland, it is quite likely that this Court would have ordered that the mother relocate the children’s residence back to the (omitted) area.  However, that time has passed.  These proceedings were not commenced until March 2014 and were returnable before the Court for the first time on the 1st of April.  The children had in a somewhat complicated way moved with the Mother the previous year in August and the fact is that the children had been enrolled in school there and to some extent have been settled.  It would be disruptive to make an order requiring the children’s residence to be moved back to the (omitted) area.

25. However, I am also mindful of the fact that the child, X, has expressed his own view about the arrangement and has chosen to return to live with the father and does so to this day.  He is back living with the Father and is attending school here.  It would be equally disruptive to X to order that he again relocate to the Queensland.  The orders that are being sought are interim orders and, in my view, the best interests of the children require that there should be some stability until appropriate and thorough evidence can be obtained as to what is in their best interests. 

26. I am concerned about the fact that the children are separated, three with the mother, one with the father, and that is not a situation that a Court would be happy to see continue as final orders.  But I am not prepared at this stage to order X to go back to Queensland.  He has been up to Queensland and come back.  I do not wish to see him go again between now and the final hearing, but I am equally persuaded that I should not at this stage order that the mother relocate the other children back. 

27. It is important, however, that the children spend time with each parent and with each other, certainly over the school holidays.  There were proposals made for the children in Queensland to come back in the first weekend of each month.  I do not see, with respect, that it is a realistic prospect.  It would be expensive and it would involve a considerable amount of time.  I have, however, taken notice of the fact and the Court is entitled under the Evidence Act 1995 (Cth) to take notice of matters of general knowledge or that are generally available in the area.

28. I have had the opportunity of consulting the New South Wales and Queensland school holiday calendars.  Whilst the Queensland holidays and the New South Wales holidays have been staggered over this holiday period, that is not the case with the two sets of mid-year school holidays yet to come.  They, in fact, more or less coincide.  In my view, those holidays are an opportunity for the children to be together and to spend time with the various parents.

29. I am concerned that there is a need to maintain telephone communication.  I am concerned about illicit drug use and allegations of family violence.  I am not of the view that any of the children should be subject to physical discipline by either parent or anyone else. 

30. In my view, the Court will have a much better picture of what is to happen once the children’s interests are independently represented by a lawyer. I am certainly of the view that older children, at least, W and X, are of an age where their wishes would be given a degree of weight.  There is certainly evidence that X has made his wishes very clear so far in his view that he wished to return from Queensland and remain living with his father. 

31. One of the methods that the Court has for obtaining the views of children is for their interests to be independently represented by a lawyer.  Another one, of course, is through the ordering of a family report.  It has been suggested that an expert’s report should be obtained.  In my view, a decision on that should wait until an Independent Children’s Lawyer is available. 

32. That means that I will be making orders today and I will be bringing the matter back to Court in about a month or so’s time so that the future progress can be charted with some care.  But in the meantime, there must be arrangements for the children to spend time with each other and to spend time with their respective parents.

33. I will adjourn the application to a date in late May.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  12 June 2014