Winter and Anor and Secombe and Anor
[2009] FMCAfam 585
•27 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WINTER & ANOR & SECOMBE & ANOR | [2009] FMCAfam 585 |
| FAMILY LAW ─ Parenting orders ─ case turns on its own facts. |
| Family Law Act 1975 (Cth) |
| Applicants: | MS WINTER & MR WINTER |
| First Respondent: | MS SECOMBE |
| Second Respondent: | MR WEST |
| File Number: | MLC 4027 of 2007 |
| Judgment of: | Walters FM |
| Hearing date: | 27 May 2009 |
| Date of Last Submission: | 27 May 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 27 May 2009 |
REPRESENTATION
| Counsel for the Applicants: | Mr Ramsey |
| Solicitors for the Applicant: | Cathleen Corridon Solicitors |
| Counsel for the First Respondent: | Ms Walters |
| Solicitors for the First Respondent: | Lampe Family Lawyers |
| Counsel for the Second Respondent: | Unrepresented |
| Counsel for the Independent Children’s Lawyer: | Mr Eidelson |
| Solicitors for the Independent Children’s Lawyer: | Westminster Lawyers Pty Ltd |
ORDERS
IT IS ORDERED THAT:
The matter be adjourned to:
(a)17 September 2009 at 10.00 a.m. for interim hearing (with an estimated hearing time of 2 hours); and
(b)a date to be fixed in 2010 at 10.00 a.m. for final hearing (with an estimated hearing time of 2-3 days).
In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations.
The maternal grandparents do file and serve all further affidavits and other material to be relied upon by not later than 28 days prior to the trial date.
The mother do file and serve all further affidavits and other material to be relied upon by not later than 14 days prior to the trial date.
The father do file and serve all further affidavits and other material to be relied upon by not later than 14 days prior to the trial date.
The independent children’s lawyer do file and serve all further affidavits and other material to be relied upon by not later than 7 days prior to the trial date.
All parties do file and serve an Outline of Case document in an appropriate form by not later than 72 hours prior to the trial date.
There otherwise be orders, by the Court and by consent, in terms of the Minute of Consent Orders signed by or on behalf of the parties and dated 27 May 2009 (“the Minute”).
IT IS DIRECTED THAT:
The Minute be placed upon the court file.
The solicitors for the independent children’s lawyer do engross the Minute and deliver a clean, duly certified copy of the same (“the Copy”) to the Registry of this court within 7 days.
Upon delivery of the Copy to the court, the within orders be extracted and the Copy be attached thereto.
AND THE COURT NOTES THAT:
In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
the filing of documents;
the payment of any applicable filing, setting down, mediation or enforcement fee or fees; and/or
any other procedural issues,
the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the final hearing date.
Pursuant to ss.65DA(2) & 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Winter & Anor & Secombe & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 4027 of 2007
| MS WINTER & MR WINTER |
Applicants
And
| MS SECOMBE |
First Respondent
And
| MR WEST |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
Before the court is the independent children's lawyer's application for orders (until further order) to the effect that the child, [X], live with the applicants and spend time and communicate with the father as agreed with the applicants and subject to their supervision, and failing agreement, the father spend time with [X] at a contact centre.
The orders proposed by the independent children's lawyer include a provision to the effect that the child's time with the father remain supervised until the father has provided at least two clear drug screens in relation to the presence of illicit or non-prescribed drugs.
These orders are sought in the context of an agreed adjournment of the trial to an interim hearing to take place on 17 September 2009. The trial itself is to be adjourned to a date in early 2010, on hopefully, to an earlier time.
It needs to be said at the outset that the father is a most unimpressive litigant. He arrived at court late today (with no adequate explanation) and he has not filed his documents in accordance with court directions. Furthermore, he has not complied with earlier orders of the court relating to the provision of drug screens to the independent children's lawyer. He is an argumentative man, not easily dissuaded from courses of action that, at the end of the day, are not in his best interests. But I am not here to punish the father, I am here to make orders that I consider are in [X]'s best interests.
The independent children's lawyer argues that because the father has failed to comply with the provision of drug screens, and because he has attended at court today with tests that reveal that he has been using cannabis frequently since the making of the orders, I should infer that [X] is at risk in his care – and that I should therefore make the orders that the independent children's lawyer proposes.
Mr West has referred the court to the actual terms of the injunction preventing him from using illicit drugs. That injunction is contained in paragraph 18 of the orders that were made on 2 June 2008. It reads:
The respondent father and mother are hereby restrained from consuming illicit or non-prescribed drugs 24 hours prior to or during any period of time the said child is in their care.
The father argues that although he has used cannabis, he has not used the drug at any time whilst [X] has been in his care.
Mr Eidelson for the independent children's lawyer argues that the court should infer that the father has in fact breached that provision.
During the course of submissions I asked Mr Eidelson, and Mr Ramsey for the applicants, whether there is any clear evidence that [X] has been placed at risk as a result of the father's drug use. There appears to be no such evidence ─ or at least no persuasive evidence that she is at risk in any way at the present time.
I am not confident that the father will comply with the orders that I have made, but he asks the court for one last opportunity to demonstrate that he is capable of complying with court orders. It needs to be said that if he is not capable of complying with court orders which require that he put himself out in order to achieve the objects reflected in the orders, then it opens the door to a submission that he is not properly capable of caring for his daughter ─ because the fact of the matter is that it is always necessary to put the welfare of a child before one's self. Unexpected events always arise. The court needs to have confidence in a proposed carer that he or she can adjust to circumstances as they arise. Sometimes children get sick or injure themselves, and parents need to be able to look after the child and adjust their routines to enable that to occur, and to put themselves out to ensure that a child receives medical attention and the like. Life rarely goes according to plan.
I will need to be persuaded (in due course) that the father has the capacity to place the best interests of his daughter above his own desires and convenience. It remains to be seen whether he will be able to demonstrate that that is the case.
Nevertheless, I commented during the course of submissions that the independent children's lawyer was aware for the best part of 12 months that the father had failed to comply with the requests for drug screens, and that it was not until now, the trial date, that the independent children's lawyer had sought an order for what is in effect a change of the living arrangements for [X], and a significant change at that. The same, of course, can be said for the applicants.
Mr Ramsey has drawn my attention to a passage from the affidavit of the applicants. It is very troubling that the events described in that passage may have occurred, but it would appear that the matters have been referred to the Department of Human Services and investigated. No notice of risk of abuse has been filed in this court and, at the end of the day, I can only determine the matter on the basis of the evidence before me. That involves taking into account the close relationship between [X] and her father and the past arrangements for her care which, although not perfect, appear to have worked satisfactorily until now. The whole purpose of the trial is to determine what should happen in the future, and whether changes to the current arrangements should be made.
I note from the documents filed on behalf of the applicants as late as 28 April (which documents were referred to by counsel in his opening remarks today) that the applicants do not propose that the father’s time with [X] should be supervised. Indeed, they argue that [X] should spend time with the father each alternate week from 4 pm Thursday until 4 pm Monday. It was not proposed that time be on a supervised basis, although clearly there was concern about the father's drug use.
Further, paragraph 13 of the orders sought by the applicants is to the effect that the father and the mother are only to be restrained from consuming illicit or non-prescribed drugs for 24 hours prior to and during any period of time that the child is in their care.
In all the circumstances, I am not persuaded that it is in [X]'s best interests ─ at this stage ─ to make the orders suggested by the independent children's lawyer.
I will say this, however: I will give the independent children's lawyer liberty to make an urgent application to me in the event of the father failing or refusing to undergo a drug screen. Similarly, the independent children’s lawyer can revert to me (by application) in the event of a drug screen being positive (in the sense reflected in the orders), at any time after six weeks from today. That should allow ample time for the cannabis that is in the father's system to remove itself.
If after six weeks the father tests positive for cannabinoids, then I give him fair warning that I am likely to make the orders sought by the independent children's lawyer ─ and possibly without further notice to him. Whether or not the father likes the orders is hardly to the point. They are orders of the court, and they must be complied with.
Similarly, the independent children's lawyer submits that the father must comply with previously made orders. There seems little point in remaking orders that the father well knows will continue to adhere. If the father does not comply with those orders, then, similarly, the independent children's lawyer ─ and, I will add, the applicants ─ will have leave to make an urgent application to the court. The matter will otherwise be dealt with on 17 September. I will have been apprised by then (at the latest) as to whether the father has complied with relevant orders.
I have indicated before that compliance with court orders is not optional. Unlike many things in society these days, it is compulsory. It is not a question of whether or not the father finds it convenient to comply, or whether or not he likes the orders; he is obliged to comply with them.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate: Suzette De La Motte
Date: 31 July 2009
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