Yeomann and Cole

[2014] FCCA 3027

FEDERAL CIRCUIT COURT OF AUSTRALIA

YEOMANN & COLE [2014] FCCA 3027

Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders – best interests of the children – whether mother’s time with the children should be supervised – drug issues – urinalysis – Australian New Zealand Standard 4308:2008 procedure to be followed – where previous applications for recovery order made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61C, 61DA, 65DAA, 67Q

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant: MS YEOMANN

Respondent: MR COLE

File Number: SYC 1885 of 2014

Judgment of: Judge Scarlett

Hearing date: 17 December 2014

Date of Last Submission: 17 December 2014

Delivered at: Sydney

Delivered on: 19 December 2014

REPRESENTATION

Solicitor for the Applicant: Mr Choy

Solicitors for the Applicant: Jeffrey Choy Legal

Solicitor for the Respondents: Ms Ho

Solicitors for the Respondents: Fox & Staniland

Independent Children's Lawyer: Mr Samuel

Solicitors for the Independent Children's Lawyer: Brian Samuel & Associates

ORDERS

UNTIL FURTHER ORDER

1. All previous parenting Orders are discharged.

2. In accordance with section 61C of the Family Law Act 1975 the Applicant Mother and the Respondent Father are to have parental responsibility for the children X and Y both born (omitted) 2012 at all times that the children are in their respective care as provided by these Orders.

3. The children X and Y are to live with the Father.

4. The children X and Y are to spend time with the Mother as follows:

   (a)Each Wednesday and Saturday from 9:00am to 11:00am commencing on Saturday 20 December 2014 such time to be supervised by Connecting Families or such other supervisor as agreed by the parties in writing with the Father to pay all reasonable costs of the supervision;

   (b)The parties must forthwith do all things necessary and sign all documents as may be required to complete all intake procedures required by connection Families or such other supervisor or agency as agreed by the parties in writing in order to enable the Mother’s supervised time with the children to commence immediately; and

   (c)The Mother’s time with the children is to be reviewed by the Court after the release of the Court Expert Report ordered under Part 15 of the Rules on 17 December 2014.

5. Each party must keep the other party informed of their residential address and telephone contact numbers.

6. Each party must notify the other of any significant illness or medical condition suffered by either or both of the children within 24 hours or as soon as practicable in the case of an emergency.

7. Each party must authorise any medical practitioner treating either or both of the children to allow the other party direct access to the children’s health and medical records.

8. Neither party is to criticise, denigrate or use abusive language to the other party or members of the other party’s family in the presence or hearing of either or both of the children or permit any third person to do so.

9. WITHOUT ADMISSION the parties are each restrained from:

   (a)Being under the influence of alcohol in excess in the presence of either or both of the children or whilst the children are in his or her care;

   (b)Using, ingesting or administering to himself or herself any illicit or non-prescribed drugs other than over the counter medication;

   (c)Bringing the children into contact with any person who is under the influence of illicit drugs or alcohol in excess;

   (d)Exposing the children to violence including any physical or verbal threats or intimidation whether such threats or intimidation or violence are directed at the children, the mother, the father or any member of either party’s household;

   (e)Discussing these proceedings or any issues arising out of these proceedings with the children or permitting any third person to do so; or

   (f)Making critical or derogatory remarks about or in relation to the other party on social media such as Facebook or Twitter.

10. Each party must submit to urinalysis under supervision and chain of custody upon written request by the Independent Children’s Lawyer on no more than one occasion per month with such testing to take place within forty-eight (48) hours of such request being made and to be conducted in accordance in accordance with Australian New Zealand Standard 4308:2008: Procedures for specimen collection and the detection and quantitation of drugs of abuse in urine.

11. Each party must forward a copy of the urinalysis test results to the Independent Children’s Lawyer and the other party’s solicitor within forty-eight (48) hours of receipt of the results.

12. In the event that any of the above urinalysis tests returns a positive reading then the Independent Children’s Lawyer and the parties are to have liberty to apply to re-list the Application on seven (7) days’ notice.

13. Each party must pay his or her own costs associated with the urinalysis tests.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1885 of 2014

MS YEOMANN

Applicant

And

MR COLE

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for interim parenting orders by the Mother of twin boys who have just turned two. The boys are currently residing with their father. The Mother now seeks orders until further order that:

   a)The boys remain living with their father; and

   b)She should spend time with them each week:

   i)From 9:00am on Wednesday to 9:00am on Thursday; and

   ii)From 9:00am to 5:00pm each Saturday.

2. The Father does not consent to those proposed orders and they are not supported by the Independent Children’s Lawyer.

3. The Independent Children’s Lawyer has prepared a Minute of Proposed Orders for the assistance of the Court. The Father’s solicitor, Ms Ho, told the Court that the Father consents to the proposed orders.

4. The Mother’s solicitor, Mr Choy, informed the Court that his client does not consent to the orders at paragraph 3 of the Minute, which sets out proposed times for the children to spend time with their mother. Otherwise, she consents to the proposed orders.

5. The Orders proposed by the Independent Children’s Lawyer for the children to spend time with the mother are as follows:

   3.1Each Wednesday and Saturday from 9am to 11am such time to be supervised by Connecting Families (or such other supervisor that the parties may agree to in writing) with the father to pay all reasonable costs of such supervision.

   3.2That the forthwith do all things necessary and sign all documents as required to complete any and all intake procedures of Connecting Families (or such other supervisor or agency as agreed to by the parties in writing) in order to enable the mother’s supervised time with the children to commence immediately.

   3.3The mother’s time with the children to be reviewed by the court on completion of the Part 15 expert report.

6. The parties consented to orders appointing Dr J, a Consultant Forensic Psychiatrist, as Court Expert under Part 15 of the Rules to prepare a report to assist the Court in relation to these proceedings. The Independent Children’s Lawyer, Mr Samuel, told the Court that Dr J would be in a position to interview the parties and prepare a report early in the New Year.  

Background

1. The Independent Children’s Lawyer has very helpfully prepared a detailed chronology for the purpose of the interim hearing, and it has been relied on for the purpose of these reasons for decision.

2. The Father was born on (omitted) 1982. He is 32 years old.

3. The Mother was born on (omitted) 1983. She is now 31 years of age.

4. The parties first met in 2008.

5. In 2009 the Father was convicted and imprisoned for offences involving violence and sentenced to a period of imprisonment of two years and nine months. He was released in December 2011.

6. The parties commenced a relationship in 2011 and commenced to live together January 2012. They were married on (omitted) 2012.

7. The parties’ two children, twin sons named X and Y, were born on (omitted) 2012.

8. The parties separated in 2013.

9. In July 2013 the Father was shot several times by an unknown assailant. He spent approximately a month in hospital. On his discharge he moved back into his parents’ home.

10. The Mother obtained a provisional Apprehended Violence Order against the father on 5^th December 2013. The application was withdrawn and dismissed on 4^th March 2014.

11. On 31^st March 2014 the parties applied to the Family Court at Parramatta for parenting orders to be made by consent. Those orders were made on 1^st April 2014.

12. The Consent Orders provided, amongst other things, that:

    a)The parties were to have equal shared parental responsibility for the two children;

    b)The children were to live with the Mother;

    c)The children were to spend time with the Father from 4:00pm on Friday until 4:00pm the following Friday, essentially a week-about arrangement.

13. The Mother obtained an Interim Apprehended Violence Order against the Father on 17^th July 2014. A final order was made on 26^th September 2014 for a period of 12 months. The Mother did not attend court on that day as she had been admitted to (omitted) Hospital with an anxiety attack.

14. The children remained in the care of the Father.

15. On 3^rd October 2014 the Mother filed an Application for Parenting Orders, supported by an affidavit. In her application, the Mother sought final orders setting aside Order 3 of the Consent Orders of 1^st April 2014, the order that provided for the Father to have the children in alternate weeks, and a fresh order that the Father spend time with the children each alternate weekend from 5:00pm on Friday until 9:00am the following Monday.

16. The Mother sought interim orders providing that a Recovery Order should issue under s.67Q of the Family Law Act 1975 (Cth) for the return of the children to her. She also sought an order restraining the parties from removing the children from Australia and placing the children’s names on the Airport Watch List (more correctly called the Family Law Watch List) maintained by the Australian Federal Police.

17. The Application was returnable on 31^st October 2014. On that day, the parties were directed to attend a Child Dispute Conference with a Family Consultant on 20^th November.

18. On 31^st October, the Court made Interim Orders providing that the children would spend from 9:00am to 5:00pm each Saturday and Wednesday with their mother at her home, restraining the parties from administering to themselves any illicit drug and appointing an Independent Children’s Lawyer.

19. The Application was adjourned to 28^th November 2014 for an interim hearing.

20. On 11^th November 2014, the Father filed an Application in a Case, seeking a Recovery Order, supported by an affidavit of the Father affirmed that same date, deposing that the Mother had refused to return the children to him on 8^th November 2014.

21. The Mother’s solicitor filed a Notice of Intention to withdraw as Lawyer on 12^th November.

22. The Application for a Recovery Order was listed as an urgent matter on 13^th November 2014. The Mother appeared unrepresented and advised the Court that she had obtained other legal representation. Orders were made by consent that the Mother would return the children to the care of the Father at 5:00pm that day. The Court noted that the Orders of 31^st October would otherwise continue until further order. The matter was otherwise put over to 28^th November, the date of the interim hearing, and the parties were granted liberty to restore the matter to the list on 24 hours’ notice.  

23. On that same day, the Mother’s new solicitors, Farah Lawyers, filed a Notice of Address for Service.

24. On 24^th November 2014 the Father applied to re-list the Application, claiming that the Mother had failed to return the children to him in accordance with the Orders on 22^nd November.

25. The Application was re-listed on 26^th November.

26. The Mother returned the children to the Father on 25^th November and the Application was removed from the list on 26^th November.

27. The Application came back to Court on 28^th November. The Applicant’s new solicitor appeared and sought an adjournment of the interim hearing. That application was granted and the interim hearing was listed for 2:15pm on 17^th December 2014.

28. On 3^rd December 2014 the Mother failed to return the children to the Father in accordance with the Orders.

29. On 10^th December 2014 the Father filed an Application in a Case seeking a Recovery Order, supported by an affidavit of the Father dated 4^th December 2014 in which he deposed that the Mother had refused to return the children to him on the afternoon of the previous day.

30. On 10^th December 2014 the Court issued a Recovery Order for the return of the children to the Father. The Recovery Order was executed that same day.

31. The Mother’s second solicitor ceased to act for her shortly after that date, but no Notice of Withdrawal appears on the Court file.

32. The Mother instructed her present solicitor, Mr Jeffrey Choy, to act for her. Mr Choy filed a Notice of Address for Service and an affidavit by his client on 17^th December, the day of the interim hearing.

Evidence and Submissions

1. The Mother relied on the following:

   a)Her affidavit of 17^th December 2014; and

   b)A Minute of proposed orders prepared by her solicitor.

2. The Father relied on his affidavit of 11^th December 2014, which his solicitor had managed to keep down to the required ten pages of text. The Father was content to rely on the Orders proposed by the Independent Children’s Lawyer in the Minute of proposed orders handed up in Court that day.

3. The Independent Children’s Lawyer conceded that the children were currently in a stable environment with the Father.

4. Mr Choy, who appeared for the Mother, submitted that the children had in the past spent a considerable amount of time with the Mother. She had not been violent towards them. He submitted that there should not be a concern for the safety of the children in the hands of either parent.

5. When asked about the Mother’s failure to return the children to the Father on time, as specified in the interim orders, Mr Choy submitted that the Mother had “overly” wanted to see the children, which is why she overstayed the Orders.

6. Ms Ho, who appeared for the Father, submitted that the Mother’s affidavit, filed and served on the day of the hearing, did not adequately explain why she withheld the children on three occasions. She submitted that the Mother had sought money from the father on various occasions as a condition of his seeing the children.

7. Mr Samuel, the Independent Children’s Lawyer, told the Court that the children were in good health and had a good relationship with each parent.

The relevant law in regard to parenting applications

1. When the Court is considering making parenting orders, whether final orders or orders until further order (in other words, interim orders), it must have regard to various sections of the Family Law Act 1975 that are to be found in Part VII of the Act. In particular, it should have regard to the provisions of:

   a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;

   b)Section 60CA, which requires the Court to regard the best interests of the child as the paramount consideration;

   c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;

   d)Section 61DA, which deals with the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child;

   e)Section 65DAA, which requires the Court to consider equal time or substantial and significant time with each parent where an order has been made that the parents should have equal shared parental responsibility for the child.

2. All of those matters have been considered, where relevant. The matters in sections 60CC, 61DA and 65DAA will be discussed further in these Reasons.

Relevant matters in section 60CC of the Family Law Act

1. The Full Court of the Family Court held in Goode & Goode[1] that a court at first instance should consider the matters in s.60CC that are relevant and, if possible, make findings about them, noting that:

   ... in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.[2]

   [1] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

   [2] [2006] FamCA 1346 at [82]; (2006) 36 Fam LR 422 at 445 [82]; FLC 93-286 at 80,903 [82]

2. The two primary considerations are found in subsection 60CC(2). First, the Court must consider the benefit to the child, or children, in this case, of having a meaningful relationship with both parents. It is the position of the Independent Children’s Lawyer that there is such a benefit to the children.

3. The other primary consideration is found in s.60CC(2)(b), and it is the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Subsection 60CC(2A) requires the Court to give greater weight to the latter consideration.

4. The issue of family violence, and whether or not there are family violence orders in force, are both considered in s.60CC(3), as well. There is an Apprehended Domestic Violence Order in force against the father, which was issued out of the Local Court of New South Wales at Bankstown on 26 September 2014. It is in force for a period of 12 months.

5. The protected person is the mother and the order has been extended to cover the children and the maternal grandmother.

6. The Mother has also given evidence in her affidavit of 17^th December 2014 of having been assaulted by the Father.[3]

   [3] Affidavit of Ms Yeomann 17.12.2014 at paragraphs [6]-[7], [19]

7. There does not seem to be any evidence that either parent is likely to harm the children, although the mother deposes that the Father assaulted her in July 2014 and forcibly took the child X from her, thereby separating the two children. It is a matter of concern that the children could be exposed to violence.

8. There are also mutual allegations of prohibited drug use, which the Mother denies[4]. She annexes to her affidavit[5] a copy of drug test report dated 4^th November 2014, showing negative results for the following drugs:

   a)Opiates;

   b)Amphetamine Type Substances;

   c)Cannabinoids;

   d)Cocaine Metabolites; and

   e)Benzodiazepines.

   [4] Ibid at [20]

   [5] Ibid Annexure “B”

9. The children are only just two years of age. They are far too young for their views to be sought. There is nothing to suggest that the children have other than a good relationship with each of their parents, although they are not seeing as much of their mother as would appear to be desirable.

10. The difficulty appears to be that the Mother has recently displayed an inability to comply with Court orders. Since the Court made interim parenting orders on 31^st October 2014, there have been three separate instances where the Mother has retained the children contrary to the orders, resulting in the matter having come back to Court for a Recovery Order to be sought. As it turned out, on the first occasion the mother attended Court and consented to an order returning the children that afternoon. On the second occasion the Mother returned the children before the matter was mentioned in Court. On the third occasion a Recovery Order was issued.

11. It is the Mother’s failure to comply with Court Orders that has stood in the way of her obtaining the Orders that she seeks, because the Father obviously cannot trust her to comply with Court Orders, nor can anyone else, it would seem.

Equal shared parental responsibility and section 61DA of the Act

1. The parties had Consent Orders made on 1^st April this year providing that they should have equal shared parental responsibility for the children. That arrangement did not last very long, and by the beginning of October the Mother had applied to the Court to vary those Orders, complaining that the Father had not complied with them.

2. The Independent Children’s Lawyer has proposed interim orders under s.61C of the Family Law Act 1975 whereby each parent should have parental responsibility for the children at such times that the children are in their respective care. Each party has consented to that order being made.

3. Section 61C provides:

   61C(1)Each of the parents of a child who is not 18 has parental responsibility for the child.

   61C(2)Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.

   61C(3)Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).

Section 65DAA of the Family Law Act

1. This is not a case where the Court would be satisfied that, at present, an equal time arrangement would either be in the children’s best interests or reasonably practicable.

2. The Mother is not seeking an order at this stage that she should have substantial and significant time with the children. I am not satisfied that such an arrangement at present would be reasonably practicable, noting the matters set out in paragraphs (b) and (c) of s.65DAA(5):

   (b)the parents’ current and future capacity to implement an arrangement for the child spending time, or substantial and significant time, with each of the parents; and

   (c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind;

3. I am not of the view that the parents currently have the capacity to implement any such arrangements for the children or to communicate with each other and resolve difficulties. The parents are in a state of high conflict with each other.

Orders that are in the children’s best interests

1. The best interests of the children are the paramount consideration. It is concerning that the present arrangements do not see the children spending as much time with the Mother as would appear to be in their best interests, but the Mother’s own actions over the past two months have not assisted her case at all. Valuable court time has been wasted by a multiplicity of proceedings occasioned by the Mother’s failure to follow court orders, and the situation has not been helped by the fact that she has now had three different solicitors acting for her over this time.

2. The Mother is fortunate that her present solicitor, Mr Choy, has been so assiduous in familiarising himself with her case and preparing documents at very short notice. The Mother would be well advised to follow her solicitor’s advice about complying with court orders so that court time can be used for a thorough analysis of the children’s needs rather than dealing with yet another application for a Recovery Order.

3. In the meantime, the children appear to be in stable environment with the Father at his parents’ home. Until the Court Expert report is available, when the Court can review the parenting arrangements, it appears that the orders proposed by the Independent Children’s Lawyer will need to be made.

4. These orders will involve the Mother spending significantly less time with the children than she seeks, and even significantly less time than was provided by the interim orders of 31^st October last. The Mother’s time with the children will need to be supervised, as the Independent Children’s Lawyer and the Father both seek.

5. This is obviously unsatisfactory for the Mother and less than ideal for the children, but the Mother’s failure to comply with Court orders has brought this situation about. She will need to demonstrate an ability to adopt a stable lifestyle and comply with parenting orders if she wishes to have more substantial parenting orders made in her favour.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  19 December 2014