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CHILD OF A DRUG ADDICT, ENTITLED TO BE REPRESENTED BY AN INDEPENDENT CHILDREN’S LAWYER

Adema & Hambleton (No.2) [2020] FCCA 2279 (23 June 2020) 

This case is about the arrangement of a 3 year old child where the mother is a drug addict  

Facts: The proceedings relate to parenting arrangement of X, a three year old child. It was the father's position that Ms Hambleton was in the grip of a serious addiction to methamphetamines, which had led to episodes of psychosis and hospitalisation on her part. The court ordered that X live with his dad and spend time with his mother regularly, with the time to take place at the home of the maternal grandmother and subject to her supervision. Mother asserts that the father had acted unilaterally and had deprived X of the comfort of the care of his primary carer by not allowing the child to interact appropriately with her. She also contended that the child is at risk of being sexually abused by his father. 

Issue: Whether or not the three year old child should be represented by an Independent Children’s Lawyer with respect to its parenting arrangements 

Law

  • Pursuant to Section 68L  of the  Family Law Act 1975 , an Independent Children’s Lawyer be appointed to represent the best interests of the child. 
  • According to 60CC, the primary considerations in determining the child’s best interest are: 
    • 1. the benefit  to  the  child of  having  a  meaningful  relationship with both of  the child’s  parents;  and 
    • 2. the need  to protect  the  child  from  physical  or  psychological harm  from  being  subjected  to, or  exposed  to, abuse,  neglect or  family  violence. 

In applying  the considerations set  out  in  subsection  (2), the court  is to give greater  weight  to  the consideration set  out  in paragraph  (2)(b). 

Analysis: Clearly he must know his mother very well.  However, The court need to protect him from the physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and I have to give greater weight, pursuant to  section 60CC(2A)  to protective concerns. 

Conclusion: Given the issues of child protection raised in the case and the significant levels of mistrust between the parties, it is appropriate that X be independently represented in the proceedings. 

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