· 2021-08-16T04:44:41+0000 · 874 posts

Mother Opposes Paternal Grandparents' Fresh Application for Interim Parenting Orders

Leonard & Gregory (No 2) [2021] FCCA 1712 (28 July 2021)

The paternal grandparents and the father of X seek a reduction of the mother's time with the children in consideration of the mother's previous charges. The mother opposes their application asserting that there are no changes of circumstances which warrant a fresh application for interim parenting orders. The Court made its orders based on the discussion of change of circumstance in the case of Rice & Asplund [1978] FamCA 84.

Facts:

On 13 March 2021, the mother was charged with driving whilst suspended and negligent driving. On 18 March 2021, the Court provided that X live with the paternal grandparents and that she spend time with the mother for 5 nights per fortnight, being Thursday – Tuesday each alternate week and from 3-6 pm Thursday in the alternate week. The Court in making such first interim hearing order considered the mother's capacity to act protectively towards X. The paternal grandparents, through a fresh application for interim parenting orders, sought that X spend supervised time with the mother on Saturday each week and during the school holidays, in the home of the maternal grandmother.

The paternal grandparents raise issues of risk to X arising out of the mother’s recent conduct. The mother did not disclose the charges when the Court was hearing the parties’ interim applications on 18 March 2021, nor does she explain the basis of her mistaken belief that she was given license to drive on the date she crashed the vehicle she was driving. On 20 April 2021, the mother was charged with bringing a prohibited drug into City E Correctional Centre for Mr D, the father of the mother’s other child, 5 month old J. On 7 June 2021, the mother entered a plea of guilty in respect of the charge of bringing in a prohibited drug into a place of detention and received a community corrections order for a period of 12 months.

The Independent Children’s Lawyer (“ICL”) and the mother asserts that there are no changed circumstances since 18 March 2021 to warrant the Court hearing a fresh application for interim parenting orders. However, the father supports the application of the paternal grandparents.

Issue:

Whether or not the Court should grant the paternal grandparents' application for interim parenting orders.

Applicable law:

Family Law Act 1975 (Cth), s 69ZL - provides that a court may give reasons in short form for a decision it makes in relation to an interim parenting order.

Rice & Asplund [1978] FamCA 84 - provides that a change of circumstances should occur to warrant the Court to hear a fresh application for interim parenting orders.

Goode v Goode [2006] FamCA 1346 - where the Court ruled that it should be guided by the principles in respect of interim hearing which includes that the legislative pathway must at all times be followed.

Keats & Keats [2016] FamCAFC 156 - where the Court held that in terms of a risk assessment, the Court is to determine that issue by weighing the probabilities of competing claims and the likely impact on the child in the event that a controversial assertion is acted upon or rejected.

King & Finneran [2001] FamCA 344 - provided that the purpose of the rule concerned with the best interests of the children is to protect the children from exposure and involvement in further unnecessary litigation.

Marsden & Winch [2009] FamCAFC 152 at [50] - provides the matters to which consideration should be given in order to determine the materiality of the asserted change in circumstances

Analysis:

The mother is the subject of two criminal convictions. Despite having the opportunity of putting on detailed evidence explaining her actions that led to her attempting to smuggle 170 Buprenorphine tabs into prison to Mr D, the mother has not done so. The mother’s recent criminal convictions (and her ongoing lack of full and frank disclosure) are a changed circumstance of sufficient magnitude to warrant the Court hearing and considering the paternal grandparents’ present application for interim orders.

The lack of disclosure by the mother of the charges which were pending against her as at the interim hearing on 18 March 2021, her actions on 17 April 2021 and subsequent conviction, her continued lack of proper, full and frank disclosure as to the relevant matters shows that the mother does not demonstrate real or meaningful insight into her actions and their likely impact on X.

Conclusion:

The Court concluded that the orders sought by the paternal grandparents are presently in X’s best interest to the extent that they seek to minimise X’s exposure to risks posed by the mother. The Court is not satisfied that the risks as identified are such that the mother’s time with X must be supervised. The Court discharged orders 9 and 10 dated 18 March 2021. Child X shall spend time with the mother from 10am until 5.00pm each Saturday, from 3pm on Christmas Eve until 3pm on Christmas Day 2021, and at all other times as agreed to between the paternal grandmother and the mother in writing.

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