Asbury and Asbury

[2007] FamCA 1325

FAMILY COURT OF AUSTRALIA

ASBURY & ASBURY [2007] FamCA 1325

FAMILY LAW – CHILDREN – Hearing de novo from a Local Magistrate – Orders about the time the children will spend with each parent pending a final determination of this matter

Family Law Act 1975 (Cth)

APPLICANT: Ms Asbury

RESPONDENT: Mr Asbury

FILE NUMBER: CAC 1527 of 2007

DATE DELIVERED: 22 October 2007

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks J

HEARING DATE: 22 October 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Cameron

SOLICITOR FOR THE RESPONDENT: Mr Stagg

Orders

1. The orders made by the Local Magistrate on 25 July 2007 about the time that the children N, born on … May 1991, M, born … June 1998, E, born on … July 2003, and S, born … July 2005, will apply until further order (or the effect of these orders) on the basis that the children will live principally with their father and will spend time with their mother once per week between 9 am and 5 pm on a day to be agreed between the parents but in default of agreement on Wednesdays and the time that the children spend with their mother will be on the basis that she will not permit anyone who is affected by illicit drugs to be in the children’s presence during their time with her.

2. The parents will have equal shared parental responsibility for the children.

3. a.The mother will undergo weekly drug urinalysis within 24 hours of receiving a request from the solicitor for the father.

4. The results of urinalysis will be provided by the mother to the solicitor for the father.

5. The mother will request that her doctor, Dr T provide to this Court a report which will express his opinion (if he is able to give this opinion) that he is not aware of any matter that would prevent her from properly caring from the children in accordance with the orders set out hereafter until the Court is better able to investigate some of the allegations made by each of the parents about the other.

   a.   In preparation of his report Dr T may take account of the medical records of the mother of her consultations with Dr O and the mother will facilitate and authorise the production of such records to Dr T.

   b.   In coming to his opinion Dr T may properly consult with and be assisted and advised by the psychologist to whom he referred the mother in connection with her compensation for crime application.

   c.   If the Doctor feels that he is properly unable to give the opinions set out above then he may of course qualify such opinion in any way he thinks to be appropriate but in addition may recommend that the mother attend such further or other investigations as he considers to be appropriate before he is able to pass that opinion.

6. If Dr T produces a report indicating that he is unaware of any reason why the mother could not properly care for the children in accordance with the orders that follow, and when the mother has produced two clean drug test results in a row, then from the production to the father’s lawyers of the result of the second clean drug test, then the parties will arrange for the children to then spend week and week about with both of the parents until further order of this Court.

   a.   For the purposes of Order 5, changeover will occur each Sunday evening at 5.00pm at the A supermarket.

7. In relation to such time that the children spend with each parent, the parents will agree upon a place for a handover and the method of handover and the day and time in each week in handover will occur.

   a.   If the parents are unable to agree on such matters, there is liberty to apply.

8. When these orders come into effect (if they do) the mother will not permit Mr L to come into contact with the children while they are with her. This order is made on the basis that there is no conceded or admitted reason why the children should not come be contact with Mr L but as part of the protective environment for the children pending the final determination of matters between the parents.

9. In addition the parent with whom the children is not currently living will have unlimited telephone communication with the children and each of the parents will facilitate such communication.

10.Until further order neither of the parents will say unkind or unpleasant things about the other parent in the presence of the children or permit any other person so to do.

1. The mother be and is hereby restrained from using any illicit drugs or from taking any prescription drugs other than in accordance with her prescription pending further order of this Court.

2. That Dr W is appointed as a Single Expert for the purposes of assessing both parents and preparing a Report in accordance with Terms of Reference as agreed by the parties and provided to me to sign off on in Chambers.

3. That any costs associated with Orders 3 and 11 will be shared equally by the parties.

4. It is noted that this matter will proceed as a Less Adversarial Trial to a final conclusion in the Family Court in Canberra.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1527 of 2007

MS ASBURY

Applicant

And

MR ASBURY   

Respondent

REASONS FOR JUDGMENT

1. The matters that I am obliged to deal with under the Family Law Act 1975 (the Act) are prescribed in part by the provisions of Pt VII of the Act.  These require me to consider matters relating to children against the Principles and the Objects set out by the legislature in s 60B of the Act.  These include:

   (1)(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

2. I am conscious of the fact that the Act in s 60B prescribes that

   (2)(a)  children have the right to know and be cared for by both their parents;

   (b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents…

   I am also conscious of the fact that

   (2)(d)   parents should agree about the future parenting of their children

   although not always is this possible. I am also aware of the fact that under the Act s 60CA requires that if I make any order about parenting I have to place the children’s best interests as my paramount concern, that is, not ultimately whether one parent lacks something or believes he or she has a right to anything, but rather the interests of the children which are of the most concern. 

3. In determining what is in the best interests of the children the Act prescribes a number of matters.  It states there are two primary considerations in s 60CC(2).  The first of these is:

   (a) the benefit to the child of having a meaningful relationship with both of the child’s parents

   and the second is

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

4. In addition the Act prescribes that there are a number of other matters that I should take into account in s 60CC(3): 

   (a)  any views expressed by the child - although in this case I do not have a strong understanding what they might be at present,

   (b)  the nature of the relationship of the child with:

   (i)each of the child’s parents ; and

   (ii) other persons…

   (c)  the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

   (d)  the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)either of his or her parents; or

   (ii) any other child, or other person…

   (f)   the capacity of:

   (i)each of the child’s parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   and I am obliged to take account of family violence (s 60CC(3)(j)) or any family violence order that may be in place (s 60CC(3)(k)).  Those are factors which I have to weigh up both on the interim and final basis. 

5. I am obliged in the ordinary course of events under s 61DA to presume that it is in the best interests of the children for the two of you to have equal shared parental responsibility for the children and in coming to a conclusion about that if I am satisfied that one of you has engaged in abuse of the child or there is family violence that would set aside that presumption.  In my opinion, although there are elements in what each of you have said about some of those factors, there is nothing that I would be prepared to say at this point would overcome the basic presumption that the two of you should work together ultimately in determining what is in the best interests of the children long‑term. 

6. Now, I am not suggesting that is easy.  I am not suggesting that the two of you will leave here and go and have a cup of coffee and do some planning.  It seems unlikely.  If I allow that presumption to remain then I must give consideration to the proposition that the children should spend equal time with each of you.  If I were to consider that for any reason that is impracticable - unable to be carried out as opposed to anything else - then I have to consider whether I should take account of the fact that the children should spend substantial and significant time with each of you.  That may mean in some cases that they spend not equal time, but, nevertheless, a goodly block of time which would include all sorts of things that they would do on an ordinary basis, including school time, weekend time, special time and so on, so that children are given a full exposure to each of you. 

7. It is not the case that I must make such a decision.  It is the case that I must consider it.  In this situation the things that have been put in your various affidavits are reflective of the fact that each you feels very deeply and strongly about the factors that have contributed to the end of your relationship.  It is not my place to attribute blame to either of you and in the end it is not a question about who did the right thing and who did not do the right thing.  It would be a question about what is best for the children.  In that context I have to ensure first that the children are safe and that is my primary consideration. 

8. The second thing is that I need to make sure that they do have, so far as they are able to do so, a proper relationship with each of you.  Both of you share that view, which is from my point of view, an important thing.  Each of you wants it.  Each of you, however, says, and this is also reasonable, that of the concerns you have are something that you want to fix before you could be certain that the children would get the maximum benefit from spending time with the other parent.  I understand those things and I think that we need to make sure that the concerns that each of you have are well and truly looked after.  It does not mean at the end either of you will feel terribly happy about the result.  Going to Court never produces good results, I can tell you right now.  What happens at the end is something that is unlikely to be satisfactory to either of you.  If you cannot resolve matters then ultimately the Court will, whether it is this Court or Federal Magistrates Court. 

9. What is before me today it is an appeal against a decision made by a Magistrate in the Local Court, which you both know about, which provided an interim arrangement for the children until a final hearing could occur, and the Local Magistrate then transferred the matter to the Federal Magistrates Court.  What can happen is that the Federal Magistrates Court (given that I have now dealt with the matter to some extent and have some understanding of where you are going) could order that the matter be transferred to this Court and if the Federal Magistrate so ordered I would accept that transfer and we would then move forward. 

10. What I have in mind at this point would be if that happens and we will not know until his Honour Mr Brewster makes a decision, which I expect to be certainly within the week, that we would commence a process which in our Court is known as a Less Adversarial Trial and the first day of that would be on 13 December 2007.  On that day we would ascertain, so far as we needed to, what matters still remain to be worked out between you.  I say “still remain” because I propose to make orders after the transfer has occurred which would, in fact, be the collection of material before we got that far down the track.  It would deal with some of the matters that are concerning you, Ms Asbury, some that are concerning you, Mr Asbury, so if we have a report from Dr W it may enable each of you, more importantly, to feel either some confidence, or alternately to prove, that the concerns that you are expressing are there. 

11. If it transpires, and I am using this as an example, not in any way making a finding, that the mother is still using drugs, then this is a matter that is going to clearly bear upon the way in which the future will be for the children.  If it transpires that you [the father] are, I am not suggesting it is the case, are suffering from a pathological inability to control your temper and the violence you are exhibiting to women or to children or anyone else, then this is a factor which you would yourself acknowledge as being important in so far as determining where the children should principally live and what they should do and the time they should spend with each of you. 

12. So there are factors we can go some way towards.  If there are other matters that we need to work out then we will work them out and the final result should bring us to a conclusion before too long as to where we are going.  That is the way it goes for the moment. 

13. It seems to me that there are a number of factors I have to take into account in the areas that I spoke about under the Act.  On an interim basis, irrespective of what happens on a final basis, those are the primary considerations which require that so far as possible children should have a meaningful relationship with both of you.  The primary consideration that they must be protected from harm, so far as I can make that prediction, the requirement that if there is to be a shared parenting, equal shared parenting responsibility that I would at least consider the children spending equal time, or that if that is not feasible then they should be spending substantial and significant time with each of you.  In this regard I believe there is a concern for the reasons I have expressed during the course of the hearing this afternoon, that there is a justifiable question mark against the mother’s current use of drugs and I think we need to establish some ways of ensuring that, so far as we can, that concern is put to rest. 

14. I think there is equally a concern at the present point that part of that drug use may have a connection with Mr L.  I do not think there is any evidence that would support that at that the point but I do think that is an area in which we should at least take some precautionary steps. 

15. Beyond that I place reliance upon the judgment of the father in saying that he felt when the mother was living with him that she was a good and loving mother and from the submissions made by Mr Stagg on his behalf today that if she were not subject to drugs or depression that she would be in a position properly to provide for the children emotionally and physically. 

16. I accept further that it would be sensible for there to be some at least preliminary investigation of the mother’s ability properly to care for the children if she were suffering from depression and not adequately medicated. 

17. Depression is like any other illness.  It is only relevant to the extent that it is not properly treated.  If someone is suffering from a cold it is not someone’s fault.  It is a question of what medication needs to be taken to control it. 

18. Accordingly what I propose to do is to make orders that will provide that there should be some random drug testing and I will leave the lawyers to at least put together the format of the orders that I make immediately, and when there have been two clear drug tests in a row, provided I have received a report in this Court which will be distributed to both parents from Dr T, in which he asserts that on his knowledge and investigation he is satisfied that there is no other test or testing that ought to be carried out, and that he is prepared to say from what he has seen from both Dr O’s records and from the psychologist to whom he has referred the mother, that he sees no impediment to her properly looking after the children, then the week and week about arrangement will then commence and continue until the Court finalises arrangements.  They are the orders I propose to make. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Faulks

Associate

Date: 13 November 2007