ASPLEY & ASPLEY

[2014] FCCA 2795

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASPLEY & ASPLEY [2014] FCCA 2795

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – application to vary consent orders – supervision – whether father’s time with child needs to be supervised or in the presence of other adults – best interests of the child – child aged 1 year and 10 months – drug and alcohol issues.

PRACTICE AND PROCEDURE – Family report – allocation of early hearing dates.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 62G, 61DA, 65DAA

Cases cited:
Bright & Bright v Bright & Mackley (1995) FLC 92-570

Applicant: MR ASPLEY

Respondent: MS ASPLEY

File Number: SYC 5340 of 2014

Judgment of: Judge Scarlett

Hearing date: 26 November 2014

Date of Last Submission: 26 November 2014

Delivered at: Sydney

Delivered on: 28 November 2014

REPRESENTATION

Counsel for the Applicant: Mr Ladopoulos

Solicitors for the Applicant: Rockliffs Solicitors & IP Lawyers

Counsel for the Respondent: Mr Schonell SC

Solicitors for the Respondent: Broun Abrahams Burreket

ORDERS

UNTIL FURTHER ORDER

1. The Orders made on 20 October 2014 are vacated.

2. The child X born on (omitted) 2013 is to live with the Respondent Mother.

3. The child X is to spend time with the Applicant Father as follows:

   (a)Each Sunday from 9:00am until 4:00pm in the presence of either or both of the Father’s parents Ms V and Mr J;

   (b)Each Tuesday from 7:30am to 8:30am at the (omitted) in the presence of the Mother or at such other times as the parties shall agree;

   (c)Each Thursday from 7:30am to 8:30am at the (omitted) in the presence of the Mother;

   (d)On Christmas Day 25 December 2014 from 8:00am to 12:00 noon in the presence of either or both of the Father’s parents Ms V and Mr J or either of them;

   (e)On the child’s birthday (omitted) 2015 in the presence of either or both of the Father’s parents Ms V and Mr J; and

   (f)On the Father’s birthday (omitted) 2015 from 7:30am to 8:30am at the (omitted) in the presence of the Mother.  

4. The Father’s time with the child X will be suspended on Mother’s Day.

5. For the purpose of implementing Orders (3)(a), (3)(d), (3)(e) and (3)(f), the father together with either or both Ms V and Mr J will collect the child from the Mother at her home at the commencement of the child’s time with him and together with either or both Ms V and Mr J will return the child to the Mother at her home at the conclusion of the time specified in the Order.

6. The Father and the Mother must notify each other of any serious illness, injury or medical emergency in respect of the child and must notify each other of any medication administered to the child during her time in their respective care.

7. The Father and Mother must notify each other of any change to their telephone number or address within 24 hours of such change occurring.

8. It is a condition of the Father spending time with the child X that he is to undergo a chain of custody urine drug screen which must be performed in accordance with Australian/New Zealand Standard AS/NZS 4308:2008 procedures for specimen collection and the detection and quantitation of drugs of abuse in urine on at least one occasion each week and must provide the written results of such procedure to the solicitors for the Mother within forty-eight (48) hours of having received the written results.

9. The Father and the Mother must attend upon a Family Consultant at a time and place appointed by the Director of Child Dispute Services at the Sydney Registry of the Court for the purpose of preparation of a Family Report under the provisions of section 62G of the Family Law Act 1975 such report to be directed to matters relevant to the care, welfare and development of the child X born on (omitted) 2013 to include:

   (a)The benefit to the child of having a meaning relationship with each of her parents; and

   (b)The need to protect the child from harm due to exposure to use of illicit drugs, abuse of alcohol and other addictive behaviour by the child’s father.

10. The Application is listed for Final Hearing at 10:00 am on Wednesday 6 May 2015 to continue to Friday 8 May 2015.

11. The Applicant must pay the setting-down fee by 17 April 2015.

12. All affidavits must be filed and served no later than 17 April 2015.

13. The parties must inform the Director of Child Dispute Services at the Sydney Registry of the Court by 27 March 2015 if the Family Consultant who prepared the Family Report is required for cross-examination.  

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5340 of 2014

MR ASPLEY

Applicant

And

MS ASPLEY

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Father of a little girl called X to vary some interim parenting orders that were made by consent on 20^th October 2014. The Mother opposes the Application.

2. Essentially, the Father seeks to vary the Orders in two respects:

   a)By increasing the time that he spends with the child so that he spends every Tuesday afternoon with her, from 1:00 pm until 5:30pm; and

   b)To remove the requirement that his time with the child must be in the presence of either or both of his parents.

3. The Mother opposes those orders. She considers that the extra time, being every Tuesday afternoon, would be disruptive to the child’s routine; and she does not trust the Father to spend time with her without a responsible adult present, due to his recent history of alcohol abuse and use of an illicit drug, namely cocaine. As her Counsel put to the Court, she does not trust him.

Background

1. The parties are both (occupation omitted) by profession. They were both born in 1977, so they are 37 years old. Their cohabitation commenced in (omitted) 2010 and they were married on (omitted) 2011. They separated on 27^th July 2013.

2. The Mother remains living in the former matrimonial home with the parties, daughter, X, known as “X”, who was born on (omitted) 2013. The Father is currently residing at the home of his parents, who have both recently retired. The paternal grandfather was a (occupation omitted) and the mother was a (occupation omitted).

3. The Mother deposed in her affidavit of 13^th October 2014 that the Father has a history of using cocaine since she was going out with him in 2009. She also deposed that he had a tendency to drink alcohol to excess. This drinking to excess continued and she stated that he said to her on one occasion in 2012:

   “Once I start drinking I find it hard to stop”.[1]

   [1] Affidavit of  Ms Aspley 13.10.2014 at paragraph [76]

4. The Father consulted a psychiatrist, a Dr N, about his drinking. Dr N has affirmed an affidavit on 28^th August 2014 to which he has annexed a report dated 19^th August 2014.

5. The Mother also discovered that the Father had developed an interest in cross-dressing and had joined the (omitted) Transvestites and Transsexuals Group in (omitted) 2012. Prior to her discovering a note that he had written on or about 23^rd July 2013 she was unaware of his interest in that area. The Father moved out of the home four days later.

6. The Mother has made it clear in her affidavit that:

   I do not think that Mr Aspley’s interest in sexual activities with men and transsexuals or transgender people of itself results in him being unable to fulfil his role as a parent. However, during my time living with Mr Aspley, I found that he was often emotionally unavailable to me and to X due to the fact that he invested a lot of energy fulfilling these other aspects of his life and in keeping these interests and activities a secret.[2]

   [2] Affidavit of Ms Aspley 13.10.2014 at [97]

7. The Father deposes in his affidavit of 27^th August 2014 that:

   Currently I do not take any illicit substances as alleged by Ms Aspley. I have used illicit substances in the past. However, I have ceased doing so as of sometime ago.[3]

   [3] Affidavit of Mr Aspley 27.8.2014 at [117]

8. He states that he has been diagnosed by Dr N as suffering from Attention Deficit Hyperactivity Disorder (ADHD) and has been prescribed medication to treat that condition. He denies that he drinks to excess:

   I do not drink excessively as alleged by Ms Aspley as in the latest correspondence from her solicitors dated 1 July 2014. On most weeknights I do not drink, or if I do drink, I do not drink more than 1 or 2 drinks…I am prepared to offer an undertaking to the Court that I will not consume or be affected by alcohol in X’s presence.[4]

   [4] Ibid at [122]

Court Proceedings

1. The Father’s Application was returnable on 20^th October 2014. On that day, the Court directed that the parties should attend a Child Dispute Conference with a Family Consultant. That conference took place on 13^th November.

2. The parties entered into discussions on the first return date and entered into Interim Consent Orders providing that Orders should be made in accordance with the Interim Orders sought in the Response filed by the Mother on 13^th October 2014. Those Orders provided that, until further order:

   a)The child would continue to live with the Mother;

   b)The Father would spend time with the child:

   i)On Sundays from 9:00am until 4:00pm in the presence of his parents, Ms V and Mr J, or either of them;

   ii)Each Thursday from 7:30am to 8:30am at the (omitted) in the presence of the Mother;

   iii)On Christmas day from 8:00am to 12:00 noon in the presence of his parents or either of them; and

   iv)On the child’s birthday from 1:30pm to 4:30pm, again in the presence of either or both of his parents.

3. There were other consequent orders about changeover, the parents notifying each other about any illness or injury sustained by the child, and notifying each other about any change of address or telephone number.

4. The parties attended the Child Dispute Conference with the Family Consultant on 13^th November and her Memorandum to Court was made available to the parties and the Court shortly thereafter.

5. The Application was listed for an Interim Hearing on 26^th November 2014.

Evidence and Submissions

1. The Father relied on his Application and the following affidavits:

   a)the Father himself affirmed 27^th August 2014;

   b)his mother, Ms V, sworn 26^th August 2014; and

   c)Dr N, affirmed 28^th August 2014.

2. The Mother relied on her Response, her affidavit of 13^th October 2014 and the Child Dispute Conference Memorandum to Court.

3. Counsel for the Father, Mr Ladopoulos, submitted that the Father could spend time with the child on Tuesday afternoons from 1:00pm to 5:30pm when the Mother gets home from work. The Mother works four days a week, Monday to Thursday. He would collect the child from child care and return her to the Mother’s home. He is able to take that time off work. It was submitted that this would not bring about any significant disruption to the child’s routine.

4. Mr Ladopoulos submitted that, as the child is not yet two years of age, she needs frequent time with her father to develop an attachment to him. It is not in dispute that the Father has a good relationship with the child.

5. Although the Mother has expressed concern about the Father’s use of illicit drugs, his excessive drinking and his sexual preferences, the drug use and the excessive drinking are in the past. He does not pose an unacceptable risk to the child and there is no need for the child to be supervised whilst in his care.

6. The Father has the view that the Mother has taken the view that nothing will make her concerns fall away, no matter what he does. He did, however, through his Counsel, offer to undertake urinalysis to show that he has not consumed illicit drugs.

7. Senior Counsel for the Mother, Mr Schonell, told the Court that trust disappears when a relationship breaks down. The Mother does not trust the Father and his denials are inconsistent with the statements made by Dr N in his report.

8. Mr Schonell submitted that the Father had not put on any evidence to counter the allegations made by the Mother in her affidavit about his addictive behaviour, his use of cocaine and his use of alcohol. His denials, it was submitted, were “vague and imprecise”. The Mother believes that the Father is still using cocaine.

9. The Mother has proposed that the Father’s time with the child could be increased in a way that would avoid any risk to the child by spending an hour with the Father on Tuesday morning of each week at the (omitted) in her presence. She does not consent to the Father’s proposal that he could spend Tuesday afternoons with the child, whether supervised or not, because it would be disruptive to the child, in her view. The Tuesday afternoon proposal would involve too many changes of care for the child and take her out of her routine. 

10. Mr Schonell referred the Court to various passages of the Child Dispute Conference Memorandum in support of the proposition that there was no need for the Father’s time with the child to increase to maintain the relationship.

The Relevant law in regard to Parenting Applications

1. When the Court is considering whether to make a parenting order, it must have regard to various sections of the Family Law Act 1975 (Cth) to be found in Part VII of the Act.

2. In particular, the Court must consider:

   a)Section 60B, which sets out the objects of Part VII and the principles 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 the best interests of a child for the child’s parents to have equal shared parental responsibility for the child; and

   e)Section 65DAA, which comes into play when the Court makes an order that a child’s parents should have equal shared parental responsibility for the child and requires the Court to consider equal time or substantial and significant time with the child’s parents.

3. All of these matters have been considered, insofar as they are relevant.

Conclusions

1. Subsection 61DA(3) of the Act provides that when the Court is making an interim order, the presumption of equal shared parental responsibility applies unless the Court considers that it would not be appropriate in the circumstances. I see no reason to find that it would not be appropriate.

2. The circumstances of this case, for the reasons which I will set out, lead me to the view that it would not be in the child’s best interests ort reasonably practicable for her to spend equal time with each of her parents, nor would it be in her best interests to spend substantial and significant time with her father at this stage of her development.

3. I have considered the matters set out in the Child Dispute Conference Memorandum in dealing with the balance between the principal considerations set out in s.60CC(2) of the Act, and I have found this document to be particularly helpful. It is a document from an independent source, prepared by the Family Consultant after an interview with the parents.

4. The competing primary considerations in s.60C(2) are, of course, the benefit to the child of having a meaningful relationship with both of the child’s parents, on the one hand, and the need to protect the child  from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

5. It is accepted that this little girl, not yet two years of age, has a good relationship with each parent. The Father wishes to develop his relationship with his daughter, and, as Mr Ladopoulos rightly points out, with a child of this young age frequent time with the Father is important to develop and maintain an attachment relationship. There is no argument that X already has such a relationship with her mother.

6. The Mother, however, does not trust the Father and raises concerns over the risk to the child in spending unsupervised time with him, especially as she believes he is still using cocaine and may well continue to drink alcohol to excess. The Father’s sexual interests are not a concern to her as far as the welfare of the child is concerned, but the fact that the Mother only recently found out about this side of the Father’s life has significantly eroded her trust in him.

7. The Mother raises no concern about the welfare of the child if one or other of the parental grandparents is present, and from Ms V’s affidavit, it would appear that both she and Mr Aspley are well qualified to care for this little girl, not only by virtue of their professional qualifications but the fact that they appear to be loving grandparents. Courts dealing with family law matters have long recognised the important role that grandparents and other extended family members can play in a child’s life (see Bright & Bright v Bright & Mackley[5]).

   [5] (1995) FLC 92-570

8. I note from the Memorandum that the Father denied cocaine use or excessive alcohol use “but said he is willing to continue to spend supervised time with X for a further 6 months to ease concerns.” However, the Father’s application is that the need for supervision by his parent should cease.

9. The Family Consultant, Ms A, had these comments to make on page 2 of the Memorandum, which appear to me, with respect, to be both perceptive and even-handed:

   X is at a critical stage in terms of the development of her attachment relationships and these relationships help a child to feel secure and assist their general development…From the parents’ accounts X appears to have developed a good relationship with her father and the current care arrangements appear adequate for sup[porting the maintenance of X’s attachment relationship with her father at her stage of development.

   In order for X’s relationship with her father to develop further it may be beneficial for X to spend increasing amounts of time with her father. Options for this were canvassed with each parent and the father suggested that he could spend additional time with X one afternoon during the week, either in the mother’s presence [or] his parents’ presence…

   The mother was concerned about spending more time with the father because although they can be amicable with each other, she still feels some tension from their separation. She appeared negotiable to the father spending additional time with X on another morning during the week but was concerned that it may be disruptive to X to spend time with the father one afternoon during the week.

   The scenario outlined by the mother may well be disruptive to X so, while it may help the development of X’s relationship with her father to spend an increased amount of time with him, X’s general development may be negatively impacted if she has a chaotic and unsettling day each week. The parents may wish to trial the arrangement however to see how X manages it (expecting that it will take a few weeks for X to adjust to any significant change in her routine) or they may wish to try to negotiate other options….

   …

   The mother may gradually learn to trust the father in time if he can consistently demonstrate any alleged drug or alcohol use is not impacting his ability to care for X, or the father may wish to engage in drug and alcohol testing in an effort to demonstrate he is not using drugs or alcohol.[6]

   [6] Child Dispute Conference Memorandum to Court 18 November 2014 page 2

10. Interestingly, the Mother’s position before the Court has remained consistent with her statements to the Family Consultant, whilst the Father appears to have resiled somewhat from his earlier position.

11. In my view, it is in this little girl’s best interests not only to maintain her relationship with her father but to develop it, and that means a gradual increase in the amount of time that she spends with him. The Mother’s proposal that the Father can spend time with the child and her for breakfast on Tuesdays as well as Thursdays at the (omitted) offers a way of increasing the frequency of the Father’s time with his daughter in an environment with which the child is presumably already familiar.

1. As I raised with Senior Counsel for the Mother at the hearing, the concept of the estranged father and Mother having a civilised breakfast with each other and their young child at the (omitted) is rather reminiscent of a scene from a film in earlier years and, importantly, does not appear to be sustainable in the long term. Mr Schonell conceded that the concept sounded artificial.

2. However, if an additional morning with the child each week will aid the development of her attachment relationship with her father, it would appear to be in her best interests, certainly for the time being. I do not see the Father’s proposal of several hours each Tuesday afternoon as viable, especially as the mother appears to be so opposed it.

3. In addition, the Mother appears to be implacably opposed to the idea of the Father spending any length of time with her father without supervision. She appears to have no objection at all to the Father’s parents being involved; they are the child’s grandparents, after all. The Father did propose at the Child Dispute Conference that he would consent to a supervised arrangement for a further period of six months if it would assist in allaying the mother’s fears about his capacity to care for the child without being adversely affected by drugs or alcohol. His reason for backing away from that concept appears to stem from his perception that nothing he can do will assist the Mother in trusting ever again. Time will tell, but it is quite common for courts to observe a softening of parties’ hard-line attitudes after a period where the other party demonstrates a consistent commitment to behaving in an acceptable manner.

4. I am not prepared to relax the requirement that the paternal grandparents should be present when the Father is spending time with this child. The Court is required by s.60CC(2A) to place greater weight on the need to protect the child from harm, as set out in s.60CC(2)(b), and I propose to take a cautious approach. This Court will not do otherwise when a child’s safety is in question.

5. It does appear to be important that the Father should spend time with his daughter on special occasions such as Christmas Day and the child’s birthday, and I will order accordingly. Father’s Day is already covered, as it always falls on a Sunday, when the Father will be spending time with X.

6. Counsel for the parties did not mention another special day, one probably more important to the Father than the child at this time, namely the Father’s birthday. I have no doubt that this was an oversight and they probably intended to raise this issue, but it was overlooked in the heat of the moment. I propose to remedy that oversight by making an order that the Father will spend time with his daughter on his birthday. As the Father’s birthday falls on a Friday next year, it seems to me that breakfast at the (omitted) with the Mother on that day will be appropriate.

7. However, the situation cannot continue for a lengthy period of time. I propose to order a Family Report under the provisions of s.62G of the Family Law Act. In the ordinary course of events, the Court, short as it is of Judges due to retirements and faced with a steadily increasing amount of work, would not be in a position to allocate hearing dates until the beginning of November 2015. I do not consider this to be acceptable, as there a need, in my view, for a final hearing within about six months or so.

8. I propose to allocate three days to hear this matter on a final basis in early May, from Wednesday 6^th May to Friday 8^th May. To do so, I will have to reallocate hearing dates of other matters which have, to my mind, a lesser priority. No doubt that decision will cause some annoyance and inconvenience to other litigants and their lawyers, but the Court must allocate matters according to its view of their urgency.

9. It may well be inconvenient for the parties’ lawyers in this matter and the proposed dates may not suit the parties’ counsel, but that cannot be helped. I have gone to some trouble to find relatively early hearing dates and the court does not have a great deal of flexibility.

10. I consider it to be in the best interests of this child to allocate final hearing dates in May next year, and, as always, the best interests of the child are the paramount consideration.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date:  28 November 2014