COGHLAN & CRAFT

[2014] FCCA 2266

FEDERAL CIRCUIT COURT OF AUSTRALIA

COGHLAN & CRAFT [2014] FCCA 2266

Catchwords:
FAMILY LAW – Whether children’s time with the father should be dependent on a clear drug screen.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60B, 60CA, 60CC, 60DA

Applicant: MR COGHLAN

Respondent: MS CRAFT

File Number: DGC 3576 of 2013

Judgment of: Judge Phipps

Hearing dates: 18 & 19 August 2014

Date of Last Submission: 19 August 2014

Delivered at: Dandenong

Delivered on: 2 October 2014

REPRESENTATION

Counsel for the Applicant: Mr Brewer

Solicitors for the Applicant: David Gibbs & Associates

Solicitor for the Respondent: Ms Samson

Solicitors for the Respondent: Peninsula Law

Counsel for the Independent Children’s Lawyer: Ms Brennan

Solicitors for the Independent Children’s Lawyer: Victoria Legal Aid

ORDERS

1. That all previous orders are discharged.

2. That the mother and the father have equal shared parental responsibility for the child X born (omitted) 2008.

3. That the child live with the mother.

4. That the child spend time with the father as follows:

   (a)Each alternate weekend from after school Friday until before school Monday, or if the Monday is not a school day, until before school Tuesday;

   (b)Each Wednesday from after school until before school Thursday;

   (c)For one week of each of the school term holidays on dates to be agreed between the parties, and in the absence of agreement, the first week;

   (d)For two weeks in the long summer school holidays on dates to be agreed between the parties, and in the absence of agreement from 6.00pm Boxing Day in 2014 and each alternate year thereafter and from 7 January 2015 and each alternate year thereafter;

   (e)If Father’s Day falls on a weekend when the child is not in the care of the father, from 10.00am to 5.00pm on the Sunday;

   (f)From 3.00pm on 24 December to 3.00pm on 25 December in 2013 and each alternate year thereafter;

   (g)From 3.00pm on 25 December to 3.00pm on 26 December in 2014 and each alternate year thereafter;

   (h)For two hours on the child’s and the father’s birthday if such birthday falls on a weekday and for four hours if either birthday falls on a weekend the child is in the care of the mother;

   (i)Such further and other times as the parties may agree.

5. If Mother’s Day falls on a weekend when the child is in the care of the father, that the child is to return to the care of the mother at 10.00am on Sunday.

6. If the child’s birthday and/or the mother’s birthday falls on a weekend when the child is in the care of the father then the child is to return to the care of the mother for a period of four hours on that day, or as otherwise agreed.

7. That with the exception of change overs that occur at the child’s school, the father shall collect the child at the mother’s residence at the commencement of his time with the child, and return the child to the mother’s residence at the conclusion of his time with the child.

8. That the father have communication with the child by telephone or Skype between 6.00pm and 6.30pm each Tuesday and Thursday, and the mother shall allow the child to have privacy during such calls without interruption.

9. That each party advise the other of any changes to their address or phone number within 24 hours of such change occurring, and ensure 24-hour emergency phone contact is available at all times when the child is in their respective care.

10. That the father be entitled to receive and the mother authorize in writing the children’s schools to forward to his address copies of all correspondence and information sheets from the school including the children’s reports, and shall be entitled to attend all school functions to which parents are invited including information nights, parent teacher interviews, sports days, curriculum presentations and excursions.

11. That the mother notify the father if the child suffers serious illness, injury or misadventure and shall provide the father with details of the child’s treating medical practitioners.

12. That the father and mother be restrained from denigrating the other in the presence and/or hearing of the child.

13. That the father’s time pursuant to these orders shall occur on an unsupervised basis.

14. That the father attend for a fully supervised drug screen for the detection of illicit drugs within 24 hours of any SMS or email request of the Independent Children’s Lawyer, such results to be in the GC-MS format and the results be provided to the mother’s solicitors and the Independent Children’s Lawyer as soon as practicable.

15. The requests for drug screens pursuant to these orders shall be limited to one request per month over a six-month period.

16. In the event that a drug screen provided by the father is positive for illicit drugs and the father is unable to provide medical explanation for such positive screen, the mother have liberty to apply to the court to seek a variation of these orders.

17. The mother and the father be hereby restrained by themselves their servants and agents from:

    (a)Discussing these proceedings with the child;

    (b)Denigrating the other, their partner or family members in the presence or hearing of the child;

    (c)Consuming illicit drugs or alcohol to excess while the child is in their care or during the 24 hour period prior or allowing the child any contact with persons using or affected by illicit drugs or alcohol to excess;

    (d)Allowing the child to be present in the immediate vicinity of any persons using firearms for the purpose of shooting targets or animals.

18. That the father deliver the child’s passport to the mother.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3576 of 2013

MR COGHLAN

Applicant

And

MS CRAFT

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties have one child X born (omitted) 2008, aged six.  They agree that the child should live with the mother and spend time with the father including overnight time and holiday time but disagree about the amount of time.  The mother proposes that the father’s time be supervised until he provides a clean drug screen.

Proposals

1. The father and the Independent Children’s Lawyer make the same proposal.  The Independent Children’s Lawyer proposes orders as in the father’s Initiating Application and some additional orders.  The father agrees to the proposed additional orders.  The father’s application proposes that the parents have equal shared parental responsibility for the child, the child live with the mother and that the child spend time with the father as follows:

   a)Each alternate weekend from after school Friday until before school Monday or if the Monday is not a school day until before school Tuesday;

   b)Each Wednesday from after school until before school Thursday;

   c)For one week of each of the school term holidays on dates to be agreed between the parties, and in the absence of agreement, the first week;

   d)For two weeks in the long summer school holidays on dates to be agreed between the parties, and in the absence of agreement from 1 January;

   e)If Father’s Day falls on a weekend when the child is not in the care of the Father, from 10.00am to 5.00pm on the Sunday;

   f)From 3.00pm on 24 December to 3.00pm on 25 December in 2013 and each alternate year thereafter;

   g)From 3.00pm on 25 December to 3.00pm on 26 December in 2014 and each alternate year thereafter;

   h)For two hours on the child’s and the father’s birthday if such birthday falls on a weekday and for four hours if either birthday falls on a weekend when the child is in the care of the mother;

   i)Such further and other times as the parties may agree.

2. The application proposes suspensions of time for Mother’s Day, the child’s birthday and the mother’s birthday, changeover at the school or at each parent’s house, telephone or Skype communication between 6.00pm and 6.30pm each Tuesday and Thursday, notification of change of address or telephone number, notifications about school information and serious illnesses or injuries and a non-denigration order.

3. The additional orders proposed by the Independent Children’s Lawyer are:

   a)The father’s time spent pursuant to these orders shall occur on an unsupervised basis;

   b)The father attend for a fully supervised drug screen for the detection of illicit drugs within 24 hours of any SMS or email request of the Independent Children’s Lawyer, such results to be in the GC-MS format and the results be provided to the mother’s solicitor and the Independent Children’s Lawyer as soon as practicable;

   c)The requests for drug screens pursuant to these orders shall be limited to one request per month over a six-month period;

   d)In the event that a drug screen provided by the father is positive for illicit drugs and the father is unable to provide a medical explanation for such possible screen, the mother have liberty to apply to the Court to seek a variation to these orders;

   e)The mother and the father be and are hereby restrained by themselves their servants and agents from:

   i)Discussing these proceedings with the child;

   ii)Denigrating the other, their partner or family members in the presence or hearing of the child;

   iii)Consuming illicit drugs or alcohol to excess whilst the  child is in their care or during the 24 hour period prior or allowing the child any contact with persons using or affected by illicit drugs or alcohol to excess;

   iv)From allowing the child to be present or in the immediate vicinity of any persons using firearms for the purpose of shooting targets or animals.

4. The mother’s proposal coincides with much of the father’s and Independent Children’s Lawyer’s proposal.  She proposes these changes:

   a)The overnight time from Wednesday until Thursday be each alternate week instead of every week;

   b)Three days instead of one week of each school term holidays;

   c)The two weeks time in the summer holidays commence from;

   i)in 2014 and each alternate year a from  6.00pm Boxing Day;

   ii)in 2015 and each alternate year from 7 January.

5. The mother opposes the proposed telephone and Skype communication and proposes these additional paragraphs:

   a)The father to be in substantive attendance during all school holiday time;

   b)The father to return the child’s passport to the mother or alternatively the passport to be kept at the Registry of the Federal Circuit Court of Australia;

   c)That for times in excess of three days the father facilitate telephone call to the mother once each week;

   d)That the parties communicate by text message for children’s matters;

   e)That the father provide a school uniform for the child when the child is in his care, including sports uniform;

   f)That the child be restrained from attending the home of or otherwise meeting Ms T and Mr S;

   g)That there be a period of supervision until a clear drug screen is produced by the father.

Initial background

1. The parties had a brief relationship in 2007.  Since then the child has lived with the mother.  He has spent regular time with his father until mid-2013 although the parties dispute when overnight time commenced.

2. The father says that the parties attended mediation when the child was one year old and he says there have been three parenting plans, the last dated 3 October 2011.  The mother says that the parties first attended mediation on 3 October 2011 when the child was three, prior to that they had attended counselling.

3. The parties signed a parenting plan on 3 October 2011.  It provided for the child to spend time with the father on alternate weekends and from after school to 7.00pm every Wednesday.  The alternate weekends were Friday night to Sunday night.  This arrangement continued until July 2013 when the mother stopped the time.

4. In mid-2013 the father asked the mother could he take the child to Thailand for a holiday.  She agreed and signed the passport application but later withdrew her consent.

Risk matters

1. The mother stopped the child’s time with the father in July 2013.  The reason for doing this was that she said the father was driving and drinking while the child was with the father in his car.  She says that the father arrived with the child and she could smell beer on his breath and she saw a beer bottle in a pocket in the car.  She could not see if the bottle had anything in it.  She says the child told her the father was drinking while driving.  She was asked the specific question whether she thought the father was so affected by alcohol that he should not have been driving and she said she did not think that was the case.  She says that the child said that that the father said that the police said it was alright to drink while driving.

2. The father says that he drinks beer occasionally.  He will have one while cleaning up his (business omitted) at the end of the day and another one when he gets home.  He says he has a breathalyser unit so that he can test his breath to make sure he is not over the blood alcohol limit when driving.  He says that on the occasion the mother says he was drinking while driving he was not.  He says the beer bottle had been left in the car by a friend.

3. The more significant risk factor the mother raises is that she alleges the father has been using non-prescription drugs, specifically ice or methamphetamine.  She says that two people have given her descriptions of the father’s possession and drug use.

4. The mother says that information about the father’s drug dealing and use came to her knowledge on 25 April 2014.  She says she went to see her friend Mr J.  She said that a lady named Ms B was at the home.  She says that Ms B knows the father and other mutual friends.  She says Ms B told her of a person named Ms A who used to live next door to the father for the past seven years, moving out about 12 months before.  She says that Ms B arranged to bring Ms A to her house and she says that on Saturday 27 April 2014 Ms A told her that the applicant is dealing in drugs, specifically ice.  Ms A told her she had witnessed two garbage bags of cannabis at the applicant’s home, that she witnessed the applicant smoking “ice” while caring for the child and that Ms A had taken the child from the drug environment and cared for him because she says the father was not in a capable state to look after the child.  The mother says she was told this happened on multiple occasions.  She says Ms A told her the father had said he has to get off ice and get clean because he knows he nearly lost his son.

5. Ms A was subpoenaed by the mother’s solicitor and attended at court.  She was not called as a witness for the mother but was called by Counsel for the Independent Children’s Lawyer.  Ms A said that she had lived next door to the father for seven years until she moved about 16 months prior.  The conversation which the mother alleges was put to Ms A and she said it did not happen.  She said that the child had visited her house with his father on occasions and there had been two occasions when the child had come on his own.  She acknowledged text messages to the mother which she explained she sent because she was sympathetic to the mother because she, Ms A, had gone through a relationship breakup herself.

6. The other person the mother says told her of her father’s drug use is Ms B.  Ms B was not called to give evidence.

7. The mother says that in 2006 she had a 12 month contract working in Queensland.  The father visited her and brought the drug ice with him and she used it with him.

8. The father denies using drugs.  The mother had no concerns about the father’s care of the child until the driving incident of July 2013.  The family report shows an excellent relationship between father and child with no sign of any concern by the child about being with the father.  The father owns and operates his own (business omitted) and has for many years.  He therefore commences his days early.  If his use of drugs was of the extent to be inferred from the conversation the mother alleges she had with Ms A it seems unlikely that the mother would not have seen some signs of it before April 2013.  It seems unlikely that the father could successfully work his (business omitted) and it seems unlikely that it would not have affected the child’s relationship with the father.

9. The father impressed as an honest witness.  He acknowledged a violent incident in February 2013 where he grabbed the mother by her shirt and there was an angry exchange.  Almost immediately after he sent the mother a text message acknowledging what he had done, acknowledging that it was wrong and apologising and wanting to preserve the relationship.  This is the only incident of violence.  The mother does not allege any others.

10. Drug tests were ordered.  The father did not undertake all the drug tests.  Some he says he did not have time to do and some he says he did not get notice because his solicitor was no longer acting because he could not afford to pay.  A failure to undertake drug tests is not evidence in itself that the father is using drugs although in assessing any risk to the child it must be taken into account.

11. The only evidence that the father is using drugs or has in the recent past is the mother’s hearsay evidence of conversations she had with two people.  One of those persons has given evidence and has said that the conversation did not take place and has said that in seven years of living next door to the father and him visiting her house on occasions she has seen no evidence of drugs.

12. There is no credible evidence that the father has used drugs.  Nor is there any credible evidence that he has driven with the child in the car while under the influence of alcohol to such an extent that there was a risk to the child.

13. The mother refers to some other incidents.  She says that the child got a crayon stuck up his nose at creche.  The father and his mother took the child to (omitted) Hospital Emergency Department but did not ring the mother until 8.00pm.  She also alleges that the father had shot at game while the child was in his car.  The father is a hunter and has firearms, with the appropriate licences, and drives into bush areas.  He says he was target shooting, not shooting at game while the child was in the car.  He says he put targets on trees and fired at them. 

14. The father told the child that the driver of the security van which collects money from the shop next door to the father’s (business omitted) collects naughty boys and takes them to a children’s home.  The father acknowledges that he did this.  It does not mean that the child has had any risk with the father or that his care is inappropriate.

15. The occasion in February 2013 when the father assaulted the mother was acknowledged as wrong by the father almost immediately.  There is no other suggestion of family violence.

16. I am satisfied that the child is not at risk in the father’s care and if there is some risk that the father is using ice the Independent Children’s Lawyer’s proposal for drug screens is sufficient safeguard.

Subsequent history

1. On 19 July 2013 the mother applied to Frankston Magistrates Court for a Family Violence Intervention Order and obtained an Interim Order naming her and the child as the affected persons. The matter was concluded on 28 October 2013 when the father gave an undertaking which named the mother and the child as protected persons. The undertaking included not approaching within 5 metres of the protected persons or 200 metres of the mother’s residence but with exceptions that permitted the father to do anything permitted by a Family Law Act order, child protection order or written agreement about child arrangements. The mother still would not permit the child to spend time with the father except for a short time on Father’s Day.

1. The father commenced this proceeding on 11 December 2013.  On 18 February 2014 the parties agreed on consent orders that the child live with the mother and spend time with the father on three occasions each alternate Sunday from 9.00am to 5.00pm and then each alternate weekend from 9.00am Saturday to 5.00pm Sunday.

2. On 10 May 2013 further orders were agreed for the child to spend time with the father each alternate weekend from after school Friday to before school Monday.  This time was made subject to the father providing a clean drug screen and that the paternal grandmother be in substantial attendance and that the time occur at her house.

3. These orders followed the parties and the child meeting with a Family Consultant Ms O pursuant to an order under s.11F of the Family Law Act 1975 (Cth). Ms O recommended the child’s time with the father be alternate weekends from Friday to Monday and one night during the week. Of note in the Family Consultant’s Memorandum is that the child, then aged six years six months, spoke positively of spending time with his father. He was sad during the period he did not spend time with him and would like to sleep at his house for as many nights as he is allowed. The child said he was only scared by loud noises at night.

4. Ms D prepared a family report.  The child told her he enjoyed spending time with the father and wishes to spend more time with him.  She says that when she told the child that his father had arrived the child appeared overjoyed.  He ran to greet his father.  Ms D says she observed affection and interaction between the child and his father.

5. Ms D concluded that the child missed his father during the time he did not see him.  She spoke to the child’s teacher who commented on his defiant behaviour and thought it may be due to the disruption in the relationship.  The counsellor from the Family Relationship Centre who saw the child during the disruption at the time noted the child was angry towards his mother because she would not let him see his father.

6. Ms D’s recommendation is subject to the court being satisfied that the father is not abusing drugs and alcohol during the time the child is in his care.  She recommends the child spend time with the father in week one from the close of school Friday until the commencement of school Monday or Tuesday if Monday is a public holiday and in week two from the conclusion of school Wednesday to the commencement of school Friday, telephone or Skype each Tuesday and half school holidays.

7. The father’s proposal is that the midweek time be every week and only be one night but his counsel said he would accept the two nights every alternate week and the Independent Children’s Lawyer has the same approach.

Best interests

1. Section 60CA of the Family Law Act 1975 (Cth) provides that the best interests of the child is the paramount consideration in determining parenting orders. Considerations which must be taken into account in determining what is in the child’s best interests are in s.60CC. The objects of the section relating to children and the principles underlying it are contained in s.60B.

2. The parties agree that there be an order for equal shared parental responsibility. When such an order is proposed s.60DA requires the court to consider whether the child spending equal time with each parent or if not equal time, substantial and significant time, is in the child’s best interests and reasonably practicable.

3. The first of the primary best interests considerations is the benefit to the child of a meaningful relationship with each parent.  The child has a good relationship with each parent.  Of particular relevance is Ms D’s observation of the child with his father which shows that he will benefit from spending a substantial amount of time with his father.

4. The second of the primary best interests considerations is the need to protect the child from harm and risk of harm.  I have dealt with the risk issues already.  I am satisfied that the Independent Children’s Lawyer’s proposal for a drug test and for the Independent Children’s Lawyer to remain involved for six months is adequate protection against the risk that the father might still be using drugs.

5. The first of the additional considerations is the child’s views.  Ms D’s evidence is that the child enjoys his time with his father and wants to spend more time including overnight time.  Ms D’s observations show that the child’s views are based on his positive interaction with his father and his affection for his father.

6. The next of the additional considerations is the child’s relationship with each parent and other persons including grandparents.  The mother is the child’s primary carer and this is reflected in the agreed proposal for an order that the child live with the mother and spend the majority of his time with his mother.  The references I have made to Ms D’s evidence shows the child has a close and affectionate relationship with his father.

7. The next consideration is the extent to which each party has participated in making decisions about the child and in spending time and communicating with the child.  The father has pursued arrangements for the child to spend time with him.  The evidence of this is the child’s excellent relationship with his father.  The mother is the child’s principal carer.

8. The next consideration is the extent to which each parent has fulfilled the obligation to maintain the child.  This consideration has no relevance to the limited issues in this case.

9. There is little relevance in the next consideration, the likely effect of any change on the child.  The change proposed by the father is quite small.  The same applies to the next consideration, the practical difficulty and expense of the child spending time with the father.  There is no practical difficulty in the proposed orders.

10. The next consideration is the capacity of each parent to provide for the child’s needs.  The history of the child’s relationship with each parent and the care each parent has given the child show that the mother has the capacity to be the child’s principal carer and the father has the capacity to care for the child while he is with him.  The paternal grandmother has played a part.  Overall I am satisfied that the father on his own is well able to provide for the child’s needs.

11. The age, sex and lifestyle of the child are as stated and each party has a satisfactory attitude to the responsibilities of parenthood.  There is nothing else of relevance.

12. The child’s best interests are served by him having the additional time which is proposed by the father and supported by the Independent Children’s Lawyer, including the school holiday time.  The child’s views are that he wants to have the additional time and his relationship with his father is such that he will enjoy that time and it will promote his relationship with his father.  The additional time will not affect his relationship with his primary carer, his mother, I am satisfied that the proposal for drug tests are adequate protection against the risk that the father has relapsed into drug taking.

13. The mother proposes that the two weeks of Christmas holiday time alternate between commencing on Boxing Day and commencing on 7 January.  This will allow her to have the period immediately following Christmas every second year and the same for the father.  The father owns a (business omitted) and there seems no reason why his proposal would suit any more than the mother’s proposal.  The mother has a reason for the order she proposes and so I will make that order.

14. Neither party proposes equal time and what I have said shows that it is not in the child’s best interests and that the proposed orders meet the requirements of substantial and significant time.  The parties have the capacity to implement the orders and so they are reasonably practicable.

Other matters

1. The mother proposes an order that the father not bring the child into contact with Ms T and Mr S.  Ms T is the mother’s sister.  She did have a very good relationship with her but they have now fallen out and the mother does not speak to her sister. Ms T and Mr S have teenage children and the father says that the child enjoys spending time with his teenage cousins although he does not visit frequently.

2. In her evidence about her opposition to the child having any contact with Ms T and Mr S the mother said that her sister and brother-in-law had moved to Queensland and separated and then had reconciled back in Victoria.  She alleged that there has been family violence in the relationship.  Her opposition to the child having any contact appeared to be that since she had fallen out with her sister her position as the child’s primary carer should be respected.

3. The benefit to the child that the father puts forward is his relationship with his cousins.  Thus it comes under the second of the additional best interest considerations, the relationship of the child with other persons.  The child having a relationship with cousins is a normal incident of growing up and in the absence of risk factors will be in the child’s best interests.  The mother does not allege that the child is at any risk when seeing his aunt, uncle and cousins.  Her opposition is based on the fact that she has fallen out with them and is not speaking to them.

4. The mother’s evidence does not show that there is any risk to the child in seeing his cousins.  The benefit the father puts forward is in seeing the cousins rather than the aunt and uncle.  I am satisfied that the child’s occasional contact with these cousins is in his best interests.

5. The mother proposes an order that the father be in substantial attendance when the child spends time with him during school holidays.  There is no need to make this order.  The father may be at work during some of the time but that does not mean that the child will not be having a relationship with him.  Nothing suggests that the father will not make adequate arrangements for the care of the child during school holidays.  I do not consider that the child’s best interests require such an order to be made.

6. The mother proposes an order that the father to return the child’s passport to the mother or alternatively the passport to be kept at the Registry of the Federal Circuit Court of Australia.  Since the mother is the child’s primary carer she is the appropriate custodian of the passport.

7. The mother proposes an order that for times in excess of three days the father facilitate a telephone call to the mother once each week.  The mother obviously has some anxiety about the child spending time with the father.  A telephone call would reassure her and the child’s best interests are served by his primary carer being reassured about his well-being.

8. The mother proposes an order that the parties communicate by text message for children’s matters.  There have been issues about conflict between the parties and so a prescribed method of communication which does not involve direct contact is desirable.

9. The mother proposes an order that that the father provide a school uniform for the child when the child is in his care, including sports uniform.  I find it difficult to see what the mother is proposing in practical terms.  During term time when the child comes into the father’s care he will be wearing school uniform because he will be coming from school and the father will be returning him to school so he will again be wearing school uniform.  The child will be wearing a school uniform provided by the mother when he comes into the father’s care and it will be the father’s obligation to ensure that he has a clean school uniform when he leaves the father’s care.  The parents sharing the care of a child have to be able to cooperate to some extent no matter how bad their relationship is.  A court cannot attempt to regulate every detail of the care of the child and in this case this is one of those details.  Surely the parties between them can make sure that the child has adequate items of school uniform.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  2 October 2014