Colgan & Colgan

[2014] FamCA 828

FAMILY COURT OF AUSTRALIA

COLGAN & COLGAN [2014] FamCA 828

FAMILY LAW – CHILDREN – INTERIM ORDERS – Where the mother is the primary carer of the children – Where there are allegations by the mother of domestic violence by the father toward her – Where there is an AVO against the father for the protection of the mother – Where the allegations of physical violence are denied by the father –– Where it is found that the children are not at risk of harm in the care of the father – Where it is found that the children must be protected from exposure to parental conflict – Interim orders made for overnight time with the father and the oldest child – Interim orders made for both parents to submit to drug and alcohol testing.

Family Law Act 1975 (Cth) ss 65DA, 62B

APPLICANT: Ms Colgan

RESPONDENT: Mr Colgan

FILE NUMBER: SYC 5091 of 2014

DATE DELIVERED: 12 September 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 12 September 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Barkus Doolan

SOLICITOR FOR THE RESPONDENT: Pigdon Norgate Family Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. The children K born … 2010 and L born … 2013 live with the mother.

2. That K spend time with the father as follows:

   (a)  On Saturday 13 September 2014 from 10am to 4pm.

   (b)  Thereafter each  weekend from 10am on Friday until 4-00pm on Saturday  commencing on 18 September 2014 until he starts school in 2015;

   (c)  After K starts school in 2015, the time pursuant to Order 2(a) is to commence at the time school finishes on Friday and K is to be collected by the father or either of the paternal grandparents from school;

3. That L spend time with the father as follows:

   (a)  Each Saturday from 10am until 4pm.

4. That, subject to Order 2 (c), the mother deliver the children to the home of the paternal grandparents at the commencement of their time with the father and collect the children from them at the conclusion of their time and that the father not be present or within the sight or hearing of the mother on any of those occasions.

5. That without admission, the parties each undertake supervised urine analysis in accordance with AS/NZS4308 standard and in accordance with chain of custody proceedings on no more than one occasion each fortnight within 24 hours of receiving a nomination from the other party or his or her solicitor at an accredited testing laboratory for the detection of all drugs and alcohol including but not limited to cocaine, opiates, cannabis, benzodiazepines, oxazapam, oxyxodone and growth hormone and the results of such tests shall be provided forthwith to the other party’s solicitor and the cost of such testing shall be met from the controlled moneys account.

6. That in the absence of agreement the children spend time with the father on Christmas Day from 10am to 4pm.

IT IS ORDERED BY CONSENT

1. Each party must use their best endeavours to ensure that the Children communicate by telephone or mobile with each party at least once per week each night when they are not in the other’s care.

2. Each party must each keep the other informed of their current residential address and provide the other with written notice of any change in their residential address, e-mail address and telephone numbers, including mobile and landline telephone numbers, within 48 hours of any such change.

3. The parties attend a parenting course by an accredited course provider within 6 months of the date of these Orders.

10.If there is any medical emergency involving the Children, including but not limited to serious illness, accident or hospitalisation, the party with the care of the Children must:

10.1immediately contact the other party; and

10.2as soon as practicable, provide the other party all documentation and information in their possession regarding the incident.

11.Pending further order, when the Children spend time with the Father or Mother in accordance with these Orders, and on a without admissions basis, the parties be restrained from:

11.1Consuming more than 3 standard drinks of alcohol;

11.2swearing at any of the Children;

11.3physically disciplining any of the Children by hitting them or striking then and the parties will use his best endeavours to ensure that any third party does not physically discipline the Children;

11.4using or consuming any illegal substances for at least 24 hours prior to the commencement of any care periods and during all periods when any of the Children are in the parties’ care; and

12.Each party is retrained from doing any act or thing, or causing or permitting any other person to do any act or thing, that has as its intention or effect the denigration of the other party or that party’s family within the presence or hearing of the Children or any of them.

13.A single expert be appointed pursuant to the Family Court Rules to provide a report addressing the following issues relating to the Children:

13.1      the mental state of both parties;

13.2any wishes expressed by the Children and any factors that the expert considers relevant to the weight those issues should be given;

13.3whether either party has influenced the Children with respect to their wishes;

13.4the nature of the relationship of the Children with each party and with significant other persons;

13.5the likely effect of any change in the Children’s circumstances, including the likely effect on the Children of any separation from:

13.5.1the Mother; or

13.5.2the Father; or

13.5.3any other person with whom the Children have been living;

13.6the capacity of each party to provide for the needs of the Children including emotional and intellectual needs;

13.7the attitude to the Children, and to the responsibilities of parenthood, demonstrated by each of the Mother and the Father;

13.8any physical or psychological abuse involving the Children or a member of the Children’s family;

13.9the Children’s maturity, sex and cultural background and any other characteristics of the Children that the expert thinks are relevant to the Children’s welfare; and

13.10any other matter the expert considers relevant.

14 The parties do all things necessary to facilitate the preparation of the report ordered in Order 15 including:

14.1providing copies of all documents filed on their behalf;

14.2attending on the expert and arranging for the Children to attend upon the expert; and

14.3provide an authority to their respective medical practitioners including all psychiatrists and psychologists allowing their records to be produced to the expert.

15.The Mother indemnify and keep indemnified the Father for all costs relating to the Father’s car should she have an accident whereby insurance is unavailable to cover such costs.

16.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Colgan and Colgan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5091 of 2014

Ms Colgan

Applicant

And

Mr Colgan

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court are brought by Ms Colgan, the mother. The respondent is Mr Colgan, the father. There are two children of the marriage: K, born in 2010 and now four years old and L, born in 2013 and now 11 months old. 

2. The mother brought interim applications seeking orders for sole occupation of the former matrimonial home, spousal maintenance and parenting. Orders have been made in relation to the sole occupation of the former matrimonial home and spousal maintenance. The parenting matters remain to be determined.

3. It is common ground that, since the birth of the children, the mother has been their primary carer. Since K was born, the father has worked in Brisbane three days each week and from June 2013, the father worked in Brisbane for four days each week, from Monday to Thursday. That work pattern continues.

4. The parties separated on 9 August 2014 following an incident which took place at the home. 

5. On 14 August 2014, the police took out an apprehended domestic violence order on behalf of the mother against the father. 

6. On Father’s Day, 7 September 2014, the children spent time with the father at his parents’ home in their company and under the supervision of B Supervisors, a professional supervision agency. 

7. The mother’s version of the events of 9 August 2014 is set out at paragraphs 34 to 38 of her affidavit. In summary, the mother says that she returned home at about 8.30 pm after being out at lunch with a group of girlfriends and an altercation commenced between the parties. The mother says that the father yelled abuse at her in the bathroom when both parties were bathing K. The mother says that when she attempted to leave the bathroom, the father grabbed her by her right wrist and twisted her arm. She says the father then struck her across her face with his right hand using a closed fist and she fell to the ground. The mother further says at paragraph 46 that she suffered swelling and bruising to her left cheek and lip as a consequence of the punch, and annexed to her affidavit are copies of photographs. 

8. The father’s version of those events is found at paragraph 68 to 73 of his affidavit. He says that when the mother returned home from her lunch, he observed that she was very drunk. The father says that an argument ensured between them that the mother started punching him in a downward motion like a hammer. He says that by the third punch, he blocked the mother’s punching with his left hand and her forearm hit his forearm. He says she continued punching him and he continued blocking her punches and that this happened five or six times. 

9. At one particular point, the father says his left hand lightly pushed the mother’s shoulder and she moved backwards but did not fall over. At a later time, the father says that the mother pushed him and he pushed her back and she unfortunately fell sideways to her left hand side and hit her head on the tiled wall on the side of the bathroom and fell down. The father says he picked the mother up and she continued to yell at him and he took her into the bedroom and sat her down.

10. These are interim proceedings. It is not possible for the court to make a determination of which version of that event should be accepted. 

11. There is, however, some external corroboration. Notes produced by K’s school were tendered. The file note is unsigned and does not identify the person who spoke to K, however, the unidentified person recorded that on August 25, 2014 at 9.30 am, K and other boys were playing. The children were talking. K said to the unidentified person:

    My mummy and daddy had a fight. I was in the bath crying. He hurt my mummy, she had blood. Daddy is staying at another house so they don’t fight anymore.

    The person said to [K]:

    Where was mummy’s blood?

    And [K] said in her mouth, pointing to both sides of his face near his teeth, and on her arm.

12. The mother consulted her general practitioner (“GP”) on 11 August 2014 and the GP’s notes were produced and tendered. The GP noted bruising on the mother’s right forearm, bruising over her left maxilla and temporal area with some grazing over her left forehead and cheek and inside of the mouth on the left hand side, bruising and petechia. 

13. The mother annexed to her affidavit photographs taken after the incident which are consistent with her reported injuries. 

14. It is the mother’s case that there is a history of violence, both verbal and physical, between the parties over the last four years. The father denies physical violence but admits that the parties both yelled and swore at one another. I am again not in a position to determine which version of events should be accepted.

15. Over the objection of the father, there was tendered a recording in which the mother had recorded an altercation between the parties. A transcript of that recording has been admitted into evidence as exhibit 4. In the course of that altercation, the father said these words to the mother:

    You think you’re born to be fucking better. You think you’re born to be the boss, you’re a fucking nobody. You know what. I hate lying next to you. The reason I can’t sleep is I’m disgusted with myself for being with somebody like you. You are fucking disgusting to me. I fucking hate you. You don’t know how much I dislike you. 

    The father’s language in that recording is in the same terms as the mother alleges he consistently used towards her during the marriage. It is likely that the father was verbally abusive to the mother in the way in which she alleges. I am not in a position to determine whether the mother reciprocated.

16. On the evidence produced by K’s school, the incident on 9 August 2014 took place in the presence of K and he was distressed. The mother says that on other occasions when the father has been verbally abusive, K has intervened and asked the father to stop. The mother gives evidence of one occasion when K said to her:

    Mummy, daddy is always angry with me. Daddy scares me.

17. The father, on the other hand, says that he has a good relationship with the children. It is his case that the mother was willing to leave the children in his care. Indeed, on 9 August 2014, the mother went out to lunch with friends leaving both children in the care of the father and did not return until 8.30 pm. 

18. The mother planned to go overseas, leaving on 28 August 2014 to travel to Ibiza. She had a return flight booked from Ibiza to London arriving on 6 September 2014. Even if she planned to return to Australia immediately from London, she was content to leave the children in the father’s care for a significant period of time. Even if the mother intended to engage a nanny to assist, presumably the nanny was not a familiar and comfortable figure for the children, especially for L, and the father was to be their primary carer. 

19. I note that one of the submissions made by the mother to resist overnight time for L is that L has never been separated from her overnight. She thought that a separation of at least eight days was appropriate when she planned her trip to Ibiza.

20. Annexed to the father’s affidavit is a report of Ms C who supervised the Father’s Day visit. She describes a comfortable and loving interaction between both children and their father and the paternal grandparents. There is nothing in the report of Ms C which gives rise to any concern for the children in the care of the father. I am not persuaded that the children’s best interests require professional supervision whilst they are in the care of the father, however I am persuaded that they should not be exposed to the effects of interaction between their parents on changeover. 

21. Whilst the children’s primary attachment is assumed to be to their mother they have, on the limited evidence available to me, a close and loving relationship with both the father and the paternal grandparents. Time with the father needs to be structured having regard in part to L’s age so that he is not removed from her care for a period which is too long so that he will become distressed. Balanced against that consideration is the need for the children to spend sufficient time with the father that their already meaningful relationship with him will be supported.

22. I am not satisfied that the children are at risk of harm from the father in his care. On the untested evidence before me, however, I must safeguard the children from the potential risk of both physical and verbal violence towards the mother that may occur on changeovers if they occur between the parents. Doing the best I can without the assistance of expert evidence, I propose to make orders that will minimise the perceived risks which I have identified. 

23. Both parents allege substance abuse on the part of the other. Both accept that there should be a regime of testing. They disagree about the frequency of the testing. The mother says it should be weekly and the father says it should be fortnightly. They disagree about the period of notice in relation to which the tests must be performed. The mother seeks an order that 24 hours notice to be given and the father seeks 48 hours. 

24. I am not satisfied that the allegations are sufficiently grave as to justify the expense of weekly testing. I reject the submission made on behalf of the father that it will be substantially more difficult for him to obtain testing in Brisbane than it would to obtain testing in Sydney. There is no evidence that the substances for which tests will be performed remain in the system for 48 hours and therefore the orders will provide for random testing fortnightly within 24 hours of notice. 

25. A number of the orders which are sought by the father are agreed to by the mother. Specifically, orders 9 to 16 and 21 of the father’s interim application will be made by consent.

26. The mother, in the minute of orders which was tendered, sought the following orders:

    Without admission, the parties are hereby restrained from using any non-prescription drugs and prescription drugs save in accordance with legitimate directions of a treating medical practitioner as obtained on a bona fide basis for medical purposes only during all periods the children are spending time with that party, and for a period of 12 hours prior to the children spending time with a party.

27. The father sought an order in similar terms. 

28. An order which restrains a person from using prohibited and illegal substances for specified periods before spending time and during the time spent with the children implicitly suggests that such use is condoned by the court at other times. Such an inference is inappropriate and an application in those terms is not appropriate and should not be made.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 12 September 2014.

Associate: 

Date:  12 September 2014